One day, I hope to have the honor and privilege to attend Gerry Spence’s Trial Lawyer’s College. For now, I guess, his books will have to do.
Win Your Case: How to Present, Persuade, and Prevail – Every Place, Every Time is a different read compared to most other trial advocacy books I’ve read. It starts out with sections like “The Power of Discovering the Self” and “The Magical Power of Feeling.” He then transitions into chapters devoted to voir dire, opening statements, among other trial skills. Below are a few areas that stood out to me.
-Discovering the story by questioning witnesses in the present tense (pg. 87).
-The six simple steps to a successful voir dire (pg. 114).
We’ll show you ours if you’ll show us yours.
-What he tells the jury in opening about the defendant taking the stand (pg. 144).
In the opening I will tell the jury that there’s a reason why the defendant is not required to take the stand. It’s his constitutional right—our founders understanding that we can never prove our innocence. We can only give the prosecutor the opportunity to prove an innocent man guilty. I might say, “You expect Billy Ray to take the stand and tell you what happened that night. You want to know. Yet if he takes the stand you’ll wonder if he isn’t just lying to save his hide. On the other hand, if Billy Ray does not take the stand and testify, you’ll wonder why an innocent man didn’t want to tell his story—and innocent man would. So you can see, either way we go we’re in trouble. I cannot tell you at this moment what our decision will be. If Billy Ray does not testify here, the court will instruct you that you are not to consider his failure to testify as evidence of his guilt. That is as much protection as we can get as we face this dilemma.”
-Using the present tense with witnesses on direct examination (pg. 151).
-Preparing the witness for cross-examination (pg. 161).
If Attorney Jones can make you angry he will have won. Remember the three Cs of a good witness: It’s for you to remain courteous, calm, and considerate. The more hostile he gets, the more anger you see from him, the more you know you are winning, and the more courteous, calm, and considerate you become. Anger in the courtroom is the blood of the battle. I want it to be theirs, not ours.
-Preparing the final argument (pg. 226).
I begin to prepare the final argument the day I get the case. Many a time I’ve found myself sitting up in bed at night before I turn off the lights. I am making notes of ideas, of phrases that come to me. I write out whole paragraphs I think will someday be said to the jury.
-Seven steps for winning the final argument (pg. 231).
Before I leave you I want to share with you a story I tell in nearly every case. It’s about transferring the responsibility of the case from us, on behalf of little Polly and her parents, to you, the jury.
It’s a story of a wise old man and a smart-aleck boy who wanted to show up the wise old man as a fool.
One day this boy caught a small bird in the forest. The boy had a plan. He brought the bird, cupped between his hands, to the old man. His plan was to say, “Old man, what do I have in my hands?” to which the old man would answer, “You have a bird, my son.” Then the boy would say, “Old man, is the bird alive or is it dead?” If the old man said the bird was dead, the boy would open his hands and the bird would fly freely back to the forest. But if the old man said the bird was alive, then the boy would crush the little bird, and crush it, and crush it until it was dead.
So the smart-aleck boy sauntered up to the old man and said, “Old man, what do I have in my hands?” And the old man said, “You have a bird, my son.” Then the boy said with a malevolent grin, “Old man, is the bird alive or is it dead?”
And the old man, with sad eyes, said, “The bird is in your hands, my son.”
And so, ladies and gentlemen of the jury, “the case of little Polly is in yours.”