Aaron J. Broder on Trial: Reflections of a Master Litigator.

Edited by George M. Gold Lawyers Cooperative Publishing, Aqueduct Building, Rochester, NY 14694. 413 pp., $40.

Reviewed by John A. Call

This book is not scholarly, at least not in the sense that it presents the reader with an encyclopedic reference manual of trial strategies and tactics complete with numerous citations to statutes and cases. Rather, it is a down-to-earth, somewhat jumbled collection of one trial lawyer's thoughts, observations, and advice, gathered over a lifetime of trying cases.

Aaron Broder is a practicing lawyer who has written a column entitled "Trial Tactics and Techniques" for the New York Law Journal since 1971. He has self-published The Broder New York Tort Reporter and has had material printed in other publications. This book is a compilation of Broder's articles, arranged and edited by George Gold, a former editor of TRIAL.

The book's 53 chapters are arranged in 10 sections. These sections are helpful guideposts for organizational purposes, but they were not strictly adhered to in the editing process. For example, I found suggestions on how to deal with onerous opponents in the fifth section and in the third. Likewise, suggestions regarding voir dire are scattered throughout the book.

In the first section, the author exhorts the reader to do what I call "possibility thinking" when developing viable theories of liability and uncovering responsible defendants. How to develop a case that makes sense to jurors is the key idea.

The second section, which deals with jury selection, includes some interesting examples of how to ask voir dire questions that not only seek out prejudice but also educate potential jurors with respect to the plaintiff's trial theme. In the third section, Broder provides practical advice on how to construct a trial story and direct the jury's attention to its strong points. I sense that he views a trial as a battle of two stories, plaintiff's and defendant's, each reflective of the same event but usually quite different in content.

The author provides helpful advice on how to handle opposing counsel's "hardball and lowball tactics." Broder makes the interesting distinction between nonjustifiable "lowball tactics" and a justifiable form of "hardball tactics," which he calls "highball tactics" and defines as a lawyer's legitimate assertion of a client's rights. Broder suggests responding to opposing counsel's highball tactics with a posture of fastidious boredom. To respond to lowball tactics, a lawyer should keep a detailed dossier of opposing counsel's misdeeds during trial and then dramatically expose those misdeeds to the jury during summation.

In section 4, the author discusses discovering hospital records, jousting with opposing counsel during depositions, and cross-examining a medical expert using medical literature. I particularly enjoyed the chapter that discusses direct and cross-examination of medical experts.

Section 5 returns the reader to considering how to deal with improper tactics of opposing counsel. Broder provides two rules. First, the lawyer must scrupulously avoid improper argument. Second, the lawyer should not allow opposing counsel to get away with any impropriety, even if it is subtle. How? By setting a trap by forewarning the judge and providing annotations to cases where similar inappropriate behavior led to reversible error.

Section 6 is a brief discourse on eliminating juror prejudice by dismissing certain defendants from the case.

Section 7 covers a hodgepodge of subjects--summation, jury deliberations, and settlement. A chapter in this section includes the first discussion I have ever seen regarding advocacy during jury deliberations. What should attorneys do while the jury is trying to reach a verdict? According to Broder, attorneys should review the trial transcript. The reason is that they will have an edge in finding pertinent testimony when a jury question suddenly emerges. An attorney should never rely on the judge's or the court reporter's memory.

The attorney should also be aware of what a judge can and cannot say to jurors when interrogating them to decide if a verdict can be reached. For example, the court cannot ask the jury for a numerical division on a verdict, the court must avoid leading inquiries, and it cannot make statements about the jury wasting time if a verdict is not reached.

Section 8 deals with damages. I found the chapter on proving pain and suffering enlightening. Broder says that it is crucial that the attorney know the medical records forward and backward. The attorney then presents the records and the physician's testimony at the same time. In this way, the records come alive for the jury.

In section 9, Broder reviews 15 cases he has tried. In a chapter on hospital liability, he discusses the changing attitude toward holding hospitals responsible for what physicians do in them. The plaintiff's lawyer should consider a number of questions. Did hospital personnel know, or should they have known, that the prescribed course of treatment was clearly contraindicated? Is the attending doctor really independent of the hospital? Did the plaintiff rely on the name of the hospital in choosing a doctor? A hospital that allows the doctor to use its name may be held liable for the latter's negligence. Does the attending physician have a history of negligence? If so, and the hospital nevertheless permitted the doctor to practice there, the hospital may be held liable.

The last section is a six-page discussion of lawyer styles. Broder's advice is: To thine own self be true. With respect to opposing counsel's style, if it is charismatic, Broder recommends seeking a promise from the jury on voir dire "to not be led too far away from the issues in the case by the personal qualities of the lawyers...."

This book is a wide-ranging presentation of one man's thoughts about the practicalities of trying lawsuits. In many instances, the concepts are not fully fleshed out. Nevertheless, there are many ideas that are well worth considering. In my experience, practical advice is often like that.