The secret to winning…so who are you?

When I enter the courtroom it never occurs to me that I could lose. Battles are to be won. The opponent is merely a necessary player, as is the judge. They are there because the battle could not proceed without them.

The idea of losing comes, in part, from a lack of preparation, which is a failure of self respect. Think of it as if you were a boxer. You have not trained. You have two inches of belly fat hanging over your shorts. Your cheeks are baggy. You puff going up the stairs. You brag a lot because that is all you have. This is a fighter who will lose because he does not respect himself sufficiently to prepare. If he were the trainer he wouldn’t allow a boxer such as he to enter the ring—he would care too much about his profession as a trainer to let an unprepared fighter he trains get slaughtered.

The refusal to prepare also reveals a lawyer who does not care deeply for the client. Jurors recognize an unprepared lawyer. It means the lawyer does not care much for this person whose life or welfare is in his charge. If the lawyer does not care, why should the jurors? The lawyer knows the client better than they. Caring is contagious. If the lawyer doesn’t care the jurors won’t care either.

I know lawyers with great talent who stagger out of bed in the morning not knowing for sure which case they are scheduled to try that day. But the fault is sometimes not the lawyer’s. The cost of operating a law office and to make an acceptable living from the trial of cases is hard at best, particularly in the criminal field. Most persons charged with crimes do not have the money to pay a lawyer for the necessary time it takes to adequately prepare a case – months, considering the investigation, the interviewing of witnesses, and the endless pretrial motions the lawyer faces in the modern trial, not to mention a trial that can last many weeks.

To survive financially, many lawyers are required to take too many cases from poor paying clients. Public defenders are often laden with scores of cases, many serious ones, without the time or resources to properly prepare while the prosecution may have all the time and resources necessary to win. As a consequence too many persons charged with serious crimes do not receive an adequate defense. They are often counseled to plead guilty, to make deals—the only bargaining chip they have—with their own lives. Take ten years from my life in exchange for the forty years that I will probably lose if I go to trial with an unprepared, unskilled, uncaring, overworked public defender or for that matter, a private attorney who has taken my case because he’s three months behind on the rent. A money system favors money, not justice.

A few lawyers are skilled enough that they can win some of their cases with nearly no preparation at all, but they know that many a client has suffered as a result — in a system that cannot provide justice for all, no matter how the myth is sold to the people.

I have said that when I enter the courtroom I do not consider the possibility I might lose. To lose one must give permission to his opponent to beat him. As a young lawyer I lost three civil cases in a row. The pain of losing was so severe I could not bear the thought of ever losing again. It became a life or death issue for me. Life as a loser became so unacceptable that I would rather quit the profession than continue down that road. I realized that preparation was a critical key.

I also began to understand that if one has a full sense of self, not a blown up conceit, but a person who makes mistakes, who is afraid, who can feel and care, who is as real as he can be, who is on the road to becoming a person—that person will be hard to beat in a courtroom or anywhere. He is not an intellectual muscle man or a phony sweet pea with the supercilious smile and a nose worn smooth from toadying the judge. He can be trusted and he speaks a language that jurors understand.

How do you beat such a lawyer? Be more of a person than he. I let my opponent worry about losing. It will take him into strange and dangerous places.

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13 responses to “The secret to winning…so who are you?

  1. It’s a joy to read your words, Gerry Spence. It is fascinating to see words rolling out effortlessly from the river of the truth – as opposed to theoretical or abstract constructions. It is a gift to us – but hard to know how much of that gift is truly transferrable to us – as we all struggle in our more shallow, less explored selves. It would be interesting to hear about the turns in the road where you learned how to be more open to the truths of juror thinking and feeling – a road that so many of us cannot find, as we remain occupied with other concerns and worries. Was it merely the pain of losing or were there other revelations and epiphanies that brought you into these depths of understanding and access to the human spirit?

    Thanks for your generous words and the gift of breaking through the abstractions and minimal communication of many of great person.

