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Always Be Advocating

A trial lawyer is never not an advocate. Always be a fighter for your client.

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litigatorA trial lawyer is never not an advocate. Always be a fighter for your client.

A team at our firm recently prepared for a mediation, where the litigators were expected to put aside some of their aggressiveness and all are supposed to come together to focus on a resolution. In preparing for the multiple legal questions, factual issues, and other topics that we expected to come up at the mediation, one of my colleagues emailed to the rest of the team a document entitled “Mediation Argument Memo.” I smiled when I opened the email and saw the document name as there was no proper argument to be had at the mediation, which was not to be held in court but in conference rooms with lots of coffee and cookies.

But my colleague was exactly right. We may be at a mediation and the goal may be resolution, but we should prepare for it just like we would anything else in our practice, such as an oral argument or hearing or trial.

We are always (or should be) advocates for our clients, no matter what the forum, no matter what the circumstances. When a judge asks the lawyers in a discovery dispute to be reasonable and courteous, we should be both. But we continue to be advocates. When a mediator asks us to set aside some of our argumentative habits in order to focus on resolution, we should not act like we’re at a deposition picking someone’s words apart (if that makes sense), and should do as requested. But we remain advocates whose focus is not on satisfying a mediator’s legitimate desire to settle a case, but a fighter seeking the best result for our clients.

Mind you, sometimes the best result for your clients is minimizing the time and expense devoted to a discovery dispute, or achieving a resolution and ending the litigation. It is not the result with which I have issue, as the result may be best for your client.  It is the attitude. Even in peacemaking situations, you remain a fighter.

And this “always be advocating” attitude in fact can help reduce aggressiveness. Some of us—including the author of this piece—simply enjoy fighting for the sake of fighting. However, just as our need to be a peacemaker should not interfere with our being an advocate, neither should our inclination to be a fighter. Checking our aggressiveness—at a deposition, at an oral argument, at an evidentiary hearing or trial—may be the best way to advocate for the client. Being aggressive is often the right way to be. But we should never choose aggressiveness for its own sake, but instead because it helps us be the best advocates we can be.

Whether it means being a nice guy while still fighting for your client, or toning down the Arthur Kirkland in … And Justice for All while still fighting for your client, the key is you always need to fight for your client.

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john-balestriereJohn 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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