GERRY SPENCE ON HOW TO CONDUCT VOIR DIRE

GERRY SPENCE ON HOW TO CONDUCT VOIR DIRE

The following  is a talk given eighteen years ago in 1986 by Gerry Spence. It was given at the Texas Trial Lawyers Association and South Texas Law School of Law “Seminar of the Century.” I’m reprinting the original transcript without editing. While it is lengthy it contains vital truths about jury selection done right. From the start of the Trial College I had the privilege of teaching each year with Gerry and other great lawyers. This is an illustration of the process

                     CREATING THE FIRST IMPRESSION: VOIR DIRE

Sometimes, Brothers and Sisters, before I begin to talk to a jury, at the beginning of a trial, I stop for just a moment like I did and feel how I feel. Sometimes I feel in ways that I am not willing to acknowledge to myself . I never begin a jury trial or a speech like this without wanting to know how I feel, and I want to tell you how I feel this morning . I don I t feel good. It is a little intimidating to stand down here with you up there and to have a room full oft my • peers look down at me with expectations and to think to myself, can I fulfill those expectations . It is something that every one of you know about because every time you walk into a jury room you say to yourself , can I fulfill my client’s expectations? Can I make this thing work? Do I have what it takes to get into this pit, into this room, into this place where people die or people bleed and make it all work? And so I need to tell you some things. I am of course flattered that I have been asked to speak to you and I am glad really to be here, but if you want to know the truth, down in my belly I feel the same old kinds of things that I have felt from the very beginning as long as I can remember from the time I was a kid getting up in front of the class in the 4th grade and we my pants. Nothing changes, we don change, only our appearances change, our outsides change, but nothing really changes .

Now, I guess that while I am talking about that subject, and I am going to talk to you and we are going to do a 11tt1e demonstration this morning, I think, but while I am talking about the subject of fear, I think it might be just alright to say to you that it took me a long time to learn that it was alright to be afraid . I didn’t learn that until I was about 40 years old. I thought that lawyers weren’t supposed to be afraid. I thought that they were the fearless, courageous, powerful champions who were not afraid. And then I was the only one that had this phony son—of—a—bitch who walked around looking tough, who had a certain swagger and who put on a certain arrogance and a certain air about him which was meant to convey to the world that I was unafraid, when inside, I was afraid. I thought that I was the only one who did that, and then along the way somewhere this grave perception came to me, from where I don’t know, but I began to learn that there were others out there that were afraid and I don ‘t suppose that that would include any of you. I have found that in the course of my travels around the world that there are indeed a few others like me. I have gotten a good deal of comfort from that, so when I begin to. . and it is alright to be afraid. There would be something wrong with us if we were not afraid. It is that wonderful gift that is given to us that permits us to survive. If you could. . .1 was talking to a young doctor in the terminal at Santa Barbara waiting for the airplane to bring me here to you and I said, “You know, if you could just make a model of who the human organism really is, you wouldn’t have to worry so much about your scientific studies. Why don’t you just see us as we are? We are nothing but tribal man. Our genes are the same as the genes of the man who walked through the jungles a million and a half years ago, there isn’t any difference in our genes, we are the same. We are engaged in the same process. We need a certain kind of food, we need exercise, we need the adrenaline to surge through us at the right times, but not all the time. We need stress at certain times but not everyday. And the fear that comes to us was given to us was given to us to survive in the forests of Wyoming where I grew up, those great mountains in the great country, I never see the little buck excepting that he is on the fender of the hunter, the big buck that survives is the one that runs at the first snap of the twig, never stops google—eye looking like the little buck unafraid, that is why we sent the little google—eyed bucks to war, the 18 year old and the 17 year old who haven’t learned yet that it is alright to be afraid. I don’t want you to run, I don ‘t want you to be intimidated, but I want you to know that it is alright to be afraid and to feel it. So this morning when I began to talk to you, I felt my own fear about that, and I guess that sometimes in the selection of a jury I do that.

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I talk about it. Can you hear me now, folks? I got a jury of lawyers here, do you think that is intimidating? I mean, if you had a juror that was a lawyer, you would get rid of the bastard in a hurry. I had twelve of them this morning . Would you do me a favor and be who you were before you became lawyers if you were a painter, a waiter, a pansy—ass, whatever you were, would you be, and try not to.C1 know that all of you are able to put me down very easily with your comments , but have a little compassion, because it is not easy to be put down in front of all of these people. I would like the game is not for me to contest with you, the game is for us to learn something together and would you try to be a sincere frightened juror, because let us begin.

