Review of The Trial Lawyer's Art

A review from Trial, January 2000

Reviewed by William S. Bailey (who practices law with Fury Bailey in Seattle)

The last 15 years have seen a proliferation of books on the how-tos of trial practice. While nearly all these books have some merit, their approaches have become all too standard—courtroom cookie cutters on the shelf. Until now, the strategic and verbal art of trial advocacy has not been captured in a trade publication. That has all changed with Sam Schrager's book, The Trial Lawyer's Art.

Mr. Schrager, who is a teacher of cultural and community studies at Evergreen State College in Olympia, Washington, writes in a remarkably lucid style, unburdened by the usual scholarly jargon. He was curator of ATLA's 1986 program at the Smithsonian Institution's Festival of American Folklife in Washington, D.C. The mock courtroom presentations at this program provided him with some of the material for this book. He gleaned other material from observing actual cases in Philadelphia courtrooms and from interviews with lawyers.

In a sense, Shcrager takes on the role of a play-by-play announcer, extracting and analyzing pluses and minuses from action in a courtroom as a case unfolds. He makes you feel the heat, urgency , and survivalist "kill or be killed" reality of a trial lawyer's life.

Schrager's working premise is well founded: "Like all professional storytellers, lawyers shrewdly orchestrate myriad elements to make a convincing story....Justice in American society is pursued through competitive performance [and] ... to discover truth, in public life as in our imaginations, we rely on art."

Unlike other trial practice books, this one is a fun read. With a journalist's keen eye for detail and his own considerable ability as a storyteller, Schrager sits in the cat-bird seat of the criminal courts of Philadelphia and describes the battles for the hearts and minds of jurors. He asks himself constantly as a case progresses, Which lawyer created moments in the testimony and argument that make it likely that one side will win and the other will lose?

In so doing, Schrager emphasizes the consequences of the choices attorneys make about theme, style, and technique. "The approaches are grounded in the performance style the lawyer forms out of his or her personality, past experience, habits of thinking, and manner of being in the world," he writes.

In the end, Schrager discusses what worked for the attorneys he observed as well as what didn't, and why. And he's usually right on.

The author understands the critical facet of chemistry between a jury and an attorney and the fact that jurors must depend on appearances in the courtroom created by attorneys: "Because the truth of the events being contested in court can't be apprehended directly, jurors depend on appearances. The importance of finding the truth makes them more dependent on appearances."

In orchestrating testimony, evidence, and argument that will create a reality favorable to their clients, trial lawyers must integrate heart, mind, and reason. Schrager concludes that "the master trial lawyers are the ones best able to realize this integration....[T]hese abilities are not, ultimately, verbal or cognitive. They are qualities of mindfulness, outward manifestations of inward grace."

This is a book that all trial lawyers should read. The only caveat is the book may not be as helpful as it could be to civil practitioners because its principal focus is on criminal proceedings. But, for trial lawyers of all callings, it supplies a sophisticated analysis of the dynamics of winning and losing at trial and the interplay between substance and style, illusion and reality. The awareness of these issues cultivated by the book cannot help but give any trial lawyer an informed view of strategy, tactics, and theme choice.

The author respects who trial lawyers are as people and the intense and exacting demands of their craft. Yet, his obvious respect for the profession never causes him to lose his objectivity and become a groupie. In the end, the book is better because of the fact that Schrager is an outsider to the profession. This position allows him to take an unencumbered view of the courtroom.

The Trial Lawyer's Art is a start in a new and better direction for trial practice books. It provides a view from the trenches that breeds an understanding of, and respect for, what it is that trial lawyers are and do. Hopefully, it will lead to even more thoughtful works in this vein, by both Schrager and others.