Font Size:
Litigator's Book 'How To Succeed As A
Trial Lawyer' Offers Fresh Advice
The Connecticut Law Tribune
April 1, 2013
in Share 0




Stewart I. Edelstein
Law Tribune File Photo
In his spare time, trial lawyer Stewart Edelstein, of Bridgeport's Cohen and Wolf, co-teaches one of the
most popular courses at Yale Law School, in advanced trial practice, with Fred Gold, of Shipman &
Goodwin.
Now's he's written a book published by the American Bar Association titled How to Succeed as a Trial
Lawyer. Its three target audiences are law students, lawyers learning the ropes and accomplished trial
practitioners. Because most cases resolve short of trial, the book is also a compendium of insightful
pointers on how to deal with everything else in a lawyer's life.
With the authority of a veteran coach, Edelstein explains why some client opportunities should be
approached with caution. He warns why one needs to think before emailing. He has good insights about
winning short of trial as well, in mediation, arbitration and negotiation. A survivor of many battles, he
explains the importance of sleep, nutrition, and sustenance of the inner lawyer. Most of all, in
communication, he counsels cogency — no wasted words.
The book's designed to be a practical tool, with checklists and tables that link the text to specific federal
rules, evidence rules, arbitration rules and the rules of professional responsibility. Recently, Edelstein
discussed the book with the Senior Writer Thomas B. Scheffey.
LAW TRIBUNE: How did you decide to write about this topic?
STEWART EDELSTEIN: I asked myself what books have already been published that a trial lawyer
learning the ropes could benefit from. While there are some books devoted entirely to how to try a case,
others about how to arbitrate, and others devoted to how to take a deposition, there was no one book that
covered everything that an aspiring trial lawyer needs to know. That includes, among other things, how to
deal with clients, opposing counsel, witnesses, judges, clerks.
And how to do ostensibly simple things, like how to preserve the attorney-client privilege. If you ask the
client for their email address, you don't think twice and send emails to their work email. Then you
discover to your horror that you've waived the attorney client privilege because at the place of
employment, the client has no expectation of privacy. You find your very sensitive emails are no longer
covered by the privilege.
LAW TRIBUNE: Much of the book deals with the part of the job that takes place outside the courtroom.
EDELSTEIN: Even of the cases which are brought in federal court, only two percent are resolved by a fullblown trial to judgment, and that doesn't include the disputes resolved through mediation or arbitration.
The great majority of the time and effort of a trial lawyer is not what goes on in the courtroom. Very able
trial lawyers resolve most matters in a way that makes sense, because litigation through judgment and
appeal is usually not in the best interests of the client.
Of course, in some cases there's no choice. You absolutely must know how to try a case. If you have a
reputation of not being willing or able to go to trial, [you're like a gunslinger loaded with blanks]. I did
extensive research, and there's no book out there that covers all of the subjects in my book.
One chapter I consider particularly beneficial is "Coping with Stress and Creating a Life Beyond the
Practice of Law." Unless you can do that, you can't do anything else.
LAW TRIBUNE: One point you make is that great trial lawyers don't have to be hostile and ferocious to
prevail.
EDELSTEIN: In my chapter on opposing counsel, I talk about how opposing counsel is not your enemy;
he or she is your adversary. You get what you give. Some young lawyers may think you need to be overlyaggressive, abrasive and obnoxious. That doesn't work. It only causes opposing counsel to act in kind.
What I find is that lawyers in Connecticut and elsewhere at the highest levels are typically very
professional, very diligent, very pro-active, but also not nasty, not overly-aggressive. They've been around
the block, and they know what works and what doesn't. Acting obnoxious is counter-productive.
LAW TRIBUNE: There has been much talk about the vanishing trial. Is litigation on the wane?
EDELSTEIN: I think that litigation is not on the wane, in that there will continue to be actions brought in
court, the great majority of which will be resolved prior to entry of judgment. But anyone who wants to be
a successful trial lawyer must know how to try a case. Otherwise, they won't be able to anticipate what
may occur at trial – how evidence and witnesses will stand up — but also what a likely result might be.
Even though most cases settle, unless opposing counsel knows you have the ability and willingness to try
the case, saying you might do so will be an empty statement. You always want to bargain from a position
of strength.
LAW TRIBUNE: You place a great emphasis on thoroughly understanding the case through discovery.
EDELSTEIN: I devote an entire chapter to depositions, and discuss in detail in another chapter other
forms of pre-trial discovery. If you do your homework, you can say with confidence, 'I'm prepared. I know
what I'll be able to prove in the courtroom if we try this case. I'm ready to go. Now, if you want to settle on
some reasonable, basis, fine. Otherwise, let's get this case tried.'
LAW TRIBUNE: You break up the text with a number of aptly chosen cartoons, like your illustration of
the importance of not wasting words in briefs or oral argument.
EDELSTEIN: It shows a Native American with a hill in the background, and there are many, many puffs
of smoke coming off the smoke signal fire in the distance. The caption is, "It's from my lawyer." I chose 14
cartoons from the New Yorker that were apt for the point I was making. [I didn't want] a dry treatise. I
include the theme to Beethoven's Fifth to make a point about weaving a theme into each witness's direct
and cross-examination, weaving that theme into each exhibit, into the opening and closing statement, and
into the jury charge. I have my own version of a graphic about how to take a deposition, and a flow chart
in my section on how to deal with stress.
LAW TRIBUNE: This seems to be a distillation of an entire career.
EDELSTEIN: Each chapter could turn into a book in itself. I decided to cover all the basics. •