John G. Balestriere
Common-law trial lawyers should remember—and be thankful—that what we write in court never goes away.
We have a rule at our firm regarding email: don’t write anything in an email if you’d be embarrassed (or worse) if your writing were to appear on tomorrow’s front page, or come out as evidence at trial. Obviously, we don’t want attorney-client privileged information on the front of tomorrow’s New York Times or The Times of India. That’s not what the rule is about; obviously feel free (while being careful to maintain confidentiality) to email your clients. The rule exists instead to develop a cautionary habit in our lawyers and other staff that we shouldn’t fire off a rude or snarky or “clever” or otherwise unwise email if we’re not ready to own that, forever.
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Thankfully for us trial lawyers, many people don’t follow this rule, and we get to make or break cases with foolishly sent missives. In my days as prosecutor, our office made great cases against financial institutions because otherwise bright people recklessly wrote to their colleagues their true opinions (as opposed to the ones they shared with their clients). And in that case, lying to their clients was criminal or nearly so.
But all of us as common-law litigators should keep in mind that everything we file in any public proceeding is out there, again, forever. This is part of our work, and I think it’s a privilege to be able to contribute to society, even long after we’re not on this earth.
At our firm we frequently work with foreign counsel in non-common-law countries where the filings are only available to the parties and the Court. That simply isn’t the case for American trial lawyers, where anything we file with a court and any decisions rendered by courts in our cases are increasingly available to anyone (subject to a few exceptions, such as filings made under seal).
I was reminded of the longevity of our written work last week when we received an order from a federal appellate court in advance of an argument I had just a few days ago where the Court of Appeals referenced a May 2016 Supreme Court decision regarding subject-matter jurisdiction. To address the Court’s concern raised by that case, I had to read the case that had those great, super-old Supreme Court cites to “5 Cranch 61” and “2 How. 497” (back when the names of actual Supreme Court reporters – Cranch, Howard – made their way into the names of the volumes of decisions). I’m about to argue in the Second Circuit in an international business dispute regarding conduct from the last decade, and what lawyers argued and judges wrote two centuries ago was directly relevant. That’s cool.
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I started this piece with a cautionary instruction regarding care with email. But I’ll end it with an admonition that we remember the opportunity we have to contribute to the law and to society every time we make a filing and every time a judge decides on one of our cases (even when the judge doesn’t go our way).
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].