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I was asked to give a speech on jury selection, but I thought to myself, folks, and I ’11 tell you why we are going this route. I don’t believe it is correct to stand in front of you and lecture about how to do something , if you don’t think that you can do it. I think that it would be better for you to see how to do it, it would be even better if we could all get down here and do it together and comment about it, but this is the next best thing that we can do is to try to do it together and I’ll come in and out of this voir dire to comment upon it, but at the very beginning, would you please stop to think about how it is not only to be yourself, but to be this man who stands here afraid and who can actually feel it. You can actually stop, sometimes I just do that and just feel where it is. It is starting to leave me a little bit, but I am not as tight as I was, but it is something that grips me about here. But how it is also to be a juror. See what has happened to this man? This juror here has been . let’s talk about him as an individual. What has happened to him has happened to all 12. He has been sworn, he has raised his hand and taken an oath, he has come from his farm in Oklahoma, but what was he doing in Oklahoma? I was an automobile mechanic. He comes as an automobile mechanic from a place that he is perfectly comfortable with to this courtroom and it is solemn and the judge is dressed in black for death and nothing grows in this place. . there aren’t any plants or goldfish or children playing or any noises, there aren’t any mechanical sounds, there aren’t the things that he is used to. His tool kit is home, his hand. . he has his Sunday best on and he is going to be charged with doing something very important with people that he doesn’t know. He is asked to understand procedures that he does not know or hasn’t had anything to do with. He is as afraid as you and I. He is uptight, his sphincter is closed absolutely.

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And so we have something in common, this juror and these jurors and me, and so why don’t we talk about it. I might to say to the jury something like this to open up, ” My name is Gerry Spence, and I am going to represent Mrs. Jones in this case. I just need to tell you something. I need to tell you that I have been at this business a long time . I have been a lawyer for a good many years, but I never start a new trial without being a little uptight, as my boy calls it, being kind of ” scared” as you might say. I don’t know you and you don ‘t know me and I am worried about whether or not I am going to be able to do the kind of job that I should do here this morning . I wonder, I suspect that maybe you have been involved and had feelings like that. Maybe you feel this way this morning .  1 hunch that you have not had a lot of experience doing this, have you?

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Have any of you been in on a trial before? I bet even you, Mrs. Abbott, I’ll bet even you with some jury experience are sitting here wondering if this is all going to be alright, isn’t that true? How many of you think that you could know something about the way that I am feeling this morning? It is pretty lonely standing out here, at least you have a neighbor here. Do you know each other on the jury? Have you met each other? Well, you will get to know each other before the case is over. “

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That might be how I would start a jury. See, already, we ‘ve got a connection. Now I want to say something about your evaluation of what I am doing, and I don’t want you to evaluate me badly, but I want to tell you that you are going to say, “well that son—of—a—bitch can do that in Wyoming, but you ought to see what would happen to the smart bastard if he tried that in front of Judge Hardass here in Texas . ” That is the evaluation that I get everywhere that I go at every place, except all I am really hearing is you are saying I am afraid about what the judge would say or the objection that would come from opposing Counsel, but let me say to you about the objections from opposing Counsel, he might be afraid to make them, and the judge may not be as bad as you think. He might be interested in seeing somebody come into his court room and do something that is alive and interesting that won’t leave him bored and sick.

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When you have a judge that is raising hell from up there all the time, just after you all the time, it is either one or two things, either that he is a black—hearted bastard and there is the presumption in that regard, or you are simply hurting him and leave room for that possibility. The other thing that I need to say to you about this subject is that people who try something new are taking risks of the kind that they ought to take, that people when they respond honestly to a jury, talk to a jury out of their heart, and take these new kinds of risks in jury selection, and new kinds of risks in the trial of their cases, are working out on the edge where they ought to work, you see, you must not work back here where it is nice and safe, and I don’t want you to go over the edge, I am not asking you to do something that is improper or illegal or unethical, but when you leave the margins and keep the safety for you, keep yourself nice and safe so that there won ‘t be any objections over here and there won’t be any criticism from up here and you are nice and safe and no one can hurt you. . you have left a margin for your opponent and the margin does not belong to your opponent, it belongs to you and your client. When you say that I can’t do that in my jurisdiction, you are already beaten. You have already been beaten!

