Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Friday, September 9, 2011

Book Review Highlight Berger, Trial Advocacy and Clark, Cross-Exam Handbook

0735598436 0735598169

In Feb. 2009, I reviewed the 2d edition of Berger, Mitchell and Clark, "Trial Advocacy, Planning, Analysis, and Strategy" 2d edition, which I highly recommended. I am pleased to again highly recommend the Third Edition which just came out in 2011 I am also pleased to recommend the companion book "Cross Examination Handbook" which also just came out in 2011 by Clark, Dekle, Sr. and Baily. 

I wish law schools utilized more texts such as these. In a nutshell, the trial advocacy book teaches you how to try cases and the cross examination book teaches you about the art-and it is an art- of cross examination. 

The cross examation book spans 389 pages and contains a CD with sample files and assignments. The trial advocacy book spans 619 pages and contains a DVD which is a case demonstration that is well worth watching. 

Aspen's web site describes the cross examination book as follows:

  • Concrete instruction on planning the winning cross-examination, such as how to select the content and mold it into a persuasive concession-seeking or impeachment cross
  • Practical techniques and strategies for performing cross, including witness control, handling problematic witnesses and successfully cross-examining experts
  • Illustrative cross-examinations from notable trials, such as the O. J. Simpson, Scopes, Senator Stevens, and Enron, show how to apply cross strategies and techniques
  • Case files and role-play assignments provide opportunities to practice preparing and performing cross-examinations in two criminal and two civil cases
  • Ethical and legal boundaries of cross-examination
  • Teacher’s Manual and Actors Guide and suggested syllabi make the exercise material both teacher-, lawyer- and student-friendly

The trial advocacy book is described in turn as:

Trial Advocacy: Planning, Analysis, and Strategy conveys a clear understanding of the trial process, how lawyers think, and the strategies and techniques of trial persuasion. An accompanying DVD features trial demonstrations by veteran litigators. A regularly updated companion website provides articles, supplemental materials, downloads, and links to additional resources.

Updated throughout, the timely Third Edition provides checklists in each chapter as a useful teaching aid. Topical coverage has been expanded to include discussion of Internet interference during trial and the use of focus groups, trial simulations, and technology in trial preparation.

Trial Advocacy: Assignments and Case Files, a separate publication, contains 84 role-play assignments and is cross-referenced to Trial Advocacy: Planning, Analysis, and Strategy.

Many a lawyer can benefit from reading these two books. I have one constructive thought. Both books contain virtually no cites to cases and only occassionally cite to FRE. I would have much preferred the books if they contained footnoted authority. That way, it would be easier for a lawyer to back up a position he or she may have taken. 

Mitchell H. Rubinstein

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