Litigators

Act Prudently For The Long Term

Don't wait forever to respond to emails. But take care to act prudently.

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Litigation can take entirely too long, and cost entirely too much. Some efficiency and speed are good. But be careful: when making decisions, you may want to slow down a bit and consider how things will play out over time.

I know a professional who does a great job and is one of those people who simply cannot stand to have an unanswered email in her inbox. This is, in a way, good. She follows what I’ve heard called the OHIO rule of email (Only Hit It Once). Once she gets an email, she responds, then moves on. This means no delays in response, no stressful number of unread emails, happy email recipients, and no email anxiety.

Right? Well, sort of: she doesn’t have a lot of emails in her inbox, but is a slave to her desire to respond, immediately. In the end, I know she is driven more than she would like to admit by anxiety. That anxiety drives her to respond, promptly and thoroughly, to any communications. And it makes her a slave to the whims of those who call or email her. Instead of deciding how she will run her days and weeks, her days and weeks are largely run by those who contact her.

Lawyers sometimes are accused of the opposite problem, which is waiting too long to get back to someone. Indeed, for years the belief (true or not) was that the No. 1 client complaint to grievance committees in New York was lack of responsiveness. Even if not true, it told a truth, which is that lawyers can take too long to respond.

There’s a happy medium between immediate responses and delayed ones — or, more broadly, between immediate action and delayed (I might say) considered action — and younger lawyers must keep this in mind. At our firm, we put a premium not only on responding to client and third-party inquiries, but to getting the work done. Generally speaking, don’t delay: start writing the brief now, call that person now, conduct the investigation now.

But that caveat of “generally speaking” is key, particularly in two contexts: responding to difficult communications, and making tactical decisions.

In terms of difficult communications, you will get jerky emails sometimes. Pause before you respond. The unfortunate reality of practicing complex commercial litigation is that many commercial litigators deserve the reputation those of us in the field have for being difficult. Indeed, I had two different out-of-state jury trials a couple of years back where, during one of those many pauses you get during a jury trial when the jurors are filing out, or you’re discussing scheduling with the judge, and you’re off the record, the jurists in those cases turned to me and said, very kindly, after I’d been on trial with them for a bit, “You know, John, for a New York lawyer, you’re really nice.” You will get not nice communications, especially emails, from your adversaries.

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Don’t wait forever to respond. But take care to act prudently: maybe a very direct response is required. But maybe not. Give it some time. I’m not suggesting delay, just good judgment.

The same is the case with tactical decisions. You may have a great idea about how to proceed. Maybe it is a great idea. But before you jump, allow the idea to marinate a bit, even just overnight (most any important decision would benefit from waiting until you get either a good night’s sleep, or a good work out and shower). Keep in mind, though, that litigation does take a while, and you may not want to rush.

We have to move fast as trial lawyers, at least sometimes, and that’s part of the fun in it, especially when compared, say, with our strictly appellate lawyer or professor colleagues. Generally, do be ready to act fast. But be a wise trial lawyer and slow down when it makes sense for you and your clients.

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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