Book Review: The Elements of Trial
Posted by Jessica Wolfe on Jan 31, 2019
By Michael Sporer, Sporer, Mah & Co, New Westminster, BC
William Strunk (d. 1946) never could have anticipated where it would lead. The Cornell University English professor would hand out a little book he authored, and privately printed, to his students. The slim volume provided basic rules and principles of writing. One of Strunk’s students – Elwyn Brooks White – was handed a copy in 1919.
40 years later, and more than a decade after Strunk died, E.B. White – already famous as a New Yorker essayist and the author of Charlotte’s Web – was contacted by a publisher who wanted to print Strunk’s modest book and make it available to a wider audience. Would White update the little book, add some material, and rework it for publication? The style manual was published in 1959 and became a bestseller, the classic introduction to writing known as “Strunk and White” The Elements of Style.
Bryan Garner – considered by many a most important authority on legal writing – paid homage to Strunk and White in 1991 when he followed their pattern and form, and titled his basic introduction to legal writing, The Elements of Legal Style. Garner’s superb 212 page book is, perhaps, the best single introduction to legal writing available. No law firm should be without it.
Friedman’s name is well known to trial lawyers in British Columbia. His Rules of the Road – co-written with Patrick Malone in 2006 – and Polarizing the Case, published a year later, each deal with particular aspects of trial work. Polarizing the Case, for example, the more tightly focused of the two, teaches plaintiffs’ counsel how to deal with allegations of malingering or exaggeration leveled against their clients. While both books make valuable contributions, they are too narrow in scope to be considered basic introductions to trial work.
But Friedman and Cummings have written such a book, and though it has received less attention, at least in these parts, than Friedman’s earlier contributions, The Elements of Trial is the one that lawyers should read first. In just 227 pages, the authors cover all the basics of trial work, and do so in a manner valuable to both civil and criminal practitioners.
The book covers all stages of trial work, from pre-trial hearings to post-trial motions. For example in Chapter 18 – “Posttrial Motions” – the authors focus the reader’s attention on something often overlooked. “When the trial is over, you often still have work to do,” they advise. “Posttrial motions…could alter the result of your trial.” Like many chapters in The Elements of Trial, the post-trial chapter is broken down into six subsections: “Purpose,” “Advocacy Goals,” “Applicable Law,” “Implementation,” “Questions to Ask” and “Suggested Reading.”
While the authors don’t cover the applicable post-trial law in our jurisdiction, the chapter sets out the primary purpose of post-trial motions, and urges readers to carefully consult local procedural rules and precedents. And just what is the current scope of a trial judge’s authority to refuse to enter – or to vary – a jury verdict in British Columbia? The sudden realization that LeBlanc v. Penticton, a leading Court of Appeal case on point, is now 35 years old, is enough to send any member of TLABC scurrying to brush up on more recent law.
Friedman and Cummings cover everything from early case investigation to combatting trial chaos, to the importance of making a record. At the end of most chapters, the authors provide a list of leading “go to” books for further information on, for example “Opening Statements” (Chapter 9), “Cross-Examination” (Chapter 11), and “Closing Argument” (Chapter 16). The book thereby serves an additional role: it provides a concise bibliography for those who want to read further.
This short and readable book, like its namesakes, will be one day be considered a classic in its field. The most experienced lawyers will benefit from it. Lawyers called less than ten years – or those who have been lead counsel in fewer than five jury trials – should consider it mandatory reading.
 This is a greatly abbreviated version of the background of Strunk’s “little book.” Those interested in the history would be advised to consult Garvey, Mark. Stylized: A Slightly Obsessive History of Strunk & White’s The Element of Style. New York: Simon and Schuster, 2009.
 Strunk Jr., William and E.B. White. The Elements of Style. 4th ed. New York: Allyn and Bacon, 2000.
 Garner, Bryan. The Elements of Legal Style. New York: Oxford University Press, 1991.
 Friedman, Rick and Patrick Malone. Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability. (Portland: Trial Guides, 2006), and Friedman, Rick. Polarizing the Case. (Portland: Trial Guides, 2007).
  5 WWR 289, 28 BCLR 179, 20 CPC 226 (CA).