As someone fortunate enough to be involved in running a thriving law firm, my attention is drawn in many directions, in many cases, and in many management issues. Given all of this, the process is a joy for me. When I have an obligation to devote 12-14 (or more) hours a day to preparing for the experiment and the experiment itself for weeks, the focus is on energy and simply allows me to have a lot of fun.
But a good litigator who is so focused has to be careful. It’s easy to become your own echo chamber, or at least one with your testing team. Because of this, lawyers in my firm who are not responsible for litigation are often brought in very late to act as mock jurors or judges or arbitrators and to help the litigation team discuss the case. We also use outside mock juries and mock judges and umpires to run the story of them. You can’t focus so much on your supposed winning arguments that you allow your advocacy mentality to take over and limit your thinking.
However, there is another way you can individually ensure that you are getting the case right: give yourself a mental break.
I’m not just talking about the things you should do when on trial to maintain stamina and health, like getting enough sleep (when you can), exercise (as much as possible), and some time to spend with family (always ). I mean, give your intellect a Sabbath from exam. The best way to do this isn’t by watching an old Arnold Schwarzenegger movie on Netflix (although this is a phenomenally great way to give your brain a break). It is by getting your mind to focus on something else that is intellectually demanding.
Fortunately, we have ample job opportunities to do this. Talk to a colleague about your upcoming dispute (which has nothing to do with your litigation). Review a colleague’s assignment and think about it (which has nothing to do with your litigation case). Have a settlement conversation with an opponent (which in turn has nothing to do with your litigation). I’ve found that this kind of intense, intellectual focus on something other than my exam gives my mind space so that once I get back for the exam, I think better and have a fresher outlook.
Winning the negotiation is not easy and shouldn’t be. And it doesn’t just happen, and it’s not just the product of hard work (although hard work remains the most important way to win). Try your cases by taking the time not to think about the process and focus on something else.
John Balestriere is an entrepreneurial 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]