Gerry Spence doesn't mind a little mischief now and then, especially if he can send a message with it. So last fall, when the Wyoming lawyer was preparing his $100 million libel suit on behalf of a beauty queen against Penthouse magazine, he enclosed something extra with a set of legal documents for the magazine's attorneys -- a silver bullet.
"It was just a joke, and i was really poking fun at myself," Spence says now. "The point was this: The Lone Ranger is here. I'm going to take care of you. This is my mark."
Penthouse's lawyers didn't laugh.
They were even less amused on Feb. 20, when the U.S. District Court in Cheyenne, Wyo., awarded Spence's client a record $26.5 million in damages. The suit charged that Kimerli Jayne Pring, Miss Wyoming of 1978, had been libeled by a fictional story in the magazine that told of the sexual exploits of a baton-twirling Miss Wyoming. The final settlement may be quite different -- the case will be appealed, and Penthouse attorney Norman Roy Grutman of New York promises, "That girl will never see one dime of the magazine's money." But, in the meantime, Spence is savoring his victory, and enjoying his prominence as the courtroom's hottest hired gun.
Spence first won national recognition two years ago by winning $10.5 million in damages from Kerr-McGee in the Karen Silkwood plutonium contamination case.But, at 52, Spence has been a Western legend for more than a decade. No stranger to big cases and big victories -- he claims he has not lost a trial since 1969 -- Spence celebrated last week's by flying to New York to meet the Eastern press.
A large man at 6 feet 2 inches and 220 pounds, Spence usually comes to court in a suede sport coat, cowboy boots and a 10-gallon Stetson. (He bought a three-piece suit years ago when his wife thought he should look more professional, but it rarely leaves the closet. "I'm keeping it around just in case I die," he says.) With his graying shoulder-length hair, wind-burnt skin and beaver overcoat, he looks a little like Jeremiah Johnson come down from the mountains in search of justice.
There's just enough P.T. Barnum in him so that he is rarely denied that. In the 1950s, for example, he helped a miner who had lost his leg in an accident sue a drilling machine manufacturer. Each day, he brought a small casket into court, but never told anyone what was inside.Those who wondered found out during his final arguments, when he opened it, and displayed his client's embalmed leg.
"It was a graphic way of showing the jury what the loss of a leg really means," he says. He made his point, and won his case. And, in addition to his substantial contingency fee, he kept his client's leg.
During the Penthouse trial, he strode over to publisher Bob Guccione -- who had made his dislike for Spence public and clear -- and gave him a baby-blue T-shirt with Spence's face on one side, and the words "Gerry Spence is a nice guy" on the other. Guccione threw it back at him. Spence got his laughs, but he was after something more.
"When he got on the stand, he was ready," Spence says. "He was mad as a bull." And perhaps a little out of control. Spence feels several of Guccione's answers, intended to mock him slighted the jurors as well.
In the wake of his Penthouse victory -- or at least the first round -- requests for his services have flooded his Jackson, Wyo., law firm. In the past, his firm accepted about one case in 30. Now the ratio will be even more dramatic. He has another major trial scheduled for April 1981, when the $130 million suit against the state of Utah by the widow of Mormon polygamist John Singer goes to court. Singer refused to send his children to public schools, which he feared would corrupt them, and would not let officials monitor their education at home. In one final confrontation, the suit charges state police shot Singer in the back.
Spence can't wait. "This will be one of the most important cases in the nation's history," he says. "We're talking about the right of parents to raise children, and the separation of church and state."
As happens whenever Spence tries cases, the courtroom will be packed with lawyers who have come to study his style and laymen merely hoping to catch some of his famous theatrics. s
Spence bristles at suggestions that he is the next F. Lee Bailey or Melvin Belli -- in fact, he denies having any models other than his two grandfathers, both of whom were Colorado farmers. He believes that what sets him apart from other attorneys are the cases he takes. He concedes that law has made him a wealthy man, but insists that he accepts clients only when he sees "some overriding social significance" -- only when they champion the cause of "the little man" against a larger, insensitive system.
"Sure, I'm a hired gun," he says. "Every lawyer is. But most lawyers are already bought and sold. No one owns my gun."
Spence concedes that this wasn't always true, and that some of his independence was forced upon him early in his career, when he worked in Riverton, Wyo. -- a town of 5,000 about 120 miles from Casper. After 15 years, none of the town fathers would talk to him; no doctor wanted to treat him. He had alienated them through suits.
"I had ended up as an enemy of the powers of the community," he says. "That's been the story of my life ever since."
