Litigators

Your Adversaries Can Be Jerks. Deal With It.

Do not be a jerk yourself, but be ready for your adversary to be one.

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Lawyers should get along. But we often don’t, and younger lawyers in particular need to learn that if they want to win, they cannot trust that their adversaries are doing the right thing.

I was lucky enough to start my career as a prosecutor, and even worked before law school with organized crime prosecutors, before I eventually became one of them. We saw bad people do very, very bad things — all the stuff you see in the movies, and often a lot more, with more blood, and definitely a lot less of the glorified (and often hard to find) loyalty amongst thieves. Indeed, on that last point, we would never have made good cases if there weren’t confidential informants (usually called, both in movies, and in real life, rats).

When I started doing business disputes at my firm, I admit I was surprised by the tremendous change in tenor of the interactions with my adversaries. While, generally, the parties I prosecute as a civil trial lawyer do not engage in the types of heinous acts that were the subject of some of my criminal investigations, at least when I worked as an organized crime prosecutor, I thought that — most of the time — I could rely on the word of the criminal defense lawyers I dealt with. This was the case whether those lawyers were just out of law school public defenders, or some of the highest-paid criminal defense lawyers in the world. At a minimum, we could get along well, and outside of this or that “true believer” defense lawyer (who thought we as prosecutors were evil). Certainly we all got along pretty well, and even frequented the same bars (prompting my uncle, a cop in Brooklyn in the 1980s, to say that assistant district attorneys and criminal defense lawyers were a lot like Ralph and Sam from the Looney Tunes).

What a change when, many eons ago, I started doing commercial work. My first opinion of the adversaries, after I got over being startled at how different it was dealing with them (“them” usually being partners from so-called good firms) compared to interactions with criminal defense lawyers, was, “What jerks” (except I thought of a stronger word than jerks). And they were, and often are. Commercial litigators, especially in big cities, especially in bigger matters can frankly be real . . . jerks, and all the time.

I’m of course not talking about all trial lawyers (I’d like to think that me and my colleagues are effective and aggressive attorneys while still not being, you know, jerks). And this article is not a whine about how oh-so mean those bad lawyers can be. Rather, I try to make the point that whatever the standards may be, whatever our law school professor who taught professional responsibility (but maybe never practiced?) had lectured to us, trial lawyers need to be ready for unnecessarily jerky and bickering adversaries. And trial lawyers cannot let that kind of conduct interfere with their advocacy — the other guy is a jerk; fine; still figure out how to win; and don’t worry about annoying that guy (who, as I wrote, is a jerk) and whatever way he conducts himself.

I find that young lawyers in particular find this hard to deal with. When their adversary is very difficult, a young lawyer can find himself questioning whether he is actually doing the right thing, or perhaps asking too much of the other side, or questioning his own opinions of the case. Do not do this. That young lawyer needs to steel himself and accept that that is sometimes how adversaries are. Indeed, some of the smarter (if more ruthless) adversaries outright understand that by being a jerk you can make the other guy ask for less, or back down a bit more easily.

Do not fall into the trap. Do not be a jerk yourself, but be ready for your adversary to be one. Do not let it stop you from being as aggressive or confident as appropriate so you can still win for your client.

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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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