THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A TREATISE ON AMEKICAN ADVOCACY Based upon tbe Standard English Treatise, Entitled Hints on Advocacy, by Richard Harris. All new matter added being such as conforms peculiarly to American practice, tuns making the work more valuable to the practitioner and student of this country than the English edition upon which it is founded, while the best features of the English book hare been retained; more than one-half of the present volume being new and original matter. ENLARGED, COMPLETELY REVISED AND AMERICAM/ED. BY ALEXANDER H. BOBBINS. EDITOR OF THE CENTRALLAW JOURNAL. ST. LOUIS: CENTRAL LAW JOURNAL COMPANY. 1904. Copyright 1904, by CENTRAL LAW JOURNAL COMPANY. T ST. LOUIS : PRINTED BT CENTRAL LAW JOURNAL COMPANY. *> r * ? *> 6 In recognition of his pre-eminent exemplifica- tion of the principles of true advocacy, I am honored in the permission and opportunity given to me to dedicate this volume to the HON. FREDERICK W. LEHMANN, of the City of St. Louis, that incomparable advocate, excelling in all the graces of advocacy, uniformly courteous to witnesses and opposing counsel, unflinching in the discharge of his duty to his client, and upholding at all times the majesty of the law and the high ideals of the profession of which he is so worthy and acceptable a member. INTRODUCTION TO THE AMERICAN EDITION. To the weary, storm-tossed mariner, seeking the safety of the harbor, nothing is so welcome, so cheer- ing, so encouraging, as a glimpse of the rays of a friendly lighthouse or the warning sounds of the fog- horns. So, also, without stretching extravagantly the simile, there comes to the struggling professional man, buried in his books or overwhelmed, sometimes, by the drudgery and the dry details of his practice, a sense of buoyant hope and a thrill of encourage- ment as his eyes for a moment catch glimpses of the high eminences of his profession and behold, on the summit, men who, like himself, have struggled, even as he is now struggling, to reach those places where they now sport themselves at will, conscious of their power and enjoying the supreme confidence of the people. To reach this eminence is the advocate's highest ambition; to assist him to do so is the highest purpose of this volume. The profession of law sustains the most personal relation to the individual of all professional or busi- ness relations of life. The supreme characteristic of a great lawj^er, therefore, is not so much an expansion of the brain as an enlargement of the heart, a wide and generous sympathy, a nervous system carefully attuned to all the passions and prejudices in life, a IV INTRODUCTION. man that not only knows human nature, but has an appreciable quantity of human nature in him; a man, indeed, whom, when his client seeks advice, he finds not merely a cold-blooded jurist, a profound oracle of ^he law, but a man strong in his sympathies and full of resources for evading or escaping difficulty; re- sources that come not altogether from law books, but from the book of experience, which he has so dili- gently studied, both in his own life and the lives of others, a man who, when he stands before a court or jury, stands not in his own shoes, holding out his client at arm's-length so as not to be contaminated by him or by his affairs, but an advocate in every sense of that term, standing in the place of his client, taking upon himself the burden of his case, and en- wrapping himself so intensely in the feelings of his client that words burn on his lips as he denounces the deceiver, and tears start to his eyes as he relates the sorrows and griefs of his client under the heel of the oppressor; a man, indeed, who struggles in de- fense of the life, fortune and honor of his client as if it were his own. Such is the truly great lawyer, as distinguished from the jurist. The qualifications that go to make up his success cannot be learned out of the text-books of the law they come only to the man who flirts with human nature; who experiences, as far as possible, all the passions of the heart and all the hopes, pleasures and disappointments of life; who communes with the great exemplars of his profession and carefully studies their lives, their methods of work and their great efforts at forensic pleading. The work of Mr. Richard Harris, upon which this work is founded, is well known to the profession and universally recognized as the greatest book of its kind published. It had two defects: First, its ar- rangement was not logical, nor was the matter easily INTRODUCTION. T accessible; second, the American reader found much in it which was useless to him, and much that was not in it of which he very much desired to be informed. To overcome these two defects and thus make the vol- ume as near perfect as possible, we have made a thor- ough and systematic revision of this standard work. We have first gone through Mr. Harris' pages and cut out all useless matter and such as had reference only to the practice as it existed in England. Sec- ondly, we have re-read the pages and subdivided all the matter into short sections with appropriate sub- headings. Thirdly, we have taken these sections and arranged them in chapters, under significant titles. Fourthly, we have taken the chapters, as thus pre- pared, and arranged them in logical order. At this point, while we had culled the best of Mr. Harris' work, we had, as a result, but a meager contribution to the subject of American Advocacy. We, therefore, proceeded, first, to compose four new and entirely original chapters on themes which had received ab- solutely no attention in Mr. Harris' work and very little attention in any other work on the subject of Advocacy that has come to our attention. These four new chapters are as follows: Chapter I, Office Work and Preparation for Trial; Chapter XIII, Briefs, Ar- guments and Methods of Speaking; Chapter XIV, Legal Ethics; Chapter XV, Ethics Compensation and Advertising. We then took up the work, as thus completely outlined, subheaded and revised, and carefully reviewed each chapter and section, changing the language to more intelligible expres- sions of the rules of ad vocacy as applicable to Amer- ican practice, composing many new and entirely orig- inal sections, interpolating where the original text seemed to demand more explanation, and annotating VI INTRODUCTION. throughout with appropriate quotations and refer- ences. We believe that the work, as thus reconstructed and revised, will become an invaluable assistant to every lawyer, especially the young practitioner, serv- ing to keep fresh in their minds the great principles of advocacy, upon a proper observance of which all true success at the bar so vitally depends. ALEXANDER H. BOBBINS. St. Louis, Mo. TABLE OF CONTENTS. CHAPTER I. PREPARATION FOR TRIAL. Page. 1. Common Sense / .... 1 2. Knowledge of Human Nature ... 2 3. Consultation and the Writing of Legal Opinions . . 3 4. Listening to the Client's Complaint . . . 4 5. Sifting the Client's Story . . . 5 6. Arranging and Marshalling the Evidence Before Trial . 6 7. The Theory of a Case and its Importance ... 7 8. Discovering and Determining the Legal Outlines . . 10 9. Preparation of Pleadings ..... 13 10. Interviewing and Coaching Witnesses . . .14 11. Interviewing the Adversary Party Interrogatories . 16 12. What to do With Weak or Dangerous Points in the Line of Battle ....... 18 13. "Reading Up" the Law of the Case . . . .19 14. Preparation of Address to the Jury . . . . . 20 15. The Three Cardinal Requisites . .21 CHAPTER II. OPENING PLAINTIFF'S CASE. Page. 16. Confidence in His Case ..... 23 17. Narration not Argument in Opening Statement . . 24 18. Anticipating Defendant's Case . . . .24 19. Redundancy of Expression in Opening Statement . 25 20. Ornamentation and Illustration in Opening Statement . 26 21. Order and Arrangement of Facts In Opening Statement . 26 22. Moderation in Opening Statement .... 28 23. Length of Opening Statement . . . .30 Vlll TABLE OF CONTENTS. CHAPTER III. OPENING DEFENDANT'S CASE. Page. 24. General Rules . .32 25. When and Where to Open the Attack . . 3$ 26. Effect of Argument in Demolishing Plaintiff's Case . 34 27. Use of Plaintiffs Witnesses to Prove Defendant's Case . 34 28. Force of Eloquence in Defendant's Opening Speech . 35 29. Misstatements and False Representations by Defendant . 36 30. Arrangement of Facts With Regard to Probabilities . 3ft 31. Proper and Artistic Arrangement of Evidence . . 37 32. Answering Exaggerated or Improbable Evidence . 37 33. Effect of Defendant Praising His Own Witnesses . . 38- 34. Points of Rhetoric to be Observed by Defendant's At- torney . . . . . . . 3S> CHAPTER IV. EXAMINATION IN CHIEF. Page. 35. All of the Facts Must be Elicited . . . .41 36. The Fewest Possible Questions and Interruptions . 42 37. Proper an 1 Improper Questions . . . .43 38. Irritable and Unintelligible Questioning . . .44 39. Order of Time to be Observed in Eliciting Evidence . 45 40. Cross-Esamining One's Own Witness . . .46 41. Cautioning Witnesses About Rules of Evidence . . 47 42. Leading a Witness . . . . . .4$ 43. Unnecessary Rapidity and Repetition . . .48 44. Verbose Questions to be Avoided . . . ' .49- CHAPTER V. CROSS EXAMINATION. Page, 45. Knowledge of Human Nature . . .50 46. Dangers of Cross-Examination . . . .51 47. Good Temper of the Cross-Examiner . . .54 48. Prejudice, and Other Hostile Motives on the Part of the Witness to be Emphasized on Cross-Examination . 56 49. Manner, Style and Tone of Voice . . . .58 60. Asking Questions Liable to Call Forth Adverse Replies . 60 51. Cross-Examination of Evasive and Hostile Witnesses . 61 62. Some Miscellaneous Observations . . . .62 53. In Conclusion . . 53 TABLE OP CONTENTS. ix CHAPTER VI. UK EXAMINATION. Page. 54. General Principles ...... 65 55. Dangers of Re-Examination . . . .66 56. Where the Cross-Examination is Favorable to the Re- Examiner . . . . . . .67 57. Re-Examination Where the Cross-Examination is Un- favorable to the Re-Examiner . 67 58. Seizing Opportunities Offered by the Cross-Examination to Introduce Matter Otherwise Inadmissible . . 68 59. Re-Examination in Cases Where Character or Credibility of Witness Has Been Attacked . ... 68 60. Pursuing an Equivocal Reply of One's Own Witness Elicited on Cross-Examination . . .70 61. Repitition of Evidence in Chief on Re-Examination . 70 CHAPTER VII. SUMMING UP DEFENDANT'S CASK. Page. $ 62. General Considerations ..... 72 63. Right to Argue Upon Antecedent Evidence . . 73 64. Points of Danger . 73 65. Accuracy and Exaggeration . . . .74 CHAPTER VIII. THE REPLY. Page. 66. Value of the ' Last Word " . ..75 67. Securing Attention of Court and Jury . . .76 68. Flattering the Jury ...... 76 69. Display of Self-Confidence . . . 77 70. Personal Attack on Opponent or His Counsel . . 78 71. Effect of an Earnest and Quiet Manner . . .78 72. Order and Arrangement of the Reply . . .79 73 Attacking Opponent's Case First . . ; .79 74. Dealing With the Effect of the Testimony, Not the Tes- timony Itself ...... SO 75. Importance to be Attached to the Probabilities of the Evidence ....... 83 76. Conciseness in the Reply ... 84 77. The Use of Illustrations and Conventional Phrases . 34 78. Appeals to Passion or Prejudice . . . .85 X TABLE OR CONTENTS. Page. 79. A Temperate and Accurate Style . . . .86 80. The Peroration ...... 87 CHAPTER IX. CONDUCT OF A CRIMINAL PROSECUTION. Page 81. Order of a Criminal Trial ... .88 82. Prosecution Not Persecution . .90 83. Opening Statement Avoiding Argument . . .92 84. Opening Statement Avoiding Exaggeration . . 93 85. Opening Statement Conventional and Undignified Phrases ....... 93 86. Opening Statement Stating Personal Belief as to Guilt of Accused ....... 94 87. Opening Statement Interpreting the Indictment to the Jury ........ 94 88. Opening Statement Only Facts Bearing Directly on the Issue to be Stated ...... 95 89. Opening Statement Anticipating the Defense . . 96 90. The Evidence Order and Arrangement . . .97 91. The Evidence Overlaying the Case With Too Much Evidence ....... 97 92. The Evidence Police Testimony Not to be Implicitly Relied Upon ...... 99 93. The Evidence Concentrating Attack on Main Defenses of Accused . . ..... 100 94. The Evidence Taking Advantage of the Defendant's Croes-Examination ..... 101 95. The Evidence How to Break Down a False Alibi . 101 96. Closing Address Temperate Reply Versm "Earnest Appeal'' ....... 104 CHAPTER X. CONDUCT OF A DEFENSE IN A CRIMINAL TRIAL. Page. 97. The Young Lawyer Before the Police Magistrate . . 106 98. How Far Defense Should Show Its Hand Before Com- mitting Magistrate . . . . .108 99. How to Deal With a Defective Indictment . . . 110 100. What and How Many Defenses to Make . . .110 101. Opening Statement of Counsel for Defendant . . Ill 102. Methods of Objection to Evidence . . . .112 103. Emphasizing Mistakes of Inaccurate Witnesses . . 113 TABLE OF CONTENTS. xi Page. 104. Cross -Examination by the Defense General Rules . 114 105. Cross-Examination by the Defense ''Drawing Out" an Opposing Witness ...... 115 106. Cross-Examination by the Defense How to Handle Hostile Witnesses ....".. 116 107. Whether or Not Witnesses Should be Called or Case Sub- mitted on State's Evidence . . . . . 117 108. Closing: Address for the Defense Calling Attention to Absence of Motive on Part of Accused . . . 118 109. . Closing Address for the Defense Calling Attention to Motive of Prosecuting Witness . 119 110. Closing Address for the Defense Explaining Away Diffi- cult and Awkward Points in the Evidence . . 120 111. Closing Address for the Defense Emphasizing Good Character of Accused . . . . .121 112. Closing Address for the Defense General Considerations 122 CHAPTER XI. CLASSES OF WITNESSES. Page. 113. The Lying Witness . . 124 114. The Flippant Witness , . 129 115. The Dogged Witness . . .131 116. The Hesitating Witness . .133 117. The Nervous Witness . . 134 118. The Cunning Witness ... .134 liy. The Witness Partly True and Partly False . 135 120. The Stupid Witness |. . 136 121. The Semi-Professional Witness . 137 122. The Official Witness . 138 123. The Policeman as a Witness . . 139 124. The Truthful Witness . . .141 125. The Convict as a Witness . .142 126. The Private Detective as a Witness . 143 127. The Handwriting Expert as a Witness . 145 128. The Medical Witness ... . 147 129. The Vanity of Witnesses . . .149 CHAPTER XII. TACT AND TACTICS. Page. 130. The Meaning and Value of Tact and Tactics to the Advocate . ... . 151 131. Delicacy of the Proceeding to Impanel the Jury . 154 Xil TABLE OF CONTENTS. Page. 132. Ascertaining Motives Tending to Influence the Jury . 156 133. Determining the Leading Point in the Case . . 156 134. Proper and Improper Openings .... 157 135. What Witnesses Should be Called and in What Order . 159 136. Superior Value of Oral Testimony to Written Deposi- tions . . . . .' .161 137. Hovr to Take Care of the Weak Point in a Case . 163 138. Admissions by Counsel or His Client . . . 164 139. Calculating the Value of the Evidence or the Verdict of the Jury ....... 165 140. The Value of the "Last Word'' . . . .165 141. Adaptation and Arrangement of the Evidentiary Forces in the Closing Address ..... 166 142. The Court Overcoming the Preconceptions of the Judge 167 143. The Court Assuming that the Court is Ignorant of the Law ........ 167 144. How to Meet an Unscrupulous and Ill-Xatured Opponent 168 145. Under What Conditions an Advocate Profits by Delay . 168 146. Danger in Wandering from the Main Point . . 170 CHAPTER XIII. BUIEFS, ARGUMENTS AND METHODS OF Sl'KAKINU. I'age. 147. The Lawyer's Brief Its Requisites and Value . . 173 148. Addressing the Court Requisites and Value of Oral Argument ....... 177 149. Addressing the Court Discussion of Principle versus the Citation of Authority ..... 179 150. Addressing the Court Interruptions by the Court . 181 151. Addressing the Jury General Considerations . . 181 152. Addressing the Jury A Temperate Style Before a Jury . 184 153. Addressing the Jury Winning the Master Mind of the Jury ........ 185 154. Addressing the Jury -'Oratory" Before a Jury . . 186 155. Forensic Eloquence Its Value and Requisites . . 187 156. Forensic Eloquence Genius or Hard Work asaRequisite 188 157. Forensic Eloquence Mental Absorption and Concentra- tion . . . . . . . .191 158. Forensic Eloquence The Value of a Personal Inquisition 192 159. Forensic Eloquence How to Meet an Attack . . 194 160. Forensic Eloquence Discussion of Adverse Authorities . 195 161. Forensic Eloquence Order, Arrangement and Perora- tion ........ 196 162. Elocution Cultivation of the Powers of Speech . .199 TABLE OF CONTENTS. Xlil Page. 163. Elocution Imitation and Affectations of Speech . . 201 164. Danger of Achieving a Reputation as a Wit . . 202 165. Appropriate Physical Gestures and Facial Expressions in Speaking . ... 303 CHAPTER XIV. LEGAL ETHICS. Page. 166. General Code of Ethics . . . . .206 167. Code of Legal Ethics . . . . .208 168. Inviolability of the Code of Ethics . . . .209 169. To What Extent Professional Conduct is Affected by the Code , . . . . . .211 170. Methods of Enforcing the Code ... 213 171. The Advocate's Relation to The State General Consid- erations ....... 214 172. The Advocate's Relation to The Court General Consid- erations ....... 216 173. The Advocate's Relation to the Court Attitude Towards the Judge . . . . . .' . 918 174. The Advocate's Relation to the Court Attitude Towards the Jury . . . . . . . .219 175. The Advocate's Relation to the Court Attitude Towards His Own and Opposing Witnesses . . . 220 176. The Advocate's Relation to the Court Should an Advo- cate Practice in a Court in Which the Judge is His Near Kinsman ...... 2251 177. The Advocate's Relation to the Court The Impersonal- ity of the Advocate '. . 225 178. The Advocate's Relation to his Client The Supremacy of the Client's Interests . .227 179. The Advocate's Relation to his Client Is Truth a Higher Obligation .228 180. The Advocate's Relation to his Client Defending One Whom the Advocate Believes to be Guilty . . 231 181. The Advocate's Relation to his Client Becoming a Party to a Fraud, or Maintaining Harassing or Oppressive Litigation . . 233 182. The Advocate's Relation to his Client Use of Improper Methods or Influences . . 234 183. The Advocate's Relation to his Profession General Con- siderations . . 235 184. The Advocate's Relation to His Profession Attitude Towards Opposing Counsel . 238 TABLE OF CONTENTS. CHAPTER XV. COMPENSATION AND ADVERTISING. Page. 185. Compensation General Considerations . . . 238 186. Compensation Regulating the Amount of the Fee . 240- 187. Compensation Contingent Fees .... 242 188. Compensation When an Advocate May Contract for His Services on a Salary Basis .... 245- 189. Advertising General Considerations . . . 246 190. Advertising Legal Directories and Newspaper Noto- riety . . . . ... 247 191. Advertising Divorce Advertising . . . . 249 192. Advertising Politics as an Advertising Medium . . 251 193. Advertising Social Acquaintance and Club Life . . 252 194. Advertising Pretending to be Learned or Whelmed With Business . . . . . . 253 195. Advertising Employment of Runners . . . 254 196. Advertising "Buying Up" Causes of Action . . 256 197. Advertising Stealing Another Attorney's Practice . 257 198. Advertising Office Furniture and Modern Business Methods . . . . . . .257 199. Advertising The Final Test of Advertising Methods . 258 APPENDIX. AMERICAN ADVOCACY. CHAPTER I. PREPARATION FOR TRIAL. 1. Common Sense. 2. Knowledge of Human Nature. 3. Consultation and the Writing of Legal Opinions. 4. Listening to the Client's Complaint. 5. Sifting the Client's Story. 6. Arranging and Marshalling the Evidence. 7. The Theory of a Case and Its Importance. 8. Discovering and Determining the Legal Outlines. 9. Preparation of Pleadings. 10. Interviewing and Coaching Witnesses. 11. Interviewing the Adversary Party Interrogatories. 12. What to do With Weak or Dangerous Points in the Line of Battle. 13. "Beading Up" the Law of the Case.? f- ^ 14. Preparation of Address to the Jury. 15. The Three Cardinal Requi- sites. 1. Common Sense. We begin with a proposition, which cannot be seriously disputed, namely, that. Common Sense is the foundation of good advocacy.. A man may be brilliant as an advocate, and even suc- cessful, but the mere dazzle of his splendor will be no light to lighten the path of the inexperienced. On the contrary, it may mislead him by its fascina- tions, and conduct him into dangerous errors. A brilliant advocate may be bold and win by it; or,, i 2 AMERICAN - ADVOCACY. if he fail, may cover his defeat by masterly and striking efforts, whereas an ordinary person, fail- ing in his attempted imitation, would present but a clums}" appearance in his overthrow. Common Sense, invaluable in all human pursuits, is of the utmost importance in advocacj'. It is the one qual- ity without which all others are useless, and with which almost all others are superfluous. There is nothing about the trial of a case so un- usual or uncertain as to frighten the young advocate. It is a most prosaic proceeding in the great majority' of cases, and its sole object is to find out the truth in a certain stated transaction. The } r oung lawyer must, therefore, dismiss all the romantic dreams with which his imagination has encircled the dome of the temple of justice, and enter its gates as he would the precincts of a bank or counting house, with the determination merely to transact the business of his client in as short a time and with as little of the spectacular as possible. Indeed, the young attorney will find that, contrary to his expectations, a little -common sense and a large amount of self-confidence will carry him further in the trial of a case than the great mass of legal principles with which he has "Crammed his head. True, this mass of learning will be of great advantage to him at exceptional moments, and on appeal, but all the little confusing details of the trial of a case ore not to be settled by a recourse upon the authorities, but by the application of a little common sense and sound business judgment. 2. Knowledge of Human Nature. An advocate is .always dealing with human nature. It is not only the instrument he works with, it is also the field of his labors. Whether he measures his opponent, or estimates the qualities of the jui\y. or probes the .mind and character of the witness, a knowledge of PREPARATION FOR TRIAL. 3 human nature or human character is the key to suc- cess. To treat mankind as mere machines, as some advocates occasionally do, is to show an utter ab- sence of that knowledge which is often the last acquirement but alwaj's the first necessity of an ad- vocate. The worst thing a man can do is to treat the jury as though they were so many fools. And this mode of treatment is by no means exceptional. Young advocates, fresh from the glories of their de- bating societies, are prone to undervalue the com- moner knowledge of business men. It is a mistake of youth. Whatever may be their mental capacity, whether the advocate has a stupid or a wise jury, to treat them as unworthy his respect is probably to lose his case, and to discover himself a man of ver} r little wisdom. There are almost sure to be one or two shrewd men on the commonest of common juries, and inasmuch as they will lead the rest, the advocate must beware of making them his enemies, as he un- doubtedly will, if he lets them suppose, by word or manner, that he considers them of little understand- ing. This applies also to parties and witnesses. The advocate, therefore, should closely study hu- man nature and endeavor to adapt himself to all con- ditions of men, so as always to be attractive and winning, never repellant. ;>. Consultation and the Writing of Legal Opin- ions. The giving of legal advice is one of the most important and lucrative features of the advocate's office work. Sometimes this advice is oral; more often it is in the form of a written brief. An at- torney should never permit himself to deliver an opinion oft'-hsind on any point of law about which he lias any doubt. The best practice is to request the client to return again when the attorney will be pre- pared to furnish him with an opinion based on a 4 AMERICAN -ADVOCACY. thorough investigation of the authorities. Often young lawyers look upon it as a confession of weak- ness not to be able to decide upon a given legal prop- osition the very minute it is stated by the client. On the contrarjr he will often find clients who will politely request him to look the question up and be *ure about it. No lawyer can possibly carry all the law in his mind, and most clients are aware of this fact, so that an immediate expression of opinion on the part of the attorney not only cheapens his ad- vice, but insinuates a suspicion into the mind of the client that the attorney is trying to shine in a false light. It also makes a client feel, especially where such impromptu advice has to be recalled on more mature reflection, that the attorney is a man that acts impulsively and not considerately, and there- fore, not a safe and absolutely reliable counsel. 4. Listening to the Client's Complaint. - - The earliest intimation the practitioner will have of his cause will usually come from his client, who seeks his advice either as to the advisability of bringing suit or of maintaining a defense. Even the most un- couth and unlettered men have the faculty of impart- ing their version of a matter more clearly in their own rambling way than by answering an attorney's questions. The}" have turned it over repeatedly in their minds, and will tell most, if not all, of the salient facts, if permitted to take their own time and their own method. Hence, the lawyer must be pre- pared to sit, it may be for hours, listening carefully and with sympathy to a voluble account (sometimes interspersed with imprecations or with tears), and out of the mass of chaff he must extract the grain. When the client has told all he can remember and has fairly emptied himself of his case, the advocate may then catechise him, sifting his statements and PREPARATION FOR TRIAL. O cross-examining' him as vigorously as though he were his antagonist. Thus, he may often discover important facts which he has either neglected to mention or has intentionally concealed. 5. Sifting the Client's Story. The purposes of this severe examination are, first, to ascertain if there is a probability, upon legal grounds, that a re- covery can be had if suit is brought; and second, to determine whether it is advisable, under all the cir- cumstances, to institute legal proceedings, assuming the suit would be successful. To learn the first point the attorney will have recourse to his store of technical knowledge, and if he is at all in doubt he will frankly state that he needs time for considering the question and investigating the authorities. In determining the advisability of bringing suit, as a matter of policy he will seek with all proper regard for his client's feeling to find out from him the situ- ation of his family or business affairs, and whether the institution of an action would in any way jeopardize his more important interests. He will particularly inquire respecting the solvency of the party against whom suit is to be brought, that he may not waste his own and his client's energies in attacking a man of straw. If the client be sued and consult his at- torney as to his defense, the same minute examina- tion will be necessary, for it is a common trait among litigants to believe they can prove their case without difficulty, but that their adversary will be hampered by a failure of evidence at every step. The client will often undertake to provide ample proof of each fact material to his case, but the advo- cate is never to rely upon that assurance. This sift- ing process has a further value; not infrequently the client has reasoned out a plan of action or a series of arguments which will prove of real value to his 6 AMERICAN' ADVOCACY. counsel in fighting the battle. But the counselor will never forget that he alone is the commander-in- chief, and though he stand willing to avail himself of wise and practical suggestions or sound argument offered by his client, he never allows the legal opin- ions of a layman to override and direct the actions of a professional adviser. 6. Arranging and Marshalling the Evidence Before Trial. After the witnesses have been thus sub- jected to examination and study, it will be advisable to write down on separate sheets of paper what each one will testify to, and indorse this abstract with the name of the case and of the witness. These are kept together, and will prove of inestimable value at every stage of the litigation: for it frequently happens, after a lawyer has filled his mind with his case, there is a postponement until some remote time, and in the interval his memory loses its first vivid impressions of nice points and slight inci- dents. Where the advocate's evidence consists of docu- ments, it is of prime importance that he see the document itself, and not trust to another's recollec- tion of its contents. His personal inspection may reveal erasures and alterations which must be explained, fatal ambiguities or ruinous clauses and conditions. It will greatly assist him in mastering the facts to visit the place in which occurred the accident, crime or transaction in question. The judge and jury will be ignorant of the situation, and his own observation will enable him to be far clearer and more accurate in depicting the scene than wil . the study of diagrams and the reports of witnesses. After the advocate has marshalled all the facts which he has gleaned from men, documents and local- ities, he will crystallize his information by reducing PREPARATION FOR TRIAL. 7 the whole to writing in narrative form, so that any- one, by reading his abstract, may derive a distinct and adequate idea of the case. 7. The Theory of a Case and Its Importance. The theory of a case is that particular line of reasoning of either party to a suit, which aims to bring together certain facts of the case in a certain order or logical sequence and interrelate them in such a manner as to produce in the mind one definite result or con- clusion, which the advocate believes entitles him to the judgment or decree of the court under the appli- cation to such result or conclusion of certain well known principles of law. 1 The theory thus con- structed lies at the foundation of the advocate's case. His pleading outlines his theory; his evidence fills it in and gives it shape; and the principles of law wljich he cites must support the result which his theory has produced. The law insists that every case proceed upon some definite theory. Although, under our modern codes, pleading has been made so simple a matter as almost to encourage negligence, nevertheless courts draw the line at haphazard and speculative litigation. A party cannot make indefinite and uncertain allegations in his pleadings and then enter a trial aimlessly, per- mitting the evidence to carry him where it will, and finally insist on one or the other of the different phases of his case which seem to him at that time most desirable. Moreover, while a failure to determine a theory at all or a mistake in selecting a proper theory is not necessarily fatal, it always injures a case. Some- 1 DeQuincey says: "A theory takes a multitude of facts, all dis- jointed, or. at most, suspected of some inter-dependency; these it takes and places under strict laws of relation to each other." 8 AMERICA!^ ADVOCACY. times a trial court will assist the young advocate, who comes into court without any definite theory as to his case, to find one, by inquiring', upon objection of the other part} 1 " to the introduction of certain evi- dence, what the advocate is "trying to prove by that witness," and then as to "what bearing that evidence will have upon the case." In his answer to these questions, an attorney who comes into court with- out a well constructed theory of his case, is forced to declare one on the spur of the moment or seri- ously affect his chances of a verdict. 1 More important in some respects, probably, than the construction of a theory, is the determination of an accurate hypothesis on which to construct the theory. Uberweg defines an hypothesis as "the pre- liminary admission of an uncertain premise which states what is held to be a cause in order to test it by consequences.'' The hypothesis, therefore, pre- cedes the theory, and upon a proper hypothesis depends the success of the theory. The first thing, therefore, which an advocate is to do, after having secured a full statement of the facts from his client, is to fix upon a proper 1 ' ; The same case," says Mr. Elliott, "may be gained on a sound theory that would be lost on a bad one. One advocate may take the same facts and secure a verdict, while another will bo unable to frame a theory that can be successfully maintained. A case is given by Mr. Bishop in which goods were brought into this country in violation of our revenue laws; they passed the custom-house officers under a permit genuine in form and signature, but procured by bribery. Counsel to whom the revenue officers first applied for advice searched the statutes, and, finding no provision applying to the particular case, advised that no prosecution could be maintained. Another counsel took up the case and secured a verdict. His theory was that the case was the ordinary one of smuggling, and so he put it to trial. When the permit was offered it went in evidence, but was assailed and overthrown on the ground of fraud. The mistake of the counsel first consulted was in framing the theory of the case.'' Elliott's Work of the Advocate, p. 76. PREPARATION FOR TRIAL. 9 hypothesis. Revolving in his mind the various explanations suggested to his mind of the occur- rences related to him by his client, the advocate should finally determine on the one which fits in most accurately with all the facts in the case, and on that hypothesis or explanation construct his theory, weaving into the fabric all the evi- dence which goes to sustain the hypothesis thus selected, and ignoring or discarding, for his own purpose, at least, all facts in the case which would seem to support a different hypothesis. 1 For these 1 Thus, take an actual case, which is now pending in one of the courts" of the country, but not yet tried or decided. A client comes to his attorney with this statement of facts: A., the client's wife, carried certain insur- ance on her life, payable to her husband. She had several small chil- dren whom she loved. On July 1st, she contracted a fatal illness, and, on the 22d of.thesarne month, she died. She had often said, during her illness, that she wanted the money due on the policy of insurance to go to her children. After her death it appeared that, on the 18th of July, she had signed an application for a change of beneficiary, giving the proceeds of the policy to her sister, her only living relative, instead of to her husband. There was evidence that the wife and husband, as well as the wife and sister, were not on friendly terms. A witness, whose name was subscribed to the application for change of beneficiary, said she was not present at the signing, but signed the application at the request of the sister. The sister was in the sick room almost constantly, but seldom alone. The physician who attended the wife said that, on the 18th of July, the wife was so delirious and weak as to be utterly incapable of signing her name. The signature on the application, how- ever, resembled very closely that of the wife, although the application is filled in by another hand. The sister proved up the death and was paid the face of the policy. These were all the facts. It is evident that the attorney in this case was compelled to look around to discover an hypothesis on which to reconcile all these facts before he could proceed a single step What one shall he take? First, the wife may have signed the application in a (it of jealousy or anger at her husband. Second, she may have signed the application because of the undue influence of her sister. Third, she may have signed the application in blank, requesting that it be tilled in making the insurance payable to her sister as trustee for her children. Fourth, she may never have signed it at all, and some one has committed a forgery. Fifth, if the latter hypothesis is correct, the mind at once fixes upon the sister as the one having sulll- 10 AMERICAN ADVOCACY. latter phases of the evidence the adversary will undoubtedly find convenient uses in establishing an alibi or other parts of his defense. 8. Discovering and Determining the Legal Out- lines. The advocate will now address himself to the law applicable to the facts of his case. Much time will be saved by constructing a written outline of legal propositions involved and considering these strictly in order. The advocate's desire will be to select one branch of the case which appears pecu- liarly attractive, and make extensive preparation upon it, leaving his forces dangerously exposed at another and less interesting point. The only safe plan is that pursued b}' a general who arranges his hosts for battle; each part of the line must be well defended, there must be no gaps. Another seduc- tive temptation will be to investigate the law on some subject very similar to the one the advocate has in hand, yet not precisely his question. The advocate must restrain the mind and command it to- investigate the very point which he has noted in his outline. 1 cient interest to commit the crime. To the thoughtful student various facts (more or less numerous) can be found that will coincide with each hypothesis. The attorney for the husband chose the last two hypotheses as the basis of his cause of action. The insurance company, in defense, adopted the first one suggested. Each party then searched for and appro- priated all facts in the case that supported their respective hypotheses, and with these elements constructed their respective theories. Suppose that, in addition to this civil action, an indictment is found against the sister for forgery. The state, of course, finds its hypotheses- in the fourth and fifth suggestions. The sister, in defense, might adopt either one or all of the others as a basis of defense. 1 For example, if the advocate is inquiring whether a railroad com- pany which has received goods for carriage from one who has stolen them, may detain them from the rightful owner until the transportation charges are paid, the mind by a natural perversity will tend to discover the law governing livery stable keepers, warehousemen, innkeepers and- PREPARATION FOR TRIAL. II But perhaps the advocate's powers are not accus- tomed to this kind of thinking; how is he to know what points of law to investigate and what is applica- ble to his case? Two species of preparation every lawyer expects to make: a general preparation result- ing from his investigation during student days, and from those minute particles of law which he has since learned, line upon line, precept upon precept, here a little^ and there a little, out of his reading y his conversation with lawyers, attendance at court, and from actual experience in practice. Besides this stock of general working knowledge, which should grow larger and richer with every passing }'ear, is the special preparation required for each case. None but the shallowest of lawyers will ever trust to his general knowledge when a legal battle is to be fought. Hence, to discover the law points involved in his suit, the advocate should summon the results of his general preparation; and in the light of all he knows, see how the facts impress him cis a lawyer, not as a philanthropist, a politician or a citizen. Where do the strong propositions lie? Where are the weaker? What is the natural, the rational and common-sense mode of looking at the case? What legrJ proposi- tions are instantly suggested by the facts, as applica- ble to the cause? What are the peculiar features of the case which especially appeal to the legal sense of justice? Do these special features lead the mind toward further propositions? Are these proposi- tions sound or fallacious? Which of them will appeal most strongly to a court? By thus catechising him- n ,..:,.!,,]. \vho detain stolen property under similar circumstances, until their charges are collected. These similar cases. may subsequently be valuable by way of analogy, but the advocate's business now ia to learn what rule governs railroad companies, and he is to bend his mind to that one task with a grip of steel. 12 AMERICAN -ADVOCACY. self the advocate's faculties will be roused into action, and points and arguments will come trooping to his command. 9. Preparation of Pleadings. A subject of the importance of this would seem to demand a separate chapter. But it is hardly necessary for our purpose, especially in view of the large number of text books on the subject of pleading, both at the common law and under the code. The attorney who is well versed in the law of his case and familiar with the general rules of pleading, will usually find little difficult}^ in preparing his pleadings. But to the young attorney the most prof- itable possibly of all studies, after leaving the law school, is that of the Code of Procedure and the Form Books of his own state. Most of the technicalities of pleading and practice will be mastered in this manner. 1 As far as pleading affects advocacy, that is, the influence it may exert, beyond the mere presentation of the cause of action in winning a verdict, three rules might be remembered with profit. First: The state- ment of facts must be clear and succinct. Nothing makes such an impression on the jury, not even the opening statement of counsel as a well worded peti- 1 A most useful suggestion was once made to the writer by an attorney of St. Louis. The suggestion was this : During the first years of a lawyer's practice, when time is not so valuable an asset as it is later in his practice, he will make a most profitable investment if he undertake to make a study of the files of old caset stored away among the archives of the clerk's office. Here will be found forms for pleading, motions, answers, depositions, stipulations, appearances and decrees forms, too, that have been tested in the heat of actual controversy. A note book at hand to take down memoranda of the best illustrations of the different forms used under various circumstances, together with a persistent, thoughtful and enthusiastic examination, will save the young attorney many a mistake in p'eading and practice, and arm him with the con- fidence of an older ( ractitioner. PREPARATION FOR TRIAL. 13 tion, one not so clouded by legal phraseology and clumsily stated facts as to make the effort of the jury to follow it a matter of too much exertion, but one which interests the jury from the start, and carries them along without any apparent effort on their part until, at the close, they see the advocate's case, from his standpoint, as clearly as he does, and in a measure partake of his enthusiasm. Second: Just enough facts should be stated to constitute a cause of action and make the whole transaction as clear as possible from' the advocate's point of view. It is VQYJ bad practice to introduce all or even a great part of the evidence in the petition, not merely because it is more dangerous from the fact that it makes the proof more difficult, and offers the adversary more oppor- tunities for preparation, objection and delay, but because of its effect upon the jury. A jury should not be told the case in its most favorable light in the petition; otherwise, a slip in the evidence may disappoint the first favorable impression which the case made upon them. On the contrary, the evidence should unroll before them a constant succession of surprises, confirming and increasing the favorable impression which they first received from the reading of the petition. Third: The advocate should never demand exaggerated damages. This is a common fault of some attorneys who think to overwhelm the jury in their favor by such highly colored statements of the effects of the defendant's wrongful conduct, when as a general rule the jury is only disgusted by what they consider an ill- disguised attempt to humbug them. It is useless to create such an impression only to be compelled after- wards to overcome it by the sheer strength of evi- dence. Nobody can tell what goes to make up the mind of the ordinary juror in deciding a closely con- 14 AMERICAN, ADVOCACY. tested case; and it is, therefore, always important to watch every opportunity to create a favorable impression, and avoid anything calculated to arouse a .spirit of resentment or of contempt. 10. Interviewing and Coaching Witnesses. Next in importance to consulting the client is interviewing the witnesses. To best accomplish this the attorney must know something, of them before they are ap- proached. Is their attitude 'in the case hostile or friendly to his side? Are they under any strong inducement to conceal facts or to distort and color them? Are they to be relied on implicitly or must we verify and corroborate all their statements? Are they liable to be tampered with by the adversary, or are they proof against all corrupt influence? What has been their moral history? These, among other facts, should be considered before the witness is approached, to the end that the advocate may secure from him the most and the best proof he is capable of giving. What the manner of that approach will be must depend upon the character of the witness. If the latter is thoroughly reliable the advocate may explain, with some degree of fullness, what his posi- tion is, but never to such an extent that, if the wit- ness prove false, he can damage his case by betra} 7 ing the advocate's plan of action to the enemy. In his dealings with witnesses the advocate will recall that most persons dread to testif} 7 in court, and among women this reluctance is almost univer- sal. If it is evident that a particular person knows more than he will tell, and keeps silent in the hope that he ma} 7 escape the ordeal of testifying, it will be necessary to argue the matter with him in a spirit of friendliness, and seek to overcome his fears or his prejudices by legitimate appeals to his interest and his sense of right and justice. The co-operation of PREPARATION FOR TRIAL. 15 an acquaintance may be secured to induce him to divulge what he knows. If all expedients fail, and the advocate is confident he will not disclose the facts, it will generally be safest not to summon him as a witness, for his stubborn silence upon the witness stand will detract from his side of the controversy. On the other hand, the advocate may find his wit- nesses suspiciously talkative; they know too much. He will, therefore, proceed with them, as with his client, sifting their knowledge, cross-examining them as his antagonist will probably do at the trial. He will have them narrate the details of the events about which they seem conversant. "Where did you stand when the accident occurred? Who else was there? Where had you been? Where, after- wards, did you go? Was it daytime or dusk? To whom did you speak?" etc. Especially, the attorney will seek to discover what are the sources of the wit- ness' knowledge, whether it is derived from hearsay reports or third parties, or from personal observa- tion, and if they are stating what they actually saw and did, or merely their conclusions and opinions, founded upon the facts perceived. The attorney must warn his witness against a very common trick practiced by some lawj r ers. In endeav- oring to discredit the testimony of a witness they will often ask him on the witness stand whether he has consulted with the attorney of the party in whose behalf he has testified. The first impulse of a wit- ness is to answer, no. This is so apparently false in most cases that a jury is not generally inclined to believe it. The witness should be advised to answer such a question very emphatically in the affirmative, as such an answer can by no possibility injure the case of the party for whom the witness testifies 16 AMERICAN , ADVOCACY. and a very emphatic and abrupt answer often embar- rasses the attorney who attempts the trick. The phrase "coaching a witness" does not at the present time appear to be an attractive term. But, given its proper significance, there is nothing ques- tionable about the process. Coaching a witness does not mean manufacturing evidence to put in his mouth. On the contrary, it means deciding beforehand, how much of the witness' story shall be told on the stand, and the manner in which he is to tell it. Its purpose is to cut out all irrelevant matter and thus make the story of the witness stand out as clearly and force- fully as possible, and to prepare the witness for the tricks of counsel on cross-examination. The main thing to impress upon the witness, among other things we have already stated, is that, when upon the witness stand, he speak out the answer unhesitatingly, with animation, and in a clear and distinct tone of voice. Some lawyers advocate ,the wisdom of taking the affidavits of witnesses of whose fidelity or freedom from influence they are not certain. In case such witness should afterwards be prevailed upon to deny his former statements to counsel his affidavit will not only destroy his subsequent testimony on trial, but cast suspicion on the entire case of the adversary who called him. 11. Interviewing the Adversary Party Interroga- tories. The attorney will not rest satisfied with inter- viewing all his own witnesses, but will try to see the adversary party and those whom he expects to call. This is liable to be a barren inquiry; still, valuable hints are sometimes dropped which will put him upon his guard against surprise. ,In the latter investigation he should remember that it is unworthy of his pro- PREPARATION FOR TRIAL. 