Litigators

Facts Win

Courts and arbitrators and jurors want to apply the law, and they do. But it is the facts which will persuade.

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Recently one of the younger colleagues at our firm became distressed when reading an adversary’s brief in support of a motion to dismiss. It seemed that the adversary had cited to cases that looked a lot like ours where judges in the same district court in which we were proceeding had dismissed similar claims. One case after another seemingly like ours resulted in dismissal.

I urged the lawyer to breathe and then do as any lawyer should — read the authority — and then come back to me. The lawyer did and, of course, while the quotes from the authority seemed bad for us and, indeed, the referenced authority resulted in claims like ours being dismissed, there were two very big differences. First, the nuanced facts were different, as they often are, and more than enough to distinguish the authority from our cases. Second, and kind of sneaky, the referenced cases all regarded decisions on motions for summary judgment — where evidence was developed and the standard is very different than on a motion to dismiss.

It is often so. My younger colleague was, I acknowledge, probably a little starstruck, as young lawyers can be, by the Biglaw/Am Law 100 adversary we had, and, I think, didn’t believe that such lawyers could be so tricky. But many lawyers are, and young lawyers should be careful.

More to the point, the facts in those cases were what really mattered, not the broad legal principles those cases apparently stood for (and, in fact, anyway did not in the motion to dismiss context). We were able, easily, to show how those cases were different in our opposition brief by focusing on the facts.

It is hardly just in the motion context where this principle — the focus on facts is what helps you win — matters. This is the case for prosecutors and defense lawyers when arguing bail. The bail standards may be what they are, but the facts determine which way the judge will go. It is the case in dealing with applications for temporary restraining orders and preliminary injunctions. We can all recite the standards of irreparable harm, balancing of equities and all that, but emphasizing the facts is what will help you win for your client. It certainly is the case in a trial or evidentiary hearing where the judge or arbitrator or jury will have the chance to get all the facts. And, of course, those fact finders are supposed to apply the law as they understand it.  But you must present to them the facts that show why your side should prevail.

We are lawyers.  Rules, standards, and principles — the law — all matter. But to win for your clients make sure you don’t just act like a lawyer, but like a human being, where narrative determines so often what we decide. Focus on the facts.

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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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