Gerry Spence & the Art of Advocacy

Professor James R. Elkins College of Law | West Virginia University




Gerry Spence: The Man, the Lawyer, His Work

Gerry Spence
[video :: 28:31 mins.] [alternative posting]

Gerry Spence: Art, Life, and Law
[video :: 26:48 mins.] Pt2 [26:48 mins.]

Gerry Spence: An American Original [vvideo :: 28:28 mins.]

Spence on Trying Your First Case
[5:28 mins.] Pt2 [2:22 mins.]

Gerry Spence on trying the Imelda Marcos case ["I don't claim to know what Gerry Spence was doing in the [Imelda] Marcos case, but I know that whatever he was doing worked. And in the end, that's what matters."] [Mark Bennett, Defending People: The Art and Science of Criminal Defense Trial Lawyering blog]

Geoffrey Fieger & Gerry Spence videos: [Pt1] [Pt2] [Pt3] [Pt4] [Pt5]

Gerry Spence Reading From Freedom to Slavery [Pt1] [Pt2] [Pt3] [Pt4]

The Prosecutor in the "Smoking Gun" Case Presents His Defense
[Josh Marquis, National Law Journal]

Randy Weaver: The Siege at Ruby Ridge
[Crime Library][Gerry Spence defended Randy Weaver in the longest Federal trial in Idaho history] [Ambush at Ruby Ridge]

"A Triumph of One Man's Personality: The American Courtroom's Buffalo Bill"
[October 15, 1993, New York Times]

A Gerry Spence Style Defense
[James Jenkins, a Florida criminal defense lawyer, defending a lawyer in Federal court]

On the State of the Law and Our Judges

"The function of the law is not to provide justice or to preserve freedom. The function of the law is to keep those who hold power, in power. Judges, as Francis Bacon remarked, are 'the lions under the throne.' Our judges, with glaring exceptions known to all, loyally serve the New King, the corporate core, whose money and influence are responsible for their office. They are not bad people. Indeed, they are among our most upright citizens, although few have written a poem, painted a picture, or sung a happy song.

As righteous and honest men and women, although mostly dour and humorless, they faithfully serve the law and, accordingly, the King. The restrict the power of the people [and] usurp the power of the people's juries . . . ." [Gerry Spence, From Freedom to Slavery: The Rebirth of Tyranny in America 52 (New York: St. Martin's Press, 1993)]["A problem endemic in a system that imperfectly protects the interests of the New King is that some judges are actually enlightened, even idealistic. Some are largely guided by human conscience." Id. at 53.]["One is hard-pressed to find a judge these days who is not a former prosecutor of the people or a former corporate attorney who, as a judge, takes his experience, his loyalties, his training, and his prejudices with him when he is elevated to that high place. Show me a man who, as a lawyer, made his fortune in service to corporate clients and I will show you a man who, as a judge, exhibits a mind and soul still bent i the same direction." Id. at 54]["Judges are hand-picked by those in power. And those in power pick their own kind." Gerry Spence, O.J., The Last Word 241 (New York: St. Martin's Press, 1997)]["And who are the judges who sit on these cases, anyway? How many of them have ever labored for a living? How many have known poverty? Judges do not love. Judges judge. Judges do not harbor compassion, they harbor judgments. Their souls are not the tender souls of people. Their souls are like the callused feet of men who have walked many a mile over the gravel of human misery. Their innocence has been used up. Their psyches have lain in the rot too long. There are exceptions, and I respect the exceptions greatly." Id.]

On Lawyers

"In a legalist system, in which, indeed, we struggle, lawyers are the only profession dedicated to preserving our freedom, although they are not very good at it. Lawyers have been portrayed as slithering rats in the alley–squealing, shrieking, screaming, snarling, ripping, and tearing at everyone, everything, and each other over ever scrap of garbage. But there is a strategy of the nonbreathing regime. It is to cause us to hate and despise those who might be able to save us. If a nation distrusts its lawyers, who is to stop the New King? If a nation spurs its warriors, who will fight the wars? Who, pray tell, will protect our rights?" [Gerry Spence, From Freedom to Slavery: The Rebirth of Tyranny in America 58 (New York: St. Martin's Press, 1993)]

"When citizens must face Goliath, who confronts them as corporate employers who have stolen their rights, when citizens must face gargantuan insurance companies who refuse to pay their just claims or, in the hell of all hells, when they must stand up to their monstrous power of government that threatens their very lives, where do citizens find their David?" [Id. at 59-60]

