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I. Introduction 1
II. Spellbinding Raconteur 4
III. Grit 16
IV. Virtuoso Cross-Examiner 20
V. Preparation 30
VI. Unfailing Courtesy 32
VII. Great Listener 34
VIII. Unsurpassed Judgment 38
IX. Reasonableness 41
X. Conclusion 43
I. Introduction
Walk into any state or federal jury trial from Alaska to Florida, or from Maine to Hawaii, and you will likely discover the long-awaited cure for insomnia. Bottle it, sell it on a TV infomercial, and you could get rich. So what is this cure? It is boredom: "the sounds of lawyers droning on and on with their technical arguments, their redundant questioning of reluctant witnesses, the subtle points which are relevant only to them."1
George Bernard Shaw might as well have been describing modem "litigators" when he observed that "[t]he single biggest problem in communication is the illusion that it has taken place."2 The vast majority of lawyers do not communicate effectively with jurors. How do I know this? As a federal trial court judge for nearly a quarter century, I have carefully observed lawyers from all over the country try cases in federal courts.3 More importantly, at the conclusion of each trial, I have given every civil and criminal juror a questionnaire to evaluate the lawyers (and myself as the trial judge). Reading thousands of these juror evaluations has given me rare insight into how jurors view trial lawyers.4
After all these years as a federal trial court judge, I remain shocked that lawyers with both the perseverance to make it through law school and the courage to enter a federal courtroom are still so lacking in the art of persuasion and in the traits necessary to become great trial lawyers. Many articles have been written about the vanishing civil jury trial,5 and I recently wrote about the rise of the "litigation industry" and the demise of trial lawyers through a mock obituary for the death of the American trial lawyer.6 In this Article, I share four decades of experience, including thousands of hours spent observing trial lawyers, in hopes of reversing the trend of "the dying trial lawyer" and helping attorneys who seek to become the next generation of Clarence Darrows7 and Gerry Spences.8
During my time as a federal trial court judge, I...