17 fession to deceive the person interviewed into believ- ing he is conversing with an ally or a friend. It is entirely legitimate, however, to study his demeanor and to question him closely in order to decide how he is to be dealt with on the trial. Whether it is of any value to submit inter- rogatories to the adverse party, as is often done, is a matter of much doubt. In the great ma- jority of cases, it is too much to expect that an adversary will deliberately expose the weakness of his own case by answering in the quietude of his own office, and under the direction of his own counsel, leading questions propounded by the advocate on the other side. Moreover, the practice is sometimes a dangerous one. An advocate may very easily lay bare the weakness of his own case while he is seeking that of his opponent. His earnest and repeated ques- tioning on certain points tends to show that he is on a fishing expedition, and is an implied intimation that he is ignorant of, or has not sufficient proof of, these particular features of his case. Such questioning also, if carried too far, prepares the witness in advance for cross-examination on trial. A cross- examination that can be prepared for months ahead will, most generally, be barren of results. Interrogatories, in order not to be dangerous to the party asking them and possibly valuable, should be very brief, cover all the various topics of the case, so as to disarm suspicion and lay absolutely no emphasis on any particular phase of the examination. In such case a defendant may so far forget himself as to enter into long explanations of the short and diffi- cultly answered questions thus submitted. If lie does, the advocate will be furnished, if not with additional evidence, at least with enough serious 18 AMERICAN ADVOCACY. admissions on the part of his opponent to embarrass the latter very much on cross-examination. Answering interrogatories will seem from what we have said to be a simple matter. So it is, if care is observed in certain particulars. Firxt: The questions propounded should be answered briefly. The advo- cate should not go at all into details or show in the slightest degree his plan of defense. Second: Every question should be answered with candor , and accuracy. Nothing is so fatal before a jury as evasion or attempted evasion, unless it be deliberate inac- curacy of statement. Third: The advocate should not argue his case with his opponent in answers to interrogatories propounded, nor show the slightest interest or feeling in respect to any particular ques- tion; for, in the former instance, he plays his best cards in a preliminary game that does not count, and, in the latter case, he betrays his weak points to the enemy before the battle, and may expect repeated and redoubled assaults in that direction. Fourth: Every answer given must stand the test of cross- examination. Nothing is so embarrassing and pro- voking* as to find oneself tied up on the trial of a case by unnecessary and equivocal statements made in answer to interrogatories submitted before trial. 12. What to do With Weak or Dangerous Points in the Line of Battle. Should a point which tells against a party be ignored by him in preparing for trial? Emphatically no. First: Because, the judge or jury will not ignore it. To them this point will stand out as a great obstruction, and conceal all the other phases of the case, and the disappointment will be keen if the advocate fails to remove it. His failure in this regard will also raise a suspicion of conceal- ment against him, beside which there is no more PREPARATION FOR TRIAL 19 damaging impression which an attorney can arouse in the minds of the jury trying his case. Seooiid: Because such a point is not often absolutely insur- mountable. It may not, possibly, be successfully contradicted, but its value as evidence may be very materially diminished by a clear explanation and a bold assault upon it. Evidence of surrounding circumstances, also, may serve to obscure and cover up the point so that it no longer stands out so prom- inently in the mind of the judge or jury. It must also be remembered that these dangerous points, so called, are often based solely on circumstantial evidence, and evidence of that character, however strong, is not held in favor by juries. Let the advo- cate, therefore, approach it confidently and without fear or concealment. 13. Reading "Up" the Law of the Case. Up to this juncture the advocate's examination of the law governing his suit has been superficial, and has been guided by his general preparation be- fore referred to; now, he should begin to read up on his case, holding his mind open to new impressions and suggestions. Here he will expe- rience one of the keenest delights of practical legal study, when some chance remarks of a court or the facts of a reported case suddenly send a flash of light upon his inquiry, and he sees a bright, fresh argument of which he had not even dreamed. The attorney should first read his own state reports and statutes, for many young lawyers who have pursued their studies at an institution where reports of one particular state are most frequently cited, acquire an undue friendliness toward such reports, and are reluctant to have recourse in the first instance to those of their own jurisdiction, preferring to begin their researches among cases far from home. In his- 20 AMERICAN ADVOCACY. investigations the advocate should try to forestall his adversary's arguments, and be prepared to meet and match them, since he is a poor lawyer who can see only one side of a case. Finally, when he has exhausted the law in his researches and has caught and chained every legal argument which the facts suggest or afford, he should cull out a few of the strongest, clearest and most convincing ones and throw his entire weight upon them, avoiding the folly of elaborating a long, involved argument in which he clutches at every straw and splinter that floats within his reach. The advocate should let all hair-splitting and scholasticism go; he should give forth great masses of light and strive for strength and ~ clearness, not prettiness; conviction, not inge- nuity. 14. Preparation of Address to the Jury. Thus far we have dealt with the argument on the law side of the controversy. Much the same method will be pursued in discovering arguments by which the advocate seeks to prove to the jury the existence or non-existence of some fact in dispute. He will never :forget that he is addressing unlearned men, men who :are unaccustomed to reason deepl}' or to hold a long train of arguments in their memories. What they can comprehend must be simply and plainly told. The advocate should ask himself what arguments would appeal to the ordinary- man, and use these rather than others which are fanciful and abstruse. The advocate should speak with a plan in his mind. Nothing is easier, for there are three great divisions under which ma}' be included all he cares to say in an .argument upon the facts before courts or juries : First: the right (the law of the case). Second: The nirong (a discussion of the evidence and what it proves). Third: The remedy (what verdict ought the jury to PREPARATION FOR TRIAL. 21 render in the light of the law and the facts)? Thus every case may be argued according to the syllogism the major premise being "the law," the minor premise "the evidence," and the conclusion "the redress." The form of the whole argument is as follows: "The rule of law is this: the facts of the case are these, and bring it within the rule stated ; therefore, the plaintiff is entitled to recover." Then let the advocate shut himself in his room and speak his entire argument aloud to an imaginary jury, exactly as he intends to deliver it in open court. 15. The Three Cardinal Requisites. In all his labors, the advocate should observe three cardinal requisites: method, concentration and enthusiasm. Without the first, his efforts will be spasmodic and abortive. He will feel that he is accomplishing little, and discour- agement and listlessness will sap his strength. But where his work proceeds according to system, it acquires a momentum carrying it on to its consum- mation, while the energy expended is proportionately conserved. To the task in hand the lawyer must bend his attention with an iron determination. For him, nothing in the world is so important as the work before him. Into it, he must put his whole being. With this strain of the mind must co-operate an enthusiasm for the undertaking which is proof against interruptions and undaunted by difficulties. It must buoy his spirit and quicken his wit, until he beholds, lying completed before him the task from which he shrank, but which has yielded to his perse- verance. Never for one instant, will he indulge the fatal desire to perform first, that which is easy and agreeable, leaving the stern, hard problems to await a more convenient season. Intricate or easy, repel- lant or attractive, each will be solved as it presents 22 AMERICAN ADVOCACY. itself, zealously, systematical!} 7 and with unwavering purpose. 1 1 When asked his rule of work, the late Lord Russell answered as ollows : "If you ask me to reduce the common habit of my life to ormula, I will tell you that I have only four rules to guide me in pre- paring my work first to do one thing at a time, whether it is reading or eating oysters, concentrating such faculties as I am endowed with upon what I am doing at the moment; second, when dealing with com- plicated facts, to arrange the narrative of events in the order of time. My third rule is never to trouble myself about authorities supposed to bear on a particular question until I have accurately and definitely ascertained the precise facts; and, lastly, I try to apply the judicial fac- ulty to the case before me, in order to determine what are its strong and weak points, and to settle in my own mind on what the issue depends." CHAPTER II. OPENING PLAINTIFF'S CASE. 21. Order and Arrangement of Facts' in Opening State- ment. 22. Moderation in Opening Statement. 23. Length of Opening State- ment. 16. Confidence in his Case. 17. Narration not Argument in Opening Statement. 18. Anticipating Defendant's Case. 19. Redundancy of Expression in Opening Statement. 20. Ornamentation and Illus- tration in Opening State- ment. 16. Confidence in His Case. The first thing for the advocate to do in opening his case is to impress the jury with the idea that, at least, he believes in it himself .T|his may seem almost too obvious a truism to mention, and no doubt it is present to the mind of every advocate. We all know it, or believe we do. The youngest student will say: "Of course you must make the jury believe that you think your case is an honest one. Everybody knows that." Granted; but it is not the simply knowing it, but a very different thing, viz., the making the jury believe this. There are those whose manner is such that they scarcely ever seem to believe in their own case. A want of seriousness has characterized their tone and lan- guage. This is a fatal blunder of style. There is nothing which a jury so much detests in the person addressing them as an air of jaunty frivolity. 24 AMERICAN ADVOCACY. ^ 17. Narration Not Argument in Opening Statement. What is really required in the plaintiff's opening of his case is a simple well- told narrative of the facts. The fewer words the better, and the less argument the more likely is a plaintiff's statement to be be- lieved. It must seem a strange story to the jury if it requires arguing upon before the other side have had a syllable to say in contradiction! An advocate will sometimes in his opening, as though he were stumbling* among improbabilities at every step, assert that the plaintiff was on his proper side of the way, and that he will convince them that that must have been so, because, etc., etc. This is as bad as an opening can be, because it casts a doubt at the very commencement upon the truth of his own story. The best reason for the jury's believing the plaintiff's story before contradiction is that his witnesses swear to it. When the other side shall have brought facts in conflict with it, the plaintiff's time of argument will have arrived, and his arguments will have a freshness which, if used before, they would not possess; they will work as if their edge had not been taken off by a clumsy exhibition when there was nothing to cut. When there is no grist the miller stops his mill. Another advantage to the plaintiff from not arguing too soon is that his adversary is not able to turn his arguments against him, nor adapt his own in accordance with the plaintiff's theories. At the expense of repetition, this point is impressed upon the student's attention, because it is of the great- est importance; a good cause may be thrown away by a weak and indiscreet opening. 18. Anticipating Defendant's Case. There is an- other evil not the least under the sun in advocacy which consists in constantly anticipating your opponent's case. It is a . similar fault to that of OPENING PLAINTIFF'S CASE. 25 plaintiff arguing in defense of his assertions before they are attacked, but a trifle perhaps more danger- ous. Some advocates think it proper to anticipate the defense and demolish it at once. This would doubtless be an excellent mode of warfare if he could accomplish it. But the law gives the defend- ant the right to present his case, and after that has been done, it then becomes the plaintiff's duty to de- molish it. Even if the advocate knows the exact line the defendant is going to take, it is not always advis- able to meet him half-way. But in ninety-nine cases out of a hundred he does not know the manner in which the latter's case will be presented, although he may know what his defense is. After he has opened it and employed his arguments, the plaintiff knows the exact line defendant has taken; and if he cannot beat him then, it is quite certain he could not have done so before. One often hears an advocate say, "he cannot conceive what defense his learned friend can have" that "it's really, gentlemen, an undefended case." It is impossible to conceive of anything more unskillful and ineffective than this. Such assertions are worse than useless. They are no part of the opening; they are not argument; they lend no emphasis to the statement; and they are not true. They impress neither judge nor jury; but they some- times make the counsel who utters them look ex- tremely disappointed. If the learned gentleman on the other side has no case, it will appear without plaintiff's attorney saying so. If he has a case, the plaintiff saying he has none will not alter the fact. 19. Redundancy of Expression in Opening State- ment. It would be out of place to say anything further with regard to redundancy of expression, were it not a prominent fault with many young advo- cates. The fewest words, as a rule, make the best 26 AMERICAN ADVOCACY. speech. All the language not required to convey ideas is surplusage, and if used at all, should be of the very best; if not required for use, it should be employed for the purpose of lending dignity or em- bellishment. It may be said that baldness of ex- pression is not compatible with excellence. It is quite true that the graces of eloquence lend a charm to the speaker as well as the speech. These doubt- less should be cultivated and employed when in a state of cultivation, but not before. Redundancy, however, is not a grace, but a deformity, and the way to cultivate that is to cut it off altogether. Poverty of language is one thing, selection of words another, and there may be the greatest poverty of language with the greatest redundancy of words. 20. Ornamentation and Illustration in Opening Statement. Of course no one would say that orna- mentation is to be ignored. On the contrary, it should be carefully used, not laid on so as to smother that which it should render more attractive. But even diamonds, scarce and valuable though they be,- are frequently out of place by way of .embellishment. Illustration sparingly employed is an effective orna- ment; an'd so much so, that there is of ten a danger of even truth and reason being sacrificed to it. Minds are apt to be carried away by a beautiful simile, and because that is true, are prone to con- sider that the argument illustrated must be true also. But in an opening speech illustration should be utterly abandoned. Fact, and fact alone, is the strength of an opening speech. 21. Order and Arrangement of Facts in Opening Statement. It may be said no one doubts that order and arrangement are necessary to make a good open- ing statement. It is so true, that almost every one knows it and no one denies it; but so long as so many OPENING PLAINTIFF'S CASE. 27 advocates act as if they did not know it, and not only neglect all order, method and arrangement, but con- fuse facts and dates to the annoyance of judge and jury, and to the disparagement of their client, it seems not unnecessary to insist that the strictest attention should be paid to the order of time, the order of facts, and the arrangement of causes and effects. Every statement should be as free from confusion as if the facts had been mapped out on paper with the utmost faithfulness. Every series of facts should be brought down in the strictest order ; and if there be many series operating apart, but exercising an influence upon the main action of the drama, they should be brought down in their natural order and sequence until they are all centered upon the common point. In the most complicated and tangled circumstances there should be no confusion. It is the business of the advocate and the art of advocacy to separate them, and to show their rela- tions to one another, their bearings upon each other, and their influence upon the main action. Irrelevant matter, therefore, should be carefully excluded by no means so easy a task as at first sight appears, and only to be accomplished by diligent study and thoughtful practice. What is the isxue, and upon tr/itif << riden.ee will it depend? Determine that first and then the evidence will arrange itself almost naturally. 1 1 As an instance, take the following pleadings: A endeavors to set tip a lost will. lie alleges that it was made and executed on a certain day five years ago, and that it never was revoked. The defendant de- nies the making in accordance with the requirements of the statute; says that the alleged testator was not of sound mind, memory and understanding; that the will was afterwards destroyed while he ?ca of sound mind, memory and understanding, with the intention of revoking it, and that the plaintiff is not a legatee. Now, it will be obvious here 28 AMERICAN ADVOCACY. 22. Moderation in Opening Statement. In opening* a case, moderation is more forcible than exaggera- tion. The latter is weakness. To open a strong case is not to prove it. What the advocate should strive to do is to give the substance (somewhat more than an outline) of the case he intends to prove. This should be done so that when the evidence, usually in dis- jointed, and often in widely separated parts, is pre- that many issues will present themselves; but it may be equally appar- ent to the counsel for the plaintiff that the whole question may ulti- mately resolve itself into this, whether some particular witness saw the will M a particular time. This may depend not upon the accuracy of the witness' memory, but upon his credibility. The decision, therefore, may turn entirely upon the question as to whether a certain witness can be believed or not. The execution may be beyond doubt; the sanity of the testator up to a certain time indisputable; the contents provable by some draft or otherwise; the question of destruction or no by the tes- tator, before a given moment, uncontroverted; the insanity of the testator from a given time also placed beyond controversy; the issue, therefore, will resolve itself into the question whether the instrument was in ex- istence between two given periods, and that must depend upon the evidence to this fact of the person who saw it in the meantime. If he be believed, verdict for the plaintiff; if disbelieved, for the defendant. Now, it will be obvious that to lay much stress upon those points which will be placed beyond all dispute as the evidence is unfolded would be wasted energy. The facts should, of course, be stated with due pre- cision and conciseness, but to dwell upon them would only be wearying the jury to no purpose, and diverting their attention from the proper object of inquiry. The thing really to be done is to impress them with the reliability of the witness ; if they disbelieve him, the advocate's case is lost; therefore, the latter must guard him against the assaults of his oppo- nent, whose skill will be directed to breaking him down. He will know that this is the key of his position. But how is the witness to be strength- ened;' If he have no corroboration, must he not stand by himself? By no means. A hundred incidents in the story to which his witness speaks may be corroborated by other testimony, and this will tend to show his truthfulness. He must search for this kind of corroboration when he has no other, and if he show that he is generally supported by other, and it may be totally independent witnesses, upon points which neither he nor they deemed material; if he show that the story is consistent in itself, and is likewise compatible with the probabilities. of the case, he may rely upon it that the verdict will be his. OPENING PLAINTIFF'S CASE. 29 sented piece by piece to the jury, they may see the bearings of each upon that which has gone before, and afterwards upon the whole, and appreciate its value. But a plaintiff should never omit any mate- rial point of his case in the opening, because, besides being occasion for a non-suit, it will generally be received by the jury in the form with which he im- presses it, and will be accepted by them almost as proof before the evidence comes in support of it. When the evidence does come its weight will often be supplemented by the opening. Although, the facts themselves are neither changed nor exaggerated, they are the more deeply impressed. Suppose an advocate has a number of witnesses to prove various facts which are separate and apparently disconnected from one another, but yet having a bearing directly or indirectly upon the main issue. These witnesses represent those numerous facts, which have happened at different times and in different places, } r et which are all working towards a common center, confirming and corroborating one another, leading up to, and Indeed forcing on the main event of the storey. It is obvious that in opening a case of this kind, if the advocate would make the narrative clear, he must deal completely with one set of facts at a time the earliest in date probably being the best to comn^nce with. These should be made plain and intelligible to the jury merely ax faffs, and no attempt should be made to show their bearing upon the main point of the case until the other branches of the subject are in like manner made intelligible. If this be done too early the effect will be lost, the narrative will be dis- turbed, and the minds of the hearers confused. The first set of facts should be stated and left ready to be fitted in at the right time. The jury, having thus seen the separate parts of the plaintiff's narra- 30 AMERICAN -ADVOCACY. tive, will perceive readily what position each will occupy, and what relation it will bear to the others. It need scarcely be said, that if the advocate make any part out of due proportion to the rest by exag- geration, it will not fit in, and will spoil the symmetry of the whole. He should seek only to make his state- ment appear truthful and natural. Short of this the opening will be a failure; be}'ond it the evidence will be a failure. 23. Length of Opening Statement. It may not be superfluous, in concluding this chapter, to say that a speaker in opening a case should never be rapid. As a" rule rapidity of utterance is not a common fault, but there are many who talk too fast, and as a neces- sary consequence say too little. It is difficult for all who are not the most finished speakers to make a sentence, and it is not easy for juries to follow at all times deliberate speakers who can -make one; but what must their difficulty be in following a man who speaks with great volubility, and never makes a sentence at all? 1 Slow, sure and short, is a good motto for young advocates. A long opening is wearisome and unnecessary, and can only be made long by repetition. Not that an advocate can deal out speeches by the yard, or cut them off in lengths as required. Indeed, a speech may be very long that occupies twenty minutes; it may be admirably concise and take six hours. The opening in the Tichborne trial for perjury occupied some days, but it is a model of neatness, arrangement and concise 1 "Can't make header tail of him, "said a juror after a flippantyoung lawyer had sat down; "talks too fast." "What's the action for?" asked another. "Is he for plaintiff or defendant?" inquires a third. An advocate had better not open his case at all if he cannot leare a better impression than this he is simply injuring his client. OPENING PLAINTIFF'S CASE. 31 narrative. A short speech is more powerful than a long one. When jurymen tap the ledge of their desk with impatient fingers, the advocate may take it for granted he has been already too long, and every additional word may be not only a burden to them, but also to his client. Consistently, therefore, with {-hose graces of diction without which language would sometimes be offensively bald, the fewer words the advocate employs, the better. It by no means follows that he should speak in telegrams, but that mere verbiage should be pruned away, so that there may be greater strength and a more symmetrical and cultured beaut} 7 . CHAPTER III. OPENING DEFENDANT'S CASE. 30. Arrangement of Facts With Regard to Probabilities. 31. Artistic Arrangement of Evidence. 32. Answering Exaggerated or Improbable Evidence. 33. Effect of Defendant Prais- ing His Own Witnesses. 34. Points of Rhetoric to be Observed by Defendant's Attornev. 24. General Rules. 25. When and Where to Open the Attack. 26. Effect of Argument in De- molishing Plaintiff's Case. 27. Use of Plaintiff's Witnesses to Prove Defendant's Case. 28. Force of Eloquence in De- fendant's Opening Speech. 29. Misstatements and False Representations by De- fendant. 24. General Rules. If ever a ease looks hope- less, it should be the defendant's at this present moment. The jury, if they had to determine the case now, should be unanimous in favor of his oppo- nent. If the facts are not strong, however, or the counsel is not strong, or has not made the most of his case, the jury will be divided, but none of them, "very unanimous" in the plaintiff's favor. In these circumstances the verdict for the defendant is as good as won. Disaster awaits the advocate for the plaintiff who has not the jury with him at this stage of the case. In a season of such depression an ex- traordinary accession of good feeling will take pos- session of the breast of the plaintiff's attorney. Wouldn't it be better for all parties to agree and an amicable arrangement be come to? If the defend- OPENING DEFENDANT'S CASE. 33 i ant's counsel be wise, he will yield to no such blan- dishments. The flag of truce is but the signal of distress, and he should push on his advantages to their legitimate conclusion. He should not capitu- late when he has won the battle, or surrender when the enemy is in full retreat. It is not, however, invariably the fact that a weak case for the plaintiff is at its strongest at the close. The defendant's counsel frequently strengthen it materially. Sometimes, indeed, the cross-examina- tion of his own witnesses absolutely proves it. It follows, therefore, that very great discretion and skill are requisite in opening the case for the de- fendant. It is surrounded with obstacles, and is a far more difficult task than opening that for the plaintiff. 25. When and Where to Open the Attack. The first thing to decide is at what point to commence the attack. A great deal may depend upon this. The advocate may expend much energy in fruitless work. The weak places are undoubtedly attractive, but, as a rule, should be reserved, because at a later period the effect will be greater and the demolition appear to be more complete. The strong points, therefore, should be attacked first, but not by direct blows. One cannot knock down a substantial wall by butting his head against it. There are improba- bilities and inconsistencies, perhaps, or partialities to deal with. The advocate may possibly get at these and shake the very foundations on which the whole fabric rests. If the advocate have accomplished anything by cross-examination, it will be of inestim- able service at this period of the case. But his speech must be directed first to weaken before he brings to bear the reserved forces which he has stored up as the result of his cross-examination. 3 34 AMERICAN ADVOCACY. 26. Effect of Argument in Demolishing Plaintiff's Case. That which was to be avoided in opening a case for the plaintiff is the strength of the defend- ant's opening namely, argument. It is not meant to affirm that one can demolish an isolated fact by - argument; but a series of facts, some of which may be true and some false, may be made to demolish one another. If the defendant's attorney can show that, assuming all the facts to be true, they do not necessarily prove the plaintiff's case, he will have gone a long way to establish his own. By this mode of proceeding he will already have dealt with the strongest portions of the case against him. When he arrives at the weaker parts he should avoid above all things a furious and vehement onslaught; otherwise they will appear more formi- dable than they really are. Let the force be pro- portioned to the task. A well-worded argument will be infinitely more effective than fiery declama- tion. By removing some of his opponent's points in a quiet but effective manner, the jury will believe the defendant's attorney must be right with regard to many others that he has not removed. He will gain credit for a great deal more than he has actually accomplished, and his success will have a retro- spective effect. In other words, the more re- spectable facts will get a bad character by being- found in company with those which the advocate proves to be weak and corrupt. 27. Use of Plaintiff's Witnesses to Prove Defend- ant's Case. It often happens that a witness is called for the plaintiff whose evidence is worthless. It may not be valueless to the defendant. But the latter's attorney should by no means be overeager to attack him. He should be kept as a surprise for the end of the advocate's comments on the plaintiff's OPENING DEFENDANT'S CASE. 35 witnesses, and then be held up above the crowd and made the principal figure in the group. What- ever he has said in the defendant's favor, will, of course, materially assist and confirm the argument of the defendant's attorne}^. The latter will, in fact, be proving his case by the opponent's witnesses a happy mode of conducting a cause to a successful conclusion, when he is permitted to do so. An admission against the party making it possesses a force which belongs to no other class of evidence except documentary. 28. Force of Eloquence in Defendant's Opening Speech. A bad speech will impoverish the best of cases. The defendant's case will in all probability be judged by the speech with which it is introduced, and the first impressions are not easily removed. On the other hand, many a case has been won by the opening speech for the defendant. Everything seemed to be swept away before it, and a clear field left for the evidence that was to follow. And it may be said, if once the defendant's counsel gets a thor- ough hold upon the jury in his opening speech, the case is as good as won. The evidence will appear to be merely supplementary, to confirm the jury in the opinion they will t^ve formed. It is true facts are more powerful than argument, but when argument and eloquence laj T hold of a fact that is not absolutely sound, they will press it out of all recognition, and dispose of it as though it were a bubble. The best id, "Yes, it is here," again producing the copy of his account. It was again objected to. Question: "In what sums was it advanced?" Plaintiff looked at his document and said, two sums of twenty-five pounds each, and (here he was stopped, as he icas reading from his memorandum*). Plaintiff's coun- sel then claimed that the document was in and could be shown to the jury. Mr. Justice Denman held that it was not in evidence, and that no question had been asked respecting its contents. It will be seen from this and one illustration is perhaps as good as twenty that a single question in cross-examination might have made that evidence, which by no possibility could have been so made by the other side. 1 Suppose the question to be the contents of a lost will. A legatee under it gives the following evidence : I remember the fact of the tes- tator making his will. I saw him writing it and I read it at the time. I was left a thousand pounds by it and my two brothers were left sev- erally the same amount. I last saw the will two months ago. Now, It might be that the whole case depended upon the accuracy of the wit- ness' memory, or upon that coupled with his credibility. Plaintiff's counsel is desirous of showing that on the day the will was made the witness went for a doctor and told him, at that time, the contents of the will. If this statement could be given, and it were identical with that made in the witness-box years after, it is clear that it would go a long way to establish the accuracy of the witness' memory as well as his credibility. But it is not admissible as evidence-in-chief. A question, however, in cross examination would admit every word. Nor does the danger cease when this witness leaves the box. The doctor, a witness to the will, may be called, lie may not have read it, but an inadvertent question may enable him to say what the last witness told him on the occasion in question. 54 AM SRICAN ADVOCACY. to give ! the evidence you seek, and you have drawn him as near to the point as there is any hope of his being drawn or driven, it is always dangerous to at- tempt to urge him further. If you have nearly got an affirmative, and you press him overmuch, you may irritate him into giving you a direct negative. The dangers thus indicated will doubtless suggest many others to a mind anxious to master the rudi- ments of advocacy. The}'- can only be avoided by careful study. 1 47. Good Temper of the Cross-Examiner. It will be clear that, to cross-examine with anything like success, the most thorough good temper should be preserved. An ill-tempered advocate would be 1 When to Keep Silent on Cross- Examination. A long time ago, in the East End of London, lived a manufacturer of the name of Waring. Among the many hands he employed was a girl of the name of Harriet Smith. Mr. Waring fell in love with her. Had Harriet known he was married, in all probability she would have rejected his respectable at- tentions. He induced her to marry him, but it was to be kept secret; her father was not to know of it until such time as suited Mr. Waring's circumstances. In the course of time there were two children; and then unfortunately came a crisis in Mr. Waring's affairs. He was bank- rupt. The factory and warehouse were empty, and Harriet was de- prived of her weekly allowance. One day when Waring was in his warehouse wondering, probably, what would be his next step, old Mr. Smith, the father of Harriet, called to know what had become of his daughter. '-That, 1 " said Mr. Waring, "is exactly what I should like to know.'' She had left him, it seemed, for over a year, and, as he understood, was last seen in Paris. She had been gone nearly a year, and in a few days Mr. Waring was to surrender the premises to his landlord. There never was a man who took things more easily than Mr. Waring; leaving his premises did not disturb him- in the least, except that he had a couple of rather large parcels which he wanted to get away without anybody seeing him. It happened that a youth of the name of Davis, who had formerly been in his employ, suddenly met his old master, who greeted him with his usual cordiality and asked him if he had an hour to spare, and, if so, would he oblige him by helping him to a cab with a couple of parcels which belonged to a commercial traveler and contained valuable samples? James consented willingly, and lighting each a cigar which Mr. Waring \ * CROSS-EXAMINATION. 55 something like a gibbing 1 horse, he would do every- thing but go along smoothly. A calm, imperturbable tempe 11 is the very triumph of self-command, and one of the most essential qualities of a good advocate. It is useless to make excuses for bad temper, as sen- sitiveness, indigestion, disappointment, or what not. Good temper is the demand of an advocate's client, and in mere justice to him a lawyer is bound to pre- serve it. Even if he should be a constitutionally irritable man, he must absolutely conquer his ir- prodnced, they walked along, chatting about old times and old friends. When they got to the warehouse there were the two parcels tied up in American cloth. "Here they are," said Mr. Waring, striking a light. '-You take one, and I'll take the other; they're pretty heavy, and you must be careful how you handle them, or some of the things might break.'' When they got to the curb of the pavement, Mr. Waring said, "Stop here, and I'll fctcli a four-wheeler." While James was waiting, a strange curiosity to look into the parcels came over him; so strange that it was irresistible, and accordingly he undid the end of one of them. Imagine the youth's horror when he was confronted with a human head that had been chopped off at the shoulders! "My hair stood on end," said the witness, '-and my hat fell off." But his presence of mind never forsook him. He covered the ghastly "relic of mortality" up and stood like a statue waiting Mr- Waring's return with his cab. "Jump in, James," said he, after they had put the "samples" on the top of the cab. But James was not in the humor to get into the cab. He preferred running behind. So he ran behind all along Whitechapel road, over London bridge. By and by the cab drew up in a back street in front of an empty house. James came up panting just as his old master had taken his first packet of samples into the house. He had managed somehow or other to get a policeman to listen to him, and Mr. Waring was arrested and the ghastly contents of the bundles discovered. At the police station the divisional surgeon pronounced the remains to be those of a young woman who had been dead for a considerable time and buried in chloride of lime. Of course this was no proof of murder, and the charge of murder against Waring was not made until a considerable time after not until the old father had declared time after time that the remains were those of his daughter Harriet. Notwithstanding it was clear that no charge of murder could be 56 AMERICAN ADVOCACY. ritability for the time being. He must never even appear to lose his temper, for no one ever believes that a man in the heat of temper means what he says. "Allowance' 1 is always made for this infirm, ity. But when the jury have reason to make this allowance the chances are that his case is gone in all probability his client also. 48. Prejudice, and Other Hostile Motives on the Part of the Witness to be Emphasized on Cross- Examination. But, besides determining whether he proved without identification, the treasury boldly made a dash for the capital charge in the hope that something might turn up. And now, driven to their wit's end, old Mr. Smith was examined by one of the best advocates of the day, and this is what he made of him: "You have seen the remains?" "Yes."' "Whose do you believe them to be?'" "My daughter's, to the best of my belief." "Why do you believe them to be your daughter's?" "By the height, the color of the hair, and the smallness of the foot and leg." That was all; .and it was nothing. But there must needs be cross-examination if you are to satisfy your client. So the defendant's advocate asks: 'Is there anything else upon which your belief is founded?" "No," hesitatingly answers the old man, turning his hat about as if there was some mystery in it. There is breathless anxiety in the crowded court, for the witness seemed to be revolving something in his mind that he did not like to bring out. "Yes," he said, after a dead silence of two or three minutes. "My daughter had a scar on her leg." There was sensation enough for the drop scene. More cross-exami- nation was necessary now to get rid of the business of the scar, and some re-examination, too. The mark, it appeared, was caused by Harriet's having fallen into the fireplace when she was a girl. "Did you see the mark on the remains?" asked the prisoner's counsel. "Xo; I did not examine for it. I hadn't seen it for ten years." This evidence proved to be so very material that when it was found on the leg exactly as the old man and a sister had described it, the doctors cut it out and preserved it for production at the trial. After the dis- covery, of course, the result of the trial was a foregone conclusion. CROSS-EXAMINATION. 57 be false or true, or an artful twister of facts, the cross-examiner will also ascertain whether he has a strong bias in one direction, or a prejudice in the other. If he have a strong- leaning to the side of his opponent, he will have the less difficulty in disposing of him, because it will be easy to lead him on until his bias becomes so manifest and overpowering that the jury will discount his evidence, and to such an extent that, if the case depend upon him, they will throw it over altogether. A strong interest weakens the side on which it lies. It will, therefore, be clear that in cross-examining a witness of this kind it will be proper to elicit this at the earliest opportunity. If it comes last it will be far w r eaker, because it will not altogether undo the effect which his evidence may have made upon the minds of the jury. The interest a witness has in a case should, therefore* be shown early in the cross-examination, if it has not been made manifest before. Of course, the advocate's oppo- nent will not leave him this card to play if he can avoid it; but he cannot help his overtrumping him by plac- ing it more prominently before the jury than he would ever permit himself to do; and this it will be the advocate's duty to accomplish. But it may be the witness has no interest. He may, nevertheless, be a partisan; and partisanship is often stronger than self-interest, although the latter has somewhat erroneously been described as the most powerful principle influencing human actions. The advocate may take it for granted that if his oppo- nent should sometimes anticipate the cross-examiner in showinghis witness' interest in acause, he will never be eager to acknowledge him a partisan. The cross- examiner will therefore generally be left master of the field in this respect, and at liberty to choose his time, place, and mode of attack; and so that it be early, he 58 AMERICAN ADVOCACY. may do it as he likes. In a great number of cases there is something of partisanship, and it ma3 r be taken as a rule that an absolutely unbiased witness is rare. The strong partisan, however, is only pro- duced by public matters, religious disputes, bound- ary questions, quasi-political inquiries, medical cases, rating matters, running-down causes, and other in- vestigations, where the witnesses seem naturally to take sides. But suppose the witness has some other motive in giving his evidence. The cross-examiner will en- deavor to ascertain what it is. If he watch care- fully he will find a difference in tone and manner when he is speaking more directly from the particu- lar motive. Suppose it's revenge? Any point which seems more particularly to damage his adversary will be laid stress upon. An c y answer that he makes which he thinks will damage him will be uttered in a more ready tone and with evident satisfaction. It will manifest itself in his voice, in his look, and his whole demeanor. That^ therefore, must be stamped upon the mind of the jury by the advocate's cross- examination. But there are subtle motives, by no means apparent to every observer, which will, never- theless, be discovered if the cross-examiner set him- self to the task of finding them out. And whatever the motive be, there is some ground-work for cross- examination, except in case of the witness whose motive is simply to speak the truth as he knows it. If this man's evidence does not seriously conflict with the advocate's case he should let him alone. $ 49. Manner, Style and Tone of Voice. With re- spect to style, as before remarked, every man has his own, or should have. When he borrows he may show good powers of imitation, but he lacks that which is necessary to carry a man to the highest CROSS-EXAMINATION. 59 eminence in any art, namely, originality. With re- gard to manner, a man should imitate the best. The most eminent are as a rule the most unaffected, and the quiet, moderate manner is generally the most effective. It is not intended to imply that bluster and a high tone will not sometimes unnerve a timid witness, but this is not cross-examination or true advoeac} 7 . It is not art, but bulging not intel- lectual power, but mere physical momentum. Nor is it intended to be conveyed that an advocate should at all times treat a witness with the gentleness 'of a dove. Severity of tone and manner, compatible with self-respect, is frequent!}" necessary to keep a wit- ness in check, and to draw or drive the truth out of him if he have any; but the severity will lose none of its force, nay, it will receive an increase of it, by being furbished with the polish of courtesy instead of roughened with the language of uncompromising rudeness. 1 The tone in which questions are asked will not only have a great effect with the jury, but with the witness himself. A cross-examining coun- sel should always seem in earnest; if he have the ap- pearance of one who is simply endeavoring to amuse an audience, the jury will quickly come to the con- 1 A great authority on Rhetoric, speaking on the subject of cross-ex- amination, says: "In oral examination of witnesses a skillful cross- examiner will often elicit from a reluctant witness most important truths which the witness is desirous of concealing or disguising. Theie is another kind of skill, which consists in so alarming, misleading, or bewildering an honcut witness as to throw discredit on his testimony or prevent the effect of it. This kind of art may be characterized as the most, or one of the most, base and depraved of all possible employ- ments of intellectual power. Generally speaking, I believe that u i|iiiH. gentle and straightforward though full and careful examination, will be the most adapted to elicit truth, and that the maneuvers and the browbeating which are the most adapted to confuse an honest witness are just what the dishonest one is the best prepared for." Whatelcy's Elements of Rhetoric, p. 165. 60 AMERICAN ADVOCACY. elusion that he does not believe in his own case. Manner plays a great part in advocacy. Every one knows that a question in one tone will induce an an- swer, where in another it will not: that the emphasis upon a particular word may produce a totally dif- ferent version from that which it would cause if laid upon another. An advocate should never appear to be hostile in cross-examination if he can avoid it; hostil- ity is infectious, it may get into the jury box, and thence to the judge. 50. Asking Questions Liable to Call Forth Adverse Replies. It is a good rule in cross-examining a wit- ness never to ask a question the answer to which, may be adverse to the cross-examined 's case. Nothing but ab- solute necessity should induce a departure from this rule. There are so man3 r ways of framing a question or a series of questions, that it would disclose a pov- erty of ingenuity indeed if the cross-examiner asked one that might involve the fate of his client. Many- lawyers constantly put questions and elicit answers dangerous and often fatal to their case; whereas, with the exercise of a little ingenuity, they might, by small portions at a time, as if they were enticing a shy bird with crumbs, obtain little by little that which they require as a whole. Not only when doubtful of the answer should this course be adopted, but even when it is necessary to his case that a particular answer should "be obtained. And it might be suggested, as a good and safe rule, that if he be desirous of getting an answer to a particular question, he should not put it. The probability is that the witness will know his dif- ficulty and avoid giving him exactly what he wishes. Besides avoiding the danger of elicitingevidence which may be adverse to the advocate's client, it should be remembered that by cross-examination a color may be given to that elicited in chief, which may not only CROSS-EXAMINATION. 61 emphasize it, but give it the appearance of evidence which the cross-examiner himself has adduced. Coun- sel should carefully avoid making his adversary's witness his own by cross-examination, as he cer- tainly will if he obtains answers favorable to the other side. 51. Cross-Examination of Evasive and Hostile Wit- nesses. If a witness is not altogether straight- forward 1 he will be on the alert, and unless the cross-examiner circumvent him he will evade his question. It is in such a situation as this that the skill of the cross-examiner is shown. One advocate will sit down baffled, another will obtain all that he requires. A series of questions, not one of them indicative of, but each leading up to the point, will accomplish the work. If the fact be there the cross- examiner can draw it out, or if he do not so far suc- ceed, he can put the witness in such a position that from his very silence the inference will be obvious. In cross-examining a hostile witness upon a point that is material it is sometimes advisable to put ten unimportant questions to one that is important, and when the cross-examiner has put the important one he should put it as though it were the most unimportant of all. And then, when the cross-ex- aminer has once got the answer he wants, he should Jea re it; he should divert the mind of the witness by some other question of no relevancy at all. There is no occasion to emphasize an answer while the wit- ness is in the box if the question be properly put. The time for that will come when the advocate sums up or replies. If the witness sees from the advo 1 For different classes of obstructive, hostile and evasive witnesses, how. to deal with them, see chapter entitled "Classes of Wit- nesses." 62 AMERICAN ADVOCACY. cate's manner that he has said something which is detrimental to the party for whom he has given his evidence unless he be an honest witness he will endeavor to qualify it, and perhaps succeed in neu- tralizing its effect. If the advocate leave it alone, it may be that his opponent may not perceive its full effect until it has passed into the region of comment. Nothing is more unskillful than repeating a question when a favorable answer has been obtained. 52. Some Miscellaneous Observations. It is a good rule never to put a question in cross-examination with- out being able to give a reason for it. Man.y 3 7 oung advocates rise to cross-examine without the least idea of what they are going to ask, and take the wit- ness back through the evidence-in-chief , as though it had not made effect enough upon the jury. Nothing can be more unskillful than this. "Cross-examina- tion," said a learned judge to a junior, "does not con- sist in repeating in a louder tone the examinati on-in- chief." Another important rule to be remembered is that it is not wise to cross-examine for explanations, unless the explanation is necessary for your case. No doubt there is some degree of fascination in solv- ing a mystery, but when the advocate finds that the explanation of it is immensely to the advocate's dis- advantage, he will not quite so much enjo} r the quiet smile of his opponent when the latter finds that he has cleared up something which he could not, and which he has purposely left for the exercise of the cross-examiner's ingenuity and fertility of inquiry. 