Joel Cohen

"THE VANISHING TRIAL: The Era Of Courtroom Performers And the Perils Of Its Passing"

By Robert Katzberg

Mascot Books, 222 pages.

When someone is rounding third base, maybe heading for home in his career—Bob Katzberg likes to use sports metaphors—he's likely to look back on that career in different ways. It may depend on who he is as a person, and what his career may have been. Maybe he sees afterthoughts, revisions, trends. Perhaps his hindsight suggests "I did my best, every day," or "In retrospect, I could have done better."

Maybe he chooses, in his reverie, to paint lipstick on not-so-pretty incidents in which he participated. He can get away with this, maybe, because his contemporaries are no longer, or at least not of a mind to dispute some self-applauding recollections: "Who's he kidding?" Or perhaps, if he's been a trial lawyer, he looks into one of those magical mirrors that presents him as a latter-day Jimmy Stewart ("Anatomy") or Gregory Peck ("Mockingbird") working in the courtrooms they so heroically conquered.

But maybe, he uses his precious past to teach, to mentor, to softly guide a younger generation of professionals, or even law students (currently Zooming through life), that haven't experienced what he experienced. And he does so by gently dispensing instructive "stories" of a time gone by—the golden era of courtroom trials. Those trials—criminal trials, no less—are far and few between these days.

Katzberg's brand-new read (his first) is all about that—Katzberg has been a trial lawyer when courtroom gladiators possessed at least a decent chance of winning. That is, before draconian sentencing guidelines made the risk of losing at trial too imposing for the typical criminal defendant. And it was before modern technology's incarnation of "the smoking gun"—mostly, the email—not available to prosecutors in Bob's early career. Nowadays, those quickly written documents so effectively corroborate "turnaround" stool pigeons. In Katzberg's day, those witnesses may well have been exposed to a different kind of cross-examination—one without the electronic writings, and designed to make them look like liars, even if they were telling the truth.

There came a point, Katzberg explains, where it became largely impossible for defense lawyers to candidly tell clients, sometimes mobsters, while climbing the courthouse steps: "My advice? Let's fight." Ergo Katzberg's title: "The Vanishing Trial." And, parenthetically, Katzberg is hardly alone in that assessment—many great judges, Jed Rakoff and Jesse Furman among them, have publicly described their distress over the dearth of criminal trials on their dockets.

Now, in writing this reminiscence-of-sorts, containing important lessons for today, Katzberg doesn't do what most (may I say, aging?) criminal lawyers, turned "autobiographers," have done. He tells his stories, but shies away from constantly patting himself on the back as typically occurs when accomplished trial lawyers have decided to canonize themselves when describing their courtroom heroics—Louis Nizer, Melvin Belli, F. Lee Bailey, and many lesser lights.

Bob Katzberg—full disclosure, I've known him for 40 years—doesn't do that. He tells us, instead, about the skills of his peers with whom he tried cases or opposed in battle: Gus Newman, Jimmy LaRossa, Jerry Lewis, Milton Gould, Reid Weingarten, Elkan Abramowitz, Paul Shechtman, Jerry Lefcourt, Ben Brafman—the first four largely forgotten now, maybe trying their cases in another time and place.

When one describes anecdotally what these other gifted lawyers have been able to do —and Katzberg, not previously a writer, is very skilled at this—the candor of the presentation is far more believable.  It is a compelling read not ruined by having been dipped in the marinade of the writer's own ego. Indeed, Katzberg, skilled in his own right, barely tells us of any victory of his own.  Instead, he talks about his trials where he wasn't quite successful. As he is quick to tell us, one learns—and teaches—far better from one's defeats than from one's victories. I can assure you, that's as true as it gets.

There's one story of note, though, in which he is the hero —he achieved what many criminal lawyers would consider a "win." Katzberg was representing a mob defendant against a well known prosecutor in a case that was an outgrowth of the famous John Gotti investigation. On the Gotti wiretaps, you may remember, "the boss" was angry at his lawyers and said that the "family" should not be called the "Gambino family," but rather by the names of the lawyers—the implication being that those two lawyers were confederates of their clients.

So, the prosecutor introduced the prejudicial tape to the jury, even though it had nothing to do with Katzberg's trial, or the lawyers in that case. Katzberg, generally mild mannered to a fault, was incensed. At the end of his summation, he tells us, he strayed away from the lectern and stood right behind the prosecutor. Pointing his finger, and speaking in the manner of the Prophet Nathan lecturing King David for his venal sin, he concluded this way:

"But you know there is only one profession, only one, that is guaranteed by the United States Constitution. And that is lawyers who represent people who are charged with crimes. So fundamental, so significant, how important that function is to everybody's liberty, yours, mine, Mr. [prosecutor]'s, that the Sixth Amendment guaranteed that anyone accused of a crime will be represented by a lawyer. Again, the Government can prove its case anyway it wants, but the method it has selected, how it is going about its business, speaks volumes, volumes, to how weak the case really is."

Smoke rose, Katzberg tells us, from the prosecutor's head. The trial ended in a hung jury—a victory, as most any criminal lawyer would see it.

Many years later, Katzberg encountered the prosecutor once again, this time though the prosecutor was now a judge sitting on a civil appeal from a case that Katzberg had won at trial. After an incredibly long time, the appeals court ruled against Katzberg's client, with the former prosecutor authoring the opinion. In the opinion, as at least Katzberg sees it (who knows?), the former prosecutor, a human being after all, got even in a way. In a footnote, Katzberg is accused by name of having misled the trial judge. Interestingly, that's not the end of the story. The trial judge wrote to the appeals panel correcting them. She not only stated that she was not misled at all, she applauded Katzberg's exemplary conduct at trial. Rare indeed for a trial judge to defend a trial lawyer who had appeared before her in that way. But the story is filled with teaching moments about zealous representation.

I bet you want to know who the prosecutor (and later judge) in question is. Well, you're going to have to buy "Vanishing Trial" to find out. And, if you do, you'll be able to assess for yourself Katzberg's account of what happened. Curiously, by telling this story, although Katzberg may not have intended it for that purpose, he's once again teaching what courtroom battles and the personalities involved may be all about, and the reality of what young lawyers need to learn.

Perhaps more important, in this teachable moment Katzberg lets us know that he could have sat by and done nothing when attacked by the prosecutor at that mob trial. But, as the more experienced among us know, one must stand up unflinchingly for one's client, no matter the potential cost to the lawyer. Had Katzberg not, what kind of lawyer would he have been?

Katzberg, again, likes to use sports metaphors—he once bemoaned to a number of lawyers a particularly poor trial lawyer explaining how "I would have done it." In describing the lawyer's critique, Katzberg remarked, "This was like someone standing around the batting cage telling Derek Jeter how to hit the ball." Katzberg may never have played shortstop for the Yankees, but his new book shows us he certainly knows how to hit the ball.

Joel Cohen is a former state and federal prosecutor who practices white collar defense law as senior counsel at Stroock & Stroock & Lavan. He is an adjunct professor at both Fordham and Cardozo Law Schools.