Wednesday, August 24, 2016

TURNING POINTS AT TRIAL by SHANE READ

My favorite professor in law school was Hayford O. Enwall, a retired Federal prosecutor who had a "war story" to illustrate every point of law he covered in each of his classes. I believe that learned more about the practice of law from Professor Enwall than I did from all my other professors combined. At least since the time that Plato wrote his dialogs, we have been teaching by telling stories, and it is an effective way to get one's point across.

Shane Read, a Federal prosecutor and an adjunct law professor, has adapted the Enwall method of teaching by story telling in "Turning Points at Trial" to the illustrate important principles of trial advocacy, and the result is both informative and entertaining. Read takes each aspect of the lawyer's craft and tells the story of how a master craftsman performed brilliantly. He begins with a short biographical sketch of the actor, introduces the case, discusses the issues, uses excerpts from the transcript of the trial to show how the lawyer achieved a stunning victory, and then interviews the lawyer to gain insight into the lawyer's strategies and tactics. The cases are interesting; the issues are important; the victims are worthy of empathy; the villains are villainous; and the heroes are heroic.

I got the book day before yesterday and planned to take my time and read a chapter now and again in my spare time. After I read the first chapter, I set the project I was working on to the side and finished the book this afternoon. I won't say that it was as gripping as a David Baldacci thriller, but it certainly had me hooked. The stories were uniformly interesting and some of them were quite moving. Chapter 5 in particular, which dealt with a rape prosecution, was difficult to read. I handled sexual assault cases during all 32 years of my active practice and prosecuted a steady stream of them for about 15 years. That chapter brought back too many unpleasant memories.

The book is divided into seven parts, with one part each for Opening Statement, Direct Examination, Cross-Examination, Cross of the Expert, Closing Argument, Depositions, and Appellate Argument. Each part has multiple chapters, and each chapter is devoted to a different lawyer with a slightly different approach to the same task.

The principles enunciated throughout the book are sound, and I found myself saying "Amen" to numerous comments that the lawyers made during their interviews. No experienced trial lawyer, however, has ever looked at the work of another trial lawyer without finding something to disagree with. I spent my entire career in criminal court, and on the rare occasions when I went to civil court it was usually because I had been subpoenaed as a witness. I was flabbergasted at what civil plaintiff's attorneys can get away with saying in opening statement and final argument. Some of the things they can say in a wrongful death case will cause an instant mistrial in a murder case. If you're a young prosecutor reading this book, I strongly suggest that you do a little legal research about the propriety of some of those statements before you incorporate them into your arguments. With that caveat in mind, the book is an excellent teaching tool for anyone wishing to learn more about the finer points of trial advocacy.

POSTSCRIPT: The book has one factual error that I feel constrained to clear up because it tends to besmirch the integrity of our 16th president. Chapter 6 tells the story of how Allan Dershowitz won a case on cross-examination by pretending to have a non-existent transcript. When he was called down by the judge about it, Dershowitz defended himself by saying that Abraham Lincoln had done much the same thing when he used a faked almanac to break down the testimony of a perjured witness. Lincoln never did any such thing. The almanac was for the correct year, as attested by two members of the jury, John T. Brady and Milton Logan, and confirmed by the investigation of Lincoln biographers Albert Beveridge, J. McCan Davis, William F. Barton, Jason Gridley, and a host of others. The fake almanac canard was a lie made up by Lincoln's opponents in the 1860 presidential election. There's an old saying that a lie can go around the world before the truth gets its boots on. That's certainly true of the lie about Lincoln and the fake almanac.