Snohomish County – Washington – Full Service Law Firm

The Secret to Trial Mastery: Hard Work

By Joel P. Nichols
Washington State Association for Justice Trial News
June 2013, Vol. 48-10

Trial Guides’ “Masterworks” (1) is a 4-DVD and CD collection of presentations by men billed as “five of the finest trial lawyers of the 20th century.” Ignorant of these courtroom “giants”, I envisioned gleaning from their lectures instant insights I could implement in my own practice. I should have known better. There is nothing quick about it. At 3.75 hours, “Masterworks” takes time to digest. However, as is the case with any successful endeavor, the effort is worth it.

Disc 1 contains two lectures by past AAJ (formerly ATLA) President Theodore “Ted” Koskoff, “What is a Lawyer”, and “Cerebration”. Referencing the likes of Andrew Hamilton, John Adams, Clarence Darrow and Franklin Delano Roosevelt, the first lecture reminds the viewer of the important role lawyers have played in American history, bridging the chasm between the individual and abusive institutions. Koskoff’s second lecture implores us to “cerebrate” (think) about everything we do as lawyers in an effort to eliminate mistakes and maximize results in the courtroom – the theory being that if we have thought about every aspect of a case, then nothing is left to chance come trial. As Koskoff astutely articulates, good cases can be lost and bad ones won, simply by doing, or not doing, the hard work of “cerebration” – of chewing, digesting, and rethinking about everything from client presentation to summation.

Disc 2 takes the viewer back to first-year Torts, with a twist. Oxford- and Yale-educated Rhodes Scholar Thomas F. Lambert, Jr., a Nuremberg trial prosecutor and staunch opponent of tort deform, weaves his encyclopedic knowledge of tort law history into an apologetic advocacy for new theories of recovery. With sardonic delivery akin to comedian Lewis Black, Lambert praises “creativity by lawyers not smart enough to know otherwise.” Listening to Lambert makes even the most cynical among us believe we have fighting chances, if only we are willing to take them.

Disk 3 compares two lawyers’ different approaches to asking juries to award damages on the same set of tough facts: an aspiring young actress with contributory negligence, questionable lost income, and skill at pretending. Past AAJ president Marvin Lewis employs Gerry Spence-like empathy for the injured, animating the life-altering damage caused by the wrongdoer. By contrast, but certainly no less compelling, trial veteran Moe Levine demonstrates his mastery of persuasive speaking tools such as dramatic pauses, rhetorical questions, and simple truths. Both approaches, though vastly different, propel the listener to an understanding of the client’s dignity and right to just compensation for her injuries.

Disk 4 concludes the collection with a compelling lecture by veteran criminal defense and personal injury trial lawyer Stanley Preiser on the psychology of trial. Although originally presented 35 years ago, Preiser’s message resonates toady: trial lawyers must accept the truth that their cases and clients are unfashionable with average jurors. Lawyers who accept this basic premise, Preiser proffers, will win more often and achieve higher verdicts by distinguishing their cases from jurors’ deeply held beliefs about people who file lawsuits and the lawyers who represent them. Preiser declares jurors must 1) accept and believe the trial lawyer’s theory of the case, 2) understand the facts, the law, and the consequences of their decisions, and, most importantly, 3) remember the evidence.

Citing studies of juror psychology, Preiser preaches blending “telling” with “showing” to maximize retention. These maxims are a must, Preiser argues, to overcome the bias against large awards in civil cases or “not guilty” verdicts in criminal cases. Preiser explains courtroom techniques to maximize credibility with judges and jurors. Then, Preiser submits, the trial lawyer speaks with the conviction of a trusted authority figure, giving jurors the courage to do what is right in the face of preconditioned prejudices.

Although hosted by the first female President of AAJ, Roxanne Barton Conlin, this collection of stalwart litigators consists of all white men. This is likely more a product of the age of these recordings than it is intentional oversight. As we reflect on the 150th anniversary of the Emancipation Proclamation, one would hope the next cadre of “trial masters” includes a more diverse roster. Still, the “masters” in this collection share techniques and insights surprisingly relevant to current day trial practice. “Masterworks” is a worthwhile addition to your library if, like a favorite meal, you are willing to spend the time to taste, chew and digest it – and to cerebrate.

(1) Trial Guides, LLC (2011), an iWin DVD (4 DVDVs & MP3s, 3.75 Hours, $245), http://www.trialguides.com/media/

Joel P. Nichols
Partner