Litigators

Being A Trial Lawyer Means Being A Creative Counselor

Always keep in mind that the litigation is not the only thing going on for your client.

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Do not simply walk your client through a litigation without deciding which steps make sense. And be aware that your client has more in her life than just the dispute you are hired for. Help the client win by being not just a fighter but an advisor.

When your client’s mess actually gets to the point of litigation or arbitration you need to be their guide through the case. Too many litigators simply manage litigation: You have been sued. OK. Here’s your litigation hold letter. Get your documents. Now let’s move to dismiss or answer. Now let’s go through discovery. Interrogatories. Depositions. I think there’s that summary judgment motion at some point.

And so forth.

Good trial lawyers know that it not this simple. This is not paint by number. Yes, you need to know the rules, and it is essential to know what the possible steps are. But having your client go from step to step through the litigation without real, creative input from you on how tactically to proceed is not enough. You do not simply prep for a deposition and then take the deposition — you need to figure out if it even makes sense to take that deposition of that person, and when, and probably where, and certainly how. Do not expect your client to have any ideas on this. You need to know what is possible and then help the client decide what makes sense for her.

If you had someone in Rome and he wanted to see the sights you could point him to St. Peter’s, or the Vatican Museums, or the Colosseum: “There they all are.” But a good guide, who has been around Rome, and who learns what his visitor wants, would provide more guidance: Go to St. Peter’s first thing, before the sun gets too hot waiting outside on line, and to make sure you have your energy for that great long walk to the top of the dome (it’s not required, but take that option). Then take a break at that great sandwich place and gelateria nearby and THEN you go the Vatican Museums.

A good trial lawyer is like that guide (and 200 Gradi and Old Bridge Gelateria are actually fantastic places to go after a long morning at St. Peter’s).

Always keep in mind that the litigation is not the only thing going on for your client. Putting aside the obvious that you must think of what it will cost your client in terms of time and sweat and money, there may be other consequences to fighting out the dispute. My colleagues and I ask the clients, “How will this fight affect you?” Sometimes clients are perplexed by the question. We are not, after all, therapists, asking, “How does this make YOU feel?”

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But the litigation never happens in a vacuum. Fighting things out can hurt business — or help it by protecting a reputation. It can make enemies (dragging someone into a dispute that is not their concern) or make friends (showing others that the client will stand up for him or her). I hate the term “holistic” as its overused, but it applies here: you need to help your client understand holistically how the dispute will affect.

Pushing the visitor metaphor, do you even want to visit Rome in the first place? What about Florence? Or Saigon? What is it that you want out of a trip and what you are giving up by going to Rome instead of these other places, or simply staying home?

It’s a lot of fun for us as trial lawyers when we are in the thick of the fight. But we are hired to win for our clients. That means helping them figure out what winning is, and guiding them through the process — saying yes to this, and no to that — to get them to what is winning for them.

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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