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Winning without trying.

Trying is an excuse for losing.

I know many lawyers who tell me they tried as hard as they could, they laid it all down for the cause and their client, and they still lost.

When I was a boy, I wanted to become a bronc rider. Bronc riders are tough and romantic. They carry a special swagger, especially after a good ride. It's the way they dust off their britches and pull down their hat low over their eyes and look down at the ground as they walk back to the chutes.

For me, the manly art of bronc riding and the quintessential male image were somehow tied together. A real man could ride a bareback horse until he finally stood there heaving and quivering--"all give-out," as the cowboys used to say. And that's what I wanted to be--a bareback bronc rider with his butt glued to the hide of the critter and girls sitting on the top rail of the corral looking on with that misty cowgirl lust in their eyes.

But I never could ride one of those devils. I tried. How, I asked myself, could this dumb animal always outsmart me? When I was hanging to the port, he was bucking to the starboard. When I was headed due north, he was twisted south. And it wasn't just the luck of a bad ride. I couldn't ride even a bucker who was half asleep and sweetly kicking up at the air like a soft-shoe dancer. But I tried. I tried more than once. I tried, as the cowboys said, "until I near died." No one could fault me for not trying. Nobody could say Gerry Spence was a chicken-livered coward, one of those noguts tenderfeet who came to rodeos all duded up in stiff new jeans and a pretty white hat without a smudge on the brim.

I remember limping up to the chutes, my face covered with dust, my bones shaken and scattered around inside the sack of my hide, my eyes the eyes of the bereaved, that kid who had been defeated once again by an animal that didn't have enough intelligence not to buck, that had no sense of fair play, that would just as soon kick a person's head off as eat, that would just as soon bust a man as stand lulling in the sun. I remember saying to old Jake, who was operating the chute, "Well, I tried."

He looked down at me with a patient disdain seeping through his leathered face. "Steers try, kid," he said.

I've told this story many a time to lawyers who say they lost--but that they tried. "Steers try," I say, as if the saying originated with me. And then the lawyers usually look at me and turn away with empty eyes, most having never seen a steer try, most, as a matter of fact, not readily calling to mind the perdurable difference between a bull and a steer.

Winning and trying to win are notions at odds, one with the other. The ideas stand as antithetical missions. One succeeds. The other embraces an excuse for having failed. Wing always includes the possibility, even the likelihood, of failure. If this were not so, one would have no need to try. Trying hangs on the excuse for failing. I tried. No one can accuse me of malpractice. No one can say I wasn't competent. I can blame the lumber-headed judge, the obese jury, the double-dealing opponent. I can blame luck. The lawyer who tries is concerned not as much with his case, his client, his cause as with his excuses for losing. Lawyers who try are dealing with one of those lawyer's infamous loopholes again, the loophole through which the lawyer can escape responsibility for the loss of his case. He tried.

Winning emerges from a mind-set. If one is set on winning, one is willing to take risks, to create, to venture into new, untried places, to throw one's self into the trial with the abandon of the bronco. I would wager it never entered the beast's mind that it would be unsuccessful in dethroning the kid from its back. An unspoken bargain was struck between the two of them. The kid would try. The bronco would win. They both knew the bargain, and both, on some level, agreed to it.

Lawyers do the same. You can identify the lawyer in the case who has made his bargain with the opponent to merely try. No words will have been spoken on the subject. The lawyers may be as polite to each other as monks. The matter will not have been raised to consciousness between them. But the bargain will have been struck, and both lawyers know it. One will try. The other will win.

The question, of course, is, How does one win without trying to win? The answer is, One does not try to win. One wins. The question is, How does this mind-set come about? The answer is, How does one accomplish the simple shining of one's boots in the morning? One does not try to shine one's boots. One simply shines them.

Yet, in or out of the courtroom, we encounter resistance against winning. In court the judge often resists. The law is sometimes against us. The facts as well. The opponent stands in our way, and the damnable jurors rum deaf ears to our pleas. Everywhere one turns one is slammed up nose to nose with those abominable opposing forces. But so, too, we are faced with resistance to the simple task of polishing our boots.

The most formidable opponent to our boot polishing is our own resistance to the job. We must decide to do it, to get out the polish kit, to sit down and take up the task. We are probably going to get our fingers dirty. Perhaps we will get polish on the carpet. Before we start we have to scrape off the mud, and then wash the boots and dry them.

