Litigators, Trials

Do Not Worry (Generally) About Overpreparing

Instead, you should worry about not being prepared enough.

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While you can spend too much time getting ready in some aspect of trial work, almost always err on the side of spending more time, and not less, in preparation.

Trial lawyers are busy. And if you are responsible for bringing cases to your law office, then you are always hustling (or, at least, always should be according to some). This means we do not have a lot of time.

But when you are meeting with a client, actually at a hearing, drafting a brief, or doing the actual work a lawyer needs to do, it is relatively easy to concentrate: the client is right there; you are actually physically present in court; you are sitting at a desk writing. You naturally focus on the task at hand.

And when you have that task at hand, and a lot of them (or are going out to get work to bring more tasks to more hands), it can be very hard to spend time in preparation for that upcoming event — including, for example, even that client meeting or the hearing, or the colossus of our field, the jury trial. There is simply so much work to do right now. I’ve recently heard from a smattering of different lawyers in different fields about the “danger of overpreparation,” which seems to me to be an excuse not to spend too much time readying yourself for some future event (especially one like a trial or a hearing, which might make you nervous). The theory seems to be that if you spend too much time preparing for something, in particular when you are going to be on your feet and need to make quick decisions, you can be too tightened up by all the thinking and preparation that you won’t be loose enough to respond in the moment.

I understand the concern about not being loose enough. A couple of years ago, our firm had a jury trial where we represented plaintiffs who had claims for defamation (on which everyone loves to say plaintiffs never prevail). We did prevail, in large part, I think, because of our cross examination of the defendant (which the judge called “masterful”). And I had to be loose in that cross: I was able to show the jury that the defendant had forged transaction documents, but during a point that was completely different from what I had anticipated during preparation. I ended up using documents and asking questions different than planned. Had I been too tight, I would not have grabbed on to an unexpected response of the witness which, opened the door to the cross that I think helped us win the trial.

So, yes, beware of being too tight. But that’s a general warning, and does not undermine the general rule that you need to prepare and prepare and prepare if you want to win, in particular in those on-your-feet situations. Lincoln’s advice to us is that “[t]he leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day.” I find myself leaving virtually every single oral argument I have had thinking that I had diligently prepared “too much,” especially spending too much time in reviewing relevant authority. Just a few weeks ago, I spent somewhere on the order of 40 hours in preparation for a Second Circuit appellate argument — where I only had 10 minutes of scheduled argument time. I did not think I was wasting my time, to be sure, but there were points during that week (especially late at night when I had already handled my ordinary work and family obligations) where I wondered if all this prep was needed.

Yet in that case, where I was defending a plaintiff’s jury verdict for a client of ours in a RICO case (another one of those claims where plaintiffs supposedly never win), there literally was not one, or two, but a few dozen — generally quite long — Court of Appeals decisions that were relevant. How could I be ready to argue in front of three judges, who are always well prepared, and not know all the relevant case law?

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And it worked out: we received an affirmation of the jury verdict two court days after the argument, where I did have an answer, with reference to authority, to every question of the judges. I did not really “over”prepare.

We are busy. But we cannot cut corners in preparation. Do not worry so much about overpreparation (and if you like this job as much as you damned well better if you’re going to be good at, you should enjoy the preparation). Worry about not preparing. You’ll learn to stay loose just by being a trial lawyer long enough.

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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