Vol. 9 No. 10 (October 1999) pp. 444-447.

THE TRIAL LAWYER'S ART by Sam Schrager. Philadelphia: Temple University Press, 1999. Cloth $29.95. 247pp. ISBN 1-56639-673-5.

Reviewed by Stephen Meili, University of Wisconsin Law School.

Everyone loves a good story. In this engagingly written study of trial lawyers at work, Sam Schrager demonstrates that the best trial lawyers are those who can tell a good story. Rather than a plodding, how-to manual of the finer points of trial advocacy, this is a crisply written series of observations and descriptions of trial lawyers at work in front of both real and simulated juries. By frequently quoting from lawyers' statements during trials and lawyers' reflections on trials, the book is refreshingly different from the multitude of dryly written trial advocacy books that aim to teach law students and new lawyers how to argue a case before a jury. Indeed, the only real "advice" is offered by trial lawyer Lorna Propes, who observes that lawyers "who are really good are themselves." She thus reveals enduring truth about skill in many crafts, including trial lawyering: you just can't teach it.

The central thesis of the book is that trial lawyers are performance artists who shape a jury's perception of reality through storytelling, a traditional form of folkloric communication. In a compelling fashion that uses some of the best techniques of storytelling, Schrager shows how some of the most accomplished trial lawyers in the country go about practicing their craft. He describes these attorneys utilizing a performance repertoire that includes personal experience, cultural identity, biases and myriad oratorical devices to persuade the jury that their client's version of the disputed story is the more credible one.

Schrager's methodology is straightforward. He observed and interviewed about a dozen renowned lawyers participating in jury trials in two settings: a pair of criminal trials in Philadelphia and a series of mock civil and criminal trials held in a tent on the National Mall in Washington, D.C. as part of the 1986 Festival of American Folklife. Through Schrager's eyes we see these lawyers perform at various stages of the trial, from jury selection through opening statement, direct and cross examination, objections, and closing argument. From the outset, Schrager clearly states on what he will and will not focus. He is solely interested in the conduct of the trial attorneys and not the activities of juries, judges, and witnesses. His mission is not to dissect the trial as a whole, but to isolate and concentrate on the behavior of arguably the most important people within the trial: the attorneys who conduct it. Thus, he is less interested in who wins or loses at these trials (ambiguous concepts in many cases), than in the way which trial lawyers perform within the battle.

And perform they do. Although one does not normally associate the phrase "page turner" with books about trial advocacy, the moniker is appropriate here. This is because Schrager quotes extensively from the

Page 445 begins here

lawyers as they go about their craft. This is an effective methodology for at least two reasons. First, these lawyers are so accomplished that it is entertaining to simply sit back and marvel at the way they successfully use and sometimes abuse language, cadence, insinuation, exaggeration, metaphor, outrage, prejudice, and sympathy to their advantage, even in situations where one would assume that their client had no chance of winning. Although some of the tactics are enraging, they are nevertheless compelling. Second, Schrager's method allows the reader to draw his or her own conclusions about the efficacy of the lawyer's approach. Although Schrager certainly has his opinions about which strategies work and which do not (and he shares them with the reader), the book does not tell us the right and wrong way to be a trial lawyer. Instead, it simply describes the work of some of the best at the trade, and it leaves us to our own reactions.

Since one cannot help but sense the courtroom drama surrounding a set of actual events, the stories about the Philadelphia trials are the most gripping. Thus, as one reads the testimony of the mother who discovered her slain daughters and husband after returning home one evening, the reader is both stuck both by the sheer horror of the story and the expert means by which prosecutor Roger King elicits it from her.

The mock trials in Washington are also effective in illustrating certain trial techniques and styles, but like any controlled experiment, they seemed more antiseptic. Indeed, one issue that Schrager might have explored with the participating lawyers is whether they altered their tactics because those trials were simulated. For example, one could imagine that an attorney would be willing to take more oratorical risks at a trial knowing that she has no actual client whose freedom or financial livelihood hangs in the balance.

Schrager's work is a particularly admirable job given the inherent limitations of writing about a craft whose success depends so extensively on visual techniques. As most lawyers have learned through experience, a written transcript of a legal proceeding presents only a partial - and sometimes distorted - view of what actually occurred in court. In the same way, to appreciate the full measure of these attorneys, one would want to see them - and the juries, judges and witness with whom they perform - in action. Schrager combats this obstacle with a clear, nondogmatic writing style that brings these lawyers - particularly the Philadelphia lawyers - to life. In this way Schrager makes a good case for the kind of plain language that can make academic discourse more accessible to the general public. Indeed, this book provides a powerful critique of what Schrager sees as the "esoteric theory" and "arcane writing" that plague much cultural studies research (he might have added scholarly legal research to that critique, as well). Making cultural studies more accessible was most likely what the Smithsonian was attempting to accomplish by hosting the mock trials on the Mall in the nation's capital rather than on a law school campus.