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Now, the next thing that I think I might do with jury selection would be this: I would ke to. . undo this bastard for me, would you? When I was a kid, I used to have a goat that I used to tie on the creek bank with a cord just like this and as I spend more and more time tied to a microphone, I understand how it was to be that old nanny. Now, lots of people don think that there is any way that you can get people off a jury for cause, and you can I t, usually. The reason that you can’t usually, is because jurors will do everything in their power to stay on the jury. They may have every reason in the world why they don I t want to get on the jury to begin with. They will file affidavits with the judge, they will piss and moan about to anybody that will listen to them, but I will guarantee you that once they have been called into this box, you can I t pry them out of there with a prod. They got to stay, because they had this sense in their mind that if they got off the jury that it means that they are unqualified as human beings or that they are bad citizens or that there is something else wrong, so we have to unhook them of that idea to begin with.

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We might do it like this: ” You know, folks, I would like to take just a minute if I could and tell you that you as jurors have some rights . That may come as a surprise to you, but you are citizens, too, you know, and you have some rights. You don’t have to sit on every case. You doh ‘t have to agree to every proposition of law that the judge gives to you, if you can’t agree to it. I mean, you can’t be sworn to follow the judge’s instructions In black and then have him tell you to go and bomb City Hall, for example, you know. I. . excuse me, Your Honor, I was just using that as an example I know that you wouldn’t tell the jury that, but what I am trying to say is this, there are ideas we are individuals, each of us have our own ideas about what is right and what is wrong, we are preachers of our experience, and of what has happened to us and so doesn’t it follow that we can ‘t all see things the same way, that we might not all agree with the law that is involved in this case?

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I can’t try every case that comes along, so sometimes I have to say to a prospective client, “I can’t take this case, I just can’t take it because I don I t believe in it, or I can ‘t take it because my heart wouldn’t be in it. ” You have those rights, too. So the voir dire is as much for your benefit as it is for anybody else, and there is nothing wrong with saying’ I can’t take that idea How many of you would be willing to stand up for your rights?

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Do you see what I had done? Wasn’t that beautiful? I mean don ‘t you think that was beautiful? I mean the reason that that turned me on, I never did it that well in the courtroom. The reason that that turned me on is simply this, how many of you. . right this down for me so I don’t forget it the next time. . how many of you would be willing to stand up for your rights? Now they have conditioned the jury’s idea that they aren’t going to make me sit on this jury? Ain’t that nice?

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Now we’ve got a chance to find out how these people think and whether  and it is okay for them to disagree, and if there was a judge in my voice, let me ask you a question, Isn’t this right? Isn’t this the road to paradise? Isn’t this a proper thing not to go up to a jury and say, you will follow the law, will you not  and they all say “yes” to the Father and to God, and they say and despite the fact that you have this and that and you have read about it and you hate the plaintiff and you hate big verdicts and all of the rest, and you can follow my instructions and return a fair verdict, isn’t that true?” and they all say “yes” to the Father and to God.

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Let me ask you thx s question, Isn’t the true function of voir dire to somehow educate the jury? Isn’t jury education important? Don I t we want them to know all of the propositions that they have to think about? Don’t we want to lay it all on the table? Is it just a trick for the plaintiff, can’t the defendant do the same thing? Can’t the defendant walk up in front of the jury and lay out all of the defense and propositions of law and talk to them about it and tell this whole jury through an open voir dire understand what the law is? Isn ‘t it alright to educate the jury or do you want to have them ignorant? You re the judges that always put your finger on a jury when it comes in with a verdict that you don I t agree with and say, “You never can understand what a verdict jury will do. “

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I am telling you that a jury is the most beautiful tool of justice that was ever devised by man. I want you to know something and I want you feel it when you go in and talk to the next jury that these twelve people as a composite have more intelligence than the wisest judge that was ever born. This jury of composite intelligence have about 500 years of experience of every walk of life, and you mean to tell me that someone with 500 years of experience from every kind of walk of life, a woman that works up in the hospital who carries out the garbage and empties out the rotten legs and guts that have been cut off of these people in the operating room, and this man over here that is a mechanic and the school teacher and these people don ‘t know more than 01 liver Wendel Holmes? They do!

