Published in: Mountain States Super Lawyers 2010 — July 2010

The Storyteller

By Erik Lundegaard

Trial legend Gerry Spence on fear, honesty and the value of knowing one’s story

Gerry Spence graduated cum laude in 1952 from the University of Wyoming College of Law, passed the Bar in the same year, became a two-term prosecutor, represented insurance companies, then became a criminal defense and plaintiff’s attorney, and, in the process, one of the most famous lawyers in the country. He hasn’t lost a civil case since 1969 and hasn’t lost a criminal defense case ever. He’s represented Imelda Marcos, Randy Weaver and the family of Karen Silkwood. He started the Trial Lawyers College in 1994. He’s had 16 books published. He’s 81 and not retiring.

 

You’ve written and spoken a lot about the dangers of corporate power. What are your thoughts on the U.S. Supreme Court’s Citizens United v. Federal Election Commission decision?

Corporate power is a disease from which democracy suffers—because corporations are given the same rights as human beings, but no human approaches the size of a corporation. All human beings are mortal. Corporations can be immortal. As a consequence, the individual faces these monsters in an attempt to realize justice. It’s like putting an ant in a cage filled with elephants.

The Supreme Court has now held that corporations have unlimited power to buy elections. They can spend all the money they want. Because they have the rights of citizens—these elephants without heart or soul. 

 

Any recommendations?

The solution is the education of the American public. But educating people is nearly impossible because the corporate power structure owns all of the means of communication—namely the media.

 

What about the Internet? That’s a means of communication that doesn’t necessarily rely on a corporate power structure—as we saw with recent protests in Iran.

I make room for that proposition. But the information that comes out is varied and oftentimes unreliable. There is no main stream of information that comes to the people that is fair, reasonable, reliable and complete. It’s like children throwing sand at each other and saying they’re free to throw sand at each other when all the while the corporate communication system is dumping boulders down the mountain.

 

What are some of the biggest changes to the law during your career?

The Patriot Act is a huge change in the law. And there’s been an enormous change on the idea of terrorism. We are afraid of everything. Ultimately we are so afraid that we quietly give up our rights. We are unable to understand that our greatest danger is the loss of our few remaining rights.

 

Fear is a common theme in your books, isn’t it? From the childhood fears you write about in The Making of a Country Lawyer to your fear in the courtroom in How to Argue and Win Every Time.

I think we’ve been taught not to admit our fear, even to ourselves. We’re all supposed to be brave. We’re supposed to view our lives and those of our opponents without fear. But that isn’t who we really are. We’re all really very afraid. I think we have to recognize our fear and deal with it in an appropriate way. Once we face it and own up to it, it will energize us and, magically, it will retreat like a cowering dog.

 

In the Randy Weaver trial, you said you dealt with your fear before final summation by owning up to it to the jury.

I’ve done that many times.

 

Is there a limit? A moment when it ceases feeling genuine?

I’m sure if it became pathological that would be the case. But when I stand up to a jury and say, “I wish I weren’t so afraid. My fear is I won’t do what I should on behalf of my client. I’ve learned that the courtroom is a fearful place: that people lose their lives and their freedom and they lose justice. It’s hard to be here. You must have a sense of fear as well because yours is the responsibility to render justice.” This puts it out on the table so we can deal with it honestly.

 

What do you think your great strength as a trial lawyer is?

[My wife] Imaging was talking to me about that this morning—about what I thought my power was in the courtroom. That is something other people see but you don’t. Other people can look at my face and see my eyes—I can’t look at my face and see my eyes. Others hear my voice while I live with my voice every day. For 81 years. So I’m not able to say.

But I think if I were to abstractly discuss it, my most important power in a courtroom—the one that at least I struggle for the hardest—is to be honest and credible. I think credibility is really the only thing we have in a courtroom that is saleable to a jury. You can have the greatest case in the world but if the jury doesn’t believe you, you’ve got nothing. And you can’t pretend to be credible because juries know better, they have a sense of it, they can feel it. So the only answer is to be real. That would include being real with respect to such things as your fear.

 

You were a prosecutor for two terms before becoming a lawyer for insurance companies …

I’ve committed a lot of sins in my life.

 

… Then you switched to the other side. Why?

When I first went into the law, if you were an important lawyer you represented an insurance company. That was proof that you had made it. I can remember how proud I was when I went rushing home to tell my wife that I’d been hired by an insurance company.

Then, as I matured, I began to see what was really going on in the legal system. I saw the power of money, and the power of insurance companies, and poor people that couldn’t get representation; and poor people who, if they could get representation, were represented by lawyers who couldn’t afford to take the case and deal with it in a correct fashion. And if you are sensitive to and become educated from your experience, there comes a time when either you respond to that or you become calloused against it. And it just so happens that I grew up with poor people so I recognized the helplessness of ordinary people against the power structure. And there came a time when I couldn’t represent the power structure anymore. Came in a specific case.

 

What case?

I was defending a woman for an insurance company. And of course when you defend for an insurance company the court lies to the jury—never tells the jury that the little old lady sitting there, in her floppy hat, and looking very poor herself and very upset, has $5 million worth of insurance.

She had run into a man with her car. He had worked all of his life in a refinery in Casper, and was about to retire. He hoped to spend his retirement with his grandchildren, do some fishing and enjoy the retirement that he’d earned. And he was hurt by this woman with her floppy hat with all of the insurance. She was totally at fault. And I walked in there on behalf of the insurance company and did things to that poor man on the stand that undercut his credibility. They were the skills of a defense attorney, and the plaintiff’s attorney couldn’t combat it. And the jury returned a verdict against him. He got nothing.

