This has been a very good week for me.
First, my daughter has been accepted into three graduate schools including the school that had been her first choice. She will also receive a prestigious scholarship. Now she can march forward with her goal to become a clinical psychologist. Most of all, she wants to help people and improve the world. What would be better than that?
Second, Barack Obama, finally became presidential with both the health care reform victory and the arms reduction treaty with Russia. At last I am seeing the man that I voted for. His autographed photograph hangs in my office and is not coming down anytime soon.
To borrow a bit from Joe Biden, this has been a good f***ing week.
Saturday, March 27, 2010
Friday, March 26, 2010
Gerry Spence
Perhaps the greatest living trial lawyer in America is Gerry Spence of Jackson, Wyoming.
But why is this the case? What is Spence’s special gift? How did Gerry Spence become to trial practice what Albert Einstein was once to physics?
Reasonable minds might disagree on the source of Spence’s courtroom talent. Some point to his strong personality and imposing physical presence. Others believe that Spence’s power lies in his deep voice, which he plays like a musical instrument. Then there is Spence’s use of psychodrama as a trial preparation tool. Perhaps all of these have played some role in his success. But I think Spence’s genius lies in his creativity. He always seems to find a unique and different way of looking at a case. Then he communicates his vision so effectively to the jury that they are compelled to share in it. Gerry Spence never loses.
The truth is that most lawyers try cases in a very predictable manner. Their minds have been programmed to work that way. They prepare for trial in almost an assembly line fashion, much in the same way that cars are built. Yes, they might have been told the value of storytelling and the necessity of developing a trial theme, but often the chosen theme is so obvious and predictable that a fifth grader could have thought of it while walking home from school. Gerry Spence never makes this mistake. His themes are custom designed. They invoke emotions of righteous indignation. They are arrows to the heart.
Gerry Spence once tried a case against McDonalds in Chicago that involved the breach of an oral agreement for the sale of ice cream cones. Most lawyers probably would have turned that case down. Who in this day and age could even imagine the concept of an oral agreement involving millions of dollars? To the contrary, we live in a time in which important contracts are not only reduced to writing but have grown to the length of short novels, rife with definitions, obligations, exceptions to the obligations and then exceptions to the exceptions. To suggest the existence of an oral agreement with a major corporation the size of McDonalds almost hinted of naivety. But Spence looked at the issue in a different way. He reached into the past, to a time when a man’s word was considered to be his bond. And then he asked the jury to “put honor back into a handshake.” They did: $52,000,000.00 worth. It was, at the time, the highest verdict in the history of the State of Illinois.
More recently Gerry Spence defended attorney Geoffrey Fieger, who stood accused of violating campaign contribution laws. It was claimed that Fieger illegally circumvented federal limits on campaign contributions by having other people make donations to the John Edward’s presidential campaign, after which Fieger would provide reimbursement for the donations. The trial judge ruled that this amounted to a violation of the law, and on the surface at least, the case seemed incapable of defense. But as usual, Spence found the Achilles heel. No crime could have been committed if Fieger did not know that he was violating the law. And there was nothing in the language of the Act that specifically prohibited reimbursement. From this chip in the armor, Spence built his defense. He compared the prosecution to a police officer writing tickets to motorists for disobeying traffic signs that did not have anything written upon them. He talked about housewives, without any income, being prosecuted for making political donations to candidates simply because their husbands gave them the money to do so. He compared the government’s over-zealous arrest of Fieger to the now discredited “shock and awe” invasion of Iraq in 2003. He noted that many decisions of the United States Supreme Court were decided by a five to four vote, suggesting that reasonable minds can disagree as to a law’s meaning. Not surprisingly, Fieger was acquitted on all counts.
Of course this all leads to a bigger question of whether creativity can be taught, and learned. I don’t know the answer. But I do know that to the trial lawyer, creativity is life’s golden goose.
But why is this the case? What is Spence’s special gift? How did Gerry Spence become to trial practice what Albert Einstein was once to physics?
Reasonable minds might disagree on the source of Spence’s courtroom talent. Some point to his strong personality and imposing physical presence. Others believe that Spence’s power lies in his deep voice, which he plays like a musical instrument. Then there is Spence’s use of psychodrama as a trial preparation tool. Perhaps all of these have played some role in his success. But I think Spence’s genius lies in his creativity. He always seems to find a unique and different way of looking at a case. Then he communicates his vision so effectively to the jury that they are compelled to share in it. Gerry Spence never loses.
The truth is that most lawyers try cases in a very predictable manner. Their minds have been programmed to work that way. They prepare for trial in almost an assembly line fashion, much in the same way that cars are built. Yes, they might have been told the value of storytelling and the necessity of developing a trial theme, but often the chosen theme is so obvious and predictable that a fifth grader could have thought of it while walking home from school. Gerry Spence never makes this mistake. His themes are custom designed. They invoke emotions of righteous indignation. They are arrows to the heart.
Gerry Spence once tried a case against McDonalds in Chicago that involved the breach of an oral agreement for the sale of ice cream cones. Most lawyers probably would have turned that case down. Who in this day and age could even imagine the concept of an oral agreement involving millions of dollars? To the contrary, we live in a time in which important contracts are not only reduced to writing but have grown to the length of short novels, rife with definitions, obligations, exceptions to the obligations and then exceptions to the exceptions. To suggest the existence of an oral agreement with a major corporation the size of McDonalds almost hinted of naivety. But Spence looked at the issue in a different way. He reached into the past, to a time when a man’s word was considered to be his bond. And then he asked the jury to “put honor back into a handshake.” They did: $52,000,000.00 worth. It was, at the time, the highest verdict in the history of the State of Illinois.
More recently Gerry Spence defended attorney Geoffrey Fieger, who stood accused of violating campaign contribution laws. It was claimed that Fieger illegally circumvented federal limits on campaign contributions by having other people make donations to the John Edward’s presidential campaign, after which Fieger would provide reimbursement for the donations. The trial judge ruled that this amounted to a violation of the law, and on the surface at least, the case seemed incapable of defense. But as usual, Spence found the Achilles heel. No crime could have been committed if Fieger did not know that he was violating the law. And there was nothing in the language of the Act that specifically prohibited reimbursement. From this chip in the armor, Spence built his defense. He compared the prosecution to a police officer writing tickets to motorists for disobeying traffic signs that did not have anything written upon them. He talked about housewives, without any income, being prosecuted for making political donations to candidates simply because their husbands gave them the money to do so. He compared the government’s over-zealous arrest of Fieger to the now discredited “shock and awe” invasion of Iraq in 2003. He noted that many decisions of the United States Supreme Court were decided by a five to four vote, suggesting that reasonable minds can disagree as to a law’s meaning. Not surprisingly, Fieger was acquitted on all counts.
Of course this all leads to a bigger question of whether creativity can be taught, and learned. I don’t know the answer. But I do know that to the trial lawyer, creativity is life’s golden goose.
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