Litigators, Small Law Firms

We Call Trial Judges 'The' Court For A Reason

At oral argument on a motion, a trial judge's view of the law is pretty much the only one that matters, as columnist John Balestriere explains.

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At oral argument on a motion, a trial judge’s view of the law is pretty much the only one that matters.

Good litigators walk into a trial court for an oral argument on a motion knowing the relevant facts of every decision and statute that any party cited in their briefs and knowing how those facts apply to their motion. Better litigators predict the specific facts and authority that will matter to this specific judge (since the better litigators Always Know Their Court, an article soon to be seen in this column) and focus their preparation on those facts and that authority.

But the very best litigators know that however prepared the litigator is, however much experience in the relevant area of law she has, and—here is the hardest part—however right the lawyer may actually be on the law, the only law that is going to matter in deciding the motion is the law as the trial judge in front of them, right then and there, finds it. The best litigators who win know to listen to what the judge thinks the law is, and make their argument to that interpretation of law of that judge—the court on that motion.

Appeals matter, but are not what winning trial lawyers rely on.

Hoping for a reversal by an appellate court—months or years and mounds of legal fees later, with that “wrong” finding potentially influencing other decisions in that case and maybe even other cases—is not what the best litigators do. The best litigators listen to the trial court, frankly care little for “right” and “wrong” interpretations of the law, and win (since the best litigators Focus on Winning Period, another article to be published here) based on the court’s view of the law.

Lawyers are right on the law sometimes when, it turns out, the trial judge actually is wrong—this, of course, is the chief reason why appellate courts overturn decisions of even very experienced trial courts, not for political reasons (which, unlike what we’re told in law school, happens only a tiny fraction of the time), and not while disturbing a trial judge’s factual findings (where appeals courts greatly defer to trial courts). Appellants do win sometimes, meaning the judge below got it wrong.

But the best litigators—who make sure that they handle both trial and appellate work so that they know how to handle both better—know that any appellant is always the underdog. After all, one judge—who maybe has the job that one or more of those appeals judges once had—already ruled against the losing party. Simply put, no matter how “right” you are, when you lose in the trial court, good luck winning on appeal because odds are you will lose.

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Focus on winning now.

The best litigators focus on winning—now—in the trial court, even if at oral argument that means abandoning their own (perhaps “correct”) interpretation of law and actually listening to what the judge in front of them says the law is. Don’t worry: judges are lawyers, too, and, like practicing lawyers, they generally talk a lot. Most judges at oral argument will betray to the practitioners before them their view of the relevant law. Indeed, many courts will outright declare it and ask the practitioners how their side wins in light of that view of the law. That law of the court is what matters.

Maintain your integrity and your ethics, but let go of your ego and be an advocate.

Does that mean to be one of the best litigators you become some amoral liar, throwing your own values out the window, and cater to blatantly wrong interpretations of law? Of course not. You have your own integrity to maintain, above all; nothing I ever write here will suggest otherwise. Sometimes even a good judge is so painfully wrong that you do need to seek hope in a thoughtful appellate court. And, sometimes, for ethical or broader tactical reasons, a good litigator needs to stick to her guns and not accommodate the judge’s legal findings.

But most of the time, you can find a way to maintain your integrity and ethical obligations and win even under the “wrong” interpretation of law. Let’s remember what litigation, especially private litigation, is frequently about (in particular the kind I focus on, complex business disputes): two sets of (hopefully) reasonably bright lawyers and clients disagree about something, perhaps where they once were in agreement—a once good partnership that is falling apart, a once good deal that now looks like a bad one. Frequently, at an oral argument, which anyway is almost always about a legal and not factual issue, it’s a close call in court. That means that the difference between a litigator’s “right” view on the law and the judge’s view is probably not all that great. The best litigators will find a way to bridge this small gap, since the difference between winning on the motion (by adapting to what the best litigators have discovered is the judge’s view of the law by actually listening to the judge in court) and losing on the motion (by a lawyer maintaining her self-centered belief in the rightness of her view) could be enormous to a litigator and her clients.

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Be a winner, not right.

If you want to be one of the best litigators, set aside your ego when you are “right” on the law (and keep in mind, you may actually be dead wrong, anyway). Remember that the trial judge’s view of the law is the one that matters, the one that will decide the outcome of the motion right here and now, and the one you argue to.

Worry not about being right; worry about winning for your side.

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 john.g.balestriere@balestrierefariello.com.

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