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

218 Pages·2005·1.44 MB·English

by  Spence

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
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
WIN
YOUR CASE
How to Present, Persuade, Preveil—
Every Place, Every Time
GERRY SPENCE
St. Martin’s Press New York
iii
Copyright
. Copyright © 2005 by Gerry Spence. All rights reserved. Printed in the United
WIN YOUR CASE
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 inPublication Data
Spence, Gerry.
Win your case : how to present, persuade, and prevail every place, every time / Gerry Spence 1st ed.
p. cm.
ISBN 0312 338813
EAN 978 0312 338817
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
iv
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.
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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
vi
WHO NEEDS THIS BOOK?
and losing too often?
RE YOU A TRIAL LAWYER
A
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.
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WHERE I’M COMING FROM
plain and simple war. In times past the species battled for their territory
T’S WAR OUT THERE
Iwith 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.
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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
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