  2. After reading the blogs, where some praise you and some want to bury you, I feel that some of your words are being over-analyzed. It is as if God had spoken and then the bloggers start analyzing the words and criticizing and attacking the ideas. Please don’t stop. Your words seem to be poetical and relevant and anyway, you are entitled to your opinion and not everyone has to agree on every little word or every idea.
    In general, you usually get what you pay for and it is just not realistic to expect to drive a brand new Mercedes for a used car price or rather you shouldn’t expect a criminal defense lawyer to spend much time on a case preparing for a jury trial when you barely pay him enough money to even show up in court.
    The consumer mentality today is like — Walmart prices —- fast food prices —- cheap and fast! The reality of the world is you generally get about what you pay for —- pay more get more. Pay little get less. It is unrealistic to expect an attorney to go to a jury trial and win without paying an adequate fee for preparation. Yet, the reality of the situation, is that most people either won’t or refuse to pay enough money for a criminal lawyer to perform to the best of his or her ability. This is not to say that occasionally a criminal lawyer will not go out of their way to help someone out but it is a realistic observation —- why are some people pleading guilty to cases that could be won at trial? What is the difference between a poser-businessman-lawyer and a trial lawyer – warrior? My answer is in my blog: http://www.oklahomacriminaldefense.blogspot.com Yours in the Defense of Fellow Human Beings,
    Glen R. Graham, Tulsa Criminal Defense Attorney, Tulsa, Oklahoma

  3. I was minding my own business slogging through the forum researching RSS Feed and what to do about it when I came across your query. Being a kind of odd duck I suppose, was drawn to come on over and see who you are. Little did I imagine how impressed I would be. Your photo in the home page is stunning. Loved this Secret to Winning; was taken aback with your sensitive revelation about ‘fear’. I have bookmarked your page as I truly want to return and get to know more about you. Your depth, brilliance and sensitivity come right through the page to me.
    http:smokinchoices,wordpress.com Jan

  4. Great Irish warriors used to fight the English completely naked. When the vast English armies realized the naked-screaming Irish were rushing them absent any armor; they were terrified of the “possessed-madmen.”
    They turned tail and ran.
    Going to war without armor (the masks we wear)has worked for centuries.
    Thank you for teaching us that historical reality.
    Love You

  5. Gerry, I attended the Trial Lawyers College in 1995. If I learned anything at your school it is that proper preparation is a time-consuming, yet necessary task before a lawyer steps into a courtroom and answers ready for trial. How then to accept and handle cases that do not generate much money but simply “turns one on?” I think the answer is to be found in my second great love, the movies. Aficionados of art films are aware that such films often have major stars, even though they are completed on miniscule budgets. The reason is that the actors in those films are working for scale – not doing it for the money – but simply because they love the story that is at the heart of the film. I think we lawyers can do the same thing by keeping our case load small, but by also keeping it balanced. While a lawyer cannot forget the bottom line, there is also no sin in taking a case now and then simply because one loves that case. In the end, the reward might be greater than money – the fulfillment of a previously unsatisfied craving for justice.

  6. Jules, you have said this exactly right. If you follow your passion the money will take care of itself, that is if you can pay the rent for a while. Thanks,

    Gerry

  7. So Gerry – how have you been enjoying your adventures in blogging so far, now that you’ve been at it for a couple weeks?

  8. Gerry-

    Much as I love you, I hope you will not accept the title of “God”. Maybe small-g “god”, but not the Big Guy.

    🙂

  9. While researching attorneys online I came across your blog and started reading this one in particular. I’m a simple layman who knows enough about the law to be dangerous! LOL! But the one paragraph that basically said some lawyers are so busy they do not provide adequate defence for their clients struck me so hard!! So being the blog fanatic I’am decide to just leave my two cents worth! It seems we as a family are stuck in just that situation you have written about, as we speak. My son is currently incarcerated, and is being accused of a crime that they have NO and I mean NONE, zip, zero evidence to say he committed this crime. Now I don’t want to sound like one of those mothers who say their child does no wrong, trust me on this one I would be the first one to tell him you do the crime then do your time! But his PD has encouraged him to plead guilty. As she put it to him ‘because they need someone to pay for it and you are the only one they have.” Why Sir when lawyers make an oath to uphold the law do they send the disadvantaged to the chopping block?? Isn’t the system supposed to work for someone like me or my son?? And isn’t winning what every lawyer wants? I’m confused and have lost faith in our justice system. It seems as you put it, it is only there for those with money. How sad that we may have a million wonderful young men out there just like my son whose only crime was to be in the wrong place at the wrong time. So if there happens to any Law students or your lawyer friends out there who read this, I have a message for you…. remember in your quest for greatness remember us little guys. We have loved ones too and feel they deserve the same rights as the big guy with all the money. Thank you sir for letting me vent!! Ok now back to my research! Wish me luck! Dosent seen there’s to many Lawyers out there who want to do probono or I dont know where to look! LOL! Good luck with your blog and I will drop by. Your not far from where we live so your some what of a local legend around here! Again good luck sir and thanks!

