Think Long-Term In Your Cases

An isolated litigation event is almost never isolated in its impact.

White chess pieceAn isolated litigation event is almost never isolated in its impact.

My colleagues and I recently had to decide whether to file a motion in one of our longest-running cases. Besides the merits of the motion, one of our key considerations was how any decision on this motion would affect the case long-term. In other words, besides whether we could obtain the relief we sought, we spent a lot of time thinking about how the decision on the motion would affect the litigation. Indeed, we spent a lot of time wondering how even making the motion in the first place would affect the litigation.

Every trial lawyer has to do this always. It needs to be second nature. Perhaps most lawyers do this—think of the longer-term and broader consequences of seemingly simple or discrete litigation choices—at key times such as determining whether to sue or settle, whether to answer or move to dismiss, whether to move for summary judgment.

But that is not enough. When you are deciding whom to depose, and then when you are deciding where to depose such person, who shall depose her, and which questions you ask or not ask, you need to think of the long-term consequences.

When you decide which argument to make in a brief, and then which authorities to cite, and then in what order you cite to such authorities, you need to think of the long-term consequences.

This extends to how you discuss issues with your client. When you raise an issue, with whom you raise it, how you raise it — in all of these situations, you again need to think of long-term consequences.

This sounds exhausting. And some will criticize this way of lawyering as being overly tactical (I’ve long found curious the negative view of being tactical; is it not our ethical obligation to address tactical concerns in our clients’ matters?).

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To make it not exhausting, you need to develop this view as a habit of mind. And — as with any skill or technique in any craft — it takes a while to develop this habit. I see great, promising young lawyers who not only don’t yet think this way, they don’t even appreciate the importance of thinking this way. That’s fine as long as their mentors teach them the need to think like this, and do so every day.

And the reason why is simple. Everything matters. Or, at the least, everything can matter. Part of what makes this job so hard, and fun, is that you have to think of everything.

To win for your clients you need to consider every consequence of every action every day. Trial lawyers should be thankful we have such a tough job.


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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