By Herbert J. Stern and Stephen A. Saltzburg, ABA Publishing, $119.95
Most trial practice books are fragmented, prescriptive, how-to manuals, seeking to provide the lawyer-craftsperson with the tools of the trial trade. In their new “Trying Cases to Win in One Volume,” Herbert Stern and Stephen Saltzburg have set their sights higher. They seek to provide plans, not tools. They don’t want to train carpenters. They want to create architects.
“Trying Cases to Win” distills and updates the five-volume “Trying Cases to Win,” published in separate installments, by two different publishers, between 1991 and 1999. The original treatise is a well-known secret among lawyers who actually try cases. But because of its publication history, cost, and size—and possibly because the initiated didn’t want to give up a competitive advantage—the treatise never received the wider distribution and recognition it deserved. The new volume has all of the merits of the longer work, and is inexpensive and portable too. It should be the first book read by a student or novice interested in trying cases, and the last book reread by the experienced lawyer about to pick a jury.
Stern and Saltzburg know about trying cases. Stern has been a Manhattan District Attorney, trial attorney for the U.S. Department of Justice, the U.S. Attorney for New Jersey (where he famously cleaned up decades of mob-influenced corruption), a U.S. District Court Judge, and a sought-after trial practitioner. Saltzburg is a nationally-recognized, much-published law professor and expert on criminal procedure and evidence, the principal author of a much-cited six-volume evidence treatise. Stern and Saltzburg together founded the University of Virginia Law School Trial Advocacy Institute, now known as the National Trial Advocacy College, which has trained countless practitioners in advance trial techniques since 1980.
The defining feature of “Trying Cases to Win,” and what sets it apart from the standard fare of trial advocacy texts, is that Stern and Saltzburg focus more on why, rather than how. They dispense with scripts and rules. Instead, they identify the few lodestar principles that have guided the best advocates since Aristotle and Cicero, and convincingly demonstrate that advocates who focus on these principles, and adapt to changing circumstances, will maximize their persuasive impact at trial.
The prime directive: the advocate’s greatest asset is credibility. Anything that supports an advocate’s credibility (or diminishes the adversary’s) is good. Superior credibility can be the decisive factor in a close case. Jurors believe that the competing advocates know the truth, that the jury may not get to hear all the facts, and that one of the lawyers is necessarily trying to deceive them. If the jury believes one lawyer is the truth-teller, and that the truth-telling lawyer truly believes in the merits of the case (but has not lost objectivity), then the jury is more likely to judge conflicting evidence in favor of that lawyer.
This prime directive underlies the first example of bad trial advice, an anecdote every lawyer has heard in multiple variations, to support the rule that the cross examiner should not ask one question too many. The witness testifies on direct that the defendant bit off the victim’s nose. The cross examiner establishes that it was a dark and moonless night, and that the witness wasn’t in a position to see well. But then the cross examiner asks: “So how can you testify that my client bit off the victim’s nose?” and receives the (supposedly) fatal answer, “Because I saw him spit it out.”
Of course, a lawyer needs to learn to shut up and sit down, and almost every lawyer who has tried a case has surrendered a hard-achieved admission through unnecessary, lily-gilding follow-ups that allowed the witness to explain or blunt the admission. But this is not the lesson from this anecdote, because the anecdote is nonsense.
Suppose the cross examiner had stopped short of the supposedly fatal, final question? On redirect, the adversary would simply ask the question that the cross examiner omitted—not only neutralizing the cross-examination, but also branding the cross examiner as a deceiver. As Jim McElheny noted in one of his perceptive essays for the ABA’s Litigation magazine, “[n]othing devastates your credibility more than looking like you deliberately created a false impression.” So the true lesson from the example is not that the lawyer shouldn’t ask one question too many, but rather that the advocate’s credibility is a priceless asset to be guarded and nurtured at all costs.
Protecting and projecting credibility is the basis for Stern and Saltzburg’s sound guidance for developing the theme of the case. The theme should look at the big picture, but avoid contradictions, because contradictions imply that the lawyer is not concerned with truth. The theme should account for all important facts, including bad facts, because the lawyer who runs away from weaknesses appears evasive. The theme should adhere, as closely as possible, to the laws of probability, and must always be logically consistent, because jurors strive to put facts into recognized patterns. The theme should freely give away what can’t be kept. Abraham Lincoln, truly the patron saint of lawyers and law teachers, was a master of this, freely “reckoning” it would be fair to admit this or that collateral fact, focusing entirely on what was essential to win.
