6 FAVORITE BOOKS ON TRIAL ADVOCACY

 

What follows is a list of six of my favorite books on trial advocacy. These books are not strangers to this blog that concentrates on the art and science of advocacy because I have blogged about most of them before. Below you will find the six favorites, including mine of course. With each book, you’ll find a link to where you could purchase it on Amazon as well as a gem from the earlier blogs and links to the full articles should you wish to visit them. 

#1—McElhaney’s Trial Notebook by James W. McElhaney

I treasure my autographed copy of McElhaney’s Trial Notebook. For decades McElhaney, the trial lawyer’s sage, wrote a lead articles for the ABA Journal. In his Trial Notebook, he covers everything from trial preparation through final argument. My favorite part of this favorite book is about Tactics in which you can find chapters on traps, how to deal with dirty tricks, ploys, stock phrases to employ as well as ones to avoid (in opening—“Nothing I say is evidence”), picking the right words, getting along with judges and keeping the client happy. 

#2—In the Interest of Justice—Great Opening and Closing Arguments of the Last 100 Years by Joel J. Seidemann

I’m a firm believer that you can become your best by appropriating skills, strategies, concepts and words from skilled trial lawyers. As Picasso said, ““Good artists copy, great artists steal.” When you set out to craft your opening statement or closing argument, it is always helpful to refer to outstanding opening statements and closing arguments from the past, and In the Interest of Justice provides them.

Seidemann’s book contains excerpts from transcripts that meet Mr. Sideman’s two prerequisites. First, the selected cases are very high profile, including, among others, the trials of: O. J. Simpson; Marv Albert; Sean Puff Daddy Combs; Adolf Eichmann; Martha Stewart; John Scopes; Amadou Diallo; Timothy McVeigh. Second, the advocacy in these cases also satisfies the excellence test, with the lawyers demonstrating how to effectively use these devices: storytelling; analogies; phrasing; humor; pathos; logic; themes and so much more.

#3—Redeeming the Dream by David Boies and Theodore Olson

In their book Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality, David Boies and Theodore Olson take the reader inside the trial of their case challenging California’s Proposition 8. The book explores everything from preparing the complaint through closing argument and then the appeal to the United States Supreme Court. The book informs the reader about how highly skilled trial lawyers prepare for trial and perform in trial. It also covers the stress, fears and elation that trial lawyers and clients experience in a high-profile case. 

Redeeming the Dream returns again and again to the importance of themes. The development of a case themes and utilizing them in trial is at the core of excellent trial advocacy, For instance, when Ted Olson delivered the opening statement at trial, he led with the case theme: “This case is about marriage and equality. Plaintiffs are being denied the right to marry and equality under the law.”

#4-- Outrage: The Five Reasons Why O. J. Simpson Got Away with Murder by Vincent Bugliosi

A winning closing argument is often the product of learning from the best of the best trial lawyers, whether it is a how-to technique for delivery or some content for closing. A valuable resource, particularly for prosecutors, is Vincent Bugliosi’s book about the O. J. Simpson case, entitled Outrage: The Five Reasons Why O. J. Simpson Got Away with Murder. Bugliosi was hands down one of the best trial lawyers in America. 

Why is the book so valuable a guide for shaping a closing argument? First, it is packed with illustrative arguments that can with some modification be adopted by trial lawyers to their cases. When Bugliosi’s book editor asked him to write out the closing he would have given if he had prosecuted Simpson, Bugliosi declined, saying that it would be unrealistic because he normally put three to four hundred hours into prepping his own closings and for that case the closing would have filled a thousand pages of transcript. Instead, he wrote out some of his arguments, which are in bold type. Bugliosi’s “Final Summation” chapter is jammed with arguments and runs a hundred pages.

A second reason that his closing argument chapter is so valuable is because it is filled with gems – arguments that have been cut and polished to perfection. It is apparent that Bugliosi did what all good trial lawyers do; he took many of his arguments that he had crafted and delivered in his over a hundred trials (including 21 murder convictions) and adjusted them to fit the Simpson case. They are tried and true arguments.   

#6—Trial Advocacy: Planning, Analysis, and Strategy 4th Edition by Marilyn Berger, John Mitchell and Ronald Clark

Naturally, my book Trial Advocacy: Planning, Analysis, and Strategy is included in the list of my six favorite books. The book is divided into 14 chapters with each chapter covering a separate subject—persuasion, jury selection, opening statement, objections and so on. Each chapter presents a theoretical and practical approach to the particular skill, provides illustrations of practice, and offers practical pointers and checklists.

Accompanying the book are Assignments which take the law student or lawyer through the trial process in the context of criminal and civil cases, both of which arise from a tavern shooting after which the victim dies. 

The book has a companion website aspenadvocacybooks.com that holds demonstration movies. Case files, Actors Guide, and a Teacher’s Manual for mock trials and experiential exercises for either professional development CLEs or law school classes are also on the website. 

TURNING POINTS AT TRIAL: A BOOK REVIEW

Shane Read has done it again; he has written another must-read book for lawyers and law students. Read’s latest book is Turning Points at Trial: Great Lawyers ShareSecrets, Strategies and Skills. This new work is on a par with his prior award winning books Winning at Deposition and Winning at Trial.

Turning Points at Trial delivers exceptional trial strategies and techniques in an effective and highly readable fashion. Shane Read recruited superb trial lawyers to help with his project and set about interviewing them. Each of those talented lawyers was asked to share the trial skills that turned the trial in their client’s favor. Read gathered transcripts from these lawyers and included excerpts from those transcripts in the book to illustrate the particular trial skills under discussion. Also, Read wanted the ideas in the book to stick with the reader, and this determined which cases he included in his book. Read expressed it this way: “Learning trial skills from great lawyers in the context of these fascinating cases makes them easier to learn and more memorable.”

Here is an example of how turning points in trial are discussed in the book. Chapter 8 “Wage Guerrilla Warfare with the Expert” begins with an introduction to the trial lawyer and the case that will be used to illustrate the trial techniques covered in the chapter. The attorney is Robert S. Bennett, whom Read describes as “one of the country’s finest criminal defense attorneys and crisis management lawyers for corporations.” Following a description of Bennett’s background and the prominent clients he has represented, the chapter provides a synopsis of Zapruder v. United States, the case involving an arbitration of the government’s dispute with Zapruder over the appraisal of the film showing the assassination of John F. Kennedy. Next, Read lays out Bennett’s strategies and techniques including: setting up cross-examination in opening statement and cross-examination principles, such as narrowing cross to one or two points – “less is more”, looking for ways to make the expert look weak or not knowledgeable, and how to use the pitch of your voice when asking a question to indicate doubt or demand an agreement. For the rest of the chapter, Read employs excerpts from the transcript of the Zapruder trial to illustrate the strategies and techniques already discussed plus others. Finally, the chapter concludes with a “Chapter Checklist” summarizing: Bennett’s trial strategies; Bennett’s tips for cross-examination; Bennett’s strategies for cross-examination of expert witnesses; Bennett’s insights for hiring expert witnesses; Summary of cross of Macauley (the government’s appraisal expert); Summary of the cross-examination of Staszyn (another government appraisal expert), and Bennett’s advice for closing argument. Read’s utilizes this approach for each chapter and it is both thorough and engaging.

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In addition to covering every aspect of trial work, Turning Points for good measure has chapters on “Depositions” and “Appellate Oral Argument.” Turning Points is Shane Read’s latest engaging masterpiece on trial and appellate advocacy.