Litigation at 50—Decades of Teaching Trial Advocacy

Not only was law school no fun, but you didn’t learn anything—of value. Sure, you kinda knew about contracts, real property, secured transactions—whatever they are. And don’t forget the Constitution, its many amendments, and good old Miranda and his warnings. All this stuff is meaningful if you want to live in the artificial world of academia with its sharp minds, endless debates, and protests about everything.

But I wasn’t that bright and wanted to be a litigator, really a trial lawyer, which law school considered just slightly less repugnant than joining the Gambino crime family. But I didn’t care. I learned to talk at a very young age, argued daily with pals over whether I was safe or out, and honed my persuasive powers trying to convince my defiant mother that I didn’t have to finish my potatoes even though millions of starving kids “would die to eat those.”

I knew I had to learn to be a lawyer by myself, which is how I learned everything, since in my Brooklyn, “nobody’s giving you nothin’.” On an occasional afternoon, I interned with a state trial judge; and one summer, I volunteered with Brooklyn Legal Services and was exposed to the chaos and cruelty of landlord-tenant court. But those minimal experiences only confirmed my desire to stand up in court and scream, “Objection,” not that I was ever taught to do this.

That I graduated without ever questioning a witness was appropriate if I were specializing in mind-numbing estate, tax, or corporate law. The only time I saw a trial was when Judge Jack B. Weinstein, who was my evidence professor and who wrote the seminal treatise, canceled class and told us to go to his courtroom in the Eastern District of New York to observe a truck hijacking criminal case.

Right out of Goodfellas, the defendants, however, were more terrifying than Pesci, DeNiro, and Liotta. The driver was on the stand, extremely nervous and very forgetful. The prosecutor was Ed McDonald, a member of the Federal Organized Crime Strike Force, who played himself in Goodfellas. It was exciting and entertaining, though being from Brooklyn, we all knew people “connected” and knew never to violate the dictum “Whatever you say, say nothing.”

When I started at Speiser & Krause, a litigation firm, I figured they would teach me how to qualify an expert, cross a witness, enthrall the jury with my brilliance. But I was too busy doing research, learning to write motions, memos of law, with case books and Shepard’s piled on my desk, before computers became our minds.

I joined bar associations, read articles, listened to tapes in my car, all to become a real lawyer. Finally, the firm sent me to a trial practice course where we learned to open, introduce evidence, make a closing argument. At night, maybe two days a week for a month. Not great, but it was something. And I wanted more.

The firm thought the Sysko case was a dog, so I was tossed the file for trial. Fine with me since I was desperate to learn and knew that life was mostly sweat and pain, except for Sunday afternoons of laughter and song. I had no idea what I was doing, but I convinced the jury that the property owner and operator were negligent for causing Mrs. Sysko’s fall as she left the elevator. The $75,000 award—against an offer of $7,500—was reduced to $50,000 for comparative negligence. I was a hero, and I told everyone that I was the greatest lawyer in the universe. Really though, the judge was kind, Mrs. Sysko was sympathetic, and, for once, I was a touch lucky. Questions to my expert like “Doctor, what is your profession?” needed some polish.

When’s my next trial? I demanded. But since the firm didn’t have another lousy case, I was back to tedious research and motion practice. One afternoon, an older lawyer tossed me a copy of Litigation. “Read it.” I groaned—not another bar journal filled with legalese that mirrored the Marx Brothers in A Night at the Opera: “The party of the first part shall be known in this contract as the party of the first part.”

But Litigation, published by the Section of Litigation of the ABA, was filled with practical advice about real trials written by real trial lawyers. Not a footnote in sight and written in crisp, clear sentences. Lawyers and good writing are oxymorons, I always thought. Yet, hearsay and the intricacies of evidence were explained simply and coherently, as was credibility, strategy, use of depositions, and how to win tons of money.

Since I had worked at and written for The New York Times, I applied to be an editor of Litigation. I was accepted in 1982 and never left. Wasn’t always easy editing the turgid prose of big law partners who thought their every word more infallible than when the pope speaks ex cathedra on issues of faith and morals. But I was only threatened with a libel suit once, and the editors, mostly ex-journalists, were professional and dedicated. Articles were solicited from accomplished lawyers who knew the difference between a noun and verb, who wrote about their trials, and not just the ones they won. Loads of work, but more fun.

