lawyer as storyteller

James R. Elkins

Reading Gerry Spence's Win Your Case

The Trial Lawyer as Warrior: "The trial lawyer in the courtroom is a warrior." [3]

"Lawyers come in all shapes and sizes. There are professors, transactional types, corporate counsel, litigators who can move a mountain of paper from the safety of their office and a plethora of other paperpushers. And there are trial lawyers: men and women who excel at the mind-to-mind combat that takes place only in a courtroom." ~ Norm Pattis, Blog: Fighting for Freedom One Client at a Time [March 7, 2010]

A Few Words on the Warrior's Journey
[Thomas C. Schultz, Society for Contemplative Studies, Wheeling, West Virginia]

What Lawyers Don't Know: "[M]ost lawyers don't know how to try a case." [4]

The incompetence of lawyers, according to Spence, "isn't because they want to be incompetent. They study. They try. Some of them worry. Some even grieve. But most lawyers don't recognize their incompetence. That's because their incompetence begins not as lawyers, but as human beings." [Gerry Spence, O.J., The Last Word 111 (New York: St. Martin's Press, 1997)]

["Good trial lawyers need to be evolved persons underneath all the lawyer stuff. Most aren't." Id. at 114]["By the time the young lawyer has percolated up through grade school, high school, and then college, he is pretty well domesticated, pretty well worn down as a person, pretty much weaned from the positive and the creative, pretty much suckled to the negative and mechanical. By the time he gets to law school, he is pretty much trained not to think for himself. He has become a predictable drone. He has lost his creativity. I would suggest he has been educated against feeling, against caring, against being." Id. at 114-115]["What are we to make of America's trial lawyers? Who are they? Why are we so disappointed in them? . . . . What we see . . . are too many pampered kids with diplomas hanging on the wall who have had no life experience, who wouldn't know a shovel handle from a dildo, and who, by the time they have entered law school, have been stripped of most of what makes a human being, their openness, their compassion, their ability to feel . . . ." Id. at 116-117]

Law Schools Don't Teach You What You Need to Know: Law schools don't teach students how to try a case. [4]

It All Begins with the Self: Learning to be a trial lawyer "begins with the self, with a knowledge of who we are . . . ." [5]

"[L]earn to imitate no one." [Id.]

"Our method begins with the self." [Id.]

"It all begins with the person, with who each of us is." [11] "We cannot understand human conduct without understanding others, and we cannot understand others without first becoming acquainted with ourselves." [Id.] "As Atticus Finch, the fictional lawyer in To Kill a Mockingbird, said to his young daughter who had a penchant to do battle with her fists, 'You never really understand a person until you consider things from his point of view . . . until you climb into his skin and walk around in it.'" [Id.]

"Most of us assume we know ourselves. Haven't we lived intimately with this person for all of these years? But we live inside our own self-constructed chicken house, and we've locked the door against our fear of some mythical, marauding coyote that will surely do us in if we throw open the door and venture out. As a consequence we trudge through our lives within those four bleak walls, and over and over bounce against the walls until we have grown used to our self-imposed boundaries.

"It's takes a lifetime to build our chicken house. The walls are composed of images of who we are, or the equally inaccurate visuals of ourselves imposed on us by our parents, teachers, and peers. The walls are the defenses we impose against our fear of experiencing the self. . . . Whatever the pain, that tender organism known as the self takes on such defenses as are available--denial of the self, a mythological reconstruction of the self, shallow rationalizations that excuse the self, a closure against feeling once the walls are constructed we live our lives with them believing we are safely ensconced against harm.

