Litigators

To Others, The Visuals Matter -- Your Creativity, Not So Much

You win for your clients by working very hard and by being creative. But they and others may not understand that, so you must live with the reality that appearance matters more than you’d like.

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When you’ve presented your closing argument to the jury with reference to a summary chart, they may have no idea how creative you were in finding the particular claim or defense that got you to this point. When you make a seemingly perfect, pithy argument regarding a case distinction in your brief, the judge or her clerk reading your brief may have no idea how hard it was to find that seemingly on-point case. When you surprise your deponent with a particularly tough email he has to answer questions about, he may not realize that this email didn’t jump out in the review and even appears to have been intentionally buried by the deponent’s counsel so that it was hard to find.

But the jury will notice the typo in the chart. The clerk will cringe to see you didn’t use the official reporter to reference the case. And the deponent and his lawyer will chuckle when you stand up and your fly is open.

These anecdotes are silly, except I based them all on real-life examples (thankfully, these happened to other people, but I can only write “thankfully” because I probably didn’t notice my own typos or sartorial miscues in similar situations). And, I promise you, the audience in each case judged the lawyer even though, as noted, the lawyer and her colleagues may have done a fantastic job of being creative, thoughtful, and simply working extremely hard. My colleagues and I know that those are what wins — very thoughtful work and very hard work. But we also know that we are not judged on that hard work or creativity since it often doesn’t come through. And, to a huge degree, that’s okay — we are not here to stroke egos. We are here to win for our clients.

However, we will be judged — and this can interfere with winning — by how we present ourselves. It may not be fair. Indeed, many of the ancients complained at how unfair it was that beauty gave advantage (even as they often fell over themselves lauding it). But life isn’t fair. The nearly 200,000 deaths (so far) in the United States that have been caused by COVID-19, with massive overrepresentation among the poor, among Blacks and Hispanics, and among those who didn’t have adequate healthcare access, are a growing testament to how life is not fair.

Your job as a trial lawyer is not to whine about the unfairness of life, but (frankly, be grateful for how good you have it) figure out how to serve your clients and win, acknowledging that you make your arguments, you build your case, you try your matters to juries and judges and arbitrators, in this real, if unfair, world that focuses on the visual. This is a world where you must always be aware of how your work appears.

More than one new staffer at our firm either marvels or expresses horror at how frankly anal we can be when it comes to the filing process or even when simply submitting a letter to an adversary. I wish I could say we never make mistakes. But we make few, and we pay attention to appearance since we — and, thus, in too many ways, our clients and our positions — will be judged by appearance. To be clear, what I’m calling “appearance” can be more than just how pretty something looks. For example, a typo is not simply bad because it makes you look bad. And it’s not bad since your point is unclear — relatively few typos are so bad that the reader doesn’t understand the point. But the reader gets slowed down and can miss the argument, or at least not get the point as persuasively, since that reader got stopped by your typo. Appearance matters in all parts of a trial lawyer’s world since all of our work in the end is for some other audience.

Keep being creative and thoughtful. Keep working very hard. But make sure you also do all of that while being aware always of how you work, and how you appear, so that you can win for clients.

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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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