Herbert Jay Stern - Trying Cases to Win: In One Volume

In One Volume

Opening Argument and Voir Dire, the first volume of Trying Cases to Win, was published in 1991. It was followed by three additional volumes: Direct , Cross, and Summation . Each of these volumes immersed the reader head and heels into trial transcripts of great advocates of the past in an effort to vindicate principles that would otherwise be entirely theoretical. It is one thing to say, This is the right way to ask a question on direct to offer an exhibit to deal with a witness on cross-examination who refuses to answer. It is quite another to not only say these things, but then to dip into the trial records of great trial advocates to demonstrate how they actually did these choresnot how they said they did them.

The fifth volume, Anatomy of a Trial , applied the lessons and the maxims of its predecessors to a two-day trial. This was an effort to bring all the teachings of the four phases of the trial into perspective by analyzing a typical short trial.

Over the years, I have come to understand that while these five volumes have been useful to those who are serious about trial advocacy, it is difficult for both trial lawyers and law students to use them as I would wish. It is just not possible to lug five volumes around from court to court and to reread portions of so much in preparing for a particular argument or examination. And the five-volume work is simply beyond what the typical law class can manage at the outset of a study of trial advocacy.

Lawyers and law students who have time and interest can still benefit from reading the transcripts and more detailed presentations contained in the original volumes, which remain available. But, as years passed, I became convinced that distilling the prior work into a single volume would make it more available and more useful.

To capture the most essential principles and methods found in the earlier work in a concise single volume, I joined forces with Professor Stephen A. Saltzburg, my co-author of Anatomy of a Trial . Together we believe we have succeeded in distilling the most important lessons and maxims of the larger work into this one volume. As a result, particularly of his efforts, we not only have preserved the integrity of the larger work but also have added insights into such areas as expert witnesses and methods of dealing with unliquidated damages.

Steve Saltzburg and I first began to lecture and teach together in 1980. Some 30 years ago, we founded The University of Virginia Law School Trial Advocacy Institute, which is now the National Trial Advocacy College at the University of Virginia. This work is the culmination of that partnership as well as the work of dozens of faculty members who devoted their time and talents to that program. It is to them that this edition is dedicated.

As a young prosecutor 15 years ago I found my first volume of Trying Cases to Win in the library of the Miami State Attorneys Office. It became my reliable co-counsel. As the new volumes emerged over the coming years, I took them home to study the teachings and examples that Judge Stern had compiled to teach me trial practice. I had grown up in the home of an exceptional trial lawyer and had wonderful teachers in school who tried to instill some basic trial skills, but this was the first time I began to study the art and science of trial. As a prosecutor in Miamis criminal courthouse, there were plenty of trials to be had, and plenty of winning lawyers to observe, but Judge Stern served as a textual mentor whose transcript examples not only taught the principles, but also demonstrated lessons from which every trial lawyer could learn.

Now Judge Stern and my friend Professor Stephen Saltzburg have taken on the yeomans task of trimming the five volume work into one volume, which benefits from the additional insights that Professor Saltzburg brings to the work after decades of teaching trial advocacy and evidence while actually trying cases. The result is a tactical volume that sets out the guiding principles with such skill that the winning argument becomes clear. The years of work that have gone into learning the lessons of this volume, matched with the years that have gone into its drafting and now culling, certainly meet with Marcus Quintillianuss message to his friend and publisher Trypho when citing Horaces precept from his Art of Poetry where he chastised hasty publication and urged the would be author To withhold his work till nine long years have passed away. Our profession need wait no longer because the seminal work on trial practice is now before you.

Law students who are fortunate enough to begin their study of the law with this book as their guide can grasp the concepts and their applications from the text before they ever enter their first courtroom. Young associates around the country can turn to this book as they prepare their first real cases for trial. This treasure of our profession however, is not just for those new to the law. To the contrary, seasoned practitioners who must face tough challenges in court after years of trial work can turn to Trying Cases to Win to burnish rusty skills or refresh robust confidences the night before a big witness in the middle of a major trial.

Lord Dennig, who served his King and Queen as Lord Justice of Appeal and later as Master of the Rolls for over 20 years in the United Kingdom, wrote of the landmarks in the law. He spoke of boundaries of principles, just as stones had been originally set to mark the boundary of a mans land or as a sailor set his course by landmarks on the coast. So to does this volume set the boundaries of excellence in the practice of law. It does not mean that there is no room to innovate; what it does mean is that this book tells, and shows, you how to make your best case and gives you the skills to frame your point.