"The warriors for the people are trial lawyers–those villains who [we are told] are not to be trusted . . . And we have learned to hate them [trial lawyers] because every day through the King's media we are told outrageous stories of how trial lawyers have aborted the fetus of justice, and we hear malicious jokes so that we have come to believe that the cause of every ill that befalls us lies at their feet." [Gerry Spence, Bloodthirsty Bitches and Pious Pimps of Power: The Rise and Risk of the New Conservative Hate Culture 151-152 (New York: St. Martin's Press, 2006)]["Again the method is the power of propaganda. We destroy the lawyer in the minds of the people–and it becomes too clear that if the corporate King can destroy the people's warriors in the eyes of the people, all power will be vested in the King. The contest is over." Id. at 154]["The method of destroying trial lawyers has been so astonishingly simple. Pick a few cases with apparent ridiculous results that portray the greed and stealth of a few trail lawyers. Show the supposed stupidity of jurors. Then tell and retell those cases until the public comes to believe that what they're hearing represents the character of all trial lawyers, the intelligence of all jurors, and the results in all courts." Id.]["The campaign against trial lawyers, launched years ago by the corporate King through the King's media, has finally turned Americans solidly against their own interests. What I mean is the people have been taught that trial lawyers–the only profession that fights for people's legal rights–are evil, greedy bastards; and that juries, who, by the way, are also just people, are ignorant fools who are taken in by trial lawyers like a carny takes a mark." Id. at 160]["But the voice of the corporate King has sucked the truth from our brains and replaced the vacancy with hatred." Id. at 178-179]

On Justice

Gerry Spence on the American "justice system"
[video :: 1:18 mins.]

"[I]n the end, it makes no difference what the corporate King spends to defeat the people. The King will spend whatever it takes. The King is afraid of the people. The people must be defeated, one case at a time, or whole hordes of them will be pounding at the doors for justice." [Gerry Spence, Bloodthirsty Bitches and Pious Pimps of Power: The Rise and Risk of the New Conservative Hate Culture 156 (New York: St. Martin's Press, 2006)]

"Justice is the first necessity of life. The justice system must respond, or people will take justice into their own hands. The injured, the damned, the slandered, the lost, the forgotten, and the voiceless all demand justice and, failing its delivery, the system as we know it will finally collapse." [Id. at 186]

On Work

"Work to free the self is virtue. Work to gain endless power or endless wealth is not. Such work is but currying the deep misery of a frightened soul. Such work is but medicating a profound addiction to wealth that has grown out of bottomless insecurity. I say one must free one's self of the religion of work." [Gerry Spence, Seven Simple Steps to Personal Freedom: A Handbook 65-66 (New York: St. Martin's Press, 2001)]

On Winning: Video [1 min.]

On Play

"If there be God, certainly God played when he made the universe. You can see the pleasure. God must have been fiddling around in the firmament, creating order and disorder, amusing himself in his infinite creations, lolling about in eternity. If a man, then, is created in the image of God, ought he not play as well?" [Gerry Spence, Seven Simple Steps to Personal Freedom: A Handbook 68 (New York: St. Martin's Press, 2001)]


"People who do not experience aloneness have breathed only the stale air of others." [Gerry Spence, Seven Simple Steps to Personal Freedom: A Handbook 72 (New York: St. Martin's Press, 2001)]["Out of aloneness rises the power of the self." Id. at 73. "Out of aloneness is built the shelter of the self." Id. ]

On Becoming a Skilled Trial Lawyer

"You become a skilled trial lawyer laboring year after year for the poor and the helpless, often without fee. You fight in dingy courtrooms before venomous judges and against surly prosecutors, the kind who stand in the courtroom on run-over heels and who would just as soon ship your ass in the alley as in front of a jury. And you try your cases in virtual anonymity . . . . and with no help, no funds, no expert witnesses, no glamour, and you try those kinds of cases year after year. Then one day you find you have mastered some of the fundamental skills required of a successful trial lawyer . . . . [Gerry Spence, O.J., The Last Word 9 (New York: St. Martin's Press, 1997)]

On Drinking

"By then [at the time of the O.J. Simpson trial] I didn't drink, and hadn't for a long time. I'd already drunk enough that if I never took another, it wouldn't affect my lifetime average much. Strange thing: You can sit all night and never run out of the names of great trial lawyers who soak their brains in the grog–something to do with the stress of the trade. A trail lawyer's self-medication against the pain." [Gerry Spence, O.J., The Last Word 12 (New York: St. Martin's Press, 1997)]

On Being Self-Righteous

"I am," says Spence, self-righteous, "a lot of the time. You get like that to make up for all the sins you've committed along the way." [Gerry Spence, O.J., The Last Word 13 (New York: St. Martin's Press, 1997)]

On the Buckskin Jacket

"We all have to market who we are or want people to thin we are. The jacket, the black Levis, the boots, and the black turtleneck were my uniform. I found out that if I didn't wear it, people felt let down. 'Where's your buckskin jacket, Gerry?' they invariably asked. And you could see the disappointment. 'I met Gerry Spence today, but he didn't have his jacket on.' What would you think if you met the pope and he was wearing a baby-blue sport coat?" [Gerry Spence, O.J., The Last Word 49 (New York: St. Martin's Press, 1997)]

On the Courtroom Drama|the Trial Lawyer as Director

"[T]he directors of a courtroom drama are the lawyers. They also become the principal characters who, as Shakespeare put it, strut and fret their hour upon the stage. Each side presents its own story, it own script. The play is to be based on fact. It must be accurate and honest. But facts are subject to interpretation. suppose the protagonist runs off to the village three hours before the murder. The prosecution says she ran into town to buy ammunition. The defense says she ran into town to buy groceries. She did buy ammunition. She did buy groceries. The prosecution says she bough the ammunition that was used in the gun that killed the deceased. The defense says she bough the groceries for the cookout she hosted that night and she bough the ammunition to kill the gophers that were desecrating her backyard. She did kill gophers. The neighbors saw her in the yard shooting at gophers and called the police to report that she was discharging a firearm within the city limits. The evidence is present, on and on, and finally the arguments are made and the jury is left to sort out the truth.

