Trust Your Gut, Lawyers

As a lawyer develops her judgment, trusting her gut becomes an essential part of how she can serve her clients and help them win.

Advocating for clients involves more than working hard and being prepared. It means developing a sense of judgment and trusting it.

Recently, my colleagues and I were trying to resolve a hard-fought dispute (though I should acknowledge the cliché that phrase is — once the trial lawyers get involved, aren’t they all hard fought, or at least should be?). As can be the case in a settlement discussion where we seemed to have a general settlement in principle, the settlement could fall apart on the details where we often say the devil resides.

We were negotiating terms back and forth with our adversaries. Parties on both sides of the v. were pushing on this or that. It is something with which any experienced trial lawyer is quite familiar, especially if you handle complex disputes where, as in this instance, the dispute is not just about money. Yet, we seemed to be moving forward and all thought there was an actual finalized settlement document.

Then we received a facially innocuous email from one of the lawyers on the other side. I cannot point to anything in particular about the email — tone, timing, substance — but I had a strong gut response after reading it: they are going to pull out of the settlement if we didn’t close it soon.

I discussed this view with my team at my firm and we so advised the clients. The clients were sophisticated so I had to be plain that I was sharing my gut but, informed by that gut, I advised that we complete settlement discussions immediately else we lose the possibility of settlement.

I was right. Just a few hours after receiving that first email from the adversary we received what my colleagues I believed was a genuine firm deadline — the next day — to complete the settlement, else the other side would pull out and all parties would proceed with the litigation.

My gut, and acting in accordance with it, greatly helped us serve our clients. First, it gave the clients time they really needed to discuss whether they could accept the final settlement terms (and there were lots of devils in those details). Second, since I shared my gut honestly with the clients, and I was right, the clients — who had very difficult choices to make — trusted that much more in me and my team, making it easier for them to take our at times difficult to swallow advice.

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Trusting your gut is not an excuse to be lazy (though I have heard some lawyers use it that way). It does not replace the need for hard work, preparation, careful tactical analysis, or any of those effort-based and very necessary parts of a great trial lawyer’s practice.

But as a lawyer develops her judgment, trusting her gut becomes an essential part of how she can serve her clients and help them win.


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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