Arguing with Gerry Spence

Even on its own terms, Spence’s book doesn’t live up to its promise. The last chapter (“chapter” 16 is more an epilogue than a chapter. Chapter 15 is “Arguing in the Workplace) is mostly an entertaining diatribe against corporations. Instead of pulling the magical rabbit out of the rabid hat (successfully arguing your way up through an evil corporation or diabolical government bureaucracy), he suggests a paradigm shift that kind-of/sort-of results in victory. The ultimate goal of the worker is security, he says, and the more security you seek or seem to attain, the less secure you really are. Rather, “The self is the source of all security.” Rely on yourself and don’t seek “job security” and you’ll get what you want: “maximum security.” You get what you want; you win your argument.

In chapter 2, Spence defines winning: getting what you want. So far, so good. In this “review,” I’ll spend a few minutes talking about some things I got out of How to Argue, and then I’ll go on to argue with some things that troubled me along the way.

First, there’s the idea of giving yourself permission to win or lose. Don’t try to do something. Do it. It’s like Sam on Mount Doom. If he tried to carry Frodo to the top of the mountain, he’d have failed. He just up and did it. Triers try, and fail. Doers do. Doers win. Gerry describes how, as a young attorney, he suffered frustrating loss after frustrating loss. Is being a ridiculously successful attorney really as simple as deciding you’re going to win and then, voila, winning? No, I guess not, but one’s attitude as he approaches a task plays a huge role in success or failure.

Then, there’s the bit about one’s feelings. This is a huge point for Spence. He talks a lot about how our society is all about stifling the natural feelings of children until they’re turned into successfully subjugated, straight-jacketed, normal, dead-pan-faced societal peons. If you want to win an argument (and this goes particularly for attorneys who are arguing constantly for the rights and desires of others, not just for themselves personally), you’ve got to be able to feel, first for yourself, and then for your client. And then, you must convey those feelings. Spence describes insufferably boring attorneys droning away in the courtroom. How do you win an argument if you’re slit-your-wrists boring? (A phrase I borrow from Thaddeus Stanley).

Spence also talks a lot about fear. He talks about his own fear in confronting an attorney or judge or jury; about the fear that most have when facing an audience of any sort. To deliver the winning argument, you have to face your fear head on, and give your best argument despite it. You have to be honest about it. Maybe you even need to tell your audience, “Yeah, I’m afraid. I’m afraid you’re not going to like what I have to say. I’m afraid you’re going to think I’m stupid, or my speech stilted or confusing.”

Spence talks a lot about being honest. Don’t try to pull the wool over your audience’s eyes. You be the one that brings out the weaknesses in your case. Your body language, your eyes, your tone of voice–all will betray whether you really believe what you say.

Belief in what you say and honesty go hand in hand. When you believe what you’re saying, you’re being truthful about it. You can’t argue very successfully for something you don’t believe in (and belief in something, after all, is the thought that it is true). This is a huge hangup as an attorney, I think. In my long year as a rooky attorney, I’ve already struggled with this time and time again. I’m learning a couple of things: if you really can’t believe in the argument you’re making for your client, then you need to be more careful at the outset and not accept the case to begin with. Secondly, if you thought you were on board, and then you get off board, make sure you’re up-front about it with your client, and maybe even withdraw from the case if you have to.

But a second interesting conclusion that I’ve come to on this same topic is that just because you can’t get on board with everything your client wants, or the type of person your client is, or something like that, it is still possible that there are aspects of truth and justice that are still on your client’s side, and you need to believe in and pursue those things to the best of your ability.

So far, these points touch on things that I need to work on myself. Here’s something that I love. Preparation. Preparation is huge. Know your side inside and out. Know your side better than anybody else you might go up against knows theirs. Know it forward and backward. Live it, breath it, prepare it, prepare it, prepare. Write your argument once, twice, three times. Speak it while you drive. Speak it fast. Speak it slow. Experiment with it.

Preparation.

Ok, so I love to prepare. True, I’ve gone into hearings under-prepared simply because of lack of time or energy or diligence, but there’s also been hearings that I’ve entered over-prepared simply because that’s my nature (reminiscing now on the dozens of tests throughout my seven years of college and law-school that I left thinking, “yup, I over-prepared again.)

