ARTICLE: LEARNING FROM THE TRIAL LAWYERS COLLEGE

 Learning From The Trial Masters: Five Weeks At Gerry Spence's Trial Lawyers College

By Jonathan L. Katz 

By the time I graduated from law school and finished the bar exam, the last thing on my mind was returning to school. Soon enough, though, I recognized that being a winning trial lawyer involves a lifetime of learning -- from experience, from observing and learning from others, and from returning to the classroom from time to time. My most beneficial classroom experience of all time was the five-week 1995 Trial Lawyer's College held at Gerry Spence's Thunderhead Ranch in western Wyoming. The TLC is a place where some of the nation's top trial masters teach fifty experienced trial lawyers the tools they need to become significantly better advocates and to constantly improve throughout their careers.

The Trial Lawyer's College's roadmap in many ways is found in Gerry Spence's How To Argue And Win Every Time (St. Martin's Press, 1995). That book -- and the College -- presents simple yet profound lessons for being a better person and a winning advocate by primarily tapping into our own strengths, by empowering and persuading others to come to our side, by being real, and by arguing through storytelling. How To Argue And Win Every Time is just a starting point for the College. The College teaches how to implement many of the lessons from this book, and teaches trial skills that are best learned from practicing with the trial masters.

Gerry Spence is a trial lawyer, author, and television personality. He is a masterful persuader, but did not become that way overnight. In his latest autobiography, The Making Of a Country Lawyer (St. Martin's Press, 1996), Gerry recounts his first trial, where he continued to stumble when his opponent repeatedly got his objections granted. Gerry recounts in How To Argue And Win Every Time that he used to be too rough in the courtroom and on his opponents, to the point that a juror one day asked him, after losing a case, why he made the jury dislike him so much. Through dedication and a passion to win, Gerry eventually transcended such obstacles and became a masterful persuader in the courtroom.

Nearly thirty years ago, Gerry decided that he was not satisfied enough with being a masterful persuader. He wanted to feel that he was advocating for the right side. The turning point came after Gerry won an automobile accident trial on behalf of an insurance company whose insured -- a drunk woman -- had injured a man in a car accident. As Gerry waited in line at the grocery store with the ingredients for his celebratory meal, he found himself behind the man who was injured by Gerry's drunk client. Gerry told the man he was sorry about the outcome of the case. The man answered that "You don't need to be sorry, Mr. Spence." "You were just doing your job, Mr. Spence." After that encounter, Gerry soon resolved that he would no longer represent corporations, which he calls the "non-breathers". He would only represent people. As time passed, Gerry showed that a lawyer can succeed financially even when not representing corporations.

In the same spirit, the Trial Lawyers' College only admits lawyers who primarily represent people. Moreover, all but one of the College's lawyer teachers -- the faculty also includes acting teachers, psychologists, and a storyteller -- primarily represent individuals. This joining together of people's lawyers for five weeks helped create a particularly close bond among everyone at the College. The advertisement for the College emphasizes that the College is meant to make winning trial lawyers out of those who represent ordinary people. In that spirit, the accommodations are simple, and everyone helps with the chores. The College does not accommodate big egos, either.

The Trial Lawyers' College does not offer any instant answers for becoming a better trial lawyer; the solution is not as easy as that. The College assumes that its students know enough about trying a case so that trial skills need not be the College's sole focus. In fact, the first few days of the college start with personal development, in large part through psychodrama, which can be a powerful way to understand and work through conflicts and trauma, and to persuade through putting one's self -- and the client -- in the role of other people, and to actually get under their hide. Psychodrama can only work when the participants and observers shed their protective armor and reveal who they truly are. Being as revealing as that is scary enough as is, let alone when it is done with people who were complete strangers the day before. Most of the people at the College did shed their armor, with profound results, not least of which was a strong and trusting bond that is often unusual even among people who have known one another for years. This bond set the stage for everyone to be more honest and accepting of criticism during trial practice sessions, which in turn tremendously enhanced the learning experience.

Gerry explains the need for personal development with an analogy to a plug horse, in that it makes no sense putting a one thousand dollar saddle on a plug horse if all that is left after removing the saddle is the same plug horse. In other words, one can only become a better trial lawyer by becoming a better person. To become a better person, one must be a real person. Being real is more a matter of trusting one's feelings and instincts rather than struggling with the question of "who am I" or "who do I want to be?" Law school does not tend to focus on the importance of being real, and often discourages people from listening to their feelings. However, at base level, people are most often driven by their feelings and by the pain that is often at the root of those feelings. Therefore, people can be best persuaded by arguing with their feelings in mind rather than relying on cold logic.

After the initial focus on personal development, the College added a focus on powerful trial technique. The most important trial technique is to transform one's case into a story, because people are accustomed to storytelling in ordinary conversation, and because arguments are ordinarily made more sensible through storytelling. This storytelling approach is not limited to the opening statement and closing -- in voir dire, opening, direct and cross examination, and closing. In other words, winning advocacy requires constant repetition of the advocate's story. In that regard, cross examination becomes less an attempt to discredit or destroy the witness and is more an effort to tell the advocate's story, to the point that the cross examiner may have little concern about the witness's responses.

Through storytelling, the advocate de-emphasizes attacking the opponent's case, and instead emphasizes why the advocate's story makes sense and why a verdict for the advocate's side will be the right thing to do. In the end, the jury ordinarily wants to feel it did the right thing. The jury wants to solve problems, and will not necessarily obey a judge's jury instructions if those instructions appear to interfere with doing the right thing. For that reason, a criminal defense attorney cannot afford to merely claim that the prosecution has failed to prove the case beyond a reasonable doubt. The defendant should show the jury that it makes sense to acquit the defendant or to only find guilt on lesser charges. Nor should an injured plaintiff merely try to show that the defendant was wrong and that the plaintiff was injured. The plaintiff should show that an injustice was done, and that justice can only be done through a fair money verdict.

The College accepts forty-eight applicants each year. Applications are available through Gerry Spence, c/o Trial Lawyer's College, Spence, Moriarty & Schuster, P.O. Box 548, Jackson, WY 83001.

Adapted from Jon Katz's article appearing in Vox Populi (1997), the newsletter of the Philippine American Bar Association. 

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