Win your case : how to present, persuade, prevail-- every place, every time

218 Pages·2005·1.44 MB·English

by  Gerry, Spence

i

Table of Contents

Table of Contents............................................................................................................................. i
Also by Gerry Spence Gunning for Justice Of Murder and Madness Trial by Fire With
Justice for None How to Argue and Win Every Time From Freedom to Slavery Give Me Liberty
The Making of a Country Lawyer Gerry Spence’s Wyoming Boy’s Summer Seven Simple Steps
to Personal Freedom Half Moon and Empty Stars The Smoking Gun O.J.: The Last Word......... ii

Copyright ................................................................................................................................... iv
WHO NEEDS THIS BOOK? ................................................................................................... vii
WHERE I’M COMING FROM...............................................................................................viii
Part One GATHERING THE POWER TO WIN....................................................................... 1
1. THE POWER OF DISCOVERING THE SELF .................................................................... 2
2. THE INDOMITABLE POWER OF OUR UNIQUENESS ................................................... 9
3. THE MAGICAL POWER OF FEELING ............................................................................ 13
4. THE POWER OF LISTENING............................................................................................ 20

5. THE POWER OF FEAR
OURS AND THEIRS............................................................... 29
6. THE DANGEROUS POWER OF ANGER ......................................................................... 38
7. UNDERSTANDING POWER ............................................................................................. 42
8. THE POWER OF HELPING OURSELVES ....................................................................... 47
9. DISCOVERING THE STORY............................................................................................. 55
10. DISCOVERING THE STORY THROUGH PSYCHODRAMA ...................................... 67
11. PREPARING THE DECISION MAKERS EMBRACE US
THE VOIR DIRE.............. 74
12. TELLING OUR STORY
THE OPENING STATEMENT............................................. 85

13. TELLING OUR STORY THROUGH WITNESSES
DIRECT EXAMINATION....... 100

14. EXPOSING THE HIDDEN TRUTH-CROSS-EXAMINATION.................................... 114
15. CLOSING THE DEAL
THE FINAL ARGUMENT..................................................... 156
ACKNOWLEDGMENTS ...........................................................................................................I
Index ......................................................................................................................................... III
About the Author .....................................................................................................................XV

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Also by Gerry Spence

Gunning for Justice
Of Murder and Madness
Trial by Fire
With Justice for None
How to Argue and Win Every Time
From Freedom to Slavery
Give Me Liberty
The Making of a Country Lawyer
Gerry Spence’s Wyoming
Boy’s Summer
Seven Simple Steps to Personal Freedom
Half Moon and Empty Stars
The Smoking Gun
O.J.: The Last Word

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WIN

YOUR CASE

How to Present, Persuade, Preveil—
Every Place, Every Time

GERRY SPENCE

St. Martin’s Press
New York

iv

Copyright

WIN YOUR CASE. Copyright © 2005 by Gerry Spence. All rights reserved. Printed in the United
States of America. No part of this book may be used or reproduced in any manner whatsoever
without written permission except in the case of brief quotations embodied in critical articles or
reviews. For information, address St. Martin’s Press, 175 Fifth Avenue, New York, NY. 10010.

www.stmartins.com

Library of Congress Cataloging in Publication Data

Spence, Gerry.

Win your case : how to present, persuade, and prevail
every place, every time / Gerry Spence
1st ed.

p. cm.

ISBN 0 312 33881 3

EAN 978 0 312 33881 7

1. Persuasion (Psychology) I. Title.

BF637.P4S67 2005

153.8′52
dc22
2005040704

First Edition: June 2005

10 9 8 7 6 5 4 3 2 1

v

This book is dedicated to our grandchildren:

Tara Spence

Lana Spence

Margana Suendermann

Dawa P. Doma Sherpa

Charlie Hawks

Rio Suendermann

Ariella Spence

Cade Hawks

Henry Hawks

Dylan Spence

Emma Hawks

Ulises Spence

Senia Spence

and

To my great and loyal partner, Edward Moriarity, who with skill and wisdom fought side by side with me in many a winning

courtroom war.

vi

Contents

Who Needs This Book?

