Time Is Everything

As a litigator, you need to genuinely understand that time matters.

In litigation, time — all kinds of it — does matter, whether it’s the minutes in a deposition, or the months it can take to develop a case.

In New York, where my firm is based, most of our state courts don’t have a time limit for the length of a deposition. That means that with a particular adversary, or an inattentive judge (or one who thinks that the Seventh Rule of Fight Club applies, and depositions “will go on as long as they have to”), you can literally have a deposition go on for days.

But that’s only in state court (or most of them, as some have their own timing rules). In federal court, of course, a specific rule generally applicable in all district courts limits the number of days and hours a deposition may ordinarily take.

Depending on which rules apply, not only will the deposition proceed differently (maybe it will only take place on a Monday, but then since it’s one day it will go late; maybe it will start Monday through Wednesday, but you’ll be done each day before 5 p.m.), but so will your preparation. You prepare a client differently for one long day than for a few tough days, where, simply as an example, adversaries have the chance themselves to consider what new questions to ask the next day.

The time that applies to a deposition can be different in two different courts — even if the deponent would be the same, even in the same dispute, and even if the courthouses where the cases are proceeding are steps away from one another. And that time difference matters for how you work with your client and how you win for her.

This may be obvious — time matters. But I find it remarkable how infrequently trial attorneys and litigators consider this, including, for example, when deciding where to file if you’re a plaintiff’s counsel, or where (or if) to get a case removed if you’re a defense counsel. We sometimes like to think of our cases being all about intellectual argument and logic, but Holmes’s admonition of the primacy of experience applies here, as that experience teaches us that time matters in how we handle our cases, and, as I noted, as soon as we get the cases.

I choose this specific example — depositions — but there are many. Another important one is what I call gestation periods. While logic may not dictate this, experience shows that once an action gets started in court or as an arbitration, it just doesn’t settle right away — settlement has a gestation period. That is a time you must be prepared for.

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Even more important is the gestation period for narrative development. While, in a way, you should have the final paragraph written of your summation before you begin drafting your complaint or considering the arguments in your motion to dismiss (that is, you need to know your case’s quick, sum-up story right away), stories also develop over time. Part of the reason for that may be obvious — you learn more information, you meet a witness and realize she is great or terrible, or there is a change in the law which changes your focus. But part of the reason for a narrative gestation is that good stories take time. You need to dwell with the story. Your brain will work on the story without you even thinking about it. You’ll bounce it off this or that colleague, or non-colleague. But this, again, all takes time, and you need to know that to advocate for your client.

Genuinely understand that time matters — whether for something specific like a deposition, or how long it takes to develop a narrative. Then you can prepare your team and clients and do your work to win.


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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