April 2002

Book Review

On Trial: A Treasure Trove for Trial Lawyers

by  Thomas J. Greenan

On Trial: Lessons from a Lifetime in the Courtroom

Here is a book for all trial lawyers, whether they are at the beginning of their careers or leaders of the trial bar. On Trial is the accumulation of knowledge, wit and wisdom of a distinguished trial lawyer who has spent a lifetime in court. It is a humorous, witty, but always practical guide on how to survive and prosper in front of judges and juries.

Henry G. Miller is a prominent member of the New York State Bar Association. His many accomplishments include previous service as director of the New York State Trial Lawyers Association, president of the New York State Bar Association, and regent of the American College of Trial Lawyers. On Trial is based upon a series of essays that Miller first penned for the New York Law Journal. The essays were immensely popular, and he was encouraged to compile them into this entertaining, instructive and very readable little book.

On Trial is a treasure trove for trial lawyers. It is a distillation of the wisdom garnered by a distinguished advocate during a 40-year career in the courtroom. Miller covers every phase of a trial, offering common-sense advice on the art of advocacy. The prologue, titled Trying Your First Case? Nineteen Tiny Tips, offers advice that I wish someone had given me earlier in my career (e.g., forget yourself, love your client, don't shoot every mosquito, make lists, over-prepare, be yourself).

The chapters that follow are filled with common sense that comes only after years of experience and some hard knocks. For example, chapter one, The Forty-Four Most Common Blunders of Jury Selection, identifies mistakes that could only be recognized by one who has painfully lived through them. Blunder No. 7, "Stupidly Using Your Last Challenge," is contrasted with No. 8, "Stupidly Not Using Your Last Challenge." The discussion of Blunder No. 35, "Engaging in Levity," precedes an examination of Blunder No. 36, "Not Engaging in Levity." You get the idea.

Once I started reading On Trial, I found it difficult to put down. The very titles of the chapters enticed me onward: Opening – The Twenty-Seven Steps; Direct Examination – Thirty-One Pertinent Pointers, Fifteen Suggestions and Four Rules on How to Survive Cross-Examination; Some Dos and Don'ts for Summation; and so on. Although always focusing on the practical, the book is presented with the warmth and humor of one who is, quite obviously, very happy with his chosen profession.

This is not just another "how-to" book. Miller also sets out his philosophy for trial lawyers, embodied in chapters such as Courage, or Trying a Case When the Judge and Jury Hate You and The Ten Most Common Transgressions Against the Manners and Morals of Advocates. Typical of the advice offered throughout is the following: "Did you ever hear of a lawyer's losing a contract? If you lose a trial, every explanation seems lame. The client who adored yesterday's summation glares at you in disgust after today's defeat. The jury has rejected you. It's a personal defeat. It burns in memory. Defeat is the price trial lawyers pay for success."

Miller sprinkles his text with quotations, learned and otherwise, from many sources, such as this one by Mark Twain:

"The efficiency of our jury … system is only marred by the difficulty of finding twelve men every day who don't know anything and can't read."

Seasoned advocates and raw beginners will find much here to savor. Miller offers suggestions on how to live with experts, judges, colleagues and opponents. He discusses strategies for settlement as well as trial. Typical of his advice are the precepts which he offers for reaching old age at the trial bar: "Keep fit, be ethical, take vacations, have many interests, laugh, do not take yourself too seriously, love your work, be creative, face up to hard problems." As the author puts it, that's "[n]ot a bad prescription. Come to think of it, it is not a bad way to get through life for anyone — whether you are a trial lawyer or just a normal human being."

I found On Trial to be a very enjoyable read, and one to keep close at hand for periodic future reference.