Perhaps the greatest fear that I hear from most shinglers-to-be is the fear making mistakes. For example, many lawyers contemplating solo practice, whether fresh out of school or after a tenure at biglaw, have never argued a motion, filed a complaint or taken a deposition (sometimes they’ve never even observed others doing it). They’re afraid that if they take a case on that involves these skills, they’ll make a mistake. And they’re concerned not so much about a grave error that would trigger malpractice liability, but rather, the smaller errors that cause public embarrassment and humiliation in front of a judge or the client.
Guess what? It’s not just new solos who make these kinds of little missteps, who have days when they can’t get a coherent argument out or break a witness on cross examination. Everyone does – that’s why we call our profession the “practice,” rather than mastery of law. But what more experienced lawyers do have is a bag of tricks that they can use to cover errors or mitigate them. Consider this nifty trick that Ron Miller of Miller and Zois’ Maryland Injury Lawyer Blog discussed in this post entitled Cross Examination of the Witness That Cannot Be Cross-Examined. You need to read the post in its entirety to appreciate the story, but to briefly summarize, if you can’t lay a hand on a witness, compare him to a greased pig. The story is a great example of how to explain away any lack of effectiveness – and then – turn it to your advantage.