Sunday, July 25, 2010

A Few Questions For Gerry Spence

I have a question or two remaining for Gerry Spence. Since he no longer publishes my comments on his blog, I will post them here. (He recently returned to blogging after a hiatus of several months. I shot a note to welcome him back, but the note sits, "awaiting moderation," in Internet oblivion while scores of others have been posted.) Several of his readers will no doubt find this piece and send it along. I am something of a bete noire for messing with the master in the minds of those with a greater need to believe than I possess.

Question Number One: How many criminal cases have you tried to a verdict as defense counsel?

I ask this question because, frankly, I am struck with shame-faced awe over your claim never to have lost a criminal case. I have lost many. Each loss sears me. I cannot accept the sort of glib mentality that asserts that loss is part of what criminal defense lawyers do, so get over it and move on. That is callow chatter.

Mark Bennett's recent piece on picking winners inspires this question. Implicit in Bennett's piece is the suggestion that Spence is a masterful marketer. I concede that you can only market what you have to sell. Lawyers are free to represent a person coming to them for any of a number of reasons, including how well the client's needs fit within a lawyer's "business plan." But still, if you are going to announce that you have never lost a criminal case, it seems fair to respond to a follow up question: How many criminal cases have you tried to a verdict as defense counsel?

It won't do to say you cannot recall, although, frankly, I understand that answer. I can no longer recall how many cases I have tried. Over the years, they all tend to run together into one long Kafkaesque montage. So in fairness, Gerry, is it more than 10? Fewer than 25? A good faith estimate will do.

Do I expect an answer? Yes. Spence sends private notes from time to time, so I know my words find their way to him. I don't necessarily expect him to answer here, however. The mountain must go to Mohammed in his universe. He neither comments on the blogs of others or acknowledges publicly what others have written. To do so would be a form of power-sharing, one of the deadly sins in his universe. So answer anyway you can, Gerry. It is a fair question.

Question Number Two: Since you have never lost a criminal trial as defense counsel does it follow that you can win any case?

Again, Bennett's essay crystallized things for me. Telling the world you cannot lose is perhaps the world's best marketing device. The world will beat a path to the door of the lawyer who cannot lose a case. What price freedom?

I understand the view of those who say we are expected to lose. But, frankly, I never really expect to lose once trial begins. A guilty verdict always surprises me, deflating my ego and undermining my confidence. If you cannot, Gerry, win any case that comes your way, then how do you pick and choose the cases you will take? 

Spence was a good and faithful mentor to me years ago, and he deserves better than the treatment I have given him in public comments. But as his Sun prepares to set, I, too, must reckon with the role I permitted him to play in my life. I went to Wyoming years ago to learn from him, and I learned plenty. But what I learned tasted a little sour when I saw the boast on his web page that he is "America's Finest Trial Lawyer." Modesty must count for something, even among warriors. But suppose he has no reason for modesty? If he's tried scores of cases and never lost, I must respect that. If he can win any case at all, I must concede his skill.

I still don't have answers to these questions. I am hoping he will provide them.