When writing and talking, lawyers can wander around ideas, ruminate on interesting possibilities, lose themselves in the stories they want to tell, or do all of the above at the same time. Don’t lose focus. Follow this rule.
In a habit that I’m sure I’ll someday rue (or at least be made fun of by my kids), I teach (lecture?) my children and my nieces and nephews that when deciding how to conduct ourselves, the Golden Rule is great because, in a way, it’s easy. The Great Commandments—loving God with all your heart and loving others as God loves us—those are hard even to understand. If I find it difficult to comprehend how exactly to follow those rules, it’s a bit much to ask kids to figure them out and then behave.
But the Golden Rule—treat someone else as you’d like to be treated—is straightforward and helps me, at least, attempt to figure out how to act in every situation.
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There are all kinds of rules about lawyerly communication—volumes of them—and I certainly do not know all of them, let alone how or whether to follow them, but I do try to follow a straightforward rule with communication which, like the Golden Rule, is at least easy to try to follow and provides some discipline to my communication.
The golden rule of communication requires a lawyer to ask herself a very direct question before making any communication, of any kind, to anyone: who is your audience, and what do you want them to do, think, say, or feel after your communication?
Like rules, some cases are simple, and some cases, even if they must be simplified, can be very, very complicated. At our firm, we tend to do more of the latter type of cases—disputes with long histories of events, and lots of parties and witnesses, with questions of what is proper jurisdiction and venue, and which end in some messy litigations or arbitrations (or multiple ones at the same time). This means lots of letters, emails, briefs, conversations and arguments, conferences and hearings, and trials, which all have different audiences (judges, witnesses, clients, deponents, juries, arbitrators), and all kinds of purposes (to explain, to get someone to hire you as a lawyer, to convince a fact finder your story is right).
It’s a lot, and we hope to bring different lawyerly skills to these communications: organization, attention to detail, focus on key issues, reliance on authority for our analysis, and a lot more. Mixed together, all of this can result in scattered communication. I would put the lawyers and other professionals with whom I work with up against any litigation team absolutely anywhere. But in supervising the writing of others (and in trying to make my own writing better), I can see this scattered quality: you see the intelligence and thoughtfulness and creativity and all the hard work, but the writing or the argument is not always doing what it should.
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In those situations, I remind my team of the golden rule of communication: determine your audience and ensure you are writing for that audience. It’s that simple—sort of. Determining your audience is not as simple as it sounds. When deciding what you want the audience to do with the communication, you need really to focus on purpose and not ego, vanity or insecurity.
If my audience is a client, what do I want that client to think, say, or feel after I write her a letter explaining case status: all of my theories? This cool case I read? A nutty idea I had about proceeding? Probably not, though I might enjoy writing about it. I probably want the client to understand what is happening in her case, what choices she needs to make and, if justified, what a good job our team is doing.
If my audience is a judge (or is it the judge? maybe it’s really the judge’s new clerk who doesn’t know about the case), and I’m arguing on a motion to compel, what do I want the judge to do or think or say or feel after the argument? I want him to give us what we want, but I also want to provide the authority that the clerk can rely on, and I also want for the judge and clerks to think we’re being sensible (to make it easier the next time we want to make a motion). And I probably want all of chambers to know a bit more of our story, and why what we want for the client is the just result.
These examples show that while this rule is simply stated, and perhaps even simple to follow in theory, its virtue is in forcing you to ask questions: who really is your audience? What do you really want the audience to do, or think, or say, or feel?
As a trial lawyer, make your focus on the real audience: as noted, is it the judge, or the judge’s court attorney that writes the decisions? Both? Is it the entire arbitration tribunal, or the one you know will sway the others? You certainly need to keep in mind that while you may want to impress your audience (and your adversary?), that is not the goal of your communication.
Follow the rule of communication so you can follow the golden commandment of a trial lawyer: win.
John 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 [email protected].