"Within the four walls of the chicken house most of us have become walking, talking conglomerations of habits, a monumental psychic pile composed of habitual thoughts and feelings, the same old ideas and beliefs, predictable responses and brittle attitudes . . . ." [11-12]

"When we say we know ourselves, all we really know are the few square feet of the chicken house and nothing of the endless expanse of the landscape behyond." [12] ["We can begin breaking out of the chicken house in many ways." [13]

Still, Win Your Case, is not a book that will teach you how to know your self. "Such is not a teachable skill. There are no 'How to Know Thyself' courses offered in college. Self-knowledge always remains a work in progress, a different one for each of us, one that reveals a changing landscape as we travel through our lives." [14-15] ["The discover of the self is a lifetime adventure. It begins when we recognize how frightened we are to venture beyond the door."] [12]

"Man's main task in life is to give birth to himself, to become what he potentially is. The most important product of his effort is his own personality. ~ Erich Fromm, Man for Himsef: An Inquiry into the Psychology of Ethics 237 (New York: Henry Holt and Company/First Owl Books, ed., 1990) (1947)(cited in Spence, at 12). Spence gets the quote slightly wrong. He uses the quote again, as a prologue to a chapter in his book Seven Simple Steps to Personal Freedom (New York: St. Martin's Press, 2001) and gets the quote right. [See id., at 17]

"Most of us do not want to be free." ~ Gerry Spence, Seven Simple Steps to Personal Freedom: A Handbook 17 (New York: St. Martin's Press, 2001)

"We all carry with us certain issues that hang us up like old laundry on a sagging clothes line. Some is deep, furtive stuff that we've so thoroughly tromped down that we've transformed ourselves into disadvantaged persons with crippled psyches, no longer free to run and jump and dance and create." [Spence, Win Your Case, at 13]

"For all one's conviction that the world should be open to knowing, there are certain forms of knowledge that one fears." ~ Jerome S. Bruner, On Knowing: Essays for the Left Hand 59 (New York: Atheneum, 1966)

Spence would have us be "psychic archeologists engaged in an archeological dig of the self." [Win Your Case, 13]

"By learning to listen to ourselves, to fearlessly experience ourselves, we learn to listen to and discover others." [14] "I am merely suggesting that to become aware, to become open to ourselves, is the first toward becoming a person and learning how, in the end, to become open to others." [18]

"[W]e do not grow much from joy and pleasure, and we do not learn much from winning. We grow and bloom from our pain and from the lessons of the self that we learn from our pain." [17] ["As I look back, the most fortunate events in my life, although deeply painful, were the rejections I suffered. They proved to be immensely liberating gifts." Gerry Spence, Seven Simple Steps to Personal Freedom: A Handbook 12 (New York: St. Martin's Press, 2001). "During those painful, formative years what I had also failed to understand was that every rejection I had suffered was a true gift of self to me . . . ." Id. at 13]

"No power is greater than the power of a self freed of the false ideas of power, for no power exceeds the power of a free self." [Gerry Spence, Seven Simple Steps to Personal Freedom: A Handbook 14 (New York: St. Martin's Press, 2001)]["I argue that freedom can exist only if we have first freed the self. And in life the self is ours to free." Id. at 17][And the problem, most basically stated: "Most of us do not want to be free." Id.]

"[S]elf-knowledge becomes the foundation of his [the lawyer's] conduct and strategy in every phase of the war [the trial] he will engage in." [13]

"[C]redibility is the key to winning. One cannot be credible without first being honest about the self." [15]

Emotional Literacy Education and Self-Knowledge
[Mark Zimmerman][text and audio]

Finding Gaps in Your Self-Knowledge

Carl Jung and Jungian Analytical Psychology
[Gregory Mitchell] [Video of Jung: Face to Face: Interview--pt.2--pt.3--pt.4][Matters of Heart--pt.2--pt.3--pt.4--pt.5--pt.6--pt.7--pt.8--pt.9-pt.10][Jung's Model][Shadow: Wikipedia]

"What makes for our sense of aliveness and feeling real, as persons . . . . What puts us in tuch with our own voice and confers a sesne of finding and creating a path that is true for us, while at the same time recognizing that others take different paths? What kills our voice? What makes for deadness? What is the nature of that generative space where we enhance our capacity to be real? To what and to whom do we belong?" ~ Ann Belford Ulanov, The Unshuttered Heart: Opening Aliveness/Deadness in the Self 1 (Nashville, Tennessee: Abingdon Press, 2007)

Power in Being Genuine: There is a power in being "genuine." [5]

