Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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All the Justice Money Can Buy is Snigdha Prakash's book about a Mark Lanier trial in the Vioxx litigation against Merck. I stumbled across the book on Amazon and decided to give it a read.

Lanier is a high-profile trial lawyer from Texas who has a very successful record. The book contains a quote that Lanier is one of the top 2–3 trial lawyers in the country—at worse. It is hard to argue with that statement. I will not try.  

One of the things that Lanier is well known for is developing his own unique courtroom style that heavily incorporates PowerPoint presentations. Prakash details how Lanier backs up his groundbreaking use of PowerPoint in trial with a stellar support team, meticulous planning, detailed organization and tireless work. It's not unusual for Lanier to wake up at 1:30 a.m. to prepare for the day's trial testimony.

But Lanier has a lot of help. I can't imagine how nice it would be to have my own in-house jury consultant, an aid de camp who is an outstanding attorney and a team of support attorneys and staff. It sounds a bit like a military general going to trial.   

Here is the book's Amazon description:

Mark Lanier knew he was facing an opponent willing to break every rule in the book, and each part of his case had to go just right for him to win. He had done it twice before. Could he do it again?

All the Justice Money Can Buy is the true-life story of a courtroom showdown between the man many consider the best trial lawyer of his generation and one of the nation’s richest and most-respected corporations.

Journalist Snigdha Prakash is embedded with the plaintiffs’ team for the seven-week trial, and takes us into the trenches of the tough—and dirty—battle between corporate interests and the individual that plays out in the courts. From early mornings when Lanier works in his hotel suite, to the daily post-mortems after court, and late nights in the plaintiffs’ “war room,” Prakash shadows Lanier and his team.

With its bird’s-eye view of the strategic thinking and meticulous planning that undergird Lanier’s seemingly unrehearsed performances in court, and of the well-oiled machine of lawyers and assistants that backs his every move, All the Justice Money Can Buy is a fast-paced, often funny journey behind the front-lines of a high-stakes, 21st century legal trial. Along the way, Prakash renders a piercing portrait of the challenges that await those who would take on corporate interests.

Part corporate expose´ and part legal thriller, All the Justice Money Can Buy is a gripping—and topical—read for our scandal-plagued times.

The trial was a New Jersey state court Vioxx trial on behalf of two plaintiffs. Lanier represented one of the plaintiffs and took the lead in proving liability in the trial, which bifurcated Merck's liability for failure to warn and causation. That portion of the trial lasted two months.

Despite Lanier's masterful work at trial, the jury found against Lanier's client on liability. Lanier did not participate in the second phase of the trial, which resulted in a $47.5 million verdict for the remaining plaintiff.   

 The book is not a play-by-play of the entire trial. Instead, it focuses on opening and closing statements and the testimony of several key witnesses. This aspect of the book should make it more readable for non-litigators. As a litigation attorney, I would have loved it if the book was twice as long and covered in detail the entire trial and the pre-trial procedure.

It takes an enormous amount of time and work to get a pharmaceutical case to trial. Millions of pages of documents must be reviewed and appropriate expert witnesses must be hired and educated on the facts of the case so they can give testimony on the issues in the case. I can pretty much guarantee that the vast majority of that work on the plaintiff side was done by lawyers other than Lanier.

Those nameless lawyers are the unsung heroes of the Vioxx litigation. Lanier and other trial lawyers could not try a good case without that leg work having been performed by others. Of course, that work would not be very interesting to read about. Prakash understandably focused on the entertaining part: the trial.

I enjoyed this book. The story was an interesting read with some big characters on both sides of the case. This book should have widespread appeal for plaintiffs and defense lawyers, judges and members of the public who are interested in trials or the alleges corruption of the pharmaceutical industry. 

Trial lawyers can identify with Lanier's plight in the case: trying a great case, but losing anyway.  

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Want to improve your legal writing? If so, you may want to consider reading: Point Made, How to Write Like the Nation's Top Advocates, by Ross Guberman.

The book's product description on Amazon states in part:

With Point Made, legal writing expert Ross Guberman throws a life preserver to attorneys, who are under more pressure than ever to produce compelling prose. What is the strongest opening for a motion or brief? How to draft winning headings? How to tell a persuasive story when the record is dry and dense? The answers are "more science than art," says Guberman, who has analyzed stellar arguments by distinguished attorneys to develop step-by-step instructions for achieving the results you want.
The author takes an empirical approach, drawing heavily on the writings of the nation's 50 most influential lawyers, including Barack Obama, John Roberts, Elena Kagan, Ted Olson, and David Boies. Their strategies, demystified and broken down into specific, learnable techniques, become a detailed writing guide full of practical models.