We are in a hurry with important matters demanding our time. We think how we can stop by the shoeshine stand and read the morning paper while somebody does the job for us. Perhaps we argue that one ought not deprive a poor shoeshine man of a couple of crumpled bills. Perhaps we argue with the better lines of Robert Frost in "Two Tramps in Mud Time." A couple of bums caught the poet splitting his own wood one day, and feeling guilt for having taken their work he wrote:

As that I had no right to play

With what was another man's work for gain.

My right might be love but theirs was need.

And where the two exist in twain

Theirs was the better right--agreed.

We may argue that who one is is more important than how one appears. We may argue we should first wipe the mud off of our souls. We should first shine the comers of our being. A great lawyer can stand before any jury, muddy boots or not, and win. He can win barefooted. We may argue that muddy boots never stood for truth or justice. Indeed, muddy boots are irrelevant to the stature of a person.

The enemy is always lurking--the mud, the nasty business of scrubbing and polishing, the endless alibi arguments, and more than all else in the courtroom, the fear of losing without having tried to win.

At the same time, winning and looking good are also at odds. How one looks in the courtroom often takes away one's focus from the act of winning. And if I look good and lose, no one can accuse me of not having tried. How often I hear lawyers tell me things like, "My cross was wonderful. Even the judge complimented me. And my client thought my closing was astounding. I was in top form. I looked good. I sounded good. I performed at my best. But I lost. Well, no one can say I didn't try." Yet we can win without appearing very skilled, very smooth, very lawyerly.

In the same way, one can make a lot of noise while trying to shine boots and never get the polish on the leather. One is not concerned with how one looks when shining boots. One is not concerned whether the technique is smooth or stylish or whether the shining cloth carries the beat and rhythm with a fine, loud snap at the end. One is interested in the process only to the extent that it has relevance to the objective--to get the boob shined.

I know some famous lawyers who rarely win a case. They are famous because they look good and sound good. They are witty, sophisticated, quick, and intelligent. They know all kinds of tricks of this illusive, complicated business. They are well groomed, well connected, well accepted, and, because of all of the foregoing, well heeled. Their deepest concern is not winning, but looking good, and this is not because they are bad lawyers or bad people. This is because they have spent a lifetime in the courtroom believing that by looking good they could win. And, case after case, having been disappointed, they have come to the conclusion that if one cannot win, one should at least look good in trying to win. Besides, no one gets sued for malpractice for having tried one's hardest.

Too often lawyers fail to talk straight to the judge, to accept him as a human being, to recognize that he has feelings, that he can care as a person, that he could understand the lawyer who speaks of his own fear, his own deep love for justice, his abhorrence of pretense, and even his sorrow at the hard, bitter law that often precludes the judge from delivering a party a fair chance at justice. Too often lawyers fail to speak to the jurors as human beings, out of the lawyers' hearts, for fear, as always, that they will not look good, that they will be perceived as less than powerful, sophisticated advocates.

What lawyer tells the jury he is afraid? What lawyer talks to a jury as he talks to his best friend? What lawyer trusts the jury with his most intimate concerns, his most tender feelings? Such a lawyer would not look lawyerly. The opposing counsel might object, and the judge might sustain. But the jury will hear this lawyer.

Sometimes we conduct those wonderful cross-examinations that annihilate the witness, that make wise men look stupid. Often we do it more for ourselves than for our case. We are trying, and we look good. We will be complimented by our peers in the hallway during recess. Our clients will be impressed.

I remember as a young lawyer taking on a case of a severely injured worker against the manufacturer of the defective machine that left the worker brain injured and lost in an eternal fog. In anger I cross-examined the lying old company men. I exposed them as frauds and hacks. I chopped them up into little ugly pieces. And still not satisfied, I smashed the pieces into the dirt under the heel of my boot. At the close of day, I bragged about my cross to my partner. "I sure fixed them," I said. "You sure did," my partner replied.

Day after day, I took on the company men, always with the same intent--not only to destroy their testimony but to mangle and mutilate them as persons as well. At the conclusion of the case, the jury retired and was out for only a short time before it returned a verdict for the company against my severely injured client.

Leaving the courtroom, one of the jurors, a woman with the tears still wet on her face, stopped me. She looked up at me, and all she could say was, "Mr. Spence, why did you make us hate you so?" I stood there, not believing what I had heard. How could the jury hate me having tried so hard to win?