1 1 "Before dismissing a witness, however, the possibility of being able to elicit some new facts in our favor should be taken into consideration. If the witness is apparently truthful and candid, this can readily be done by asking plain, straightforward questions. If, however, there is any reason to doubt the willingness of the witness to help develop the truth, it may be necessary to proceed with more caution, and possibly CROSS-EXAMINATION. 63 Cross-examining for small discrepancies in conver- sations is generally useless; always so merely as a test of veracity. 1 Veracity must be tested by di- vergencies of, statement upon material points, and with reference to matters respecting which the wit- nesses could hardly be mistaken. Differences upon other points merely go to memory, closeness of ob- servation, or descriptive power. 53. In Conclusion. That the modes hinted at in this chapter are useful is a matter not of speculation, but of experience. Many of these hints may appear to be commonplace suggestions; they are the rudiments of advocacy, nevertheless, and rudimentary knowledge often comes to us only after long experience or through the kind- ness of an experienced friend. Sometimes it comes after wearying disappointments and heartfelt re- bukes. These suggestions have been noted with the hope of saving some the weary and watchful labors that so many have undergone. Nowhere has an at- tempt been made to throw out a hint for the purpose of enabling an advocate to confound or entrap the honest and truthful witness, around whom every pro- tection should be thrown; but our endeavor has been to suggest modes of dealing with the artful and the to put the witness in a position where it will appear to the jury that he could tell a good deal if be wanted to, and then leave him. The jury will thug draw the inference that, had he spoken, it would have been in our favor/' Wellman's Art of Cross-Exarnination, p. 26. 1 In a case before Mr. Justice Stephen, the learned judge said: "I think "it the greatest waste of time to ask questions in order to get con- tradictions with regard to conversations. There may be material points upon which it is important to cross-examine. If any two persons were to give an account of the conversation which the two learned counsel have been holding for the last hour and a quarter, there would be, I suspect, a vast difference indeed between their statements." 64 AMERICAN ADVOCACY. vicious, in order that deceit may be baffled and im- posture exposed. Another word. When the advocate has studied his hardest to learn how to cross-examine, the next les- son should be how to do as little of it as he can ; he should never cross-examine if he can safely avoid it. and when he does, let the questions be few and with a purpose. The best cross-examiner is generally the shortest. CHAPTER VI. RE-EXAMINATION. 54. General Principles. 55. Dangers of Re-examination. 56. Where the Cross-Examina- tion is Favorable to the Re- examiner. 57. Re-examination Where the Cross-Examination is Un- favorable to the Examiner. 58. Seizing Opportunities Of- fered by the Cross-Exami- nation to Introduce Matter Otherwise Inadmissible. 59. Re-examination in Gases Where Character or Cred- ibility of Witness has been Attacked. 60. Pursuing an Equivocal Re- ply of One's Own Witness, Elicited on Cross-Exami- nation. 61. Repetition of Evidence in Chief on Re-Examination. 54. General Principles. This branch of advocacy will not require very elaborate treatment. Not that it is by any means an unimportant subject or a small matter in the conduct of a case; on the contrary, it is worthy of the most careful study, and the following hints may be of some use, while they show the dan- gers as well as the advantages of re-examination. If it were not necessary, cross-examination would be useless. To restore the ravages that have been made by that destructive engine is the principal duty of this portion of the advocate's work. If he has watched the cross-examination with that unceasing vigilance which he ought to have bestowed upon it, he will have observed and noted the points that have been made against him. Some of his evidence has -disappeared altogether; other portions have received 66 AMERICAN ADVOCACY. such a shock that they exist in a very rickety and dilapidated form; some other parts have received a coating 1 of interpretation, which must be removed; other fragments lie here and there in a mass of con- fusion, from which they must be extricated if he de- sire to re-establish his case. He should begin to repair where the first breach was made. The wit- ness may have given an answer he did not intend, and very much of the subsequent mischief may have flowed from that unfortunate mistake. If, therefore, the examiner set that right, he will easily pass along" and repair the dajnages which have resulted from it. He should proceed in his work of repair as the de- stroyer proceeded in his work of destruction. Ex- planations in this stage of the case often make the examiner's evidence the stronger for the confusion in which it has been temporarily involved. 55. -Dangers of Re-Examination. But, unless re- examination be absolutely necessary, it should never be used. It is not every trifle that should induce an advocate to commence afresh with his witness. If a trivial and unimportant point has been made, but the leading facts of the case are left undisturbed, the matter should be left to the jury. B} r not re-examiri- ing when not obliged to, the clanger of cross-examin- ing one's own witness will be avoided. An advocate is not required to explain everything. It sometimes happens that a witness, from natural suspicion of the intentions of the cross-examining counsel, will not answer intelligibly will hesitate or stumble. It is not, however, necessary that the advocate should -fly to pick him up before he is down. If his evidence-in- chief has been fairly given, the jury will be sure to make allowance for subsequent maneuvers to upset him. Whereas, if the examiner rush to the rescue unnecessarily, and endeaver to obtain explanations RE-EXAMINATION. 67 not vouchsafed to his opponent, the witness will think he is anxious for his answers, and, recovering from his nervousness, fill up the gaps the opposing counsel has left. In other words, the advocate will complete the cross-examination, with this additional advantage to his opponent that the evidence will look like evi- dence-in-chief , and not like that extracted by a hostile examiner. 56. Where the Cross-Examination is Favorable to the Re-Examiner. If an answer be elicited in cross- examination which is favorable to the advocate's case, it is highly important that he should not appear to be so fascinated with it as to re-examine upon that. Something else may be admissible in consequence, and this opportunity should be watched for and seized. If he re-examine upon the very fact obtained for him, this result may follow: that his opponent, who, discreetly enough, declined to pursue the sub- ject further, may have the satisfaction of hearing him get an explanation which may neutralize the effect of his mistake. "Let well alone.' 1 '' A favorable answer to the advocate, elicited in cross-examination, is not a subject to re-examine upon of itself, but to be made the most of in his reply. 57. Re-Examination Where the Cross-Examination is Unfavorable to the Examiner. As the advocate watches carefully the cross-examination of his wit- ness, he will probably be made aware for the first time of many weak points in his case. If there should be one which he has flattered himself has been passed cleverly by in his examination-in-chief , he may certainly anticipate a well-directed blow in that quarter at all events. It is in the remedying of such a misadventure that the art of re-examination consists; and it is only by an intimate knowledge of the facts and their relative bearing* that an advocate will 68 AMERICAN ADVOCACY. be enabled to set his witness up when his evidence has been thus battered. Sometimes a cross-examina- tion has been so effective that the evidence of a par- ticular witness has been hopelessly demolished. An experienced advocate, under such circumstances, will resign him to his fate. If he have other witnesses, upon whom he can rely, his task will be with them ; if not, the case must fall with the witness. 58. Seizing Opportunities Offered by the Cross-Ex- amination to Introduce Matter Otherwise Inadmissible. Next to carefully watching for any points that may be made against him, a no less important duty of the ad- vocate will be to see how he may turn an answer to his advantage. His adversary may not be a very skillful or experienced advocate; he may be an indifferent cross-examiner: in which event the advocate may safely trust him to play into his hands. He will get portions of conversations which will make the re- mainder admissible; perhaps put in documents which will give him the same advantage, besides affording him the right of reply; and if the advocate have been considerate, he will have left his opponent to follow up a question or two put for the express purpose. This does not imply that he will have left anything out in his examination-in-chief which it was material to prove; that would be the height of folly. The ad- vocate must always assume that his opponent will not prove his case for him. We speak only of matters which he himself cannot get in, and which, neverthe- less, have an important bearing upon his case. 59. Re-Examination in Cases Where Character or Credibility of Witness Has Been Attacked. The advo- cate must watch also to see whether any attack be made upon his witness in cross-examination. If his credibility be assailed he must be prepared to re- establish it if necessaiy, for that is the foundation RE-EXAMINATION. 69 upon which his evidence rests; and he must do it by questions that will elicit explanations of circum- stances left doubtful, by removing the grounds of suspicion, and giving the real character to a transac- tion capable of two constructions. When this is properly done, nothing is more effective with a jury; they will feel as though they had been relieved of a burden. They will be pleased to find suspicion removed from a person whom they desire to believe; and not only this, the impression of having been im- posed upon will also be removed, and their minds, temporarity disturbed, will settle down, as it were, into a. state of tranquillity and satisfaction. Cross- examination as to character is at most times an un- certain performance. One never can be sure as to the view the jury will take. It is the part of an ad- vocate's duty which they least like. It need not be said it is the advocate's bounden duty to protect his witness to the utmost of his power. Sometimes he may do it by way of objection, but if not, he must ex- ercise his best skill to effect his purpose by re-exam- ination. 1 1 One instance may be given, of many, where character was once cru- elly assailed in cross-examination by an inexperienced advocate, and upon whom it recoiled with crushing severity. He asked a witness if he had not been convicted of felony. In vain the unfortunate victim in the box protested that it had nothing to do with the case. "Have you not been convicted of felony?" persisted the counsel. "Must I answer, your honor?" "I airi afraid you must," answered the judge. "There is no help. It will be better to answer it, as your refusal, in any event, would be as bad as the answer." "I have," murmured the witness, under a sense of shame and confusion very plainly manifest. The tri- umphant counsel sat down. Not long, however, was his satisfaction. In re-examination, the witness was asked: "When was it?" A. "Ticenty-nine yearn ayo! 1 " The Judge: "You were only a boy?" Wit- ness: "Yes. your honor." It need scarcely be added that a just and manly indignation burst from all parts of the court, and the comments of the learned judge were anything but complimentary to the injudi- cious advocate. 70 AMERICAN ADVOCACY. When questions have been asked on cross-exami- nation as to character and have failed, it is far better for the advocate to deal with the matter in his ad- dress to the jury than to put the stereotyped question in re-examination: "Is there any pretense for sug- gesting," etc., etc.? The first denial answers all purposes for the time being, and the mere repetition of it adds no weight; besides, the natural indignation arising from the circumstance will be all the better for not being exploded too soon. A quiet and indig- nant protest to the jury will be all that is necessary. 60. Pursuing an Equivocal Reply of One's Own Wit- ness, Elicited on Cross-Examination. Sometimes a question will be put in cross-examination, which produces an answer not unfavorable to either side, but which it may not be considered safe to follow up by another. The advocate will have to consider whether it will be safe on his part to take it up where his opponent has left it, and he will best consider this by weighing the whole of the facts of his case and the effect of the answer whatever it might be: or he might put a ques- tion or two by way of test, and then abandon it or not as the answers warranted. Again, the opposing counsel may have put a question which hap "let in" something as a basis for re-examination; or, on the other hand, he may have put one which tempts the re- examiner to follow it up, and by that means may have let him in. The utmost caution, therefore, is neces- sary in pursuing anything that has been started by. the adversary. He is by no means a safe guide to follow, and the less company kept with him the better. 61. Repetition of Evidence in Chief on Re-Examina- tion. Above all things it should be remembered that re-examination does not consist in repeating the evidence- in-chief, or in explaining answers that are in the re-ex- RE-EXAMINATION. 71 aminei'\s favor. If the latter 's case be a good one and his witnesses honest, very little will be left to do at this stage of the proceedings. If it be a bad case and his witnesses the reverse of truthful, all the re- examination in the world will not set them up as they were before. It is of immense importance, and in- deed necessary for the purpose of explaining some- thing which has been left obscure, or removing an erroneous impression, or supplementing some matter which, taken by itself, looks to the advocate's disad- vantage; for most other purposes it would be worse than a waste of time, since it would unquestionably injure his cause. Re-examination arises from a right to explain. It is often so advantageous that a case may be won by its judicious exercise, while it is usu- ally so innocent of evil that it would require the ut- most ingenuity of the most inexperienced counsel to make it the means of losing one. The advocate must have a thorough knowledge of his facts, and have watched every question of the cross-examination with the utmost vigilance, to take the full benefit of his right and to make his case stand out in the bolder relief which the cross-examination will afford to it. But nothing is more tedious or more irritating to judge or jury than to see an advocate floundering in re-examination among facts which he only displaces and confuses, thinking he must needs ask something because there has been a long and it may be severe cross-examination. It should be first ascertained what fact has been displaced or obscured^ and what new matter introduced, and then the advocate will know what requires to be re-arranged and what to be ex- plained before he rises to put a single question. CHAPTER VII. SUMMING UP DEFENDANT'S CASE. 62. General Considerations. 63. Eight to Argue Upon Ante- cedent Evidence. 64. Points of Danger. 65. Accuracy and Exaggeration. 62. General Considerations. A few words will suf- fice for this subject. Not that it is by any means an unimportant branch of advocacy. On the contrary, it is as invaluable as any privilege the advocate pos- sesses. It should be remembered that summing up defendant's evidence is not a repetition of the open- ing speech, in which his attorney analyzed the plaint- iff's evidence with sufficient skill to show how worth- less some of it was, and what residuum was left to be disposed of by his own witnesses. If he performed that duty half as well as he should, the parts that he eliminated are gone forever. It only remains, there- fore, to meet the matters that require answering with evidence on his part. He has now abundant scope for his powers of reasoning and for analytical comparison. There may be some opportunity, also, for something of declamation, of eloquence and earn- estness it may be, of pathos itself. But, if so, it should be remembered that it is the pathos of facts and the eloquence of facts, too, that he most needs: if these fail, he might just as well beat a tambourine and imagine himself an. orchestra. SUMMING UP DEFENDANT'S CASE. 73 63. Right to Argue Upon Antecedent Evidence. It is not absolutely forbidden to argue upon antece- dent evidence, although the defendant's attorney has but the bare right to "sum up." The sum total may be not only his own evidence, but that evidence supplemented in matter and weight by the evidence of plaintiff and his witnesses. No rule can be laid down in this particular, nor will the judge be over- strict in keeping the defendant's attorney upon the direct line of his evidence. 64. Points of Danger. As the repty will follow the speech of defendant's attorney, he will, of course, cal- culate what are the points likely to be made against him, and if he has any knowledge of character at all, he will know what points have most impressed his ad- versary. Nearly all the cards having been played, he ought to know exactly what are left in his opponent's hand. He must, as a matter of course, strengthen those points which are likely to be assailed, and bring into strong prominence those portions of his case which are established beyond the reach of eloquence. If he has kept his eyes open, he will not be misled by any feint that may have been made by his oppo- nent. If the latter has discovered a weakness in the defendant's case which defendant's attorney does not perceive, it will be little short of a calamity for his client when plaintiff's counsel comes to reply- This so often happens, that the greatest vigilance is necessary from the moment the case is launched till the last witness has been re-examined. What word or remark of a witness may be the turn- ing-point in a case,the defendant's attorney can never tell. What may be the test which the jury will apply to the evidence he can but surmise; but that no word should escape his attention is as certain as that, in 74 AMERICAN ADVOCACY. surveying the ocean bed, no rock or prominence can be left unnoted with safety to the mariner. 65. Accuracy and Exaggeration. One further ob- servation will be made. In summing up, the defend- ant's attorney should be sure he exhibits the qualities of a good arithmetician; otherwise, he may upset the calculations of his own witnesses. The jury will tol- erate no false casting up. They will require a cor- rect total, whatever they may think of the individual items. Some they may disallow, others they may admit, if the advocate's total be accurate; if not, they may reject the whole with disgust or, even, disap- pointment. He should bear, also, in mind that if he have two twos he need not labor to convince the jury that the total is four; and, above all things, he should be careful that he does not attempt to prove that it amounts to five. CHAPTER VIII. THE REPLY. 66. Value of the "Last Word." 67. Securing Attention of Court and Jury. 68. Flattering the Jury. 69. Display of Seif-Confidence. 70. Personal Attack on Oppo- nent or His Counsel. 71. Effect of an Earnest and Quiet Manner. 72. Order and Arrangement of the Reply. 73. Attacking Opponent's Case First. 74. Dealing with the Effect of the Testimony, Not the Testimony Itself. 75. Importance to be Attached to the Probabilities of the Evidence. 76. Conciseness in the Reply. 77. The Use of Illustrations and Conventional Phrases. 78. Appeals to Passion or Pre- judice. 79. A Temperate and Accurate Style. 80. The Peroration. 66. Value of the "Last Word." -The reply is al- ways of great importance, and a struggle is fre- quently made for the "last word." Many persons affect to disbelieve in it, but certainly not those who are able by their eloquence to avail themselves fully of its advantages. Even evidence itself is sometimes sacrificed for the sake of the reply, although if the evidence be of the smallest value this is hardly a course which ought to be pursued. However power- ful arguments may be, facts are more powerful still. Nevertheless, it is frequently a question whether the advocate will rely on his address for the verdict or call witnesses and give the reply to his opponent. Under any circumstances, however, except in a case 76 AMERICAN ADVOCACY. where one advocate is powerful and the other weak of speech the reply is a valuable privilege. Some speeches, doubtless, are worse than none at all, and may even assist the other side by means of contrast. 67. Securing Attention of Court and Jury. No one will doubt that the first thing to do is to secure the attention of the jury. The next, that of the judge. Although this is named second, it is very often of the first importance, as, frequently, when the advocate has not the jury with him, he may win by having the judge. The latter 's influence is always powerful; therefore, the advocate should gain his attention if he can. If the judge take the advocate's view of law and facts, the verdict follows either there or elsewhere. He will, however, take at times a somewhat different view both of the facts and the law; and then, in spite of opposition, the advocate must endeavor to win his way with the jury. This is the object of the reply, as of the other processes of the case. And how to accomplish it is a question on the consideration of which too much time and study cannot well be be- stowed. 68. Flattering the Jury. In conciliating a jury, so as to put them on good terms with him and secure their attention, the advocate should be careful not to adopt a practice too common with young advocates, namely, that of flattering them. The advocate must not forget that their nature is by no means changed because they are in the jury-box. Stroking a jury is not a dig- nified proceeding; talking about their intelligence, as though it were necessary to remind them that they are not altogether fools, is the worst means to make them belive in the advocate'' 8 intelligence or knowledge of mankind. Nor do they need to be informed that they are Americans; those who are know the fact; those who are not take it as no compliment to their THE REPLY. 77 nationality. Again, obtruding upon them the infor- mation that they are sensible' men will not improve their opinion of the advocate or interest them in any way. What the advocate has to do is not to convince them that they are sensible, but that he is! Nor is it necessarj 7 to remind them that he is "quite certain that they will take an honest and impartial view of the facts;" this is not replying, nor is it rhetoric; it is the flimsiest of claptrap. Hackneyed expressions are always ineffective, stale, and irritating; they show a poverty of idea as well as language, and exhibit the weakest style of advocacy. There is no necessity to argue with the jury upon their honesty, as though there were some doubt about it; or their impartiality, as if the advocate had a suspicion that they were be- ing influenced by a strong interest on the other side. Any observations will be simply foolish that have for their object the inducing the jury to believe in them- selves ; a far better attempt will be to make them be- lieve in the advocate himself. 69. Display of Self-Confidence. The advocate should convince the jury that he believes in himself. No one can overestimate the value of faith in one's self. By this is not meant an obtrusive self-confi- dence or conceit, but an earnest and unassuming self- .reliance. Belief is a great power, and always lends something to effort. Belief in self has produced some of the greatest successes the world has seen. George .Eliot says: "The greater part of the worker's faith in himself is made up of the faith that others believe in him." So, faith acts and reacts. Of the two, it is preferable that an advocate believe in himself rather than in his case. If he believe in both, the case should be considered as good as won. 1 1 4> If," Bays Whately, "the pleader can induce a jury to believe not only in his own general integrity of character, but also in his sincere 78 AMERICAN ADVOCACY. 70. Personal Attack on Opponent or His Counsel. Another bad way for an advocate to begin a reply is to attack his opponent or his solicitor, or the client. The jury care for none of them. He has to demolish the case of his opponent, not him. Besides, abuse is neither argument nor advocacy; and any personal at- tack is mere abuse, except when it is used to denounce a witness whose evidence requires to be so dealt with. Nor will it assist the advocate's case to answer any attacks which his opponent may foolishly have made upon him. He should avoid being drawn from legiti- mate argument into a personal encounter. The dis- pute is not his, but his client's, and it is extremely selfish to indulge in a personal conflict at the latter's expense. If anything has been said which required an answer from the advocate, the time for giving it was at the moment of the utterance. When the ad- vocate undertakes to reply, it is not his case, but that of his client, that demands the individual attention of the jury. 71. Effect of an Earnest and Quiet Manner. Securing the attention of the jury is as much due to the manner in which the advocate addresses his hearers as the substance of what he says. The most thorough earnestness is the all-important quality either to possess or to assume. A quiet colloquial sen- tence or two, with not too much of solemnity, Uttered as if he had ^the fullest confidence in them without telling them so, and as if he also had the fullest con- fidence in himself, without asserting it, will be pretty conviction of the justice of his client's cause, this will give great addi- tional weight to his pleading, since he will thus be regarded as a sort of witness in the cause. And this accordingly is aimed at, and often with success, by practiced advocates. They employ the language and assume the manner of full belief and strong feeling." THE REPLY. 79 sure to establish a good understanding between him and the jury at the commencement. If he cannot succeed in this his address will have little effect, however powerful; whereas if he do succeed, every argument will have weight in proportion to its rele- vancy to the issue. 72. Order and Arrangement of the Reply. The next thing to be attended to now, although it was the first thing to prepare before the advocate rose, is the order and arrangement of his speech. No address can be good without this, and it cannot be altogether bad with it. The minds of the hearers will more easily follow and appreciate the address when they are taken along the order of circumstances as they oc- curred, or. to speak figuratively, the main road, than if led a steeple chase across country. The advocate should so arrange the arguments that the jury can see what is to follow as he advances along the line of facts, and it will appear as if it must be correct, because the one fact follows so naturally upon another. The whole case is spread out before the jury like a map, and the better its divisions are traced the more fully will their relative bear- ings be understood. This will be the result of a due order and arrangement of the reply. The advocate's opponent has made his c omments upon the case; has put prominently forward his own facts and placed plaintiff's as far as possible in the shade; has damaged some and demolished others. The plaintiff's attorney must now not only perform a like process with regard to the case of his opponent, but must throw light into the dark places and draw out his own facts from their temporary obscurity. ^ 73. Attacking Opponent's Case First. The best advocates (who invariably proceed by system) as a general rule adopt the course of grappling with their 80 AMERICAN ADVOCACY. opponent's case first. It is fresh in the minds of the jury, and the best time to deal with it is before it has been long enough there to make a deep impression. If the advocate return to it after dealing with his own case, he attacks instead of removing it, and may leave it still the last and deepest impression. In doing this, care must always be taken by the plaint- iff's attorney to avoid dwelling onminor discrepancies in his opponent's evidence or upon the trivialities of the case. Minute criticisms impair the force of an ad- dress like grains of dust in the wheels of machinery. They produce friction and retard in stead of advancing the cause. The jury are apt to think the advocate has nothing better to urge, and when he comes to greater matters, he will be jaded and wearied, and a good deal of the effect of his speech will be lost. He cannot assign any position in which trivial criti- cism should be placed, and the probability is, there- fore, that it will be out of place anywhere. If he at- tempt it before coming to his main arguments the jury will be wearied, and if after, his arguments will lose some of their force. Besides this, he endows trifles with a fictitious importance. He places them before the jury and magnifies them as though he brought them under a lens. 1 74. Dealing With the Effect of the Testimony, Not the Testimony Itself. It should also be borne in mind by the advocate in replying, that what he has really to deal with is not the testimony of the wit- 1 Whately says : "Too earnest and elaborate a refutation of argu- ments which are really insignificant, or which their opponent wishes to represent as such, will frequently have the effect of giving them im- portance. Whatever is slightly noticed and afterwards passed by with contempt, many readers and hearers will very often conclude (some- times for no better reason) to be really contemptible. But if they are assured of this again and again with great earnestness they often begin to doubt it." THE REPLY. 81 nesses, but the effect of it, or the real evidence to which it is reduced by process of examination. 1 If the advocate can deal with the effect of the evi- dence instead of with the truthfulness of a witness, 1 A wag tried some time since by Mr. Justice (now Lord Justice) Brett. The action was brought by the owner of a valuable horse, against a farrier, for negligence, by improperly shoeing; in con- sequence whereof the horse fell lame and had to be killed. The plaint- iff endeavored to prove that the hind shoes of horses were, to use a familiar expression, "rights and lefts." The defendant swore that this was a total erroneous supposition. His witnesses testified to the same -effect. Perjury was not attributed to any of them. They seemed to believe their own testimony, and the plaintiff was not prepared with evidence to the contrary, as the point arose during the trial from an -examination of the shoe by the counsel, who placed it in the hands of the defendant, and asked whether it was not made for the near foot. The witness said it would do for either the near or off foot. He was then pressed as to whether he would put it on either the one or the other, as it might chance. He -answered, yes. The nails were now placed through the holes, which, being properly beveled, gave to their points on the one limb of the shoe an outward direction, and on the other side a different inclination. The defendant was asked whether, looking at that fact, he was prepared to say the shoe was not made lor the near foot. He said it was not. He was then asked how it was that the nails in the two sides pointed at different angles? Answer: "It -was the fashion." The Judge: "The fashion with all farriers?" Answer: "Yes." In summing up, the learned judge (taking the testi- mony of the witnesses, and judging it, not by its truth but from its effect) said, "If you find a general mode of doing a particular thing you may depend upon it there is some good reason for so doing 5t f especially where it obtains universally in some mechanical business. If all farriers make horse-shoes with beveled holes slanting in one di- rection on one side, and in another direction on the other, you may be sure that is not done from mere caprice. What is the effect of the testi- mony? It is to show that if the shoe on which the nails slant in a par- ticular direction be placed on the off foot, that they will come out through the hoof and enable the farrier to clench them ; but if the shoe be fixed on to the near foot, thej* will have a tendency to penetrate the frog of the foot, and so cause pain and lameness to the animal. The question is, was that the*case here? Was a shoe, intended for the off foot, fastened to the near one?" The jury came to the conclusion that that had been the case from the effect of the evidence; the {testimony, un- contradlcted, being directly to the contrary, 6 82 AMERICAN ADVOCACY. it need hardly be said it will be so much the better for his case; so, also, if, instead of attacking the cred- ibility of a witness, he dispute accuracy, his memory or judgment. 1 Juries never like to be,lieve that a witness has com- mitted perjury, especially if he have no interest in the case. Nor does it please them ^o hear character assailed. If the advocate fall foul of the jury in these respects, he may as well sit down for all the good he can do his client. The effect of the testimony then is what the advocate has to deal with in reply. But if it becomes necessary, as it sometimes must, to ask the jury to disbelieve a witness, and the advo- cate can put it on no easier ground than that he is un- truthful, he should avoid doing it by denunciation ; that is only to be used in extreme cases, where virtuous indignation will do some mischief to the inner man if pent up longer; but he will find ''half steam up," will carry him along quite fast enough in any event. His just indignation should only be sufficiently let off, that it may communicate itself to the pent-up indig- nation of the jury, and let that off with it in the shape of a verdict. The best way of asking a jury to dis- believe an opponent's witness is to call attention to the evidence of one or two of the speaker's own witnesses. Some matters will depend partly upon the facts and partly upon the witness' judgment or understanding of those facts to which he speaks; his view may be entirely wrong, and his conclusion, which he puts forward as a fact, wrong also. 2 1 "Men are apt," says Whately, "to judge amiss of situations, persons, and circumstances, concerning which they have no exact knowledge, by applying to these the measure of their own feelings and experience, the result of which is that a correct account of these will often appear to them unnatural and an erroneous one natural." 2 Whately confirms this statement. "If," he says, "a person states he saw in the East Indies a number of persons who had been sleeping THE REPLY. 83 75. Importance to be Attached to the Probabilties of the Evidence. Probabilities are of more value than possibilities. Juries, like other people, attach more weight to them. They are extremely valuable in reply, and should be made the most of. Oppor- tunities which the witnesses had of seeing or know- ing that which they depose to is also a matter of the highest moment. The means of forming a judgment is another, and all these may be used with a jury in short and terse argument for the purpose of obtain- ing an adverse opinion to the evidence, without the necessity of asking them to say it is perjured. The advocate should exhaust all argument before he comes to that, unless he knows that perjury has been com- mitted, and then he should come to it boldly and at once, without giving the perjurer an opportunity of escape. He will have observed that he has left for a moment, but for a moment only, the line marked out, of dealing with his opponent's case before presenting his own. But it is necessary, in order to contrast the evidence, and will materially assist him in deal- ing with that of his opponent. It will not interfere with the course of the^advocate's argument, but will be advantageous to it when he comes to review the facts of his own case. exposed to the moon'sjrays, afllicted with certain symptoms, and that after taking a certain medicine they recovered, he is bearing testimony as to simple matters^of fact;S.but if he declare that the patients were so affected in consequence of the moon's; rays that such is the yeneral effect of them in that climate, his testimony, however worthy of credit, is borne to a different kind of conclusion, namely, not an individual but a general conclusion, and onejwhich will rest not solely on the veracity, but also on the judgment of the witness. "Even in the other oase, however, when the question relates to what is strictly a matter ofjfact, the intellectual character of the witness is not to be wholly left|otit of the account. A man may be strongly in- fluenced by prejudice to which the weakest men are ever the most liable may even fancy he sees what he does not." 84 AMERICAN ADVOCACY. 76. Conciseness in the Reply. At all times the advocate should be concise, but especially at this stage, and as short as may be. If he is not a good speaker it will be better to be brief, because indif- ferent speaking does not tell very much ; and he may well be brief if he is a good speaker, because good speaking tells a great deal. A good speech, how- ever short, goes all the way, but a stretch of mere windy talk invariably stops short of its object. But even a good speaker should guard against smother- ing- his points with too many words; the most fluent advocates require most pruning at the commence- ment. All that is wanted is to so place the facts that they will stand out boldly defined, like fruit upon a wall-tree where there is not too much wood. Almost a barrenness of language rather than an exuberance will be beneficial. The advocate must avoid clothing a fact with the drapery of fine language, and also the making too many points at once. Let each be made distinctly and separately, as though it were a work of art and made for the jury's critical examination; and when once made let it alone. 77. The Use of Illustrations and Conventional Phrases. There is a matter which, but for its con- stant recurrence, it would not be necessary to men- tion, and that is, that conventional phrases should, as a rule, be avoided; so should stale adages, which from common use become only one remove from slang itself; they show a poverty of ideas and a lack of originality, besides enfeebling the address. A man does not do himself justice when he has recourse to a common- place saying for the purpose of illustrating a point. It is neither ornamental nor argumentative, and is more adapted to the Peep-show than the Forum. But the great danger attending commonplaces is that they are so feeble and so easily demolished. What is the THE REPLY. 85 use of "Gentlemen, there is an old saying that good wine needs no bush," etc., etc., against a speaker who follows with sound, logical argument; or, if it be a matter of pure inference, who meets such rubbish with the strong and forcible language of common sense? The "old saying" ma}^ provoke a laugh, but the new saj r ing is the one that will make the impres- sion. Not that illustrations are to be ignored : they are among the most useful of all the means employed by the rhetorician. They bring home the meaning with a force and power that nothing can surpass; but the illustration, if nothing else, should be original. It should be a flash from the speaker's own mind, not a mere reflection of someone else's lantern, however brilliantly it may burn. 1 78. Appeals to Passion or Prejudice. The advo- cate has already been advised against a too liberal exhibition of emotion. It need scarcely be added that appealing to the passions of a jury, in reply, in a direct manner is out of place and unfair. They are not to determine by passion or feeling, and attempts to arouse the emotions may mislead the judgment. The sympathies of the jury are a proper subject to reach if the advocate can do it by the facts, and not by meretricious sentiment; this is a legitimate exer- cise of the art of advocacy and of the powers of elo- quence; and the art consists in so presenting the facts that they will accomplish that which the advocate is forbidden to attempt. Any attempt, however, to in- fluence a jury by an appeal to their feelings is certain to meet with reprobation. It is clumsy and coarse, at the best, and as bad as an open act of intimidation; 1 Whately says : "There is very little, comparatively, of energy pro- duced by any metaphor or simile that is in common use and already familiar to the hearer.'' An illustration, however liomely, if original and apt, is always pleasing and forcible. 86 AMERICAN ADVOCACY. if the advocate cannot reach their sympathies without a violent attack, he had better rest upon his facts and reserve his pathos for his client. Nor will he ever succeed in getting the judge with him if he openly attempt to introduce prejudice. It is a kind of rhe- torical burglary, which none but those who cannot effect their object by other means would ever perpe- trate. It is logically wrong, as well as morally. If the circumstances are such as .naturally excite the sympathies of the jury in favor of the advocate's cli- ent, he has no need to make a nourish of trumpets to announce the fact; if they are not such, he will fail to move the jury by the employment of feeble arts for that purpose; besides which, he will probably set the judge against him, if not against his case; for, he may be sure that, in his desire to do justice between the parties, the judge will do his best to prevent such an advocate winning by unfair means. 79. A Temperate and Accurate Style. A reply should be comprehensive and compact; it should be temperate as well as bold. In its moderation will be its strength. Violence of language is invariably weak; loudness of tone but a noisy accompaniment, at the best, which stuns the ear instead of making the speaker heard. With a tone always above the natural key, there can be no modulation, which is the music of oratory ; the effect of which is to entertain while the feast of reason proceeds. 1 1 Lord Brougham said of Erskine: "Juries have declared that they felt it impossible to remove their looks from him when He had riveted, and, as it were, fascinated them by his first glance. Then hear his voice of surpassing sweetness, clear, flexible, though exquisitely fitted to strains of earnestness/' "His action," says Espinasse, "was always ap- propriate, chaste, easy, natural, * * * the tones of his voice, though sharp, were full, destitute of any tinge of Scotch accent, and adequate to any emergency almost scientifically modulated to the occasion." THE REPLY. 87 An advocate may overdo his own facts, or say too much against those of his opponent; and it is a good thing at the bar, as soon as the advocate can do so, to "let his moderation be known unto all men." And moderation in voice is no less pleasing than in language. Some men shout so in reply that one would think the jury some poor shipwrecked wretches on a rock, while one from shore was trying to make him- self heard above the tempest. 80. The Peroration. A word as to the perora- tion, which should not, like the end of a squib, be all bang, nor like the finish of a rocket, all stars above every one's head. What it should be is a common- sense and pleasant finish attractive, impressive, and as polished as may be. It should leave upon the mind a pleasing recollection. It should be well constructed, appropriate, and short. As the exordium is intended, with a few well-chosen words, to secure the hearer's attention, so the peroration is designed to leave upon his mind the satisfaction that his attention has been well bestowed. 1 1 The following is a peroration from Erskine's speech for the Bishop of Bangor. which may be useful as something more than a mere exam- ple of peroration : "I cannot endure the humiliation of fighting with a shadow and the imprudence of giving importance to what I hold to be nothing, by put- ting anything in the scale against it, a conduct which would amount to a confession that something had been proved which demanded an answer. How far those from whom my instructions come may think me war- ranted in pursuing this course, I do not know; but the decision of that question will not rest with either of us, if your good sense and con- sciences should, as I am persuaded they will, give an immediate and seasonable sanction to this conclusion of the trial/' CHAPTER IX. CONDUCT OF A CRIMINAL PROSECUTION. 81. Order of a Criminal Trial. 82. Prosecution not Persecution. 83. Opening Statement Avoid- ing Argument. 84. Opening Statement Avoid- ing Exaggeration. 85. Opening Statement Con- ventional and Undignified Phrases. 86. Opening Statement Stating Personal Belief as to Guilt of Accused. 87. Opening Statement Inter- preting the Indictment to the Jury. 88. Opening Statement Only Facts Bearing Directly on the Issue to be Stated. 89. Opening Statement Antici- pating the Defense. 90. The Evidence Order and Arrangement. 91. The Evidence Overlaying the Case with Too Much Evidence. 92. The Evidence Police Tes- timony Not to be Implic- itly Relied Upon. 93. The Evidence Concentrat- ing Attack on Main De- fenses of Accused. 94. The Evidence Taking Ad- vantage of the Defendant's Cross-Examination. 95. The Evidence How to Break Down a False Alibi. 96. Closing Address Temper- ate Reply versus "Earnest Appeal." 81. Order of a Criminal Trial. The first thing in a criminal trial is the arraignment of the accused. To arraign the accused in criminal practice is to bring the prisoner to the bar of the court to answer the matter charged upon him in the indictment. The procedure consists in calling upon the prisoner by name and stating the charge against him, or, if he demands it, reading to him the indictment and demanding of him whether he be guilty or CONDUCT OF A CRIMINAL PROSECUTION. 89 not guilty, and entering his plea. 1 To the arraignment accused may either plead guilty or not guilty or "stand mute." If the accused refuses to plead, the court instructs a plea of not guilty and the trial proceeds as if the accused had so pleaded. After arraignment accused has opportunity to interpose certain motions more or less vexatious in their nature as a general rule. He may seek a discharge on motion on such grounds as former jeopardy, denial of a speedy trial to his prejudice, and for prosecution on information without good cause shown where grand jury failed to indict. He may enter a demurrer to the indictment or he may move to quash the indictment on many and various grounds. He may ask for change of venue or removal of cause. If the charge against the accused is indefinite he may demand a bill of particulars. He may demand also a list of the witnesses testify- ing against him. He then enters his formal plea to the indictment. After that he may ask for a postponement or continuance of the trial on certain grounds. The selection of the jury is the next important stage in the proceedings. Before this is done, how- ever, the prosecuting officer has the right to enter a nolle prosequi. 2 ' Before, also, the actual selection of 1 The arraignment of the accused must be the first step In the pro- gress of the trial: it must precede the impaneling of the jury and the hearing of the evidence; and failure to so arraign the defendant Is reversible error, which is not cured by arraignment after the trial has begun. Abbott's Criminal Trial Brief, p. 25, and cases cited. 2 After the jury is sworn the defendant acquires the right to have the cause disposed of by its verdict; and if, without cause or the defendant's consent, a nolle prosequi is entered and the jury discharged, this amounts to an acquittal, which the defendant may set up as a defense to a subsequent prosecution for the same offense. Abbott's Criminal Trial Brief, p. 197, and cases cited. 90 AMERICAN ADVOCACY. the jury accused may interpose a demand for a copy of the panel; he may enter, on various grounds, a challenge to the array or entire panel. After these interruptions, if entered, have been overcome, the parties must at once proceed to the task of selecting a trial jury. Following the selection and "swearing in" of the jury come the opening statements of the prosecu- tion and the defense, about which we shall have more to say in subsequent sections. Then follow in a reg- ular, and, as a general rule, uninterrupted order the introduction of evidence, the closing addresses the summing up and reply of counsel, and the charge, instructions or summing up of the court to the jury, after which the fate of the defendant is in the hands of the "twelve good men and true." 82. Prosecution Not Persecution. Above every- thing, it .is important that the prosecutor should exhibit no feeling in the conduct of a prosecution. He is not the offended party nor the minister of jus- tice, as he is sometimes erroneously called. He is the presenter of the accused at the bar of justice, and is the last person who should exhibit emotion. There should appear no anxiety on the part of the counsel to obtain a conviction. Whoever the accused may be, and whoever the accuser, and whatsoever the nature of the charge, there should appear but one unswerv- ing desire on the part of the advocate, namely, to lay the facts of the case before the tribunal which is to judge of them. Inflexible justice is required on the part of him who sometimes calls himself its minister. Neither the shocking nature of the crime, nor the heinous character of the accused, nor the exalted rank of the accuser, nor any other circum- stance, should disturb the mind or temper of the advocate. CONDUCT OF A CRIMINAL PROSECUTION. 91 But it is not in prosecutions for crimes of the deeper guilt that the danger of excited feelings has to be guarded against. In these there is generally too much of the sepulchral tone and manner, as though the wretched criminal were delivering his last dying speech and confession by proxy. It is in cases such as libel, where the circumstances may be particularly aggravated and the accuser a person of distinguished position in society; or it may be in some other misde- meanor of the social sort, where mortal vindictive- ness, rather than divine justice, seems occasionally to be the inspirer if not the director of the pro- ceedings. But whatever may be the nature of the charge or the quality of accused or accuser, let there be no feeling at least, no manifestation of it. Nothing can be worse, either as a matter of abstract justice, or as a matter of mere advocacy. A man who throws feeling into a prosecution, awakens an opposite sentiment in favor of the accused. The sense of fair play, which every American is credited with possessing, is out- raged by an attempt to convict a man by declamation and angry expression. Is he guilty? That is the ques- tion. The prosecutor is not .to denounce the crime; that has no doubt been committed by some one, and is none the deeper or the wickeder, denounce it as he will; he is not to denounce the man; the latter may not be guilty ; and if not, shall the innocent be de- nounced? He may be guilty; what, then, is the pros- ecutor his judge or his executioner? So that he will be none the worse, and none the better, the crime no deeper, and the charge no nearer proof, by declamation or anger. Accused persons have been known to be acquitted through a too intense desire to convict; especially in cases where self -constituted bodies of men support the public morality by public subscriptions. 