hen my son was a defendant in personal injury litigation about 16 years ago, his lawyer—actually, the insurance company’s lawyer—prepared him for the process as follows: “Look, we’re going to do a Kabuki dance for a few months, and then we’re going to settle for sixty-K.” The lawyer’s prediction was spot on. About ten years ago, my wife was the plaintiff in a personal injury case with similar predictions from her attorney (although for a much smaller amount); he was also on target. A few years before that, we were visiting my wife’s family and I saw one of my law school classmates in a television ad promising that, if you would only hire him for your personal injury case, he would force the insurance company to cut a fat check and—I swear this is an exact quote—“You won’t have to go to court, I guarantee it!” Really? You can guarantee a good settlement without the possibility of going to court? Maybe my old buddy meant to say, “I won’t go to court, I guarantee it.”
This is a book about preparing for and conducting civil jury trials. It is not about “civil litigation.”
CIVIL LITIGATION IN AMERICA, OR THE LACK THEREOF
The reality of civil litigation in America is that the Seventh Amendment right to trial by jury in civil cases has suffered an erosion of landslide proportions. Attorneys calling themselves “trial lawyers” are in visual media everywhere you look. They are in television ads, on billboards(1), and even on the sides of the Zamboni machine at pro hockey games(2). However, few of them are trying cases to juries, largely by their own choice(3). The costs of litigation, time involved, uncertainty of either winning a contingent fee (for plaintiffs’ attorneys) or avoiding a big verdict (for defense attorneys), and the proliferation of ADR options— Alternative Dispute Resolution or, as some are calling it, Appropriate Dispute Resolution—combine to remove the incentive for lawyers to go to a jury trial in civil cases. Unless, of course, a jury trial is the only way your client, plaintiff or defendant, can get a shot at achieving that elusive and highly subjective notion of “justice”(4).
For those cases, there are a dwindling number of lawyers still out there that specialize in civil jury trials. It’s our good fortune that three of them, with the help of a judicial veteran of the civil bench, have collaborated on Mastering the Mechanics of Civil Jury Trials: A Strategic Guide Outlining the Anatomy of a Trial, an entertaining guide for newer lawyers who have a yen to join this evermore-exclusive club.
BRIDGING THE MENTORING GAP
This compact volume (only 177 pages without appendixes, organized into 25 short chapters) is the principal work of Tyler Draa, a retired U.S. Naval Reserve judge advocate and prominent civil defense lawyer in San Jose, California. With contributions from Doris Cheng (San Francisco plaintiff’s attorney and a regular visitor to the JAG School for advocacy teacher training programs), Maureen Harrington (one of Draa’s law partners), and The Honorable Franklin E. Bondanno of the Superior Court of California, County of Santa Clara. Draa et al. have produced a user-friendly guide that should be required reading for any attorney contemplating dipping a toe into the civil jury trial waters. As a bonus, it’s also chock full of solid advice for any trial lawyer, even if his or her practice is limited to criminal cases whether by courts-martial or in federal or state courtrooms.
There are two things about Mastering the Mechanics of Civil Jury Trials that immediately jumped out at me as different from most of the litigation treatises out there. First, this is a book about preparing for and conducting civil jury trials. It is not about “civil litigation.” There isn’t a single word about discovery or pretrial motion practice, except in the context of the trial. As the authors make clear in the book’s introduction, Draa and his colleagues intend this book to bridge the mentoring gap that has resulted from the drastic reduction in civil jury trials. Fewer trials mean fewer experienced trial lawyers to help new lawyers learn the ropes, a gap that continues to widen with each generation. The second thing about the book that stood out to me is made clear by the book’s subtitle: A Strategic Guide Outlining the Anatomy of a Trial. This is a metaphorical 30,000-foot view of the civil trial. There isn’t a lot of detailed “how to” tactics. Draa and company have chosen instead to send bigger and more important messages to the budding trial lawyer.
This strategic approach emphasizes a global understanding of the civil trial process. It is in stark contrast to other trial “manuals,” such as one on criminal trials I reviewed in an earlier edition of The Reporter(5). Such opera magna, while very thorough and detailed on everything that may come up in trials, can be unwieldy. For those ambitious manuals, I have recommended practitioners first skim the contents, familiarizing themselves with the topics and organization, and then return for more detailed reading as needed or when time permits. For Mastering the Mechanics of Civil Jury Trials, I recommend the opposite—sit down and read it straight through, which may be done in just a few sittings. This is such an easy read, with so many valuable insights, you won’t want to set it aside for very long until you’ve finished.
