John G. Balestriere
Lawyers love to complain about how the judges who preside over their cases somehow got it wrong. Don’t complain, and forget about what you think is “right.” Be smart and know the judges so you can win for your client.
Good trial lawyers drink, frequently and, at times, heavily (though hopefully not too much of either). And when we drink we do what all busy people do when they blow off steam: vent about how this or that didn’t go well at work, or the way we think it should have. We also regale at least one another with war stories, and I have (very seriously) worked through many an ethical quandary with some great lawyers I respect, while our analysis was lubricated by Powers and Tanqueray (my buddy drinks the Tanqueray, not me). But we sometimes complain, too.
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The other night I was privy to such drinking-plus-complaining, and the topic of complaint was how a particular judge in one of the participating lawyers’ cases had not gotten a dispositive decision right. It wasn’t my case, but the lawyer sounded like she was right, and the judge did ignore some highly relevant, albeit complicated authority.
I don’t have a problem with blowing off the steam. While we have a No Complaint Rule at our firm, such rule has a carve out that permits our staff at our weekly drinks we share every Friday at the end of the day to do exactly that: complain. It’s necessary. “Blowing off steam” is a great metaphor, and it’s important to have the opportunity to do so, whether it’s formalized, as at our firm, or simply with drinks with friends, exercise, prayer, long walks on the beach, or whatever works for you.
This column is not sponsored by Anheuser-Busch, and I’m not here to convince teetotalers to raise their glasses. Instead, I want to focus on what we do on the day or days after the drinks or long walks. At that point, we leave the complaining aside—the steam is blown off—and we get back to working and winning.
For that lawyer who complained of that judge getting it wrong, my advice would be: know that judge and figure out how to get through to that judge. The concern of the lawyer in that case was that the judge who was presiding over a complex commercial case did not read all the authority she had presented in her briefs. Respectfully, she probably was right. But while taking that long walk on the beach you can choose to curse the tide, or you can choose to accept it and do something about it. After complaining about that judge, she and all trial lawyers who deal with judges—who are very busy, and who are very human—need to modify how we advocate to those judges, and to the particular judge who is handling our matters.
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What exactly does that mean? First, know the judge. If it’s a court you’ve not appeared in before, that’s not an excuse to go in blind. Research online. Review individual practice rules. Look at previous decisions. And, absolutely, ask around. One of the colleagues at your firm may know about the judge in question. If not, ask around outside the firm. I know a lawyer who routinely would send mass emails to dozens of lawyers outside his firm asking if anyone knew about a particular judge. I heard someone complain about his practice, but I love it and advise it. We are supposed to be in a profession where we look out for one another, and it’s incumbent on us to develop a network for many reasons, including respectfully sharing views on particular judges. Find out what your judge likes and does not like, what your judge does and does not do, what works and what does not work.
Second, modify your advocacy to fit that particular judge. It’s a simply stated rule and actually a simple one to follow, and I’m not talking about violating your integrity or modifying your core way of doing your work. But our own arrogance and presumptuousness often gets in the way of winning. We think the judge should do this or should not do that. Well, that’s nice. And that might even be right, but it doesn’t help you win.
I’m not going to repeat that horribly jaded and terrible line about courthouses and whorehouses and what happens in each of them (the bad joke involves justice at the whorehouse; you can figure out what supposedly happens at the courthouse). I am, however, going to say that we live in the real world. Judges are nowhere near as politically inclined as we are lead to believe in law school (save, perhaps, at the very highest appellate courts, and even then I think it’s not that common). But they are human, and they each do their judging in different ways.
Learn what works and do that. For example, if you think the judge doesn’t spend much time with the papers, make your papers even shorter than you usually would. Write a kick-ass table of contents for your brief that summarizes all the complicated issues in a page or two (you should always do this, actually). Consider bullet points or charts (if applicable rules allow) to summarize your argument efficiently. Try to get oral argument on a motion, even if that’s not the usual case, and use such argument as the opportunity to get out your points, perhaps (contrary to general practice) bringing copies of key cases with you to the argument with important sections highlighted and tabbed, and try to give those to the judge or her court attorney.
That’s one example of a way a judge may be, but judges are all types. Figure out the type of judge that is assigned to your case. Spend that time gathering intelligence for your analysis. Then put aside ego and how things should be, take your judges as they are, and advocate to those judges to win for your client.
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].