92 AMERICAN ADVOCACY. 83. Opening Statement Avoiding Argument. - Another error to avoid is argument at the open- ing of the case for the prosecution. 1 At this stage there is nothing to argue (unless the prose- cutor wants to argue that he is telling the truth), and its principal effect will be to throw doubt on his case. Facts that require nursing the moment they are presented must be weak indeed; and the prosecutor may depend upon it, such swaddling clothes will never keep life in them. What can be stronger or healthier than a plain statement of a simple fact? Aye, but if it be not a simple fact, but a series of compound facts, what then? It is a mere matter of arithmetic. Reduce the compounds to simples; and for such analysis there is no need for argument. The best opening of a case for the pros- ecution is a clear and concise statement of facts, without embellishment, without argument, and with- out feeling. It may be necessary to explain matters, or to separate them, or to connect them, or to treat them in some other manner by way of elucidation; but it is never necessary, and is therefore bad advo- cacy, to color them, or in any way to alter their appearance, or apply to them a far-fetched and pos- sibly foreign meaning. Moreover, such a practice very often furnishes ground for a reversal, if the accused is convicted. 2 1 Opening statements should consist of a presentation of the facts intended to be given in evidence by the respective parties, to the exclusion of argument and irrelevant and prejudicial matters. Hoch- heimer on Crimes and Criminal Procedure (1897), 241. 2 Thus it was held in a certain case that an opening address in a crim- inal case, made by the district attorney against objection, containing not only a statement of the evidence which it was expected would be introduced, but also a full and exhaustive argument of the case, much of which was based upon a state of facts which did not appear in the evidence, furnished ground for reversal of a judgment of conviction. State v. Williams, 63 Iowa, 140, 18 N. W. Rep. 682. CONDUCT OF A CRIMINAL PROSECUTION. 93 84. Opening Statement Avoiding Exaggeration. Again, all exaggeration is to be avoided; the prose- cutor should neither magnify that which he can prove, nor open a single fact that he cannot. It is not onty bad as a matter of advocacy, but dishonest as a mat- ter of morality. As the jury approaches the evidence of the case by way of examination, the facts should expand upon the view rather than diminish ; as dimin- ish they must if the prosecutor exaggerate them in his opening. No art should be employed for the mere purpose of convicting a prisoner, but there should be no abandonment of it because a crime happens to be the subject of the prosecutor's advocacy. It is his duty to convince the jury of the guilt of the accused if he can do so fairly. To accomplish this he must present the facts in their natural order (which is art), and in the most comprehensive manner (which is art), and in the most simple manner (which also is art). But before all things, before even the conviction of the guilty, it should be the prosecutor's care to refrain from stating the smallest matter which in his conscience he does not believe to be capable of proof. If, inadvertently, this be done, as indeed it must sometimes from erroneous instructions, he should spare no pains to disabuse the minds of the jury of the impression which such a statement may have made. He never can tell what effect a word may have; a verdict may be influenced by the most trifling observation. For this reason he should instantly repair any mistake which may operate against the accused. 85. Opening Statement Conventional and Undigni- fied Phrases. Another error, very frequently com- mitted, should by all means be avoided, that of telling a jury that the advocate thinks he shall be able to prove so-and-so; or he thinks he shall be able to show 94 AMERICAN ADVOCACY. so-and-so. This is unfair to the prisoner, if he fails, and is extremely weak, if he succeed. What he knows he can prove, open ; what he is doubtful about, leave for the evidence. Need it be said that expres- sions such as "How on earth could the prisoner have known so-and-so?" and, "How on earth could he have thought so-and-so?" should be avoided, and that language, such as "It is a lie! gentlemen," is not graceful or dignified? Nor should the counsel for the prosecution assume to himself the office of defending the prosecutor or prosecutrix, as the case may be. He may do so in the most efficient manner, if he be a skillful advocate; but that must not appear to be the main object of the prosecution. If Cassar's wife be above suspicion, she will need no defender: and it will be no compliment to say that the advocate is there for the purpose of vindicating her character. $6. Opening Statement Stating Personal Belief as to Guilt of Accused. The next thing for the prose- cutor to remember is, never to say the prisoner is guilty. It is an utterly useless expression, and seems to imply that the prosecutor has a feeling in the matter, even when he may have none. He has to lay the facts before the jury from which no other inference than that of guilt can reasonably arise. Guilty is the sum total of inferences and probabilities arising from the facts, and is to be pronounced only by those who are sworn to try whether he be guilty or not guilty. 87. Opening Statement Interpreting the Indict- ment to the Jury. The charge against the prisoner should be stated clearly and concisely. It is not always stated clearly and concisely. The judge, gen- erally, has to tell the jury, after all the speeches and all the evidence, what the charge is and what is the CONDUCT OF A CRIMINAL PROSECUTION. 95 nature of the charge. It is remarkable that young advocates, as a rule, both in prosecuting and de- fending, leave out the offense stated in the indict- ment. Now, there are many wa} 7 s of stating a charge, but there is only one way to inform the minds of the jury of the offense which the accused is alleged to have committed. And the first thing- necessary is to strip it of the legal jargon in which it is enfolded. 1 The advocate is the inter- preter of this unknown thing to the people or "the country." Inwrapped as the simple matter is in the manifold mcumbrances and technicalities of the law, how is a mortal common sense jury to know whether the enfolded thing before them be a wolf or one's grandmother? Unless they understand the nature of the charge they will never appreciate thor- oughly the finer points of the evidence, which may be so important to lead them to a just conclusion. The advocate must learn, therefore, to put the mean- ing of indictments into every-day language, and then he will reduce it to simplicity in a few words. 88. Opening Statement Only Facts Bearing Directly" on the Issue to be Stated. Now come the facts; but be it remembered that nothing is to be stated, remote or near, that has not a direct bearing upon the issue. Every- thing that may prejudice the jury as the advocate loves an easy, conscience and values his own character for honesty must be carefully excluded; and above all things he should avoid doing in an oblique manner 1 Since the days of Babel there has been no mortal language less understood of the people than the lawyers' 1 dialect ; no man, however deep in linguistics, will ever be deep enough to get to the bottom of that unfathomable vortex. If a person desires to enjoy a piece of real humor, watch a jury while they listen to a prisoner being "given in charge" on some ski 1 fully worded indictment, with complications enpugh to baflle the father of all worldly complications himself. 96 AMERICAN ADVOCACY. that which it would be unfair to do directty. Nor is this warningunnecessary. Many have erred inadvert ently in their zeal for the "administration of justice," who, in a matter of private and social concern, would guard themselves from the faintest appearance of unfairness. The prosecutor is not to be what is known in some proceedings as a "devil's advocate," employed when they desire to "canonize" a lady or gentleman. He is not required to canonize the prisoner, but to do him as much justice as if he had some sorrow for his situation. The rule, simply stated, is that the prosecuting attorney has a right to state in his opening only those facts which the prosecution intends to prove, but not those of which he cannot offer competent evidence. 1 89. Opening Statement Anticipating the Defense. In proceeding with his statement there is often a danger of the advocate being led into an anticipation of the defense that will be set up either to the whole or to any portion of it. This ought never in a prose- cution to be yielded to, if for no other reason, at least for the very obvious one that, if the prisoner be defended, the prosecution has the right of replying. Such expressions as, "It may be said by my learned friend," etc., are not legitimately a part of an open- ing statement. But it is by no means improper in 1 The counsel for the accused has a right to interpose and object to any impropriety of the prosecuting counsel in the opening, and, if the court allow him to proceed therein, to take an exception to the ruling, and to request an instruction to the jury to correct the effect of such im- propriety. Abbott's Criminal Trial Brief, p. 291, and cases cited. "But the purpose of the opening address,'' says Mr. Abbott, "is to inform the jury as to the nature of the case in hand, and while deliberate mis- statement of fact calculated to prejudice the accused, and not corrected by the court, would be ground for reversal, the rule is different where facts are honestly stated with the expectation of proving them, which, through some unforeseen circumstances, counsel fails to do.'' CONDUCT OF A CRIMINAL PROSECUTION. 97 favor of the accused to present that view of the fact which the advocate finds himself obliged to deal with and dispose of. The moment he shows himself eager to convict, the jury will suspect him, or the prose cutor, of vindictive feeling, one of the worst symp- toms to manifest either at the bar or in the witness- box. 90. The Evidence Order and Arrangement. - "Order and arrangement" these must be observed if the advocate wish the jury thorough!} 7 to understand the statement he has to make. As the advocate opens his case, so should the witnesses be called to prove it; the continuity of circumstances must not be broken, although there may be divers branches of the subject; there may be many chapters, but they were enacted in order in the real history he is unfolding. The advocate will sometimes find that the depositions are confused and complicated. Before the magistrates, where evidence is taken in portions, as it is obtained, and in the course of many adjournments or remands, it is next to impossible to follow any rule in this respect. But it will be the advocate's duty to separate and arrange the various portions of evidence before presenting them to the jury. 91. The Evidence Overlaying the Case With Too Much Evidence. "Overlaying the case," as it is called, is a dangerous proceeding. It is like tak- ing a feather bed, bolster and two pillows to smother a mouse with, when the feather bed would be amply sufficient if well applied. A number of witnesses cannot agree on all points. We do not mean in words, because that would at once damn their evidence, but as to facts themselves, and if the advocate call a number of witnesses, the chances are that he will call a number of contradictions, and the moment he 7 98 AMERICAN ADVOCACY. gets one witness to contradict another upon any point how little material soever, if it be material, the jury, as a rule, will determine that portion of the evidence in favor of the accused, unless other circumstances lead them to a different conclusion. The advocate will have given him already the benefit of one doubt. Then, again, among the multitude may creep in some one or two of a disreputable kind; the advo- cate may not know them , but his "learned friend," if he have any skill, will soon introduce them to him; and if their character or evidence be "shaky," as it is called forensically, it will lower the average of the whole; at all events the merits of his case will sink with it. It requires a number of respectable wit- nesses to buoy up a case laden with one whose char- acter renders him unworthy of belief. 1 1 We may here mention one very important English ease in which the Crown was cruelly hoodwinked. It was a case of murder. A very bad case. Horribly brutal. The public were shocked and intensely interested throughout the length and breadth of the land. It was a murder that ranks among the great murders of the world. In conse- quence whereof there was more bungling among the police and more conflict among police authorities than usual. Borough police and Scotland Yard almost taking one another up if not knocking one another down. All this is a thing of yesterday to one's recollection. When the police had laid hold of the supposed murderer what scenes were enacted at the police court day by day, and how the conflicting "authorities," with official and non-official jealousy, proceeded on the uneven tenor of their way as well as other people's way ! For it was a great and notable murder. But what is more to our point is not the notoriety or jealousy, or the degrees of activity or non-activity of intelligent or non-intelligent offi- cers, but the Crown Institution itself, and its staff for taking down the "proofs." The "proofs" came thick and fast one may be sure; almost everybody had a "proof." The whole country seemed to have been called from its avocations to see the murder done. The prisoner was seen here and seen there ; he was buying in this shop and visiting in that; he was singing in one place and dancing in another; courting in one lonely spot and murdering in another. There never were so many *'clews" to a single crime. At last the perpetrator of one horrible mur- CONDUCT OF A CRIMINAL PROSECUTION. 99 92 The Evidence Police Testimony Not to be Implicitly Relied Upon. Another matter to be on one's guard against, is being overdone by police testimony. Very few policemen are really un- truthful; and very few would unnecessarily "pile on the evidence" against a man; but all are zeal- ous, and zeal is a force, as we all know, that will some- times impel us beyond the boundary line of discretion. They require to be kept in with a steady and firm hand, for much zeal on their part, like too much anxiety on the part of the prosecutor, is sure to oper- ate against what the prosecution invariably calls "the interest of public justice." arouse their sympathy and to gain their confidence. In harmony with the general tendency of our laws to favor the defendant, few restrictions are placed upon counsel for the defendant in his opening state- ment. The trial court, however, always properly 1 restricts him from stating matters which would be inadmissible in evidence. 1 102. Methods of Objection to Evidence. Again, if the prosecution inadvertently open a case differing materially from the evidence of witnesses, or any of them, it will be matter of observation which will not be without its effect. It is not the business of the de- fendant's counsel to object ; he does not know what the prosecution can prove, and if the latter's proof fall short, so much the better for his client. But he must narrowly watch and object if counsel for the prosecu- tion propose to read any letter or document, or state any conversation which, when the proper time comes, may not be admissible. It is useless after the mis- chief has been done and the impression made on the minds of the jury, for the judge to say, "I shall tell the jury that that document or that conversation is not evidence, and they are to dismiss it from their minds." They cannot dismiss it from their minds, and it is evidence, no matter whether called so or i Meyer v. State (Tex. Cr. App.). 41 S. W. Eep. 632. In this case v which was a trial of a defendant for assault upon his wife, defendant's counsel was permitted in his opening statement to comment on his wife's appearance on the witness stand, and her manner of testifying,, so far as the same might tend to affect her credibility. But it was held that it was not error to refuse to permit him to also state to the jury that it was shown by her appearance, disposition, "the looks of her eyes, her conduct, her demeanor, and manner of testifying, that she is not a woman of private or domestic habits, but a woman of worldly experience, of heartless feelings, devoid of modesty, and of reckless- and adventurous character " CONDUCT OF A DEFENSE IN A CRIMINAL TRIAL. 113 not, when once before them, and will in all human probabilitjr have an influence on their judgment. It is like the village lawyer telling the man that they could not put him in the stocks; the irrefutable answer was, "But I am here." The defendant's lawyer must further take care that if he succeed in shutting out a document he exclude also all obser- vations upon it, for nothing is more unfair than to allude to matter which is not in evidence; although it is often inadvertentty done. While the advocate exercises the utmost vigilance to prevent the admission of matter which is not evi- dence, care should be taken not to object to every question on that account, or because it may be put in a leading form or in a form that may be otherwise objectionable. Too many objections have the bad effect of wasting time and of raising an unjust sus- picion in the mind of the jury. That the defendant's attorney should preserve the most even and calm demeanor in conducting a crim- inal defense it is hardly necessary to observe. It is, indeed, a part, and no unimportant part, of his case. Irritation andquerulousness are bad accompaniments of the best defense; and if he win, it will be in spite of them, and not by their assistance. Let the worst be stated against him, but, if possible, he should not let the worst be proved. This must be his object in following closely the witnesses for the prosecution. 103. Emphasizing Mistakes of Inaccurate Wit- nesses. The defendant's attorney must be careful to note the points of difference between the witnesses as weU as the points of agreement. For observe: They may agree on some point in his favor and dis- agree as to something which is against him, and indeed, any disagreement may be turned to advan- tage. With a little experience and a good deal of 8 114 AMERICAN ADVOCACY. observation he will be able to distinguish between those matters of detail which sometimes betray per- jured testimony, and details which are of no import- ance whatever ; as also to distinguish between mere inaccuracies in the evidence, arising from a slovenly habit of thought, and inaccuracies which are artfully contrived to deceive. Inaccurate witnesses, when properly cross-examined, will often destroy the effect of the most accurate, as they will raise a doubt where none would otherwise exist. Inaccuracies, therefore, as to date, time, place, position of the parties, what was said, by whom, and other matters of a like kind, ought not to be overlooked, due regard being had to what was before observed as to mere discrepancies. 104. Cross -Examination by the Defense Gen- eral Bales. In cross-examination the utmost care should be exercised , otherwise the facts, instead of being toned down, will stand out the more clearly. The danger is so great to the unfortunate object whose fate may be determined by an injudicious question, that the advocate had better not cross- examine at all if he has not perfect confidence in the line he is taking, and that the answers will not endanger his liberty of life. If the advocate don't know what to ask, ask nothing. 1 1 "I do not think," says Mr. Harris, "that any advocate, however olever he may be, should take upon himself a defense of any import- ance till he has had some experience. No man without it can cross- examine unless at great risk. He may ask questions and get answers, but he will be a wonderfully fortunate man if he do not inflict more damage upon his client than upon the witness. It has often occurred that .after a spirited cross-examination by a young advocate, he has made the observation, 'I think I have settled him, haven't I? 1 In the civility of my heart I have answered, 'Yes, / think you have." 1 At the same time, I have no doubt we were speaking of two very different persons, he referring to the witness and I to his unfortunate client." CONDUCT OF A DEFENSE IN A CRIMINAL TRIAL. 115 The best preparation a man can have to qualify himself to cross-examine is to study carefully the mode in which the best men proceed, and to acquire a knowledge of character, of human nature, of what is called "the world." One man may have a greater aptitude than another, but with the most gifted it requires years of training and observation to arrive at anything like perfection. With the ordinary indi- vidual, therefore, too much study cannot be given to acquiring sound knowledge of the art. While his cross-examination is proceeding, the counsel for the prosecution will watch for supplemental evidence, or for an opening through which he may drag some in. Frequently, he would have few materials to ask a verdict upon without this so-called examination, and that being so, the defendant's attorney should ask as little as he possibly can. If he cannot serve his client he should avoid injuring him. Of course, the greater his ability and the more knowledge he acquires, the more he will be able to accomplish with the fewest questions. 105. Cross-Examination by the Defense "Draw- ing Out" an Opposing Witness. At the commence- ment it is a good plan to throw out one or two trifling and harmless questions in order to ascertain the tern per and feeling of the witness. It will tend also to put him on good terms with the advocate, if there be a necessity for it. He may have been brought into court against his will and obliged to say what he has said; but with mild encouragement and a little gentle leading he will probably follow you with the docility of a friendly witness. He may know a great deal more than he has said, and what he knows may throw much light on what has gone before. He may be a well-disposed witness, after all, and inclined to give a different color to the case. Everyone knows how 116 AMERICAN ADVOCACY. much a little coloring changes the appearance of a bare wall; so it does the aspect of a bare fact. But if the advocate commence by treating the witness in a hostile spirit, as though, being a. witness for the pros- ecution, he must necessarily be adverse in feeling to the prisoner, he will lose the benefit of all the kind things he may be able to say in his behalf. 106. Cross-Examination by the Defense How to Handle Hostile Witnesses. If, on the other hand, the advocate perceive that the witness has a strong* feeling in the matter, the less he has to do with him the better. He will drive every nail home which the prosecution may not have struck forcibly enough. Ask him one question: he will answer as if he had been asked half a dozen, and every answer will be unfavorable. The cross-examiner might as well butt the witness-box with his head (and better, for his client's sake) as question a witness of this kind. If he should get anything favorable it will be by acci- dent, and because the witness does not perceive the drift of the question. Everything the advocate asks gives him the opportunity for a speech against the prisoner. If the advocate can show the witness' 1 strong feeling by a well-conceived question or two, it is all he ought to attempt with a witness of this kind, unless, indeed he can convict him of an untruth. These are his only chances with such a witness. But many hostile witnesses may be treated in a different manner, according to their degrees of hostil- ity and their temperament. The advocate may some- times destroy the effect of the evidence of an adverse witness by making him appear more hostile than he really is. He may make him exaggerate or unsay something and say it again. If he cannot pull him off his high-horse on one side he may perhaps push him over on the other; and, so long as he get him CONDUCT OF A DEFENSE IN A CRIMINAL TRIAL. 117 off, it does not much matter on which side he lands him. Perhaps the witness will show himself spiteful, and lose his temper at the same time; if so, it will be in the advocate's favor, for juries dislike, above all things, to see spite in the witness-box. 107. Whether or Not Witnesses Should be Called or Case Submitted on State's Evidence. Having completed his duty in the above respect, the advo- cate will not be indiscreet enough to "submit to the court that there is no evidence to go to the jury," if there be some; but will consider whether he will call witnesses, if he should not have made up his mind at an earlier stage of the case. If the evidence against him be weak, and his own not strong, he ought not to call any. By doing so he will lose the last word, and, what is perhaps of far greater importance, run the risk of strengthening the case against him on the cross-examination by the counsel for the prosecution. This has often been done to the ruin of the accused. If at length the advocate find that he ought to call witnesses, he should avoid calling too many; or rather too many to the same subject-matter. One good witness is worth a dozen indifferent ones, and it is much ea.sier to get contradictions from a dozen than from two or three. The advocate should remember, too, that a contradiction in his witnesses will be a much more serious affair than a contradic- tion among those of the other side; for, though the law presumes every man innocent until he be proved guilty, the jury presumes every man on his trial to be guilty until the evidence fails to convict him. They will look in most cases with some suspicion upon the evidence for the defense, and every weak point in it will be magnified accordingly. In most cases the witnesses for a prisoner either save or convict him. If they are good witnesses and honest, they are of 118 AMERICAN ADVOCACY. inestimable importance, but if they are shady, they will almost always be shaky, and infinitely worse than none at all. 108. Closing Address for the Defense Calling Attention to Absence of Motive on Part of Accused. But whether the advocate call them or not, he will at last come to that very important part of his duty, namely, his speech on behalf of his client. The advocate will now in the pleasantest manner but with due gravity commence his defense, and if the accused be a person of character, especially if he occupy any position in the social scale, he will do so by bringing" those facts prominently before the jury. Nothing is more calculated to engage their attention and enlist their sympathies than this, besides which the advo- cate excites as well as gratifies their curiosity. This feeling is akin to surprise, and,nothing takes a firmer hold of the attention. At the same time he will almost have excited the hopes of the jury on behalf of the accused. The prosecutor will have passed from their minds and a new object presented itself, namely, that of a respectable, well-educated man in the dock. Imagination deepens the disgrace and awakens still tenderer sympathies on his behalf. They will be sure to think, without any reminder on the advocate's part, of those belonging to him, and of the hearts that beat in unison with his own. This is a part which should not be hurried but given time to play. Now the advocate should bring forward the charge; if it be one of enormous guilt, or of a mean and despicable kind, or one revolting to humanity, what a contrast is produced between the character and the crime! There is an inherent improbability against such a man committing such an offense! That is a good contrast to start with. And, here again, the advocate should be careful not to hurry the jury CONDUCT OF A DEFENSE IN A CRIMINAL TRIAL. 119 away from so good a situation in the drama. If he has performed this part of his defense with art and skill he has already prepared the mind for the impressions that are to come. A little lingering around the scene, without too much to say, only to give time before he addresses himself to argument, will be beneficial. Let them just have time to con- template the scene and take in its misery. Connected with the improbabilities will be, possi- bly, absence of motive. If so, the subject comes in naturally at this point. If a motiye has been sug- gested it must be grappled with and should be as soon as possible; if not, it is a happy circumstance to be commented upon briefly but with fervor. 109. Closing Address for the Defense Calling At- tention to Motive of Prosecuting Witness. Perhaps the advocate will discover some motive for the prosecu- tion apart from the divine "interests of justice;" if so, that is a kind of torpedo which, when he explodes it, will blow the honest prosecutor out of the water. Having reached this point, now will be the time for a display of his powers of declamation. So he may prepare to use them without delay, for he has Innocence in the dock and Guilt in the witness-box! Such, at least, in the eyes of the jury, is the last situation in the drama. And here he may resume his seat while the curtain is dropped. If any one thinks this pic- ture exaggerated or overdrawn, the only answer is that it is from life. Many an eloquent advocate past and present has accomplished all that has been said by the same or similar means. And whenever the advocate reaches a point in a defense where the minds of the jury are wavering, and where he can honestly excite a prejudice against the prosecutor or his witnesses, a few heart-warm sentences of well- timed declamation are all that is necessary to demol- 120 AMERICAN ADVOCACY. ish the case for the prosecution. Declamation, judiciously employed, is like cavalry in battle, dash- ing in just as the enemy is on the point of yielding and sweeping him from the field. 1 110. Closing Address for the Defense Explaining Away Difficult and Awkward Points in the Evidence. The jury will follow the advocate sentence by sen- tence and word for word, and the stronger his argu- ments the more intently they listen. If now he can point out how they may acquit consistently with their oaths, they will feel inclined to do so. If he can ex- plain away satisfactorily one or two awkward points in the evidence, the verdict will be his. It has re- duced itself to this already. Without the employ- ment of any clap-trap he has gone a long way on the 1 William Howitt, in speaking of Erskine as an advocate, says: "Lord Erskine has been pronounced by other distinguished lawyers the greatest forensic orator that England has ever produced, but his fiery and electric eloquence was not more remarkable than the warm and noble impulses of his heart. They were his humanity and patriotism, his indignation against whatever was unjust and oppressive, which kindled and inspired his great intellect, and their expression carried irre- sistibly the souls of his hearers along with him. Under the fervid outgush of his intense love of right, his vehement hatred of human wrong, the dullest hearts caught a new life and fire, and he drew verdicts from men who, without his communicated spirit, would have never dreamed of the sublime heights of truth and justice to which he carried them. The secret of his triumphs was the possession of a noble heart vivifying a quick and instinct-like intellect. He seemed to spring at once to the truth of the case submitted to him, and he hurried his hearers with him almost unconsciously to the same goal. It is rare to see a mind like Erskine's surviving all the cold cautions and technical sophistries of a legal education, and seeking its triumphs only in the triumphs of humanity; a mind unseduced by royal favor or party, much less by selfish individual interests ; exulting in securing the victory of truth, even at the highest peril of self-sacrifice. Such men may have their weaknesses, as Erskine had his, but they have a strength to which no mere intellect or learning can ever reach. For this reason there is no life of any lawyer which I ever read with the same delight as I have read that of Thomas Erskine." CONDUCT OF A DEFENSE IN A CRIMINAL TRIAL. 121 road. He has reached the feelings of the jury and they wish to acquit. Now, it is the advocate's duty to show how it can be done. He should bring up the evidence for the prosecution, not like a tender deli- cate creature, to be nurtured as it was by tlje counsel on the other side, but like a hideous thing to be looked at and put away out of sight. What is this evidence? Can he proceed to show that it is not con- sistent as a truthful story should be, but a patch- work performance of many pieces and many colors, a thing of no pattern? If so. it begins to lose its hold upon the jury; the improbabilities thicken and strengthen; there is increasing sympathy for the accused as each juryman begins to think he may be the victim of a terrible mistake, or worse, of a horri- ble conspiracy! Encourage that feeling, not by say- ing that it is so, but by leading their minds to form the conclusion for themselves. 1 111. Closing Address for the Defense Emphasizing Good Character of Accused. If the advocate has called witnesses, of course his obvious duty will be to point out the contrast between their evidence and that of the witnesses for the prosecution, as well as the fact of its being more compatible with the character of 1 Surely guch a charge should, if made, be supported by conclusive and unimpeachable evidence, not such as is open to the observations you are making; not by evidence every part of which seems to be giv- ing way under examination. And can you not point out how a man with an estimable character should not be destroyed by witnesses without any character at all? If there be one such among the witnesses for the prosecution, it will answer your purpose. It may be the prosecutor is a rapacious money-lender and the accused a man who borrows. The prosecutor may be a wrecker of homes and the prisoner a man whose home is wrecked, and who is prosecuted for obtaining money by some false pretense upon a bill of sale. Accuser and accused may thus be brought into contrast until, at last, the one will be looked upon with contempt and the other with compassion. 122 AMERICAN ADVOCACY. the accused. He will perceive that character stands prominently forward again and again without any ostentatious display. It should not be used as though in so many words he asked the jury to acquit because the prisoner bore a good character; it is of great weight where probabilities are balanced and circum- stances are doubtful where they may receive a con- struction either favorable or unfavorable to the per- son charged. It should play its part like the principal character in a drama, appearing always at the right time and in the appropriate scene. It is the one thing that has saved many a rogue from his well-deserved doom; but it has also saved many an honest man, un- justly charged, from ruin and many a family from misery and degradation. If the advocate has this ally, the enemy must be strong who defeats him. Of course there are cases where character does not and cannot avail, however excellent it may be; but there are so many where it is of inestimable importance that it cannot be out of place to insist upon it as though there were hardly an exception. 112. Closing Address for the Defense General Con- siderations. One of the most seductive temptations to an advocate in making the closing address to the jury for the defendant is to wander from the point at issue and go skylarking into the ethereal realms of glittering generalities, charming the jury and, inci- dentally, the galleries by his beautiful word imagery and his rythmic and resounding rhetoric. The spell created by such eloquence, if we may be par- doned the sacrilege of using that word in this con- nection, is momentary; it is gone ere the echoes of the speaker's voice have hushed. It matters not how much of oratory and word imagery is present if they spring up and flower naturally from the sound arguments and the deep earnestness of the speaker; CONDUCT OF A DEFENSE IN A CRIMINAL TRIAL. 123 otherwise they are as sounding brass and tinkling cymbal. 1 In many cases the advocate for the defense should get into the jury box and become one of the jury. That is to say, he should confer with them over the case in a calm, earnest manner. Our own opinion is that this method of speaking follows with more force after a stirring appeal has been made to the emotions of the jury. Indeed, it is more successful as a clos- ing appeal than a glittering and resounding pero- ration. 2 1 Dr. Hall said : "If I were upon trial for my life, and my advocate should amuse the jury with tropes and figures, burying his argument beneath a profusion of tropes and figures, I would say to him : 'Tut, man, you care more for your vanity than for my hanging. Put your- self in my place ; speak in view of the gallows and you will tell your story plainly and earnestly.' I have no objection! to a lady's winding a sword with ribbons and studding it with roses when she presents it to her lover, but in the day of battle he will tear away the ornaments and present the naked edge of the blade to the enemy." Another learned critic says : "The reason and judgment reject the unsubstantial and airy creations of an unfettered imagination. They demand that chaste thought, and not unadorned diction, in which the cause itself may be said to speak, and the speaker is comparatively silent." 2 Of Lord Abinger (Mr. Scarlett) it was said that a juror, who had given him many verdicts, on being asked what he thought of the differ- ent leaders, said: "Well, that lawyer Brougham be a wonderful man; he can talk, he can ; but I don't think nothing of Lawyer Scarlett." "Indeed," replied his interrogator, "you surprise me. Why, you have been giving him all the verdicts!" "Oh, there's nothing in that," said the juror, "he be so lucky, you see; he's always on the right side." David Paul Brown said of this great advocate : "In addressing a jury he seemed rather to argue his case with them than to them, and, in the language of one of his competitors, he virtually got into the jury-box and took part, as it were, in the decision of his own case." CHAPTER XI. CLASSES OF WITNESSES. 113. The Lying Witness. 114. The Flippant Witness. 115. The Dogged Witness. 116. The Hesitating Witness. 117. The Nervous Witness. 118. The Cunning Witness. 119. The Witness Partly True and Partly False. 120. The Stupid Witness. 121. The Semi-Professional Wit- ness. 122. The Official Witness. 123. The Policeman as a Witness. 124. The Truthful Witness. 125. The Convict as a Witness. 126. The Private Detective as a Witness. 127. The Handwriting Expert as a Witness. 128. The Medical Witness. 129. The Vanity of Witnesses. 113. The Lying Witness. A witness whose evi- dence is untrue must lie with wonderful skill if he go through even his examination in chief without betraying himself. He is the easiest of all to dis- pose of, and once discovered to the jury in his true character, will do more harm to a cause than half a dozen truthful witnesses will undo. In most cases, if the cross-examiner has had any experience, he will be able to refute his state- ments by his own lips. The witness comes up with a well-concocted story, and tells it glibly enough. Now, it is well known that events in this world take place in connection with or in relation to other events. An isolated event is impossible. The story the witness tells is made up of facts which, if true, fit in with a great many other facts, and could CLASSES OF WITNESSES. 125 not have happened without causing other facts or influencing them. If his story be untrue, the mat- ters he speaks of will not fit in with surrounding cir- cumstances in all their details, however skillful the arrangement may be. In cross-examining such a witness, or a witness who lies, the advocate must therefore apply the test of surrounding circumstances, and compare his tes- timony with that of other witnesses. The latter will be the severest and the surest test if the cross- examiner apply it to the smaller details. It need hardly be said that, the greater the number of wit- nesses to prove a concocted storjr, the greater the certainty of exposure by a skillful cross-examiner. The main facts of a story may be so contrived as to be spoken to by all the witnesses; but they cannot agree upon details which never occurred to them, or concoct answers to questions which they have no conception of. But even in this mode of cross examination the advocate must be careful not to obtain an apparent corroboration where he seeks con- tradiction. The way to avoid this is not to put tfie same question upon some important piece of evidence to every witness. If the cross-examiner has gotten the first contradicted by the second, he should let the matter rest; the next witness may make a guess and corroborate the first, which will materially weaken the effect of the contradiction. 1 1 It was the great complaint of Brougham, in Queen Caroline's trial, that the story was so well concocted that two witnesses were never called upon one important fact. This, of course, was contrived so that there should be no possibility of contradiction. It is not difllcult, if there are several witnesses telling an untrue story, to break them down in cross-examination; and one of the best instances is that narrated in the story of Susannah and the elders. This example of cross-examina- tion further shows how necessary it is that the other witnesses should 126 AMERICAN ADVOCACY. ' It is when the cross-examiner has to deal with an untruthful witness who speaks only to one set of facts, and stands alone with regard to that evidence, that his skill is put to the test. How is he to shake his testimony? Assuming that character is not alto- gether out of the question, he will first ascertain who he is, and upon this point he may not be touched. If the witness is a man of bad character (that he has been convicted, say), the advocate's task will be comparatively easy. He may so unskillfully put his question as to evoke sympathy on behalf of the wit- ness instead of contempt; whereas, if his questions are well asked he may not only show that he is not to be believed on account of his previous character but also on the ground that his mode of answering condemns him as a false witness. If the cross-exam- iner shows at once that he knows all about him, he will see that it is useless to attempt to deceive him ? and out will come the answer, probably in a pathetic tone: "Unfortunately I have been convicted, but what has that to do with the case? Am I always to be told of it?" This will enlist the sympathy of the jury at once. If, however, from the mode of putting the question, the witness thinks the cross-examiner has some doubt, he will take a different line, and although the mode of cross-examination may have led him first into a denial and then driven him into an "be out of court" while one is under examination. "For bringing to light the falsehood of a witness," says Whately, "really believed to be mendacious, the more suitable, or rather the only suitable course, is to forbear to express the impression he has inspired. Supposing his tale clear of suspicion, the witness runs on his course with fluency till he is entangled in some inextricable contradiction at variance with other parts of his own story, or with facts notorious in themselves, or estab- lished by proofs from other sources." CLASSES OF WITNESSES. 127 admission, the fault will be his and not the advo- cate's. He should have told the trut hat the onset. 1 If the advocate knows nothing to character he must proceed to test him by surrounding circumstances, leading the witness on and on, until, encouraged by his apparent success, he will soon tell more than he can reconcile, either with fact or with the imagina- tion of the jury. 2 A mile with him will become three if he is led to think the object is to make it less. Darkness will become "light as day," and the moon will shine with the utmost splendor when, according to the almanac, she is nowhere. It is impossible to tell how far the downright liar will go if only given a little encourage- ment. Let him exaggerate and color to the full ex- tent of his inclination or imagination, and when he 1 II an advocate ask such a witness how many times he has been convicted, he will not deny having been convicted, but will answer: "I don't know." If, however, he asks him if he has ever been in trouble, he will hesitate, and say, "No," and then "Once," thinking the cross-examiner is only acquainted with his last escapade. 2 At a trial at Warwick some years ago a remarkably well-planned alibi was set up. The charge against the prisoner was burglary. An Irish witness was called for the defense, and stated that at the time the burglary was committed the prisoner was with him and four or five other persons some miles from the scene of the crime. The time, of course, was a material element in the case, and the witness was asked how he fixed the exact time. lie said there was a clock in the room where he and the prisoner were, and that he looked at It when they went in and when they left. He was then told to look at the clock In court and say what time it was. The witness stared vacantly for a considera- ble time, and then said it was "such a rum 'un he couldn't tell." "Can't you tell a clock:"' "Shure, sor, I can't tell that'un!" What was still more strange, the game question was put to every wit- ness, and there was only one out of some six persons who could tell what o'clock it was. And yet they all swore to the exact time deposed to by the first witness and repeated the answer as to how they knew it. Of course the alibi totally broke down, and the prisoner was convicted. 128 AMERICAN ADVOCACY. has completed the picture every one will see that it is a monstrosity; in other words, no one will believe a word he says. "A liar is not to be believed even when he speaks the truth." It is an old saying, but will never be so old as to be worthless. But the advocate may get an actor in the box, who for a long time will conceal his true character. He may be a man who has a spite against the plaintiff, the de- fendant, or the prisoner, as the case may be. Or, if none against the parties to the action, he may have a very strong feeling against some person interested in the result of the case. This must be ascertained. It is the very point which he will conceal if he can, but it is also the very one that must be found out and exposed. It will probably be detected during the examination in chief, if the advocate be vigilant; if not, it must be ascertained in cross-examination. 1 It might be here observed, that whenever the cross- 1 The advocate must bear in mind, while on this subject, that if he wants to read a man's real character, he must look at his mouth; all the other features may, to a certain extent, be controlled; but the mouth never can be sufficiently to conceal the emotions from a quick observer. All the passions manifest themselves upon and about the lips; and if the witness be suddenly and somewhat sharply questioned upon the subject that is most strongly operating upon his feelings and inducing his evi- dence, an involuntary motion of the mouth will be perceived, which will instantly betray him. A beard even cannot altogether hide this wonderj ful index of the mind. So if a witness' attention is directed to those facts in connection with a case which are suspected to have strongly roused his feelings against the plaintiff, defendant, or any other person interested in the proceedings, the advocate will gather from the involuntary expres- sion of his features whether he is correct in his surmise ; and what is of still greater importance, the jury will perceive it as well, after the cross-examiner has followed up his question by another and another, for ultimately concealment will be impossible. This is part of what is called '-the demeanor of a witness." so often spoken of as of such in- estimable importance as one of the test of a witness' truth or charac- ter, so highly appreciated and yet so little understood in its more subtle significance. CLASSES OF WITNESSES. 129 examiner has once fairly caught his witness, he should not sacrifice the advantage by exhibiting him too ostenta- tiously. Having obtained the answer wanted, keep it, and at once go off upon another point; otherwise, on repetition, the witness will qualify what he has said, and very likely unsay it altogether by some lying explanation. 1 114. The Flippant Witness. When a witness comes into the box with what is commonly called a "knowing" look, and with a determined pose of the head, as though he would say, "Now, then, Mr. Counselor, I'm your man, tackle me," the advocate may be sure he has a flippant and masterful being to deal with. He has come determined to answer concisely and sharply; means to say "no" and "yes," and no more; always to be accompanied! with a lateral nod, as much as to say, "Take that.' r But although the masculine pronoun has been used, this witness is very often a female. She has come to show herself off before her friends; she told them last night how she would do it, and feels quite equal to "any counselor as ever wore a wig." I have seen many a counsel put down by such a witness; a sharp answer, with a spice of wit in it, has turned the young advocate into a blushing boy and utterly dis- comfited him. Perhaps a laugh has been caused by some impertinent observation. The best advice under these circumstances is, first of all, for the advocate to make up his mind not to be put down. He must preserve the most placid and unruffled demeanor, and above all things, never reply upon the witness. To be led into a retort, unless it were an 1 A common liar of this kind, who lies without art, is simply to be dealt with as the woodman splits up a log; find a crack, he it ever so small, place in the wedge and drive it home, but never put the wedge across the grain.' 