The Trial Lawyer’s Library

When I began my career as a trial lawyer, I had no idea what books I was supposed to read.  There were hundreds of thousands of books in my law school library, but I wasn’t sure which ones were most important to developing my trial advocacy skills.  I read thousands of thousands of pages, looking for the best trial advocacy tips and techniques, and wasted a lot of time, energy, and money in the process.

Hopefully, this list will help you shortcut the process that I went through. In this article, you’ll find my recommendations for the books that a trial lawyer should read and digest.   You’ll note that I didn’t include books on trial advocacy, and that was done on purpose.  There are hundreds of trial advocacy books worth reading (as someone who dedicates yourself to improving your trial advocacy skills, you probably already have at least a dozen or more books on the subject, right?).  Instead, these books are intended to expand your horizons, maximize skills that weren’t developed in law school, and help you get the most out of your persuasive skills.

Influence, by Robert Cialdini
Want to know how to influence jurors?  This is the definitive text on the subject.  Includes persuasive techniques to improve your entire case presentation, from pre-trial preparations to closing arguments, as well as techniques for improving your pre-trial negotiations.

On Writing, by Stephen King
Great tips for telling stories and presenting more effective opening statements.  Replace the word “reader” with “juror” and you’ll feel like the book was written specifically for trial lawyers.

Remember Everything You Read: The Evelyn Wood 7-Day Speed Reading & Learning Program
You read thousands and thousands of pages while preparing for trial — this will help you do it faster and remember more of what you read!

Think and Grow Rich, by Napoleon Hill
The entire book should be mandatory reading for everyone who enters the business world, but there are great lessons for trial lawyers, too.  Focus on Ch. 1 (Desire) to see what it takes to become a great trial lawyer, and Ch. 9 (Power of the Master Mind) for assistance improving your trial advocacy skills.

How to Win Friends and Influence People, by Dale Carnegie
If you intend to make a career out of persuading jurors, you probably already have a dog-eared copy of this book on your bookshelf.  You’ll learn more about pre-trial negotiations and trial advocacy from this book than you did from your entire law school education.

The Art of War, by Sun Tzu
If you believe that trials are war and the courtroom is your battlefield, this book will help you prepare your battle plan for success.

The War of Art, by Steven Pressfield
Each morning, as soon as you wake up, “Resistance” attempts to keep you from being the best courtroom advocate that you can be.  This book shows you how to break past “Resistance” and excel at your profession.

Man’s Search for Meaning, by Viktor Frankl
Losing a trial is not the end of the world.  This book will help you get through the rough patches, especially if you lose a case, lose a client, or get dissuaded with the practice of law.

Quick and Easy Way to Effective Speaking, by Dale Carnegie
You speak for a living, so why not improve your presentation skills?   Loaded with great tips for improving your presentations to judges and jurors alike.

The Memory Book, by Harry Lorayne
If the correct objection or impeachment fact isn’t instantly available to you during trial, it’s worthless.  This book will help you improve your memory so that you can be more effective during trial.

The New Way Things Work, by David Macauley
An effective method of getting your ideas across involves the use of diagrams or images.   In this book, David Macauley shows you how hundreds of devices work.   With a combination of words and images, he makes difficult concepts easy to understand.  Using the same techniques, you can help your jurors understand complex issues and facts in your case.

Aesop’s Fables, by Aesop
This book contains dozens of valuable themes for use in your next trial.   By weaving these fables into your closing argument, you’ll help jurors immediately understand the underlying values of your arguments and see why your client deserves to win.

I’m sure that there are dozens of other useful books that I overlooked.  If you know of a book that other trial lawyers will find valuable, please take a moment to post a comment including your recommendation.

Opening statement: Are you promising too much?