I have seen young lawyers quaking in their tracks at the prospect of having to face one of those big-shot lawyers with a formidable reputation. I have seen lawyers with years of experience settle their cases for peanuts rather than go the distance with these men who have masqueraded themselves as fearsome giants in the profession. How could an ordinary lawyer compete with their quick wits and masterful techniques? How could an ordinary lawyer ever look as good as they?

And, then, sometimes along the way the frightened lawyer's caring for his case breaks through, and out of desperation to win a just case he abandons his attempts at show, forgets about trying to win, and becomes simply who he is--an ordinary person, one who tells the truth about himself, his case, and his client. He becomes a person like the jurors are persons. He takes on the mind-set of the winner. Losing is too painful to consider, too devastating to later excuse. Trying is no longer an option. And when the jury returns a verdict in his favor, neither he, nor the famous lawyer, who lost once more, understands why. "Nobody understands a jury," they will likely say.

And so we see that trying to shine one's boots and shining one's boots have little to do, one with the other. But the two acts have a commonality. Obviously, both originate from the same place. One does not shine one's boots without having first seen boot shining in the mind's eye. In the same way, one does not try to shine one's boots without some vision of trying as well. The beginning idea sets the course. If one sets out to shine one's boots in one's mind's eye, one sees in the mind's eye the brush, the polish, and the rag, and, of course, the shiny boots glistening in the morning sun with a shine that will reflect the face of a winner.

If one approaches boot shining with the idea of merely trying to shine one's boots, one is likely to be reciting Frost's poem, or making other arguments preparatory to failure. Given the tools to win--which, in the case of the lawyer, include his education, his skills, and his experience in the courtroom--winning and trying are each preceded with a vision: One is of winning, while the other is the dreary vision of a lawyer trying to win.

Winning is fun. One should not wonder that so many lawyers are unhappy in their profession facing, as many do, a lifetime of trudging down the road to defeat as they try, with all that they have, to win, and only lose.

Sometimes to set the mind in proper winning order, I have a conversation with myself. The conversation begins with my listening to the wee omnipresent voice within. The voice tells me the truth. It tells me that I am all right. That I possess the power to win.

The power does not come from my appearance. It does not come from tricks. It does not emerge from my acquiring a set of special techniques or from knowing the right people or being accepted in the right society.

The power comes from being genuine, from being who I am. The power comes from recognizing that I am unique--that in all of the universe there is no one exactly like me, and that if I present my case out of who I am, not who I pretend to be, out of my feelings, not my covered feelings, out of my fear, my caring, even out of confusion, not my pretenses at being a lawyer who looks good, I will win. I will not try to win, for merely trying to win is my agreement that losing is an alternative. Indeed, it is my agreement to lose.

Trying is to lose and excuse. A lawyer cannot adopt the winning mind-set in his case without caring about his case and his client. Belief in the case, in the cause of justice, and in the deep-belly stuff of putting his whole human agency into the war is the necessary mind-set. It is a place where the lawyer and the cause are bonded.

I tell lawyers that we cannot expect a jury to care about our clients if we do not care about our clients. We cannot expect a judge to care unless by our presence, by the glow on our faces, by the tincture of the blood in our voices, by the raw flesh of our words, our commitment to the justice of our case is undeniable. Caring is contagious. Witnesses catch it. Judges cannot defend against it. Juries are helpless against it. Caring in horribly contagious. Perhaps some can feign it--but not for long.

When lawyers care, the legal system functions as it was meant to. When lawyers care, that is, when the cellular structure, as it were, of the lawyer's personage has undergone a metamorphosis so that the lawyer becomes the client, the cause, the justice of the case itself, then justice, too, prevails. Then one side tries to win, while the other, soaked in caring, has no thought of trying, no time for the labor of the miserable work of lawyers trying, but is caught up in the ecstasy of winning the just cause. When lawyers again care, the public will also embrace us as their warriors.

But the mind-set of winning begins with caring about one's self. And if caring is contagious, as it is, the self has long before been infected, for if one does not have an immense capacity to care about one's self, one can hardly have acquired the ability to care about anyone else. The selfless warrior is empty. And empty warriors have nothing to give.