9 130 AMERICAN ADVOCACY. absolutely crushing one, would betray a weakness and show that the witness was making the running. To argue with a witness is not only to abandon the cross-examiner's high post of vantage, but to make a bad impression on the jury. In dealing with this witness, an advocate should carefully abstain from administering rebukes, or attempting, "to put the witness down." His object should be to keep her up as much as possible, to encourage that fine frenzied exuberance, which by and by will most surely damage the case she has come to serve. A little encouragement would be of more service than anything that would tend to dampen the ardor of this flippant fury. Besides, the advocate has opportunity of animadverting upon her evidence by and by, and is then enabled to show by the contrast of a quiet manner with her blatant and irrepressible demeanor how utterly worthless her evidence is. The good effect which anv portion of it may have produced will share the condign fate of the remainder. 1 1 An endeavor will be made to point out the mode of putting a question in such a case. The cross-examiner should always approach the witness as if she were a wild animal ready to tear him if she should get near enough. Therefore he must circumvent. The cross-examiner may be sure she will never give an answer that she supposes may be favorable. This kind of witness has been known to become so "worked up," that at last she has refused to give an answer that she may think favorable even to her own side, for fear it may be made use of somehow by the other. It is necessary, therefore, to watch for a fitting oppor- tunity, and if the advocate allow her to make some particularly good ! hit against him which causes a laugh, she will be in an ecstacy of rtriumph and at his mercy. At the moment of her triumphant excite- ment will be the time to put the question; but it must not be done as though the cross-examiner thought it a matter of importance, but rather as if he were putting it for the purpose of turning off the laugh against him. While off her guard, if the question le well worded, the answer will slide from her flippant tongue before she has had time to ..consider its probable effect. But having got it the advocate passes away CLASSES OF WITNESSES. 131 The advocate will have observed]that his opponent has driven this splendid creature with a bearing- rein. In cross-examination he should take that off and let her "have her head." "Did I understand you to tell my learned friend" so and so? will be quite sufficient to set her at liberty if asked in a tone that conveys the cross-examiner's feeling Jon the subject. "I did not" with great emphasis, will be her last word. She will require some bridling in re- examination after that. S 115. The Dogged Witness. The dogged witness is the exact opposite of the one we have just been dealing with. He will shake his head rather than say no. He seems always to have the fear of per- jury before his eyes, and to know that if he' keeps to a nod or a shake of the head he is safe. He is under the impression that damage the case he must, what- ever he says. "A still tongue makes a wise head," has always been his maxim. How is the cross-examiner to deal with him? If he has said nothing against his case he should, of course, leave him alone always, unless he desires to draw something from him in its favor. If he cross- examine at all, he must beware 'of letting him think that he has any design of ' hatching him. " Insinua- tion will help the cross-examiner with this witness. But he should carefully avoid asking for too much at the time. He should cjet little answers to little questions. from the subject instantly by putting another question of no importance or lelevancy whatever. This is a hint suggested by repeated instances in u hii-h it was observed that this mode was pursued by one of the greatest cross-examiners of the present time. The cross-examiner will find his advantage in the witness' triumph. It is, as some one has illus- trated it, '-not unlike a fencer making an overreaching thrust. Before he can recover his balance the adversary has delivered a well-directed blow." 132 AMERICAN ADVOCACY. and he will then find as a rule that answers are strung together like a row of beads within the man; and if he draw gently, so as not to break the thread, they will come with the utmost ease and without causing the patient the slightest pain. In fact, till he hears the advocate sum up his evidence, he will have no idea of what he has been delivered. This witness, without being untruthful, is always hos- tile ; he looks on the advocate as a dangerous man, a sort of spy. He will become bolder, however, as he pro- ceeds, especially if the cross-examiner prove to him that he is by no meansi the terrible creature he at first thought him. And the best way to foster this idea is to accustom him to answer. The advocate should let him see that his questions are of the simplest possible kind; even so simple and so easily answered that it seems almost stupid to ask or answer them. "Of course," he says to one; "Cer- tainty," to another; "No doubt about that," to a third, and so on.' Presently the cross-examiner slips one in that is neither "of course" nor "certainty," and gets his answer. The advocate should look upon this witness as a lump of human nature in the witness-box, out of which he may, by ingenuity and skill, extract something be it ever so small, which may serve his purpose; something, perhaps, which he can find nowhere else in all the case. 1 1 This witness may be an old man (generally is), and the subject of inquiry, a right of way. He may be the "oldest inhabitant." What are the moving springs of human conduct? Love of justice, which he has known from a boy upwards, and his father before him, as "right is right and tcrong is no man's right." 1 ' Self-approbation, or vanity, concen- trated in him under the form of "a iconderful memory,'" 1 which has been the talk of the neighbors for years; the knowing more of by-gone times than any man or woman in the place; Selfishness, called by him his "uprightedness and doicnstraightedness ;" Independence of spirit, "he CLASSES OF WITNESSES. 133 116. The Hesitating Witness. A hesitating wit- ness may be a very cautious and truthful witness, or a very great liar. The cross-examiner will find this out before he begins to cross-examine. In most cases the hesitating man is wondering what effect the answer will have upon the case, and not what the proper answer is. By no means hurry this indi- vidual. He should be permitted to consider well the weight of his intended answer, and the scale into which it should go, and in all probability he will put it into the wrong one after all. If he should, the advocate should leave it there by all means. Besides, giving him plenty of time will tend to confuse him as confused he should be if he is not honest. He cannot go on weighing and balancing answers with- out becoming bewildered as to their probable results. At every question he will look up in an oblique direc- tion; his answer will be in an oblique direction too- Very often he will repeat the question to gain time. Sometimes he pretends not to hear, sometimes not to know; all this time he is adjusting his weights, and in all probability some of them are false. But the cross-examination should by no means lag; a halting cross-examination seldom goes far. Slow questions are usually feeble. With this witness they should be (txked at the ordinary rate, or if anything, perhaps a trifle quicker, so that the hesitation may be more apparent and the blundering more complete. cares for no man, a id always paid one hundred cents on the dollar" these are the vulnerable points in his armor: and if the advocate cannot thrust an arrow in atany of these he had better hang up his bow, for he will never make a good archer. His witness will answer anything if the cross-examiner appeal to his memory, or if the question put mag- nifies his independence of spirit, or brings out in all its da/xling luster that "uprightedness and downstraightedness," of which exalted virtue he believes himself to have been ever a most distinguished example, if not the actual discoverer. 134 AMERICAN ADVOCACY. 117. The Nervous Witness. A nervous witness is one of the most difficult to deal with. The answers either do not come at all, or they tumble out two or three at a time; and then they often come with oppo- sites in close companionship; a "Yes" and a "No" together, while "I don't know" comes close behind. "I believe so," or "I don't think so," is a frequent answer with this witness. The examiner must deal gently with this curious specimen of human nature. He is to be encouraged. It is no use to bray him in a mortar. Counsel often get irritable and petulant, and ask such questions as: "Will you be good enough to explain to those gentlemen what you mean?" This is bad, and "those gentlemen" generally dislike the soft solder implied. Some counsel may not know it, but they injure their clients by observations of this kind. Besides, the rebuke and the oblique flattery to the jury do not produce the effect of restoring the witness to firmness or self-possession. The cross- examiner should deal as gently with a weakness of this kind as he would with a shying horse. The nervous witness, like all others, is either to be cross- examined or not; if he be, the cross-examiner must do it without driving him into such a state that his answer, however favorable, will have no value in the eyes of the jury; and this will surely be the effect of agitating him by petulant impatience. 118. The Cunning Witness. The cunning witness must be dealt with cunningly. Humor would be mere pastime, and straightforward questioning out of character with him. But by way of contrast, and for that only, straightforwardness may not be out of place with the jury. Whatever of honesty, whether of appearance, manner, tone or language, contrasts with the vulgar, self -asserting and menda- cious acting of this witness will tend to destroy him. CLASSES OF WITNESSES. 135 Every one can see that he tries to appear what he is not, and that he pretends to know a great deal more than he does. This is the man to show to the jury in his real character, and they will enjoy the cross-ex- aminer's good-humored exposure of the cheat. But it by no means follows even then that they will dis- believe him altogether. They will discount his evi- dence and, without some corroboration, attach little weight to it. If contradicted by a respectable wit- ness or a fact, they will discredit him altogether. The advocate will therefore assist him to play his own part, and to be himself; he will exaggerate and color in his own vulgar manner, utterly unable to perceive that he is producing a distorted account which no one will believe. 119. The Witness Partly True and Partly False. The witness who is partly true and partly false, without hypocrisy, knowing that he is giving color to some facts, suppressing others, and adding little ones to make good measure for his party, is the most difficult of all to deal with. The process of separating the true from the false requires skill as well as ingenuity and patience. And the cross-examiner must bear in mind that it is not sufficient for him alone to know the nature and character of the evidence; his task will only be half accomplished at this point. There will still remain the more difficult one of exhibiting it to the jury in the same light and with the same aspect v. ith which it presents itself to his own mind. The jury, untrained to sift evidence, will not so read- ily detect imposture and deceit as he; nor will they so easily distinguish between what is true and what is false when the ingredients are mixed up cunningly in the evidence of an artful witnessof this description. If, however, the advocate can lay hold of any one part and expose an incongruity or an incompatibility, 136 AMERICAN ADVOCACY. he will have accomplished a great deal. The cross- examiner must watch carefully to find out if there be a want of assimilation in the parts of the story; if there be a disagreement between some of the false parts and some of the true, he must ascertain whether the alleged facts can exist together and in connection with one another, and must cross-examine for causes and effects; he will then determine whether they agree with the facts stated by other witnesses. 120. The Stupid Witness. Another class of wit- nesses not inf requently met with in court is the stupid witness. There are many kinds of stupid witnesses, but the particular specimen to which attention is called is that civil and agreeable being who agrees with everybody for fear of disagreeing. He belongs to no exalted rank in society, and is not assisted in his worldly pursuits with a superabundance of the highest intellect. Now, if the cross-examiner thinks he has a witness whose evidence he can mould to any shape he likes, he thinks rightly, as he may make a piece of dough into a boat, but the important ques- tion is will it swim? Will the evidence, manipu- lated by the advocate's utmost skill, be serviceable to his case? The line to take is not that which leads this kind of witness into mere inane contradictions of all he has said before. With a sharp person this would result in the overthrow of the evidence alto- gether. Not so, however, with that of the stupid witness; his evidence is essentially weak, unsupport- able of its own fiber, and if the cross-examiner has noticed carefully he will have seen how tenderly it was drawn out, like the delicate haulm of the pea, and how carefully it was propped up with a forensic stick. What he has to do is to take away its artifi- cial support. It need not be rooted up. It simply is not what it seems. Alter ifis appearance and tend- CLASSES OF WITNESSES. 137 ency, and the cross-examiner will have done enough. 121. The Semi-Professional Witness. Another class of witnesses deserving of notice is that of the semi-professional. He is, in fact, semi-everything. He is half religious and half libertine; half teetotaler and half drunkard; half veracious and half liar; his word is positive and his respectability comparative. Imagination might describe this witness as a lean old man, with a high, narrow forehead and a much under- hanging lip, a mouth that twitches with self-import- ance and an impatience of contradiction. He wears glasses that shut up, and waves them with an air of consequence when he answers a question, putting them on and taking them off with his hand in front of his face when he wishes to evade a question. How will the advocate cross-examine a man who has all the goodness of the canting hypocrite with all the pre- tensions of the scientific witness? Tenacity of opinion is his weakness. He will sacrifice truth itself rather than give up his opinion. Let the cross-examiner drive him into that net and he has him a safe captive. If he attempt to show that his opinion is valueless because he has not been articled to a surveyor, or is otherwise not a regular professional, the advocate will lamentably fail. The jury always resent an at- tack upon a man made solely because his knowledge has not been acquired in the orthodox red-tape man- ner. There are almost sure to be "self-made" and "self-taught" men on the jury. But, in whatever cir- cumstances this individual may appear, if the cross- examiner wishes to attack his knowledge, he should cross-examine about factx, and he will soon learn whether the witness knows his business or not. If the advocate himself know nothing of what he is cross-examining to, the witness will beat him unmer- cifully at every point; if he do know something, he 138 AMERICAN ADVOCACY. will plumb the depth of the witness' scientific igno- rance very soon. 122. The Official Witness. A witness 'by no means of rare occurrence is the official witness. He is a man of many callings and varied appearances, but is of one type, and not even like any other. He may be a subordinate in the civil service, or at- tached to a military department, to the naval reserve, or, as in the present case, he may be an "officer of the force." One "in authority" he must be, and in the service of the state. No mere offspring of a railway company could possess the air of self -importance, com- bined with ignorance, which belongs to the "state offi- cial." An inexperienced counsel must needs look small before such a being as this; and, whatever may be his mode of attack, yonder human citadel has sur- vived similar assaults and is prepared to stand a siege of questions from the oldest veteran in the field. The mode which the official witness adopts to defeat the cross-examination of a young advocate is to fall upon him with all the weight of his official arrogance.. Brusque and loud as the tone of a drill sergeant to an awkward squad are the answers he throws at the in- experienced advocate; and every time this crushing* force has been exercised the huge mass of authority lifts up its head above the official cravat and poses itself with a well-defined expression of "I am ready for you again, if you require any more, sir." How to cross-examine this gentleman is the ques- tion. To which we answer: The largest balloon will burst if too much gas is forced into it. Self -inflated with the responsibilities of his office, the advocate may increase him more and more until the domineer- ing ascendancy in the witness-box will be an indica- tion of the domineering arrogance he would exercise over a prisoner. The cross-examiner will make him , CLASSES OF WITNESSES. writhe by appearing to dispute his evidence, and will intoxicate him with his self-importance if he admin- isters it in suitable doses. When he becomes too great for the witness-box the jury will see that he is out of proportion, and when he most protests by his manner that he ought to be believed without question the jury will most distrust him, always supposing that he has to rely upon the strength of his own veracity, which is not very great. 123. The Policeman as a Witness. -- Every one who conducts a defense in a criminal trial has to deal with police testimony, and as a class of evidence it figures more conspicuously in criminal courts than any other. Again, it is to be said, as far as possible leave them alone. They are dangerous persons. They are professional witnesses, and in a sense that no other class of witnesses can be said to be. Their answers generally may be said to be stereotyped. All the ordinary questions have been answered scores of times by the well-disciplined "active and intelligent officer." Without accusing him even by implication of having no reverence for the sanctity of an oath, it must be said that if he sees the drift of the cross-examiner's questions, the chances are against getting the answers wanted. He thinks it his duty to baffle the prisoner's advocate. To be effective with the policeman the cross- examiner's questions must be rapidly put. Al- though he has a trained mind for the witness-box, it is trained in a very narrow groove; it moves as he himself moves, slowly and ponderously along its particular beat; it travels slowly because of its discipline, and is by no means able to keep pace with the advocate's, or ought not to be. The latter should not permit him to trace the connection between one question and another when he desires 140 AMERICAN ADVOCACY. that he should not do so. If the cross-examiner ask him whether it was a very dark night, and the darkness has nothing whatever to do with the issue, he .will commence a process of reasoning (invented at Scotland Yard) as to the motive of the question and what might possibly be the effect of his answer. While this mental exertion is going on, he should be interrupted suddenly with a ques- tion the advocate has good reason for putting, and in all probability he will get something near the answer he requires. Policemen have a great deal of knowledge about the case and a great deal of belief. The former will be found bad enough to deal with, but the cross- examiner must be careful not to elicit a large quantity of the latter; if he does, he may rest assured it will look so like fact that it will pass with the jury as such. 1 Furthermore, it is dangerous to put "fishing" questions to this class of witness. The cross-examiner is almost sure to catch the wrong answer. His safer course will be to cross-examine for contradictions and improbabilities, not forgetting where necessary to give the witness the opportunity of denying anything upon which he intends to con- tradict him. Cross-examine for prejudices, and as to opportunities it should be remembered always that there is often as much in the manner as in the matter of cross-examination, and much more at times in silence than in both. The police constable is not 1 "What did you say when you apprehended the prisoner?" asks Jones, eager for the display of his severe ability in cross-examination. "Oh!" says the active and intelligent, "I forgot that." "I beg your pardon. I said: 'Now Sykes, when you come out from doin' the last seven year, you told me you meant to turn over a new leaf, and 'ere you are again. ' " And there the learned counsel was again! CLASSES OF WITNESSES. 141 below human nature generally. The parent of many of his faults is the fact that subordinate judges, as a rule, think he must be protected by an implicit belief in his veracity. As a natural consequence he falls into the error of believing, in his own infallibility. 124. The Truthful Witness. The truthful wit- ness has been said to be the most difficult of all to cross-examine. On the contrary, however, he is the easiest of any. By the term truthful, it is not intended to be implied that the evidence of the witness is ne- cessarity true. If it were so, it would be idle to cross- examine at all. By a trutlxful witness is meant one who believes and intends his evidence to be true. He is the easiest to deal with, because he does not equiv- ocate or prevaricate. He has no secret meaning, and gives his answers readily and without mental reserve. He desires to tell all he knows, and his credibility is unimpeachable. The first thing to ascertain in cross-examining a witness of this class, is whether he has any strong bias or prejudice in the matter under inquiry. One or two carefully worded questions will discover this, if the cross-examiner has not already learned this from his answers in chief. Suppose, for example, he is a clergyman, and the question is as to a certain place of entertainment being a nuisance either as being badly conducted or conducing to immorality. He tells truthfully enough what he has seen, and speaks with indignant or pathetic tones of the vicious example to the inhabitants of the neighborhood. In his evidence in chief he will speak in general terms, probably, and not descend to particular instances; but the advocate will learn, by closely watching, whether he has any particular examples of debauch- ery or profligacy to depose to. Of course he is not to draw these from him if he have any; this, of course, 142 AMERICAN ADVOCACY. he will carefully avoid, but if the witness has not referred to particular instances, the cross-examiner may safely proceed to lead him to condemn all places of public amusement of a similar kind. If he leads him gently he will follow with remarkable docility. This course has been pursued by eminent advocates with great success. A man who condemns all alike is not the witness to impress a jury with the value of his evidence in the particular instance, especially where it is far more a matter of opinion than fact. 125. The Convict as a Witness. It is by no means unnecessary to say that if a convict comes into the witness-box, it is idle to attack his credit through his character. Every young advocate thinks there is such an opening here, and the temptation is doubtless great. But there is no need to attack when the fortress has surrendered. The man stands confessedly as bad as bad can be; and to carry him through all the scenes of his profligacy and crimes would be but gratuitous cruelty, and would have no effect with the jury except in creating some amount of sympathy on his behalf. They know well enough how to discount the evidence of so abandoned .a man; but they know, too, (and that is the point to remember) that the most detestable villain is yet capable of telling the truth. A convict will sometimes defeat a cross-examining counsel to such an extent that he will arouse sympathy for him- self and prejudice against the learned gentleman. It is the weakest remnant of a very old style of advocacy to ask the jury, "Would you believe such a villain, on his oath?" The answer is, Of course they would, as against another villain not upon his oath, and against whom he is circumstantially testifying, unless the ad- vocate can break down his evidence; the latter will not do that by hammering away at his character. The jury may not like the man any more than does the ad- CLASSES OF WITNESSES. 143 vocate, but they may like the advocate's client less; and between two villains, the one in the witness-box and the other in the dock, as a rule, they will lean to- wards the former; he, at all events, is for the state at present. It is when his motives lead him to ^Q falsification f 'facts, and the falsification is apparent or highly probable, that the cross-examiner can dispose of this witness. Then will he be able to take character, mo- tive, false or exaggerated statements, contradictions and probabilities and throw them into the scale against the apparently truthful portions of his testimony. Or if the advocate even go so far as to show improbabili- ties in his story, the witness will need much corrobo- ration to make it acceptable to the jury. They will treat him as they would a knave in the market whom they should detect with one or two bad coins among a handful of apparently good ones. They would have no dealings with him; not because there were no good pieces, but because suspicion attached to all. To re- peat, it is testimony and not character the cross- examiner must deal with in this witness. Misfortune is misfortune, whether it comes from a too lavish ex- ercise of virtue or a crime; and cruelty is cruelty, whether inflicted on saint or sinner. If the advocate would succeed with a clever scoundrel, he must break him down by art, not by violence. 126. The Private Detective as a Witness. The private detective belongs properly to the class of professional witnesses. And here, as the converse of the last, it should be remembered that the value of this witness' testimony will be in exact proportion to the estimate the jury form of his character. If it be unimpeachable for disinterestedness, so much the more difficult to deal with in cross-examination ; but if the witness be one who is constantly giving evi- 144 AMERICAN ADVOCACY. dence as a part of his professional duties, it will be somewhat discredited. What is always being done sometimes gets done mechanically and 'without any mental influence. 1 The office of the private inquiry man is distasteful to most people, but the advocate cannot well reach him in cross-examination as to that. If he shows that he obtains his livelihood by getting up cases and then proving them, it will be sufficient for his purpose without wounding his feelings. The cross- examiner's object is to give a color to his evidence, and he may, by the exercise of a little skill. The ab- solute positiveness with which this witness gives his evidence is a point in the advocate's favor; the im- possibility of his having been mistaken is another ; simply because the jury will not believe in the infal- libility of a human being in carnal matters. And if the witness might have been mistaken they will not believe him either. So that the circumstances under which the detective has made his discovery are mat- ters worthy of the cross-examiner's skill. With him suspicion is almost guilt, and almost every circum- stance from his point of view is suspicious. Once assume a person's guilt, and the most innocent cir- cumstance will become invested with suspicion; many facts will be unconsciously exaggerated, first in the mind of the witness, and then in his evidence: suspicion, in short, will become facts and facts guilt. There is no more dangerous class of evidence than that of the private detective, but none that a skilf ull x 1 "I applied,'' says one witness, "the usual tests, and found traces of poison." No one dreamed, till the cross-examination disclosed the fact, that the traces were introduced by the test itself. Some professional wit- nesses seem to have no appreciation of the awful fact that they are swearing away a man's life, or his wife, or his estate. It's only a mat- ter of science with them. CLASSES OF WITNESSES. 145 counsel can more easily demolish, unless it is sup- ported by independent testimony. 127. The Handwriting Expert as a Witness. Here is the witness to prove that the prisoner is guilty. "No, no," says the expert to himself, "not I. You have given me specimens of handwriting to examine; I say they are in the handwriting of the prisoner. You say if he wrote them he is guilty, and so will say the jury." Beautiful distinction, but did you happen to know the probable effect of the exam- ination before you made it, Mr. Graph of Here is a dangerous question when the witness is watching the advocate as a doctor would the changing expres- sion on s, patient's face, and arranging his thoughts- scientifically, as he gracefully toys with his invalua- ble glasses. The advocate must not think he must put so important a question in that form? The wit- ness sees it seen his thought* through *7, as though it were a lens; sees his weakness through it. The cross-examiner must as carefully conceal his mean ing from this witness as though he were sending a telegram through him to the jury in cipher, so that he should not read it. The answer to this question, when properly put, may be very near the foundation of the cross-examiner 1 s clef erne. What the advocate wants to know is, what influence wax at work in his i a hid ivhicJt may have led him to a particular conclusion with reference to the loop of a G or the twist of a Y. How came he to think it was like the prisoner's? Did he know that a murder had been committed? The witness was not told, but if he had read of the murder he would know two facts: one that a docu-' ment was left by the murderer stating that someone else had committed it; the other that a shopman was the last person seen with the deceased; and he would know a third fact when the books in which were 10 146 AMERICAN ADVOCACY. entries made by the shopman were given into his hands to compare with the fatal paper. So it is seen the expert would have no vague or indefinite idea of what he was about. That is the first point to estab- lish: not how long he has been studying his profession. The next point to make is as to the mode of examina- tion by this experienced expert. And here the ad- vocate will be amazed at the elaboration of the system for finding out nothing, which has been invented by science. He, "first of all," he says, takes the "un- doubted handwriting of the prisoner's;*' this is one of his scientific phrases "the undoubted handwriting of the prisoner's;" and he "examines for peculiari- ties^ another. But this is begging the question at once, are they peculiarities? He calls them so and .stamps them with guilt. 1 1 For instance, the witness finds "on lino thirteen of page fourteen, your honor," nodding at the judge with nervous respect. "Line thirteen of page fourteen*' says the judge, counting vigorously "yes, I see; I've got it." "Your honor will find" here a sly look at counsel, as much as to say, now listen to this revelation "the down stroke of the F in fool is at a very remarkable anyle, an angle of fifty-four and a half. Now, this angle occurs only about once in fifty-four millions of hand- writings. Then I find in looking at the disputed handwriting at page four of the day-hook, line twenty-two, the F in the word foot has pre- cisely the same angle and the peculiar crook, if I may so call it," pauses as though this powerful expression must elicit silent applause. The advocate should mark this scientific discovery and cross-examine upon it, because it is totally inapplicable and no more a "crook" or a peculiarity than he will find in the handwriting of nine persons of the prisoner's class out of ten. This is a new symptom, and all new symp- toms are in the cross-examiner's favor if he can use them. "If you turn, your honor," s.iys the witness, stooping down over the book and now looking up at the judge, and now looking down at the insect he has under observation; shaking nis glasses twice above hia .shoulder with his right hand as he looks up, and pressing his book twice with the open palm of his left as he looks down, as if he had just clapped it on a butterfly; "if your honor looks at the bottom line but five on page four you will find a remarkable peculiarity it's a twist list where the F joints on to the B, giving the F a humpbacked appear- CLASSES OF WITNESSES. 147 Here is the cross-examiner's opportunity. Once show that the prisoner's life depends upon the down- stroke of a U D" or the upstroke of a "c," the cross- ing of a "T" or the dot of an u i," and he will live. There are such things as forgeries, and forgers imi- tate peculiarities. Handwriting is seldom to be be- lieved, even when it speaks the truth. 128. The Medical Witness. With regard to medi- cal opinion, Sir Alexander Cockburn said: "A medi- cal man ought to he asked his opinion on the supposition only that certain symptoms existed." This passage is quoted as authority for saying that ance. (A pause.) Now, your honor will find that dislocation or twist of the spine of the F occurs in no less than two places in the undoubted handwriting of the prisoner." (Sensation.) Next comes a cross of a T at a very acute angle which he finds in other places as well; then there is the "Convolution of the G." '-This convolution occurs no less than five times in the fatal document and five times in the book, a very remarkable coincidence, your honor." This is said at an angle of forty-five. "Next, your honor, there is a capital I, and I particularly call your honor's attention to the perpendicularity of that I; or, rather, I should say, to express myself with more scientific accuracy, the want of perpendicularity of the I." (The I looks indeed as if it had been out all night.) "Now. that ab- sence of perpendicularity occurs three times in the undoubted hand- writing of the prisoner, and no less than twice in the disputed hand- writing. There is next, your honor, at page five, line seventeen, an O which is made like a *emibreve.. Then, there's a J of a very remarkable and pronounced kind; it will be observed that the loop or convolution is Klimfjtttfd. This Is at page six, line two; and it occurs twice in the fatal document, and once in the undoubted handwriting. The next let- ter I come to is a W, which is found on page seven, Jllne eight of the day-book, and occurs three times in the fatal document. Your honor will observe that It is Herratrd, or (turning to the jury) lite a now. yentle- men. And that same serrated appearance is observable in the M's of the undoubted hand writing of the prisoner." And thus through the alphabet the witness has hooks, crooks, crosses, convolutions, semlbreves. humpbacks, dislocations and deform- ities of all sorts, and letters that look like murderers, burglars and other Disreputable persons, with the common hangman amongst them. But bring common sense to bear upon it in cross-examination; so shall the advocate reduce these exaggerated peculiarities to the natural tendency 148 AMERICAN ADVOCACY. medical testimony should be based not upon a mere theory with a view to fit in the facts of a particular case to it, [but that the theory should be constructed from the proved facts. Given certain symptoms, or facts, the scientific opinion should be given upon them, and upon them only. A great deal of what is termed medical evidence is not medical evidence in any sense-of the term, except that it is given by a medical practitioner: and in the same sense as a woman's might be said to be "female evidence." Much that a; scientific witness gives might be grvien as well by an ordinary person, and very often a great deal better. 1 of persons to copy one another. We are such imitative creatures that we copy when we do not intend to, and often even against our wills. "I find," continues this field-marshal of pot-hooks and hangers, "that there is a remarkable " Fray stop him, my learned friend ! "One moment, Mr. Witness!" "Excuse me," remonstrates the man of letters, jerking his spectacles at the presumptuous counsel. "Forgive me," implores the latter, "but what are you looking at?'' "I a n looking at the day-book, sir." "What part of the.jday-book, sir?" "Excuse me, sir; but if I am not to go on in my own way. I cannot go on at all. Your honor " But "your honor" is not there to assist the prosecution. "Are you comparing the proved handtcritiny of the prisoner in the day-book with the murderer's paper?" "I am comparing, sir. the entries in the day-book which I have comparei with other entries, and I find " "You will shut up that book. then, if you please." "Really, sir, if I am not to go on in my own way, I am no use " Judge: "If you arc comparing entries not proved, with entries that are proved, to show that they have similar characteristics to those shown on, the murderer's paper, that is not evidence.' 1 '' "Then I cannot go on, your honor," closing his book with a bang! Shut up! His evidence is accordingly struck out, and all his elaborate theories based on imaginary likenesses are dissolved. 1 "I discovered considerable eccliyrnosis under the left orbit, caused CLASSES OF WITNESSES. 149 If one looks at a plain fact through the lens of scien- tific language its shape usually becomes distorted. Giving a man a "black eye" may be considered a trifling offense, and a jury might acquit; but impress them with the idea that the prisoner caused "extrav- asation of blood under the left orbit," and he is regarded as a monster of cruelty to whom no mercy can be shown. 1 129. The Vanity of Witnesses. There are other witnesses, doubtless, slightly varying in their pecu- liarities of disposition and temper, but these the reader will easily note from his own observation, and we doubt not will find, on examination, that most of them may be included within the classes enumerated. by extravasation of blood beneath the cuticle," said a young house surgeon in case of assault. Baron Bramwell : "I suppose you mean the man had a black eye?" Scientific Witness: "Precisely, my lord." Baron Bramwell: "Perhaps If you said so in plain English, those gentlemen would better understand you?" "Precisely, my lord," answered the learned surgeon, evidently delighted that the judge un- derstood his meaning, and accepting the rebuke as a compliment. 1 Apropos of the quickness with which medical practitioners some- times arrive at a conclusion, here is a case that occurred some years ago. A woman who had cohabited with a tradesman in a country village sud- denly disappeared. Her paramour gave out that she had gone to America. Some years after, a skeleton was found in the garden of the house where she had lived. On examination by a medical man he at once pronounced it to be that of the minsinfj woman. He formed this opin- ion from the circumstance that one of the teeth was gone, and that he had extracted the corresponding one from the woman some years be- fore. Upon this the prosecution was instituted, and the man was com- mitted for trial to the assizes. Fortunately there was time before the trial came on for a further investigation of the garden where the skele- ton was found, and on digging near the spot another skeleton was discovered, and then another, and another; then several more. This threw flome doubt upon the identification of the bones in question, and on further Inquiries being made it turned out that the garden bad once been a gypsy burial-ground. It need scarcely be added that the prosecution, which had been vigorously taken up by the government, was at once vigorously abandoned. 150 AMERICAN ADVOCACY. But of whatever types they may be, and however much they may differ from one another,, there is one weakness which runs through them all, and that is vanity. No human being is exempt from its influ- ence; and the only difference between one man and another in this respect is as to the object of his vanity and the effect of it upon the other attributes of his nature. One man's vanity may impel him to aspire to a coronet, another's only to wear his hat a little on one side and to put his thumbs in the arm- holes of his waistcoat. CHAPTER XII. TACT AND TACTICS. 130. The Meaning and Value of Tact and Tactics to the Advocate. 131. Delicacy of the Proceeding to Impanel the Jury. 132. Ascertaining Motives Tend- ing to Influence the Jury. 133. Determining the Leading Point in the Case. 134. Proper and Improper Open- ings. 135. What Witnesses Should be Called and in What Order. 136. Superior Value of Oral Tes- timony to Written Deposi- tions. 137. How to Take Care of the Weak Point in a Case. 138. Admissions by Counsel or His Client. 139. Calculating the Value of the Evidence or the Verdict of the Jury. 140. The Value of the "Last Word." 141. Adaptation and Arrange- ment of the Evidentiary Forces in the Closing Ad- dress. 142. The Court Overcoming the Pre-Conceptions of the Judge. 143. The Court Assuming that the Court is Ignorant of the Law. 144. How to Meet an Unscrupu- lous and Ill-Natured Op- ponent. 145. Under What Conditions an Advocate Profits by Delay. 146. Danger in Wandering from the Main Point. 130. The Meaning and Value of Tact and Tactics to the Advocate. Tact is defined by Webster as a "sensitive mental touch; the ready power of ap- preciating and doing what is required by circum- stances." 1 1 The following quotation, which we have taken the liberty to alter, is very pertinent: "For a thousand who can speak there is but one who can think, for a thousand who can think there is but one who can see. The successful 152 AMERICAN ADVOCACY. Tact, as thus defined, is quite easily seen to be a very important part of a lawyer's equipment. Many lawyers of great mental ability have been failures as advocates because of the lack of this one quality. They always manage to injure some one's feelings in a trial ; they bring the jury and the judge to regard them unfavorably ; they constantly fail to take ad vant- age of opportunties; and proceed on their ponderous way to inevitable defeat. It is sometimes said of an advocate "He is not a great lawyer, but he is a very clever law practitioner." Study the methods of one of whom this statement can be made; observe the skill with which he ingratiates himself into the favor of court and jury; notice his gentle handling of a stub- % lawyer has the open vision. There is no blind side to either hia eye or brain. Watchful as a lynx, with every faculty of the intellect strongly concentrated upon the prospect, not a contingency escapes him. A factor so subtle in its nature, so incomprehensible in its relation to other elements, and so susceptible of marvelous growth under suitable conditions and by reason of thorough cultivation, baffles the English language for an abstract definition. The one word 'tact' comes the nearest to it. Tact is defined as the ready power of appreciating and doing what is required by circumstances. Technically speaking, tact may mean touch, discrimination, wisdom or skill. Touch in the sense of manipulation 'throwing out a feeler' discrimination in the sense of a nice perception or appreciation of difference, drawing fine lines, winnowing chaff from the wheat; wisdom in the sense of sagacity, grasp of intellect, acuteness. 'having one's w'ts,' 'seeing through a mill stone;' and skill in the sense of expertness, cleverness, genius 'hitting the nail on the head.' Tact is strong as Atlas, graceful as Venus, fleetfooted as Mercury. He comprehends peculiar situations with a completeness that leaves out none of the details. 'Tact is the eighth wonder of the world.' Memory is not tact, buttact never forgets. Perception is not tact, but tact can see through a brick wall. Reason Is not tact, but tact somehow always gets the best of an argument. Talent is not tact, but tact hasn't any folded in a napkin and laid away. Genius is not tact, but tact is most ingenious. Learning is not tact, bui tact is versed in all the wisdom of the ages. Art is not tact, but tact is an artist. Science is not tact, but tact can apply scientific principles to men and things. Courage is not tact, but tact never pales with fear or hides his face with cowardice. Common sense intensified is just another name for tact." TACT AND TACTICS. 153 born witness until he ''worms" out of him the answer that he desires; watch- him as he studies the coun- tenances of the opposing witnesses on their examina- tion-in-chief, and see his face light up with intelligent perception as he sees something lying hidden beneath the outward show of facial and verbal expression ; listen to him as, in his clear, convincing and win- ning manner, he presses home his objection to the introduction of some damaging evidence on the part of his opponent, or the nice discrimination with which he seeks to withdraw some evidence which he himself is seeking to introduce from the effect of some rule of law which -would seem to prohibit its introduction. Let the advocate observe all these things and the man^y other unwritten incidents of a trial in which the tactful advocate is always able to find opportunities to further the cause of his client, and the student has received 'his first lesson in the art of legal tact, a lesson which he can never hope to learn out of books nor under the voice of the lecturer. Tactics, though akin, is nevertheless quite a differ- ent thing from tact. Tactics is defined by Webster as "the success and art of disposing military and naval forces in order for battle; and hence any system of procedure." To the advocate no general qualifi- cation, next to tact, is so necessary as a proper system of legal tactics. Tactics in law relate to the science and art of presenting the evidence in a mas- terful and convincing manner. Sometimes an advo- cate who has a good case will so awkwardly present his evidence as to actually court defeat: while, on the other hand, one with only an indifferent case will so arrange the forces that tell in his favor that they present an almost irresistible front. The latter advocate has mastered the science of legal tactics. How to present a case, is indeed the question upon 154 AMERICAN ADVOCACY. which the verdict will in most cases probably turn. If we examine the great trials, and more especially the speeches of the best advocates, it will be found that the mode in which the case was presented had much to do with ever} 7 successful result. Particu- larly is this observable in the defenses of Ers- kine, whose advocacy, in its arrangement and order, was so masterful and effective. As we have already intimated, neither tact nor the science of tactics can be most directly learned from stud} 7 or books ; they come rather from experience and'observation. What suggestions we offer here are only to warn the advocate against the most glar- ing instances, of lack of legal tact and the most prom- inent and important rules in the science of legal trial taclrics. 131. Delicacy of the Proceeding to Impanel the Jury. Too many advocates handle a jury as if the fingers of their minds were all thumbs. They are rude, boorish, insolent and overbearing. In examin- ing the panel they pry into a juror's private affairs as if he were a witness or a party interested in the case. Not only the jurors thus examined but the whole panel, if they are men of spirit, will resent this course of the advocate. Courtesy is an accomplish- ment to any man ; but to the advocate it is a valuable asset; and nowhere is the lack of it more painfully felt than in the advocate's handling of the jury. In the selection of the jury, especially, care must be taken to frame the interrogatories in such a manner as not to give offense and to maintain throughout the entire proceeding an attitude of the strictest cour- tesy. An advocate that makes a favorable impres- sion at this early juncture has quite handicapped his opponent. Of course, it is important to examine jurors, in most cases, to find out what interest they TACT AND TACTICS. 155 may have in the case; what knowledge of the facts they may possess; what relationship any one of them may sustain to either of the parties; what expres- sions of opinion may have been uttered as to the merits of the case; what personal hostility may' exist between any one of them and either of the parties to the case; and considerations of a similar nature. A short courteous examination of each member of the panel will generally be sufficient to find out all the advocate desires to know. Much information, it must be understood, will come to the advocate by way of careful observation. Sometimes the nature of the case is such that the advocate has learned sufficient from his opponent's investigation to satisfy him. In such case it is good policy to waive examination. It is alwaj^s a delicate proceeding at best. After the advocate has completed his examination the exercise of his right to make a certain number of peremptory challenges is a matter, sometimes, which demands an intimate knowledge of human nature. The advocate must keep off from the jury in his case any man whose business, religion, or crankish no- tions of things would influence his judgment on the particular facts involved. In darnagfe suits, for instance, of servants against master, care must be taken to exclude any large emploj'ers of labor. So, also, in suits involving the enforcement of the liquor laws, enthusiasts in the cause of prohibition must be challenged on the one side and anyone engaged di- rectly or indirectly in the manufacture or sale of liquor on the other. These are two prominent in- stances: others requiring a more delicate apprecia- tion of human nature will occur to the advocate who closely studies the situation and has a fair measure of common sense. 156 AMERICAN ADVOCACY. 132. Ascertaining Motives Tending to Influence the Jury. It should alwfiys be remembered that one of the most difficult things in advocacy is to ascertain the motives which influence human conduct, and }*et these motives are in a great measure the advocate's guides. Unless these can be discovered the advocate will be working in the dark and will only succeed, if at all, by accident. If we could look into the minds of the twelve jurymen we should probably find as many reasons for their verdict. One was predis- posed to believe a particular witness; a second had a similar predilection for another; a third disbe- lieved the defendant because he did not like "the looks of him;" a fourth was rather taken with the plaintiff's manner; a fifth had heard something not much to the credit of the party he meant to find against; and so on until you came to the twelfth, who simply "jined in like" because he was a man of a very agreeable nature. Much may depend upon the juror's breakfast or his digestion. With many juries there is the predominating thought, in spite of much evidence to the contrary, that the plaintiff is entitled to something. Some think he must be in the right or he would never have brought his action; as they think a prisoner must be guilty or he would not be on his trial. 