Always Be Ready To Advocate On Any Open Issue

Clients hire litigators to win for them, so litigators need to be ready to argue and win -- on anything -- every time they get in front of a judge.

Tom, a lawyer colleague of mine, last week represented one of our firm’s clients at a Rule 16 preliminary conference in a fairly complicated civil dispute before a federal judge. It was not a matter he was ordinarily assigned to; he was covering another one of our colleagues (as litigators often do for their colleagues), Christine, who was starting a multi-defendant gang trial in New York Supreme Court (note: don’t be confused when you watch Law and Order; New York’s highest county court, including where felonies proceed, is called “the Supreme Court” and not superior court).  But the case was really only on to work out a discovery schedule. There were no motions or issues of dispute before the court, and a discovery schedule had already been stipulated to between the parties. It’s one of those appearances where the ten-minute walk to the Foley Square courthouse from our firm might be longer than the time before the judge.

After the judge started the conference, he asked Tom what the case was about. Christine had provided a summary of her case which Tom related to the Court, all two lines of it. But then the federal judge asked, “Yes, but what happened here, tell me about your case?” — and, typical of demanding Southern District of New York judges, he wanted lots of facts, a theory of damages, some sense of how the dispute had evolved into a litigation, and a lot more than simply when discovery would end or how many depositions we intended to take.

Many lawyers would be inclined to tell the judge that they were only standing in and simply want to work out a schedule. Like any good litigator, Tom knew better. He took the judge through the complaint and had an answer to every question, and was aware that not only the judge but his clerks — who might have significant responsibility on a dispositive motion in the case someday — were there in court, taking notes as Tom talked. Litigators need to remember that latter point: when you do anything before a court, it’s not just the judge but the entire chambers who is watching, and very often they influence, heavily, what the judge shall do in the case.

That’s how it works if you want to win. Time before a judge on your cases — big or small, civil or criminal, federal and especially state — is so limited and so precious. Even the best-resourced and hardest-working of judges (or arbitrators as this equally applies to them) are busy. They don’t have much time to devote to your case unless you’re actually on trial before them.

So when you get this time, you need to be ready to take advantage of it, even if you are only covering for a colleague. Win your case every time you’re in court. And always be ready to discuss anything that can help you win — your narrative of the case, why you win on a motion where maybe only the other side filed papers but you haven’t yet, how a recently issued decision of the court you’re in front of shows why we win.

Never tell the judge, “That motion isn’t on today, Your Honor.”  She’s not going to want to hear it, nor should she – you’re either bringing a case or saying why a party who claims injustice shouldn’t get what they want. Be ready to defend your position, and everything related to it, any time you have access to that precious, very limited judge face time.

Now, discretion is the better part of valor.  You need to know how to take advantage of this time, always mindful of how limited it really is.  I’m hardly suggesting you muse when a court asks you a question. If a judge asks you how much time you need to file a brief, she (rightly) doesn’t care for you to recite your docket schedule, and it’s also not the time to try to sum up your case in 60 seconds.

Sponsored

But judge face time is so limited and always needs to be used to advocate your entire position.  If you are before a judge or arbitrator on a seemingly small procedural matter, be ready to field big picture questions and to discuss any open issue. And whenever you can, in any way you can, advocate for your side. Win for the client.


John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

Sponsored