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A BOOK REVIEW

By William S. Bailey

of

THE TRIAL LAWYER'S ART

By Sam Schrager, Temple University Press

245 pages (1999)

The last 15 years has seen a proliferation of instructional offerings on the "How to" of trial practice. While nearly all such books have some merit, the approach has become all too standard -- courtroom cookie cutters on the shelf. Until now, the "Know it when we see it" skill dimension, the strategic and verbal art of trial advocacy, has not been captured in a trade publication. That has all changed with Sam Schrager's book, The Trial Lawyer's Art . While an academic, Mr. Schrager writes in a remarkably lucid and insightful manner, unburdened by the usual obscure scholarly jargon. In a sense, he takes on the role of a play-by-play announcer, extracting and analyzing pluses and minuses from live action in the courtroom as a case unfolds. Mr. Schrager makes you feel the heat, urgency and survivalist "kill or be killed" reality of a trial lawyer's life.

The working premise of the book is well-founded:

Like all professional storytellers, lawyers shrewdly orchestrate myriad elements to make a convincing story . . . Justice in American Society is pursued through competitive performance [and] . . . to discover truth, in public life as in our imaginations, we rely on art.

Unlike other trial practice books, this one is a fun read. With a journalist's keen eye for detail and his own considerable ability as a storyteller, Mr. Schrager sits in the catbird seat of the criminal courts of Philadelphia and describes the ongoing battles for the hearts and minds of the jurors. He asks constantly as a case progresses, which lawyer created "moments" in the testimony and argument that make it likely that one side will win and the other will lose? In so doing, the book emphasizes the consequences of the choices in theme, style and technique made by an attorney:

The approaches are grounded in the performance style the lawyer forms out of his or her personality, past experience, habits of thinking, and manner of being in the world.

In the end, Mr. Schrager tells you what worked for the attorneys he observes, as well as what didn't, and why. He's usually right on.

The author understands the critical facet of chemistry between a jury and an attorney and the fact that jurors must depend on appearances in the courtroom created by the attorneys:

Because the truth of the events being contested in court can't be apprehended directly, jurors depend on appearances. The importance of finding the truth makes them more dependent on appearances.

In orchestrating these appearances of testimony, evidence and argument that will create the view of reality favorable to their clients, trial lawyers must integrate heart, mind and reason. He concludes that:

The master trial lawyers are the ones best able to realize this integration . . . these abilities are not, ultimately, verbal or cognitive. They are qualities of mindfulness, outward manifestations of inward grace.

This is a book that all trial lawyers should read. The only caveat in this regard is that the book is not as helpful as it might be to civil practitioners, in that its principal focus is on criminal proceedings. However, for trial lawyers of all callings, it supplies a more sophisticated analysis of the dynamics of winning and losing, the interplay between substance and style, illusion and reality. The awareness cultivated by the book cannot help but give any trial lawyer a more informed view of strategy, tactics and theme choice.

The author has an appropriately respectful tone for who trial lawyers are as people and how this combines with the intense and exacting demands of their craft. Yet, his obvious respect for the profession never causes him to lose his objectivity and become a groupie. In the end, the book is better for the fact that he is an outsider to the profession, because it allows him to take an uncumbered "real life" view of what he sees evolving before him in the courtroom.

This book is a start in a new and better direction -- a view from the trenches that breeds an understanding of and respect for what it is that trial lawyers are and do. Hopefully it will lead to even more thoughtful works in this vein in the future, both by this author and others.

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