More on winning—one can grow very thin eating one’s threats

I learn from whomever I can. I’ve told you repeatedly that I learn more from my dog and grandchildren than from all the bearded, gazing gurus. We can even learn from the French.

I’ve preached that we ought not—no never—motivate our competition. I am civil to my opponents in the courtroom. I never threaten. If I’m afraid, I do not try to cover it with macho. If I’m confused I am confused. So are most lawyers and most judges. But I never– no never—attempt to frighten my adversaries—or to anger them.

When we are frightened we instinctively hide, run, or attack. When we’re told we’re going to be smashed, as the French relay swimmers were foolish enough to threaten the Americans in the Olympics, and the experts say no scenario can be found leading to an American victory what is to be done? But the experts overlooked the imprudent French threat that motivated the Frenchmen’s competition down to their toenails, which was the length of the American’s victory–the small part of a second.

I want my opponents to be comfortable, complacent, content, yes, cozy. I want them to see castles in the sky. I want them thinking of their golf game, or running off to Vegas where what they do stays in Vegas. I do not want them threatened, frightened or angered. And where do we learn all of this? You see, we can learn—even from the French.

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18 responses to “More on winning—one can grow very thin eating one’s threats

  1. I like the story about how one time some arrogant lawyer leans over to you before trial and says something like — Gerry, just dismiss this case and we will give you a membership in our country club which has a great golf course, you know this is not a good case. The story is that you reply, by the time this case is over with I will own your country club. Of course, this is probably just some story someone made up but is fun anyway. I think a person does have to believe in their case to win. And like you said in this blog, don’t recklessly give the opposition an incentive to take you down.
    Yours in the Defense of Fellow Human Beings,
    Glen R. Graham, Attorney at Law, Tulsa, Oklahoma

  2. Lawyers For Poor Americans

    Mr. Spence,

    THANK YOU FROM ALL OF US !

  3. Gerry:

    You are right on, again, as usual. I recall my very first jury trial. I was as green as could be. I was up against two large law firms. They had me on the ropes, after a standing 8 count.

    One day I was attending yet another deposition taken by one of the large firm lawyers – good billable hours in his eye! I was somewhere in the clouds, around the 23rd floor conference room.

    Like any newbie lawyer who packed his own lunch, at a break during the deposition I went to the kitchen for a cup of coffee and to raid any food I could find in the firm’s frig. While in their kitchen, another lawyer asked me who I was. I told him. He said something to the effect of, “Oh, you are on the other side of my colleague Jeff’s case, he is going to beat your ass at trial.” He then gloated, got his coffee and left me standing there. He said it in a matter-of-fact tone. He asserted it as factual. I took it as a threat. My blood boiled.

    I returned home that evening and told my wife what this lawyer said to me.

    From that day forward, I set aside a certain number of hours, every single day, to work on that case – a case that previously I was not dedicating sufficient time to prepare. That threat was my wake-up call. That threat MOTIVATED me.

    I declared “WAR” on my opponent. I dedicated a room in my house as my “War Room”. I taped exhibits on the walls. I dressed in a camouflage shirt each time I entered that room. The only person who knew of my Declaration of War was my wife. I never let the other side know of the wonderful “gift” they gave me.

    Victory was sweet when that jury gave Justice to my client.

    Interestingly, Jeff and I are friends to this day. I think this is so because I never pounded my chest or threatened him. Neither before nor after the verdict.

    Man can overcome any obstacle, if in his mind he knows he must, and in his heart he knows he shall.

    Scout

  4. Scout: Thanks for your story. It proves my point very well.

    Gerry

  5. Glen: I don’t recall this story. I hear a lot of them that are the product of inventive minds. But I have not been above the very mistake I am preaching against. We all learn. Mostly though pain.

    Gerry

  6. Gerry –

    Just listened to your interview on legal talk network. Great to listen to.

    I think those guys want you to do a little talk show on there. You can do “interventions” with corporate lawyers, breaking them down and getting them to go into public interest law.

    It would be these 30 minute conference phone calls once a month – interrogating a corporate lawyer – or Justice Scalia for that matter – on what happened to their right brain, etc.

    Whaddaya think!! 🙂

  7. Well Paw paw,

    “It” is happening like you said it would. Things at the PD’s Office just are not working out anymore. Ever since I returned from the ranch, I see and hear things through my inner ear and third eye and I think it is intimidating people in my office. People keep commenting to me how I changed and am a different person.

    I no longer feel comfortable being around lawyers who do not know about the TLC method. I feel sad when I hear them speak about their cases. Everyone walks around with a defeatist attitude, worrying about the law and arguing with ADA’s.

    I dropped the “Angry Mexican” routine and walk around smiling and commenting on how the fresh cut grass smells or how pretty the blooming magnolias are. The lawdawgs at the DA’s office are now friendly and inviting, they actually take the time to listen to what I have to say!!!

