Litigators, Small Law Firms

Practice Makes Perfect Better

It’s impossible to be a 'perfect' attorney, but it is always possible to be a better attorney.

By Brian Grossman  
on

“I mean, listen, we’re talking about practice. Not a game! Not a game! Not a game! We’re talking about practice. Not a game; not the game that I go out there and die for and play every game like it’s my last, not the game, we’re talking about practice, man. I mean, how silly is that? We’re talking about practice. I know I’m supposed to be there, I know I’m supposed to lead by example, I know that. And I’m not shoving it aside like it don’t mean anything. I know it’s important. I do. I honestly do. But we’re talking about practice, man. What are we talking about? Practice? We’re talking about practice, man!” – Allen Iverson, [Esq.]

The great philosopher Allen Iverson doesn’t think practice is necessary if you go out and play every game like it’s your last, but the same doesn’t hold true for attorneys. As an attorney, you are involved in the practice of law, not the game of law; so yes, Mr. Iverson, today we’re talking about practice! But unlike the adage, practice in law will not make an attorney perfect, but it will make an attorney better.

Different Types of Practice

There are all different ways to “practice” law, but this piece will focus on practicing litigation. It’s impossible to be a “perfect” attorney, but it is always possible to be a better attorney.

At our firm, we like to practice for every court appearance, whether the appearance is a status conference or an appeal argument. While the severity, preparation, and attendance of different staff varies based on the appearance, one thing stays the same, preparation. But this moot is hardly the first time the attorney arguing — or the attorneys and support staff aiding — the case practices for the upcoming appearance.

Rather, my colleagues and I practice for days or weeks even prior to a moot by putting together extensive memos outlining key arguments from both sides, cases cited by parties in support of their arguments and in opposition to other arguments, rebuttals, useful evidence, and whatever is deemed necessary for that particular appearance. By the time we all get to the moot, we are prepared for everything that another colleague may raise, whether it be directly from one of the parties’ papers or based generally on another argument or case somewhere in the record. This is what I like to call the “practice for the practice.”

The moot is the best place to practice things you would be unwilling to practice for the first time in court. That is because you have your colleagues in a room, giving honest feedback, where they have all of the information regarding the case at hand. If the argument doesn’t work, your colleagues will know why and they will give you constructive criticism on whether to drop it in its entirety or how to fix it. If the argument makes sense, they will help you explore making it stronger or more persuasive.

Sponsored

Why It’s the Practice of Law and Not the Game of Law

While it may sound strange, even once you are in court you are still practicing; that is, you are practicing for the next time you will need to be in court. Every court appearance, no matter the importance, has lessons to learn and is practice for the next court appearance. This doesn’t mean that a court appearance is a good place to try unproven arguments, experiments, or a new style for the first time. The place to practice those things is in the moot before the argument.

However, there is no “championship” in law, nor is there a “game.” Litigating a case is not about running the perfect route, throwing the perfect pass, or even making the perfect argument; litigating a case is about winning, never forget that. Even at trial or on appeal, you are still practicing law, not in the law “championship” or “game.” While your case is on the line at trial, there is no proven method for winning at trial; you can execute your strategy and arguments to perfection and still lose, that’s the nature of it. When you are on trial you’re still practicing, learning, and determining how to improve your strategies, arguments, or techniques; never settle and stop working simply because something “worked.”

What I mean by litigating a case is about winning and not making the perfect argument is that the two are not mutually inclusive. While in many situations it is best to put your best foot forward in regards to an argument, it is not always best to play your full hand when all the chips are not on the table; sometimes you need to keep that ace in your pocket. On other occasions, your client may not want you to make a certain argument, whether it is because it will expose them to additional liability, a secret about their company would get out, or any reason.

The only way to know when to make your best argument and when not to make your best argument is through — you guessed it — practice. This kind of practice has to be done, and honed, in a courtroom, not a conference room or in front of a mirror in your home. That is because, oftentimes, your tactical decision to play or not play your full hand won’t have an impact for months or even years.

Sponsored

During my albeit short tenure thus far as an attorney, there have been numerous occasions where I have made an argument in a brief that a more senior attorney really liked, only to see it cut out of a final brief, not because the more senior attorney lied to me or wanted to improve my confidence, but because it wasn’t the right — or best — time to make that argument. The senior attorney did not know that implicitly, but from years of practice that I do not have, and knowing that certain arguments fare better at certain times.

Even when you are in a court room you are still practicing for your next appearance, so don’t be scared to try new things that you have practiced before.

brian-grossmanBrian Grossman was an attorney at Balestriere Fariello, a trial and investigations law firm which represents clients in all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach firm partner John Balestriere at john.g.balestriere@balestrierefariello.com.

Topics

, , , , ,