I found this book interesting. The examples from briefs written by legal heavyweights like John Roberts show that not only is it ok to depart from traditional, wordy "legalese" writing, it is preferred. For instance, the book encourages lawyers to consider streamlining information with tables and bullet point lists.

I have been using tables in my briefs for the last few months since reading this suggestion. I find it helpful for compressing a lot of information onto one page. I think lawyers will see a lot more of this and other similar techniques in the coming years with heavy use of the internet making everyone—including judges—speed skimmers.

Books on legal writing are a bit like eating spinach. Or in Mississippi Supreme Court Justice Jess Dickinson's case, peas. They may not be that exciting, but they are good for us. Point Made has a list price of under $20 and sell for much less on Amazon. The book is a real bargain and worth reading for litigators who are always looking to improve their game.   

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You Can't Teach Hungry is John Morgan's self-described how-to guide for building the multi-million dollar law firm. Morgan is the founder of the Morgan & Morgan personal injury law firm that has developed a national footprint. The firm lists eleven lawyers in its Jackson office, which makes it one of the largest plaintiff firms in the state.

Morgan's book is part nuts and bolts suggestions and part business philosophy. The latter is what I enjoyed the most.

Morgan definitely understands lawyers. He recognizes that many lawyers are poor businessmen and simply hope for the best for their practice. His descriptions of some lawyers are funny, such as the big-talking lawyers who always tell war stories about the same trial that was years ago. Incidentally, I think that I am speaking for many lawyers when I say that the only war stories that we are interested in hearing are the ones with a punch-line at the end.

Morgan attributes a fear of failure as a common characteristic of successful lawyers. That is something I can identify with. I've had my own practice for nine years. My practice has been successful and financially stable for the entire time, despite a transition from an almost all defense practice to an almost all plaintiff practice. But success and experience has not made me fear failure less. 

I fear failure more today than I did the day that I walked out of Baker Donelson. The reason is that now I have tasted bitter defeat from losing trials where there was no recovery or fee unless we won and have seen other lawyers' practices fail. In the late 90's and early 2000's there were lawyers making a fortune in Mississippi who were not really practicing law—much less litigating and trying cases. Today, there are smart and hard working lawyers who struggle to make it.        

Morgan suggests that when the fear of failure leaves a lawyer, he or she should hang it up.   

Morgan is a huge proponent of television advertising. He states that many lawyers who try television ad campaigns do it wrong. He recommends developing a catch phrase like his firm's brilliant “for the people.” If everyone advertised like Morgan's firm, I might not think that it is damaging to the profession. But the get-rich-quick commercials starring plaintiffs who look fine are a ball-and-chain around the neck of those of us who actually try cases.

Although the book is written for plaintiff lawyers, some defense lawyers might enjoy its insights on the business of law. The book is $20 on Amazon or $9.99 on the Kindle. You don't need to get much out of it to make it worth that price. The book even comes with an offer for a free gift for those who read to near the end of the book. What is it? Read the book. But I can say that Morgan does deliver the gift as promised. 

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The newest book devoted exclusively to cross-examination is Cross-Examination Handbook: Persuasion, Strategies & Techniques. Here is the book's website and here is its Amazon page. Here is the cover and a list of the book's chapters:
 

1. Introduction to Book, CD, & Website
2. Purposes of Cross & the Total Trial Approach
3. The Content & Concession-Seeking Cross
4. Constructing the Cross: Your Chance to Testify
5. Impeachment Cross: Reliability
6. Impeachment Cross: Report
7. Impeachment Cross: Reporter
8. Character & Conduct in Trial
9. Witness Control: Strategies & Techniques
10. Preparing the Winning Cross-Examination
11. Cross-Examining Expert Witnesses
12. Forgetters, Perjurers, Adverse Witnesses, Deponents, & More
13. Ethical & Legal Boundaries of Cross
14. Cases & Assignments

I have been looking for a good and current book devoted to cross-examination. This book meets that need.

The authors provide a comprehensive overview of cross-examination from case theory development to executing cross with difficult witnesses. The book is well organized and easy to read. The book manages to be basic enough to be a good choice for a trial practice class and advanced enough to be valuable to experienced lawyers. I consider myself in the latter category, so I will address how reading this book helped me.