Aside from a humorous chapter devoted to war and horror stories (some real, some apocryphal), the book's descriptive style prevents the featured attorneys from engaging in the all-too-familiar exercise of "Great Cases I Have Won" that typify many lectures by practitioners. Instead, Schrager's interviews with lawyers focus on why they chose certain performance methods and tactics during the trial. This provides a rare insight into the thought

Page 446 begins here

processes of trial lawyers.
Although one can understand why Schrager chose not to focus on the juries' reaction to the lawyers, it nevertheless would have been interesting to hear a bit more from them. After all, they are the principle audience of the performance artists in the courtroom, and while we - and Schrager - may think a particular oratorical device or litigation strategy was singularly effective in achieving a courtroom outcome, jurors might have a very different view. Even an anecdotal analysis of juror reaction provides some evidence of how jurors decide cases; it is evidence that Schrager acknowledges is lacking in the public domain. Schrager provides some insight into jury perception through comments from the "roving jurors" in Philadelphia - the mostly retired citizens whose avocation is to attend trials. Still, one is left wondering how the lawyers' tactics played to the crowd watching them up close.

A book with a premise like this one's (lawyers as performers) raises a host of troubling questions. One is a conundrum with which scholars have grappled with for centuries: what is the role of truth in the courtroom? For if the most successful trial lawyer is the one who best persuades a jury to believe her story (read: version of what actually happened), that lawyer must frequently obscure rather than reveal the truth. This problem is most starkly revealed in the first of the Philadelphia trials, where Roger King clearly outflanked his opponent. Who is to say what might have happened (i.e., which version of "the truth" the jury would have believed) if the defendant in that case had been represented by a more accomplished attorney? And, if the result had been different based simply on the skill of the storyteller, should we be entrusting weighty matters such as incarceration versus freedom to a jury that is so swayed? Such questions may not be terribly earth shaking in the context of most artistic performance (if a singer or painter is inadequate, no one will pay to see his work, and the artist will presumably pursue another means of livelihood). On the other hand, when a criminal defendant's life and/or liberty hangs in the balance, the consequences stemming from a poor performance are far more grave. Recent publicity concerning erroneously convicted and subsequently released death row inmates (most of whom belong to minority groups) only underscores this point. Although appeals of death sentences can repair some of the damage from a poor trial performance, they have become far more limited under recent federal court decisions.

A related, and equally troubling, issue is the influence of money and expertise on the outcome of jury trials. In most situations, particularly in the criminal area, where contingency fees are not an issue, the most affluent parties obtain the best lawyers, i.e., those who can best perform in front of - and manipulate - the jury. We can assume, for example, that the attorneys featured in this book do not come cheap.

Fortunately, Schrager resists the temptation to offer glib solutions to these complex and bothersome problems, other than to hope that jurors exhibit skepticism toward the moral appeals that often accompany trial lawyer performances. Nevertheless, whether he intended it or not (and I tend to think he did not), Schrager's book will cause some to wonder whether jury trials are the most effective means of determining a person's guilt or innocence or a corporation's liability.

Although this book may contribute to the growing star quality of some trial

Page 447 begins here

lawyers, it also takes such lawyers down a few notches. For example, it illustrates that despite a trial lawyer's best effort, it is often the client's behavior - both during the events at issue and during the trial - that dictate the result. Similarly, the book notes that juries sometimes "invent" the truth in order to achieve the result they want. Despite these somewhat humbling anecdotes, this book offers little comfort to those who decry a cult of personality in late twentieth century trial law. If anything, it suggests that the recently increased publicity surrounding jury trials will only heighten the premium (and price tag) for those attorneys who perform best. Indeed, Schrager suggests that, in the wake of the O.J. Simpson trial and the popularity of shows like Court TV, the audience for these performers is no longer limited to the jury, but includes the public at large.

One of Schrager's explicit goals in writing this book was to reach a wider audience than that enjoyed by most cultural studies research. Given the engaging tales it tells and the troubling questions it raises about our judicial system and the role of trial lawyers within it, it deserves such an audience.