Gerry Spence & the Art of Advocacy

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

 

 

 

Gerry Spence's Art of Advocacy: Founded on a Critique of Legal Education

"Most trial lawyers have been defrauded of their education."

--Gerry Spence, Blog

 

Gerry Spence on Legal Education and Being a Real Human Being [audio/video, 6:38 mins.]

"Although there are many skillful advocates at work in the law, I am convinced that most lawyers don't know how to try a case. They were never taught in law school. They were never taught because their teachers, for the most part, have been those academic drones who've never experience a client clinging to him like a drowning person in deep water whose life depends upon the lawyer's skill to convince a jury." [Gerry Spence, Win Your Case 4 (New York: St. Martin's Press, 2005)]["Populated by professor who are, themselves, unskilled in the trial of cases, law schools teach the law like one who teaches cooking but has never fried a flapjack." Gerry Spence, From Freedom to Slavery: The Rebirth of Tyranny in America 58-59 (New York: St. Martin's Press, 1993)]["We should run most academicians out of the law schools. We should train our lawyers like we train doctors. They must learn their skills by practicing them under the supervision of those who have already acquired them. On their first day in law school they should begin to learn the skills of advocacy. On their first day in law school they should begin to learn that simple caring for their suffering brothers and sisters of the human race is the most important gift any lawyer can give." Id. at 60]

"A trial lawyer is a fighter, one struggling to accomplish justice under the great disability of a legal education. Whether he has graduated from Harvard or the University of Wyoming, it is mostly the person who accounts for the successful trial lawyer." [Gerry Spence, With Justice for None: Destroying an American Myth 43 (New York: TimesBook, 1989)][On Spence's person argument, see "The Power of Discovering the Self" and "The Indomitable Power of Our Uniqueness," in Gerry Spence, Win Your Case 9-18, 19-24 (New York: St. Martin's Press, 2005)]

"What we really experienced in law school was a lobotomy of sorts, one that anesthetizes the law student against his emotions and attempts to reduce law to some sort of science, which, of course, is a bizarre notion . . . ." [Win Your Case, at 77]

Law students "have been taught by their professors that feelings are exhibited only by the intellectually puny; they are not to be trusted. I tell them they must learn to feel again. The ability to feel is the principal distinction between man and machine. Justice itself is a feeling. If one cannot feel, one cannot understand his client's case. If one cannot feel, one cannot understand his client's case. If one cannot feel, one cannot understand the jury–or even the judge, for contrary to the suspicions of many, judges do feel. The lawyer who thinks the words but dos not feel the words will seem disingenuous to jurors who themselves feel, but who, despite his words, are able to sense that the lawyer does not." [Gerry Spence, With Justice for None: Destroying an American Myth 44 (New York: TimesBook, 1989)][On the significance of feeling for the trial lawyer, see generally, "The Magical Power of Feeling," in Gerry Spence, Win Your Case 25-33 (New York: St. Martin's Press, 2005)]

"We have injured our young, and now we wish them to run fast and long. We have frightened them and made nodding sycophants of them, and now we send them to fight with style and courage. We teach the young like we program computers, and then complain they do not perform like human beings." [Gerry Spence, With Justice for None: Destroying an American Myth 44 (New York: TimesBook, 1989)][For a more comprehensive statement of Spence's views of legal education, see "Law Students: Spare Parts for the Legal Machine" and "Law Schools: Factories" in With Justice for None, 42-53, 54-66]

"It doesn't take long in law school for lofty notions to evaporate. The teachers, the method, and the curriculum blaze away at tender minds like the midday sun on dew." [Gerry Spence, With Justice for None: Destroying an American Myth 51 (New York: TimesBook, 1989)]

"In law school, the students learn substantially nothing. For the most part, they are taught by professors who have spent the major portion of their lives injecting formaldehyde into their students' brains and, in the tombs of endless dusty books, burying whatever creativity, whatever life, the students might have escaped with before they came there. In law schools students learn little or nothing about trials." [Gerry Spence, O.J., The Last Word 115-111 (New York: St. Martin's Press, 1997)]