Where I’m Coming From

Part One GATHERING THE POWER TO WIN

(Preparing Ourselves for War)

1. The Power of Discovering the Self

2. The Indomitable Power of Our Uniqueness

3. The Magical Power of Feeling

4. The Power of Listening

5. The Power of Fear—Ours and Theirs

6. The Dangerous Power of Anger

7. Understanding Power

8. The Power of Helping Ourselves

Part Two WINNING

(Waging the War—Presenting the Winning Case)

9. Discovering the Story

10. Discovering the Story Through Psychodrama

11. Preparing the Decision Makers to Embrace Us—The Voir Dire

12. Telling Our Story—The Opening Statement

13. Telling Our Story Through Witnesses—Direct Examination

14. Exposing the Hidden Truth—Cross-Examination

15. Closing the Deal—The Final Argument

Acknowledgments

Index

vii

WHO NEEDS THIS BOOK?

RE YOU A TRIAL LAWYER and losing too often?
Consider the possibility that it’s not the jury system, or a bad judge, or a witness
that turned on you. Maybe you need to take a new look at what you’re doing both
in and out of the courtroom. Isn’t there a better way to deal with jurors, with
judges, and yes, with yourself? What you’ve been doing may have worked once,
but it’s not working now. There might be something in these pages that will help.
This book may save your bacon.
Going to court? You should give your lawyer this book. Is your lawyer
representing you before a jury or a judge at his full, exploding capacity? Or is your lawyer
making his presentation in the old, ineffective ways of most trial lawyers
his brittle,
intellectual, nonfeeling, unemotional, passionless, stiff enunciations burdened with those big
words? Is he conducting a distant, hostile examination of jurors and witnesses that make him
look good but leave him distrusted by the jury? Worse, is he putting on a show that even you
know doesn’t come from his heart? Your lawyer should read this book.
Are you preparing to make a presentment to the board or your boss? You’d better read
this book. A principle theme of this work is that the techniques of a trial in court are as much a
part of the presentation of your case before boards and bosses as the genes of the primates are a
part of us. The means and methods and mental sets I teach in presenting a case in court are often
parallel to those that should be employed in presenting a case to a board, a boss, a commission,
or a customer. I’ve discovered in over fifty years in the courtroom that the most effective
presentments out of court take on the format of a winning trial in the courtroom. You don’t have
to be a trial lawyer to learn these methods. But you do need to acquire a winning state of mind,
an approach that opens up both you and the decision maker to your presentation. If it’s time for
you to present your cause to a power person, the decision maker, this book will show you how.

A

viii

WHERE I’M COMING FROM

T’S WAR OUT THERE
plain and simple war. In times past the species battled for their territory
with axes and spears. The same genes are at work today. The trial lawyer in the
courtroom is a warrior. The executive battling in the trenches of business is at war. The
sales-man approaching the reluctant customer must conquer. The teacher, the worker, the
administrator, the citizen before the city counsel, all seeking something, perhaps wanting
change, perhaps simply seeking recognition, are engaged in a war.
It’s a war over ideas. Ideas are the territory possessed by the power person
the
decision maker. Ideas have power. In the courtroom the idea of the prosecutor is to put
the accused behind bars
even to execute him. The civil trial lawyer has the idea that money and
justice are equivalents, and to compensate his client’s injury he wants money. Jurors are the
power persons
the decision makers. The executive has an idea that will forward the profit of
his company. The power person may be a governmental regulatory agency, a board of directors,
or the stockholders at large. The teacher or worker or citizen may seek change, but the power
person
the school principal, the boss, or the city council
always stands in the way. Their
position, their viewpoint, their possession of whatever is sought from them is their territory. And
this war is over that turf, the turf the power person possesses. This book is about how to win that
war.
The history of man is the history of war. In the first trials, trial by duel, the winner supposedly
occupied the side of right since the winner was said to have been chosen by divine powers. Such
trials by physical combat were a means to settle disputes between the king’s subjects short of
war. And the place where these domestic conflicts were settled was a room set aside by the king
in the king’s court called a courtroom.
In the courtroom of old the contestants fought to submission or death. Each side engaged a
champion to fight for them. The king or his lords were able to field the most fearsome
mercenaries of all, and those who contested these power persons rarely prevailed. As civilization
advanced, the warriors in the king’s court were replaced by advocates for each side. Today they
are known as trial lawyers. But the same historical paradigm is still in place. Trial lawyers fight
to submission with words, not swords. And in and out of business lay persons fight a never-
ending battle for the territory of ideas, for whether it’s a sale one seeks to close or a promotion
one longs for, whether it’s a contest at the school board or a fight before a board of directors, all
are wars in which the territory to be conquered is one of ideas
ideas that win.