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They are entitled to love and respect and you should stand in front of a jury in awe because together they are wise and if you think that you can outsmart these  people, that you can fool them, that you can bull shit this jury, you are the fool. You had better understand that tobe successful with juries, you have to tell the truth and you have to be straight with them. They soon sort them out and they soon find out who is fooling and who isn ‘t, who they can trust and who they can’ t. Well,

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lets see. . . what was I talking about before I got off on that? I think that the open—ended question is the great key. Let’s put it up here. . it is the open—ended question because we are going to find out how the jury feels. Now some people say well, you are going to find out all of the people that are for you and then the prosecutor or defense is going to take them all off, which is true, but it is a fair exchange and I want to know who I am dealing with. I want these problems out in the open.

You all have your little notebooks here and you are getting credit for this so if you are going to write something down in your little notebooks, here is what I want you to write down; here is the great truth. What are you afraid of? That is the great question to ask yourself in the presentation of your case and then go to the jury with it, 1 11 show you how in just a minute.

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With the open—ended question. . .1 r 11 show you how right now. Folks, I just got to tell you something right now. This is a case in which I have asked for a lot of money. I mean, a lot of lawyers don’t like to talk about money, they are scared to talk about money back up to you like this. . . and then at the last minute they ask for a lot of money. I didn’t want to tell you upfront that this case was worth a lot of money. I am asking for $10 million dollars for my client, how many of you are. .1 mean, that is a lot of money, isn’t it. . $10 million dollars for a human life, it is for little Mary, she was run over, and I am afraid that she’ll say that we shouldn’t give money for a dead 11tt1e girl or that Mrs. Jones ought to be ashamed to and coming to a jury and asking for money for her dead baby .

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I am afraid that you are going to say that no one should profit from the death of their child, and that is what I am scared of. Now, let’s talk about it. Mr. Brown, what do you think about giving money for a dead baby? ” I was kind of brought up on the idea that if it is the wrong thing for parents to take the money for the dead child, but I myself have reacted to that and feel that that is the only means of pain and adjustment.

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Well, I thank you for saying that. We are not in the jury room, and this isn’t the way I do this in court, but that isn’t the way most jurors. . . he is being kind to me. . that isn’t the way most jurors will respond. Let me ask somebody else, you’re being too nice to me. What do you say, Mr. Smith, about getting money for a dead baby?  It seems like a lot of money” It is a lot of money, thank you.

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How many of you agree with Mr. Smith that it is a lot of money? Did you. . what do you think about the idea of giving money to a mother for the loss of her baby, does that bother you? Does it bother anyone here on the jury? “I think you are crazy” ! I can see that! I have been looking at you! You know what? When I told my wife, that I was asking for $10 million dollars, do you know what she said? She said, “I think you ‘re crazy! “

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Let me ask you, Mr. Young, do I have your permission to try to show you that this would be a just verdict in this case? “You can try” Would you permit me to try and do that? “I don’t have any other choice. ” Alright, would you rather not sit on the jury? “No, I would like to hear it. ” You would like to see whether or not I could show you that ? “yes . ” Would you leave open in your mind the possibility that a human life could be worth $10 million? Are there in your minds some human beings that would be worth $10 million?

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(Watch what I am going to do to the bastard). “None that I can think of at the present time. ” There aren’t any that you can think of, right? Well, I see that sort of the same way . Between you and me, Mr. Young, I’d. . If I had the choice between the $10 million, I guess that I would take my life. I think that   my wife would make the same decision, and I think that my father and mother would make the same decision, but . . . can you leave room in your mind, Mr. Young that there are human beings in this world whose death ought to be justly compensated with a sum as large as $10 million dollars?

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What k Ind of a category in making that decision. .1 mean how would you divide human beings up as to which were more valuable than others, that is what human being may be worth $10 million to you or in your judgment, and what human beings might be worth less than that? How would you make that decision? “You could take like President Reagan as the top person and work down from there.

