The Trial Lawyer Offers Both Advice and Challenge

• Author: Andrew J. Kennedy
• Pages: 30-31

Published in Litigation News Volume 46, Number 1, Fall 2020. © 2 020 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any form

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

Published in Litigation News Volume 46, Number 1, Fall 2020. © 2 020 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any form

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

BOOK REVIEW

Imagine you could take a n experienced trial part ner

with you wherever you went. That is t he premise of

The Trial Lawye r: What It Takes to Win by David

Berg. The book , now in its second edition , provides

advice on every stage of t rial work.

Berg draws on his 50 yea rs of experience in trying v irtu-

ally every kind of civ il and criminal case. T hree years out of

law school he won a case before the U. S. Supreme Court. His

very rst civi l trial, in which he represented the s urvivors of

a woman killed i n a train crash, resulted in a $12. 5 million

verdict. A series of eye -popping verdicts and settlement s fol-

lowed, including a $425 m illion settlement from Mar riott

Corporation in 20 00.

Berg also works for the def ense. He was the rst lawyer to use

the battered woman def ense in Texas, winning an acquit tal of a

woman accused of murder ing her husband. His book recounts

his defense in hi gh-prole civil cases. But B erg also freely draws

on the experience of h is friend Joe Jamail, who won a $10.53 bil-

lion verdict for Pennzoi l against Texaco in 1985.

That wide and deep ex perience provides the foundation

for this book. The s tories he tells are the book’s heart. B erg

tells us that jurors pick up on t he relationship between lawyer

and client. As suppor t, he contrasts the relationship bet ween

Jamail, who repres ented Pennzoil, and its chair man Hugh

Liedke to the relations hip that Texaco’s lead counsel had with

its executives. Joe Ja mail was Liedke’s drinking buddy, and

they traveled the world together. Jam ail was ghting for some-

one he cared about. That b ond, Berg suggests, sent a powerf ul

message to the jur y.

On the other side of the ai sle, Texaco’s lead attorney had

never represented the compa ny before. He had difculty get-

ting its witnes ses to meet with him before testi fying and had to

ght in-house coun sel on trial strategy. Berg calls t his a viola-

tion of the trial law yer’s “one riot, one ranger” rule th at the

trial lawyer must b e in charge. The jury’s multibill ion-dollar

verdict, Berg con cludes, was a tribute to the different relation-

ships the clients had w ith their counsel.

Stories like the se infuse this book, and t hey transform what

would be helpful but bland advic e into memorable anecdotes.

Berg is showing off h is trial skills here. He knows t hat we’ll

forget most of the rule s he’s written down af ter we’ve nished

this 514-page book. But the s tories will stick with us.

Berg implores civi l lawyers to personally investigate cas es as

crimina l lawyers do and not just to rely on formal discovery.

He urges us to visit t he scene and the city and to visit the of ce

of our client. Bec ause he has visited the scene of the accident or

the boardroom where t he merger took place, Berg knows what

people saw, heard, and smelled. T his helps him question wit-

The Trial Lawyer Offers Both

Advice and Challenge

The Trial Lawye r: What It Takes to Win is available at http:// bit.ly/LN461-berg.

nesses and relate to jur ies. Berg peppers his book with ex hibits

from the Pen nzoi l case and other s that support his theme. He

shows us the demonstrat ive graphic that Pennzoil used at tria l

to show the jury its dam ages; the Memorandum of Agreement

in the Pen nzoi l case, complete w ith handwritten notes; and a

copy of the bank deposit sl ip showing the $3 bill ion payment

that nally se ttled that lawsuit in 1988.

He is a big believer in mock t rials and focus groups. But he

suggests somet hing counterintuitive: In foc us groups, tip the

scales agai nst your client to determine the most per suasive evi-

dence your side has. He bel ieves that the most powerful tria l

themes come from lis tening to the panelists aft er the mock

trial is over.

The book is organ ized into detailed chapters. T he table of

By Andrew J. Kennedy, Litigation News Team Editor

30 | SEC TION OF LITIGATION