Trial Lawyer Gerry Spence on Persuasiveness

Gerry Spence

The master trial lawyer has much to teach us about persuasion. And Gerry Spence certainly is a master. He hasn't lost a case since 1969 and has more multi-million-dollar verdicts than any lawyer in America, including a $10.5 million verdict in the Karen Silkwood case, which was made into a movie starring Meryl Streep. He is in the American Trial Lawyers Hall of Fame, which includes John Adams and Clarence Darrow. The author of 17 books including How to Argue and Win Every Time, in today's The Eminents interview, I spoke with Gerry Spence today.

Marty Nemko: What’s a not-obvious subtlety that you use in juror selection?

Gerry Spence: I don't try to be subtle. Not good at it. I try to be a real and caring person. If I expect jurors to be real people who can care, I can't ask them to do what I fail to do.

MN: Is there a psychological principle that you frequently use in selecting the core argument you’ll make in a case?

GS: Every case I’ve been in is a case of betrayal. Even a fender bender—When you drive, you must trust that the other drivers will live up to their promise to drive safely. Prosecutors use every tool to make the defendant look bad; that’s a betrayal of the truth. Jurors can relate to betrayal: We’ve all been betrayed, and yes, we’ve all betrayed others. So I often frame the case in terms of betrayal.

MN: You’ve written that fear can be an ally. Explain that.

GS: I have never entered a courtroom without feeling fear. I know that I have, in my hands, the life of a client. In a capital case, if I fail, that person could die confined in concrete and steel, raped, beat up by other prisoners. He may even be executed. The horror he faces is also my horror. If I fail him, I must live with the consequence. I’m never sure I can succeed. In fact, I’m often terrified. The jurors too are terrified. They’re in a strange environment, lawyers peering at them, testing them, asking them questions they don’t know how to answer. And they’ll be locked in a room with 11 other strangers with the terribly difficult task of searching for the truth. What if I wrongly convict? I have huge power. I’m on the verge of panic.” Justice tends to hide itself. In revealing my fear to the jurors, I ask them, “Can we join together and somehow chase it out into the open?”

MN: You say, “Don't be blinded by brilliance.” Why not?

GS: I see brilliance in the courtroom that jurors shouldn’t be blinded by, for example, attorneys hired by insurance companies--They know how to smile at the jury exactly right. They know exactly how to conduct themselves.They’re like a dancer, perfectly choreographed but not real. I always like going against such attorneys because, in the end, the jury has to decide who really cares about the case and whom can they trust. We trust people who are real, open, and caring.

MN: Is there something not obvious about what makes a sympathetic witness?

GS: The witness that is vulnerable has great power.

MN: You’re 85 and a few years ago, said it was time to put down the sword. You haven’t. Why?

GS: I guess I feel my work isn’t done yet. I spend at least 10 hours a day producing something---I’m in my study before breakfast and work for a while before I let myself eat. I may take a nap but then I work through the end of the afternoon. I’m driven by the fear I’ll die before my work gets done. That may be neurotic but it does help me accomplish.

MN: What’s really important to you now, Gerry?

GS: I appreciate every day. I recognize the gift that’s been given to me: A day without pain, without undue worry. In exchange, I want to finish the work I’m doing—Right now, I’m working on three books.

Marty Nemko’s bio is in Wikipedia.