The "Practice" of Law

We're talking about practice man. We're talking about practice. We're talking about practice. - Allen Iverson

The one constant in this profession is that you frequently encounter situations that you have never seen before.  It's a double-edged sword.  You find yourself going into uncharted territory and having to rely on your training and experience (nice, I sound like a testifying  police officer) to get you through.  It can be intimidating and you can make mistakes , but the reward is that you learn how to handle that particular situation if it ever comes up again.  Plus, your response can teach you things about yourself that you may not have known before.  Did you panic?  Were you paralyzed by indecision?  Were you completely unprepared for this possibility?

When I first started practicing four years ago, I would shy away from situations that were new to me.  I was so afraid of making a mistake and hurting my client's case that I wasn't as zealous an advocate as I should have been.  As I so often do, I sought out an older attorney's advice on how to handle those situations.  This attorney is a prominent criminal defense lawyer from San Antonio and I put a lot of faith in his advice.  He told me "You are going to make mistakes.  Every lawyer does.  The good ones are the ones that learn something from those mistakes."  It seems like an obvious bit of advice, put it was paradigm-shift for me.  Instead of fearing each new experience, I started to view it as an opportunity to learn something new about the law.  

So for each hearing that I had, each motion that I filed, I did the best work that I could and knew that I couldn't prepare for every possibility (Bennett has a great post on this issue).  If something I had never seen before came up, I handled it as best I could and if I made a mistake, I took enough away so that I wouldn't make the same mistake again.

Because I have this approach and this mindset, it absolutely kills me when I find myself making the same mistakes over and over.  Let me give you an example.  The other day, I was having a sentencing hearing and I was doing well with my witness (my client) on direct.  We were hitting all of the points we wanted to hit and my client had a good presence.  I passed the witness to the state and the prosecutor started the cross.  My client did well on cross.  I should have stopped my client's testimony right there.  I had more than enough points to make my argument, but I got greedy.  I started thinking that my client was doing so well that I would really hammer some more points home on re-direct and gift wrap my case to the judge.  And that's when it started to fall apart.  I lobbed softballs at my client on redirect to counter some of what the state did on cross and my client whiffed.  Then, my client went off on a tangent that left me shaking my head and left the prosecutor looking like the cat that ate the canary.  In the end, we still got the result we had hoped for, but a great looking case became dicey because I screwed up.  I asked too many questions.  I tried to counter every point that the state made.  

What infuriates me is that I know better.  I know you are not supposed to ask "one question too many."  I know your not supposed to try to counter every point your opponent makes.  I recently saw a prosecutor do the very thing I did and I was shaking my head saying to myself  "What was he thinking when he did that redirect?".  

I am reminded of an example that I read in a book (Clinical and Trial Skills In A Nutshell?) about asking one question too many.  This defendant was on trial for assault.  The state was alleging that the defendant bit the nose off of the complainant.  The defense attorney gets the state's key eye-witness on the stand and starts his cross.  He gets the witness to admit that it was dark outside during the alleged incident.  He gets the witness to admit that it was foggy that night.  He gets the witness to admit that there weren't many streetlights around at their location.  He gets the witness to admit that the defendant had his back to him during the alleged incident.  He gets the witness to admit that he only caught the very end on the alleged incident.  Finally, at the crescendo of this great cross-examination, the defense attorney says "You didn't actually see my client bite the complainant's nose off , did you?".  And the witness looks down and says "No. No, I didn't," while shaking his head.  The defense attorney decides swing for the fences and says "So, you don't have any evidence that my client bit the nose off of the complainant, do you?", expecting the witness to be befuddled and speechless.  The witness looks up, points toward the defendant and says "You mean aside from the fact that he spit the nose out at me?"