You Don’t Own Your Timetable As A Trial Lawyer

We cannot delude ourselves into thinking we control the timetable, since we do not. Our clients do, and the judges and arbitrators before whom we practice do.

billable hour billable hours billing time timekeeper clockClients delegate enormously more to trial lawyers than they do other lawyers, and judges rely greatly on the lawyers before them. But clients and judges and arbitrators determine the trial lawyer’s schedule.

Litigators go back and forth on case management plans, stipulations for briefing schedules, arranging conference calls with many players, and all kinds of internal deadlines. We live and die by the calendar, like many professionals, but perhaps more than most. That is because everything related to litigation and trial work has a timetable. We spend a lot of time trying to control how we will spend our time and get all the work in.

But we cannot delude ourselves into thinking we control the timetable, since we do not. Our clients do, and the judges and arbitrators before whom we practice do. Good trial lawyers know this, do not let it frustrate them, and make it work for them so that they can win for their clients.

Your client doesn’t know which Federal Rule of Civil Procedure determines how long you get to serve someone, or which standing order or individual practice rule says how long you get to respond to a motion. And the client shouldn’t know, nor particularly care when the client believes something needs to happen at a certain time and in a certain way. Now, the rules are the rules and we must practice under them. The client who is stressed after being sued, or thinking it needs to sue someone, doesn’t want to hear that you have all the time in the world, or 30 days, or two years until a statute of limitation runs. The client wants results now and you must practice that way — mindful of what the rules are, but ready to accommodate the client’s need to move at a certain pace.

And we all need to keep in mind that the judges and arbitrators make many of the determinations as to when things will happen. You can get along with your adversary just fine, work out a nice pretty stipulation on when everything is due, and then have a judge just decide on another schedule. I had a complex trial where the adversary sought an adjournment of a month. We found it frustrating, but thought their reason (even if we did not quite believe it) would earn them the adjournment so we didn’t fight the request that hard. The judge adjourned the trial for more than half a year, a result neither party wanted. That’s the way it goes: the courts and arbitral panels decide scheduling when you put the issue before them, or when they choose to make the issue theirs.

This drives some lawyers out of their minds: clients, who “do not understand” have “unrealistic expectations”; the judges and their clerks “aren’t aware of everything” and seem to make “random” scheduling choices. Maybe those statements are accurate. Maybe not. But it doesn’t matter. This is how litigation and trial work goes. The whole heat and kitchen and not standing it adage comes to mind: do not be a trial lawyer if you cannot accept this scheduling reality and not let it stress you.

Instead, make it work for you. Acknowledge the stress of your client and meet those “unrealistic expectations.” Trust me, not every lawyer will, and you will get more business or more assignments from your supervisors if you do so. Show the client that you don’t simply know how to write or advocate in court, but that you understand the client’s needs and will do all you can within the law and morality to accommodate those needs.

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And impress the judge by handling anything she throws at you.  Make the lives easier of the arbitral panel by doing whatever they want, whenever they want. My colleagues and I had a chair of an arbitral panel pose dozens of questions to us two-and-a-half days before closing and ask that at closing we answer each question, with a reference to quoted testimony, or to a document, and have a PowerPoint that memorialized all that. The dispute in question had gone on for 10 years, there were hundreds of pages of testimony in the record, and hundreds of thousands of documents. But we did as requested (the other side did not) even though at 2:00 a.m. the night before our 9:00 a.m. opening a dozen staffers at our firm were still working on the project, two lawyers did not sleep that night, and actual delivery of the PowerPoint entailed multiple cab and subway hand offs to get it to the arbitration venue in time. The request may have supposedly too much. But we’re trial lawyers and we handled it.

This is a great job where more than any other lawyers we have enormous freedom as to how we serve our clients — samaking tremendous tactical choices that our clients more often go along with than make for us. But in return we have to accept that we do not decide our schedules in the end.  And that’s fine and just another challenge to take on in order to be a great trial lawyer.


john-balestriereJohn 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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