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Advocate Differently For Different Adversaries

Conform your advocacy strategies to your adversary.

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Conform your advocacy strategies to your adversary.

A few years ago, I had a meeting with an adversary who put himself in a time out. For those without kids, a “time out” is where the offending party is physically removed from the situation, usually by sitting in his or her bedroom or in the corner or something like that. Since this incident took place in a courtroom (and the adversary’s bedroom was a hundred miles away in suburban Boston), he chose to sit out in the corner and faced away from me.

How did we end up in this (comical and, even more, enjoyable) situation? The adversary—who was very bright and hardworking but bereft of ethics, or, at least, didn’t care to abide by them—had somewhat overwhelmed the judge presiding over our very complicated, multijurisdictional matter, in which our respective firms represented opposing sides. And the adversary refused to negotiate with me. By refused, I mean exactly that—he would not return emails, nor take phone calls, nor talk with me before or after our many court appearances. Such strategy of non-communication was not simply his being unfriendly. Indeed, to label it as such would be to not give him the credit he was due. That’s because refusing to negotiate was prolonging the litigation, which—while unethical, in my view—was absolutely in my adversary’s clients’ interest in that particular case (as it regrettably often is in a party’s interest). He was serving his client by refusing to talk to me.

Realizing that this is how the adversary litigated, while ending our morning hearing sessions I respectfully pressed hard on the judge to make us talk to one another. The adversary protested that there simply wasn’t time: we were in the middle of a multi-day hearing and we legitimately did have witnesses to prepare. He was right, so I suggested that the judge let us use the empty courtroom available next door for us to talk. I even offered to buy sandwiches for all lawyers on all sides. The judge went along with my suggestion, forced us to talk, which we did a bit (notwithstanding the time out), and I was then able to argue better to the judge why we should take certain steps in the litigation now that the parties had actually talked.

I have not before or since (yet) asked for a judge to lock me and another lawyer in a courtroom. And that’s because I have not had an adversary quite like that one where I thought such forced communication would help me win for the client. I decided how to act because of the adversary I had. That’s the point of this piece.

I have written about the need to mold your advocacy to a particular court. The same absolutely goes regarding your advocate. In the example above, I did not know that this Time Out Lawyer would be this way the first time that I argued with him. He did show his cards, though, very soon into the case, to be sure. It can take time to learn how your adversary advocates, but it’s possible. Ask around. Observe. Discuss your observations with your colleagues. Discuss your colleagues’ observations with you. Certainly, be careful: do not expect the adversary to be like every other one from that firm/that city/that field/that whatever. Understand that every lawyer is different, whether that’s good or bad.

But genuinely try to learn about your adversary so you can litigate against them. That particular type of advocacy changes with every adversary. The goal, however, in every case, remains the same: win for the 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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