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[Okay, we got his fuckin’ number, don’t we? I mean, now wait a minute. . I want to stop and say something to you about what is happening here,cause we are gonna do some things here that are going to be very useful . First thing is that when somebody in a jury box does give you a straight answer like that which really at first something that you don’t want to hear, please realize that

he is doing you a huge favor by being honest with you. You must accept him as a great gift. I didn’t treat him like he was a bad man for having said that, did I? I treated him like he and I could understand each other and communicate about it together I understood fully well what he did and I treated him kindly. Secondly, imagine what would have happened if you hadn’t asked this question, the open—ended question. What do you think is the magic word about(blank) that opens it all up. It permits this jury to give the gift to you and what would happen if we were in the jury room and Mr. Young for the first time begins his argument to the jury and you are not there and you can’t do anything about it? This guy is no fool, he is a Reaganite. He is going to sit in that jury room and he is going to cost you thousands and thousands of dollars every time he opens his mouth. Right now as he opens his mouth he ain’t costin’ me nothin’ , he’ s making me dollars, do you hear it?

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Because I am going to educate the jury about this, in the process, watch . Jesus, that sounded arrogant, didn’t it. But, you mean like, you can do it, Spence, it don’t make any difference who the fuck is on the jury, see but. . . or what they say or what they know.. . but you gotta say that to yourself, dammit, the only other alternative is to run out of the fuckin room.]

Now you know Mr. Young, I absolutely agree with you that if somebody ran over our president negligently, and killed him, squashed him in the street and left him dead and bleeding there, that whoever did that ought to pay 10 million dollars at least, maybe more, probably more. Could you tell me whether or not you think President Regan’s life is more valuable to Nancy, isn’t that her name? Nancy? Could you tell me whether President Regan’s life is worth more, in your judgment, worth more to Nancy, than little Mary’s life to Mrs. Jones?

Let me ask you a question, Mr. Young, would you, could you open up your mind to the idea, I don want to ask you for a commitment or promise because I don’t think that is fair but would you be open to me trying to show, in this case, on behalf of Mrs. Jones that little Mary’s life is as valuable as President Regan s. Would you let me do that, do I have your permission? And would you leave room for the  possibility that I could do that? You are not close to that are you Mr. Jones. Well thank you.

Now, you know, putting all this stuff that has gone on the side and assuming that we, you haven’t heard any of this , ah, Mr. Martin, are you and I just, talk to the folks out here just straight, are you and I o.k. together? I mean, do you like me o.k.? And I haven’t insulted you, have I? And you feel like maybe you would like to hear my case now? Now isn’t that a nice thing to have happened? And in this process, now, by using this man, who was good enough to give me this information, that was hurtful to my case, I am able to begin to educate the rest of the jury about the value of human life and judges, isn’t it alright that this jury be educated on that subject, do you really want a jury of 12 Reaganites walking into that jury room who have not, who have said nobody gonna give any money to these little babies for these mothers for these babies, do you want that, is that the kind of a jury that you want or do you want to leave it open so that now the defense can come in and say whatever they want to say and you have got an educated jury that can I make a decision on the law and understand your instructions .And Mr. Judge, if you really want to educate the jury and to enlighten them, then tell me why you lay out all of that legal bull shit that nobody can understand in your instructions? Why don’t you talk to the jury as if you want to educate them in a way they can hear it and understand it? Why are you to upset that I speak to the jury in common ordinary English as one human being to another, about the law, in a way they can understand it? Don ‘t you think that you ought to let somebody in this trial talk to a jury that can talk to them, because you can’t obviously. Mr .Judge,

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alright, now, ten million dollars is a lot of money. How many of you are intimidated by that? I mean scared? I thank you for saying it scares me too. I mean its just like here’s a checkbook on the table and here’s the amount, the place to fill in the amount, and it says ten million dollars, and there I s the signature and it’d be pretty scarry to sign it wouldn’t it. Do you think you could if you believed it was just and fair? Mrs. Andrew (juror provides name to him) . . .if you thought it was just and fair could you overcome that fear?

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(Juror/ Mrs. Andrew: Sure, if I thought it was the right thing to do. ) But it would scare you. . . I told you a little earlier that the thing that worries me , do you notice how I am talking very, I am up close to this jury now, but I am talking very softly to this jury (now yells) because juries don’t like to have people yell in their faces (much laughter) any more than you like to have a dinner companion yell in your face or a lover (loud) give it to me baby! (uproar ) (Very soft) Give it to me baby.

