September 01, 2018 Feature

The Trial Lawyer : What It Takes to Win

An examination of the tactics used in two winning cases.

David Berg

Download a printable PDF of this article.

“At the end of your life you will never regret not having passed one more test, not winning one more verdict, not closing one more deal.”

—Barbara Bush, commencement address Wellesley College, 1990

Well, Barbara was wrong about that. With apologies to the late First Lady, even now, fighting against the ineluctable tide, I find myself eager to put aside the paperwork, tee it up, and try to win one more verdict.

When I began practicing, during what some now call the Golden Age of Jury Trials, I would station myself in the green-tiled cafeteria of the Harris County Criminal Courthouse, just to bump into Richard “Racehorse” Haynes, who was then in the process of becoming the most famous lawyer in America.

I wanted to be as famous as he and just as good in the courtroom. I wore cowboy boots, as did he, and a Stetson to the courthouse, just as he did. (One glance, and he said, “Berg, you look like a thumbtack”; I never wore a cowboy hat, or even a baseball cap, again.)

My law license opened doors I never dreamed of, most notably those of the Supreme Court, where I argued and won a case when I was 28, less than three years into practice. I have hung around great lawyers and learned much that I have put to use in the courtroom. I spent nearly two years reading most of the 25,000-page transcript of the 1985 Pennzoil v. Texaco case and studying how the late Joe Jamail, a man possessed of extraordinary trial skills, won a $10.53 billion verdict.

In 2017, at age 75, I won a jury trial, my skills further elevated by reading about Jamail’s. What a great profession!

I often find myself thinking about those early days of practice, when I drove from county to county over dusty Texas roads, trying cases in aging state courthouses and then in gleaming federal courts. Years passed. I started trying civil cases. And now I find comfort in the fact that I have tried virtually every kind of civil and criminal case there is, and that I, as you, have helped many people, all because of this license and the life it opened for me.

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