    Everyone keeps asking me if I am feeling ok!?! I have enjoyed using the TLC method on the ADA’s and city prosecutors. I feel like a Jedi controlling the minds of simple minded beings.

    I explain to them why a case should be reduced to a misdemeanor, they reduce it. I explain to them why they should pass a case to the file, they pass it to the file.

    Judges and I are now talking about home repair and the smell of stucco and dry wall. I have even been invited to go shooting by one of the local prosecutors.

    In the three weeks that I have been back from the ranch, I have only had to step into the courtroom once. Cases seem to be disappearing!!!

    Even when I go to the jail to handle preliminary hearings or to our justice court to handle out of custody hearings, things seem to handle themselves.

    I had this agg. assault matter where a son put a knife to his fathers neck right after the investigating officer was done testifying, I asked for a recess to use the bathroom. When I returned I walked up to the father and asked his permission to ask him a question. He agreed so I asked him, “Will sending your son to jail make the pain go away?”

    When we came back he walked up to the podium asked to address the court and asked the judge to dismiss the case.

    I love you Paw Paw,

    Remy

  8. Gerry,

    Glad to see you blogging. I have always enjoyed your writing and talks. Your right on with this post. I have never understood lawyers that threaten opposing counsel or brag about how they will win. I know that has fueled me many times to prepare harder and do everything I could do to make opposing counsel eat their words.

    Rush

  9. You can’t win in a kangaroo court — I don’t care how much preparation you do. When a judge can decide a case in which she is a defendant in tort (despite the fact that sixteen non-conflicted judges are available and authorized by statute to hear the case), and her colleagues obligingly ‘circle the wagons’ around her because they don’t like it when people sue judges, it is difficult to even refer to it as a legal system.

  10. I saw your closing argument for Fieger. To this day, I can picture your face turned to that green US Attorney as he repeatedly objected. That look would frighten anyone it was aimed at. It reminded me of my mother’s “evil eye” when I was younger. My brother and I never heard my mother raise her voice, but that one look would stop us dead in our tracks. We knew to straighten up. That US Attorney knew to straigten up. It just took a couple of those looks.

  11. Cheryl, I don’t think my “looks” were very effective. That “green US Attorney” never stopped objecting–right up to the end. He objected twenty-four times during my close–the government’s obvious strategy to disrupt and destroy my argument.

    Sometimes I would even smile at him and with a gesture suggest he object to something to which the government might well take umbrage. And then, as if in obedient response he would. Sometimes the jurors laughed.

    His excessive objections backfired. He was soon seen as a lawyer who didn’t want the truth to come out, who had something to hide, or who was being unfair with his opponent.

    Gerry

  12. george harrington

    I may think that the Fieger trial was a greater monument to preparation than you do even.
    Time and time again, begining at opening and all the way through closing you intentionally, I believe, drew objections from the prosecution and even the judge leaving yourself as, in the eyes of the jury as the only person who wanted evidence to be admitted. Over time, after the specifics of an arguement have dimmed in the jurors memory the
    impression stays with them as they go in to deliberate.
    I’m guessing that it was intentional for the reason that as you made the statement, either in arguement or cross-exam, it was on it’s face objectionable and an irresistable target to someone in the heat of battle but you always, always always had a great response. It left me looking with wonder at someone who had so carefully fashioned his defence That he was forcing the other side and the judge to do a lot of things that looked really bad to a jury.
    In opening being the first to show the jury the statute( jury’s gratefull 1st real meat) and arguing that Fieger actions did not violate the statute, ( exactly opposit of what the prosecution had gotten the judge to rule pretrial) guarenteed brouhaha .
    Prosecutors up. Judge is admonishing unbidden.
    None of them looking good and all acting roles that you assigned them by your carefull choice of words.
    Or again, during the cross of the FBI agent when you wanted to make the point that he might have reverse the sequence of statements because he was excited. Your could have asked that question and had him deny it. But instead you first made it clear that he was a relatively new agent suddenly in charge of a 100 agent raid. and then asked the clearly objectionable ” Can you tell me
    when in the history of the World a raid this large–”
    Prosecutor is objecting .Judge is admonishing. You are withdrawing the question only to follow with the equally objectionable, “Can you tell me when in the History of the United States a raid–”
    Prosecutors objecting. Judge is admonishing. You are withdrawing the Question. The point is underlined by the other parties objections they are not looking good and just to unintentionnaly help you out a little more the Judge volunteers and you can’t ask him When in the history of the State of Michigan a raid so large was held either”
    Shakspeare’s plays are a great accomplishment but atleast he was completely in charge of his characters. You assigned parts to your adversaries
    and made them help you by asking objectional questions. It is just a breathtaking achievement.
    I was suprised that they had the restraint to not object when you introduced your wife to the jury during closing. But had they ( and I’m sure that this must have happened in the past) I’m sure you had a prepared response that reminded the jury that the trial of an individual is a very personnel thing.
    The Last, it seemed like forty minutes of the FBI agents testimony when you kept coming back to the ledger sheet of the corporations accounts- and a lot of people said that they did not know what you were doing. Finally the FBI agent took the bait and yelled ” Those books are cooked.” I
    think you must have known that he thought that and were confident that you could get him to say it.
    It was all a set up for you to appear astonished that he would say such a thing and then take you time appearing to search through papers ( for you clearly,clearly never expected such a charge.) For you to appear to find the paper and ( sounding puzzeled ) say ” but you know that the IRS has
    approved these books don’t you?”
    It was a stunning performance. Having lived through it I would love to look at the transcripts and see what I missed. If you know where they might be available I would be grateful for the information.
    One more personnal obervation since I seem to be reliving the trial right now. Twenty years ago I was told the story that Gerry Spence always closes
    his crimnal cases with. In that, atleast, I expected no suprises. I was wrong. Immediately before you leave the bird’s fate in their hands. as you are describing how the young man is going to crush the life out of that bird you loosed a very powerfull
    , from deep inside,sound that I have only heard once before in my entire life. It is the sound that James Coburn makes at the emotional climax of the movie ” Pat Garret and Billy Kid” as he kicks
    his deputy in the face to keep him from cutting off Billys trigger finger. It succeeds in making it all very personnal. If you have Blockbuster nights you might rent it