Stern and Saltzburg believe that opening statements are the most important part of any trial. They have powerful support in empirical jury research, and the principles of primacy, recency, and confirmation bias. Primacy means that people believe what they hear first. Recency means that they remember what they hear last. Confirmation bias means that people assess evidence based on opinions they already formed, and will more readily accept evidence that supports their opinions, and disregard what contradicts them. It appears certain that what jurors hear at the beginning of the case, no matter what they are told about reserving judgment, colors how they process testimony and evidence. Jurors will do everything in their power to avoid changing an opinion, once formed.
So, the standard advice of trial handbooks (that lawyers should not argue in the opening and should not make promises about what the proof will show) is bad advice. Stern and Saltzburg recommend boldly seizing the initiative in the opening:
• Open on the whole case, leaving nothing that is issue-determinative for later. “This is Gettysburg. If you get them now, they will be subconsciously working to stay with you from this point on.”
• Promise to prove any fact truly essential to your case, whether you have the burden of proof or not. “The stronger your promise of proof, the more likely you will be found to have proven it.” Edward Bennet Williams, one of the premier lawyers of our era, never shied away from promising to prove an essential fact.
• Because lawyers are not supposed to “argue” during the opening, using the phraseology “I will prove to you” is the best way to make an argument. “When you say ‘I will prove to you,’ you are not only speaking in the most persuasive way, you are also employing the language that will most facilitate your ability to say [in the opening] what you want to say.”
• Never defend, but always prosecute. The burden of proof may be important in a closing argument, when it might sway jurors who are on the fence, or during deliberations, when it may be wielded by a juror inclined to acquit to sway a juror inclined to convict, but it is not important when jurors hear the evidence. “The jury will consider every assertion that something is true exactly the same way regardless of who has the burden of persuasion.”
Some may find these recommendations shocking. But they are only shocking because they deviate from the timid school of thought that the advocate who makes the fewest errors, and takes the fewest risks, will win.
That school of thought is wrong. Timidity has no place in the courtroom. If a fact is essential to victory, the lawyer must commit to it fully, incontrovertibly, and irrevocably. The trial, like fortune, favors the brave. This is the lesson from the humorous poem by Paul Arnold, The Tale of Two Lawyers, in which the learned-but-timid lawyer is a failure, and the ignorant-but-bold advocate is a whopping success:
This tale is the truth, not a fable,
And therefore no moral I’ll draw,
But I trust you’ll observe, that an ironclad nerve
Is an excellent thing in the law.
Stern and Saltzburg do not advocate ignorance rashness. They are historians and philosophers of advocacy, with two lifetimes of study and practice. But given that people make up their minds early and then look for evidence confirming their position—a principle supported both by modern jury studies and by common sense (try watching any sporting contest without developing some sort of rooting interest)—the opening statement is not only the first opportunity to persuade, it is the best opportunity. Thus, the attorney who fails to argue the case in the opening is severely disadvantaged, perhaps fatally so.
What about closings? Their insights concerning closings are equally valuable. Although there may be hung juries, there is no such thing as a hung juror. The true purpose of closing argument is to arm the jurors who agree with you to argue your case in the jury room. Here, unlike the opening, the burden of proof may be a useful tool, to help jurors who are on your side to sway jurors who aren’t.
The chapters on direct examination, cross examination, and evidence are every bit as focused, and eye-opening, as the chapters on opening statements. As always, Stern and Saltzburg focus on the abiding principles that make testimony persuasive, not on prescriptions that might not apply in particular cases.
The clarity and simplicity of Stern and Saltzburg’s advice, and the distillation of lessons drawn by the best advocates from the vagaries and variations of countless trials into a set of foundational principles, is what makes “Trying Cases to Win in One Volume” so essential. There are many fine trial advocacy books. Even the most mildewed and mannered anecdotal texts, like Wellman’s Art of Cross Examination (a text that is recommended far more frequently than it is actually read) have sections or bits of advice of real worth, more visible, however, after reading “Trying Cases to Win.”
But no other trial treatise focuses so laser-like on what really matters, or states so clearly the foundational principles that make the difference between winning and losing at trial. No other trial treatise is as useful for the young lawyer, preparing for her first trial, the experienced lawyer who wants to up her game, or the expert who merely seeks to regenerate her enthusiasm for the trial process. And no book has ever had a title that more accurately describes what will come of reading it. You want to win at trial? Stern and Saltzburg show the way. Lawyers who haven’t read the book, who try cases against adversaries who have, might as well surrender in advance. And notify their insurance carrier.
Philip R. Schatz is a partner at Wrobel Schatz & Fox in Manhattan.