Gerry Spence on "Persuading Yourself You Can Win" ABA Litigation

“Persuasion” the theme of the latest edition of  Litigation, Volume 36, Number 2, Winter 20  is a must read for both new and experienced trial lawyers (available online to ABA Section of Litigation members here). I was particularly moved by Gerry Spence’s eloquent piece entitled: “Persuading Yourself  You Can Win” and his exhortation to young and old lawyers alike to find their own unique self:

“I tell young lawyers, and old, that they can win—against anyone—if they can find their own unique self. The lawyer who can be frightened but who can be real and honest before the jury, the lawyer with the unimposing stature and the frail voice—he or she can win against the most touted, handsome, blue-pin-striped, fancy-fannied lawyers in the business. You ask, how can that be?”

A trial is always a race for credibility. If the lawyer is credible, fully credible, one who stands before the court or jury as his or her own true self, that lawyer will win. The jurors recognize that that lawyer is real, that that lawyer can be trusted. And the trusted lawyer will always win.”

 Spence, a brilliant trial lawyer and strategist, evokes the teachings of Sun Tzu’s The Art of War, when he writes:

“I hear young lawyers whimpering, “I cannot win against him—he’s tried a thousand cases and I’m trying my first.” But he who has tried a thousand cases has always tried them in the same way. Therefore, he has tried only one case, and you will win because you are more real, down to your shivering heart, your panting lungs, down to your cramped belly, yes, down to your honest, caring soul.

It takes courage to meet one’s self because we have been taught that this person is so horridly insignificant, so unworthy, so useless, weak, and stupid—this no-talent lawyer. But fear is all right. Quite all right. We cannot be afraid unless we care—both about ourselves and our clients. Fear is good medicine. Without it, we cannot be courageous. Without it, we do not care. And we cannot ask a jury to care for our client if we do not care.”


Compare the insights in Sun Tzu’s The Art of War, Chapter 3, Attack by Strategem

 謀攻:  故曰:知彼知己,百戰不殆;不知彼而知己,一勝一負;不知彼,不知己,每戰必敗。
Attack by Stratagem: Hence the saying: If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.

(Reference: http://chinese.dsturgeon.net Chinese Text Project, Donald Sturgeon translation)

What then is the secret of the Trial Warrior? In Spence’s own words:

“All of this is very simple. Yes? You need not persuade yourself that you can win. No. Just march into court, be more real than your opponent, be more honest, be more caring, prepare more, and fight harder—and you will prevail. That is the secret.”

Millennials/GenY lawyers immersed in the Web 2.0 knowledge revolution should tune out the din and the clamour of 24/7 real-time lawyer marketing, social media gurus, SEO ranking competition and the “get rich quick” schemes and find their own unique self.

Simple, perhaps not, but true nevertheless.

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