Wyoming

I spent the last five days in Wyoming at Gerry’s Spence’s Trial Lawyer’s College. Spence and I taught a seminar about my trial. Lawyers from all over the country came to hear about how we won the case and to hear about Gerry’s last trial. It was sort of strange to relive such a painful time of my life. At the same time, I continue to appreciate the greatness of Gerry Spence. We ended the seminar with me reading a portion of Gerry’s closing argument. There were few dry eyes in the room, just like during the trial. I’ve heard a lot of closing arguments in my life, and I can tell you that Gerry Spence’s closing argument in my case will go down in history as one of the greatest closing arguments ever.

Listening

Gerry Spence and I were close long before we actually met each other. Gerry had invited me to speak at the Trial Lawyers College, but my trial schedule stood in the way. Since then we have had a chance to talk a lot about trial practice, the trials we have been involved in and, of course, I had the unusual perspective of watching Gerry represent me against the Government.

Gerry and I are a bit of an “Odd Couple”. Gerry is like a trial Zen Warrior who likes to go around the mountain to get to the other side; usually if its in my way I will knock it down – he is a Siren gently calling the defense to ruin on the shoals of Anthemusa, whereas me – well FiegerTime has been compared to a visit by Genghis Khan or a Sunday ride with Gen. Sherman.

While we joke about the apparent differences in personalities whenever we talk, over the years we have recognized that we share much more in common. For example, we share the ability to listen – not just to hear but to listen. Believe me; if you knew Spence you would know the difference. Gerry’s hearing is about as sensitive as a moon rock, but he can listen more astutely than anyone I have ever known. (Sorry Gerry, I couldn’t resist.)

How many times do we “hear” something and make the mistake that it is something we have heard before? It’s because we don’t listen. Scientists tell us that our brains “fill in the blanks” or complete the sentence. It takes a conscious effort to really listen. The more familiar a person is to us the harder it becomes to “listen”. As lawyers, we often talk to a client who has suffered some horrible damage that we have come across in many other cases and there may be a tendency to say “I have heard this story before… I know what happened, now let me do my thing.” That would be a natural tendency and it would also be a mistake. You have to listen to every person carefully because while the damage may be familiar, HOW they experience it is always different and can have a tremendous effect on the case’s outcome.

The willingness and patience to actively listen to every person is not just important for the success of a trial lawyer – it is important for every relationship we have. Think about it. If we actively listen the least to the most familiar, what does that mean to our closest relationships? And these are the people who mean the most to us! We need to listen to everyone in our lives if we want to be successful, whether they are our children or clients. Listen and understand what they are saying to us even if we think we have heard the words before.

The ability to listen is not a genetic trait that comes automatically. It requires practice and most of all, effort. For example, I head what some would describe as the largest and most successful Plaintiff’s law firm in Michigan; we try cases all over the Country. I’m always being asked to speak or give interviews to the media. I am the father of 3 beautiful children ages 7, 5 and 1. In other words, I am super busy. At times it seems like I have 5 people talking to me at once. Because I am so busy I always remind myself that my success as a lawyer, father & as a friend depends upon my willingness to take the time and effort to LISTEN and to be kind.

The politics of fear

We just finished a long nightmare with the Government which began three years ago with a raid by nearly 100 FBI agents on my office and the homes of my employees. The agents raiding my law firm had Kevlar vests and extra clips of ammunition – shock and awe. Were they looking for terrorists? No. Their allegations were that we had violated Campaign Finance Laws. More armed FBI agents were assigned to investigate our contributions to the Edwards presidential campaign than troops had been tasked to find Osama bin Laden at Tora Bora. I’m not kidding! In the end, the Government spent millions of dollars to investigate less than $150,000 in contributions. Why?

The heavy-handed tactics of the Justice Department were calculated to produce one thing: FEAR. Bush justice hoped that fear would produce evidence so they threatened my employees – who were offered deals to buy their freedom through false testimony. Dozens of people were told “you are a criminal and you will lose your job, your family and go to jail unless you cooperate against Fieger.”

This brings me to a point: fear is a powerful emotion and a powerful tool.

Fear is the tool that Governments have used to get consent. We need look no farther than the past few years to passage of the Patriot Act and FISA as contemporary examples of how many Americans are willing to sacrifice liberty for the illusion of security. Fear is the companion of tyrants. The only defense to fear is the courage to act for something more important than ourselves.

“Fear is the companion of tyrants. The only defense to fear is the courage to act for something more important than ourselves.”

In my case, the Government wanted to take me out as an example to other attorneys. In a policy that originated in the White House, the DOJ began to target trial lawyers who were contributing to the 2004 Edwards Campaign (Edwards was considered by Karl Rove as the probable Democratic nominee) with the goal of suppressing contributions by prosecuting trial attorneys in highly publicized trials. I was a trial lawyer, a former candidate of the Democratic Party for Governor of Michigan and prominent advocate of Edwards as President. “W” had attributed his loss of the Michigan Primary in 2000 in part to me in a concession speech delivered at Lawrence Technological University. In other words, I was a perfect target for them – except for one thing: I wasn’t afraid of them.

I wasn’t afraid of them but I was afraid of what they could do to my friends and their families. In the end though, I was less afraid then I was outraged by their tactics. I was NOT going to let them get away with it. Not only my career and freedom were on the line, but also the livelihood of over 60 loyal employees and hundreds of their family members, not to mention the of safeguarding the electoral system and the judicial system.

It sounds like an exaggeration to consider my resistance as important for the electoral and judicial systems but this is how I thought of it. If we allow the Bush Administration to control who their opposition was (by intimidating contributors), then we were in big trouble. This was not an isolated case of payback or intimidation. I was part of a campaign being run by the DOJ.

A Medal of Honor winner once was asked if he was ever afraid. His response was that he was always afraid in combat. He said that real heroes were not people who had no fears; they were people who overcame their fears and did the right thing. I was fortunate to have the best trial attorney in the country representing me – my friend Gerry Spence. He is a man of great courage, maybe not so much for fighting the government as for being willing to have a trial attorney as a client. Together, we had the courage to fight and to prevail. I must admit that during jury deliberations I felt fear — loss of control of my destiny, and it was Gerry who got me through this tough time.

I am most proud of the fact that my partner, Ven Johnson, was also charged and faced the same penalties I did, but he never wavered once. He was charged for one reason only – to flip against me in exchange for a “deal”. He could have easily saved hundreds of sleepless nights and his career by taking their deal. He had a family to consider as well as his own career and freedom. The same was true for each and every one of the employees of my law firm. Some of them were scared to tears. Yet not one single employee agreed to falsely testify for the Government. I could not have been more proud of them. You see, these were ordinary citizens, secretaries, maintenance, couriers, etc., many with no training in the law, who overcame their fears and became heroes. In contrast, and very much to my embarrassment as an attorney, many of my fellow Michigan attorneys were cowed into silence. I guess lawyers are subject to the same fears as everyone else – fear for their livelihood, their freedom. I have always believed that attorneys were the first line of defense against tyranny. But in this case the courage of ordinary citizens shamed the silence of the legal community. In this case, ordinary citizens showed attorneys how to defend liberty.

We all have fears and it is a powerful, primal emotion. Fear helps us to survive. But when fear paralyzes us then it is debilitating. I chose to fight. I believe that what distinguishes real lawyers from those who simply have a law degree is the strength to overcome fear and act for the good of all.

How do you deal with your fear?