That evening I was at the Safeway store, gathering up food for a celebration, and in the checkout line here was this old man, the plaintiff, ahead of me. And he turned around. That was as close as I’d ever been to him. I could see his painful eyes—pain was on his face—and I said to him, “I’m sorry that this all turned out this way for you.” And he said, “Oh, that’s all right, Mr. Spence. You were just doing your job.”

And I thought, “Just doing my job?”

I helped him out with his groceries to his car. That evening I’m in bed with my wife, telling her this story, and I said, “Is that my job? To cheat old men out of justice?” She didn’t answer. Didn’t say a word. The next morning I got up and contacted my partner, Robert R. Rose Jr., who became chief judge of the Wyoming Supreme Court. And I said, “You know, we’re not going to do this anymore,” and he said, “No, we’re not.” I wrote nearly a score of letters to as many insurance companies that said you’re going to have to get somebody else to do this. And we’ve never, never represented an insurance company or large corporation or the government to this day.

 

Why did you start the Trial Lawyers College?

Because lawyers are incapable of representing people when they get out of law school. Most lawyers go clear through their lives never having learned how to represent a person in a jury trial. And the few really good ones mostly represent corporations. So I always believed we needed to begin teaching trial lawyers how to represent ordinary people.

 

How do you do that?

We start out with three days of psychodrama. Are you familiar with that? It’s a method by which the participants engage in role reversal with important people in their lives [played by their peers]. We all have important people in our lives with whom we’ve had conflicts and who have been important to us and to the process of our development as human beings. Usually there’s pain involved. But it’s the process of discovering ourselves. If you don’t know anything about yourself, how can you know anything about your client, or the jury, or the judge, or the witnesses, or the process? It all begins with you.

Then we use that same method in discovering the story of the trial. What is the real story? Not what are the cold, old facts, let us say, in an insurance company report. What are the real facts? What is the real story of the real human beings in the case? And the psychodramatic method is used to discover that. The lawyers come in and reverse roles and play the parts of the respective parties in their case.

 

A real case?

We use real cases. Their own cases.

 

Past cases?

Could be one they’re working on.

 

Have you participated in this role reversal exercise?

I participated in it long before we established the Trial Lawyers College.

 

With whom?

My mother committed suicide so I had a lot of conversations with her. I used to believe she committed suicide because of me. I was 19 years old, she was a very staunch Christian woman, and I rejected that way of life, and I’m sure it brought a lot of pain to her. She lost my little sister to cerebral meningitis. She got sick in the morning and died that night. I was 5 years old, my sister was 3, and my mother promised to give me to God if God would save me—that was her promise. Of course I was against anyone giving me to anybody. [Laughs] But for years I thought that I had killed my mother because I had prevented her from keeping her vow to God. You can imagine what that would do to a young man.

But when you get into areas of psychodrama you begin to learn that mother had a life of her own. And she began to speak about her life when I reversed roles with her. You understand? We all have problems in our lives that leave us empty or injured. Or we’ve imposed on ourselves ideas that are wrong, that hurt us and that don’t fit.

When we finish our psychodrama, we’ve touched the stories of many other people in that group, who would then say, “Yes, I had an experience like that.” And we discover that we are just a collection of stories, just a bucket of stories. We are storytellers from the beginning. And psychodrama helps us discover what our story truly is. And if we have discovered our own story, it helps us in discovering the story of our client. And when the story of our client is told, in a clear and open and honest fashion, it touches the stories of others on the jury, who have similar stories in their own lives.

 

What makes a good storyteller?

The listener can’t hear anything that doesn’t have the ring of truth to it. We happen to be one of the few species on the face of the earth that will lie and hurt members of our own species. But we’ve also got the biological advantage of all of these little psychic feelers that are out there feeling whether or not this person is being truthful.

 

You’ve represented a lot of people who have been condemned in the media before trial: Imelda Marcos, Randy Weaver. Is there anything you do in particular in those cases?

Again, it comes down to credibility. The last case that I tried was the [Geoffrey] Fieger case [in Michigan], and the judge told the jury that Geoffrey was guilty before we started. He gave me no voir dire and only half an hour for my opening statement. So you start with a jury who has been exposed to all of the adverse publicity, and then the jurors walk into the courtroom to hear the judge say, “This man has violated the law and the only thing for you to decide is: Did he know he was violating the law?”

So what to do you do?

Well, what you do is you become a human being. An honest human being. And you begin to treat the people in the courtroom as honest human beings.

Say you want to take a trip through Wyoming to the other side of the mountains—which would be a long, arduous, dangerous trip. You would need a guide. And you would pick a guide that you trusted, one that you felt could get you through. And that’s sort of the way it is with the jury. The jury comes in, they don’t know each other, they don’t know the courtroom, they don’t know the judge, they have never been on a jury. It’s a strange, frightening situation. They need a guide. Who can they trust? They have to trust one side or the other. And I suggest to you that they’re going to trust the person who relates to them in a straightforward, honest, open, reasonable, caring fashion.

 

Was the Fieger case your last trial?

Probably not. Like an old fighter, I probably don’t have the sense to know when to quit.

 

Which of your 16 books should a young lawyer start with?

How to Argue and Win is a good place. And then The Making of a Country Lawyer would be a good place to continue. To see that it’s all right to fail and it’s all right to be rejected.

 

You famously haven’t failed as a criminal defense attorney—except when you represented Lee Harvey Oswald in a mock trial on the BBC in 1986 and the jury ruled against you.

I didn’t lose it. The jury was handpicked by the producers from Dallas and taken to England. [But when the show] was replayed in this country and the case was presented to the American public, they were permitted to vote as to [Lee Harvey Oswald’s] guilt or innocence. We won it overwhelmingly.

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Gerald L. Spence

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