Just as a real trial lawyer is required to be an all-around attorney, assessment of a dispute involves valuing everything you observe, not just the big interactions or events, but even those seemingly throw away moments or interactions. But the right trial lawyer still helps her client focus on the important things to win.
When that staffer leaves in the middle of the afternoon at the same time for the overly long coffee break, no one talks about it, perhaps. But everyone notices. When the other staffer is always there before anyone else and seems to stay later than anyone else, again, maybe this is not a subject of office gossip. But people notice. I’ve learned this as an employer, and of the importance of acknowledging this when making staffing and assignment decisions.
Litigation which is not based on a one-off event — that is, which is not simply the result of an accident, or a one time purse snatching — is a lot like the office I’m referencing above. Over the course of the events leading up to the dispute, and during the dispute resolution itself, there are lots and lots of small actions and choices, many of which seem not to matter, or may not be talked about.
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But people notice. And the small happenings do matter. During the time of the events that lead up to the dispute the unspoken events — the slight one partner made to another at a meeting, the frustration someone showed at a deal that fell through even though no one discussed the frustration — matter and, more to my point here, people notice them. When trying to resolve the dispute, a client delays following up with you and you, thus, take longer than the norm to get back to your adversary, people notice, even if no one says, “Why did you take so long to get back to me?”
My colleagues and I and those trial lawyers who represent clients in complex disputes — which generally have long histories and can take a while to resolve — have two jobs with regard to these “meaningless” events which I argue have meaning. First, our job is to notice them: that slight meant something, that delay meant something, that uncommented on frustration meant something. Do not dismiss these simply since no one made an issue of them at the time. To do so would be as unwise as the employer who ignores the problems of the staffer who takes overly long breaks, or does not compliment or reward the staffer who always seems to be working.
But we have a second job, which comes down to a mix of client management and strategic analysis, and could best be described as: calm down. These small events matter, yes. But do not fixate. Maybe we do not comment on some of these events at the time. However, I find that during a dispute resolution, when everyone is scrutinizing everything, a client can now spend way too much time on that heretofore unremarked event. Clients in a dispute are, understandably, emotional. And now that they are in the thick of it, they overinterpret what the other guy did, or, sometimes, think the other guy is overinterpreting what they did. Our second job is to calm the clients down and keep them focused on what really matters.
We can also help minimize the importance of what I’m admitting are meaningful, but not overwhelmingly meaningful events (otherwise they would not be uncommented on). Acknowledge publicly and loudly, as it were, the event. Tell your adversary, “Look, I know your client hated it when my client took three weeks to get back to him. I get it. That stinks. But I can tell you that doesn’t really matter. What matters is . . . .” At my firm, we often refer to this as “exploding the issue” (and it applies to more than just these unspoken of events).
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We all notice everything, but we have to be careful not to give too much value to everything. We help our clients focus on what matters by acknowledging what may previously have been unacknowledged, but also by counseling them to focus on what really matters so we can help our clients win.
John 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 [email protected].