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Recently, my colleagues and I used Zoom (like everyone) to hold a mock trial. Different lawyers opened, and others acted as witnesses, either as themselves as they would be in the eventual trial, or as our adversaries (who we have somewhat gotten to know, and who we enjoyed pretending to be). We used the Zoom screen-sharing feature to put exhibits in front of the witnesses and all of that.
The trial isn’t scheduled until late 2021.
Given that last fact — that we have forever until trial and, indeed, we are nowhere near done with discovery, let alone know what dispositive motions we will have to deal with, or, of course, whether we will have a real settlement discussion — why would my colleagues and I devote the time and resources now to preparing for trial? It’s simple: because that’s what you need to do to win.
To be clear, when I write “win,” I mean it as we do at our firm: get the best result for the client, whatever that result is. Sometimes that result is getting rid of the fight. Sometimes it’s fighting only for a short while, as that has some collateral benefit to the client (in particular, in commercial litigation). Sometimes it does indeed mean pushing the case to trial or to an evidentiary hearing before an arbitration tribunal and getting a victory at that trial or hearing.
But even if a win for your client doesn’t mean going all the way to trial, you need to be ready to — since it may happen — and by preparing for trial in the early stages of the case, you will do a better job throughout the case, and be more likely to get the client to that win, and get the client there faster. We all think we know our cases. But then when a good lawyer puts on her devil’s advocate cap and examines one of your side’s witnesses you may see, for the first time, some real weaknesses: maybe the witness comes off poorly; maybe you realize you don’t have a good explanation for some conduct; maybe you realize there are things you just don’t know. Like anyone, we can get into a herd mentality about our cases (and, indeed, that’s why at our firm we are huge fans of using mock jurors from the community who really know nothing about the case and aren’t lawyers). By forcing yourself to think like your adversary and go through the motions, even a little, of the end determination of merits, you can make sure you learn.
Some of us, these days, unfortunately aren’t too busy. Many of us, thankfully, are. But challenging your case by mooting it out this way is something we all need to make time to do if we want to win for our clients.
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 john.g.balestriere@balestrierefariello.com.