Knowing One's Own Fear: There is a power in knowing one's own fear. [5]

Gerry Spence: On Being Afraid

The Summation of Gerry Spence for Randy Weaver

On Dealing with Fear: Three Examples

An excerpt from Gerry Spence, How To Argue and Win Every Time [chapter one]:

This fear that so disables us�how do we deal with it? I feel it squalling in my belly whenever I stand up in the courtroom to begin an argument. I feel it whenever I begin the cross-examination of an important expert witness who is armed with a much greater knowledge of the subject than I. Will I fall? Will I be seen as incompetent? How do I dare argue with him? Will I find myself slinking out of the courtroom, the jury watching, witnessing my shame, my opponents leering, mocking my misery?

THE KEY: Fear is our ally. Fear confirms us. Fear is energy that Is convertible to power�our power.

Fear is friend and foe alike, adversary and ally. Fear is painful. I hate its frequent companionship. Yet it challenges me. It energizes my senses. Like the sparrow, watching, watching, in the presence of fear I become alert. In the forest, the great buck with the majestic presence runs at the first snap of a twig. Fear has caused him to bolt. How else did he grow so grand? It is the two-point buck, who was not afraid, who now adorns the fender of the hunter's car, the young buck who only stared with large, blinking eyes at the hunter, and did not run.

I have learned not to be ashamed of my fear, but to embrace it. One cannot be brave without it, for is not our bravery merely the facing of our fear? How brave is the soldier who does not understand the danger as he charges? How brave is the madman? The fool? And who is the more brave�the small boy standing on the stage singing his first solo before his Sunday school class, or the great opera diva singing at the Metropolitan Opera?

Fear confirms that, at my heart-core, life, not death, is the authority. The dead are not afraid. Fear is the painful affirmation of my being. To affirm myself is to experience the courage to make the argument�for all argument begins with me. To affirm myself is, as Paul Tillich once argued, "the courage to be." Once we have embraced fear, once we have felt it, accepted it, we have also proclaimed the imperative I am!, and the argument may now begin.

In the courtroom I sometimes carry on a silent conversation with myself about my fear, while the jurors look on wondering, as they must, what occupies this strange man who stands silently before them looking down at his feet. My conversation with myself most often sounds like this:

"How are you feeling, Gerry?" I ask.

"The jury is watching, waiting for me to begin my argument," I reply. "I can't just stand here saying nothing."

"I asked you, how are you feeling?"

"You know how I feel.

"What is the feeling?"

"You know what the feeling is."

"Are you afraid to say it?"

"All right. I'm afraid."

"Well, you should be. Big stakes. The prosecutor wants to destroy your client. He wants to destroy you."

"I don't want to think about it. Not now. Not standing here."

�It's all right to be afraid. You should be afraid. Go ahead. Feel it.�

"But the jury's watching."

"They can wait a few seconds more. Fear is energy. If you feel your fear, you can also feel its power, and you can change its power to your power."

Suddenly I look up at the waiting jury. I hear myself address them in a clear, quiet voice, "Ladies and gentlemen of the jury." Suddenly I am vaguely aware that something is happening to my fear. I have looked it in the eye. I have stared it down. It retreats like a whimpering cur that is now afraid to face me! The pain of it recedes. I feel a new power well up. And my argument begins.

To argue in the face of our fear brings on the magical "yes," the simple affirmation of our being. Argument springs out of our authority. It escapes from us as our thought and feeling, as our sounds, our music, our rhythms. When we give ourselves permission, the argument bursts out of our lungs, out of our throats, out of words formed and caressed by our lips, out of words born of our hearts. When we give ourselves permission, we rediscover our will to win�may I say it?�we become born-again gladiators.

