Boutique Law Firms, Litigators, Small Law Firms

You’re Not What A Litigator Looks Like. Too Bad.

You may not be given the respect you deserve as a litigator -- understand and accept that, or don’t be a litigator.

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john-balestriereMany areas of litigation can be tough practice. You may not be given the respect you deserve, at least at first, because some do not think you fit in. Understand and accept that or don’t be a litigator.

About a year ago I tried a case in New York Supreme Court with a female colleague who was younger and a non-native New Yorker. Our adversary—an older, native Brooklynite trial dog—did not let my colleague forget any of those facts. For our adversary, it was about a lot more than the attorney being a woman and relatively young. She also wasn’t “one of us.” She was, according to this adversary, the wrong ethnicity, from the wrong part of the country, and in the wrong court. Amongst the many choice remarks he shared with her was, “This isn’t federal court, honey.”

My colleague was understandably frustrated by this. She knew she was doing a good job, but she felt angry that she was being judged for all these things that obviously had nothing to do with the case or her work.

I was unsympathetic to my colleague. Our adversary was wrong, of course, dead wrong. I explained to my colleague that our adversary’s prejudices were less specifically ageist or sexist as much as they were almost tribal—my colleague was a woman from San Francisco who attended a very good state school in California and practiced more in the Southern District of New York and the Second Circuit than she did the non-Commercial Division civil or criminal courts, which were the daily haunts of our adversary. Our adversary accepted me because I was part of what he deemed the correct tribe: like our adversary, I’m a native Brooklynite; like our adversary, I made my bones in criminal court; and, like our adversary, and according to him, I was the right ethnicity (I’m Irish and Italian; the adversary is Jewish; my colleague is Scottish).

But this tribalism was not much better than sexism, racism, or anything else. Our adversary was wrong. What I tried to explain is that many litigators feel more comfortable in their prejudice since I think they do not view this tribalism as somehow as bad as straight-up sexism and racism and, indeed, they would take offense at being called sexist or racist, but probably not what I’m calling a tribalist.

As I noted, though, I wasn’t too sympathetic to my colleague. Why? Because this is the job. People are not always nice. In fact, in litigation, people are frequently unkind. And the tribalism I describe is common in various litigation fields, and all over the country. You’re a local or you’re not. You “belong” in a given court or you don’t. You went to the right schools—which could mean Ivy, or could mean local—or you didn’t. You’re the “right” age, or sex, or orientation, or background, or whatever, or you’re not.

This is the work we’re in. I won’t pretend to suggest even the beginning of a solution in this column. I do accept wholeheartedly that it shouldn’t be this way. What I want readers of this column, especially younger or prospective litigators, to keep in mind is that this is the field they are in or getting into. Litigation can be absolutely fantastic work, but this is one of the costs. And I think it’s near unavoidable since everyone, whatever your background, starts off new, and the most common sneering prejudice I’ve seen (by not many, but enough) is of the experienced litigator who assumes idiocy or poor judgment on the part of newer litigators.

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None of this means you can’t have a satisfying career, serve, or win for your clients. I’d like to think that that is the case for my colleague. Using a technical legal term, we destroyed the above-mentioned adversary at trial with a fantastic verdict that included a money judgment 60 times the last offer the adversary made. My colleague’s months of preparation and further work during the trial by her, me, and the rest of our team, helped us win and win big for our clients.

Litigation is great work but you sometimes will have to deal with prejudiced jerks, especially as a younger lawyer. Some litigators will take action to make this change. However, all litigators need to accept this reality, while staying true to who they are, and focus on winning for their clients.

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.

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