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The Jury Is Out

With jury trials becoming less prevalent, a Dallas attorney and judge partner up to become authoritative sources on the subject.

“On the Jury Trial,” a new book co-authored by Dallas lawyer Tom Melsheimer and Dallas judge Craig Smith, is generating quite a buzz in legal circles. AmLaw Daily called it “wise and funny,” and said it should be “on every litigator’s reading list.” But is a book on trial pointers still relevant in an era when the jury trial is rapidly becoming an endangered species? Renowned trial lawyer Steve Susman of Susman Godfrey says, “Sadly, we’re giving tips to a shrinking audience. That’s why I stopped teaching trial advocacy.”

Susman should know. In 2015, he helped establish the Civil Jury Project at New York University School of Law in order to study the reasons for the decline in civil jury trials, whether it matters, and whether anything can be done to reverse the trend. According to Susman, by 2006 there were half the number of trials compared to 1962. Susman and others have pointed to a variety of potential causes: tort reform measures; the availability and popularity of mediation as a form of alternative dispute resolution; and changes in the law giving judges greater latitude to question expert testimony and dispose of a case through a summary judgment. But while he bemoans the prospects of “teaching dinosaur hunting,” Susman is fervent in his belief that “jury trials are the best way to determine the truth in any dispute about what happened.” He is also optimistic about innovations to make jury trials more accessible by providing training opportunities for young lawyers and even judges.

And that is where the uniqueness of “On the Jury Trial” applies. Books on trial advocacy generally fall into one of two categories: pedantic tomes written by law professors that are heavy on the technical aspects of trial, and the breezier volumes written by elder statesmen of the bar that read more like a loosely strung together collection of war stories. At 254 pages, “On the Jury Trial” clearly doesn’t belong in the first category. And while it is written with plenty of illustrative anecdotes from real life trial lawyers, it provides the perspectives of not just the trial counsel but the presiding judge as well. Susman (who contributed a cover blurb for the book) says this approach puts the book on a singular platform that makes it valuable “particularly for judges, because we have so many new judges taking the bench who haven’t had much experience trying cases.”

According to Susman, by 2006 there were half the number of trials compared to 1962.

Indeed, the authors’ credentials are one of the book’s biggest draws. Judge Craig Smith has been the presiding judge of Dallas County’s 192nd District Court since 2006, and is a past president of the Texas Association of District Judges. A former “Trial Judge of the Year” as named by the Dallas chapter of the American Board of Trial Advocates, Smith was a successful plaintiffs lawyer before taking the bench. And even before co-founding the Dallas office of Winston & Strawn (where he serves as managing partner), Tom Melsheimer had earned a national reputation as a trial lawyer. His broad courtroom experience includes representing Dallas Mavericks owner Mark Cuban.

So why would two seasoned courtroom veterans with demanding schedules take the time to write a book? You can rule out financial gain right away. The book is published by the University of North Texas Press, and all of its net proceeds have been donated by the authors to the UNT Dallas College of Law. For Melsheimer, the motivation was to educate lawyers coming up through the ranks. “Getting jury trial experience is very difficult these days,” he notes. “This book is not a substitute for actually trying a case, but we believe it will help any lawyer learn how to better try one when the opportunity arises.”

Judge Smith was attracted by the opportunity to lend some insight into the workings of a judge’s mind. He points out that “as a trial lawyer, I thought I knew what it meant to be a judge. But, it turns out, I didn’t. I wanted to share the judge’s perspective because the trial lawyer is so caught up in her own argument that she forgets that the judge is dealing with hundreds or thousands of cases.”

The book, which took nearly two years to write, covers all stages of a jury trial, from opening statement through closing argument and the jury charge. One segment, though, receives particular attention: opening statements. Both authors say this was intentional, calling the opening statement “quite simply, the most important part of the case, especially for a trial of less than a week.” The opening statement, according to Melsheimer, “frames all of the issues.” Judge Smith agrees, adding “closing arguments often get more play, but it’s hard to win a case without a very effective opening.”

“On the Jury Trial” differs from earlier works on trial advocacy in a number of ways. Knowing that they “didn’t want a book of a bunch of war stories,” Melsheimer says, the authors chose to make use of tips, insights, and examples from other trial lawyers such as Susman and Dick Sayles of Sayles Werbner. “We wanted to take what we’ve been learning and seeing, and craft something educational,” Melsheimer says. Judge Smith points out that it was often difficult to decide on examples to use, but felt “an example stood out to us when it made a very good teaching point.” There was no shortage of real-world examples, including cases from the authors’ own careers. The SEC v. Mark Cuban trial is used to illustrate certain insights. In response to Ross Perot Jr.’s claims in one lawsuit that Cuban had diminished the value of the Dallas Mavericks, Melsheimer filed just one article: a photo of the owner and team celebrating after winning the NBA Championship. Yet there are plenty of “what-not-to-do” examples as well. As Judge Smith puts it, “we wanted to give some less-than-ideal examples so we could be gently critical where appropriate. Sometimes seeing how something is done wrong can help you do it right.”

Another thing that sets this book apart is its willingness to reject timeworn advice and embrace the unconventional. As Melsheimer notes, “Sometimes, doing what has worked before will not work again. We have to constantly road test and be willing to reinvent our techniques, our approaches, and even our styles. That said, we also have to understand why a particular approach didn’t work.” A willingness to adapt, the authors say, is crucial given the challenge of trying cases in the age of Twitter and the instantaneous news cycle. “Everyone’s attention span is shorter now,” says Judge Smith. “You have to capture the jury’s attention and keep it, and there is a lot more competition for that attention now.” Melsheimer concurs: “It’s almost like an arms race for who can put on the most visually appealing case,” he says.

For Melsheimer, trying cases hinges on two key concepts, passion and reduction. Believing in what you’re saying as an advocate is crucial because “you can’t provoke a belief in others unless they sense you have the same belief.” At the same time, however, a good trial lawyer has to be able to reduce the case to a sentence or two. If not, Melsheimer warns, “you haven’t sufficiently simplified the issues for the jury.” Judge Smith cautions that lawyers also have to be keenly aware of the importance of civility and integrity, especially given the judge’s perspective. “A judge will often, consciously or unconsciously, look to the lawyer’s credibility and reputation, especially when wrestling with a vexing legal issue. Can the judge trust the lawyer? Is she a straight shooter?” he says.

It’s vital advice to lawyers, especially given the pressures to get results. Royal Furgeson, dean of the UNT Dallas College of Law and a federal trial judge for 19 years, feels the book’s admonishments about civility may be its hallmark. Noting the book’s advice of “don’t overstate anything” and “don’t throw mud,” Judge Furgeson witnessed those principles “more in the breach than in the abeyance.”

“On the Jury Trial” aims, then, to make the current generation of trial lawyers better. But it also has an eye on the impact on future generations of attorneys.    

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