133. Determining the Leading Point in the Case. In most cases, if not in all, there is a leading point which, if established, will determine the verdict. Before the case can be shaped, this point must be discovered and placed in exactly its right position. All the evidence and all the facts must be subordinated to it. Sometimes it happens that a false point usurps the position of the true. This, however, it need scarcely be said, is fatal to the advocate who knows so little of his case. It is possible to be drawn away TACT AND TACTICS. 157 to a minor issue; but if the advocate should be he will find it difficult to get back to the true one; and it is the surest sign that he has never mastered the rudi- mentary principles of advocacy. To the unpracticed genius this seems so intolerable a blunder, that no one could by possibility commit it. The unpracticed advocate, however, is the only one who never makes a mistake. Advocacy is not so easy as beating a drum; and if all the blunders of clever advocates were to be told, the student would come to the con- clusion that practice makes us most imperfect; and that the art is more calculated to benumb the facul- ties than to quicken them. 134. Proper and Improper Openings. We know that a case may be opened in a variety of ways. The direct way is the nearest to the verdict. Sufficient rhetorical skill to make the advocate's statement agreeable, and such an arrangement of his evidence as to make the matters alleged -seem true, are the characteristics of a masterful opening. To get the jury to accept his interpretation of the case depends almost entirely on his mode of putting it; this is the effect produced by harmonizing evidence and making his allegations look like actual facts; an artist would say herein consists the art of mixing colors. What the advocate requires is to get it into the minds of the jury in xtich. order ax to make tlie conclu- sion clearly deducible from the fact*. For instance: what would be the use of cross-examining to the credit of a witness when the facts he has spoken to have been proven by persons of unimpeachable char- acter. The advocate may be as "severe" and "pow- erful" with him as he likes, but the jury will think he is ruining the case. Severity is not power, and power is seldom severe. But suppose the advo- cate to be judicious, and to refuse to turn him 158 AMERICAN ADVOCACY. inside out. He will perhaps endeavor to do some- thing more artistic with him. He is a witness vouched for by the other side as worthy of credit: Any answer the advocate can get from him which will damage the evidence of the other witnesses will be of immense value. He can take him into his confidence on ac- count of that character which he is instructed to expose. His manner of handling him is part of the tactics of advocacy, and, according as it is concilia- tory or severe, he will make him a witness for or against him. There is one mode of presenting a case which is pretty sure to ruin it the jocular mode. An advo- cate who begins by playing the fool is almost sure to end in making one of his client. Jokes are not of much value to the plaintiff , unless he wants laughter instead of damages; while, on the part of the defend- ant, they are a poor answer to facts. Laughing a case out of court has been often heard of, but never accomplished. No judge would permit it unless he preferred a joke to justice, and a jury has never been known to laugh away a litigant's rights. True, the advocate may laugh his own case out of court very easily; and if he have no case he may as well dismiss it with laughter as with tears as a bad soldier is drum- med out of the regiment; nevertheless, the drumming ought not to be the cause of the dismissal. These remarks, however, are by no means intended to detract from the value of humor, the efficacy of which has been elsewhere considered. Again, it should be observed that seriousness need not be sepulchral. It is in finding the unaffected medium between these extravagances of style that this branch of the art of advocacy consists. The advocate need not proceed as if he were moving to muffled drums and the Dead March; the jury like a TACT AND TACTICS. 159 brisk pace and a lively air. The advocate should keep them in good spirits, if he wants good damages. Recollect they are not being asked to give their own money away, but other people's, and the livelier he - counted; whereas, if he has a number of witnesses, weak and strong, but all necessary, he should lead off with a small witness from his strongest suit. It may be that the order of time or circumstances will decide as to the next; but he should always endeavor to follow up weakness with strength. 1 Another point must not be omitted. A story told in parts by different witnesses is stronger than the same story repeated by the whole of them. It will seem to be truer, and even look as if it must be true\ whereas, repetition, especially in details, often makes it look as if it must be false. A further advantage attends the divisional form there will be less surfaceL exposed for cross-examination. 136. Superior Value of Oral Testimony to Writteir Depositions. As far superior as a warm, affectionate 1 Let us suppose the witnesses are pretty equal as to the value of their testimony, and that the order of time is not necessary to be observed ; is there any reason why one should be called into the box earlier than another? Undoubtedly. They are not all equally capable of retiring- cross-examination. If the advocate take one of the worst in this respect- before the others, and he should stammer from nervousness, or give the wrong answer from misunderstanding, the examiner has done at least two bad things for bis client; he will pretty nearly have ruined his case with the jury; and he will have put so much heart into his adversary that he will cross-examine the rest with renewed vigor; whereas, if he put a witness into the box who can stand the cross-examination, the contrary effects will be produced. Nothing is more disheartening than failure in cross-examination, except failure in resisting it. 11 162 AMERICAN ADVOCACY, embrace is to a cold and formal introduction, so far superior are the burning words of an oral testimony to the cold black type of a written or printed deposi- tion. An advocate makes a great mistake to intro- duce the deposition of any important witness whom he might, by any possible means, have at the trial. Indeed, in most cases, it would be profitable even to defray the expense of a long journey in order to get the witness into court rather than to be compelled to rely upon his deposition. The reasons for this are obvious. In the first place, testimony by deposition is lifeless; it lacks that fire, that spontaneity, that impulsive iteration of oral testimony which often compels belief. In the second place, jurors are gen- erally suspicious of such testimony; they are not .aware of the auspices under which it was given, and ^are inclined to the opinion, and not always unjustty, that the answers to the interrogatories have been care- fully studied and couched in language calculated more to serve the purposes of the party in whose in- terest the witness testifies than the demands of truth and justice. The jury feel also that they have been denied the opportunity to "look the witness in the eye" and thus, in this very effective and often con- clusive manner, test the credibility of the evidence he offers. In the third place, many important points in the testimony of the witness overlooked in theprep- .aration of interrogatories are brought forcibly to the mind of the examiner under the stimulus effected by the heat and vigor of the contest. From every point of view, therefore, oral testimony is to be pre- ferred to written depositions. * 1 The difference between depositions and oral examinations in open courtis well stated by Blackstone: "This open examination of wlt- nesseg, viva voce, in the presence of all mankind, is much more condu- cive to the clearing up of truth than the private and secret examination TACT AND TACTICS. 163 137. How to Take Care of the Weak Point in a Case. We must not omit a matter which is con- stantly peeping out, however carefully it is concealed, and that is the weak point in the advocate's case; there it is, conceal it as he may. If he wants it to tell as forcibly against him as it can, leave it to the mercy of the other side to drag it out. If he desire it to be presented in its most favorable aspect, intro- duce it himself. A man is always tenderer to his own faults than he is to other people's. With proper management a weakness may sometimes be turned to advantage. A good sneer from the advocate's opponent at the poverty or misfortune of his client, will tend to the solace of the one and the mitigation of the other. A sneer may be the very worst of advocacy, but that does not prevent a bad advocate from using it. Nay, it is no advocacy at all, it is sheer unmitigated abuse; but there are clients who will pay even for that. Endeavors to excite preju- dice generally succeed in evoking sympathy. Noth- ing is so fatal to a speech or a cross-examination as an exhibition of ill-feeling. taken down in writing before an officer, or his clerk, in the ecclesiasti- cal courts, and all others that have borrowed their practice from the civil law; where a witness may frequently depose that, in private, which he would be ashamed to testify in a public and solemn tribunal. There, an artful or careless scribe may make a witness speak what he never meant, by dressing up his depositions in his own forms and language; but he is here at liberty to correct and explain his meaning, if misun- derstood, which be can never do after a written deposition is once taken. * * * In short, by this method of examination, the persons who are to decide upon the evidence have an opportunity of observing the quali- ty, age. education, understanding, behavior and inclinations of the witness; in which points all persona must appear alike, when their de- positions are reduced to writing and read to the judgu in the absence f those who made them; and yet a* much may be frequently collected from the manner in which the evidence is delivered as from the matter of it/' 3 Blackstone's Commentaries, 373. 164 AMERICAN ADVOCACY. 138. Admissions by Counsel or His Client. Some of the greatest dangers and embarrassments of a law-suit arise from loose' and reckless admissions on the part of counsel or his client before or dur- ing the trial. While it may seem discourteous not to confer freely with opposing counsel about the facts of the case, especially where an amicable adjustment is sought, counsel must never lose sight of the fact that negotiations for a compromise may fail and the point at issue be submitted to the white heat of a judicial inquiry where every admission on his part will but add fuel to the flames. But probably it is not so much counsel as his client who needs thus to be cautioned. An attorney should insist strictly on his client refusing any interview whatever from opposing counsel or the latter's client or any of their agents. Too many "good cases" have been damaged by such interviews fpr an advocate to disregard such tactics on the part of his opponent. The best rule would be for the client to be in structed to have nothing whatever to do or to say about his case, and to refer all inquirers to his coun- sel; and for counsel, in as courteous manner as possi- ble, so as not to give offense, to evade any discussion whatever of the important questions of fact involved in the case. Some writers on this subject have some- times counseled admissions in writing. 1 1 Elliott's Work of the Advocate, p. 129. The author says: "Admis- sions should be sparingly made and only after calm deliberation. It is unsafe to make them, no matter what their character, otherwise than in writing. Experienced attorneys strongly advise against making any, except upon matters of minor importance, but this advice hardly goes far enough, for, even though the matter has apparently little influence upon the merits of the case, no admissions should be made without full consideration; and when made should, if practicable, be written out in full." TACT AND TACTICS. 165 But we do not feel constrained to advise even the indulgence of this liberty of counsel with his client's cause of action. All admissions necessary or proper on the part of an advocate should be made in his pleadings. 139. Calculating the Value of the Evidence or the Verdict of the Jury. Neither law nor human nature is an exact science. Numerically calculated, one may say of the witnesses, twice one are two; in forensic arithmetic twice one may be none nay, may even be one against you. Nor is the jury a body upon whom one can calculate with unerring certainty. The advo- cate's cause may be just, but that is no all-sufficient reason why they will find so. Facts may lie so deeply imbedded that the superincumbent strata may not in any way reveal or indicate their presence to the ordi- nary mind. The advocate's business will be to reach them by a chain of argument and natural infer- ences to be drawn from the evidence around him. If the jury were a machine into which he could thrust the facts at one end and take them out in the shape of a verdict at the other, all difficulties would vanish. This, however, is not the process by which verdicts are obtained. The first thing, for the advocate is to present his evidence in a probable shape, the next is to get it believed, or taken an believed, by the twelve good men and true in the jury-box. Not so easy a matcer, by any means, as at first sight it may appear. 140. The Value of the "Last Word." A great deal has been said about the "last word," but there can be little difference of opinion as to its value with a good advocate. It possesses a creative and ananni- hilative force. It Jias the field to itself, and works without opposition. In its course it will sometimes uproot arguments and disperse evidence, leaving 166 AMERICAN ADVOCACY. nothing but ruin in its track; but it may be used to give the finishing touches to the opponent's case. All depends upon the knowledge of the advocate. In this matter of the reply, knowledge is of more value than genius itself; knowledge will include both the evidence and the best mode of presenting it. When the advocate has the "last word," evidence, argu- ments, theories, prejudices, sympathies, are at his mercy; ridicule, invective, persuasion, are ready for his service. Assuming things to be pretty equal, he must have studied advocacy and human nature to little effect if he does not win the verdict. 141. Adaptation and Arrangement of the Eviden- tiary Forces in the Closing Address. With all the advocate's native skill and ingenuity it may happen that he has not succeeded with his witnesses. He could not make them intelligent. The most powerful imagination cannot supply facts. The advocate may find out at last that he has a weak case. But what then? Shall he despair? By no means, if he have learnt something of the art he practices. A weak case and a strong advocate will often beat a strong case and a weak advocate. Now the strength of advocacy lies in the adaptation of materials to the end designed. If the advocate can adjust them so that, as a whole, they will .seem to be true, he will win. The facts may be so arranged that they will look larger than they are, all things being large or small by comparison. Opposing facts may be made to look small by con- trast, or may disappear altogether by being cast into the shade. It may be that the advocate has acquired a mode of directness in addressing the jury ; he never uses an argument that they cannot "rightly make out;" his habit of "straightforwardness" fascinates them ; he avoids all appearance of being an ingenious twister of facts, knowing that such ingenuity will be TACT AND TACTICS. 167 taken at the value of the conjuror's trick clever but deceptive; he never mystifies his case b}^ unintelligi- ble language, but lets the facts speak for themselves, he uses, in short, plain words to plain men, knowing that the object of honest speech is to be understood; and that when best understood he seems to be most, honest. 142. The Court Overcoming the Preconceptions of the Judge. This brings us to the consideration of another matter of no small importance in the present day, when the tendency appears to be to supersede the jury-box with the bench. Let not the reader Jbe startled at the statement that there isgreater prejudice toover- come in a judge than in a jury. Although his honor could never be brought to believe in such a weak- ness, he will endeavor to show he has no prejudice, and this effort is the safeguard of the counsel. The prejudices of a jury are modified by a kind of mental attrition; sometimes they even neutralize one another. It is idle to attack a prejudice directly. Prejudice is reason-proof; but that is no reason why, in matters depending upon evidence, the advocate may not appeal successfully to the intellect. In doing so it will not be forgotten that a judge has a high sense of honor, and a desire to seem impartial. These are the safeguards against the infirmities which sometimes affect the noblest minds. 143. The Court Assuming that the Court is Ignor- ant of the Law. It is a very common error, man}' times a fatal one, on the part of the advocate, to assume and even say that he "assumes that the court knows the law;" "of course the court is familiar with tho law in this case." He had better, and he will if he is wise, assume that the court is densely ignorant of the law of his case, and then proceed to enlighten the court upon the law of his case, for if it so be that the court 168 AMERICAN ADVOCACY. does know the law of his case, all right, no harm is done; and if the court does not, the advocate may by his fatal confidence lose his case; whereas, if he would enlighten the court as he should, victory would be his. He has devoted weeks, it may be, to the law peculiar to his case, while to the court it m&y all be new. 144. How to Meet an Unscrupulous and Ill-Natured Opponent. If an advocate is not the subtlest cross- examine!' in the world it is not the least reason why he should put a dangerous question; if he is not the greatest orator it is no excuse for talking about the wrong thing, or talking about nothing. Woe to the client whose counsel needlessly wounds the feelings of a witness! Even when obliged to ask a painful question, the jury will look upon him with dislike; and, if his manner do not soften the act, they will regard him as a wanton vivisector who delights in a painful operation and would by no means spare them under similar circumstances. But when we meet with an opponent who does not spare, how shall he be dealt with? The answer is easy. Be severely silent. The advocate should not retaliate, or he will undo the good his opponent's unscrupulous conduct has inflicted. He should leave himself in patient suffering to the jury who in due time will reward his forensic forbearance. If, however, he think it wise to allude to it, he should do so in a manner that shall evoke pity as well as indignation ; but he should be careful not to avenge his client by a counter attack of abuse; he should throw the blame at all times upon his opponent. 145. Under What Conditions an Advocate Profits Ifoy Delay. We of course do not expect in this sec- tion to consider, to any extent, the law applicable to continuances and delay. Nevertheless, from the standpoint of an advocate a delay or continuance is TACT AND TACTICS. 169 often a most important consideration. The main reasons for delay, so far as the advocate is concerned, are lack of sufficient preparation and the absence of important witnesses. While many books and the addresses of great lawyers expatiate generally on the ill-favor with which the request for a delay or contin- uance is regarded both by the court and the profes- sion, we believe the subject has been exaggerated to such an extent that young 1 la wyers, at least, are some- times constrained to permit themselves to be rushed into a case totally unprepared, because of the fear of acquiring a reputation for carelessness and coward- ice. It is of course a very discreditable thing for a lawyer to be alwaj^s unprepared and to get into the habit of asking for continuances, merely because of his own slovenliness. Fabian tactics of that charac- ter will certainly be discountenanced both by the courts and the profession. But where by some unfore- seen circumstance an important witness cannot be at the trial on the day set, or there is some reason why a trial on that day would materially work against the interests of the advocate's client, he is justified in seeking delay on any legitimate ground he can press forward as an excuse. 1 Some opportunity is gener- ally afforded in the progress of any case to find some good reason on which to base a motion for a contin- uance. However, to be prepared to take effective advantage of every opportunitj' of this character the advocate must have the statutes and decisions of his 1 "Caution is as important as courage. It is only the foolhardy, not the wige, who assume the hazard of trying a cause without ample time for preparation, or who risk a trial where important evidence that delay may secure is absent. Prudence requires that no risks be assumed where diligence and care can avoid them. Where there is a risk that a postponement will avoid, and there is reason for a postponement, then it is the part of wlidom and prudence to apply for a continuance/ Elliott's Work of the Advocate, p. 156. 170 AMERICAN ADVOCACY. own state, and, to some extent of other states on this question and other questions of practice closely related to it, at his fingers' ends. If,' however, as might be the case, no opportunity for delay is afforded, the advocate must seek the indulgence of the oppos- ing counsel. The frequency with which cases are continued by consent in all our u-isi, prius courts is evidence of the magnanimous spirit and free-masonry prevailing among the members of the American bar; indeed with a reputable opponent no advocate need fear to meet with any denial to his first request for a continuance -or for any other reasonable courtesy. In criminal procedure the defense sometimes desires a delay not only for the reasons. already stated but for the additional reason that sometimes it is well to avoid a trial at a time too near the date of the commission of the alleged offense. Public opinion is sometimes so strong that an impartial jury of the vicinage would be a practical impossibility. A few months' delay will sometimes cool the intense anger of the populace and insure a, fairer trial. 146. Danger in Wandering from the Main Point. One of the most universal tendencies of the human mind is to wander from the original thought which it may have started with at a given time, into by-paths which branch off from it at many and frequent inter- vals. This besetting sin of human nature may some- times lead the advocate, either in the presentation of his evidence or in his address to the court or jury, to< wander from the main point at issue and not only confuse the minds of those addressed but at the same time dissipate the energies of the advocate which might have been more profitably emplo.yed in batter- ing away persistently at the main stronghold of the enemy. Of course the opposing counsel will attempt to entice the advocate for the other side to waste his. TACT AND TACTICS. 171 energies on issues of minor importance by challeng- ing him to the conflict by boastful allegations and sarcastic insinuation. Let the advocate beware how he meet these insidious advances of the enemy. As a general rule it is best to ignore all irrelevant issues and to hold the mind of the jury to the main point at issue. If controversy is joined by counsel over points of minor importance the minds of the jury are diverted and the value of the main point unappre- ciated amid the resulting confusion. Hon. J. W. Don- ovan has well expressed the idea in succinct language,, when he said: "The real winner, after all, is one who, with singleness of purpose, holds to his point, and hugs the issue to the end." 1 1 Donovan's Modern Jury Trials, page 213. In the connection in which this statement is made by Mr. Donovan, the latter illustrates it by relating the excellent and celebrated story entitled, "Kill the Squir- rel, "which appeared some time ago in Harper's Weekly and which fur- nishes a profitable lesson to the law student. The story relates the experience of a lawyer in selecting a clerk. The lawyer put a notice in an evening paper saying lie would pay a small stipend to an active office clerk; next morning his office was crowded with applicants all bright and many suitable. He had them wait in a room till all should arrive, and then arranged them in a row and said he would tell a story and note comments of the boys, and judge from that whom he would engage. "A certain farmer," began the lawyer, '-was troubled with a red squirrel that got in through a hole in his barn and stole his seed corn; he resolved to kill that squirrel at the flist opportunity. Seeing him go in at the hole one noon he took his shotgun and fired away; the first shot set the barn on fire." "Did the barn burn?" said one of the boys. The lawyer, without answer, continued : "And seeing the barn on flre the farmer sci/.ed a pail of water and ran in to put it out." "Did he put it out?" said another." As he passed inside the door shut to, and the barn was soon in full flames. Then the hired girl rushed out with more water 'Did the hired girl burn up, too?" said another boy. The lawyer went on without answer "Then the old lady came out, and all was noise and confusion, and everybody was trying to put out the flre." 172 AMERICAN ADVOCACY. "Did they all burn up?" said another. The lawyer, hardly able to restrain his laughter, said: "There, there, that will do; you have all shown great interest in the story;" but, observing a little bright-eyed fellow in deep silence he sai'd : "Now, my little man, what have yon to say?" The little fellow blushed, grew uneasy and stammered out: "I want to know what became of that squirrel, thatfs what I want to know." . "You will do," said the lawyer. "You are my man; you have not been switched off by a confusion and a barn's burning and hired girls and water pails; you have kept your eye on the squirrel." As Mr. Donovan suggests a whole chapter is given in this story. It is packed full of excellent advice to beginners with a few good hints to older advocates. In every suit there is, or should be, one squirrel to kill, and no more. CHAPTER XIII. BRIEFS, ARGUMENTS AND METHODS OF SPEAKTNG. 147. The Lawyer's Brief Its Re- quisites and Value. 148. Addressing the Court Re- quisites and Value of Oral Argument. 149. Addressing the Court ^Dis- cussion of Principle versus the Citation of Authority. 150. Addressing the Court In- terruptions by the Court. 161. Addressing the Jury Gen- eral Considerations. 152. Addressing the Jury A Temperate Style Before a Jury. 153. Addressing the Jury Win- ning the Master Mind of the Jury. 154. Addressing the Jury "Ora- tory" Before a Jury. 156. Forensic Eloquence Its Value and Requisites. 156. Forensic Eloquence Genius or Hard Work as a Requi- site. 157. Forensic Eloquence Mental Absorption and Concentra- tion. 158. Forensic Eloquence The Value of a Personal In- quisition. 159. Forensic Eloquence How to Meet an Attack. 160. Forensic Eloquence Dis- cussion of Adverse Author- ities. 161. Forensic Eloquence Order, Arrangement and Perora- tion. 162. Elocution Cultivation of the Powers of Speech. 163. Elocution Imitation and Affectations of Speech. 164. Danger of Achieving a Rep- utation as a Wit 165. Appropriate Physical Ges- tures and Facial Expres- sions in Speaking. 147. The Lawyer's Brief Its Requisites and Value. A very important part of a lawyer's work is the preparation and submission of briefs for both nisi prim and appellate tribunals. The former, however, are hardly more than memoranda of authorities; the latter present the entire case to the appellate tribu- 174 AMERICAN ADVOCACY. nal and the advocate fails or succeeds there wholly on the weakness or efficacy of his printed brief. Nothing is more important therefore, than a perfect brief. The different parts of a brief* vary in some partic- ulars in the different states. The statutes and the rules of court must always be carefully consulted. Most usually, however, the different parts of the brief are as follows: First, abstract of the record; second, statement of the case; third, assignment of errors; fourth, points and authorities; fifth, argu- ment; sixth, index. The order of the various parts may be changed, but the order here given is univer- sally recognized as the most perfect and logical. The abstract of the record should be full, but not verbose; accurate, but clear. Clearness and brevity are the two most necessary qualities. The purpose of the abstract is to make the important evidence 'easily accessible to the court. It is therefore always advisable to have the abstract sub-headed throughout, showing at a glance where the testimony of one witness ends and another begins; and every other resource of printer's ink and of wise arrangement should be taken advantage of to make the abstract attractive to the court something it very seldom is. Such an abstract will invite the attention of the court where a voluminous, unintelligible and slovenly printed one will repel an investigation even on the part of a most painstaking and conscientious judge. The statement of facts in a lawyer's brief ought to test the strength of his case. In the facts lies the justice of the cause. The best case can be so ob- scurely stated as to conceal its merits ; and the weak- est can be so plausibly stated as to make a first good impression. A famous writer says that every cause has a bad side; and it may be affirmed that the worst METHODS OF SPEAKING. 175 of causes has at least one good side. The art is to make the best of } T our case. 1 The assignment of errors is simply a copy of the points submitted as grounds for the motion for a new trial. The points and authorities is a short digest of the law of the case, citing all the authorities sustain- ing the various points of law on which you desire to insist in the argument. Here the statements of the legal propositions should be short and succinct and so carefully worded as to evidence at once a direct connection and bearing upon the facts of the particu- lar case. In the written argument insistence should be laid upon the most important points, which again should be arranged in the order of their force and conclusiveness on the advocate's case, the most im- portant point of all coming last. The index also is not to be slighted, as it too often is. The advocate must remember that the judges are men and will al- ways take the path of the least resistance in arriving at a decision. He should be careful, therefore, that his opponent's brief, by its clear and logical arrange- ment and its complete and exhaustive index, does not offer a more accessible avenue to a knowledge of the case than his own brief. 1 '*An eminent member of the bar,'' said Judge Daly, of New York, ''told me that from the beginning of bis practice he bad made this part of his brief a special study, when presenting a case to an appellate tri- bunal or to a single judge; and that the first compliment he received from the court was for his statement of the facts of a most complicated case. He had dovoted great care to arranging the array of particulars so as to make the comprehension of the facts as easy as possible, and he was told that it was mainly his statement of the facts that won the case, a compliment that gave intense satisfaction to a young practitioner. It was this gentleman's belief that success in appeal cases largely de- pended on a clear statement of fact in the brief. It Is undeniable that if such a statement is lucid and convincing and impresses the court with the justice of your cause your argument on the law will be greatly aided. In a case doubtful or novel as to the legal questions involved, doubt is certain to be resolved on the side of substantial justice." 176 AMERICAN ADVOCACY. Before passing to the last requisite of a good brief, we desire to reiterate the emphasis we have already placed upon the general characteristics of an ideal brief , i. &., clearness and brevity. It is, indeed, a pleasure for a court to take up a brief and find every- thing in such shape that they are enabled to gain a complete idea of the whole case by simply glancing through its pages and find the statements therein contained so clear that a second reading is never nec- essary. And brevit}^ is even more important. A glance through the decided cases will show how often courts have condemned the practice of submitting voluminous briefs, and in some cases have stricken them from the files. There is absolutely no occasion for a brief to exceed one hundred pages. We make this statement advisedly after consulting more than five hundred briefs filed in our state and federal courts. In most instances they need not exceed fifty pages. If the abstract of the evidence is necessarily large by reason of some rule of court requiring all evidence to be set out in detail or under some stat- utes permitting what is called the "short form" of appeal, that is, without filing a transcript, the ab- stract should be published separately and care'fully sub-divided, sub-headed and indexed. With respect to the composition of briefs and points submitted to the court, so far as literary style is concerned, and whether any impression is made by care in that respect, it may be inferred that the substance, rather than the form, of a brief is the thing considered by a judge. This is not necessarily because of the great pressure of business .and the little time left for dwelling upon matters of mere style, for it is the duty .as well as the inclination of a judge to look at the counsel's law and not at the man- ner in which he states it; yet it must be evident that METHODS OF SPEAKING. 177 form of expression can add much to the force and im- pressiveness of a statement. The opinion of learned judges often shows this. One is particularly happy in his choice of words; and another, less so. 1 148. Addressing the Court Requisites and Value of Oral Argument. Whether a court can be influenced more by clear, original argument than by the mere- citation of authority, we do not believe to be at all doubtful. All courts, the members of which lay any claim to legal ability, favor an oral argument of" counsel in preference to the dry citation of authority in printed briefs. 2 It is of great advantage to the court itself. The opportunity to interrogate counsel frequently leads to a better understanding of the nature of the cause, and clears up many doubts. The English reports show that even in the House of Lords the argument of causes frequently assumes the character of a run- 1 "A strong opinion," says Judge Daly, to quote again from an address delivered by this learned judge, "is one containing law and rea- son, plainly stated in the most forcible way; while an equally sound utterance may be weak, because lamely and insufficiently delivered. It is not, however, to be denied that a lawyer's training for his profession* is not complete until he has so mastered the form of expression as to pre- sent his statements with directness, nor until he has acquired a vocabu- lary extensive enough to give every shade of meaning and the art to- use it for substantial ends and to the best effect." 2 Mi. Justice Harlan, of the United States Supreme Court, has this, to say : '-It is a matter of serious regret and concern that the practice of oral argument appears to be falling into disuse. The idea seems to* have become general among members of the bar that we prefer argu- ments presented in the form of written briefs. Such is not the case- There are many times when nothing can take the place of the personal! presentation. Briefs are well enough in their way, but it very often happens that the real point upon which a case turns may be overlooked in a brief, while an oral argument may serve to bring it home to the court. A special emphasis, a striking simile, may throw new light on an intricate problem, and perhaps reverse a judgment in the mind of the court." 12 178 AMERICAN ADVOCACY. ning oral debate between court and counsel. In this way a great mady specious shams are pricked and exploded; the judges arrive at a better understand- ing of the cause, and counsel are maintained in habits of honesty, which they are liable to fall from under the dark lantern system of "submitting" causes on briefs; briefs which are sometimes concocted in a spirit of deceit and falsehood and which are very often unin- telligible. We find, therefore, that the peculiar value of oral argument lies in the fact that the court and counsel are able to pick to pieces the authorities and probe the reasons of the law as applicable to that particular case. But it is in such cases that an at-- torney may well quail before the quizzing of the court where he has no more intimate acquaintance with the 1 iw of his case outside of the decided cases. In the preparation of points for the court, certain rules may be observed : The first rule is that the print- ed or written brief is to be submitted after the hearing, and should, therefore, be an amplification of the oral aro-ument. The latter should be condensed as much as possible, the former may be as full as the advocate pleases. The oral argument should not deal with details nor too many particulars. These should be found in the brief if the court cares to look for them. The second rule is, if there are many points to be sub- mitted, that the chief ones only should be selected for oral presentation. The advocate should spread the oth- ers on the points, but himself if the colloquialism is permissible on one or two of the best. The third rule is for the advocate to cultivate an intimate ac- quaintance with the elementary legal principles un- derlying his case so that he may make the reason for a decision of the particular case in his favor, so evi- dent that he compels an instant acceptance of his position by every member of the court. Only one METHODS OF SPEAKING. 179 thing should be left for the court to do after the ad- vocate has finished the work of finding authorities to sustain the preconceptions which the advocate has already aroused. 149. Addressing the Court Discussion of Principle versus the Citation of Authority. A lawyer's address should not be, as it too often is, a mere digest of the authorities on the point of law involved in the particu- lar case. A clear and thorough discussion of the legal principle underlying the decided cases is undoubt- edly of greater value. True, the tendency of Amer- ican lawyers, at least, is to dispense with any original research into the principles of the law appli- cable to the particular state of facts and to rely too strongly on the authoritative utterances of other tribunals. It may be that the press of litigation at the present time offers very little time even where there is the inclination to reach independent conclu- ;sions by original methods of reasoning and research. And undoubtedly, also, the courts lend some encour- agement to the practice. It certainly seems, some- times, that all an attorney is expected to do on a question of law before the court is to cite a few cases apparently on all fours with his own and demand a decision, and where the authorities seem to be overwhelmingly in favor of a certain proposition the court is not even expected to reason about it. 1 But a court is not always unwilling on a difficult or novel point to altogether disregard the authorities 1 Mr. Hi-hop gays that there are enough of these questions on which th^ authorities seem to be uniform, but which are decided Incorrectly on principle, and in regard to which anxious and eager litigants have been discouraged by "big" lawyers, to keep in comfortable circuan- stances many of the younger generation in the profession who some- 1 inn's find the struggle for existence too intensely engaging. 180 AMERICAN ADVOCACY. and consider the question as res nova. 1 Under such circumstances a court is not made to feel that it is being bluffed, coerced or crushed by any "weight of authority" into making its decision, but on the con- trary feels an added dignity when counsel approach them as the equal of any other court, and, by in- dulging the presumption that the case under review is res nova, request a decision on reason and princi- ple, rather than demand it on authority. Indeed, it is not an extremely rare occurrence for an attorney appearing before a court almost . bankrupt as to authorities, and thus compelled to rely altogether on reason and principle to win his case over his appar- ently more fortunate opponent, who had satisfied himself with nothing more than the preponderance of authoritj 7 . Of course, we do not mean to convey by this that in every case where the authorities pre- ponderate reason and principle would dictate an opposite conclusion on the contrar}^, they w r ill gen- erally be found together; but, since it is human to err, there will be found instances, not a few, in which principle and reason have been lost in confusion or prejudice. Out of the latter and back to the former 1 One of the justices of the New York Supreme Courtis reported as giving voice to the following striking sentiments quite pertinent to this question: "I have not deemed it necessary to cite authorities in support of the views which I have expressed. It is enough that they must commend themselves to the rational mind. It seems to be considered in some quarters that judges should not think any more on their own account; that they should spend their lives mousing through mouldy libraries in search of what other judges in a less enlightened age have said, not even upon the immediate question in hand, but upon some matter more or less distantly related. It is thought to be presumption to let one's own bucket down into the living well of reason, instead of being content to lick up from the muddy, trampled earth around it the green and stagnant leakings of the past. And so the science of law, which was once deemed the perfection of human reason, is being left behind by every other science." METHODS OF SPEAKING. 181 the diligent attorney ma} 7 lead the court by a clear conception and forcible statement of what the true rule ought to be. In (such cases the unprejudiced mind of the court is alwa}*s read}' to follow. 150. Addressing the Court Interruptions by the Court. Where an attorney addresses an ap- pellate tribunal he must remember that he is addressing minds trained to pierce at once to the heart of the case and impatient to reach the point decisive of the dispute. One-half the cases of interruption and anticipation of arguments by the court are due to too much circumlocution and pre- paration of counsel in approaching the point of the case. Judges are not peculiar in this respect. The advocate would not expect a business man, upon whom he called with a proposition in favor of which he hoped to impress him, to listen to his way of unfold- ing it, if he thought of a more direct way of getting at what he wished to know and put at once his pointed questions to that end. He would on the contrary, be glad to advance his statements in the direction in which the inquirer's mind opened to receive it. And he would feel that after he had satisfied him by a full discussion on the points that first occurred to him, leaving him to weigh his arguments at leisure he could safely and profitabty urge every minor reason in aid of them, confident of an indulgent auditor. There is every reason, therefore, for the young practitioner not to feel disconcerted at interruptions by way of inquiries from the bench. They serve to show where the strain of the case comes and where his greatest exertion must be made. 151. Addressing the Jury General Considerations. -Turning to the consideration of the best method of presenting a case to a jury, it must be apparent at once that a different rule is to be observed from that 182 AMERICAN ADVOCACY. which applies in arguing a point before a court. There is a much greater latitude of observation in discuss- ing a question of fact than of law, and a different method must be pursued in convincing minds not always trained to reason closely upon any subject nor capable of close attention. 1 Here is the marked difference in addressing a court and in addressing a jury. With the former the advocate begins with his strongest point because the judge, with his training and experience, sees the point of the case at once and his mind refuses to be diverted until the point is fully discussed. But the juryman is desirous of taking the case as the advo- cate presents it. He soon loses interest in it if the latter does not begin in a manner to attract his at- tention and continue with matter both direct and per- tinent. The advocate has, therefore, to gain his at- tention; but, in order to make the most lasting im- pression he should begin with considerations of lesser weight, increasing the strength of his arguments as he goes on, and reserving his most convincing for the close. This is and always has been the art of oratory. It is the dramatic method by which all ora- 1 Dr. Johnson's advice to counsel, arguing before a legislative com- mittee, might be urged with respect to addressing a jury: "You must not argue there as if you were arguing in the schools; close reasoning will not fix their attention; you must say the same thing over and over again in different words. If you say it but once, they miss it in a mo- ment of inattention. It is unjvjst to censure lawyers for multiplying words when they argue; it is often necessary for them to multiply words." Referring on another occasion to the course which counsel should pursue in arguing at the bar of the House of Commons, Johnson said: ''You must provide yourself with a good deal of extraneous mat- ter which you are to produce occasionally so as to fill up the time; for you must consider that they do not listen much. If you begin with the strength of your cause, it may be lost before they begin to listen. When you catch a moment of attention press the merits of the question upon them." METHODS OF SPEAKING. 183 torical effects are achieved. The interest of the hearer is excited, and the chief point is made when his attention is riveted upon the subject. It is not ineffective to begin with a rather weak argument. If the advocate perceive that his auditor sees the weakness or the fallacy of it, he has gained his point in securing his attention and he is read}' to appreciate the better considerations he is next to urge. It is sometimes necessary to address juries that are not only inattentive but also hostile. How, with- in the limits of an ordinary summing up, to convert such auditors is the problem for the jury lawyer. 1 1 "I recall with admiration," says Judge Daly, '-the mannerin which this was done in a trial I witnessed. The case was for rent upon the lease for one year of a suburban cottage, and the defense was fraudulent representations that the locality was healthful, whereas it was a chills and fever district, and the tenant, having relied on the representations and signed the lease, went into possession, and the whole family, do- mestics included, having enjoyed sitting out in the moonlight for some weeks, were all laid up with malaria. The landlord denied the represen- tations, but his claim of four hundred dollars for his year's rent seemed in great peril after the tenant and his witnesses had finished their tale of woe, for the twelve jurymen, and one sympathetic juryman in par- ticular, regarded the landlord and his witnesses with evident distrust. The case went to the jury upon the issue whether or not such represen- tations had been made. It was oath against oath, and the lessor's coun- sel had nothing to suggest but the improbability that any business man would make such representaiions and risk his whole rent upon the re- sult. I shall never forget the ingenious manner in which the counsel opened his case. It was a discouraging thing to rise and face the lower- ing regards of eleven, jurymen. I say eleven, because the twelfth juryman, the sympathetic one, declined to look at him at all. md de- liberately turned in his seat so as to present hi- back to the counsel as he got up to plead the cause of the hated landlord. He was like the member on the committee, he had made up his mind. The counsel rose with the written lease in his hand, which he slowly unfolded and held out to the jury. -Gentlemen,' he said -look at this paper. What would you call it'/ As plain business men you would frankly answer that it is a lease. Oh. no, gentlemen, it is quite a different inslrumt-nt if the defendant prevails here, for according to him it is a policy of insur- ance by which my client for the sum of four hundred dollars guaran- tees the tenant and his wife, and his children and his servants agains 184 AMERICAN ADVOCACY. 152. Addressing the Jury A Temperate Style Before a Jury. A temperate style is always more effective than a nois}^ one. A verdict is never ob- tained by noise; foam has no weight, fury of lan- guage no force. Still, it is not intended for a mo- ment to suggest that a conversational style is powerful; on the contrary, an advocate might as well attempt to fire a bed of growing rushes with a piece of tinder as rouse a jury with a feeble speech. Bad speaking is infinitely worse than silence. Let the facts speak at all events. But a roaring style never persuades; it only astounds if it does not stun. Juries generally endeavor to do what they believe to be right, and to decide justly; it is inherent inhu- man nature that the t y should; but the danger of this excellent quality is, that their desire to do what is just often leads them to an unjust conclusion. They set up, as they think, a kind of natural justice amongst themselves, as though they should have a common standard of height for all mankind, which would pro- duce, undoubtedly, much painful stretching, or undue stooping, if all were forced to meet it. This natural justice, unfortunately, is neither law nor equity, and generally inflicts injury on both parties to the action, as the bo} T s did who divided the bellows that each might have a share. The advocate who knows that his client's rights are inconsistent with this natural theory must convince the jury of their error and bring them to a more accurate per- ception of the merits of the conflicting claims. This is not to be accomplished by declamation, but by the exercise of the reasoning faculties. The advocate any kind of sickness for a whole year, and gives him in addition a house to live in!' The twelfth juror was so impressed with the novelty of thia view that he turned round to bear more, He came round in fact figura- tively and actually, and the landlord got a verdict." METHODS OF SPEAKING. 