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Why A Lawyer Should Never Try to Shoot from the Hip

3 min read

Why A Lawyer Should Never Try to Shoot from the Hip

As a kid, I always thought any Hollywood cowboy who could shoot from the hip and kill the villain was one tough hombre that no one in their right mind would ever want to mess with.  I viewed those cowboys as heroes and would often pretend I was one of them when playing in the woods behind my childhood home.  That was short-lived, however.  As I got older, I came to realize there was a little movie magic behind those epic shootouts and my adulation of such heroes eventually waned.

As an adult, I still admire someone who has worked hard to learn to accurately shoot from the hip.  I have no idea why, but it’s a skill I find impressive.  Perhaps this is why I’ve been wondering about the origin of the idiom “shoot from the hip” of late.  I’ve come to learn that the phrase originated during the heydays of the American cowboy of the old West. Obviously, it alludes to shooting a gun from the hip; but what I wasn’t aware of is this.  The shot also occurs without ever taking the gun out if the holster. Of course, while this made firing quicker, the shot was not as accurate.  It is with this context in mind that the current use of the idiom to refer to a decision that is reached and implemented without stopping to consider the possible consequences of the decision makes sense.

I wanted to share this because I have been cautioning lawyers to never shoot from the hip for years, and yet many still do.  Some almost on a daily basis.  I think one of the reasons why is due to the time demands of the legal profession.  It is just too easy for lawyers to find themselves in situations where they feel compelled to take that quick shot, if you will.  Take the shot, problem solved, move on to the next task.  The problem is that taking that quick shot without regard to the accuracy of the shot is asking for trouble.

Perhaps a few examples are in order.  Consider dabbling.  It’s a malpractice problem we continue to see. Time and again, lawyers will take on a matter that is outside of the areas of practice they routinely practice in, and they may decide to do so for any number of reasons.  It might be an inability to say “no” to a good client.  It might be the legal ask is viewed as a simple matter.  Heck, it could even be out of a desire to make sure that revenue keeps coming in.  Regardless, a decision to take a quick shot is made without stopping to think through the potential consequences.  At a minimum, these lawyers often don’t know what they don’t know and therein lies one problem.  Look at it this way. Even if that shot from the hip by happenstance ends up being close to the target, that is often still not good enough.  Close doesn’t cut it in the world of legal malpractice.

Blown deadlines can be another example of where unintended consequences arise when lawyers decide to take that quick shot.  In follow-up to a remark I made during a recent ALPS CLE, a lawyer shared that his partner always used to say the following:  If you think you know a filing deadline that is written in a statute or rule and rely on your recollection instead of looking it up, you have committed malpractice even if you were right.  I couldn’t agree more.  Again, even if it was a close call, it’s still a miss.

Other examples might include responding to an email too quickly or agreeing to take a matter on before giving any thought to whether you can actually meet the client’s needs or work effectively with this new client.  It could be giving legal advice in a vacuum because you didn’t take the time to gather all the information you would need to know to make sure your advice would actually be accurate.  Regardless, I do understand why sometimes we all feel like it might be worth shooting from the hip, be it in our personal or professional lives.  I will readily admit that I’ve done it more than a few times in my life.  Time crunches happen; and when they do, I try to stop, take a breath, and ask myself this:  If I take that quick shot from the hip, is ‘close enough’ an acceptable outcome or will I have only solved the problem for the short term and potentially created a bigger problem in the end?  It’s a question all of us legal hombres need to keep in mind because, particularly in the practice of law, accuracy matters; bigtime.

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Since 1998, Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1200 law firm risk management assessment visits, presented over 600 continuing legal education seminars throughout the United States, and written extensively on risk management, ethics, and technology. Mr. Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee. He received his J.D. from Drake University Law School.

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