I have become frustrated in the last few years with the inconsistency of my cross-examinations. I have had crosses that other lawyers told me were the best that they have ever seen. But I have also had crosses that were mediocre—at least to me. I put exhaustive preparation into both categories, so I could not figure out what seperated the great ones from the mediocre ones. I think that I have the answer after reading this book. What is it? I'm not saying. Read the book. Find your own secrets.

There is one point on which I disagree with the authors. The book advocates taking “full discovery,” which includes deposing all witnesses who the opposing party may call at trial. I disagree.

I believe that there are valid reasons for not deposing the other side's witnesses, particularly their expert witnesses. I think that you need to weigh all the factors and make a decision about who to depose. I disagree with mindlessly scheduling depositions of all potential witnesses. You may end up doing the opposing side a favor by doing this. But that is a minor quibble on a side issue. The book's organized approach explaining how to prepare for and exectute a good cross is fantastic.

  Finally, the book's price point makes it a real bargain. The sticker price is $39.50 and you can save a couple of bucks on Amazon. That is a really good price for a trial practice book. There is no excuse for this book not being in every litigator's library. 

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I recently read Unbillable Hours, by Ian Graham. The book is a memoir by a former associate at mega-firm Latham Watkins' L.A. office.

Here is the book's description:

The story—part memoir, part hard-hitting expose—of a first-year law associate negotiating the arduous path through a system designed to break those who enter it before it makes them.

Landing a job at a prestigious L.A. law firm, complete with a six figure income, signaled the beginning of the good life for Ian Graham. But the harsh reality of life as an associate quickly became evident. The work was grueling and boring, the days were impossibly long, and Graham’s main goal was to rack up billable hours. But when he took an unpaid pro bono case to escape the drudgery, Graham found the meaning in his work that he’d been looking for. As he worked to free Mario Rocha, a gifted young Latino who had been wrongly convicted at 16 and sentenced to life without parole, the shocking contrast between the quest for money and power and Mario’s desperate struggle for freedom led Graham to look long and hard at his future as a corporate lawyer.

Graham captures the plusses and minuses of life at a big firm without coming off as bitter. Great observations include:

• like many people, he went to law school because he got in and didn't know what else to do; [how true is that?]
• a big salary can lead to golden handcuffs; [ditto]
• blame rolls downhill in a law firm; [I think a better observation is that credit rolls uphill in a law firm]
• litigation is bathtub learning with the plug pulled when the case is over; and
• when he left Latham in 2006 only five of 47 in his starting associate class remained.

Think about that last statistic.

The good news is that Graham and Latham won Rocha's case and corrected a huge miscarriage of justice. That part of the story makes the book worth reading for lawyers and non-lawyers alike. Lawyers will enjoy the look at law firm culture.

This was a quick, entertaining, well-written read. I give it two thumbs up.

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I recently finished reading Typography for Lawyers by Matthew Butterick. The book's byline describes it as “essential tools for polished & persuasive documents. I agree.

What is typography? Basically typography is how a document looks. Lawyers and judges think about typography all the time. Ever said: “this brief looks like crap”? If so, you are talking about typography. This is the first book on typography specifically for lawyers.

Butterick explains that good typography helps the reader. Bad typography is harder to read and more likely to lose the attention of the reader—think judge.

In a mere 216 pages Butterick explains how to implement good typography into your practice. The book tackles letterhead, business cards and motions. It also gives step-by-step instructions on how to implement the advice in both Word and Wordperfect.

As expected, the book also discussed fonts. Butterick hates Arial and also frowns on the commonly used font of Times New Roman. Before even finishing the book, I changed my font in letters and briefs from Times New Roman, which Butterick says “connotes apathy.” I now use Franklin Gothic Medium.   

As of this writing, the book has 14 customer reviews on Amazon. All 14 rate the book as a 5, on a scale of 1–5. Reviewers describe the book as indispensable and something that should be on every lawyer's desk.  

I suspect that five years from now this book will be on the desk of most young lawyers. If I were managing a law firm, I would give a copy to all entering first year associates and order them to read and implement the book.

For older lawyers, reading this book should be a badge of honor. If you care enough about your skills to read a book on typography, you must be a serious lawyer.

Or a total law-goob. One of the two for sure.

In all seriousness, I am glad that I found this book and recommend it for all serious lawyers. It would also be a good idea to ask your staff member who formats your documents to read it as well.

