What You Write Matters, But So Does When You Write It
Knowing deadlines can help you obtain a tactical advantage in your case.
Don’t be driven only by court or pre-determined deadlines when you file or serve litigation or arbitration papers.
The cliché is true: litigators live and die by deadlines, especially trial lawyers who live under a myriad of rules and orders regarding when they must file a paper with court, or serve that paper on an adversary, or respond to a discovery demand, or show up with their client for a deposition. My colleagues and I know this well, and we have in place multiple calendars and reminders to ensure not only that we are all on the same page regarding when we must get some of our work done, but that we have this crucial information readily available.
But since we must get a filing or response in by a certain time, it doesn’t end the inquiry as to when we should file or respond or otherwise meet a deadline. The inquiry, as with everything, is what helps our clients win.
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What does that mean when it comes to deadlines? That means being aware of when you have to file something, or respond to something, or schedule a deposition, can help you obtain a tactical advantage in your case. This is a much more challenging (and interesting) inquiry than simply checking the Federal Rules of Civil Procedure to determine how many days you have to respond to interrogatories posed by your adversary.
If you represent a defendant and have a motion to dismiss due on a Friday, is that the best time to file it? Maybe — maybe you need all the time you have under the rule, and you’re confident the judge won’t care about the timing.
But maybe not: if on the Thursday the day before that Friday deadline you had a conference with the magistrate judge regarding a discovery dispute where you think plaintiff’s counsel is seeking discovery she doesn’t deserve, it might make sense to get in the motion to dismiss on the Tuesday before. This way the magistrate’s clerk can read your papers and perhaps be convinced that the case will be dismissed (and thus discovery should be stayed). The court deadline is not what determines when you file; what will help your client’s interest is what does.
That is a very particular set of circumstances, but it’s your job to be that particular, in every case, with every adversary, and every judge and arbitrator. While in the above example I suggest filing on the Tuesday, if I thought my adversary was very good and would come prepared to shoot down my motion to dismiss, I might instead wait to file it until Friday, and instead have my motion to dismiss arguments ready for that Thursday discovery conference before the magistrate. Knowing your adversary and your judge or arbitrator is crucial when deciding when to do something.
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Likewise, when you schedule a deposition, it requires an analysis not simply of availability of the witness or counsel, but an appreciation of how that schedule will affect the case overall. Do you want it after all document production or might it make sense to do it before? Do you want to schedule the deposition for witness B after or before witness A? And where does witness C fit into this? Do you have a lazy adversary that will cut a Friday deposition short? Are you time zones away from the court where the case is proceeding, but anticipate disputes requiring judicial intervention, such that you schedule the deposition to start at a peculiar local time, but which fits with the judge’s time in chambers? These are the kinds of questions you need to ask yourself.
We may live and die by deadlines, but the rules and orders are not the be-all/end-all of deciding how and when to act. Everything matters when deciding the when of our work so we can win for our clients.
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.
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