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BOOK REVIEW


What It Takes to Win Your Trial


Reviewed by Michael Palmer, Esq. There is a short list of books that all


courtroom attorneys should have in their libraries. Thomas Mauet’s Trial Techniques (now in its 7th


edition), Herbert J. Stern’s


multi-volume work, Trying Cases to Win, and Irving Younger’s Hearsay: A Practical Guide Through the Thicket unquestionably belong on that list. Now, we can add David Berg, The Trial Lawyer: What it Takes to Win to that shelf. A member of the Texas and New York bars (with offices in both states), David Berg is one of the premier courtroom attorneys in the country. Mark Lanier, no slouch himself in front of the jury, has called him the Michael Jordan of the courtroom. Morris Dees, founder of the Southern Poverty Law Center, likens him to Clarence Darrow. Clearly, when David Berg speaks about what it takes to win, his thoughts deserve more than casual attention. But not every accomplished courtroom attorney can write practical, readable, and accurate advice about the magical skills they seem to use effortlessly in big trials. For example, Francis Wellman, one of the early twentieth century’s most successful courtroom advocates, wrote a one-volume tome on cross examination, an entertaining collection of war stories having little practical value to the budding barrister wanting to know how to cross examine witnesses. The Trial Lawyer is chock full of sound advice but does not skimp on good stories and examples either. Berg walks the reader methodically


through preparation and the various stages of trials. He begins by


talking about what he calls “the constants of persuasion.” Right away we learn that Berg does not shrink from revealing his own shortcomings as a neophyte. “Early on, I cross-examined everyone like they were ax murderers, including schoolteachers and old ladies: ‘Exactly what do you mean, you were tending your roses? And quit fiddling with your oxygen tank.’” Berg covers all the important bases, making his point and moving on. Berg clearly has done the hard work of rewriting and rigorous editing, to the reader’s benefit. The main topics covered include: Preparing to Win, Jury Studies and Graphics, Voir Diring for Dollars, Opening Arguments,


The Trial Lawyer: What It Takes to Win


David Berg


American Bar Association; 2006; 310 pp.; $75


Killer Cross, Preparing and Presenting Witnesses, and It’s Never Too Late to Win—or Lose (on closing arguments). Throughout the book, Berg tells us that


courtroom lawyers need to be storytellers and reminds us in the accompanying video of Aristotle’s three-part formula for persuasive speech: Ethos, Logos, and Pathos. For my money, the importance of storytelling cannot be overemphasized. The story must begin at the latest when we make our opening arguments. And, yes, Berg does say “opening argument.” After briefly talking about the importance and goals of opening argument, Berg turns to delivery, the meat of the chapter, telling us that the delivery is more important than the content of what you say, beginning with the tone of the delivery, relating Cicero’s advice that argument must be


delivered “agreeably” and “feelingly,” that the manner in which a case is presented is “often … worth more than the merits of the case … How things are said is often more important than what is said. This advice applies not only to the opening but throughout the trial, and not just to lawyers, but also to parties and witnesses. Sooner or later, every good trial lawyer I know ‘discovers’ this principle, and after the epiphany thinks that he made up” (130).


Given its comparative brevity, The Trial


Lawyer is more a what-to than a how-to book. Berg makes sure we understand what we should be doing and why doing it is important. For guidance on the skills themselves, however, one needs other resources, including the aforementioned series, Trying Cases to Win, by Herbert Stern or, even better, a two-week stint at the National Institute of Trial Advocacy in Boulder, Colorado.


Like other trial lawyers, Berg finds


the trend toward fewer trials in favor of mediated settlements disturbing because, I suspect, he thinks that lawyers who know what to do in a courtroom are in short supply. Berg tells us early on that he wrote the book to assure that lawyers know what to do and can confidently go to trial when their case and the other side’s inadequate settlement proposal make that the best way to satisfy their client’s interests. You don’t get good at football by sitting on the sidelines. Similarly, to become an accomplished courtroom attorney, there is no substitute for trying cases. But practice does not make perfect; perfect practice does. You must know what to do to avoid building the wrong habits. This book will help the beginning or experienced courtroom attorney acquire that knowledge.


After the book had gone through its first printing, Berg produced a two-DVD series of videos that illustrate the lessons of the book. The videos are a bonus well worth watching. But the real value is the book itself.


____________________ Michael Palmer, J.D., Dr. Phil., is founder of Win Before Trial: A Litigation Strategy Firm, Middlebury, Vermont. He earned his J.D. at Georgetown University Law Center and a Ph.D. at Freie Universität Berlin. A practicing lawyer since 1980, Mike is a former chair of the Vermont Bar Association ADR Section and current chair of the Public Education Section. He is also the author and facilitator of the Winning Settlements workshop.


www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2012 41


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