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Prepare For The Physical Realities Of Actually Being In Court

Make sure that you prepare yourself for how you will perform your work in court, including how you will access information.

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john-balestriereMake sure that you prepare yourself for how you will perform your work in court, including how you will access information.

For almost any oral argument on a motion we handle at our firm, we prepare a case brief memorandum that we generally call a case’s “cheat sheet.” It lists any authority we think relevant to the argument and we brief them as appropriate—basic facts, relevant holding, how it supports/how to distinguish it, and so on. This is something we find not only useful in preparing for an argument, but also when actually in court. If you’re arguing on a motion where dozens of authorities are cited, while a good lawyer will know which ones matter the most for that argument (and, thus, should know them without reference to such cheat sheet), even the best lawyer cannot know all the details about dozens of cases. The cheat sheet acts as an easy-to-grab reference to remind you of what the case is about (or for your colleague to look through while you’re arguing, or for you to look through while your adversary is arguing).

What our lawyers  found in the past when asking non-lawyer analysts to prepare such memos without very specific directions is that the memos may have been well written substantively, but they were not organized in order to be helpful in court. For example, a case brief would start at the bottom of one page and continue to the top of the next. That’s fine when you’re simply reading through a memo.  But if you’re trying to read quickly, while a judge is asking you questions, even having to turn the page could take too much time. There also would be too much information in certain sections, which is fine when you have the time to look through the memo. It is not fine when, again, you have maybe two or three seconds quickly to remind yourself of a holding or important facts.

As noted, it was the fault of the lawyers (myself included) that these memos were not properly organized. We did not give the proper directions. If you’ve stood up in court and had a judge ask you about what you thought was not an important case—in the dozens cited by the parties in the papers filed on the motion—and you have grabbed that cheat sheet, you know how important it is that it be organized in a certain fashion. The analysts, who have not (yet) gone to law school, let alone argued in court, did not have this experience.

The cheat sheet organization is simply an example of what has to be a litigator’s standard practice: prepare for the physical realities of court (and, more, of the physical realities of the specific courtroom you’ll be in, with that specific judge or arbitrator, and for the specific argument or hearing or trial). This is an individual determination; I hardly advise one size fits all for lots of areas of our practice, but the way you handle court time is a particularly individual determination. But ensure that you are able to do your work the very best while actually in court.

When figuring out how to prepare for court, make sure you understand that the focus is on utility, not prettiness. Lawyers, many of whom are “trained” by doing mind-numbing source-citing work on law reviews while in law school, have a tendency, useful sometimes, of making their documents look pretty. But while you do not want to look like you’re disorganized in court, keep in mind that your goal should be to do what works.

For example, if you will rely on a document, make sure the font size is correct (you may want it bigger than what you’d include in a letter), that it is not overstuffed with info on a page that would make it difficult to review on the fly, that the document is not too long, and that it is organized in some fashion to make it easy to find what you want (regardless of whether you’re using a paper document, or on a tablet which has a good search function). A courtroom document you create may not look anywhere near as pretty as a letter to the court should, but for most documents you create to help you win in court, you and your colleagues are the only ones looking at it.

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Beyond not focusing on the pretty, you need to ask yourself questions: Will you use paper or a tablet? If you are bringing papers to court you will use, how will you organize those papers? Do you have sufficient copies of exhibits or anything you want to share with the court (including his or her clerk or court attorney, if such professional will be in the room during the argument or hearing or trial)? Should the documents be labeled already so you can hand them to their eventual readers quickly? Where exactly will those papers be in court? Is there room on counsel table for them, or should they be in a box on a chair to your side, or should they be somewhere else? If your hearing is multi-day, do you want to keep the documents in court (if you can) and, if so, will they be organized to make that easier?

Most of the work that most litigators do is not in court (with the obvious exception of certain fields like state criminal law, where lawyers, at least at certain points in their career, may spend half their day or more in court). When you are going to be in court, prepare yourself for how you will actually get your work done in court and make sure you get all the courtroom experience you can. This way you know what work to do before court, so, when in court, you can win.

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 [email protected].

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