Now 50 long years later, Litigation still publishes clever, effective articles on the same issues that we dealt with when my hair was thick and dark. But different, of course, because our work has changed significantly since books were paper and trials ubiquitous. And the best stuff Litigation published—other than my articles—was Jim McElhaney’s Trial Notebook, a column that ran in every issue from our very first issue in winter 1975 to winter 2006.

Jim, talented and hilarious, was a gifted entertainer who never passed a piano without sitting down to play and sing. In engaging stories, anecdotes, and dialogue, Jim wrote about all aspects of trial, from the qualities of winners to losing arguments. Along the way, he provided sage advice on jury selection, trial prep, openings, direct and cross-exams, witnesses, experts . . . really everything you need to know about litigating a case.

For many years, Jim was a professor of trial practice and advocacy at Case Western Reserve University School of Law, but his real talent was demonstrating that trial practice was a complex skill. Through his articles and the many requests for their reproduction at bar lectures and continuing legal education courses, Jim made our profession realize that trying a simple auto case demanded more ability, intelligence, and sensitivity than analyzing Supreme Court decisions. It was Jim, among others, who established that trial practice is not an innate gift, infused in our DNA when we passed the bar, but an essential ability that could and should be learned.

“Stealing other people’s ideas and acknowledging them is called scholarship,” Jim wrote. But it was Jim—through his characters such as Angus, Beth Golden, Flash Magruder, Judge Wallop, and many others, and their discussions about evasive witnesses, effective objections, or humanizing the client—who provided suggestions on how to deal with the many issues that arise in every trial.

Questions and answers of witnesses are quoted to illustrate “Nine Ways to Cross-Examine an Expert,” for example. It was Angus, experienced and wise, listing the goals of an opening statement, who noted that the usual bromides like “Nothing I say is evidence” waste time and do more harm than good. Jim’s articles questioned traditional assumptions, often debunking what had been held as sacred. He illustrated ways to confront the adverse witness, one who can’t remember anything but his name, or the expert who has spent more time in a courtroom than most judges.

For more than 30 years, Jim wrote in efficient and entertaining words, often quoting the Bible, Mark Twain, Poor Richard’s Almanac, or others. He was never pedantic, and he invited us to find our own solutions given that every trial is unique and every trial lawyer different—something I learned the hard way. He wrote The Theory of the Case, Teaching Pigs to Sing, Humanizing the Client, The Big Ideas, Dealing with Dirty Tricks, Fighting the Judge, and so many more. Ninety such articles are compiled in McElhaney’s Trial Notebook (4th ed., ABA 2006). Still relevant nearly 20 years after Jim’s last column. You should read it and then reread it.

Jim, who died in 2017, was a friend, and I saw him once or twice teach trial advocacy at bar associations to litigators. Somehow, the Bay Ridge Lawyers, a Brooklyn neighborhood bar, arranged for Jim to speak at their monthly meeting. I’m past president of this wonderful group, but its members are mostly storefront lawyers specializing in real estate, estate, and family law. Only a handful are litigators, handling disputes concerning small businesses, which rarely go to trial. I was skeptical about Jim’s ability to connect with those who will never try a case, but I was wrong. Jim’s words, stories, and humor enthralled and resonated, because what he presented applied not only to the courtroom but to all lawyers in every area of law.

Fifty years ago, visionaries Charlie Wilson and Doug Connah founded Litigation, which has been published quarterly ever since. The articles, interviews, and opinions haven’t changed history, but I know that this journal and Jim McElhaney have made us better litigators, better trial lawyers.

They taught us to value the expertise of those who try the slip-and-falls, the fender-benders that often clog our courts. These courthouse regulars don’t often sit in corner offices with eager associates scurrying about, but their abilities, mostly hidden in shabby state courtrooms, are as valued as those who argue appeals in our majestic federal courts. Different, of course, but convincing six ordinary citizens may take more skill than persuading 12 black-robed justices.