As American trial lawyers, we trace our professional heritage to England where filings, with all that their flourish, at one time (and still sometimes now) started, “Now comes the plaintiff, herein, by and through his counsel, Dewey, Cheatham, and Howe, solicitors ….” With that tradition, it’s easy to understand why lawyers, especially junior lawyers, love to lose themselves in unnecessary words, especially in writing.
But remember what your goal is. If it’s to sound like a London lawyer from medieval times, you’re likely in the wrong field and should join a theater group. But if you’re a trial lawyer, your goal should be to win for your client (as it always must be, whatever it means for a given client to win in a given matter). And that means getting your point across fully, and forcefully, but also quickly.
We all think that our listeners — and, especially, our readers — have all the time in the world to actually read everything we write. They don’t. They’re busy. Most state court judges are overwhelmed and can barely get through all the papers litigants pile into their courtrooms. More than one judge has admitted to me that, before an oral argument on a motion, the judge read only a bench memo and, maybe, some tables of contents of the brief (or, as one judge told me, only the reply brief since she figured that that paper distilled the open issues better than any other filing regarding the motion).
It’s not only judges who are busy. Your clients are, too. A disquisition email update is not what they need. At our firm our practice is to summarize, if at all possible, the issue in the subject header, then to have one very quick paragraph noting what it is the client must know, along with an indication as to whether we do, or do not, need follow up, to discuss, or any other action. Then, below that, we will get into details (some clients do want that, I admit). This way if the client only has time to spend, say, 15 seconds on the email (and don’t hope that your busy clients have more time than that), the clients get the point and can move on.
This applies to oral advocacy as much as written. If the judge asks you a complicated question at oral argument requiring a complicated answer, fine, be ready to give the long answer (though also be ready to be cut off while giving it). But summarize the answer — really quickly; nothing is better than “Yes” or “No” in immediate response to a question — then give a bit more background, then get into more, and only if needed. The same would apply to an opening before a jury or arbitrator: They may have to sit in the room and look at you while you speak. But they don’t have to listen, so make it fast.
Don’t use your communications to show the listener or reader how smart you are. Use your communications to get your point across very quickly and 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 john.g.balestriere@balestrierefariello.com.