Boutique Law Firms, Litigators, Small Law Firms, Trials

Even When On Trial, The Preparation Is Not Over

For trial lawyers, it is important to remember that the preparation for any evidentiary hearing is not over until the door closes on the courtroom or the arbitration hearing center on the very last day.

By Jillian L. McNeil  
on
Jillian L McNeil

Jillian L. McNeil

Ed. note: Jillian L. McNeil, an attorney at Balestriere Fariello, is filling in for John Balestriere this week.

For trial lawyers, it is important to remember that the preparation for any evidentiary hearing is not over until the door closes on the courtroom or the arbitration hearing center on the very last day.

As a fifth-year attorney in a complex litigation practice where, at least for many lawyers at other firms, trials are relatively infrequent, I have been fortunate to have had the opportunity be involved in many of our firm’s trials and evidentiary hearings. Each of these trials and evidentiary hearings has required extensive preparation, both during and before the actual trial.

Prior to a trial or evidentiary hearing, my colleagues and I often spend months preparing for the few days or weeks that we appear before the trier of fact to present our clients’ cases. This time includes both the preparation of the seemingly endless logistics as well as the in-depth preparation of witnesses, evidence, pre-trial motions and submissions, stipulations, and argument.

When the date of the trial finally comes, it can almost feel like a relief.  Time speeds up and we are finally faced with what can be the most exhilarating part of our jobs as attorneys.  For many, like myself, the opportunity to advocate in trials is the reason we became litigators. Like stage actors or dancers who have spent months in the confines of closed rehearsals, we are finally on stage under the bright lights, and the preparation has come to an end.

I write that, but that is not completely true. While the type of work we are doing changes, preparation does not end with the start of the trial. In fact, we as trial lawyers must continue to prepare through the very last day—indeed, the very last minute—of the trial.

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Recently, I experienced this firsthand when our firm represented a party in a multi-week arbitration before a panel of demanding arbitrators.  The arbitration regarded a decade-old business relationship, and involved hundreds of thousands of pages of documents, as well as witnesses from multiple countries.  The pre-arbitration preparation required was enormous.

Three days before the closing arguments were scheduled, the panel requested that the parties submit PowerPoint presentations during our respective closings with answers to dozens of questions regarding the parties’ claims, defenses, and requests for relief.  This was exciting in a way that perhaps only a lawyer can appreciate, as it afforded us the opportunity to focus on the issues that we knew were important to the arbitrators, which we would not have had in the context of a traditional trial.  But it also required an extraordinary amount of work in a very short period of time—so much so that I can now say that sunrise over Manhattan’s financial district is quite beautiful. This, however, was still not the end of our preparation.

The following day, after my colleague completed what turned into a more than a three-hour closing (given all the questions that the tribunal posed), even as my colleague who handled the closing sat down, our preparation continued. Here is why: since we were given the opportunity for a rebuttal, the speed and breadth of the preparation picked up.  During the opposing side’s closing, we had three attorneys, including myself, sitting in the arbitration center searching through the electronic versions of hearing transcripts and those hundreds of thousands of documents hunting for good quotes or references or simply for citations to the record. It was not just in the center: via email we worked with others back in our office to find testimony or documents to counter each and every point presented by opposing counsel that would have otherwise been harmful to our client. My colleague was able to present this in his rebuttal, and we were able to do the best possible job for our client.

Like the dancer who takes her moment offstage between songs to stretch and run through a movement one last time, the best trial lawyers keep preparing until the curtain goes down.  The best trial lawyers never stop preparing to win.

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Jillian L. McNeil was an attorney at Balestriere Fariello, a trial and investigations law firm which represents clients in all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach firm partner John Balestriere at john.g.balestriere@balestrierefariello.com.

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