On the Jury Trial

By Thomas M. Melsheimer and Judge Craig Smith

Date of Publication: 2017

250 pages


What Is This Book About?

On the Jury Trial by Thomas M. Melsheimer and Judge Craig Smith walked us through the important and key points of a trial from a unique perspective, in that the authors are both an experienced trial attorney, and an experienced judge who, before sitting on the bench, also tried cases. The book is organized well – split into chapters to walk you through each part of the case, from voir dire to closing arguments.

What Did I Like About the Book?

The first thing I really enjoyed about this book was that the chapters were split nicely, so you knew exactly what topic you were learning about in each chapter. Then, at the end of every chapter, the authors included a checklist of about 10 tips, with bullets under some of those tips, of what exactly their readers should have taken away from this book. I love when authors include this in books that are supposed to be educational, because as a reader, it’s a way to make sure that up until this point, we have understood and taken away everything we needed to so far.

Another thing that I really enjoyed about this book was that the authors included so many examples. People learn in different ways. Some people can sit and read about what they’re supposed to do, and then just go and do it!  Other people, however, need to read about what they’re supposed to do, see examples of other people do it, and then go and do it. As someone who certainly learns best the second way, it was so helpful for me to read the example passages included in this book. For example, in the Opening Statement chapter, pages 49-72 are solely examples of excerpts from opening statements. Not only do the authors include the transcripts of these examples, but in bold throughout the example, the authors include their own opinions as well. It was a creative way of feeling like I was able to “pick the authors’ brains” about their thoughts, and I really enjoyed those portions.

The third thing I enjoyed about this book was the authors’ subsection in the Opening Statements chapter about How to Prepare an Effective Opening. In the last book we read, The Articulate Advocate written by Brian K. Johnson and Marsha Hunter, they strongly discouraged writing a statement addressed to the jury out, and wanted their readers to focus on the unnaturalness of planning for what to do if their statements are forgotten.[1] In this month’s book, On the Jury Trial by Thomas M. Melsheimer and Judge Craig Smith, these authors want their readers to write out their opening statements word for word. They say that the readers obviously then don’t have to deliver the entire opening statement verbatim from what they prepared, but to prepare by writing as if you were going to give one. Then “[o]nce you have the words to say, you can reduce them to note cards with brief key words or phrases to guide you.”[2] This is a perfect example of how people are different! And in order to be successful, first you have to figure out what style of preparation works for you.

What Didn’t I Like About the Book?

This book was good and pretty straightforward, so there was not much I didn’t necessarily like about it. The only thing I would say, though, is Mr. Melsheimer and Judge Smith both practice law in Texas, and often throughout the book they will mention Texas law or how this and that is normally done in Texas. It was fine to include in the book and interesting for comparison purposes, but as someone who never really seeks to practice in Texas, I could have done without those parts included.   

What Did This Book Teach Me About Advocacy?

Something this book taught me about advocacy was included in the Voir Dire chapter. I feel as though so often, as a future attorney we hear people suggest, “don’t ask questions you don’t know the answer to!” So voir dire in general is interesting, because it opens up an entire floor to the potential jurors who have the fate of your case in their hands, and to hear what they have to say, you must ask these types of otherwise forbidden questions. This book talks about how during voir dire, it’s important to ask open-ended questions. As a future attorney, I could see this making me a little nervous, only because I would want control over what I may have someone in the courtroom talking about. At one point, the authors wrote, “[l]et the potential jurors speak, not you.”[3] This is something that is hard, but necessary, because as trial attorneys we need to hear what those jurors think about potential issues in their case, in order to decide if we want to keep them as jurors or strike them.

In this book, the authors bring up a phrase I have never heard before, Passion and Reduction. The advocate must be invested in what they’re saying to the jury. If we as advocates don’t believe in our case, how are we supposed to ask other people to find in our favor? That’s the passion. We need to have passion and that’s exhibited in different ways. This book stresses the importance of “[d]o, but also seem” which was spoken by a Jesuit priest named Gracián in the 17th century. The authors write “[i]n our view, the single biggest compliment a trial lawyer can receive from a juror is this: ‘Mr. Lawyer, you really seemed to believe in what you were saying.’”[4]

Reduction is the concept of reducing your entire case down to one sentence and being able to tell a jury something along the lines of “this case is about _____.” The idea is that if it’s so simple that the jury should just find for your client, then it should not be challenging to reduce the entire case down to a mere sentence, and then by doing so, as advocates we are “framing the narrative into a statement the jury can remember and invest in.”[5]

A final thing this book taught me was in the Direct Examination and Cross Examination chapter. While I find so many advocacy books that focus so much on how to write good examinations, or conduct them, the unique road this book took was spending a lot of time on how to prepare your witnesses so they’re ready to take the witness stand. This was something I feel I have definitely not put enough thought into and need to start to learn a little more as I prepare to become a trial attorney. The authors walk us through, step by step, how we should begin meeting with our witnesses and what to do during each meeting up until it’s time to call them to the stand. An interesting tip they included was to begin by laying out upfront what is at stake, and why their testimony is important. Giving the witness a full picture and helping them understand is definitely going to help them be able to take the stand and tell their truth.

How Am I Going to Be Able to Be a Better Advocate Because of This Book?

I am going to be a better advocate because of this book – because this book is about real life experiences and aims to prepare the reader for an actual trial. A flaw of mine I have noticed recently while taking on the world of advocacy is that I have become too mock trial based, and nearing my second semester of 3L year, it’s time to start switching gears to get ready for the real world. With tips from this book, I am beginning to do so. For example, it’s common in every mock trial for each side to call two witnesses and prepare two direct examinations and two cross-examinations. However, this book brings up a good REAL life application, that not every witness needs to be cross-examined. Every word you speak to the jury needs to hold importance, and you don’t want to waste their time, or the court’s time either.

Another way I am going to be a better advocate because of this book was explained in the Opening Statement chapter where the authors remind us to concede the bad facts. I feel like conceding to bad facts can get a little muddy and confusing sometimes because you want to get ahead of things, and never want to look like you’re “hiding” facts from the jury, but a fear of mine is always mentioning a bad fact, that my opponent was not even planning on eliciting! So, any reading on this topic is always helpful to me, as it’s always something I feel I could work on and get practice perfecting.

[1]  Brian K. Johnson and Marsha Hunter, The Articulate Advocate: Persuasive Skills for Lawyers in Trials, Appeals, Arbitrations, and Motions, 86-89 (2016).

[2] Thomas M. Melsheimer and Judge Craig Smith, On the Jury Trial, 42 (2017).

[3] Id. at 17.

[4] Id. at 39.

[5] Id. at 40.