Litigators

Don’t Try To Make Friends. Try To Win.

Everyone likes to be liked. But as lawyers, our job is not to be liked, or admired, but to win.

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I recently had a discussion with an adversary regarding motions in limine, the evidentiary and similar applications lawyers make “on the threshold” of trial (and a note: that’s what “in limine” means, contrary to the belief by many that it means “to limit”). I’ve found that, sometimes, at least pre-trial, you can work things through with your adversary to avoid wasting lawyer time, client fees, and judicial patience, if you have a healthy and frank discussion of the issues.

In my case, the adversary and I got along, and we did limit the issues that we did not agree on. But we had a huge disagreement about one set of documents I sought to admit. It was not a surprise that we did as the adversary knew that the documents in question could allow us to cross examine one of his key witnesses. When I stated, almost off hand, that this was an issue where I would move in limine, my otherwise friendly adversary professed great offense that we couldn’t agree. He said something about how he was surprised I was not “providing courtesies” after we had gotten along on the case for years.

He was wrong. But his response is common: while adversaries, we had generally gotten along, and he now interpreted my lack of agreement with him about an evidentiary issue (which would, of course, make his life harder at trial if my application was granted) as a discourteous act. It was not the way friends treat each other.

But we’re not friends. We’re adversaries. I liked this adversary, indeed, more than most. My colleagues and I handle many of our matters in New York’s federal and state courts where so many lawyers can be so routinely obnoxious to their adversaries that it sometimes seems like the local rules require it.

But acting generally professional and courteous doesn’t mean we are friends. More to my point, being friends with adversaries (or, for that matter, clients or court personnel) cannot be our goal. Our clients didn’t trust us with their matters and maybe pay us a lot of money to make friends. They hired us to win for them. And making that motion in limine could help me win. Indeed, it did.

Being nice is nice. But don’t focus on that. Make your friends outside of your cases. In your cases make value for your clients and win for them.

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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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