What Makes a Great Trial Lawyer?

Some people are under the mistaken impression that a great trial lawyer must be as mean as a junkyard dog.  In fact, the most successful trial lawyers tend to be more like the amiable Ben Matlock, the unflappable Perry Mason, or the irreverently humorous Horace Rumpole.

By way of example, this post will describe some of the greatest trial lawyers of our generation.  Each one is completely different than the other in terms of style, but they all have three traits in common.  They always have a better understanding of the facts and evidence than any other person in the courtroom.  They are always in control.  And while they are often passionate, stern and indignant, they are never mean.

The Folksy Cowboy

When Gerry Spence walked into federal court in Manhattan to defend Imelda Marcos, he wore his trademark buckskin jacket with leather tassels and, of course, his ten gallon hat.  Eleven weeks later, his client heard the jury foreman say “Not Guilty” to every count against her.  

Spence’s cross-examinations were striking in their complexity.  He was at times folksy and at other times stern.  He used humor and often ridicule to make a point.  He was always persistent.  But he was never mean to a witness.  In fact, when one prosecution witness became jittery under cross-examination, Spence assured him that, “We’re not trying to embarrass you.”  The witness seemed to sigh in relief.

According to Spence, he cross-examines witnesses the same way he breaks horses:  “If you take a horse and say, 'Come this way,' the horse will balk.  So you just keep pulling on him gently.  And he'll try to run away from my questions.  But I keep coming back until he answers.  Then I pat him on the side of the neck.  And I pull him again.  And once you've got him leading, you get him to admit things that are important to your case.”

Gerry Spence has never lost a criminal trial, and he has not lost a civil trial since 1969.

The Grand Master

With his standard uniform of a blue suit, buttoned-down shirt, and blue knit tie, David Boies is the exact opposite of Gerry Spence when it comes to style and flamboyance.  Yet, he is almost in the same league when to comes to being a great trial lawyer.

Boies’ forte is setting subtle and complex traps for witnesses.  Had he not become a trial lawyer, he might have been a grand master in chess.  In fact, rumor has it that he can hold his own with the best professional bridge players.

In his now famous cross-examination of Bill Gates in the Microsoft antitrust trial, Boies never lost his cool or accused the whiz kid billionaire of being a liar.  Instead, every time Gates claimed not to know what happened or not to remember being involved in a decision, Boies simply took out an email or document contradicting what Gates had just said.

Pretty soon, Gates was rocking back and forth in his seat, visibly uncomfortable that he could not get away with saying “I don’t know” or “I don’t remember.”  Nothing Gates said seemed to matter anymore.  He looked like he was not telling the truth.

The LA Lawyer

With his well-tailored designer suits, Johnnie Cochran looked like the successful Los Angeles lawyer he was.  He had a distinct sense of style that included an ability to connect with an urban jury, yet he was in many ways cut from the same cloth as Spence and Boies.

We all remember how Cochran ridiculed the prosecution’s case against O.J. Simpson by donning a black knit cap and telling the jury, “If the glove doesn’t fit, you must acquit.”  That small piece of drama, however, tends to overshadow the incredibly substantive aspects of his closing argument.

Watching a video of that closing argument today, it is striking how fact-intensive and analytical Cochran is while speaking with the jury.  He methodically walks the jury through the evidence.  He maintains a confident, matter-of fact tone even when he tells the jury that Mark Furman and other prosecution witnesses lied to them.  Then he goes through a list of 15 questions about the evidence that he says raise reasonable doubt about his client's guilt.

At the end of the day, Cochran backed up his theatrics with substance.  Which is exactly what every great trial lawyer does, regardless of their own personal style.

John Howley
New York, New York

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