Don't Manage The Litigation; Win The Litigation

Too many lawyers don’t creatively come to the case with a focus on the strategic goal.

Too many lawyers ploddingly follow the court rules and deadlines, pushing along (or dragging along) the litigation. Bring value to your clients by focusing on winning.

I recently had a conversation with a government lawyer who was handling a false claims matter we had brought to her agency. False claims or qui tam matters are those where an individual brings an action on behalf of a government to seek moneys stolen or not paid, where you generally cooperate with the lawyers who represent the relevant government. There were many target companies that had wronged the government in question, including some that were ready to enter deals with the government to avoid litigation. The point was that our “relator” (the one who brings the action on behalf of the government) was right (as we knew since we conducted a years-long investigation before going to the government): the misconduct in question was happening, and the government was at a loss due to it.

But the companies that wanted to settle were the so-called small fish: I suggested to the government lawyer (who does in the end make the decisions on how to proceed once the government intervenes) that we see if those that were willing to plead would, instead, in return for a better deal with the government, cooperate to help us go after the bigger targets. While private lawyers cannot have a bad actor “flip” like this, government lawyers generally are permitted to do so (and in my organized crime prosecutor days of a million years ago, we would do this all the time).

The lawyer looked at me like I had three heads. She explained that they don’t “flip” defendants. But when I asked why, she simply responded, “Because we don’t.” She didn’t reference a rule or law or even office policy. She just said that they don’t do that because they don’t do that.

Way too many lawyers are like this: they don’t creatively come to the case with a focus on the strategic goal — what is winning for the client? Focus on that — that results in development of tactical goals — how do I win? What can I do right now to help the client win? What do I need to be thinking about for later? They just follow the rules, meet the next deadline, get the next task done, and then move on.

Don’t do that. That’s managing litigation. It’s easy. Now, I get it, it’s hard in a way since such management means working long hours and meeting all those deadlines, following all those rules. But you’re not winning for the client. At our firm, we know to keep that strategic goal — winning for the client, whatever that means — foremost in our minds. One reason is that it forces you to focus: how is the step I’m going to take helping the client win? What are the next steps I can take to help the client win?

It’s challenging to meet all your responsibilities as a litigator. But in the end, it’s not that hard. It just takes a lot of work and organization. Be hard on yourself: focus not on managing the client’s litigation but winning the litigation for the client.

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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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