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Recently, I was one of three partners preparing a colleague in a moot of an upcoming argument. The associates on the case, playing both our side and that of the adversary, were prepared and did a pretty good job. Then one of the partners raised a particular arbitration issue he encountered regarding motions. The associate arguing for our side had not thought of the issue prior to the moot, largely due to lack of experience. He had a good response on his feet. But then, once we were out of character, we discussed the issue, which ended up being one of the key issues in the arbitration argument. At the argument, the associate dealt with the issue handily, and we obtained a small victory for our client.
But the only reason that my colleague could win for the client is that he was very, very expansive. The adversary in his argument — a partner years senior to my colleague — didn’t do a great job of arguing for his side, helping us win. The point is that the adversary hadn’t thought of everything in his preparation, so then he didn’t have the answers ready in the actual argument.
However, being expansive is not easy when you’re in a room by yourself. It was not simply the experience of that senior partner at our firm who had the great idea. It was that the senior partner, and two other partners, and two associates batted around ideas and practiced, all together. And it didn’t take forever. The entire moot and discussion lasted under a half hour. The arguing lawyer then spent his time in prep and research, sure. But the key preparation I’m advocating for here, where you really think creatively, didn’t take long. But it did take teamwork.
Perhaps nothing is more essential to winning in trial work than simply grinding away and working hard. But open, creative thought, with your colleagues, can be what puts you over the edge so that you can win for your client.
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.