Litigators

Be Ready For Any Open Issue When You Are In Court

As a trial attorney, you must always be ready for anything before you step into court.

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Time before a judge or arbitrator is rare, so making the most of it means being ready for anything. It makes you a better advocate no matter what happens.

My colleagues and I recently were in court for an argument where multiple motions were scheduled for argument, but not all the motions that were pending. We were ready to argue not only the motions which were on, but also the pending motions of our adversaries which had not been scheduled for argument.

And we were glad we did.  That’s because the judge asked after argument on the other motions — as a judge commonly asks — “Anything else?” Before I could even say that my adversaries had filed two other motions which were fully briefed, the judge said, “Wait, we have those two other motions, don’t we? Plaintiff, what’s your position?” and I was able to summarize why we should win on both. The judge then looked at the adversaries — there were a lot of defense counsel in the room — and the first, painfully predictably, said, “Oh, well, um, Your Honor, those weren’t scheduled for argument today?” Judges could respond in a host of ways — agreement, rolling eyes, even sheepishness (though I haven’t seen the last one all that much).  Instead, the plain-spoken judge simply said, “I know. What is your response to Plaintiff’s argument?” The lawyer did not have a good response, and (thankfully for us) it got worse as other defense counsel came up with not-great responses, including no hope of saying the authority I referenced was somehow distinguishable since the defense counsel likely hadn’t reviewed that authority in the weeks since they filed their papers. Instead, they tried their best, with more than one of them referencing the “I didn’t know I needed to be ready on this” point made by the first defense counsel.

When we were done, before letting us go, the judge simply said, “Motions denied,” and then moved on to scheduling.

I would like to think our papers were good enough to defeat the two motions such that we would not have needed to win oral argument. But I could not say that that’s the case for sure. I can say that we won that oral argument, and not simply by the obvious fact of winning the motions.

First, being prepared this way earned us points with the judge. This was the first time all of the parties were before the court and our preparation gave us that key, first-impression credibility. With a judge or arbitrator who remembers you, that matters. There is going to come a time — during a discovery dispute, perhaps during a motion in limine evidentiary argument, or even when citing to a case — where in some fashion you are putting your credibility before the court: there are no documents that they want; the full record shows the testimony they want will waste time; the Court of Appeals has never to my knowledge addressed this issue.  If you are believable, you are more likely to win. Showing up in court ready for anything earns you credibility that can last well past that one argument.

Second, being prepared this way simply helps you know your case better. I spent nine-and-a-half hours the day before the argument preparing for the motions which were on, and those that weren’t, and that was in addition to at least 10 hours in the couple of days before that. I know our case. Had I gone in just on the motions before the court, sure, I would have been prepared and learned and reminded myself a lot. But by being ready for anything, I forced myself to know our own case and relevant authority even better in a way that will serve our clients throughout the matter.

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Third, pushing yourself to prepare this way gives you ideas.  During prep on the motions supposedly not before the court, I had some good investigation ideas which I shared with my team and which we followed up on.  By spending time on the entire matter, I had fresh ideas about how we could do an even better job for the clients.

As an experienced trial lawyer I know says, “We call it practice for a reason.”  Every single time you are about to get into court, you do all the practice you possibly can on anything.  You will be the better advocate and win more for your clients.

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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