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What I am really worried about Mrs. Andrews is that back in the jury room when it comes time to do justice somebody will say “I can’t give money for a dead baby n . Can you make room for the proposition that that’s exactly what Mrs. Jones said to me when she came in, “I can’t ask for money for my dead baby” . Can you make room for that? Do you realize how frustrated she must be when she understands that that is the only thing that our system can give her is money? Do you understand how it might be to be a Mother who says I want I’d rather have you give me anything, give me 5 minutes of her life back, and they can have ALL the money. If you could do that we’d ask you to do that. Do you understand that Mrs. Andrews? (Juror Andrews: I sure do. )

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Now, have we done anything great? Has anything stupendous just happened? I mean I can feel it down to my legs that there is still, shit, I can just feel it in my very legs, they’re shaking, because that woman and I made a tie about that Mother just now that will preclude any of those arguments in the jury room because the minute somebody says “I wouldn’t give if I was that Mother I wouldn’t give. . .wouldn’t be asking for  money for my baby” they’ll remember what we did here.

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And you Judges, you Judges, do you want the jury so prejudiced against a poor Mother who comes to your court for justice that that issue can’t be somehow dealt with before they deliberate in this case? When you talk about, when you have an opportunity to talk to your Judges, find out what they. . . when you move for special kinds of voir dire, find out what they really want from the juries. They always say “we don’t want you to condition juries in your case” but we’re not conditioning juries we are getting them prepared to make a just decision and as long as both sides can do that, what is wrong with that? It would be wrong NOT to do that brothers and sisters.

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NOW, I have talked about the two things that frighten me most. How much time do I have? 5 minutes. (laughter) Sound just like the Judge, you’ve got 5 minutes Mr . Spence. . . Let me ask you a question. What is it that any of you are most afraid of in your jury? In the next jury trial you are about to have, tell me.

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There is the question on that board. What are you afraid of? What is it that you are most afraid of. Raise your hand somebody. Yes sir. (Man Juror: “That a Mother. . . young black. . . can’t understand rest of what he’s saying. . .” ) Alright. Let’s do it. Would you come up here. Mumbles something to juror. (loud laughter) I bet you wish you knew what I said to her. (loud laughter) Don’t you tell. This is my client Mrs. Jones who has, who is very street wise and who has a star in her tooth. Would you come up here Mrs. Jones. You know, ladies and gentlemen, this is my client Mrs. Jones. She is a very street wise woman. You can see how she dresses that she’s been around. (loud laughter) When she gets up to testify and she opens her mouth you are going to see a star in her teeth. (loud laughter) See it? (loud laughter) Her little girl, what is the situation with her little girl? (Man juror gives situation again, can’t understand what he’s saying. . . ) She has a little brain damaged daughter.

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Now, I want to ask you a question. What do you think? What do you think about giving a woman like this justice? Do you think that would be alright? Would you give her as much justice as you would a society dame? I want to ask you that. How many of you would give her the same amount of justice as you would a society figure? How about it, would you? (Man juror responding in background, can’t understand what he says) It’d be kind of hard for you to do, wouldn’t it? You know, I appreciate that because its hard for us to understand a woman like Mrs. Jones. None of us have had her experiences. None of us were born where she was born and had to do what she I s had to do to live. So its hard for us to understand that and I understand that from you sir. It was hard for me. Would you make room for the possibility, note the language again, I am not asking for a commitment, but note the magic language. would you MAKE ROOM for the possibility that she is entitled to the same justice as Nancy Reagan in this country? Thank you sir .

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Now, I guess I need to say one more thing. Do you understand that this Mother only brings this suit as the guardian of her baby and the moneys recovered in this case will be subject to the direction and supervision of the Court? Did you hear me? And that she isn’t going to be able to go out and spend it wherever she wants to spend it. It is for the baby. She brings it for the baby and so the suit really isn’t for this woman, with the star in her teeth (laughter) but the suit is for a little baby who will never walk and never talk and who will never play like other children. Can you understand that? Is that alright with you? Will you give that little child the same justice as you would to the child of the president’s wife?

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Thank you. (Thunderous applause)

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