185 must clear away not only the theory which they have constructed, but the basis on which it rests. Here is work for first, his perceptive faculties and then, his argumentative. And beyond question he must clearly ascertain what their idea of the merits of the case is. Among charlatans this process would be called "thought-reading:" with advocates it is merely the exercise of common sense a process of reasoning based on a knowledge of human nature. 153. Addressing the Jury Winning the Master Mind of the Jury. A skillful and experienced ad- vocate will quickly perceive the master mind of the jury, and to him he will first address himself. Nor will he be long in ascertaining whether he has made an impression or not. If he succeed, he need not trouble himself very much about the rest, unless there are those on the jury who have prejudices against his case. If there are, these prejudices must be attacked, and if possible beaten down, for it will not be sufficient to enlist the intelli-. gence of one or two minds against the prejudices of others. Intelligence and prejudice are the two master influences on the jury. If there be no preju- dice the advocate wins by convincing the best mind. If he cannot gain the strongest he should try and secure the weakest, for if he succeed here he will not lose his case. When trumps are out, the weakest card may take the trick, and the advocate has as much right to win with an uneducated Hodge as with a phil- osophical Mill. The jury are there for him to gain over to his side if he can by fair and legal argument, and by presenting his case agreeably to their minds and sentiments. 1 1 The advocate should not be dismayed at seeing the eyes of one juror closing in slumber or another studiously avoiding his gaze. Let him speak clearly, agreeably, forcibly and with a deep conviction of the 186 AMERICAN ADVOCACY. 154. Addressing the Jury "Oratory" Before a Jury. One great evil to avoid, if an advocate would be understood and appreciated, either by a com- mon jury or a special, is fine talking. Fine lan- guage will not stand the wear and tear of an ordi- nary nisi prius contest, and nowhere (except in the ears of a romantic female) is it so powerful and effective as good, well-chosen, homely words. It is as unnatural as the spangled dress of the ac- robat, and as utterly unfitted for the ordinary busi- ness of a work-a-day life. One has often seen advocates mystify their meaning in phrases which were more like a girlish novelist's hysterical utter- ances than the sound language of a man and a scholar. It will take a good and gifted speaker a long time, and will require a great deal of practice, before he can venture, to embellish his address with the figures or the fancies of rhetoric; indeed, the most gifted and the most finished speaker will only use them in a limited manner; profuseness of orna- mentation, like a redundancy of words, being at all times more calculated to obscure the meaning than to elucidate it. Above all things, affectation should be avoided; every listener detests it, and cannot help feeling some degree of contempt for the person who indulges in it. Affectation is a weakness even with strong minds, and although it is sometimes tolerated in a clever man, it is never admired; when an ordi- nary individual indulges in it he is simply despised. At the bar, except in rare cases, the higher gifts of oratory are out of place; it is a limited field; it has its truth of his utterances, and it may be said of him, as of James Scarlett (Lord Abinger), the great verdict winner of England, that he possesses a machine by which he can make the heads of jurors move vigorously up and down in the plane of the perpendicular, while his adversaries have only an imitation device which induces the jurymen to move their heads slowly from side to side. METHODS OF SPEAKING. 187 beaten tracks, and along these men must travel. Ora-' tory is not one of its paths; in other words, attempts at what is commonly called oratory are to be avoided. What a figure an advocate would present who should attempt the flights of Burke or Webster in a ''running down" case! The Republic is not at stake in every trial; and a pickpocket may be defended, at least up to conviction, without a severe onslaught on the Con- stitution. 155. Forensic Eloquence Its Value and Requi- sites. Those who would discourage true eloquence at the bar fail to understand what it means. It has been defined as the art of clothing thoughts in language and uttering them in such a manner as is adapted to pro- ducing conviction or persuasion. Can this art be elim- inated from forensic discussion with advantage? Will it facilitate the business of the courts, and save time, to disregard those rules by which legal points are lucidly stated and facts are impressively presented? When we speak of eloquence, we do not refer to words without ideas, but to the embodiment of ideas in words which make an impression commensurate with the thought. The immortal lines of Shakespeare teach us \vhat undying power dwells in the form of words. He was the master of expression, and he showed that inspiration is discernible not only in the conception of the idea, but in the shape in which it is presented to the ^Yorld. The power which gave to airy nothings a local habitation find, a name, united thought and phrase in an indissoluble union and res- cued even the commonplace and the trite from con- tempt and neglect. When we have thoughts to con- vey, our study should be how best to present them to the world; how to say what is in our minds so that it shall impress others as it impresses us. To be clear, persuasive, and convincing this is to be eloquent. 188 AMERICAN ADVOCACY. And no lawyer can afford to be without this art, or need be apprehensive that the study of it is time thrown away. It is no objection to the study of real eloquence, that the courts are now so hurried that judges have no time to listen. There is no record of any period when courts were not pressed for time. There never was a period when judicial haste did not pause to lis- ten with respect to a well stated case. The object of eloquence is to command attention in the pressure and haste of affairs. To arrest attention that is the first step; to give a clear description of the point at issue, is the next step; and to advance with cogency the argu- ments in the' speaker's favor, is the conclusion of the task. The next thing to observe is to be logical; without this the advocate will not be even intelligible. Some things he says may be understood, but his address generally will be a jumble of words and a confusion of ideas. Of course, it is not meant to imply that the plaintiff must put both sides logically; by so doing he may reason himself out of court. It is his own case and it matters little whether the advocate is addressing an educated or an uneducated audience: the mind is a reasoning machine, and it will the more readily grasp arguments that are put logically than those which are presented with unnatural distortions of premise and sequence. 156. Forensic Eloquence Genius or Hard Work as a Requisite. The modern decline in oratory is often mentioned, always deplored, but sel- dom accounted for. Political campaigns, together with the pulpit and the bar, afford the most avail- able fields for the cultivation of this talent; yet every observer, however superficial, knows that the best living representatives of these three de- METHODS OF SPEAKING. 189 partments of public speaking are not the equals of Wendell Phillips or Henry Clay, Matthew Simp- son or Henry Ward Beecher, Rufus Choate or Dan- iel Webster. This deterioration has not resulted from any radical change in the standards of public taste. Were Webster to appear among us to-day, he would draw as vast audiences and sway men as abso- lutely as in the meridian of his genius and power. The real explanation is, that we have forgotten the time-worn truism, "Poeta nascitur, orator fit," "The poet is a poet born, the orator is the result of educa- tion." The very eminence of the great orators of the past falls in with our natural indolence and seems to disprove the truth of this adage. We see only the finished production, the superb oration. We do not trouble ourselves to look behind the scenes and see how this grand spectacle was created ; the headaches and heartaches, the routine labor and painstaking care which were factors in its composi- tion. We have no difficulty in believing that the story of Aladdin's lamp was all a fable and that the vast buildings which ornament our capitols were built prosaically by ordinary men, who laid beam upon beam, brick upon brick, until all was completed. We may even understand how a coral reef is formed, not in an hour, but through centuries, by the tireless working of minute insects. But when we approach a great oration, sermon or legal argument, we are more credulous than children who believe the tale of Aladdin with as firm faith as they accept the story of Noah and his Ark. We can scarcely conceive that the discourse is anything less than the inspired utterances of genius, born without labor and spoken without premeditation. It is this false and absurd idea which deters men from cultivating the moderate ability that is theirs and which makes great orators 190, AMERICAN ADVOCACY. rare. Books have been written and lectures deliv- ered, attempting to show how the art of oratory may be acquired, but the subject is too often overlaid with technical rules and distinctions. The student is bewildered in the mass of details and readily set- tles back into his original opinion that orators are born and not made. 1 1 The ordinary lawyer will point to Kufus Choate. to Daniel Webster, to Mat. Carpenter, to Thomas Erskine, to Charles O'Conor, and attrib- ute their success as advocates to inborn genius, rather than constant, diligent effort. But a glance at the lives of these great men will con- vince one ol the vast importance of hard work in the shaping of their successful careers. Rufus Choate worked harder than any distinguished American law- yer and advocate, of whom we have a record. He labored faithfully, to have a profound knowledge of the principles of law and of the current decisions of the courts; he read general literature and the classics, to enrich his mind and improve his diction; he studied the dictionary, to enlarge his vocabulary; he constantly practiced the art of public speak- ing, and for forty years, let no day pass without drilling himself as to the proper method of addressing his fellow men. He concentrated his mind upon the trial of every case in which he was engaged, and whe;h- it was great or small, devoted the whole strength of his intellect and all his skill and energ} r to a proper presentation of it to court or jury. He paid close attention to the examination of witnesses, and made co- pious and exact notes of their testimony; he studied the notes carefully during the intermissions of court, so that he might utilize them the better during the argument; he studied the faces of his jurors to learn the workings of their minds; he made careful preparation during the progress of the trial for the argument, and when the time came to ad- dress the jury, labored wifih both mind and body to convince them of the correctness of his position. In the ardor of his speech, he would frequently come down on his heels with a force that would shake the whole courtroom. The same is true of William Pinckney, one of the most remarkable and distinguished advocates of the country. He was indefatigable in his search for legal knowledge. "He approached every new case with the ardor and zeal of one who had still his reputation to earn." His bio- grapher states that. ''He was never satisfied with exploring its facts, and all the technical learning which it involved. In preparing his speeches, whether for the forum or the senate, he was equally unspar- ing of toil. All bis life he declaimed much in private, and he carefully premeditated, not only the general order of his speeches, and the top- METHODS OF SPEAKING. 191 157. Forensic Eloquence Mental Absorption and Concentration. Our orator, who is determined to "speak well," next applies his mind to that vital part of his labor, the discovery of points upon which to discourse. It is an unpardonable affront to judges and juries, and ruinous to the reputation of a ics of illustration, but also the rhetorical embellishments, which last he sometimes wrote out beforehand. To supply himself with these, he noted in his reading every allusion or image that could be turned to use. He piqued himself on his critical knowledge of the English lan- guage, of whose structure and vocabulary he had a minute knowledge, if not a thorough mastery. Being mortified, when in England, by his inability to answer some question in classical literature, he resumed his classical studies, and put himself under an instructor to acquire a better knowledge of ancient literature." Mat. Carpenter was a prodigious worker and toiled late into the night while engaged in his cases. Charles O'Conor was a marvel of indus- try, and it is said of Emery A. Storrs, that in the "preparation of his legal arguments before a jury, it was his custom to spend the entire night while the trial was in progress, studying all the evidence that had been presented during the day." John Philpot Curran, the distinguished Irish advocate, is a good ex- ample of the remarkable results to be obtained by patient, persistent effort. He had few of the natural attributes of a forensic orator. He was awkward in manner, was small in stature and had poor articulation. At school he was known as ''Stuttering Jack Curran. " On account of a failure in the first speech be attempted to make in a debating society, he icsolved to overcome so far as possible his natural defects, and be- come a public speaker. He diligently followed a course of literary studies, and became passionately fond of the classics. At the same time he studied the French language and was indefatigable in bis efforts to perfect himself as an orator. William Matthews says of him: ."Con- stantly on the watch against bad habits, he practiced daily before a glass, reciting passages from the best English orators and authors. Spt-uking often in debating clubs in spite of the laughter which his early failure provoked, heatlast surmounted every obstacle, 'lie turned hi* shrill and stumbling brogue into a llexible, sustained and finely modulated voice; his action became free and forcible, and he acquired perfect readiness in thinking on his legs.' In a word he became one of the most eloquent and powerful forensic advocates the world has see." A further examination into the lives of eminent forensic orators must convince us that the average trial lawyer can greatly improve hid skill as an advocate by diligently endeavoring to emulate the masters of the art. It is more largely a matter of industry than of genius. 192 AMERICAN ADVOCACY. speaker, to rely upon vehemence and rhetoric when substantial questions of life and property are at stake. Call it meditation, invention, construction of argu- ments, or what you will, it is the frame work on which all else depends. It consists in delving to the heart of one's case and extracting weapons for attack and arms for defense, jewels and gold for beauty and adorn- ment. But without one great prerequisite the advo- cate will discover nothing, and that essential is, con- centration of thought. This mental absorption must be secured, whether by practice in steady reading and thinking, the study of mathematics or the writ- ing of essays; but it must be secured. If the mind plays one moment and works the next, if it glides off into day dreams and is restive until it ceases from its labor, the process of digging into the subject will yield no results. The treasure often lies deep and the blows of the pick must be constant and per- tinacious, stroke on stroke, time after time, monot- onously and stubbornly in one specific spot until it surrenders its riches. . 158. Forensic Eloquence The Talue of a Personal Inquisition. A glance at the advocate's theme may re- veal to him some valuable points lying upon the s u rf ace. He should observe them well, distrust first appearan- ces and be fully convinced that they are reliable before he accords them his hearty support. When the sub- ject has ceased to emit its superficial gleams, then commences his real labor, turning up the soil and hunting for the shining gold lying hidden beneath facts and incidents and minute details. The mind must be constantly and vigorously aroused by a sys- tem of catechising. We will, if the case involves the constitutionality of a statute, ask ourselves, "Who are the parties to this cause? Does the fact that a foreigner claims a right under the United States METHODS OF SPEAKING. 193 Constitution suggest any argument to us in support of or against the law? How has the person, who claims he has been injured, conducted himself with reference to this law? Did he assist in its passage? Did he accept benefits under it which make it unfair for him now to question its validity? Has he in any manner occupied a position inconsistent with the one he now holds? What motives actuate him in attack- ing this enactment? Again, when was the law passed? Was it at a time when party feeling ran high or national disaster seemed imminent? Was it called forth by some sudden emergency or was it the slow growth of a long-felt need? What was its pedi- gree? Was it the first of its race, or had it a lineage extending back through many years in the history of state legislation? How have its predecessors been treated by the courts, the legislatures and the peo- ple? What consequences would follow if the law should be declared invalid? What would result if it were upheld? What has been the practical opera- tion of this law?" Throughout the examination of his topic he must hold tenaciously before him the ultimate point he wishes to make, namely, that the law is good or that it is bad. Whenever he loses sight of this goal, his investigation will be halting and ineffectual. If the question in his case is not one of law, but arises upon the facts, he will pursue much the same method, by questioning himself freely concerning the parties to the suit, their circumstances, age, sex, race, financial and social condition, motives, occupa- tion, education, place of residence, interest or lack of interest respecting the transaction in question. From some or all of these inquiries he may derive argu- ments to establish or refute the point in issue. Tin -n he will turn to the transaction itself, the murder,. 13 194 AMERICAN ADVOCACY. robbery, contract, boiler explosion, railway 7 accident, slander or whatever it may be. He will ask him- self when, where and under what conditions did it occur? B} 7 what means? In what manner? What were its effects? Was this the first occurrence of the kind, etc. These and similar questions must be put until the capacity of the case as a well-spring of proofs is exhausted. It does not follow that he will employ all the arguments his industry or ingenuity discover. But there is need, first, to lay all of them bare; the sifting of the weak from the strong may readily be performed at a later stage. $ 159. Forensic Eloquence How to Meet an Attack. Thus far the advocate has assumed the aggressive, but this is only half of his duty. He is attacked, and must refute and parry the arguments of his adver- sary. Sometimes the case itself will suggest the ar- guments of law or of fact which the latter will prob- ably advance. In other instances the advocate will need to examine the facts critically from his stand- point to determine what points will be relied on to support his opponent's contention, and prepare to meet them. He will take up his own arguments, one after another, and, assuming that the first is falla- cious, will ask what answer he can make to the con- clusion drawn therefrom b} 7 his opponent. In still other cases he will be forced to await his adversary's argument to discover his points, and reply upon the instant as well as he can. If the advocate is able to show that a certain argument of the opposing counsel is inconsistent with another, that it is inequitable and should not lie in his mouth to advance a third, that a fourth point makes for his side of the controversy rather than in favor of the opposition, that a fifth is not supported by the facts, a sixth is contrary to .sound public policy, common sense or the decisions METHODS OF SPEAKTNG. 195 of the courts, and that a seventh is against the spirit and purpose of the law, he will render invaluable service to his client, for the sapper and miner are as necessary in a siege as the footsoldier or artillery- man. 160. Forensic Eloquence Discussion of Adverse Authorities. The opposing counsel will cite the ad- judications of the courts to disprove the advocate's legal position or to establish his own. The advocate's duty will then be to distinguish his authorities from the case in hand. He will point out, if the facts justify him in so doing, that his adversary's cases are the decisions of inferior tribunals; are not recent; do not exhaustively consider the point in question; the court cites few authorities or none; the cases have been doubted or overruled by later decisions; they are inconsistent with other utterances of the same court; the statements bearing upon the controversy at bar were not necessary for the decision of the point then before the court and hence are mere obiter dick i ; they are the decisions of a divided court in which there was a strong dissent; their facts differ in a material regard from those of the present suit; the case was a political decision and, being the out- come of partisanship, is not entitled to controlling weight; it was decided at a time when the views of the public differed radically from those of the pres- ent day, and the case is therefore no longer appli- cable to our times. Finally, if none of these avail the advocate should boldly declare the law to be erroneously stated in the decisions cited and, appeal- ing to the sound discretion and manly independence of the court, urge the judges to act upon the question ;is they would upon an original inquiry, untrammeled by precedents or authority. 196 AMERICAN ADVOCACY. 161. Forensic Eloquence Order, Arrangement and Peroration. The advocate, still holding clearly be- fore him the ultimate point he wishes to establish or destroy, and with an array of lucid, cogent argu- ments derived from the case by concentrated in- spection, takes the next step towards u speaking well." He arranges his matter in the best possible order. There are some minds so logical by nature that they need only begin the composition of a speech and they cannot but elaborate their argument according to the most telling plan. With the ma- jority of men, however, there is need of a written outline, with points separately numbered. These must be transposed and re-transposed until the arrangement appears rational and forceful. It has been aptly said that in every discussion there is always something that i naturally first, and it is generally true, also, that there are always arguments which are naturally second, and third, and fourth. The advocate should be well assured ; the probabili- ties are that the order of arguments and points which he originally frames is not the best natural order. His mind will cling to a wayward fane} 7 for its first born scheme of argument, either because it is too in- dolent to change its plan or because of a law of our being that whatever is new is likely to please us. He will cause himself mental pain by destroying that outline and transposing the parts. But he must learn to tyrannize over himself and buff et these predilections and groundless^preferences until his calm and delib- erate judgment approves of the arrangement which he has adopted, even though it be the reverse of his original scheme. Only the most general suggestions on arrange- ment can* be given, for every cause is peculiar to itself. Some delicate and very natural compliments METHODS OP SPEAKING. 197 to the court or jury, an appropriate reference to the importance and interest attaching to the case, a brief mention of the persons engaged in the litigation or of the place or time of the trial, may be the first words the advocate utters, and they should gradually glide into the body of his discussion. If he speak after his adversary, a strong commencement is secured by opening with the sentiment which the latter used in closing or with one emphasized by him during his argument, turning it into a weapon against him and thus utilizing it both as an introduction and an argument. In marshalling his points, the advocate should never begin or close with one that is weak. While his judgment and sense of propriety must determine the procedure in every instance, as a general rule it is better to place doubtful arguments in the middle of a speech, a strong point at the beginning and the strongest at the close. The feeble ones will thus derive strength from their surroundings. The advocate should not hurl at the judges or jury all the arguments he has conceived. He should let man} 7 of them go, especially those which are finely drawn, scholastic and such as would appeal rather to an audience of students and professors than to plain, practical men. If he do not dare omit his his weaker points, then mass them, project them in a body, one after another in quick and brilliant suc- cession, that they may obtain, in combination, a force and effect which they are incapable of producing when taken singly. If the advocate defend against an attack, his method may be the exact reverse of that suggested. He may separate the weak arguments advanced by his adversary and refute them one by one, thus making the destruction of his citadel easier when all 198 AMERICAN ADVOCACY. the redoubts and outposts have been captured. On other occasions the advocate's common sense may direct him, in the first instance, to throw all his weight upon his strongest point and, having beaten it down, take up his minor contentions and dispose of them with greater ease and dispatch. Here, as everywhere, he is to remember that the order in which he finally arrays his arguments is not always that in which they first occurred to him. It is the best order he must use, not the easiest. In closing, it is well for the advocate to sum up the entire argument upon his side if the case is at all diffi- cult, and then bear strongly upon the equitable features of the controversy. If the advocate has been contend- ing for the letter of the law and has laid stress upon technical or, it may be, hard and repellant, arguments, he should demonstrate to the court or jury that his position involves substantial justice and fair dealing, equity and good conscience. The tribunal will be readier to give credit to the rest of his discussion if it believes that, by its judgment or verdict, mercy and truth may meet, righteousness and peace embrace. All parts of the argument must lead naturally and gradually into each other. Unless for effect, there should neve i- be a violent and abrupt transition in the thought. The last sentiment the advocate has spoken should contain within it the germ of its suc- cessor, and melt easily and agreeably into the latter. This is acquired only through practice; but if, by a voluntary effort, he bring his mind to bear upon it while he speaks, its difficulties will soon vanish. The surest and simplest methods for the advocate to master the art of .perfect arrangement and grace- ful transition are to read and stud} 7 the speeches of great orators, and to compose written discourses of METHODS OF SPEAKING. 199 his own, applying the foregoing suggestions, awk- wardly and painfully at first, no doubt, but assidu- ously, until they come unbidden and he acquire that "instinct of skill" which is the consummation of all study. Having then said the things which the sub- ject and the occasion call for and require, having said them as acceptably as he ma} 7 , dealing with the salient, the strong, the vital points in his case, after thorough preparation, then let the advocate achieve as he may the proudest and richest trophy of court-room oratory and simply quit! 162. Elocution Cultivation of the Powers of Speech. Elocution has much to do with forensic elo- quence. Elocution is the art that deals with the manner in which we say things. In our matter of fact civilization we lay so much stress on the import- ance of the thing said that we care nothing for the way in which we say it. We ignore the art of elocu- tion as useless to anyone except the schoolboy and the theatrical apprentice. The result is that we have lawyers of high reputation to whom it is any- thing but a pleasure to listen when they are ad- dressing a court and jury. 1 We, of course would not advocate the cultivation of an unnatural style or manner, or recommend a course of study which would rob a lawyer of his individual- 1 The author had the opportunity of attending the argument of the famous suit of the United States v. The Northern Securities Company which took place in the United States Circuit Court of Appeals at St. Louis in 1903. Several of the attorneys for the Seen ritit-8 Company and for gome of the defendant railroads were absolutely monotonous. Their expression was frightful. They mumbled their words, and at the end of a long and involved sentence would allow their voices to gradually die away into a mere whisper a very common error. The comparison of these dull, impassioned speeches with the electrical, sparkling, well- delivered address of United States Attorney Heck must have impressed even the court and have han something to do, probably, with their unan- imous decision in favor of the government's contention. 200 AMERICAN ADVOCACY. ity. Artificiality and insincerity are to be avoided by all means. But is there any good reason why a lawyer should not be able to improve by instruction and practice, his manner of addressing courts and juries, and at the same time retain his own distinctive individuality in gesture, tone and mode of utterance? Many lawyers are familiar with the "jury voice." Some lawyers talk to a jury in a loud tone of voice, usually in a high key, and, without modulation, goon monotonously, to the end, frequently wearing them- selves out, as well as the jury. What a distinct advan- tage a lawyer with a good voice has! When properly handled, how it pleases, calms, arouses or thrills! Unemotional as we may believe ouselves to be as a class, a public speaker with a clear, ringing, well modulated voice can cause the blood to course through our veins, fill us with love, pity, fear or hatred, and impel us to a course of conduct that we never would have followed had it not been for the potent charm of the human voice. If such results can be obtained by the use of the advocate's vocal powers he shall certain!}" at times be able to win a doubtful case by the manner in which he uses his voice. 1 1 Demosthenes, in the early part of his career, complained that with the utmost endeavor he could find no favor with the people. Satyrus, the actor, asked him to repeat a selection from Euripides or Sophocles. Demosthenes complied, and then Satyrus recited the same speech in such a way as to make it seem marvelous to Demosthenes. It sounded like an entirely different speech. Following the example set by Saty- rus. and exercising the most painstaking care, he soon became the greatest orator of ancient or modern times. Rufus Choate earnestly recommended the study of elocution. He made this statement in regard to it: "Elocutionary training I most highly approve of. I would go to an elocutionist if I could get time. I have always, even before I first went to Congress, practiced a daily sort of elocutionary culture, combined with a culture of the emotional nature. I have read aloud, or rather spoken, every day, a page from Burke, or some such author, laboring for two things : to feel all the emo- METHODS OF SPEAKING. 201 163. Elocution Imitation and Affectations of "Speech. It is equally necessary to warn the young- advocate against a yery common and fascinating error that of imitation . A really good advocate has a style_of bis own, and an individuality which would be utterly spoilt were he to attempt to blend it with that of another. To imitate a successful man's style is like a short man putting on a tall man's coat. How- ever well it fitted the one, it is sure to look ridiculous on the other. Style isjjorn with a man as much as his mental capacity itself. Nor should it be forgotten that imitators, as a rule, adopt the failing's and not the excellences of their models. Affectations of speech and mannerisms are what generally catch the eye of the imitator. Besides this, imitations are bad in themselves. As a rule, they are grotesque rep- resentations and little more than burlesques of the original. It is at once apparent that they are no part of the imitator's individualit\', however well they ma} r be done. It does not of course follow that the best advocates are not therefore to be accurately studied; it is servile imitation that is to be depre- cated, not the careful observance of the graces and excellences of the best men. The smooth, unruffled demeanor, the courtesy, the polished ease, the unex- aggerated eloquence, the order and arrangement of speeches, the skillful and subtle modes of cross- examination, the fearless independence of the masters of advocacy, should be studiously consid- tionM of Indignation, sarcasm, commiseration, etc., which were felt by him, and also to make my voice flexibly express all the changes of pitch And time, etc., appropriate to the fluctuation of thought. I have done this in my room, and therefore did not give vent to loudness or vio- lence, but found great range of tone possible, nevertheless. I con- stantly strove also to make my tones strong and full and the throat well opened." 202 AMERICAN ADVOCACY. ered. But wherever there is an extravagance of style, even though it may be fascinating in the ad- vocate to whom it is natural, it should never be imi- tated. An imitator must of necessit} r be a second or third-rate man, and is generally below even that. At the best he plays but a poor part, and his best imita- tion does him the least credit. 164. Danger of Achieving a Reputation as a Wit. The advocate should avoid in his argument all attempt at witticism. Crack no jokes; tell no funny stories in the argument of the case to court or jury. The ad- vocate will by his fun and levity undoubtedly enter- tain the jury possibly the court; but that is not what he is there for. By his brilliant flashes of wit, and by his delightful humor, and by his really good stories and they are the dangerous ones he will excite an expectation in the jury for more fun after a while, and they will be impatiently waiting' for some- thing funnier still further on ; while it is to the doubt- ful questions, the questions that need clearing up, that he should address himself; and he should by his own seriousness impress the jury that to him and to his client that case is a matter of grave and serious 'concern. The lawyer who achieves a reputation for being a funny man is doomed, so far as his advocacy is concerned; just like the sensational preacher is doomed when he has achieved the reputation of being sensational. He may build up congregations, but he will never build up churches never did. You may win the applause and secure the verdict of that un- sworn jury that sits without the bar; but when that sworn jury retires to the jury-room to consider his case, it will be the weightier matters and not the "mint, anise and cummin" of the case that will en- gage their thought. METHODS OF SPEAKING. 203 165. Appropriate Physical Gestures and Facial Ex- pressions in Speaking. Nothing is so cold and clammy as an address of a speaker who, sphynx-like, looks at you without even one unnecessary wink of the eyelid, and rolls out his words like a phonograph without the least outward evidence of feeling. Facial expression and physical gesture, when used naturally and appropriately to the occasion, are tremendously effective in forensic pleading. Appropriate facial expression is probably the most important outward evidence of feeling. The deep frown, the inquiring or sarcastic flight of the eye- brows, the fierce gnashing of the teeth, the con- temptuous curling of the lip, the piercing flashes of the eyes all these and possibly many other equally effective manipulations of the facial muscles, ma}' very profitably be used to embellish the speech of the forensic orator. l Of course these facial expressions 1 In the days when Henry Clay was nt his prime as a lawyer a man was once being tried for murder and his case looked hopeless indeed. He had without any seeming provocation murdered one of his neigh- bora in cold blood. Not a lawyer In the county would touch the case. It looked bad enough to ruin the reputation of any barrister. The man, as a last extremity, appealed to Mr. Clay to take the case for him. Every one thought that Clay would certainly refuse. But when the celebrated lawyer looked into the matter his fighting blood was roused, and, to the great surprise of all, he accepted. Then came the trial, the like of which was never seen. Clay slowly carried on the case, and it looked more and more hopeless. The only ground of defense the prisoner had was that the murdered man had looked at him with such a tierce, murderous look that out of self- defense he had struck first. A ripple passed through the jury at this evidence. The time came for Clay to make his defense. It was settled In the minds of spectators that the man was guilty of murder in the first de- gree. Clay calmly proceeded, laid all the proof before them in his masterful way. Then, just as he was about to conclude, he played his last and mastercard. "Gentlemen of the jury," he said, assuming the fiercest, blackest look and carrying the most undying hatred in it that was ever seen, 204 AMERICAN ADVOCACY. must be natural in order to prevent them from being ludicrous. Some advocates twist their faces into so painful a grimace when the}* address a jury that one would think the weight of their task caused them phys- ical torture. Others attempt to screw their features into looks of supreme contempt, anger or scorn. It is not every one who can convej" his sentiments by a look. The face takes its expression from the feel- ings; and an advocate can no more give it a natural look which does not spring from that natural source than he could make the face of an india-rubber doll beam with pleasure. It is only by thoughtful labor and study that the sculptor can obtain an expres- sion upon the marble which faintly represents the emotions. It is quite clear every one is not artist enough to put the right muscles in motion to produce a corresponding effect upon his own features when- ever he desires it. Attempts of this kind, there- fore, are not only ludicrous but foolish. The most certain method of insuring this necessary natural- ness in expression is for the speaker to work himself up to a high pitch of feeling and then give wa t y to every impulse that naturally suggests itself as a proper outlet of the pent-up fires of feeling that have been kindled within the breast. But it must be remembered that without these kindled fires of feel- "gentlemen, if a man should look at you like this what would you do?" That was all he said, but that was enough. The jury was startled and some even quailed on their seats. The judge moved uneasily on his bench. After fifteen minutes the jury filed slowly back with a '-Not guilty, your honor." The victory was complete. When Clay was congratulated on his easy victory, he said : "It was not so easy as you think. I spent days and days in my room before the mirror practicing that look. It took more real iiard work to give that look than to investigate the most obtuse case.'' METHODS OF SPEAKING. 205 ing there can be no natural facial expression indeed, there can be no true eloquence. Appropriate gestures are a very strong second to appropriate facial expressions. The trembling, quiv- ering frame, the heavy stamping of the feet, the graceful, undulating movements of the bod}~, the direct pointing of the finger, the spectacular flourish of the arms, the haughty twist of the head, these and many other graceful and forceful movements of the body and its appendages can be made very effect- ive not only in lending emphasis to the arguments advanced but also to assist wonderfully in making clear to the hearer the exact meaning of the language with which the speaker has clothed his thoughts. Of course, naturalnSS-J&-as noooooary-hereas in the mak- ing of proper facial expressions although its absence is not so dangerous. Practice, in debating societies or elsewhere, will here, as in every other desired achievement in life, make perfect. CHAPTER XIV. LEGAL ETHICS. 166. General Code of Ethics. 167. Code of Legal Ethics. 168. Inviolability of the Code of Ethics. 169. To What Extent Profession- al Conduct is Affected by the Code. 170. Methods of Enforcing the Code. 171. The Advocate's Relation to the State General Con- siderations. 172. The Advocate's Relation to the Court General Con- siderations. 173. The Advocate's Relation to the Court Attitude To- wards the Judge. 174. The Advocate's Relation to the Court Attitude To- wards the Jury. 175. The Advocate's Relation to the Court Attitude To- wards his Own and Oppos- ing Witnesses. 176. The Advocate's Relation to the Court Should an Ad- vocate Practice in a Court in which the Jud,ge is His Near Kinsman, 177. The Advocate's Relation to the Court The Imperson- ality of the Advocate. 178. The Advocate's Relation to His Client The Suprem- acy of the Client's Inter- ests. 179. The Advocate's Relation to his Client Is Truth a Higher Obligation;* 180. The Advocate's Relation to to His Client Defending One Whom the Advocate Believes to be Guilty. 181. The Advocate's Relation to His Client Becoming a Party to a Fraud, or Main- taining Harassing or Op- pressive Litigation, 182. The Advocate's Relation to His Client Use of Im- proper Methods or Influ- ences. 183. The Advocate's Relation to His Profession General Considerations. 184. The Advocate's Relation to His Profession Attitude Towards Oppos ng Coun- sel. 166. General Code of Ethics. The term "eth- ics" is derived from the Greek word "ethox" sig- LEGAL ETHICS. 207 nif}*ing "custom or usage." Ethics, therefore, as a science, is in its generic sense a study of the origin and authority of the customs and usages of the peo- ple of any particular locality in matters of private duty and obligation. Of course, in a metaphysical and abstract sense, the word has come to have a more extended meaning as denoting study of the action of the mind in determining what is wrong and what is right in accordance with certain standards set up and established by the collective or individual con- science. Nevertheless, for our purpose the original signification must be kept constantly in mind. In- deed, in the study of any phase of the general subject of ethics, this conception should be given .more or less prominence. 1 All systems or '"schools" of ethics trace the origin of the principles of conduct which they advocate to certain customs or usages of the people, except, of course, such systems as are founded upon reasoning purely metaphysical, in which case the individual sets up his own standard or "moral touchstone, " artificial or otherwise, by which he de- termines the right or wrong of any particular action. When not artificial in its origin this "moral touch- stone" of the individual is termed "conscience." The "collective conscience," therefore, of a communit}' is the origin of the particular moral customs, usages or moral standards of that community, and establishes the code of ethics or rules of conduct for that com- munity. It may be called "public opinion;" but what- 1 "When man reaches the stage of philosophical questioning, and communes with himself concerning morals as of other tilings in gen- eral, he comes to the task with morality ready-made and in full op- eration. Ills real object is not to find speculative principles and deduce morality from them as if morality had to he invented for the first time, but to assign principles on which he may account for the morality already familiar to him.' 1 Pollock's Essays, 293. 208 AMERICAN ADVOCACY. ever called, it is the one great source of all practical systems of ethics, etiquette and good manners. Therefore we have different standards of morality in different communities, the variation in which is largely due to the past history, education and environment of the people composing- that community. 167. Code of Legal Ethics. For the same reason that different communities may have different stand- ards of morality in general, so, also, different castes, guilds, crafts or professions, may, because of their peculiar lines of work and the inter-relation and asso- ciation of their wembers, require additional stand- ards to determine the propriety and morality of ac- tions and transactions peculiar to such castes, guilds, crafts or professions. 1 The profession of the law is no exception to this rule. The code of legal ethics is that system of rules which by mutual consent is ob- served by members of the legal profession as the standard by which to determine the propriety of their conduct and relationship toward their clients, the courts or other members of the profession. Of course such a sj'stena of ethics does not supplant the general code observed by the community as a whole. It only adds to these standards of morality, observed by the general public, additional rules of conduct applicable to the profession of law and its peculiar relationships and duties. These rules, which constitute the code of legal 1 "A craft, or profession, from its experience and observation, estab- lishes certain canons of ethical import and makes rules for the guidance and government of its members. The rules may be express or implied, and it is immaterial whether they be written or unwritten. It is suffi- ci^nt that they have received a general assent by substantial observance only. They then become binding on all of the members, and derelic- tions therefrom constitute breaches of the ethical code." Warvelle's- Essays in Legal Ethics, p. 19. LEGAL ETHICS. 209 ethics, are as a general rule unwritten. Some states have tried the experiment of codifying the rules relating to professional ethics, with the result that they have experienced the difficulty which invariably attends the task of converting abstract ethical prop- ositions into concrete forms of legal expression. 1 It is safe to expect that the code of ethics will remain, like the British constitution, unwritten, but none the less inviolable for all that. 168. Inviolability of the Code of Ethics. No caste, guild, craft or profession is possessed of a code of ethics which is more jealously guarded than that of the profession of law. 2 And this is not without reason. No profession, not even that of the doctor or the preacher, are as intimate in their relation- 1 The most celebrated codification of the principles of legal ethics is that contained in the oath demanded from every intended practitioner of the law by the canton of Geneva. This oath is as follows : 'I swear before God to be faithful to the Republic and the canton of Geneva; never to depart from the respect due to the tribunals and au- thorities; never to counsel or maintain a cause which does not appear to be just or equitable, unless it be In defense of an accused person; never to employ knowingly, for the purpose of maintaining the causes confided in me, any means contrary to truth, and never to seek to mislead the judges by any artifice or false statement of fact or law; to abstain from all offensive personality, and to advance no fact contrary to the honor or reputation of the parties, if it be not indispensable to the cause with which I may be charged; not to encourage either the commencement or the continuance of a suit from any motive of passion or interest; not to reject, for any consideration, personal to myself, the cause of the weak, the stranger, or the oppressed/' 2 "Legal ethics may be distinguished from the general subject In that, while a violation of the moral code, an established by the conventions of society, will usually result in nothing worse than social ostracism,, a disregard of the ethics of the bar may result in professional death. In society men arc kept within bounds by no stronger a force than public opinion, but in the legal profession a summary jurisdiction i*. lodged in the courts to discipline offenders against good morals and flood conscience." Warvelle's Essays in Legal Ethics, p. 20. 14 210 AMERICAN ADVOCACY. ship with the people as that of the lawyer. To the doctor the patient discovers his physical ail- ments and S}^mptoms, to the preacher the com- municant broaches as a general rule only those things that commend him in the eye of heaven, or those sins of his own for which he is in great fear of eternal punishment, but to his lawyer he unburdens his whole life, his business secrets and difficulties, his family relationships and quarrels and the skele- tons in his closet. To him he often commits the duty of saving his life, of protecting his good name, of safe-guarding his property, or regaining for him his liberty. Under such solemn and sacred respon- sibilities, the profession feels that it owes to the people who thus extend to its members such un- paralleled confidence the duty of maintaining the honor and integrity of that profession on a moral plane higher than that of the merchant, the trader or the mechanic. And having the power to maintain its high professional standards by a show of authority possessed or enjoyed by no other profession, a lawyer takes his professional life in his hand when he vio- lates any of these unwritten rules of conduct sus- tained b} 7 the overwhelming sentiment of the pro- fession and strictly and summarily enforced by the courts. TJie young lawyer, fresh from the victories of the class-room may be inclined sometimes to be- come restless under the limitations imposed upon lii in by the code of ethics and to regard them as an imposition. It is only when it is explained to him that his profession is not an independent one, that its members are mere officers of the court and not only derive all their authority from the court but are subject to all reasonable orders and regulations imposed upon them by the courts and, through the courts, by the profession itself, that he recognizes LEGAL ETHICS. 