Winning Despite Yourself


In this post about Gerry Spence’s defense of Geoffrey Fieger (well, it’s not really about that; it’s about the egos of Gerry Spence [who boasts he’s never lost a criminal case] and Geoffrey Fieger . . . or maybe all criticism is autobiographical and it’s not really about that either . . .), my New York brother Scott Greenfield wrote:

Bear in mind that Gerry Spence was the lawyer who represented Imelda Marcos, the steward of all footwear, in the Southern District of New York. After the jury returned a verdict of not guilty, one was asked whether it was because of Gery Spence. The response was it was despite Gerry Spence. Ouch.

Call me crazy, but I don’t feel Scott’s pain. I’ve had prosecutors opine that juries acquitted my clients despite me; I would love to hear that from all of my juries.

Obviously, I would much rather have a client acquitted despite me than have a client convicted despite me. In the list of all possible things a jury could say after reaching a verdict in a criminal case, one of the least painful would be “we acquitted him despite his lawyer.” The only contender for the title of “least painful” is “we acquitted him because of his lawyer”, and I’m not sure I wouldn’t prefer to hear “despite” instead of “because of” as justification for an acquittal. Here’s why: jurors lie about their verdicts. If you want to be lied to, talk to a jury about its verdict.

Even if they were inclined to be entirely truthful after a verdict, jurors would be a lousy source of information on the reason for their verdict. Because they are the object of the lawyering, jurors are unable to accurately assess the effect of good lawyering on them. Jurors make their decisions mostly based on their guts; then they try to rationalize and justify what they’ve decided. Nobody wants to be tricked into making a decision by some slick lawyer; generally jurors would rather believe that they did what they did despite the lawyering, because it was just the right thing to do. Jurors would like to believe that the lawyers just got in the way of their discovery of the truth (clients who owe money like to believe the same thing).

Generally, the better the lawyering, the less obvious. Perry Mason moments are rare; great lawyering is more often than not transparent, with the lawyer stepping backstage and letting the story tell itself. Ideally, the trial lawyer will give the jury what it wants: the illusion that he is not influencing them.

Beyond transparency, there is lawyering that is so fine that it is not only transparent, but transcendent — lawyering so subtle that it appears to the uninitiated (including the jury) that the lawyer is screwing things up. I don’t claim to know what Gerry Spence was doing in the Marcos case, but I know that whatever he was doing worked. And in the end, that’s what matters.


0 responses to “Winning Despite Yourself”

  1. I don’t claim to know what Gerry Spence was doing in the Marcos case

    According to press reports at the time, he was doing a lot of aimless rambling.

    –Turk

  2. Turk noted:

    According to press reports at the time, he was doing a lot of aimless rambling.

    Which is often what a good defense is and why I don’t read reporters about what is happening at trial. The goal of a good defense is not to create an alternate truth that the jury accepts — thats for civil courts. The goal is to create doubt & sometimes — and in my area of world, usually — the “wall of fog” defense is the best defense; “if you can’t win them with your brilliance, baffle them with your bullshit.”

    The goal is to win and we win whenever the jury isn’t convinced beyond a reasonable doubt. Confusion by its very definition is doubt.

  3. The primary point, that it’s better to be perceived as doing a terrible job and winning than to be perceived as doing a great job and losing, is certainly true.

    But as Freud said, sometimes a cigar is just a cigar.

  4. My favorite moment as a trial lawyer was not the not guilty verdict but the case where the judge told me how badly I’d done and how the prosecutors had kicked my ass, right in front of my clients and the prosecutors. I knew the judge had avoided jury trials as a prosecutor and suspected he viewed the trial through that lens. The best part was when the jury came back in 15 minutes with not guilty.

    I take all “press accounts” and almost all judge’s criticism with a gallon of salt: I’m not trying to impress them, only the jury. Most other people have an obvious agenda, especially the press in NYC viewing a guy in a cowboy hat who just beat a prosecutor named Giuliani in a case in which the pros had guaranteed a win.

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