THE TRIAL LAWYER: WHAT IT TAKES TO WIN (2nd Edition)

December 02, 2022

Depending upon what circle one travels in, the name “Dave Berg” may mean nothing, may link to the classic cartoons in MAD MAGAZINE, or may call to mind a stellar contemporary trial lawyer.   It is the last, trial lawyer David Berg, who penned THE TRIAL LAWYER; and in doing so he crafted a book with exceptionally valuable insights and anecdotes.

First, a little about Berg’s career.  After a remarkable start – a unanimous United States Supreme Court victory 18 months after opening his law practice – he went on to litigate complex cases both civil and criminal; win an exoneration; sue the Ku Klux Klan; pursue other pro bono cases; and secure massive verdicts for clients.

His ABA publication, THE TRIAL LAWYER: WHAT IT TAKES TO WIN (2nd Edition) is a treasure trove of great advice and insight into how cases should be approached, prepared and tried.  Before you take this reviewer’s word, consider these encomiums:

  • “I have read many ‘how to’ books over the years. Just one or two good ideas usually   make the purchase price worthwhile.  The Trial Lawyer meets that standard on virtually every page.”  Morris Dees
  • “Each arena has it’s Michael Jordan. In the courtroom, it is David Berg. And Berg has taken this natural talent and time-honed skill to a new level as he unlocks certain secrets that have catapulted him to the top of his profession. What most have considered his ‘magic,’ he explains as common sense practice. This book should be a required text at every law school. Those in the legal profession should not just read this, they should study it. The difference it will make in case results more than pays for the book, over and over again.” Mark Lanier

That these reviews are correct is beyond doubt.  To appreciate this, understand that there are two ways to read this book.

First is as the author intended -a  step by step overview of the pre-trial and trial process and advocacy points, informed and illustrated by tales and exemplars from various trials, in particular that of Berg’s colleague Joe Jamail’s $10.5 billion Pennzoil v. Texaco  success.  To some this may be fascinating – to this reader it proved a bit slow and distracting.

The second way is to use the Table of Contents as a guide to selective reading.  This method proves exceptionally rewarding.  The TOC is detailed, and one can turn from “empower the jury” in the closing argument chapter to “attacking the expert’s objectivity” or “jurors give verdicts to people they like.”  Each of these is where the gems are found, and even a modest immersion will give both the novice and the experienced trial lawyer much to learn and experiment with.

Take this excerpt from a discussion of opening statements:

Anger is seldom your ally in the courtroom, and arrogance, never…Too many jurors are bullied at work or at home to be a fan of a bully in the courtroom…

Let the facts of the case dictate the emotion you display…

Remember, the facts alone – without your help – can sometimes stir overwhelming emotion.

THE TRIAL LAWYER, 225.

Another essential is the reminder to “never ignore a damaging fact about your case…Once you have argued your strengths, grab whatever ‘smoking gun’ document your opponent waved in front of the jury….[I]f possible, stand [the opponent’s] argument on its head and failing that, at least confront the difficult fact.”  Id., 249-250.

Berg counsels that “the story should be about relationships” and that lawyers should boil “a case down to the interaction among the people in and out of the courtroom [to create] the most interesting, moving  and persuasive direct testimony.”  Id., 273.  For experts, he emphasizes  the dual need to make complex matters comprehensible and to never appear to advocate. He also extols the ‘lay’ expert – “I would rather get the engineer who rides the rails…than the engineer who designs them…”  Id.,  307.

For cross-examination, he rephrases what one colleague taught me – that one need not be cross when questioning the opposing witness(es).  Berg puts it this way:

Cicero’s warning against the impassioned onset during argument applies equally to cross-examination.  It is offputting, even silly, to jurors when the lawyer’s emotions are out in front of theirs.  Don’t get emotional or aggressive before the jurors understand the reason for such a display, and even then, never become melodramatic.

Id.,  367.

One intriguing piece of advice went to the proper use of documentary evidence.  “Cross about the document” rather than directly out of the document, if the message will be simpler and easier for jurors to follow.  The document itself becomes central only when the witness resists acknowledging the questioner’s summary of what its contents show.  Id.,  370.

These excerpts are exemplars of what this book holds.  There are ample portions of transcripts that put the lessons into practice, but it is reading the observation and digesting it that leads toward the knowledge the book promises – what it takes to win.  And, as noted above, there is a reminder that Cicero is a worthy muse and guide for contemporary orators – he is cited by Berg across the text.

THE TRIAL LAWYER will holds its place on my shelf of advocacy tomes as one of those worth visiting again and again and then using it as a guide to improved courtroom advocacy.

Citation:

Berg, THE TRIAL LAWYER: WHAT IT TAKES TO WIN, ABA Litigation Section (Chicago, 2018)