To avoid such problems today, Spence will not take cases from his home town of Jackson, but back then he could not be so choosy. He worked -- and won -- for the highest bidders. Often, they were insurance companies -- that is, until Spence ran into a crippled man in a Casper supermarket who had lost insurance benefits due to his legal prowess.Spence returned to his office, and wrote his 40 insurance company clients that he would never represent them again.
Doubts about his work were complicated by crisis in his personal life. Spence recalls the period as one of depression, debauchery and, above all, disappointment in himself. "I was a womanizer," he says. "I was unhappy in my marriage. I drank a lot of whiskey." Strong stuff from the son of a president of the Sheridan Christian Temperance Society.
Spence looked for discipline and peace of mind within law, and sought an appointment as a judge, hoping that it would "force me to be what I thought a judge was -- a judicial monk."
But, for his neighbors, who had witnessed the drinking and the womanizing, his ascetic aspirations came a bit late. His appointment generated tremendous opposition, and he was rejected.
Confused and hurt, Spence moved to San Francisco to teach art, selling most of his possessions (among them, The Leg), and simply shedding the rest -- including his family. He lasted two months.
"I'm a Wyoming person," he explains. "Leaving it was like asking a duck to leave its puddle. I couldn't do it." He returned to Casper and the law. t
Then something happened to Spence that had never occurred before, and he hopes he never lives through again -- he lost three cases in a row. Emotionally, he was devastated, and he thought he was now a failure at the one thing he did well. Actually, he was only touching bottom. He emerged from this period with a new wife and sense of purpose. He has been winning ever since.
Today, Spence is more selective about his clients. He will not defend hired killers or drug pushers, and he will not represent corporations.
When Spence accepted the Penthouse case, he was indignant that the story had taken a "naive Wyoming girl who doesn't get the punchline to most jokes," and "changed her in the minds of millions from a champion baton twirler to champion [sex] artist." But his true target was not the story; he was after the magazine itself and its publisher, Guccione.
"The real issue was the entire history of Penthouse, and their attack against everything we revere and consider sacred just to create shock," he says. "I wanted to open up the case to show the whole thing. I wanted to show how it had developed to the point where a Wyoming wowan became the victim."
When he learned that Penthouse had $10 million in libel insurance, he raised the suit's demands from $7.6 million to $100 million. "If the award is less than $10 million, does Penthouse feel anything?" he asks. He was seeking punitive damages, and punishment was exactly what he had in mind.
Spence sees the Penthouse case -- and all trails -- as the chance to hand out a dose of frontier justice. And he is always eager for the next shoot-/out. He doesn't resent his characterization as a gunslinger; he savors it.
When Penthouses's chief attorney, Grutman, signed off the case because of a commitment to another trial in New York, Spence wondered whether he was running scared.
"He had his chance," Spence says, grinning. "Maybe he just didn't want to face the old Wyoming Warrior at the OK.K. Corral. I was saddened and disappointed, simply because I have a great deal of respect for him, and thought he would be a worthy opponent." (Grutman, who accuses Spence of self-promotion and turning the trial into a horse-opera, says Spence will get his chance. Grutman will handle the appeal.)
Spence compares being a trial lawyer with medieval jousting as a way of settling grievances. And as with jousters or gunslingers, losing would be equivalent to death to him, and he admits that he lives in constant fear of his next defeat -- as do all trial lawyers.
To lose a case after he has offered his best research, his sense of humor and human dignity, his passions -- to have the jury tell him that they, his peers, do not believe him -- would be "the ultimate rejection." For Spence, it would recall the days of alienation at Riverton. And a failed campaign for Congress in 1962. And the lost judgeship. And the depression of his personal turmoil of a dozen years ago.
The connection between these is strong in Spence's mind. He speaks freely about them, and his fear of losing. He is convinced that acknowledging his fear and other emotions has enabled him to communicate with juiries and judges -- and that this accounts for his remarkable record.
Spence treasures that record, but he wants to use it to seek a wider audience. He wants to address issues that go beyond most cases. He wants to make comments about how people get lost and used up in what he calls "the system."
He has no desire to hold public office. ("That would be like cutting my testicles off.") But the Penhouse case has offered him new forums, such as the New York trip. While in New York, he signed a contract for an autobiography and was interviewed for profiles in Esquire and Time.
But he was clearly a duck out of his puddle. His blue jeans and boots seemed out of place. He got food poisoning from some mussels. He felt almost nothing in common with his Wall Street colleagues.
Looking out of his window at the Hotel Berkshire on his last day, he shook his head.
"I really resent those a------- down there wearing cowboy suits," he said. "I really am a cowboy. I have a 35,000-acre ranch. Ihave 30 to 40 horses there. . . I have a right to wear the uniform."
Then he straightened his cowboy hat, said his goodbyes, shook hands all around, and headed West.