Litigators

If You Are Not Really A Trial Lawyer, Do Not Try To Be One

If you don’t have the fire, it’s not like learning how to write better, or cross examine better. You either have the fire or not.

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For us to fulfill our obligations to our clients to be their counselors and fighters and help them win, we need to be sure we belong in this field.

One of the blessings of having been a trial lawyer for more than two decades has been mentoring younger lawyers or lawyers to be. A young lawyer (not so young now, perhaps) once worked at our firm who had tremendous enthusiasm, diligence I still do not possess, and was tremendously creative.

Eventually, though, I told him he could not be at the firm because he was not really a trial lawyer.

Those traits I mentioned — energy and persistence and an agile mind — those are all great trial lawyer traits and, in that young lawyer’s attempts to be a trial lawyer, they served him well; it was hardly because he was those things that I asked him to leave.

But he could not stand the heat in the proverbial kitchen. For example, in our complex litigation practice it happens all the time that a well-resourced adversary writes a detailed letter seeking some relief from the court. In many cases you simply need to be on that. There is no time to review the letter, luxuriate like a law professor in consideration of the interesting issues noted, or analyze like Cicero the method of argument.

No. You need to call the judge’s chambers right away, tell a semi-annoyed clerk that you will get in a response in a given period of time (maybe a few hours, maybe less), deal with whatever time you are given, then get in a response letter so you can win for the client, whatever that means.

The young lawyer found it so hard to do this. He would freeze. When we received a letter like I noted above, I would ask him to call chambers. The young lawyer said he would do so, and I believe meant to — but sometimes it would take him so long to get up the courage to call that the judge might even rule on the letter request before the young lawyer called in. This was one example of how the young lawyer simply did not have the aggressiveness needed to be a real trial lawyer.

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It was not easy to ask this lawyer to leave the firm. He was and is a good guy. He has some of the skills necessary to be a great trial lawyer. But he simply didn’t have the fire any trial lawyer must have to be successful and win for clients. And if you don’t have the fire, it’s not like learning how to write better, or cross examine better. You either have the fire or not.

He had to go. To keep him on would mean not serving our clients the way we are obligated to.

To the young lawyer’s credit, when I told him he would not ever be a real trial lawyer, he got it. He eventually left the firm and now works for a major bank doing transactional work. He likes it and life is good.

Now, to be sure, I could not do what he does. I don’t have the discipline nor persistence nor the patience. I am a trial lawyer, but could never be a transactional lawyer at an institution, just as that young lawyer could never be a trial lawyer.

You may or may not have someone to be as direct with you as I was with that young lawyer. So you need to ask yourself if the work you’re doing really is right for you. Law office managers as well must be as direct as I was.

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All this is not easy. But as lawyers we are obligated to serve our clients. And if we cannot win for our clients as trial lawyers, we need to stop trying and move on.

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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