Five Non-legal Books Every Young Litigator Should Read

• Publication year: 2023
• Citation: Vol. 36 No. 2
• Author: Writen by Steven B. Katz

FIVE NON-LEGAL BOOKS EVERY YOUNG LITIGATOR SHOULD READ

Writen by Steven B. Katz^*

Some 90 years ago, Jerome Frank, former Second Circuit judge and one of the leading lights of Legal Realism, wrote the "tasks of the lawyer do not pivot around those rules and principles" taught in law school. "The work of the lawyer revolves about specific decisions in definite pieces of litigation." (Frank, Why Not A Clinical Lawyer-School? (1933) 81 Univ. Penn. L.Rev. 907, 910.)

In the spirit of Judge Frank, let me suggest five books that will teach young lawyers as much about litigation as any casebook. And unlike any casebook or treatise, the lessons in these books will apply in every single case.

The first is Sun-Tzu (that's SOON-tzuh, not son-SOO), The Art of War.

When I was a young associate, I worked for a partner fond of stepping into the doorway of an associate's office, flinging their research memo across the room, and saying: "If I wanted to know what the law was, I would have asked a cop. I asked a lawyer instead because I wanted to know what to do." Law school does a great job of teaching what the law is (or, at least, how to figure out what the law is). But it doesn't often teach what to do.

The Art of War is not a book about soldering; it is a book about strategy. About how to think critically about the resources at hand, the difficulty of the terrain, what are your actual goals, and what must happen to achieve them. About separating the achievable from the impossible and weighing outcomes against costs. Wars are not waged for the sake of fighting. War has a purpose; it is waged to achieve a goal. Fighting, using soldiers on a battlefield, may be one way to reach that goal. There may be others. And sometimes, soldiering is too costly a means to reach it; or may be downright counterproductive. The strategic commander will understand the difference. Sun-Tzu says: "He will win who knows when to fight and when not to fight."

So too with litigation. Law school puts you in the mindset of thinking that litigation is about arguing. Good lawyers win arguments, and poor lawyers lose. But our clients do not pay us to win arguments. Law firms are not professional debate teams, with sponsors who pay us to win tournaments. Rather, our clients have concrete goals (win money; not pay; reduce liability; persuade another to act). One way we often meet those goals is to win arguments (motions, trials). But there can be other ways as well. Good litigators convince judges their...