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Rick Friedman On Becoming a Trial Lawyer is a book that every civil plaintiff lawyer and criminal defense lawyer should read.

The cover flap provides a good description of the book: 

Combining nuts-and-bolts practical advice with inspirational insights, he guides us on the journey every trial lawyer must take, from the struggle to gain trial experience to the search for happiness in a career fraught with conflict and frustration. Along the way he addresses topics as diverse as common mistakes made by even the most experienced trial lawyer to the benefits of psychotherapy. 

The book is divided into three parts: (1) Entering the Jungle [why even do it]; (2) Traps in the Jungle [practice observations and pointers]; and (3) At Home in the Jungle [dealing with personal traps in a difficult profession].

Each part of the book is good. Along the way, Friedman makes numerous observations that are spot on, including:

• Being a good trial lawyer is hard—real hard. He states: “[i]n any particular case you will almost always be outmanned and outgunned.” The only answer is hard work: “[s]imply put, to even have a chance, you have to outwork your opponents—and they work hard.”
• If you want trial experience you are going to have to get it on your own, and money is a huge obstacle to getting it.
• Successful trial lawyers pay a huge personal price for going to trial (because it is so hard).
• Emotional resilience is a job requirement.
• You better love it—because there will be times when you hate it.
• You have to be able to handle losing.
• Your family didn't sign up to be a trial lawyer, so it's no excuse for you to be an ass to them.
• “If the system were fair, we'd hardly be needed. With fair, impartial judges, scrupulously honest oppoents, and intelligent, perceptive jurors, how much would a client need us?”
• “Our clients hire us to enter an unfair system and extract some justice from it.”

There is a lot more there and I highly recommend the entire book. It is only about 200 pages and can be read in a few sittings. If you represent individual plaintiffs or criminal defendants, it will make you feel better about your journey. And who doesn't want to feel better?

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I heard about Charles W. Eagles book The Price of Defiance–  James Meredith and the Integration of Ole Miss after it was the subject of a panel discussion at the 2010 Mississippi Bar Convention. I'm glad that I did.

Here is the description of the book from the inside flap of the cover:

When James Meredith enrolled as the first African American student at the University of Mississippi in 1962, the resulting riots produced more casualties than any other clash of the civil rights era. Eagles shows that the violence resulted from the university's and the state's long defiance of the civil rights movement and federal law. Ultimately, the price of such behavior--the price of defiance--was not only the murderous riot that rocked the nation and almost closed the university but also the nation's enduring scorn for Ole Miss and Mississippi. Eagles paints a remarkable portrait of Meredith himself by describing his unusual family background, his personal values, and his service in the U.S. Air Force, all of which prepared him for his experience at Ole Miss.

Attempts to keep James Meredith out of Ole Miss were at the epicenter of white Mississippi's effort to maintain segregation and, more importantly, white supremacy. The opponent to Meredith's attempt to enroll at Ole Miss was the State of Mississippi itself, led by Governor Ross Barnett. 

In the early 1960's it was a crime in Mississippi to attempt to overthrow segregation. Judges, politicians, TV stations and most newspapers vehemently opposed both racial equality and desegregation. Segregationists used terms such as “mongrelization” of the races and whatever other scare cards they could dream up to frighten white people.

But by 1960 white supremacy was probably more about power and money than racist ideals. Thinking whites had to know that once African-Americans could vote and had equal access to education that whites would lose their monopoly on political offices and patronage. Putting it bluntly, a bunch of dumb rednecks were going to be out of a job. Plus, the "help" might balk at continuing to work for slave wages.  

African-Americans who opposed the “Southern way of life” risked death. Whites who opposed the system risked being ostracized by whites and getting run out of the state. A white student who ate in the Ole Miss cafeteria with Meredith had her whole family run out of the state. As a result, there was a silent tolerance of the brutal system much the same way that Germans allowed the Holocaust twenty years earlier. 

Ole Miss was caught in the middle of the controversy. Eagles explains how the chancellor and administration ceded control of racial matters to politicians and their appointed trustees. Although it's easy to criticize them now, the chancellor and administration would have been run out of town had they opposed the politicians who controlled the University.

Eagles persuasively argues that everything from Oxford being a back-water town until the boom in the 1990's to Ole Miss not winning an SEC Football title in over 40 years can be traced to the national scorn caused by the resistance to Meredith.

