The Trial Lawyer Offers Both Advice and Challenge

Imagine you could take an experienced trial partner with you wherever you went. That is the premise of The Trial Lawyer: What It Takes to Win by David Berg. The book, now in its second edition, provides advice on every stage of trial work.

Berg draws on his 50 years of experience in trying virtually every kind of civil and criminal case. Three years out of law school he won a case before the U.S. Supreme Court. His very first civil trial, in which he represented the survivors of a woman killed in a train crash, resulted in a $12.5 million verdict. A series of eye-popping verdicts and settlements followed, including a $425 million settlement from Marriott Corporation in 2000.

Berg also works for the defense. He was the first lawyer to use the battered woman defense in Texas, winning an acquittal of a woman accused of murdering her husband. His book recounts his defense in high-profile civil cases. But Berg also freely draws on the experience of his friend Joe Jamail, who won a $10.53 billion verdict for Pennzoil against Texaco in 1985.

That wide and deep experience provides the foundation for this book. The stories he tells are the book’s heart. Berg tells us that jurors pick up on the relationship between lawyer and client. As support, he contrasts the relationship between Jamail, who represented Pennzoil, and its chairman Hugh Liedke to the relationship that Texaco’s lead counsel had with its executives. Joe Jamail was Liedke’s drinking buddy, and they traveled the world together. Jamail was fighting for someone he cared about. That bond, Berg suggests, sent a powerful message to the jury.

On the other side of the aisle, Texaco’s lead attorney had never represented the company before. He had difficulty getting its witnesses to meet with him before testifying and had to fight in-house counsel on trial strategy. Berg calls this a violation of the trial lawyer’s “one riot, one ranger” rule that the trial lawyer must be in charge. The jury’s multibillion-dollar verdict, Berg concludes, was a tribute to the different relationships the clients had with their counsel.

Stories like these infuse this book, and they transform what would be helpful but bland advice into memorable anecdotes. Berg is showing off his trial skills here. He knows that we’ll forget most of the rules he’s written down after we’ve finished this 514-page book. But the stories will stick with us.

Berg implores civil lawyers to personally investigate cases as criminal lawyers do and not just to rely on formal discovery. He urges us to visit the scene and the city and to visit the office of our client. Because he has visited the scene of the accident or the boardroom where the merger took place, Berg knows what people saw, heard, and smelled. This helps him question witnesses and relate to juries. Berg peppers his book with exhibits from the Pennzoil case and others that support his theme. He shows us the demonstrative graphic that Pennzoil used at trial to show the jury its damages; the Memorandum of Agreement in the Pennzoil case, complete with handwritten notes; and a copy of the bank deposit slip showing the $3 billion payment that finally settled that lawsuit in 1988.

He is a big believer in mock trials and focus groups. But he suggests something counterintuitive: In focus groups, tip the scales against your client to determine the most persuasive evidence your side has. He believes that the most powerful trial themes come from listening to the panelists after the mock trial is over.

The book is organized into detailed chapters. The table of contents runs for 17 pages, starting with the elements of persuasion, running through trial, and ending with the closing argument. Each chapter begins with an outline, too. That organization makes the book easy to mine for the litigator looking for advice on specific issues, whether it’s voir dire or cross-examining an expert witness. Given the book’s prodigious length, most readers will use these tools to hunt for particular advice.

One of the joys of this book is how Berg flouts prevailing winds and conventional wisdom. His time-consuming approach to pretrial investigation sails against the headwinds of limited litigation budgets. He criticizes the trend away from jury trials and toward summary judgment that began in the 1980s. He even points out that the old chestnut that 80 percent of jurors make up their minds during opening arguments is right on message but is not the product of real data.

While the length of Berg’s experience provides The Trial Lawyer’s depth, there are moments when we’re reminded that times have changed. He eschews expensive graphics and PowerPoint presentations, preferring blowups from Kinko’s for $25. But Kinko’s has not used that name since 2008, the year the iPhone 3 came out. We’ve covered a lot of technological ground since then, and the proof is in every juror’s pocket.

Even so, adapting to change is an underlying subtext to Berg’s book. He was successful both before the jury trial became an endangered species and after it did. No lawyer could remain effective for so long without displaying agility in the face of change. Some readers will scour Berg’s book for advice on specific issues. Others will see Berg’s adaptability as a comfort and a challenge. It’s both. But thankfully, we’re not alone. We can bring The Trial Lawyer with us.

Andrew J. Kennedy is a team editor for Litigation News.

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