I

ix

Trial lawyers and lay persons have much in common. The methods of trial work are so similar
to the best and most successful out-of-court presentations that I ask you to read and take in the
whole of this book as if you were a trial lawyer yourself. If you can begin to master what I am
teaching here for trial lawyers you will have absorbed the necessary stuff for winning, not only
in your out-of-court endeavors, but perhaps in life itself.
For more than fifty years I’ve fought these many wars for both the powerful and the poor in
the courtrooms of this country. Although there are many skillful advocates at work in the law, I
am convinced that most lawyers don’t know how to try a case. They were never taught in law
school. They were never taught because their teachers, for the most part, have been those
academic drones who’ve never experienced a client clinging to him like a drowning person in
deep water whose life depends upon the lawyer’s skill to convince a jury.
For over ten years I’ve conducted the nonprofit, pro bono Trial Lawyer’s College that I
established at my ranch near Dubois, Wyoming, a school devoted to the training of lawyers for
the people. We’ve conducted many sessions and seminars throughout the nation. We count
thousands of graduates across the land who’ve learned our methods, methods which have
magically transformed ordinary, yeoman, struggling trial lawyers, men and women who were
afraid of the courtroom and who lost more than they won, into powerful advocates with skills
they never dreamed they could possess.
At Trial Lawyer’s College we teach a presentation that begins with the self, with a knowledge
of who we are and an understanding that we are unique, incomparable, and therefore, in that
way, perfect. The humble, frightened, shy men and women, young and old, accepting themselves
and understanding their uniqueness, learn the power of being genuine, including the power of
their fear, their inexperience, their less-than-fashion-magazine appearance, and their ordinary,
nontheatrical voices. They learn to imitate no one. We find ourselves at the cutting edge of trial
technique. We’ve broken free of the standard approach to the trial of cases, which is most often
stultifying, false, unmoving, bereft of honest human emotion, too full of tricks and technique,
and too often a waste of the court’s and litigants’ time and resources.
The approach we teach is so simple it is sometimes difficult for lawyers, locked in their left
brain lobes, to understand. Our method begins with the self. It demands that we tell the truth,
even when it is painful. The method is based on the story and the storyteller. It shuns the deadly
intellectual, artificial and pretentious. It focuses instead on the spontaneous, and on crawling
inside the hide of our adversaries so that we understand them as well as we understand ourselves.
It emphasizes the inimitable power of caring and deemphasizes the use of force and intimidation
as a means of persuasion.
Almost without exception, our students, trial lawyers of all ages, with varying abilities and
experience, have discovered a magical new power that has brought them unimagined victories in
the courtroom. It is this new approach to winning in the courtroom that I explain and teach in this
book, not only to trial lawyers, but to the out-of-court presenters who will discover that they can
make their case and win every time
in the courtroom, the boardroom, the marketplace, and the
workplace, indeed, every place.