  13. George / Cheryl –

    I didn’t find Gerry’s expressions towards the prosecutor in closings to be angry or intimidating. They were mostly bemusement – and also thereby deflecting the “badness” intended to be assigned by the objection. Gerry did not lose the apparent high-ground despite the earnest objections – Gerry has a phenomenal ability to project a more complex understanding of the world than simple bad/evil – and to integrate the prosecutor’s projection of badness into a larger viewpoint that effectively dissolves the idea of badness.

    I don’ t know quite how that played out with the jurors – and would be fascinating to know – if they revealed any of that. It seemed to me that some of them were truly ambivalent about the outcome from the video interviews we saw online.

    How many thought Feiger did nothing wrong?
    How many thought he did do something wrong, but that the prove was not airtight?

    How many concurred with the governmental abuse ideas or were persuaded that the decisions were made locally?

    How solid is the basis of the confidence Gerry expresses that the Justice department was pursuing a political end with this case – as opposed to the “highly fair” judgements the government says they made at the local level, etc.???

    Mark

  14. Threatening one’s opponent is a very weak legal strategy and it is also a weak strategy in personal dealings. Even in cases where the law requires demand or notice prior to litigation, beware of framing the notice or demand as a threat.

    When the idea comes to me (through my own thought process or that of my client or co counsel to issue a threat, I ask myself why are we willing to threaten but unwilling to act? If there is a reason not to act–it usually applies as a reason not to threaten. If there is no reason to withhold the threat, then there usually is no reason against simply acting without the useless act of threatening.

    But for the threat of the French and, we would have seen them as valiant athletes who gave their best effort and worthy of respect. Because they threatened, we saw them as idiots and big losers and we did not like them.

    The same dynamic applies in litigation and in life.

    Excellent example, Gerry.

  15. Mark,

    I did find Gerry’s expression aimed at the prosecutor during the objections during closing arguments to be frightening. I do not know if in fact Gerry was angry at the prosecutor when he objected to Gerry’s closing 24 times. But each time the prosecutor was overruled, he got more and more frantic. He became out of control in his objections. They did become silly and a source of amusement for the entire courtroom. In particular when Gerry said how he didn’t object to the prosecutor’s closing and hoped he would receive same courtesy . . . bang, objection. It was as if Gerry put the fishing line out that, and he bit. Gerry’s story was not lost at all during the pauses the objections brought and in fact, highlighted most of Gerry’s points. Did Gerry threaten and dare the prosecutor to object again with his sideways looks? Did the prosecutor just get desperate with his objections or was this the reaction of frightened counsel?

  16. Gerry:

    How do you win this one?

    Client is in possession of child pornography. The Government has lawfully obtained his computer and a search reflects many images of items depicting graphic acts with preschoolers. The Government’s only offer is more time than the client can face. Forensic analysis has been done. We know what the pictures are and where they came from. Client lives along.

    We could use some help on this one.

    Norm

  17. Norm, if this were my case I would call on you for your magic. This is a case where the client is obviously in need of more than legal help. Some psychodrama might be in order. But in the end, if he were my client you would have an answer that is both true and humane.

  18. There ain’t a whole lot of magic here. Help!

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