Reading this book evoked a lot of sadness for me. The “Southern way of life” was so unfair and oppressive for so many Mississippians. Over half the people in Mississippi were African-Americans until around 1930 and Mississippi has always had a huge black population. The system existed from until the end of slavery until people my parent's age were grown adults. Including the slavery years, there were 150 years of slavery and white supremacy. We are less than 50 years from the Civil Rights Movement. 

The names of many of the players in the dispute will be familiar to Mississippi lawyers. Retired 5^th Circuit Judge Charles Clark was one of the lawyers who represented the State in opposing Meredith's efforts, and Jackson lawyer Bill Goodman was one of the attorneys who advised Governor Barnett during the crisis. Again, it's easy now to criticize lawyers who represented the State, but that was a different time and people who did not live through it should not take a holier than thou view of something that they didn't live through.   

Former Mississippi Supreme Court Justice Jimmy Robertson makes an appearance as a writer and editor for the Daily Mississippian in the early 1960's who took the controversial position that—God forbid—Ole Miss schedule teams that included African American players. Pretty ironic that it was so controversial given the fact that now before taking the field, every Ole Miss coach and player touches the statue of former player Chucky Mullins (an African-American). Jackson resident the Reverend Duncan Gray Jr. was a rector in Oxford in the early 1960's and was a rare progressive voice among white Mississippians.  

Given how far Mississippi has advanced, it is easy to overlook the courage exhibited by individuals like Meredith, Robertson and Gray, who put themselves in harm's way by voicing opposition to white supremacy. But if we are being honest, few of us can say with certainty that we would have exhibited such moral courage during that era. Indeed, look at how many people who did not. 

There is still racism in Mississippi, as there is in most parts of the country. But the notion of white supremacy is dead except for with complete nuts. In my experience, even people who are racist because of their general views about African-Americans believe that everyone should have equal access to education, job opportunities and political office. Otherwise, you would not see African-Americans elected to political office in majority white districts. But it does occasionally happen.

In conclusion, The Price of Defiance is a fantastic book that makes you think about how far Mississippi has advanced, but also the depth of the hole that we are digging out of. The book should be required reading for all Mississippi lawyers and all students at Mississippi's colleges and law schools.

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A while back I tried to read Your Witness, Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers, edited by Steven F. Molo and James R. Figliulo. The book is devoted to cross-examination techniques.  The average customer review on Amazon is 4 and half stars, which is higher than the average review for The Art of Cross Examination. 

The format of the book is a compilation where fifty well-known Chicago trial lawyers each wrote a chapter that was several pages in length. The chapters cover different topics, so in theory there is no over-lap.  

I read about half the book. Some of the chapters were quiet good. Others were kind of lame and a chore to read. Many of the authors told a war story from a past trial. 

Personally, I don't care for trial war stories unless there is a punch line involved. You can't go wrong by taking a vow to never tell a war story from a trial unless there is humor to the story. Even then, there are many times when the only people who appreciate the story are people who were actually in the trial with you. If you want to see some trial lawyers' eyes glaze over, tell them a long trial war story with no humor in it. You will remind them of Ted Striker from Airplane. 

I am also not a fan of war stories from losing trials. The reason should be obvious: if the cross-examination or whatever was that great, shouldn't you (or I) have won the trial?  

But I digress. I am not a big fan of the compilation format. I highly recommend McElhaney's Trial Notebook. I am less of a fan of McElhaney's Litigation, which is a compilation of individual articles. This may be just a personal preference on my part. I don't like reading a book full of short stories either. I always seem to start compilation books, but cannot finish them. That is what happened here.

The book costs only $29.50 on Amazon. So I can recommend buying it to have in your litigation library as a resource, even if you do not intend to read it cover to cover.       

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Winning at Trial by D. Shane Read is a trial practice book published in 2007. Some people have described it as “the best” trial advocacy book. I agree.

The book is stunningly good. It is basic enough to be used in law school trial practice classes and deep enough to benefit experienced lawyers. I own at least five trial practice books. If I had to choose just one to keep, this would be it.

 Winning at Trial is a classic that will be used by lawyers and law students for many years to come. Practicing attorneys who are not implementing the book's concepts in their trials are at a disadvantage to those who are.     

One recurring theme of the book is that the book used in my law school trial practice class (Mauet’s Fundamentals of Trial Techniques) often gets it wrong. An example is Mauet advising to be subtle and careful on cross examination and Read countering to drive your points home and not save major points for closing. I completely agree with Read. It is best to not wait until closing to drive points home for many reasons, including that jurors usually decide before closing.