Gerry Spence

x

Jackson Hole, Wyoming

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Part One

GATHERING THE POWER TO WIN

(Preparing Ourselves for War)

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1. THE POWER OF DISCOVERING THE SELF

HE WISDOM OF UNCLE SLIM
. Uncle Slim, my father’s oldest brother, was a cowboy. Grandpa Spence said he
was the smartest of his three sons. Uncle Slim was the kind of a man who thought
that if it couldn’t be done from the back of a horse it wasn’t worth doing at all. He
had those thin bowed legs that looked like they’d been molded around a barrel,
and he wore an old Stetson that came together with four finger creases at the peak.
A leather tong that extended from the hat’s crown, down to the back of his head,
and up again on the other side, held his hat against the wind
not that string dudes
wear tied around their chins. His face below the hat line was ruddy and his hide tough, and above
his hat line his skin was white and his hair thin. Both summer and winter he wore long cotton
underwear buttoned up high. Claimed he wore it in the winter against the cold and in the summer
as insulation against the heat. The one thing he valued most of all was a good horse.
One day I was standing at the corral with Uncle Slim. He was leaning on the top rail and
laughing his high-pitched laugh that sounded like the end note of a bull elk’s bugle.
“Look at that dude over there trying ta saddle his horse. And look at that saddle. It’s one of
them thousand-dollar kind.” It was a pretty thing
shiny black leather with silver spangles and
silver braid around the cantle. “And look at that nag he’s tryin’ ta put it on.” Then he turned to
me and, almost serious, he said, “Ya can’t get nowhere with a thousand-dollar saddle on a ten-
dollar horse.”
Our thousand-dollar saddles. Back then I was a young lawyer living in the town of Riverton,
Wyoming, population probably five thousand isolated souls. I’d tried quite a few jury cases
if a
case is worth trying it ought to be tried before twelve good citizens
and I thought I knew a lot.
I’d been to law school and I’d been the prosecuting attorney in Fremont County for eight years, a
county that covered endless prairies and towering mountains, and that included the Wind River
Indian Reservation with its tribes of Shoshone and Arapaho Native Americans. The county was
nearly as large as some eastern states, with the small cow town of Shoshoni at one end and
another small cow town called Dubois at the other. The people were spread out as sparsely as the
land itself. You could probably match the county’s population in a single block in Chicago or
New York. And although I thought I knew how to try a case, what Uncle Slim said got me to
thinking. We lawyers were like that dude with the fancy saddle and the old nag. We thought that
the saddle was more important than the horse we put it on.

T

3

Our education, our experience, and the endless tricks and techniques we’ve been taught in
order to make our sale to the jury, the board, the customer, or the boss have become our saddles.
And they are heavy. We attend motivational seminars put on by gurus, training sessions about
how to speak, how to organize our presentations, how to supplement them with graphics
and,
especially, how to be like the guru. We put the fancy spangles on our saddles by learning the
tricks of others, the big boys, the famous ones with those towering reputations who, in the
process of telling us how to do it, line their pockets. But after decades of applying these so-called
tricks of the trade, we still don’t win
not often enough. Something is wrong and we suspect it’s
something wrong with us, something at the core, something we don’t want to look at, think
about, or admit. If we could only find the right role model to follow perhaps we too could
become a winner.
So we attend more seminars, read more how-to books, and at last, having imitated the best of
them, we still come up short. Sometimes the tricks we’ve learned work. But not often enough.
Life’s entire potpourri of tricks, techniques, procedures, and processes have become the saddle
we’ve been taught to mount in order to win. That saddle is expensive and covered with glittery
stuff. But in the end it doesn’t seem to do much good.
But what about the horse? We’ve never been taught the wisdom of Uncle Slim
“Ya can’t
get nowhere with a thousand-dollar saddle on a ten-dollar horse.” Let us call ourselves the
presenters, those who face the jury, the board, the boss, and the customer, and try to win our
cases. We presenters can absorb all the law the professors can pound into us. We can learn all the
courtroom techniques and nifty tricks the big-time lawyers teach; we can be the most intelligent,
the cutest, the cleverest, intellectually ambidextrous swashbucklers ever to swagger into a
courtroom or a city council meeting, but what if we know nothing about becoming a person?
We’re the ten-dollar horse.
After fifty years making my presentations in and out of the courtroom I’ve learned one thing
for certain: It all begins with the person, with who each of us is. If we have no knowledge of who
we are, if we have no insight into the self, if we have never heeded the admonition of the sages
“Know thyself”
we walk before the power persons (the jury, the board, the boss, the
administrator) as a stranger to the self. And all of the participants at the presentation will remain
as strangers to us as well.
If the lawyer is blind to the composition of the self, how can he know anything of the persons
who compose the jury? If the executive knows nothing of herself, how can she know anything of
her governing board? How can the lawyer know what compels the witnesses’ testimony or the
judge’s rulings? How can the worker know what goes on in the mind of the boss if he has
entered that place of war
the boss’s office
as only the ten-dollar horse? As Atticus Finch, the
fictional lawyer in To Kill a Mockingbird, said to his young daughter who had a penchant to do
battle with her fists, “You never really understand a person until you consider things from his
point of view… until you climb into his skin and walk around in it.” We cannot understand
human conduct without understanding others, and we cannot understand others without first
becoming acquainted with ourselves.
Life in the chicken house. It is easier for me to think and teach with metaphors. Uncle Slim’s
ten-dollar horse is one. Let me engage another
life in the chicken house. Most of us assume we
know ourselves. Haven’t we lived intimately with this person for all of these years? But we live

