Yes, being a litigation attorney is a job where we spend a lot of time thinking – thinking, analyzing, writing – but when hearings and litigation come up, don’t forget to focus on your environment and logistics as well.
My last jury trial before the pandemic involved a very longstanding dispute that had more than a decade between the parties to a joint venture that affiliates had in half a dozen countries. We have represented the parties in multiple state and federal courts and appeals courts, and worked with attorneys in two other countries. It was a huge logistical challenge to sort everything out, and all disputes had a multitude of interesting and difficult factual and legal issues.
My colleagues and I know that when we are negotiating a case, we must keep all of this in mind when it is time for a trial. But my preparation went far beyond knowing my case and the relevant law (we faced a very good commercial dispute judge who challenged all lawyers on a variety of questions) and knew what to ask directly or directly what to ask at the cross.
I also had to be ready to try this particular case in front of the special jury that we had in this special courtroom. I realized that there was a lot of light streaming in through the large windows just behind the jury, making it difficult to see the jurors’ faces as they opened and closed, and I had to tell my witnesses if they wanted to stand on the jury . I had to understand that the audiovisual facility in the beautiful but old courtroom was not conducive to the 1,000-plus PDFs we had to display on screens (so my team had to come up with another solution). I kept in mind that since the plaintiffs were sitting very close to the jury because of the courtroom, I had to be careful about the papers we had on our legal table so the jury couldn’t see them.
So there is much more to a case negotiation than just the law and facts. It’s about logistics. And unless you’re going to go to court – or hold evidence hearings, or even have a lot of oral arguments – it’s easy to forget. Knowing the case is not enough, but you need to be able to bring it up at the specific time and place where you will be presenting it. And so much of what Zoom does doesn’t change that: Is there a backlight behind you? Do you know how to share the screen to put exhibits or will someone else do it? And where on your service or in the cloud will the exhibits be? Do you have a wired connection for your absentee witnesses so they don’t fall prey to Wi-Fi hoarding by their children by playing online video games while they testify?
The simple word for all of this is logistics. You need to know all of the logistics or you will stumble while trying to enforce your case. I consider this, as mentioned in the title of this essay, to be awareness of your environment: how will that environment work for you in this conclusive presentation? In order to win for your customers, you need to know a lot more than just laws and facts. You need to know how the mini-theater of your evidence presentation will play out.
John Balestriere is an entrepreneurship litigator who started his law firm after serving as a prosecutor and litigator in a small law firm. He is a partner at the Balestriere Fariello law firm in New York, where he and his colleagues represent national and international clients in litigation, arbitration, appeals and investigations. You can reach him by email at [email protected]