Not All Trial Lawyers Can Handle All Kinds Of Trials

Make the right choices in what you handle to develop the career that is right for you.

Trial experience of any kind is good and worth getting, period. But not all trial work trains you in the same way. Make the right choices in what you handle to develop the career that is right for you.

A few years ago, one of my colleagues and I were on trial in a tough case. We represented plaintiffs prosecuting claims for which everyone loves to say a jury will never give a verdict to plaintiffs: defamation and malicious prosecution. Our clients had lost a lot of money due to the defendant’s misconduct, but it was an internecine dispute within a particular, tight-knit community, and we knew there was, as a trial lawyer would say, a lot of hair on the dog. I felt good after we had put in all of our evidence, but (and I suppose I always feel this way during trial) I didn’t know which way it would go.

Then the defendant gave us a gift: he testified and walked right into a lie, one we had set up months before by not asking certain questions during his deposition (because we did not want to give him warning that we knew certain things). The trial team’s preparation worked and cross-examination went very, very well: we obtained a verdict with a damages amount that was more than 60 times the last offer made right before trial. After the trial, the judge said our cross was “masterful” and the best he had seen in 22 years (can’t they include those kinds of statements in their post-verdict decisions?).

Lawyers at our firm are lucky to try a lot of cases. I started my career as a prosecutor in the Manhattan District Attorney’s Office in the 1990s, when New York was still awash in crime and the trials that went along with hundreds of thousands of annual arrests. But it was not my former prosecutor background that aided me—at least all that much—in the cross in that defamation and malicious prosecution case. And the reason is simple: consistent with the experience of prosecutors, I simply did not do a lot of cross-examination when I was an ADA.

As a prosecutor, you put on the case, but the defendant does not testify unless he chooses to and, indeed, the defendant testifying is often a bad call for the defendant. Thus, as a prosecutor, you may get a lot of trial experience telling stories, directing hundreds of witnesses over your career. But you do not get a lot of experience taking those stories apart, whether by cross-examination or otherwise.

I’d like to think that handling business disputes forces the lawyers at my firm to be all around good trial lawyers, developing all the skills a trial lawyer can develop. While I think that’s mostly true, someone who specializes in personal injury probably does a better job of knowing what the juries want in those cases—a more raw sense of justice, theatrics, I’m not sure—than I would as someone who has not yet tried such a case. And as experienced as I’d like to think I am, I’d be a fish out of water in landlord-tenant court or a tax court, and I don’t simply mean not knowing the rules, I mean handling myself on my feet. There are differences.

The point of this piece is not to make you throw your arms up in despair because you either know how to handle a certain kind of trial or hearing or you do not—quite the contrary. Instead, I advise that as we develop ourselves we need to be mindful of the trial and hearing choices we make. If you really want to handle international arbitration, do not just handle cases that will be tried to a jury. While I find jury trials to be the most fun and challenging even though I handle arbitrations all the time, I know I’m going to present my case very differently to a half-dozen or dozen lay people who don’t want to be in court but are trying really hard to fulfill their duties, than I am to a tribunal of experienced, well-paid attorneys who this week and next are sitting as arbitrators. There are differences in how you try your cases to different decision makers, just as there differences in handling trials in different fora.

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Even the most experienced litigator knows that she is always learning and always developing her craft. Be conscious of the work assignments you take, indeed of the jobs you take, so that you can develop yourself to be the kind of trial lawyer you want to be.


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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