"I've always been afraid. . . . Even after all these years, when I go into a courtroom I sitll feel fear. People's lives and my career are in my hands. I'm afraid I'm gong to fail. Indeed, now as an old man I am completing the circle of fear. I am afraid as I was when I was a young man trying my first case. I am only better at admitting it. And the question fro me has always been, how do I deal with that fear?" [Spence, Win Your Case, at 51]

Using Metaphors: "It is easier for me to think and teach with metaphors." [11]

Master Metaphors
[Linda Berger, The Compleat Lawyer]

The Power of Metaphors
[Meditation's Place: Blog]

Metaphor in Mediation
[Suzette Haden Elgin]

Metaphors and Mediation
[John Haynes,]

Why Use Metaphors in Conflicts?
[Stephanie West Allen, Brains on Purpose: Blog][Mediation without metaphor?]

Using Disputants' Metaphors in Mediation
[Thomas H. Smith, independent author]

Lemon of a Metaphor
[Paul Mark Sandler, The Art of Advocacy: Blog]

Being the Lawyer You Must Be: "I had to manufacture my own vision of what a lawyer should be." [24]

The Power of Listening: "Perhaps the greatest listeners are not those who listen to other people, but who are expert at listening to themselves." [34]

Spence talks about learning to listen with the third ear, a concept adopted, I assume, from Theodor Reik's Listening with the Third Ear: The Inner Experience of a Psychoanalyst (1948)(Reik, a psychoanalyst, was the author of more than 30 books, and by some accounts Listening with the Third Ear was his most influential book) [Theodor Reik] [Google preview] [W.L. Tonge--Listening with the Third Ear][Listening and Writing with the Third Ear][An update on Reik's psychoanalytic listening: Kyle Arnold, Reik's Theory of Psychoanalytic Listening, 23 Psychoanalytic Psychology 754 (2006)][For an effort to relate the idea of psychoanalytic listening to the work of Dr. Rita Charon, see Roy Schafer, Listening in Psychoanalysis, 13 (3) Narrative 271 (2005)]

"I say listen to yourself. We hear our inner voices constantly, but most of us are not expert in listening to them. We silently talk to ourselves and hear ourselves during nearly every waking moment of the day." [37]

Courage: "Better to be scorned than to bore. Better to be slightly outrageous than to join the walking dead." [40]

Stories and Storytelling: What we do is "based on the story and the storyteller." [5]

"If we are to be successful in presenting our case we must not only discover its story; we must become good storytellers as well. Every trial, every . . . argument for justice is a story." [Spence, Win Your Case, at 86]["I always present my case as a story." Id. at 111]

Lawyer/Storytelling Resources
[James R. Elkins]

Themes: "Every case has a theme--like a title to a song." [95] "The theme is the means by which we focus the justice of our case." [Id.]

[Howard L. Nations, Houston, Texas]

Themes: A Key to Persuading Jurors
[Jury Research Services]

Development of Themes in Trial
[David B. Graeven, Trial Behavior Consulting]

Ideas for Case Themes
[Civil Litigation Blog]

Jury-Validated Trial Themes
[Any Singer, Trial, 1994]

How to Develop Powerful Case Themes
[Winning Trial Advocacy Tips]

Using Themes at Trial: What Jurors Want and Ignore
[Carol L. Gillam, The Gillam Law Firm, Los Angeles California]

A Trial Without a Theme is a Trial Without Purpose
[Firm Library, Warshauer Poe & Thornton, Atlanta]

Trial Themes
[Dan K. Webb & J. David Reich]

Developing a Trial Theme
[Douglass F. Nolan, Nolan Law Firm, Liberty, Missouri]

Common Themes for a Successful Trial
[Marlo Orlin Leach, Powell Goldstein, Atlanta]

Trial Theme Ideas
[Blog, Texas District & Court Attorneys Association]

Trial Themes & Strategies
[Trial Behavior Consulting]

Developing a Theme That Sells
[William S. Bailey, Fury Bailey, Seattle, Washington]

Advocacy: Need For a Theme
[David Kendall, Williams & Connolly, Washington, D.C.]

Developing and Using Themes in Products Liability Cases
[Lawrence R. King & Shawn M. Raiter]

Selecting the Jury

"The voir dire has a profoundly deeper purpose than to excluse those who are immutably biased against us. In subtle ways we want to open up the juror to new ideas, to open him to our position in the trial, and to be open to his." [Spence, Win Your Case, at 113]

Voir Dire Resources