July 29, 2019

There can be no doubt that Stephen Saltzburg knows his way around a courtroom, and his way around the Federal Rules of Evidence, too.  This prowess is on full display in the fourth edition of Trial Tactics, released by the ABA earlier this year.  Trial Tactics takes Saltzburg’s columns from the ABA’s “Criminal Justice” magazine, columns he’s been writing regularly since 1991, and puts the best of them together in one place.  This most recent edition spruces up some of the older works and adds in a few new gems.


The format for each chapter is roughly the same.  Saltzburg builds each article-turned-chapter around a federal court decision that turned on an evidence issue.  The chapters first tee up the issue under examination, then give the factual background of the case, and finally dig in, explaining what the appellate court concluded and analyzing what approach might have worked better for the lawyers who tried the case.  Many chapters end with several “lessons” related to whatever issue the chapter discusses.


The storytelling surrounding each case is clean, and the analysis provided keen and useful.  Note, though, that one needs a strong foundation in evidence basics and trial practices to follow along.  This is a book best suited for the evidence scholar or experienced trial lawyer.


Despite the depth of analysis of the evidence issues it tackles, the problem with Trial Tactics is that in compiling the articles together in one place, the book loses some of its sense of purpose.  Even considered as an evidence book, it isn’t designed to work well as a reference tool.  It isn’t organized or indexed to be something that a lawyer or trial judge can turn to in the heat of trial to find Saltzburg’s advice on the application of a specific rule.  Because each chapter was originally written as a case study, the analysis can at times feel too fact specific to be broadly applicable.  Admittedly, the ‘lessons’ at the end of many chapters ameliorate this, but to work as reference material the book would need to be organized differently- say explicitly following the organization of the FRE- or would need indexes of the cases and rules referenced.  The headlines for each chapter aren’t specific enough to necessarily clue the reader in quickly to what a given chapter is about.


But if the book isn’t workable as a reference for the trial lawyer or judge, then what is it?   Because each chapter was originally written as an article for the ABA magazine, no one chapter is overly long; but, all told the book is nearly 600 pages of reading that isn’t light.  True too, is that although it is titled, Trial Tactics, this book is more about arguing evidence than tactics at trial.  Of course, evidence and trying cases are inextricably intertwined, but this book will be valued most by those who love evidence best.  It lives and breathes in the nuanced application of the rules.  Those looking for tactics to help improve courtroom advocacy skills would be better served by Saltzburg’s wonderful book written with Herbert J. Stern, Trying Cases to Win, which effectively teaches advanced trial advocacy skills.    The natural audience for Trial Tactics, then, is the evidence buffs and professors more so than most trial lawyers.


In the end Trial Tactics serves as a grand survey of important evidence case law across the past twenty-five years, which in itself makes it a worthwhile read.  The book takes the reader through some historically notable cases along the way, including the Oklahoma City bombing case (to talk about authentication foundations) and the prosecution of cult members from the Branch Davidian compound (to discuss the rule of completeness).  With Saltburg’s background as a trial lawyer in complex cases, as a storied law professor at several notable law schools, and as a member of the Advisory Committee to the FRE, it’s no surprise that each chapter stands on its own as strong.  Anyone who loves to tackle a good evidence problem as bedtime reading will appreciate this book.  When taken in its entirety, however, the parts prove to be greater than the whole.


This review was written by Professor Sara Jacobson, Director of Trial Advocacy Programs at Temple University’s Beasley School of Law





Trial Tactics, Fourth Edition By Stephen A Saltzburg (ABA, 2018)