Litigators, Small Law Firms, Trials

A Trial Lawyer Is A Whiskey Drinker

Trial lawyers and litigators are not the same; if you want to be a trial lawyer, be a trial lawyer.

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Trial lawyers and litigators are not the same. If you want to be a trial lawyer, be a trial lawyer.

During a school trip a couple of years ago to the Brooklyn Children’s Museum, my daughter and her classmates visited a section of the museum featuring replicas of well-known Brooklyn establishments. One is the famous Sicilian pizzeria, L&B Spumoni Gardens. With all respect, I’ll take Staten Island’s Denino’s anytime.

In any event, the replica had a full-sized fountain soda station, and my daughter said she wanted to get me a drink from the (not actually working) fountains. I saw her stare at the different options—Barq’s, Coca-Cola, Hi-C (which I can’t believe anyone actually still drinks)—for a while, before I said, “Just get me the Diet Coke, sweetie.” Apparently, even when it was just pretend, I was being vain and cared about the imaginary calories. My daughter obeyed and dutifully brought to me my “soda” in a pizzeria-style, thick plastic empty cup. But as she did she said, sadly, “Sorry, Daddy. I was looking for the whiskey but they just didn’t have it.”

Thankfully her teacher was nowhere near when she said that.

But even more thankfully (even proudly), I made it clear even to a second grader what I drink. I am a whiskey drinker.

And apparently being a whiskey drinker makes me what I am: a trial lawyer. I am not simply espousing a principle of natural law (or, at least, what seems to me to be such). A judge herself, South Dakota Circuit Judge Cheryle Gering, recognized the different kinds of lawyers we can be, and recently outright ordered the attorneys before her on trial not to lose themselves in what she characterized as fussy, even wasteful litigation practice, as opposed to the real trial practice needed in her courtroom while those lawyers were on trial. Showing genuine prudential judgment, and in a self-deprecating manner, the Court noted, “You need to be trial lawyers. A litigator drinks wine and takes depositions. A trial lawyer drinks whiskey and tries cases.”

There is nothing wrong with wine. And that’s what some of us are—wine drinkers. I’ll write in a future column about the need to stop complaining about our work and figure out what we should be doing, what kind of drinker we are.

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But if you really want to be a trial lawyer and be good at it, you need to be this proverbial whiskey drinker. That means, as the news reports indicated that Judge Gering advised, you be a roll-with-the-punches type, rather than be a “file-every-motion and make-every-objection type[].”

There are a lot of basic rules to follow (far more than I can list in this short column): you focus on the big picture—what is your case really about? —without wasting time on details that no judge or jury or arbitrator will ever really care about.

You know how the evidence will actually help you win at trial, not just in discussions with your colleagues. And you focus on developing that trial-winning evidence in discovery (or, better, in your own investigation), rather than scouring the earth for every document or email, or deposing everyone under the sun (taking a lot of time and incurring a lot of legal fees in the process).

You think of how you actually get the evidence in front of the fact finder— knowing a fact is different than getting that fact in front of your jury.

You devise a narrative—as soon as you get a new matter—that is consistent with the evidence and that will help your client win, developing evidence consistent with that story.

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And, as Judge Gering noted, and as I’ve advised before, you actually get trial experience.

If you want to be a real trial lawyer, be one. Don’t drink the wine. Drink whiskey.

See the companion piece to this article, referenced above, here.

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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