Contrast the law school approach (approaches?) to trial advocacy with the teaching at Spence's Trial Lawyer's College. Spence describes what the Trial Lawyer's College does by way of education this way: "[T]he new trial training emphasizes not only the basic skills of the courtroom, but also the conversion of the lawyer from a law-book automaton to a human being who can feel, who cares, and who understands that justice is the most sought-after of all human experiences . . . ." [Gerry Spence, O.J., The Last Word 250 (New York: St. Martin's Press, 1997)]["At Trial Lawyer's College . . . [w]e teach them the power of being real. We teach them the staggering weapon that is theirs when they tell the truth, even when it seems to hurt their case. We teach humanness and candidness over strategy. Young lawyers learn to sing again and to tell stories, because the voice, used in connection with the storytelling, is the ultimate instrument used in that ultimate art of the trial lawyer." Id.]

"Most trial lawyers have been defrauded of their education." [Gerry Spence's Blog]

Spence describes law schools: "[T]hose dreary places populated with hairy-browed old drones who ceaselessly blew their dry, pedantic winds on us until we withered like pansies in the desert." [Spence, Win Your Case, at 27]

"Lawyers, as well as most other professionals who have been excreted from the universities, have been taught that stylish, intellectual facility is the key to winning." [Win Your Case, at 29]

More Trial Lawyer Critiques of Legal Education

Geoffrey Fieger's Trial Practice Tips [From the Illinois Trial Practice Weblog: "Fieger's advice for trial lawyers? 'If you want to be a successful trial lawyer,' he said, 'for God's sake, quit thinking like a lawyer.' Take the time, in other words, to 'get your brain back to where it was before they did whatever it was they did to it in law school.'"]

Spence's Critique of Legal Education and the Array of Law School Critiques

The critiques of legal education are both commonplace and widespread. They range from an evaluation of current practices (an abhorrence for the law school version of the Socratic method, single end of semester exams) to the curricular (the failure to teach counseling, ethics, jurisprudence, skills; the over reliance upon judicial opinions; the focus on practice and the failure to more fully integrate theory), to the ideological (the focus on law and the lack of focus on justice). There are humanistic critiques, radical critiques, political/sociological critiques, feminist critiques, and psychological critiques of legal education. We might think about each school of contemporary jurisprudence– critical legal studies, feminist jurisprudence, narrative jurisprudence (legal storytelling/law and literature), law and economics, critical race theory)–as each, from its own perspective, offering a critique of legal education. (No "school" of jurisprudence can completely ignore legal education.)

We could, with some doing, relate Gerry Spence's critique of legal education to the many/varied critiques that have rolled ashore throughout the modern history of legal education.

Note: "Dissatisfaction permeates the public and professional discourse about lawyers and legal education. Diverse communities within and outside the profession are engaged in multiple conversations critiquing legal education and the profession itself. These conversations, though linked in subject matter and orientation, often proceed on separate tracks." [Susan P. Sturm, From Gladiators to Problem-solvers: Connecting Conversations about Women, the Academy, and the Legal Profession, 4 Duke J. Gender L. & Pol'y 119 (1997)]

Recent Soundings

Build a Solo Practice [blog]

"Although law schools do relatively good jobs teaching their students some things, it is no surprise to discover that they are not teaching their students to communicate effectively with clients. Aside from clinical programs, where the effectiveness of communication with clients ranges from barely acceptable to outstanding, law schools generally do not give their students much, if any, instruction in how to "translate" legal-ese into language that the client can understand." [Prof. James Edward Maule, Mauled Again, blog entry]

Law School Deans and the Carnegie Report
[Vanessa Merton, Immigration Justice Clinic, Pace University School of Law][The Carnegie Report was published under the title, Educating Lawyers: Preparation for the Profession of Law
(San Francisco: Jossey-Bass, 2007)(by William L. Sullivan, et.al)]

See generally: Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System (New York: New York University Press, 2004); Scott Turow, One L (Grand Central Publishing, 1997); Alan Watson, The Shame of Legal Education (Vandeplas Publishing, 2007)


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