I remember having lost case after case as a beginning lawyer. I was trying, of course. I was trying to the point that should I lose another case I vowed I would abandon the profession altogether. I felt weak, helpless, empty. I felt like I felt when the old cowboy looked down at me and said, "Steers try, kid." But the question seemed to persist: Do I need the pain of losing? How does losing serve me? Is losing a necessary part of my life?

We have been taught from the beginning that everybody loses from time to time, that life is a hodgepodge of losing and winning, a sort of draconian structure that implacably codifies both winning and losing, the latter predominating. We remember the old saw "It is better to be lucky than smart," and, often down on our luck, we attack adversity bravely with even a greater trying, which is not to say that the mind-set of winning does not demand profound effort.

But in truth, the winner does not work. The winner is more likely to be playing, for his case has become his life, his joy. He prepares his case to the last word, his thoughts are of it as he lays his weary head on his pillow, and he is aroused in the morning with some bursting gestalt and jumps out of bed to implement it. But his case is not work. His case is his life. Those who "try harder," as a well-known car rental company advertised, will always remain second.

Still, when I speak of the winning mind-set, I am not speaking of that often-encountered distasteful, obdurate conduct of the overly aggressive lawyer who turns judges and jury against him. Nor do I speak of unethical conduct in or out of the courtroom, for the lawyer with the winning mind-set can be gentle and easy on his feet. He can be considerate and cooperative, and an expert at listening. He can be a person of good manners and taste.

None of these traits mitigates the lawyer's mind-set to win but rather intensifies it. The lawyer who is unfair with the witness, untruthful with the judge, ungentlemanly with the opponent is a lawyer who is only trying to win.

The lawyer who has earned the respect of witness, judge, and adversary is engaged in the process of winning, for to the same extent that caring is contagious, so, too, is contempt born of unlawyerly conduct catching. The judge will always exercise his power against it. The intelligent adversary will take quiet advantage of it. The jury will feel it. The lawyer who engages in the power-ride through all the obstacles in the courtroom, having tried his best, will finally lose. Still, I am not advocating for a sort of sweet, passive conduct. I argue that we bring into the courtroom a lawyer focused on his cause, committed to his client, honest about his case, a person genuine to his toenails, a person who does not try but who only wins.

Nor do I speak of a lawyer who fails to perceive what is happening around him in and out of the courtroom. One cannot maintain the mind-set of a winner and engage in all the foolishness of the loser. The winning mind-set is thoughtful, intelligent, and sensitive. The winning lawyer is the alert lawyer who brings with him a sort of overself, that watchful guru who hovers above the lawyer listening to his every word, who tells him when to back off, when to attack, when to be gentle, and when to be silent.

The overself of the winner is like the jockey on a winning horse. The winning horse has the mind-set of the champion the moment he enters the paddock. But the jockey, the overself of the winner, paces the animal, positions him to win, and urges him down the homestretch.

The mind-set of the winner becomes the final power in the courtroom. In the drama of the courtroom, there must always be one who plays the part of the winner and one who plays the part of the loser despite how hard he tried. The winner refuses to become the prey and withholds permission from his adversary to beat him. On the other hand, the lawyer who merely tries has already extended to his opponent his permission to be beaten, despite how hard he tries. The lawyer who tries, delivers his power to his opponent. His power is the power to win. Having given his power away, he has kept for himself, by trying, the ejection seat with the parachute. The lawyer who tries has his hand constantly on the ejection lever. His mind is there. His focus is there. Better that he give up the power to escape and retain the power to successfully fly the plane to its destination.

Something magical saturates the phenomenon of the winning mind-set. If we do not believe in magic, we cannot win. We can only try to win or win against other lawyers who are also trying to win. Out of this magic one perceives a sort of sheen on the mind, an edge to the intellect, an energy of the soul that cannot be identified in the dissection any more than that which makes the frog jump can be diagnosed when we cut it into very small pieces for examination.

The lawyer who experiences it cannot speak of it with any accuracy. Likely he does not understand it very well himself. But those who know him see something different in the person, in the texture of his presence.

He has come for justice. He believes in his cause. And despite the misfortunes he may face, despite the calumny and prejudice, despite those who throw all their forces against him, he will have it, and he will have it without trying, for he has become a winner.

Winners do not try. Winners only win.

Gerry Spence practices law in Jackson Wyoming. His latest book is O.J.: The Last World (St. Martin's Press 1997).
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Title Annotation:Trial Without Error
Author:Spence, Gerald Leonard
Date:Apr 1, 1998
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