4

inside our own self-constructed chicken house, and we’ve locked the door against our fear of
some mythical, marauding coyote that will surely do us in if we throw open the door and venture
out. As a consequence we trudge though our lives within those four bleak walls, and over and
over bounce against the walls until we have grown used to our self-imposed boundaries.
It’s taken a lifetime to build our chicken house. The walls are composed of images of who we
are, or the equally inaccurate visuals of ourselves imposed on us by our parents, teachers, and
peers. The walls are the defenses we impose against our fear of experiencing the self. We’ve
constructed the walls against the pains of childhood from various forms of injury
the parent
who physically or psychologically abused us, or spawned feelings of rejection or abandonment,
the teacher who told us we are stupid, that we couldn’t draw a tree that looked like a tree, or a
bullying brother or the beautiful sister who got all of the attention. Whatever the pain, that tender
organism known as the self takes on such defenses as are available
denial of the self, a
mythological reconstruction of the self, shallow rationalizations that excuse the self, a closure
against feeling
and once the walls are constructed we live our lives within them believing we
are safely ensconced against harm.
Within the four walls of the chicken house most of us have become walking, talking
conglomerations of habits, a monumental psychic pile composed of habitual thoughts and
feelings, the same old ideas and beliefs, predictable responses and brittle attitudes, so that if we
are encountered once, either by ourselves or others, we need not be experienced again. To know
us once is to know us forever. When we say we know ourselves, all we really know are the few
square feet of the chicken house and nothing of the endless expanse of the landscape beyond.
Yet, I say it is more dangerous to live within those walls than to live free, for the risk of living in
the chicken house is that one may never have lived at all.
Escaping the chicken house. Discovering the self. Erich Fromm, the great psychoanalyst,
said, “Man’s main task in life is to give birth to himself, to become who he potentially is.” So
how do we discover the self?
The discovery of the self is a lifetime adventure. It begins when we recognize how frightened
we are to venture beyond the door. This lifelong business of self-discovery can take many forms.
I’ve experienced counseling and gone the route of the once stylish “encounter sessions.” I’ve
been trained as a leader in “sensitivity groups,” trained lawyers in the psychodramatic technique,
and like a starving child at a smorgasbord, I’ve read voraciously. I’ve spent years discussing my
loves, my pains, my fears, my guilt, my agonies, and my hang ups with friends who would listen,
especially with my wife, Imaging. I’ve painted, written poetry, and become a professional
photographer because these art forms are roads to secret places in the self that cannot otherwise
be visited. I’ve authored fifteen books, including two novels, mostly to discover what I know and
how I feel, and, in the end, to help me identify the self to myself. I’ve traveled in distant,
primitive cultures and talked to every man, woman, child, dog, tree, and posy I thought might
possess any insight into this journey called life. I’ve visited the happy homeless wretches on the
streets, the old boy who lives under the bridge, and the recluse who hides out in a hut in the
wilderness of Wyoming. Perfectly endowed, we possess all the knowledge necessary to complete
this journey. Such knowledge does not come from the guru in the cave, but from the guru within.
We are psychic archeologists engaged in an archeological dig of the self.