Always Try Your Case -- So Get The Trial Experience Any Way You Can
One of the most basic practices of the best litigators is getting ready for trial immediately, no matter how far away or unlikely trial may seem -- but that also means knowing what a trial involves.
One of the most basic practices of the best litigators is getting ready for trial immediately, no matter how far away or unlikely trial may seem. But that also means knowing what a trial involves.
Most cases do not go to trial. We read that all the time. But trial can always happen. And trial is different, as anyone who has ever actually tried a case knows. You can discuss with your colleagues and clients how strong your case supposedly is, and how weak your adversary’s is. But it is different when you have to prove your case in a trial, with a fair and demanding judge, a decent adversary, typically skeptical jurors (or arbitrators), and subject to very specific rules of evidence.
To do the best job before trial, you should prepare for the actual trial. What admissible evidence do you need to meet your burden on your claims or defenses at trial? Go get that in discovery. What evidence does the other guy need to meet his burden? Figure that out, then get your own evidence to undermine your adversary’s. What are you going to say in summation? That’s the narrative you need to be telling and developing through your whole case.
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At our firm, these are the questions we’re always asking so we can be the best litigators at all stages of a case. We try a lot more cases than any of our adversaries. But, even for us, most cases settle. We nonetheless do a better job for all of our clients by acting like all of our cases are going to trial.
The problem is that it’s hard to know how to do that unless you’ve actually tried cases. Goodness knows you learn next to nothing about that (or, with respect, about being a litigator or lawyer, generally) in ordinary law school classes. General litigation experience, however rich and diverse, also teaches little about trying cases. Indeed, many of the skills that can make you successful before trial — excellent ability to research, great writing, nuanced analysis of the complexities of legal claims — matter just about not at all when you’re on your feet on trial (In New York, we are not in trial, we are on trial — just like we don’t wait in line, we wait on line).
At the same time, the skills that make you successful at trial — tremendous agility in your thinking, organizing the presentation of evidence so it makes sense to the jury or judge or arbitrator, and being quick on your feet — are not developed much, if at all, outside the trial context. You need to try cases to learn how to litigate your cases as if they’re going to trial.
Yet, this is one of the open secrets amongst sophisticated litigators: very few of even the great litigators try cases all that often. If you handle personal-injury matters, or, in some places, criminal cases, it’s different. But if you handle business cases like I do, the chances are that you’re going to be dealing with people who just aren’t on trial that much, or maybe never have been.
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So how do you take my advice to always be trying your case when I say you need to actually try cases in the first instance? Do whatever you need to in order to get trial experience. Seek it out in your law offices. Volunteer for any trials. Do local pro bono work that allows for it. Don’t be presumptuous — don’t just look for United States District Court trials with cutting-edge legal issues. Actually, avoid those (you don’t get much ability as a lawyer to pick a jury in most federal courts). Get on trial or before an arbitrator in any small forum you can (though ideally a court where you actually pick a jury) and figure out how to present the evidence to win.
You become a great litigator only if you become an actual trial lawyer.
John 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 [email protected].
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