Read starts his chapter on closing with the section “the overrated importance of closing argument.” Read’s point is that by the time of closing most jurors have already made up their mind. I agree. In my experience, you can feel it in the courtroom that jurors have decided even though most times you don’t know what the decision is.

Key points that Read emphasizes include:

• conducting focus groups of cases is important
• develop your own style [Gerry Spence fans will agree]
• tell a compelling story no matter which side you represent [defense lawyers sometimes fail to tell a story and simply try to prevent the plaintiff from telling their story—a sure losing strategy]
• be prepared [in my opinion lawyers who think that they can make up for poor preparation are kidding themselves]
• less is more [in my opinion losing sight of this is the most common mistake by trial lawyers]
• argue passionately and with integrity [most lawyers do this in Mississippi]

As examples of good and bad trial practice the book uses excerpts from the OJ Simpson criminal and civil trials and the Timothy McVeigh trial. The books also includes a DVD with clips from these trials.

If I was managing the litigation section of a large law firm, I would require the firm’s litigation associates to read the book and implement its concepts in their practices.   

There is a website for the book that you can access here.  

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Litigation Logic– A Practical Guide to Effective Argument is an interesting book. As stated in the introduction:

This book is dedicated to presenting informal fallacies through legal arguments…

The product description on Amazon is:

Learning to use, and defend against, informal fallacies are the keys to effective argument. This one-of-a-kind book examines informal fallacies and features a three-page Legal Logic Flow Chart to help identify the appropriate informal fallacy and counter them. Through the flow chart this book provides two legal examples on which to practice using the chart. This book is ideal for any lawyer who wants to craft a flawless argument.

The focus of the book is principles of logic utilized in legal arguments. 

The book defines informal fallacies as arguments that are flawed, but not in a technical sense. Examples include personal attacks, appealing to bias and prejudice and something you occasionally see in Mississippi courtrooms: appeals to regionalism. The book goes into detail indentfying improper arguments and provides examples from mostly U.S. Supreme Court cases.

I view this book as an academic book as opposed to a practical guide that will be used by trial attorneys. Litigators should know what arguments are improper, but little time is devoted to the subject in law school or bar review exams. This book would be very useful as required reading in law school trial practice and ethics classes. In fact, a law school ethics course that uses this book as a text would be more useful than traditional approaches to ethics courses that are based on case books.

I disagree that the book is ideal for any lawyer who wants to craft a flawless argument. I view it as a theory type book and not a practice book. It is a good book that is worth reading, but it is not going to provide a roadmap for arguing cases.     

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John Tucker is a former partner with the prominent Chicago based law firm Jenner and Block. Before retiring to concentrate on writing, Tucker had an outstanding career as a litigator than included arguing two cases before the U.S. Supreme Court and serving as trial counsel in several high-profile cases.

Tucker’s trials included defending the “Chicago Eight”, who were prosecuted for conspiracy and inciting to riot following protests at the 1968 Democratic National Convention, and representing the plaintiffs in the Contract Buyers League cases in Chicago, which sought to end housing discrimination against African-Americans in Chicago.

The book contains much wisdom about trials, litigation, and the practice of law. My favorite observations about litigation included:

• A client's gratitude is a fragile reed.
• Litigation can be conducted calmly, with polite respect for your opponent and his client, without losing anything in the way of effectiveness. Litigation can also be conducted like a street fight,  without really gaining anything.
• The trial of a case is a competition, and if you plan to make your living doing it, you better have a competitive nature-an intense desire to win. That desire must be accompanied by an understanding of the rules and a willingness to play by them.
• In the American legal system, a lawyer's job is not to seek justice, but to win the case for his client. The primary objective of our legal system is not to determine the truth, but to resolve  disputes peacefully. Besides, in most cases where the facts are disputed, no one but the clients know for certain where the truth lies, and often they aren't really sure.
• Of all the mistakes made even by experienced trial lawyers the  most common is failure to adjust to changing circumstances in the  heat of battle. Time and again, lawyers plow ahead with questions  they had planned to ask on cross-examination even though a witnesses previous answer has rendered the planned questions unnecessary, or even dangerous.
• The most important thing a trial lawyer does is develop a logical  theory of the case that can be supported by the evidence.
•  Courtroom lawyers and people who play sports are engaged in an endeavor where there is a  winner and loser of every contest, and no matter how good they are, sometimes they lose.In fact, in both endeavors it is often true  that the better they are the harder their contests and the more  often they will lose. You don't have to like it-in fact, you had better not-but you won't last long if you don't learn to get over it, or at least put it far enough behind you to go on to the next case.
• A  trial lawyer can be quiet or loud, gregarious or shy, pretty or ugly,  and just about anything else you can think of except lacking in self-confidence.