Foremost among those insights is the authors’ emphasis on civility and ethical treatment of everyone involved in the trial. There are sharp condemnations of such venerable shyster tactics as the “speaking objection” (i.e., the objection is just an excuse to argue to the jury, or worse, give a witness clues about the preferred answer) and using rebuttal to sandbag opposing counsel with new evidence. One chapter is entitled “Opposing Counsel: Colleague First, Adversary Second.” This should go without saying, but it needs to be said and I’m glad the authors say it. A cornerstone of any trial (civil, criminal, military, or civilian) is civility among opposing counsel. If you don’t have it, the trial becomes a cacophony of tit-for-tat reprisals over trivial slights and the clients’ interests get drowned out by the noise. This emphasis on civility often separates real trial lawyers, like Draa, Cheng, and Harrington (and, no doubt, Judge Bondanno in his life before the bench) from many of the swaggering TV “litigators” that equate effectiveness with red-meat rhetoric that demeans their opponents and, as a result, the entire process.
In another chapter, “Establish Your Courtroom Footing,” the authors emphasize the importance of getting to know, and treating with courtesy and respect, all court administration personnel. I learned this in 1975 as a first-year law student and part-time clerk at a firm in Topeka, Kansas. I’m amazed at how many attorneys I’ve seen abuse the folks that run their courtroom tech support, control access to the judge or, for a lawyer running up the courthouse steps, may or may not delay a few seconds past five o’clock before locking the clerk’s office door. Civility is the trial lawyer’s safety net—if you’re a jerk, you’re working without one so you’d better be good. And no one is that good. In Mastering the Mechanics of Civil Jury Trials, Draa et al. stress the importance of ethics and civility at every opportunity.
CIVIL LITIGATION AND THE AIR FORCE ATTORNEY
While Mastering the Mechanics of Civil Jury Trials is, of course, directed at civil trial practitioners, Air Force attorneys should not dismiss it as inapplicable to our practice. Some Air Force attorneys, both military and civilian, do get to represent the United States in civil trials from time to time. Even if your practice is limited to courts-martial, this book has solid advice about presenting cases to juries, whether they’re called that or answer instead to “Members of the Court.” A few pet peeves of mine, in any trial, are overuse of PowerPoint and other complicated demonstrative aids, redirect and recross examinations as yo-yo contests that don’t add anything to an attorney’s case, and objecting or cross-examining just because you can without regard to your theory of the case. Draa and company address these, plus a lot more, giving the newly minted trial lawyer the lessons learned from decades of courtroom mistakes they’ve seen and made themselves.
The one weakness of Mastering the Mechanics of Civil Jury Trials, to which the authors freely admit, is its California emphasis. All the authors practice or preside in California so the rules and case law they cite are Golden-State centric. The authors, however, are assembling appendixes (partially completed when I read this advance review copy) listing federal and state authorities on peremptory challenge of judges—I didn’t know you could do that!—use of animations and other simulations as demonstrative evidence, and other common issues in civil trials. While it’s likely the majority of purchasers of Mastering the Mechanics of Civil Jury Trials will be California lawyers, the completed appendices will broaden the book’s appeal.
[Editor’s Note: The appendices encompass all fifty states and are presented in all final editions, including a heavily linked eBook to the source of each statutory authority, as well as all cases cited throughout the book. Visit www.civiljurytrials.com for more information.]
In this book, however, the specific legal issues that might come up during a trial sit second chair to common sense and sound trial fundamentals. These values aren’t limited to any single jurisdiction. Last time I checked, anyway.
Mr. Thomas G. Becker, Col (Ret), USAF (B.A., Washburn University; J.D., Washburn University School of Law; LL.M. George Washington University School of Law) is the Academic Director for The Judge Advocate General’s School, Maxwell Air Force Base, Alabama.
(1) At a recent lecture I gave to allied nations’ officers attending an International Officers School course, one of them asked me, “Who is this [name of personal injury lawyer prominent in Alabama and the Florida panhandle]? My God, his picture is everywhere!”
(2) I’m not making this up. I have a photo taken by my daughter at a Washington Capitals game.
(3) See, e.g., Joe Forward, The Disappearing Jury Trial: Implications for the Justice System and Lawyers, Inside Track (Wisc. State Bar, Madison, Wisc.), Mar. 19, 2014.
(4) As it says on a small plaque I have on my desk, “Too often we want justice—just for us.”
(5) Tom Becker, How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense, 38 The Reporter 61 (2d ed. 2011) (book review).