Gerry Spence & the Art of Advocacy

The "Art of Advocacy" Course: The purpose of the 'Art of Advocacy' course is to explore lawyer advocacy not only as a method and set of techniques but as an “art.” In legal education, you are steeped in the legal abstractions offered in appellate court opinions but you are rarely asked to read or review a trial court transcript. You are asked to learn law abstracted from the stories and the courtroom dynamics of the trial. (There may be a brief hint of a story in the statement of facts in an appellate court opinion, but its at best the synopsis of a story, a story told in the dry logic of a judicial opinion. You see virtually nothing of the lawyers and how they have tried the case in an appellate opinion—unless of course the lawyer committed some kind of error that has been made part of the appeal.) Other than trial advocacy courses, and the clinic, you are not, in Gerry Spence's words, being trained as a "warrior," the kind of warrior you will need to be to represent your client. In the “Art of Advocacy” you will not be trained as a warrior, but you will be asked to make a small down-payment on exactly what this training might entail.

In this course, we will work, not with the legal abstractions found in judicial opinions, law reviews, and trial advocacy manuals, but with one lawyer's life, one lawyer's exploration of the "art" of lawyering, one lawyer's explanation of what can (and should not) happen in the trial of a case. Basically, in this course, we're going to look at advocacy, from the "bottom-up" rather than in the more typical "top-down" approach, focusing on the lawyer and not judicial opinions.

The goal is to present a new perspective on a subject of substantial professional interest to lawyers, and students of law. Advocacy is, in some fashion, an implicit subject in throughout the law school curriculum. In this perspective course, we’ll explore the “art of advocacy” from the perspective of the life, the trials, and the writing of Gerry Spence, a Wyoming lawyer|writer|poet| photographer, who has been stunningly successful as a trial lawyer. We’ll explore: Gerry Spence’s trials (as portrayed in his books and in the writings of others), his life (by way of Spence’s first memoir, Gunning for Justice), his poetry and photography (as found in Gerry Spence’s Wyoming Landscape: Photographs and Photography), his trial strategies and techniques (by way of his book, Win Your Case and various audio and video tapes of Spence and his approach to advocacy). We will compare and contrast Spence's approach/style/art with the art of advocacy explored in Sam Schrager’s The Trial Lawyer's Art (Philadelphia: Temple University Press, 1999).

On the Art of Trial Advocacy

"There is an art to the trial of a case, an art to which the lawyer is not exposed in law school. Few lawyers have mastered it. And those who have most often have somehow become the more highly evolved person. Most who have become fine trial lawyers have learned that it is all right to be afraid--that they should be afraid--and that it is all right to be real. Most have learned that it is all right to care about one's client, about justice--that they cannot ask jurors to care if they, the lawyers, do not care themselves." [Gerry Spence, O.J., The Last Word 119 (New York: St. Martin's Press, 1997)]

“How does one become a successful trial attorney? I have no idea,” Geoffrey Fieger said as he opened a lecture at Michigan State University-Detroit College of Law . . . “I know what I do, but I'd be lying to you if I said I could quantify how I do it. Every trial attorney, like every artist, has to find their way, and I believe good trial law is an art, not a science.” ["Fieger Shares the Art of Trial Law," Fieger Times, New from the law firm, Fieger, Fieger, Kenney, and Johnson, vol. 6, spring, 2003][online text]

[Geoffrey Fieger, who gained national notoriety in his representation of Dr. Keverkian, the mercy-killing doctor, gave $4 million to the Michigan State University in 2001 to establish The Geoffrey Fieger Trial Practice Institute][Fieger talks about the new trial institute, how he came to fund it, and his thinking about law.][Our reading of the news, without confirmation from Spence or Fieger, is that Gerry Spence is representing Fieger who was indicted for Federal campaign contributions violations. Lawyer Geoffrey Fieger Indicted, Gerry Spence to Defend][Selective Prosecution Defense in the Fieger Case][This One's Gonna Be Ugly][Detroit News, January 24, 2008, news in the Fieger case] [Geoffrey Fieger & Gerry Spence videos: pt.1 -- pt.2 -- clip3-- clip4 -- clip5]

Contact Professor Elkins by Email :: Website posted: January 1, 2008