John G. Browning 2018-02-27 18:36:53
A Mission of Bettering Trial Lawyers Books on trial advocacy generally fall into one of two categories: pedantic tomes heavy on the technical aspects that are usually written by professors or the more entertaining volumes written by trial warhorses that read more like a collection of war stories loosely strung together. But in October 2017, the University of North Texas Press published On the Jury Trial: Principles and Practices for Effective Advocacy, a 254- page primer in trying cases engagingly yet authoritatively written by nationally renowned trial lawyer and Winston & Strawn Dallas office managing partner Thomas M. Melsheimer and Judge Craig Smith, of Dallas County’s 192nd District Court. Melsheimer’s courtroom experience includes representing Dallas Mavericks owner Mark Cuban against foes ranging from the Security and Exchange Commission to Ross Perot Jr. Judge Smith was a successful plaintiffs attorney before his election to the bench in 2006. With its blend of trial lawyer smarts and judicial insight, the book is a must-have for any trial lawyer or anyone aspiring to be one. As Melsheimer puts it, “Getting jury trial experience is very difficult these days. I frequently notice lawyers exaggerating or outright misrepresenting their trial experience with clients or other lawyers. This book is not a substitute for actually trying a case, but we believe it will help any lawyer learn how to better try one when the opportunity arises.” The Texas Bar Journal recently interviewed the authors, who talked about teaching points, opening statements, and social media’s impact on trying cases. There have been many books on trial advocacy. What sets this one apart and what made you decide to write it? TM & CS: We wanted something that was practical and filled with real-world examples that would aid a young lawyer or a more seasoned one. We also wanted something that could be picked up and digested relatively quickly. You draw upon real-world examples, such as the SEC v. Mark Cuban trial, to illustrate your insights. Was it difficult to decide what to use and what not to? TM & CS: It was hard to decide what to use because we had a lot of examples from which to choose. We wanted to give some less than ideal examples so we could be gently critical where appropriate. Sometimes seeing how something is done wrong can help you do it right. You also make use of great tips, insights, and examples from other great trial lawyers, such as Steve Susman and Dick Sayles. What made a given example stand out to you? TM & CS: An example stood out to us when it made a good teaching point. It helped if the example was funny or otherwise memorable. You both have demanding schedules. How long did the book take to write and what was your writing process like? TM & CS: It took a long time. We worked on it off and on over a period of about two years. Your book analyzes every stage of the jury trial, from opening statement through closing argument and jury charge. But you spend particular care with the chapter on opening statement. Is this a reflection of the importance you attribute to the opening? TM & CS: The opening statement is, quite simply, the most important part of the case, especially for a trial of less than a week. The opening statement frames all the issues. Closing arguments often get more play, but it’s hard to win a case without a very effective opening. Discuss the importance for you of “passion” and “reduction.” TM & CS: A trial lawyer has to evince a belief in the righteousness of the case. You have to seem to believe what you are saying. That is what passion is about to us. You can’t provoke a belief in others unless they sense you have the same belief. Reduction is the ability to reduce the case to a sentence or two. If you can’t do that, you haven’t sufficiently simplified the issues for the jury. How has the instantaneous news cycle and the information overload of digital media impacted trying cases? TM & CS: We think the news cycle, now driven by Twitter and other social media, has made trying cases more challenging. Everyone’s attention span is shorter. You have to capture the jury’s attention and keep it, and there is a lot more competition for that attention, even in a trial. Everyone uses fancy graphics, for example. It’s almost like an arms race for who can put on the most visually appealing case. You close the book with both a judge’s viewpoint and a trial lawyer’s viewpoint. Judge, explain for us why you chose to touch upon the importance to a judge of a trial lawyer’s integrity and civility? CS: As a trial lawyer, I thought I knew what it meant to be a judge, but it turns out I didn’t. I wanted to share the judge’s perspective because I think the trial lawyer is so caught up in her own argument that she forgets that the judge is dealing with hundreds or even thousands of cases. The trial judge has to make a lot of decisions, and good trial judges want to make those decisions without unnecessary delay. Is what you are writing in a brief or arguing at a hearing going to help the judge make the decision you want? A judge will often, consciously or unconsciously, look to the lawyer’s credibility and reputation, especially when wrestling with a vexing legal issue. Can the judge trust the lawyer? Is she a straight shooter? A lawyer’s reputation is her most valuable asset in the short term and especially the long term. Tom, you touch upon embracing the unconventional. Tell us about that. TM: I tell my young lawyers that the book of aphorisms contains a lot of conflicting advice: Look before you leap, but he who hesitates is lost. Sometimes, doing what has worked before will not work again. We have to constantly road test and be willing to reinvent our techniques, our approaches, and even our styles to some degree. That said, we also have to understand why a particular approach didn’t work and be willing to try it again in a different circumstance. Perhaps as important as the book’s mission of bettering trial lawyers is its potential impact on future generations of lawyers: the authors have donated all of the book’s net proceeds to UNT Dallas College of Law. JOHN G. BROWNING is a partner in Passman & Jones in Dallas, where he handles commercial litigation, employment, health care, and personal injury defense matters in state and federal courts. He is an award-winning legal journalist for his syndicated column, “Legally Speaking,” and is the author of the Social Media and Litigation Practice Guide and a forthcoming casebook on social media and the law. He is an adjunct professor at SMU Dedman School of Law.
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