One day after reading for a while, I went to Tracy and complained. “He talks a lot about preparation. Well, it’s no fair. He’s got cases where he wins millions of dollars. I mean, imagine it: one case that the attorney gets even just one million out of gives him an amazing salary for an entire year. You know how much fun I’d have preparing one case for an entire year?” [True, you always have more than one case going at a time, even if you do win millions every now and again.] The idea is this: in big-cases, there’s big-money, and you and your clients can afford to pour dozens of hours into each nit-picky-little detail. In my practice, seldom are the stakes big enough to justify charging the clients for intense preparation. My clients can’t afford the type of preparation that I would enjoy. Maybe I owe it to them anyway. Maybe I should work a hundred hours a week and only bill fifty. Yeah, right.

A corollary to this reality in my practice is that I have got to do a lot of cases at once to keep enough fees coming in to pay the bills.

Admittedly, I frequently prepare for several hours off of the clock. I think in these instances, I would simply feel bad about billing a client such a high amount on the one hand and on the other hand would feel even worse feeling underprepared.

All in all, there’s a lot in the book that I found excellent. Spence is a clear, concise, and entertaining writer. As a long-time attorney and brilliant trial lawyer, his book certainly is helpful for attorneys, but he targets the general reader. Ultimately, I think the lawyer (or law student) will get more out of the book than others, but I think others could get a lot out of it as well.

There’s a lot of chaff with the wheat.

Early in the book, he explains that “Argument is the mechanism by which we reveal the truth–the truth for us.” The concept of truth and “our” or “your” truth runs throughout the book, from this early point, to the very end. Summing up Chapter 15, Spence “wish[es] us, all of us, to see clearly so that we may argue with power–our power–with authority–our authority–out of the place where truth abides–our truth.”

I agree that, when you argue, you ardently pursue your conception or understanding of truth. If this were what he was saying, then, ok, I agree. But his implication is that the concept of “truth” is relative. Your truth is truth as my truth is truth, and that’s just what truth is.

Well, no, that’s not what truth is. Reality exists, and we finite human beings, because of our environment, our sources of information, our client-alignment, (these are a few of many factors that play into our understanding or conception or interpretation of reality) have misconceptions of reality. We argue based on an internal model that we hope or believe is the best (or better) approximation of reality (truth).

When he talks of arguing for truth–our truth–I disagree with him. I think we could rephrase it and say that one should argue for truth–one’s understanding of what the truth is in any given situation.

But this may just raise a more perplexing dilemma that is particularly relevant to attorneys. Speaking relativistically, an attorney’s truth could be entirely dependant on what client happens to walk through his door. Attorney X argues for truth–his truth–which is that Attorney X’s client is right and the other party is wrong. When you stick with Gerry’s articulation of “truth” this approach to the attorney-client relationship creates no problems. When you rework it as I have suggested, suddenly, being an attorney is a significant problem indeed.

A deeper reading of How to Argue shows that this is not what Spence is saying. His truth does not differ with each client. Rather, he merely has a different truth from other people. His own truth–what he calls his truth, which I say is merely his personal opinion or worldview, which at times is more or less correspondent to reality (truth)–is deeply ingrained. He has a very definite worldview and morality encompassing issues of justice, fairness, society, how to raise kids, corporations, government, environmentalism, humanity’s relationship to the rest of creation, etc. He turns down clients who’s causes he finds abhorrent or unjust. He argues honestly–out of his own understanding of what truth is–for each of his clients. He does not, as I posed above, alter his truth to every client’s truth.

He’s got a lot of opinions and beliefs with which I take issue, but I will give this to him: if every attorney fought for his client from an honest belief about justice and truth, attorneys might not be loved more, but they would be some of the best, most principled individuals in the world.

All in all, How to Argue was an enjoyable and worthwhile read. I think the worldview issues that are fun for a philosophically minded Christian reader to quibble with do not make the book worth your time, if you are like me and have a seemingly infinitely lengthy reading list. But, with this aspect in addition to the genuinely insightful and helpful exposition on argument which I think will significantly benefit me in my law practice, it was definitely worth my time, and I recommend it to other lawyers, law-students, and people keenly interested in posing arguments, particularly in somewhat public settlings.

~Jaired B. Hall, 11.22.2009.