  10. Gerry,

    It took awhile but you made me a believer. I came to your death penalty trial college in March of ’06.

    I wasn’t really sure about all of this “touchy-feely”, “love your client” stuff you were spouting. The psycho drama(s) and role playing, didn’t see much value in it at the time. I was a hardened ex cop, a seasoned public defender, and thought as long as I was prepared I would do a good job. I thought that i could distance myself and not emotionally invest in the client or case…and still do a good job.

    But something happened along the way. I wanted to win, at first for my ego, but as the years passed and I got to know my clients and their families, I wanted to win because I wanted them to LIVE.

    I really had an epiphany that came from opening myself up to the family’s pain, fear, anxiety, hurt…there was no way I could make the jury feel them, if I couldn’t feel them. I couldn’t argue for a life if I didn’t care about that life. Care for caring’s sake…not for professional gratification or the ego stroke of saying, ” i got a life verdict”.

    I realized that part of my reluctance to care was being a woman in the profession. I didn’t want to fit some “earth mother” nurturing stereotype; part of my reluctance was being Black..i didn’t want to fit into some “anti establishment, revolutionary” stereotype. Then I thought….”who gives a damn” if caring about my clients and wanting them to live means i fit some stereotype of “blackness” or “femaleness”…who cares?

    My practice changed dramatically. I learned to listen effectively, to hear what my client’s were telling me. Oh, i still had my moments of flipness and glibness, but not so much. The defensive walls i put up were not necessary.

    I realized that if my client got the death penalty, I would be devastated…not because i “lost” but because a i cared. I used to think being a capital lawyer was my job, now i realize it is my calling.

    Thank you for giving me permission to love, to care, to feel, to do all of those things and not feel weak.

    I get it!

    Sincerely,

    Victoria E. Washington
    Capital Litigation Attorney
    Phoenix, Arizona

  11. Victoria: Thank you for your thoughtful comment. You are right: We cannot ask a jury to care for our client if we do not.

    I say that caring is contagious.

    It is hard sometimes to find something good, something we can care for in some of our clients. This is particularly true in death penalty cases.

    When I ask you to find something in that twisted, often hateful, more often emotionally injured human being to care about, to fight for, I am asking the most from one human being to another. It is a noble gift given by a real person. It makes me proud of our profession and you.

    But caring for such as these, the lowest, often the most hated and reviled, is dangerous. We may lose the case. Then the pain sets in.

    The risk one takes in the defense of a death penalty case is almost unfathomable to most lay persons. It is a risk to our own emotional well being. Yet, unless we take the risk of caring, we have little to honestly say to a jury.

    My deep respect for what you do.

    Gerry

  12. I just purchased your book and hope it …I will be able to help myself with the help of Your arguments or thoughts.

    I used to be an animal control officer… and for fear from management that as I was getting credibility in front of the courts, they were losing their control on me for I was questionning some motivations and legal resonings, and political
    reasons I was dismissed. I’m apealing this decision at the labour board and I’m facing pressures and personal attacks from all part (union,employer and colleagues) But I’m triying to keep my passion and find it surprising that you say to have passion when we debate and argue. I always thought that it was imperative to keep My feelings out of it but after hearing you on the podcast of Layer2layer I realized that to make effective arguments and to be a good comunicator I need feelings.

    Thx and I am looking foward to reding more on your blog and finishing the book.

    Ian-P

  13. Hi,

    I found you by chance, looking for a .pdf of “The Devil and Dan’l Webster.” I’m so glad I dropped in, because this is a terrific post, and is very inspiring.
    I’m not a lawyer (I don’t have any young to eat) but your post is relevant to about any endeavor I can think of.

    Thanks,

    Brian (a.k.a. Professor Homunculus at MathMojo.com )

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