The book also contained a few laugh-out-loud observations, including:

• The judge, J. Sam  Perry, was a senior member of the court. Perry had grown up in Alabama, but spent most of his adult life in the same western  suburb where Tom Sullivan grew up. Perry was no legal heavyweight, but he had a reputation as something of a populist, with  sympathy for the underdog. On balance, we thought he was not  too bad a draw. We didn't realize until the trial started that an Alabama populist-at least one of Judge Perry's age-is still from Alabama.
• A lesson in the virtues of law-firm seniority.  In January and February a senior-partner conducted a series of depositions in Florida and Puerto Rico while Tucker (a junior associate) held down the fort in Minnesota and  North Dakota.

The book also succinctly captured the dilemma faced by young trial lawyers working in large law firms:

• The current emphasis on the bottom line [in big law firms] has a special impact on trial lawyers. Profit expectations require hourly rates to be set so high that only major corporations can afford them, and their cases almost never go to trial. You may get moderately rich as a "litigator" for big companies, but if you try a case only once every five years, you won't become much of a trial lawyer.

Most of the cases that Tucker writes about were pro bono cases. Tucker was lucky that his firm allowed him to spend so much time working on pro bono. But he recognizes that in today’s world, few firms would allow associates to devote so much time to pro bono matters. Tucker notes that many of today’s top litigators had to leave their big firm and start their own practice in order to develop their trial skills.

My only negative comment about the book is that I did not find a couple of the cases that Tucker wrote about to be interesting. But overall, it was a great book and I highly recommend it for litigators. 

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Some would argue that understanding game theory and other principals that apply in poker can help the way that a litigator thinks about a case. For instance, poker players apply mathematical formulas to poker hands that can be useful in analyzing the settlement value of a case.

Both playing poker and litigating a case are deceptively simple, but often extremely complex. In both it's sometimes hard to tell who is playing well and who is playing poorly. In both, you can be the best player at the table and still lose. In both no matter how well you play, you may not be able to overcome the losing hand that you are dealt.

I love the idea of a book that explores the similarities in the thought process in playing poker and litigation. Unfortunately, Lawyers' Poker by Steven Lubet is not a book that I can recommend on this subject.

The book appears to be written for poker novices. Interesting poker writing deeply explores a subject. The analysis in this book, however, is shallow and broken up into 52 topics. Litigators would be better served by learning to play poker and reading books by some of the leading poker writers such as David Sklansky, Ed Miller and Dan Herrington and then thinking about how some of the concepts could come into play in litigating a case. 

Experienced poker players will find the book weak and of no value. There are better books on both poker and the law.  

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"Berg weaves nuts-and-bolts techniques that will make you a better trial lawyer with illustrative stories from his legendary career. He has tackled a wide variety of cases and draws from his varied experiences to explain his winning methods."

Berg has tried many cases and clearly loves trial work. The book contains just the right mix of nuts-and-bolts tips and war story examples from Berg's trials. It also helps that Berg has a good sense of humor that he incorporates into his writing.

One of the things that I appreciated was Berg's willingness to take on conventional wisdom. I have developed the opinion that conventional wisdom is often wrong in litigation and trial practice. As an example, conventional wisdom is that you only ask a question in cross-examination that you know the answer to and have a deposition or document to impeach the witness with if you don't get the right answer. And while you want to keep this "rule" in mind, to conduct a truly great cross-examination you have to develop instincts to cast this rule aside at the right moment. Berg agrees and states that the essence of the rules of cross is to listen to your instincts.

 The structure of the book is typical for trial a practice book. There are chapters on persuasion, preparation ("90% or winning is preparation") and focus groups, before proceeding to chapters based on the phases of a trial starting with voir dire. Berg is right about the importance of preparation. But one thing that I have noticed is that many--if not most--lawyers do not know how to prepare for trial. The result is a lot of unfocused work before trial and a mess of a trial.  

 At 310 pages the book is just the right length. With a list price of $75.00, Amazon.com currently sells it for $47.25. It is worth the price and worth the read.