Paul Bergman - Bergmans Trial Advocacy in a Nutshell, 5th

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JESSE H. CHOPER

Professor of Law and Dean Emeritus,
University of California, Berkeley

JOSHUA DRESSLER

Professor of Law, Michael E. Moritz College of Law,
The Ohio State University

YALE KAMISAR

Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

MARY KAY KANE

Professor of Law, Chancellor and Dean Emeritus,
University of California,
Hastings College of the Law

LARRY D. KRAMER

President, William and Flora Hewlett Foundation

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER

Professor of Law,
Washington & Lee University School of Law

JAMES J. WHITE

Professor of Law, University of Michigan

FIFTH EDITION

By

PAUL BERGMAN

Professor of Law, Emeritus
University of California, Los Angeles

Mat #41326388

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ISBN: 9780314284396

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With Gratitude For My Family

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This Fifth Edition continues its predecessors focus on both the technical skills of courtroom advocacy and effective persuasive strategies.

My review of the Fourth Edition revealed several portions of text in which the didactic value of analytical subtleties was substantially outweighed by the risk of unfair complexity. Under the editorial equivalent of Federal Rule of Evidence 403, unnecessary analytical subtleties have been stricken from this Fifth Edition

One added feature in this edition consists of analyses of trial transcripts taken from classic courtroom movies. For example, you will find analyses of the opening statements from Philadelphia , a direct examination of an expert witness from My Cousin Vinny , and Atticus Finchs closing argument in To Kill a Mockingbird . The carefully-chosen scenes are realistic yet concise enough to provide useful and interesting learning opportunities. Moreover, while you might not be able to watch great trial lawyers of the past in action, you can enhance your learning by combining the analyses with viewing the scenes. And if this Nutshell foments your interest in watching courtroom films, my co-authored book Reel Justice: The Courtroom Goes to the Movies (2006) has descriptions and folksy analyses of over 200 films. Also, the VI Nutshell concludes on a light note by mentioning memeorable courtroom movie lawyer pranks. For further information on this subject, see my essay entitled Pranks for the Memory , 30 University of San Francisco Law Review 1235 (1996).

Chapters 9 and 10 greatly expand the previous editions attention to the process of laying foundations for the introduction of evidence. Even the most rhetorically-gifted litigator has to know how to perform such basic yet crucial trial tasks as demonstrating relevance, authenticating electronic messages (emails), eliciting opinions, satisfying the Original Writing (Best Evidence) Rule and establishing the elements of hearsay exceptions. The new materials explain and illustrate crucial trial skills such as these.

Civility among litigators, or more accurately the lack thereof, is a frequent agenda item at bar association meetings. Chapter 1 includes a short introduction to this sadly-necessary conversation.

My goal as always is to produce a book that is clear and reader-friendly. To that end, I have reviewed and edited the Fourth Edition text in its entirety. I hope you enjoy reading the book and find it helpful.

PAUL BERGMAN

Los Angeles
November 2012

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The people whose contributions are reflected throughout this book know who they are. However, apparently this was not good enough for them. Thus, I publicly acknowledge and give gratitude to my long-time and valued UCLA colleagues David Binder and Albert Moore, whose ideas permeate the text. Among the many practicing litigators who have been kind enough to provide feedback and suggestions, I want to especially thank Randy Even, a longtime friend and excellent litigator. Randy proves that the values of decency, public service and private advocacy can co-exist in one person.

Thank you also to Professor Sander Goldberg of the UCLA Department of Classics for background information on the trial of Euphilitis. And I am grateful to UCLA Professor Edward Geiselman, who testifies frequently as an expert witness in eyewitness identification and who contributed greatly to the books discussion of expert witnesses.

To anyone whos gotten a draft of the manuscript with a request for feedback, you can now delete the draft.

OUTLINE

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FIFTH EDITION

Influenced by films, TV shows and news media reports focusing on courtroom disputes, theatrics and strategies, you may have embarked on law school with the goal of becoming a litigator. Perhaps the most visible and enduring symbols of the American legal system, adversarial trials (in popular culture, almost always with juries present) are also one of its most important. Trials are the mechanism by which individuals and institutions enforce the rights that legislatures and judges create, and are at the center of the popular self-conception of the American public that the United States is a country of laws, not of people.

For law students and novice litigators, however, the mythology of the courtroom can be intimidating. Popular culture images, in combination with lawyers war stories describing courtroom triumphs and tragedies, tend to suggest that effective courtroom advocates must possess:

* the story-creation skills of a Pulitzer Prize-winning novelist;

* the performance skills of an Academy Award-winning thespian;

* the forensic skills of a debate champion; and

* an unfailing knack for ferreting out mendacity.

(For example, consider barrister Sir Wilfrid Robarts monocle test in the classic courtroom film, Witness for the Prosecution . Sir Wilfrid determined clients honesty by studying their facial expressions closely as they answered his questions while trying to fend off the light reflected into their eyes from his monocle.)