“Your closest exit may not be the one in front of you.”
“Your seat is a flotation device.”
“If we start hurtling to our deaths, oxygen masks will descend from the ceiling…”

If you’ve flown more than once, you’ve probably ignored this exact same message, haven’t you?  It’s the standard safety video they play before your plane taxies down the runway.  All of these videos sound pretty much the same, and I’d heard the instructions hundreds of times.  But, much to my surprise, this time I was actually paying attention to the video.

I wasn’t paying attention because I needed a refresher in safety instruction.  With as many miles as I’ve flown, I can probably recite those safety instructions word-for-word.  No, I was watching it for a different reason.  But before I tell you why I was paying attention to the video, let me give you a little background history…

This was my fourth flight in less than three days.  Out of my four flights, every single plane had been late.  The couple sitting in front of me hadn’t had a single plane depart or arrive on time, either.  The guy sitting next to me?  He’d been on four planes in two days, every one of his flights had been late, and his last flight had been completely cancelled.  They’d given him two options: wait until the next day to fly home, or fly to an airport 140 miles away from home and drive back.  Collectively, our flying experiences had been miserable.

This final flight was no exception.

We’d boarded the plane like cattle, squeezing ourselves into seats designed to comfortably accommodate pygmies or small children.  Our flight was booked solid, so the overhead bins were jammed to overflowing.  Although I was seated in row 11, my bag was halfway to the back of the plane.  We’d been scheduled to leave at 9:35 PM, but here we were, over an hour later, still sitting on the tarmac and waiting to depart.

Which brings me to the reason why I was paying attention to their safety video.

In addition to telling us the safety instructions, the video was basically serving as a promotional piece to tell us how wonderful the airline was.  The video was filled with smiling faces, and every passenger depicted in the video seemed to have plenty of legroom.  They showed a plane with enough space in the overhead bins to place all of your carryon luggage and a spare briefcase or two.  Finally, they showed a quick view of their departure board, where every plane seemed scheduled to leave on time.

I turned to a woman seated to my left and commented, “What airline are they flying on?  Lots of legroom, plenty of overhead space, and the planes leave on time…  Can I switch to that airline?!?”  (In all fairness, I won’t mention the name of the airline that I was traveling with, but here’s a clue:  The majority of their flights are in U.S. Air space…)

The problem was that my experience didn’t measure up to their advertised experience.  It wasn’t even close.  (Which isn’t uncommon…  When was the last time you had a fast food burger that looked like the one in the advertisement?)

Don’t make the same mistake with your jury.

In your opening statement, you’re presenting them an image of what they should expect to experience during your trial.  But many lawyers seem tempted to oversell their cases during opening statements.  They talk about evidence that will “probably” get admitted, about statements they’re “pretty sure” will be be admissible, and develop theories of their cases that will “likely” come to fruition.

Don’t fall into the trap of overselling your case during opening statement.  What happens when your case doesn’t live up to the image you created?  Even though you present a legally sufficient and persuasive case, when you hold yourself up to a higher standard, that’s what the jury will expect.  If you don’t attain that standard, they won’t come back with a verdict in your favor, even if that standard is higher than what the law requires.

For example, imagine a criminal trial where the defense attorney promises to prove his client is “innocent.”  Why do that?  He doesn’t need to prove the guy’s innocent, he just needs to show why the government is unable to prove their case beyond a reasonable doubt.  When he assumes the extra burden of proving that his client is innocent, the jury will hold him and his case to that higher standard.  If he can’t prove the defendant is innocent (even if he proves that there’s a reasonable doubt in the case) his jury may vote “guilty” because they think he’s failed to prove his case.

Don’t make it harder to prove your case than it needs to be.  You’re better off underselling your opening statement and letting the jury discover your case is actually stronger than they thought it would be during opening statement. Unlike the airline message, where the actual experience didn’t live up to the hype, you can’t afford to present an image you can’t live up to or make promises that you can’t keep during trial.  Present a strong opening statement, but then overdeliver on your promises during your case in chief.  When your jurors discover that your case has exceeded their expectations, they’ll return with the only possible verdict — the verdict that favors your client.