The lawyers, being the directors of their respective scripts, must understand drama. But lawyers are not trained as dramatists . . . ." [Gerry Spence, O.J., The Last Word 112-113 (New York: St. Martin's Press, 1997)]

On the Language We Use

"Good trial lawyers must be able to speak the ordinary language of people. Most can't." [Gerry Spence, O.J., The Last Word 114 (New York: St. Martin's Press, 1997)]

On Credibility

"You can lose nearly every battle in a trial and still win the war if you have kept your credibility. I'm not talking about acting. I'm talking about being genuine, being honest, presenting the whole case, the hurtful evidence along with the exculpatory. There is and never has been a perfect case, and you ought not try to make a perfect one. When the jury sees that you are telling the truth, it will understand when an occasional witness goes haywire. You, after all, have not gone haywire. If you are surprised in the trial, well, that happens to the best of us. The jury knows you can't force everything. If you have been honest with the jury and your case isn't as strong as it should be, often the jury will excuse you, make room for you, even fight for you. If your arguments are reasonable and fair, the jury will believe you, because you are entitled to be believed. But if you lie to the jury, fail to keep your word with the jury, well, jurors are hard-pressed to forgive a lawyer they have trusted who has betrayed them, even once." [Gerry Spence, O.J., The Last Word 187-188 (New York: St. Martin's Press, 1997)]

Gerry Spence and His Trial Lawyers College

Gerry Spence and the Trial Lawyers College [video :: 28:29 mins.]

Learning From The Trial Masters: Gerry Spence's Trial Lawyers College
[Jonathan L. Katz]

Bibliography: Books

Michael Tigar, Persuasion: The Litigator's Art (American Bar Association, 1999)

Steven Lubet, Modern Trial Advocacy: Analysis and Practice ( South Bend, Ind.: National Institute for Trial Advocacy, 3rd ed., 2004)

Thomas A. Mauet, Trials: Strategy, Skills and New Powers of Persuasion (Aspen Publishers, 2005)

______________, Trial Techniques (Aspen Publishers, 7th ed., 2007)

James W. McElhaney, McElhaney's Trial Notebook (Chicago: American Bar Association, 4th ed., 2005)

Herbert J. Stern & Stephen A. Saltzburg, Trying Cases to Win: Anatomy of a Trial (Aspen 1999)

F. Lee Bailey, To Be A Trial Lawyer ( New York: John Wiley & Sons, 2nd ed., 1994)

D. Shane Read, Winning at Trial (Notre Dame, Indiana: National Institute for Trial Advocacy, 2007)

David Berg, The Trial Lawyer: What It Takes to Win (Chicago: American Bar Association, 2006)

Emily Couric, The Trial Lawyers: The Nation's Top Litigators Tell How They Win (St. Martin's Griffin, 1990)

David Ball, Theater Tips and Strategies for Jury Trials (National Institute for Trial Advocacy, 2003)

Richard C. Waites, Courtroom Psychology and Trial Advocacy (ALM Publishing, 2002)

Reid Hastie, Inside the Juror: The Psychology of Juror Decision Making (Cambridge University Press, 1994)

G. Christopher Ritter, Creating Winning Trial Strategies and Graphics (Chicago: American Bar Association, 2005)

Paul Lisnek, The Hidden Jury: And Other Secret Tactics Lawyers Use to Win (Sourcebooks, Inc., 2003)

Michael E. Tigar, Persuasion: The Litigator's Art (Chicago: American Bar Association, 1999)

Bibliography: Articles

Victor Gold, Covert Advocacy: Reflections on the Use of Psychological Persuasion in the Courtroom, 65 N.C. L. Rev. 481 (1987)

Latour Lafferty, Leadership in Trial Advocacy: Credibility Is a Cornestone of Effective Trial Advocacy, 28 Am. J. Trial Advoc. 517 (2000)

Gerald Lebovits, Trial Advocacy: How to Persuade Judge and Jury, 72 Queens Bar Bulletin 10 (Jan., 2009) [on-line text]

Antonin I. Pribetic, The "Trial Warrior": Applying Sun Tzu's The Art of War to Trial Advocacy, 45 (4) Alberta L. Rev. 1 (2008) [on-line text]

Return to: Homepage

Contact Professor Elkins by Email