Boutique Law Firms, Litigators, Small Law Firms

Trying Cases Is Physical Work

You work your brain as a lawyer, but you work your body, too—or you should, if you want to win.

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John G. Balestriere

John G. Balestriere

You work your brain as a lawyer, but you work your body, too—or you should, if you want to win.

Last week I did one of those silly (but intense) spin classes and a weight work out before coming in for a full day at our firm. While at the office I took a short walk in the morning and afternoon, and a longer one at lunch. I made sure to have a light but hearty breakfast and lunch, and I drank lots of water during the day.

I wasn’t just trying to be healthy. I was taking a deposition, and I was doing what I always do when I take a deposition: exercising in the morning to clear my head before the deposition began, taking walks to do the same during the day, not weighing myself down with heavy food, and keeping focus (and having good excuses to take bathroom breaks) by staying hydrated.

Trial work has a significant physical dimension. It’s not back-breaking work like guys working on a construction site or in a mine all day. And unlike a cop or a sanitation worker, we generally get to be cool when it’s hot out, and warm when it’s cold out (though I once handled arraignments on a sweltering July day where the air conditioning was so broken that it pumped hot air into the courtroom).

But besides any general need to stay healthy and maintain our energy, to win for our clients we need to remember that trial work is not simply work of the mind, or, as sometimes believed, the mind plus good technology (like a fast Internet connection and a Mac MegaAirWhatever laptop). To do our work well we need to attend to the physical.

I hate sitting still. It used to be a real challenge for me in depositions. But with the exercise and walks I mentioned above, I now handle it more than just fine. And I realized how much physical exercise cleared my head and helped me maintain the constant focus, hour after hour, that is demanded of a litigator.

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Not all lawyers have my mild (or not so mild) version of ADHD, but everyone—everyone—is going to think more clearly and do their brain work better when they stay fit, get fresh air, take walks, and eat well. As with pretty much everything about being a trial lawyer, this is not taught in law school. But it’s worse than that, as this need to attend to the physical, as I’m calling it, is rarely discussed in writing or continuing education about trial work. It nonetheless remains essential.

Attending to the physical means more than addressing our own health needs, but also the physical environment we’re in. My colleagues and I were taking the deposition I mentioned above, so I could ensure that the conference room at our office where it would take place was ready the way I wanted it to be the night before the deposition: my seat was the right height; I had enough space on the table for my materials; I had the exhibits set up in a box that both my colleague and I could easily access; and so forth.

It’s certainly the same when you’re taking a deposition at someone else’s office. Do not feel like you need to jump right in. Take a moment—make sure the space works for you and your colleagues and client. Again, this is all true at a presentation you’re making to prospective clients, or when handling a jury trial or arbitration. The physical realities of your job are always there and will at least distract you if not addressed, and may even prevent you from doing your best work.

In my earliest prosecutor days, an affable defense lawyer taught me this reality well when he told me always learned where the bathrooms were when he first appeared in a courthouse that was new to him. Why? “First, the clients want to see that you know your way around when they come with you. And, second, I probably am going to have to go to the bathroom.”

It’s not sexy and it’s not often talked about, but you need to remember it to win: litigation is a physical job.

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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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