Trial Lawyers – Know Your Audience!

One of the first and most important rules of effective advocacy is this: “Know Your Audience.”  Before you walk into any advocacy situation, you should be able to answer three important questions:

1. Who are you speaking to?

2. Who are you trying to persuade?

3. Why?

Often, there are several audiences (not all of whom are physically in the courtroom): The judge, the jury, opposing counsel, your client, the opposing party, the appellate record, the press, yourself, the local bar, the general public, family or friends, your law partners, courtroom observers, etc.

But which audience will you be addressing?  Which audience do you need to persuade?  Many lawyers make the mistake of not understanding which audience they’re supposed to be addressing.  Here are a few guidelines to help you evaluate your audience and ensure that you do your best to persuade them.

Learn as much as you can (ethically) about your audience. Google them.  MySpace.  Facebook.  Talk to colleagues.  Read the judge’s previous opinions.  Know the appellate court’s composition and the direction they’ve been heading.

Look directly at the person you’re trying to persuade. Don’t make the mistake of talking to your notes or talking to your flipchart.  Make direct eye-contact with whoever you need to persuade.  If the eyes are the “window to the soul,” you don’t want to shut the blinds.

Remember why you’re there. Don’t make the mistake of arguing to impress your client, so that it looks like you’ve put on a “good show.”  You’re there to win.  If that means you need to be understated, be understated.  If that means you shouldn’t cross-examine a witness, say “No questions.”  If that means you need to let your partner handle a witness, sit silently and let him conduct the cross.  At the end of the day, your client doesn’t want a show — they want to win.

Don’t argue to the press. When the cameras enter the courtroom, your ego can push aside your common sense. There’s nothing wrong with wanting your moment in the spotlight, but don’t let it happen at the detriment of your client’s wellbeing.  If you need to argue to the judge or the jury, that’s who you need to address.  Don’t fall into the trap of talking to the cameras or acting larger than life so that it will play well on the evening news.  Keep your eyes and argument focused on the decision-maker in the case. (“Mr. Wilcox, can you speak up?  The TV cameras can’t capture what you’re saying?”  “With all due respect, your Honor, I don’t care — I’m not talking to them.  I’m talking to these folks in the jury box, and they can hear me just fine.”)

Use language that includes everyone in your argument. For example, I like football analogies…  but not everyone I’m trying to persuade enjoys (or understands) them.  That doesn’t mean I completely exclude them from my argument, it just means that I don’t exclusively depend upon them.  I find other arguments to include, so that there’s something for everyone to use.

Don’t make an ASS out of U and ME. We don’t all rely upon the same assumptions, so make sure you understand which assumptions your audience will depend upon when making their decisions.  It’s dangerous to assume that your audience relies upon the same assumptions that you do.  Are you assuming that the judge knows all the details and procedural history of the case?  Are you assuming that the jurors know what an “element” is?  Are you assuming they know who the “plaintiff” is?  Don’t assume they do.

Envision the conversations they’ll have when the case is over. What groups do your audience members belong to?  How strong an influence do those groups play upon the person’s decision making?  Will they face social ostracism if they decide the case a particular way?  After the trial is over, the jurors will talk to their friends and family about what happened.  They’ll have to explain their decision.  Envision that discussion, and then imagine what arguments you can you give them  so they can defend their decision.

Know their reasons for deciding. What needs does your audience have?  A judge wants to reach a fair decision; to be upheld on appeal; to follow the law.  The jurors want to do their duty, to reach the right verdict, and to protect their preconceived thoughts and beliefs.  The audience will change their opinion fortheir reasons, never for your reasons.  They need to act consistently with their beliefs and attitudes.  They don’t want to appear incongruent or intellectually dishonest.  Give them a reason to decide in your client’s favor that also upholds their personal belief system, and they’ll be more likely to vote for you than if they have to jump through loops of logic to justify their decision.