Building a Sophisticated Litigation Practice Outside the Big Firm

New York State Bar Association Law Practice Management Committee on Continuing Legal Education Program Starting Your Own Practice in New York Going Solo in the Real World Building a Sophisticated Litigation Practice Outside the Big Firm JOHN G. BALESTRIERE, ESQ. BALESTRIERE, FARIELLO & ABRAMS LLP NOVEMBER 14, 2013

Agenda 1. Finding Clients 2. Practice and Time Management 3. Coordinating With Co-Counsel 4. Pitfalls and Challenges of Litigation 5. Always Be Trying Your Case 6. Remember You Are an Advocate 7. Do Not Just Be an Advocate 8. Before you Advocate, Investigate 9. Do You Fight? 12. Schedule 13. Stages of the Case: Always Know Your Goals 14. Complaint 15. Pleading Motions 16. Discovery 17. Motion for Summary Judgment 18. Trial Prep 19. Post-Judgment 10. Do You Litigate? 11. Venue

Finding Clients Right clients given your size Certain size means you can only do certain cases (but see section on Working With Co-Counsel (or whatever that's called) Certain clients may want you, or not, depending on your size Always Be Selling Referrals (and ethical concerns) Web presence Website Twitter and social networks Blogging

Practice and Time Management Do it Right or Die Memorialize Everything Template Everything Procedures Memos for Everything Know Your Weaknesses Here and Eliminate Them

Coordinating With Co-Counsel Allows you to do bigger cases Allows you to do different cases Spell out fee and responsibility in agreement right at the start of the engagement Remember the client must sign off on any fee sharing arrangement Remember rule against fees for referrals only

Pitfalls and Challenges of Litigation You cannot just quit Missed Deadlines = Death (or, at least, loss and malpractice liability) Require holistic lawyer approach Every client hates it, even if most businesses will be in it at some point

Always Be Trying Your Case Do not just litigate your case, try your case Start with your summation No witness, no case Be the devil's advocate that your adversary will be at any evidentiary hearing Source is more important than content Don't stroke your witnesses, cross your witnesses

Remember You Are an Advocate Know your weaknesses, but do not allow that to cloud advocacy Win principle You are not there to judge; you are there to fight Level 3 advocacy Remember narrative always

Do Not Be Just an Advocate Counselor: you are this, too Unique opportunity to counsel given how emotional and intense litigation can be You are not just a tool of your client - you can guide your client through a foreign world with foreign rules and counsel the way to go

Before You Advocate, Investigate Do not win, seek the truth Plaintiff or defendant, you must still know the truth even if it s bad to be a good advocate Ethical and moral obligation to advance truth and justice

Do You Fight? Very expensive and time consuming Individuals (as opposed to companies) often not satisfied (though companies may be unsatisfied too) Can you settle creatively? For not just money? Admonition from our only trial lawyer president

Do You Litigate? Arbitration possible Faster, not always cheaper More knowns or unknowns Mediation Private mediators Court mediators Magistrate judges

Venue Often many choices Federal or state Federal will work faster, often more resources State has different pleading standards Supposedly federal judges are more pro-business/more pro-big defendant or company Everywhere is local always have a liaison counsel/local counsel Tactical Choice does the law work where you want to litigate, whether as plaintiff or defendant? Cost to you and to the other side

Schedule Do you want to take a while, or be fast? Parties can control this to a degree Who your judge is determines this Order pending: ping the Court, or not

Stages of the Case: Always Know Your Goals Win Strategy (of case) Tactics (of step) Law (which rules apply) Forces creativity Keeps you focused and not just managing litigation, but winning litigation

Complaint Tell me why you win right away Work from the back, then get out your claims, fill in the elements as you know them, then get the statement of facts to fit that Do not over-plead avoid lawyerly tendency to plead too much: you must prove what you plead Goal is to get the chambers on your side, then get into discovery, or bring about settlement

Pleadings Motions Standards different goes to venue choice Do you want to delay, or to move quickly; maybe do not file one Chance to tell your story Do you move to dismiss? Can you move to transfer venue or stay, where you get to put in more of your side? When plaintiff, do NOT be defensive, They say this, they re wrong ; instead, show how you win: why are the claims pleaded adequately

Discovery: Generally What is your goal? Build case for trial, not for discovery Build case for settlement: create pressure or make the other side uncomfortable? Build case to show your client what the case is: stronger or weaker than the client thinks, or worth it or not worth it Be goal driven; do not plod through step-by-step

Discovery: Informal Formal, yes, but always look to informal Basic web searches Databases Investigators pound the pavement Auditors

Discovery: Interrogatories Largely a waste Good to find out where documents are and who witnesses are to make the rest of discovery efficient Too much lawyer time spent on them

Discovery: Requests to Admit/Requests for Admission Also largely a waste given all the lawyering But if your adversary is not careful, this is a way to get admissions for summary judgment Also a way to communicate with the adverse party directly let him or her know what you know by asking them to admit certain features Can be a helpful settlement tool

Discovery: Documents This is what it is about in terms of building a case Beware clients not wanting to turn over documents You may have legitimate objections, and that s great But if you have responsive documents and no basis not to turn them over, turn them over Do NOT wait until discovery to get documents Try to get all potentially discoverable documents when you first get on the case cost issues there Litigation hold tell your clients immediately, tell the other side

Discovery: Depositions Find out information Bring about settlement Build case for trial Determine weaknesses Lock in the other side Take care in what you ask do you want to ask now or wait until trial? Very tough tactical calls to make Do not worry about showing emotion Worry about the transcript A bit different when you have a videographer worry about how you look Prep before is key like a trial you don t want to be worrying about getting exhibits together or run out of time Be aware of rules: do you have 7 hours, or days?

Discovery: Defending Depositions Much harder Do not try to win Minimize damage Can always put in affidavits Focused attention all day

Motion for Summary Judgment Trial prep step May not want in a jury trial to move for everything, since you lay out your case May want to move even on weak claims to see what the judge thinks May want to move even on weak claims to get a sense of the other side s response

Trial Prep Takes forever Moot your case Prep the hell out of your witnesses Very important to have a devil s advocate

Post-Judgment: Appeals Always be thinking of appeal

Post-Judgment: Settlement Waiver Attorney s fees Choice of law/venue