Act with caution in the long run
Litigation can take too long and cost way too much. Some efficiency and speed are good. But be careful: when making decisions you might want to slow down a bit and think about how things are going to turn out over time.
I know a professional who does a great job and is one of those people who just can’t stand having an unanswered email in her inbox. It’s sort of good. It follows what I’ve heard called the OHIO Email Rule (Hit It Once Only). Once she receives an email, she replies and then moves on. That means no response delays, no stressful number of unread emails, satisfied email recipients, and no email anxiety.
Right? Well, sort of: she doesn’t have a lot of emails in her inbox, but she’s a slave to her desire to respond, immediately. In the end, I know she is more animated than she would like to admit with anxiety. This anxiety drives her to respond quickly and completely to any communication. And that 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 are sometimes accused of the reverse problem of waiting too long to get back to someone. Indeed, for years the belief (true or not) was that the # 1 complaint from clients to New York grievance committees was lack of responsiveness. Even though that is not true, he did tell the truth, which is that lawyers can take too long to respond.
There is a middle ground between immediate and delayed responses – or, more broadly, between immediate action and delayed thoughtful action (I might say) – and young lawyers need to keep that in mind. In our practice, we attach particular importance not only to responding to requests from clients and third parties, but also to carrying out the work. Generally speaking, don’t delay: start writing the brief now, call that person now, investigate now.
But this warning of “generally speaking” is essential, especially in two contexts: responding to difficult communications and making tactical decisions.
In terms of difficult communications, sometimes you will receive choppy emails. Pause before you answer. The sad reality of the practice of complex commercial litigation is that many litigators deserve the reputation those of us in the field have for their difficulty. Indeed, I had two out-of-state jury trials a few years ago where, during one of those many pauses, you get during a jury trial when the jurors fall, or you discuss the schedule with the judge, and you’re unofficial, the lawyers in these cases turned to me and said, very nicely, after being tried with them for a while, “You know, John, for a lawyer from New York, you’re really nice. ”You won’t get good communications, especially emails, from your opponents.
Don’t wait forever to respond. But be sure to act with caution: maybe a very direct response is needed. But maybe not. Give it a little time. I’m not suggesting delay, just good judgment.
The same goes for tactical decisions. You might have a good idea of how to do this. It might be a great idea. But before you jump in, allow the idea to marinate a bit, even overnight (most important decisions would benefit from waiting for a good night’s sleep or a good workout and shower). Keep in mind, however, that litigation takes a while and you may not want to rush into it.
We have to act fast as trial lawyers, at least sometimes, and that’s part of the fun, especially when compared to, say, our fellow lawyers or professors strictly on appeal. As a general rule, be prepared to act quickly. But be a wise trial lawyer and slow down when it makes sense to you and your clients.
John Balestriere is an entrepreneurial trial attorney who founded his firm after working as a prosecutor and litigator in a small firm. He is associated with the law firm in matters of trials and investigations 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]