211 not only the unreasonableness of his objections but their futility as well. Another deterring influence to one inclined to be recalcitrant, and one not to be lightly estimated, is that of the respect and good- will of other members of the profession. The public very wisely rates a lawyer by what his professional brethren think of him, and an advocate who, bj'his un- professional tactics and conduct, assiduously invites and cultivates the enmity of the members of his own bar, will very quickly hit the bottom, and stay there among the "snitches" and vagabonds of the pro- fession until he comes to himself, and by circum- specting his conduct and courting the confidence and respect of other lawyers, he finally wins the place to which his ability entitles him. l jf- t 169. To What Extent Professional Conduct is Af- fected by the Code. It of course goes without saying that a lawyer should be a gentleman and a good citi- zen, but for violations of the general rules of etiquette or even for violations of the criminal code, unless the provision of the code is but a declaration of the rule of legal ethic^ the lawyer is not responsible or an- swerable in his professional capacity. The lawyer's responsibility for professional misconduct extends only to those relationships into which he enters by virtue of his office, but as these relationships are so extensive in their various ramifications, it is difficult to put a definite limit on the applicability of the code of ethics to a lawyer's conduct and actions. These 1 "The bar hn- a rigid form of etiquette with respect to many trans- actions. A violation of thin form in attended only by a IOSH of profes- sional standing. At first blush this punishment does not -m MTV evere, and, because its effect is not always Immediately apparent, many men are induced to persist In practices that contravene accepted standards. Hut, in the end, there is scarcely any form of punish imMit that can compare with It." Varvelie's Essays In Legal Ktlfi< . \>. J'.t. 212 AMERICAN ADVOCACY. relationships may be grouped under four heads (1) the advocate's relation to the state; (2) the advocate's relation to his client; (3) the advocate's relation to the court; (4) the advocate's relation to his profes- sion. The statutes in most states provide that a license to practice law authorizes the advocate "to appear in all the courts within the state and there to practice as an attorney and counselor at law, accord- ing to the If t.i os and customs thereof, for and during his good behavior in said practice." 1 By the term "laws and customs" of practice is meant the principles of the code of ethics as well as the rules of court pro- vided for the purpose of regulating the local practice of the law. While as a general rule the private life and char- acter of the advocate are not called in question by the court on ethical grounds, at least as to par- ticular acts of misconduct, still where an advocate, by repeated and deliberate wrongdoing in his pri- vate life and transactions, gains a reputation so damaging as to injure him in his standing before the community as a man of good moral character, the court, at the instance of the profession or some proper authority, may discipline the offender or cut him off entirely from the ranks of the profession. 1 * 1 Rev. Stat. Mo., 1899, Sec. 4918. 2 4> It is an essential condition to admission to practice that the ap- plicant shall be a man of good moral character. The primary object of this is to maintain a high standard of moral excellence in the profes- sion and conserve the ancient dignity of the bar. This being true, it nec- essarily follows that this essential character should be maintained after admission, and when the conduct of the licentiate clearly shows, either that the court was deceived at the time of his admission, or that there has been a moral degeneracy since that time, a proper case for disci- pline may be presented.'' Warvelle's Essays in Legal Ethics, p. 47. LEGAL ETHICS. 213 170. Methods of Enforcing the Code. The courts enforce the principles of professional ethics by summary proceedings. This' jurisdiction of the court seems to be derived from the general super- visory and disciplinary power which a court exercises over its own officers. The advocate being nothing more than an officer of the court a part of the judi- cial machinery is under the immediate control of the court; as much so as any other part of the judicial machinery. The first and most important method of enforcing the code of ethics is that of disbarment, a remedy that absolutely extinguishes the professional life of the advocate. This remedy is the most severely radical and effective of all remedies and is adminis- tered only in cases of flagrant disregard of profes- sional ethics or high moral duty. 1 It is laid down in all the books in which the subject is treated that a court has power to exercise a summary jurisdiction over its at- torneys to compel them to act honestly towards their clients, and to punish them by tine and imprisonment for misconduct and contempts, and, in gross cases of misconduct, to strike their names from the roll. If regularly convicted of a felony, an attorney will be struck off the roll as of course, whatever the felony may be. because he is rendered infamous. If convicted of a misdemeanor which imports fraud or dis- honesty, the same course will be taken. He will also be struck off the roll for gross malpractice or dishonesty in his profession." Bradley, .!.. in Kf part* Wall, 107 U. S. 265, 273. In Aruhbold's Practice, editions by Chitty, p. 148, it is said: "The court will, in general interfere in this summary way to strike an at- torney off the roll, or otherwise punish him, for gross misconduct, not only in eases where the misconduct has arisen in the course of a suit, or other regular and ordinary business of an attorney, but where it has arisen in any other matter so connected with his professional character as to afford a fair presumption that he was employed in or intrusted with it in conm-quence of that character." And it is laid down by Tidd that "where an attorney has been fraud- ulently admitted, or. after admission, had been convicted of felony, or otheroffense which renders him until to In* continued an attorney, <>r has knowingly suffered his name to In- made use of by an unqualified 214 AMERICAN ADVOCACY. Another remedy is that of suspension. This is but a species of the first remedy; indeed suspension is disbarment for a definite period of time. It is a remedy which is administered in cases which would hardly justify a decree of disbarment. A third remedy is that of the imposition of a fine. This is a very effective remedy becauseof the fact that the court will often compel the guilty party to work out his fine. Another method of discipline is that by way of reprimand, which is one very frequently administered. It must be borne in mind that this power to dis- cipline advocates is administered not for the sake of punishing the offender (the criminal courts will do that) nor merely to assert the dignity of the court (that is a matter that comes under the subject of con- tempts), but to assert the dignity of the profession and vindicate the authority of the ethical code. 171. The Advocate's Relation to The State General Considerations. To the state the lawyer sustains a most intimate and important relation. To him is intrusted the enforcement of its laws, and hardly anything could be conceived more detrimental to a state than a corrupt and antagonistic bar. Moststates, therefore, require that one applying for a license to practice law shall make an oath to support the con- stitution and laws of the state and of the United States. So also when this peculiar relation of the advocate to the state is taken into consideration, it would person, or acted as agent for such person, or has signed a fictitious name to a demurrer, or otherwise grossly misbehaved himself, the court will order him to be struck off the roll." 1 Tidd's Practice, 89. The above quotations evidence the indefinite application of the code of ethics. For a review of the authorities we refer the reader to the celebrated case of Ex parte Wall, supra. LEGAL ETHICS. 215 seem incongruous that one convicted of a violation of the laws of a state should be permitted to remain as an officer to assist in the enforcement of the laws he has trampled under foot. It is therefore provided in many states that a lawyer convicted of a felony or an infamous crime shall be disbarred from his right to practice law. This is also the rule at common law. 1 Another important consideration for the advocate to remember is that not only must he himself not vio- late the constitution or laws of the land, but he must not^ assist or encourage others to do so. If he do, he commits a most serious breach of professional ethics, and in severe cases may be suspended or removed from practice. Thus it has been held that where an attorney exhorted a mob of citizens to take the law in their own hand and urged them to enter a jail and take therefrom a prisoner, against whom the popular mind had been inflamed, and lynch him, such attorney was liable to summary dis- barment without trial, without petition and on the court's own motion. ~ 1 The fact that the crime hag been condoned doei not affect the case. Thus, in a case before Lord Mansfield, an attorney was convicted of theft, and the crime was condoned by burning in the hand. The court nevertheless ordered his name struck from the roll. "The question is"* said Lord Mansfield, ''whether, after the conduct of this man, it is proper that he should continue a member of a profession \v hi< ti should stand free from all suspicion. * * * It is not by way of punishment; but the courts in such cases exercise their discretion, whether a man whom they have formerly admitted is a proper person to be continued on the roll or not." Kt. parte Wall, 107 I*. S. *2tfS. In this case it appeared that on a certain day an attorney took part in a riotous and tumultuous mol> \vho were seeking the life of a certain person charged with a very foul crime. The attorney addressed the mob In cxi-hrd tnncx and advised and urged them to enter the jail and lynch the prisoner. The mob fol- lowed bis advice and his leadership and hung the prisoner. The 216 AMERICAN ADVOCACY. 172. The Advocate's Relation to the Court Gen- eral Considerations. It has already been intimated that the work of the advocate is not entirely an in- dependent calling. The advocate is, in truth, merely an officer of the court. In ancient times the first licensed practitioners were called Servientes Domini Regis ad leguin ''Servants at law of our Lord, the King." 1 The idea contained in this distinguished appellation has never been departed from. The American lawyer owes his allegiance to his state and especially to the state's judicial representative the court, of its own motion cited the attorney thus implicated in this ter- rible crime to appear at a certain time and show cause why his name should not be stricken from the roll. After the hearing the court entered judgment striking the name of the delinquent attorney from the roll. In affirming the decision of the lower court, the United States Supreme Court, speaking through Mr. Justice Bradley, said: 'Now, what is the offense with which the petitioner stands charged? It is not a mere crime against the law; it is much more than that. It is the prostration of all law and government; a defiance of the laws; a resort to the methods of vengeance of those who recognize no law, no society, no government. Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample them under foot, and to ignore the very bonds of society, argues recreancy to his position and office, and sets a pernicious example to the insubordinate and dangerous elements of the body politic. It manifests a want of fidelity to the system of lawful govern- ment which he has sworn to uphold and preserve.*' 1 "The first persons regularly licensed to appear as advocates in the king's courts were called 'sergeants,' although their full official title seems to have been Servientes J)omini Regis ad legnm. That is, 'Ser- vants at law of our Lord, the King.' Unlike all prior advocates, they were a part of the court itself; were regularly appointed by royal patent; were admitted only upon tnking an oath; had a monopoly of all practice, and were directly amenable to the king as parts of his judicial system. The fundamental ideas involved in the creation of this class has never been abandoned, and, notwithstanding that the class itself by the name 'sergeants' has ceased to exist, they are still the distinguishing characteristics of the bar in all countries where the common law prevails." Warvelle's Essays in Legal Ethics, p. 29. LEGAL ETHICS. 217 court, whose officer he is. This peculiar relation is found in no other profession; the physician, indeed, is not subject to any tribunal empowered to inter- fere with and regulate his practice by arbitrary rules; and even the preacher, if he feels the restraint of his synod or general conference to be too exacting, may go out as a free lance and by an extravagant and abusive style of preaching', which would not be tol- erated for one moment in a court of law, attract to himself a large following and incidentally a large in- come. But a lawyer's existence depends on his agree- able relations with the court. If he is persona non (jrata with that tribunal, his business as an advocate is gone. If, therefore, an advocate should impugn the integrity of the court or bring its judgments into disrepute he may be severely reprimanded and pun- ished by the court he has abused; and in severe cases he may be disbarred from practice. Some attorneys fail to appreciate this fact, with disastrous results to themselves. They seem to think that they must be guilty of some crime or gross unfairness or fraud against their client in order to justify their disbar- ment from practice. Undoubtedly the majority of cases arise under such circumstances, but the courts frown equally as sternly upon actions of an attorney that bring the court or its officers into disrepute. ! The advocate, therefore, should make it his chief concern to uphold the integrity and dignity of the court before his client and before the public. In this connection it might not be improper to mention, what would seem only too evident but for its not infrequent occurrence that to lumper with the records of the court clandestinely for the advo- > People v. Goodrich, 79 III. 148; People v. McCabe, 18 Colo. 186, 32 Pac. Kep. 28, 80 Am. St. Rep. 270. 218 AMERICAN ADVOCACY. cate's own advantage, or for any other purpose, is not only strictly unprofessional, but will render the advocate liable to be summarily dismissed from the profession. 1 173. The Advocate's Relation to the Court- Atti- tude Towards the Judge. When the barrister enters the court room he is morally bound to act fairly toward the court, deceiving it neither upon the law nor the facts, quoting authorities truthfully and offer- ing no garbled extracts nor cases known by him to be overruled. He will accord to the magistrate that deference which the office demands, irrespective of the man who fills it; a degree of courtesy not easily attainable, since a large part of a judge's duty is said to be rendering it disagreeable for counsel to talk nonsense. He must deal openly, not attempting in private interviews and casual encounters to preju- dice the mind of the judge by ex parte statements, or to insinuate arguments against the adversary which 1 People v. Murray, 166 111. 630. In this case it was held that where an attorney falsified a bill of exceptions after the judge had signed it, and procured the clerk to certify a transcript of the record containing the false matters, he was guilty of such misconduct as would empower the supreme court, in the exercise of its discretion, to summarily strike the name of such an attorney from the roll. In this case the lawyer was a young man just admitted to the bar. He pleaded ignorance, but the court refused to listen to the plea. The court said: "He was twenty-seven years old, had had charge of two or three cases in the appellate court, and made abstracts in them, had studied law suffi- ciently to be admitted to the bar, and must have known the uses and objects of testimony. * * * But if his testimony is true, it evidences a want of moral sense which would render him incapable of appreci- ating and discharging the duties and obligations of a lawyer toward the courts. If. at his age, and with his experience, he cannot discern the necessity and propriety of observing the truth and not imposing upon the courts by falsehood, it is plainly our duty to protect litigants against such practices as he indulges in, although he may not think them improper. A person with such ideas should not be numbered among the members of the profession whose duty it is to aid in the establishing of truth and the administration of justice." LEGAL ETHICS. 219 the latter is not present to answer. Toward the judge he must conduct himself with the utmost def- erence, yet with firmness and a due regard for his client's rights, being neither overawed by the judge's greatness nor filled with unconcealed contempt at his ignorance. If an advocate is called to face some Jeffries on the bench, who seeks to override law and lawyers, he should remember his personal dignity that he is as much an officer of the court as is the judge; his interest in the case and his client's wel- fare; and thus emboldened, stand firm with the respectful resolution of Erskine when he braved Lord Mansfield and pronounced his famous arraignment of the Earl of Sandwich, which won him his cause and his fame, and who afterwards said that he dared speak as he did because he felt his little children plucking him by his robe and saying, "Now, father, now is the time to get us bread!" The advocate should remember that the judge is unfamiliar with the case, and with much of the law pertaining to it; that his special preparation renders him far better acquainted with both the law and the facts than is the judge; that his duty is to assist the latter, and to that end to take nothing for granted; he is to watch for signs of especial interest on the judge's part, and welcome interruptions which show at what points he is experiencing difficulty. ?; 174. The Advocate's Relation to the Court Atti- tude Towards the Jury. Toward the jury the advo- cate's demeanor should be manly and winning. They must be treated with deference and no slight is to be <-;i*t upon any class of men to which they may belong. They will not resent the utmost simplicity of state- ment, or the homeliest explanation of the law and the evidence, but if they conceive the advocate is not in earnest or is misleading them, they will do 220 AMERICAN ADVOCACY. the most embarrassing thing they can think of, take out their watches and yawn while he speaks. Look at them as individual men, not as u a jury." He should know something of their separate histories if he can, and make them his confidential friends as he stands before them in argument. Look them straight in the face with an earnest "significant look." Policy, if no higher incentive, directs the lawyer to preserve a strict integrity toward the jury, neither misleading them by falsely colored statements of the evidence nor by loose, ill-considered propositions of law. Nor will he testify before them while pur- porting to advance his arguments. He will recall his oath enjoining upon him respect for the court, and he will never, save in extreme and exceptional instances, strive to set against each other the judge, who declares the law, and the jury, who must apply it. In all things he will remember the admonition offered four centuries ago to his 3 7 ounger brethren by one learned in the law: "I counsel thee that thou do nothing against truth; if thou do thus, I trust the lantern, which is thy conscience, shall never be extincted." 175. The Advocate's Relation to the Court Atti- tude Towards His Own and Opposing Witnesses. In his dealings with a witness upon the stand, he is under no obligation to examine him upon all phases of the controversy. He may properly assume the adver- sary will develop those points which are damaging to the opposite party. Nor is he compelled to en- ter upon subjects which the witness is privileged, by the law, to conceal. He will never indulge in bra- vado and insult toward those testifying with evident fairness, nor will he be brutal in investigating the private life of an ingenuous witness, solely for the purpose of degrading him in the eyes of the jury. LEGAL ETHICS. 221 The true barrister will also scorn the practice of distorting the language of the testimony by his argu- ment, or putting into the mouth of another words and sentiments he did not utter. ' No less reprehensible is it to approach the wit- nesses of the adversary, or the adversary himself, under the guise of friendly interest and thereby secure facts in the case which would not have been divulged had the real character of the interlocutor been known. On the other hand, if the opposing partly at any stage of the proceedings seek advice from his antago- nist's attorney, professional ethics require an out- spoken refusal to act for both sides of the contro- versy. Should it happen that the attorney who is thus approached sees it is advantageous for each party that a given course be pursued, he may hon- estly comply with his opponent's request, but never if the interests of the litigants are irreconcilable; for either he will betray his employer or practice a deception upon one who consults him as a confidant, and discovers, too late, that the kisses of an enemy are deceitful. In regard to improper methods of procuring wit- nesses to testify, it goes without saying that the bribery of opposing witnesses is not only in viola- tion of the code of ethics, but subjects the offender to 1 "An advocate should not descend to the insidious art of inducing a witness to answer with one meaning and assume his reply to bear another, and Mm- lead him to give evidence which, intended to he true, shall have the effect of falsehood. Such conduct is a specits of crim- inal trickery so nearly allied to subornation of perjury that it is diffi- cult, from a moral point of view, to distinguish between them. * * * No lawyer can long continue in the practice of confusing the honest, browbeating the timid, fnlgely construing the words of a witness, or placing in his mouth words that were never uttered, without acquiring the character of a trickster." Warvelie's Essays in Legal Ethics, p. 109. 222 AMERICAN ADVOCACY. the penalties of the criminal code as well. Whether, however, an advocate, in order to persuade a witness favorable to his side of the controversy to be in attendance at the trial, may contract to paj r such witness a certain sum of money, does not, to our mind, admit of any doubt. We can conceive of no reasonable objection to such conduct. It does not corrupt the witness, but merely secures to him a reasonable compensation for his trouble in place of the meager pittance allowed by law. Whether a witness may be offered a fee for his testimony, in addition to his compensation for loss of time, does not seem, at the present time, to admit of much doubt. The public as well as the profession have not shown any spirit to condemn the practice, at least so far as expert witnesses are concerned. g 176. The Advocate's Relation to the Court Should an Advocate Practice in a Court in which the Judge is His Near Kinsman. There is nothing in law to prevent an advocate from practicing in a court over which his father presides. Nor can such practice be construed strictly unethical, although rules of legal etiquette would seem to interpose an objection. The reason that neither law nor ethics make any protest to a sit- uation of this kind is because an attorney or coun- sel in a suit is, in theory, presumed to have no per- sonal interest in the event of that suit, and that his fee is not contingent upon the result; that he is re- garded as disinterested and unchallengeable, though he may be of near kin to the judge presiding at the trial. And thus there is no recognized positive law which is held to exclude an attorney or counsel from appearing on the trial of a cause in his father's court. The objection to his appearing in such relation, if any, can only rest upon that natural bias of feeling and sympathy which a judge is supposed to enter- LEGAL ETHICS. 223 tain towards his own son or brother, or other near kinsman, who may have charge of a cause in his court an interest which he is not supposed to have toward the opposite counsel who is not so related to him. 1 A judge placed in such circumstances may be strong enough to disobey the feelings and affections of his nature, and may conduct the trial of the cause with absolute blindness to the parties and their coun- sel, and with indifference as to the result of the case, but if the efforts of his kinsman in court should be successful, there would naturally be clamor and scan- dal raised by the losing party and his sympathizers against the integrity and impartiality of the court, which would affect public opinion and impair public confidence in the judiciary. 2 1 "To illustrate this principle" says John F. Hageman in 14 Cent. L. J. 268, "take the case of a young, struggling lawyer who is retained in a suit involving, if he succeeds, a million of dollars to his client, and to himself an enormous fee. besides a reputation which is equivalent to a fortune. Brilliant success in a celebrated case has often lifted a law- yer from obscurity to eminence in his profession. Now place this young man with such a suit in a court in which his near kinsman his father, for example, is the judge, and assume such judge to be a man of rare purity and honor in life a model man. Yet he is not a model man if be is destitute of natural affection, or sympathy stronger than a mere bias for the success and upbuilding of the reputation and fortune of his own son. Is it not easy to see that in the trial of the cause, and in the charge to the jury, especially in arraying and commenting upon the testimony, the judge would likely be warped, quite unconsciously, and, it may be, with great subtlety, giving his official influence to secure a verdict favorable to the side which his son had espoused? In questions of pure law there is not so much danger from the partiality of the judge because his rulings can be reviewed before a higher tribunal when his reputation will be Involved. But in questions of fact at nfi ;<, there is scope fora strong partiality without any corrective influence. " 1 John F. Hageman in the article from which we have quoted in the former note, gives some prominent illustrations of the recognition of tills rule. He says: "It is to avoid even a suspicion of partiality that flome judges of great delicacy of honor have been unwilling that their 224 AMERICAN ADVOCACY. It may be urged that judges are, and should be, above the suspicion of partiality or bias under all circumstances, without regard to personal friend- ship or natural affection so far as the members of the bar are concerned. Whether this is so or not, the law- yers do not assume it to be so, even in cases where the judge is of the most exalted character for honor and integrit}". And if it were known how severely the practice is condemned by the bar and the public,, and what scandal attaches to it in many cases, na sons, or other near kinsmen should practice in their courts. Judge Roosevelt, of New York, twenty-five years ago, was an example in point, and no member of the New York bar or bench was more re- spected for his fine sense of professional honor than he. Another illustrious example among the members of the New York bar was found in James T. Brady, who was recognized as the soul of honor. When his brother. JohnR. Brady, became judge of the Common Pleas in the City of New York, James, solely because of his relationship to the judge, abstained from that time from all practice in his brother's court, though he was offered large fees to make motions in that court. At the Philadelphia bar we had an illustrious example in the Uni- ted States District Court, over which Judge Cadwallader presided for many years. His son, John Cadwallader, was an honorable member of that bar, but he never practiced in his father's court, although his business there wuld have been very remunerative on account of bank- ruptcy proceedings therein. The judge suggested to his son the pro- priety of his confining his practice to other courts; and during the en- tire judicial life of the judge, both he and his son adhered with scru- pulous fidelity to this principle of professional delicacy and judicial ethics. And their conduct in this respect elicited the warmest com- mendation of the bar. There are doubtless many other similar instances in the various states, which are not very generally known. And there are also, per- haps, many more cases of the other class, in which no regard is paid to the relationship of the attorney to the judge; or rather, such rela- tionship is often the ground on which multiplied retainers are given to an attorney in the court of his father or near kinsman. These retain- ers are generally understood to be given, not because of his ability or experience, but simply because of his kindred relation to the court. His business increases; his briefs multiply; large corporations select him for counsel, though they already have older and superior men re- tained and depended upon." LEGAL ETHICS. 225 judge who respects his office and his honor would subject them to such aspersions. 177. The Advocate's Relation to the Court The Impersonality of the Advocate. One of the common- est faults of the young and inexperienced lawyer is to thrust himself too prominentl}' into his case, mak- ing his own honor and veracity an issue to the total exclusion and obscurity of his client. This is not only unwise, but highly unprofessional. A lawyer is an advocate one who speaks for another. He is not to protrude his own personality; and to the extent he does so, he either cheats his client or unfairly in- fluences the court or jury in his favor, depending upon the fact whether he is a man of little or great influence. In either case he acts unprofessionally. Many a lawyer has proceeded to the trial of a cause on the assumption that he was identified with the merits of the cause of his client. This, we scarcely need point out, is an entirely erroneous view of the functions of the advocate. He is the representative of the interests of his client, and not the guarantor of the righteousness of his cause; it is his duty to argue, and not to judge. He has no more right to say that his client is not guilty than to say he is guilty. A counsel in a criminal trial who expressed his personal belief in the innocence of the prisoner would be guilty of a rare departure from one of the best recognized traditions of the bar. Very seldom has this elementary rule of advocacy been broken without an emphatic protest being made. When, for instance, in the celebrated /v//////r Case, in England, Sergeant Shee Disserted his personal belief in the prisoner's innocence, Sir Alexander Cockburn re- buked him by saying that he "had better have ab- stained from making any observations which involved the assurance of his own conviction," and condemned 15 226 AMERICAN ADVOCACY. the expression of his individual opinion as "strange and unprecedented." The impersonality of counsel is the fundamental principle of advocacy. 1 1 The practical effect of a disregard of this rule of ethics was brought out conspicuously in a criminal trial before Mr, Justice Herrick, of the Supreme Court of New York, in which the learned justice in his charge to the jury severely arraigned both the counsel for the state and for the defendant for expressing to the jury their "personal belief" as to the guilt and innocence, respectively, of the accused. Justice Herrick said: "Perhaps it is well, gentlemen, before we come to consider this case, to brush away some of the things that have no business in it. Each counsel that you have observed here has proclaimed his belief ; the one that of the innocence of his client, and the other the guilt of the man he is prosecuting. You will not take that into consideration for a moment. It is a grossly unprofessional thing for a lawyer to state to a jury what his belief is. Counsel of experience, reputable counsel, never indulge in it. These gentlemen, when they get older and have more experience and nave paid more attention to the eflrtcs of the profession, I think, will not indulge in that sort of thing. They carry no weight; it is the unsupported statement of men. They are placing themselves for credit and standing in the community before you without the sanc- 'tion of an path that any witness presents in a case. You have no right to consider it for a moment, excepting as an indication that the counsel have not risen to the best standing of their profession." To many this public denunciation of the methods of counsel in this case will be con- sidered too severe, and so it may be. And yet it cannot be doubted that it will be a wholesome lesson to the attorneys themselves as well as to others who might in the future fall into this same error. The sentiments expressed by Hon. George F. Hoar in a recent arti- cle in referring to this practice are very pertinent. He says: "It is not the duty of an advocate nor his right to express or convey his indi- vidual opinion. On him the responsibility of the decision does not rest. He not only has no right to accompany the statement of his argument with any assertion as to his individual belief, but I think the most experienced observers will agree that such expressions, if habitual, tend to diminish and not to increase the just influence of the lawyer. There never was a weightier advocate before New England juries than Daniel Webster. Yet it is on record that he always carefully abstained from any positiveness of assertion. He introduced his weightiest argument with such phrases as 'It will be for the jury to consider.' 'The court will judge.' 'It may, perhaps, be worth thinking of, gentlemen,' or some equivalent phrase, by which he kept scrupulously off the ground which belonged to the tribunal he was addressing." LEGAL ETHICS. 227 Whether an advocate should permit himself to be a witness in his own case might be a question of some doubt under rare circumstances. As far as the law is concerned there seems to be no objection to it. 1 However, from the standpoint of professional eti- quette, the practice is to be sternly discountenanced. If it is necessary for an attorney to appear in a case as a witness he should observe the proprieties of the situation and withdraw as an advocate. 178. The Advocate's Relation to his Client The Supremacy of the Client's Interests. The association of lawyer and client is as confidential as that between clergyman and penitent, more intimate than that existing between doctor and patient. It requires of the attorney not a surmise concerning the rights of one soliciting his advice, but an honest, intelligent, unprejudiced opinion, the result of painstaking ex- amination into the facts and the law applicable to the particular case, even though the lawyer realizes he is counselling against his own pecuniary interest. He will resolutely abstain from hurrying the client into doubtful or hopeless litigation, but will sink beneath his consideration, himself, his ambition for fame, his love of wealth, his eagerness for conflict, and hold tenaciously before him only his client's welfare. 2 When once he has undertaken the battle for another, his moral duty commands that he bring into play every resource of mind and heart, leaving no legiti- 1 Morgan v. Roberts, 38 111. 65; Frear v. Drinker, 8 Pa. St. 521. 3 "An attorney at law ought not to accept a retainer in a case when he believes that the law Is against his client. It is not his duty, in order to subserve the Interest of his client, to misstate the law and the facts, and if be is satisfied that the client cannot recover, except by perversion of the law and the facts, the attorney ought not to take the case." Per Back, J. in Smith v. Railroad (Iowa), 16 X. W. Rep. 291. 228 AMERICAN ADVOCACY. mate argument untouched, no investigation untried and that he make himself master of the situation. 179. The Advocate's Relation to his Client Is Truth a Higher Obligation? The devotion to a client's in- terests never obscures the advocate's recognition of a higher obligation to the cause of truth. If he be employed by one who, with a perverted sense of right, asks his attorney to stoop as low as the client himself would descend, two alternatives are open to the lawyer of integrity; either to require honesty from his em- ployer or to withdraw from the case. Lord Brougham maintained that an advocate should consider no one except his client, for whom he must be reckless of consequences, resorting to all means and expedients, disregarding the alarms, the torments, the destruc- tion of others, and even bringing confusion upon his country if this were essential to success; 1 but a far 1 The extraordinary language used by Lord Brougham in a very celebrated case, which has misled many an inexperienced advocate, and is calculated to mislead a great many more, to the danger of their un- fortunate clients as well as the peril of their own prospects, is as fol- lows : "There are many whom it may be needful to remind that an advo- cate by the sacred duty of his connection with his client knows, in the discharge of that office, but one person in the world that client and none other. To serve that client by all expedient means, to protect that client at all hazards and costs to all others (even the party already injured), and, amongst others, to himself, is the highest and most un- questioned of his duties. And he must not regard the alarm, the suf- fering, the torment, the destruction, which he may bring upon any others. Nay, separating even the duties of a patriot from those of an advocate, he must go on, reckless of the consequences, if his fate should unhappily be to involve his country in confusion for his client." Although some of the terms of this sweeping proposition might be assented to, and especially in the circumstances which gave them utter- ance, there is surely much that an honorable man would shrink from, even though he gave full scope to the meaningof the word "expedient." In the impetuosity of advocacy such as Biougham was stirred up by the LEGAL ETHICS. 229 higher plane of professional conduct was reached by the late Charles T. Russell, of Massachusetts, of whom it was said that, when retained by a client who had no conscience, Russell gave him one. Thus will it be with every barrister who, in assuming the re- sponsibilities of his calling, remembers his duty as a man. So, also is truth not only a higher obligation but a more profitable course as well in answering the argu- ments or evidence of one's opponent. What is the use of an advocate endeavoring to prejudice the cause of his opponent by saying, "Gentlemen, I don't say that the defendant has obtained these goods by false pre- tenses, but I say his mode of dealing will not com- mend itself to your minds?" This is a trick an impoverished one, it is true; but so would every other trick seem if we were to write it down. Look at occasion to employ, it might have been excusable to use such language; but if it be examined its propositions can scarcely be assented to. An advocate can hardly claim a higher, privilege than his client could claim for himself were he defending his own cause. Would he be per- mitted to disregard the suffering, the torment, the destruction which he might bring upon others? And under what circumstances could the expediency of bringing down such overwhelming calamities arise? If it could never be expedient, all the rest of the sentence, with its cata- logue of evils, might have been left out. If It could be expedient, when? An advocate should be tender of the feelings of others, although engaged in the ''sacred duty of his connection with his client;" and above all things he ought to be the guardian, and not the destroyer, of private character; he should observe the golden rule of il doing unto others as he would be done by," nor should he lose or suspend the feel- ings of a Christian and a gentleman; he ahould regard "the alarm, the suffering, the torment, the destruction which he may bring upon others." "To serve his client" may be u his highest duty as an advocate," but it is yet hoped it will not cause him to forget his duties as a man, or pre- vent him from abandoning a cause which he can only win by dishon- orable means. Besides this, an advocate who casts destruction broad- cast may involve his client in the general ruin, and is sure in any event to injure him in the estimation of the jury. 230 AMERICAN ADVOCACY. the following: "I don't think much of such and such a transaction, or the fact that the defendant did or said so and so. I merely call your attention to it in passing." These are devices which do not approach to the pretensions of art, and are unworthy of a good speaker. They are not the truth hot the words of sincerity; and when an advocate has neither truth nor sincerity, although he may have acting, he cannot have the highest and best speaking. Truth and sin- cerity are among the charms and graces of eloquence, and they are the power that stirs and impresses an audience. It must not be understood that there are not two ways of presenting a sound proposition or an incontrovertible argument. Truth and sincerity themselves may, in an uncultured and inartistic speaker, be made to look absolutely offensive, and not only to look so, but to be so. Therefore it is necessary, if an advocate would impress his hearers, that art should come to the aid of reason; the same idea and the same truth may be conveyed in coarse as well as cultured language. One need not say in which it will be transmitted most effectively; but the tricks referred to are apart from both, and partake more of the style appropriate to the conjurer at a fair than to an advocate speaking at the bar. Noth- ing, therefore, contributes so powerfully to the success of a lawyer as a reputation for veracity and straightforwardness. Let the court and jury come to suspect that the advocate has a serious impedi- ment in his veracity; in other words, let them once lose confidence in him as a man, in his word and in his sincerity, and he might just as well sit upon the counsel table and fiddle for that court and jury as to talk to them. No matter how profound, no matter how sound, no matter how logical, no matter how powerful otherwise his argument may be, it will be LEGAL ETHICS. 231 vain; and his adversary, if he be a man in whom the court and jury have confidence, who has so deported himself in his practice that they believe him to be an honest, sincere and truthful man, has a vast it may be an overpowering advantage of him. 180. The Advocate's Relation to His Client De- fending One Whom the Advocate Believes to be Guilty, Whether the attorney may undertake the suit of one whom he believes to .be in the wrong, is a question not admitting of an unqualified answer. If he be called upon to defend a criminal who privately con- fesses to the commission of the offense, he may still accept the employment with a clear conscience, in- forming his client that he will oppose all unwarranted attacks and will see that no injustice is done the ac- cused. Even the hunted beast has some rights in the chase, and guilty men must be convicted by the law, not in defiance of it; otherwise gross wrong is committed to attain a right result. Nor can counsel always be a^anrftd that the confessed murderer is, in fact,guiltv. Mental derangement, a mistake of facts, the coercion of another, a desire to draw on himself the punishment justly due to a friend or a relative, may render the confession worthless. The counsel is not to establish himself as a court for the trial of every man's case, for the law presumes innocence and not guilt. Its indulgence to the culprit declares that even the judge shall be his advocate, but it does not permit his advocate to be his judge. 1 1 Laymen not infrequently charge the lawyer very unjustly for per- mitting his services to he retained in defending some noted criminal toward whom the public mind is wildly inflamed and whom he may believe to be guilty. It has been a difttcult task of the profession, in standing up for its privileges and duty in this rgard. to convince the public that no lawyer has the right to injure his fellowman's defense by judging his case without trial. No better argument has ever been ad- vanced than that offered by Lord Krskine in vindicating himself from 232 AMERICAN ADVOCACY. 181. The Advocate's Relation to His Client Be- coming a Party to a Fraud, or Maintaining Harassing or Oppressive Litigation. Very different is it where the maintenance of his side of the controversy in- volves a reliance upon forged documents, perjured testimony, the enforcement of a fraudulent claim, the concealment of property from lawful creditors, or the collection of a debt already paid in full to his client. Here, instead of acting as a faithful keeper of his client's conscience, the advocate is expected to be- come a party to a positive wrong, and no professional requirement constrains him thus to compromise him- self. Not squeamishly, but with rugged honesty, he must decide in every case whether the side soliciting his assistance is so palpably unjust that no reasona- ble man would hesitate to stigmatize it, or whether there may be a debatable question upon the merits of the cause. the public odium which attached to him by reason of his defense of Thomas Paine. The great barrister said : "In every place where business or pleasure collects the public to- gether day after day, my name and character have been the topic of injurious reflection. And for what? Only for not having shrunk from the discharge of duty which no personal advantage recommended, and which a thousand difficulties repelled. * * * * Little, indeed, did they know me, who thought that such calumnies would influence my conduct. I will forever, at all hazards, assert the dignity, independence and integrity of the English bar, without which impartial justice, the most valuable part of the English constitution, can have no existence. From the moment that any advocate can be permitted to say that he will or will not stand between the crown and the subject arraigned in the court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defense, he assumes the character of the judge nay, he assumes it before the hour of judgment; and in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion in the scale against the accused, in whose favor the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel. "J LEGAL ETHICS. 233 Nor is an attorney under obligations to minister to the malevolence or prejudices of a client in the trial or conduct of a cause. He is therefore expected in a civil cause to decline to conduct a prosecution when satisfied that the purpose is merely to harass or injure the opposite party, or to work oppression and wrong. Nor is he to abuse the process of the court in order to compel a settlement of a demand. 1 Nor should he take a case which presents an oppor- tunity to take advantage of the defenseless or op press those in financial disaster. 2 1 An interesting illustration of the frequent violation of this rule is given by Mr. Warvelle in his excellent work entitled "Essays in Legal Ethics," at p. 125: "The matter under discussion finds frequent examples in connec- tion with justice courts and other tribunals of limited jurisdiction. Thus, the law gives to justices of the peace a concurrent jurisdiction throughout the country. This fact is frequently taken advantage of by unscrupulous practitioners to harass and annoy persons against whom they may have demands, and process is issued and made return- able at distant parts of the county and at inconvenient hours. It often happens, in such cases, if the defendant answers the summons, that the plaintiff fails to appear, and the case is dismissed, only to be com- menced again in the same manner, and is so continued until finally a 'snap' judgment is entered by default. This is distinctly an abuse of process, a rank perversion of the machinery of the law, and a deg- radation of judicial functions, but while it violates the canons of ethics it infracts no legal rule, and the remedy, therefore, lies only in the forum of conscience." * "An attorney who will take advantage of a defenseless woman, say a woman in straitened circumstances, or oppress the fatherless, or 'grind the faces of the poor,' for the sake of lining his own purse, has no pre- tense for his practices, either in law or in equity. Such conduct is in- iquitous and disreputable. The law is dishonored by such officers." W. K. (ilanville, Ph. D., in 8 Green Bag, p. 209. An incident from the life of Abraham Lincoln serves as an appro- priate illustration of the rule of ethics now under consideration. A stranger called on Lincoln and desired to retain his services. "State your case," said Mr. Lincoln. The man did. Then Lincoln aid: 234 AMERICAN ADVOCACY. 182. The Advocate's Relation to His Client Use of Improper Methods or Influences. The services which an advocate has for sale are legal, not moral nor social. It is absolutely against professional eth- ics for an advocate to sell his moral or personal in- fluence in a community and label it legal services. If he desires to sell such influences let him leave the profession of the law and become a lobbyist or a go-between or a promotor of any and all kinds of schemes, but let him not disgrace by such methods a profession which exists only for the purpose of en- forcing the law and whose only methods of offense and defense are reason and justice. Of course, an attorney may, openly and in his true character, render purely professional services before committees regarding proposed legislation, and in advocacy of claims before departments of the government, upon the same principles of ethics which justify his appearance before the courts; but it is immoral and unethical for an attorney so en- gaged to conceal his attorneyship. or to employ secret, personal solicitations, or to use means other than those addressed to the reason and understand- ing, to influence action. l "I cannot serve you, for you are wrong and the other fellow right." "That is none of your business if I hire you," retorted the stranger. "]STone of my business! 1 " exclaimed Lincoln. "My business is never to defend wrong. I never take a case that is manifestly wrong." "Well, but you can make trouble for the other fellow," the stranger insisted. "Yes," replied Lincoln, "I can set a whole community at log- gerheads. I can make trouble for this widow and her fatherless chil- dren, and thereby get you $CO which as rightfully belongs to the wo- man as it does to you. But I won't do it." 1 In March, 1904, the United States District Court, sitting at St. Louis, imposed the severest penalty ever imposed for an offense of this character. The convicted man was United States Senator Burton, and LEGAL ETHICS. 235 183. The Advocate's Relation to His Profession- General Considerations. Nothing should be higher in the estimation of the advocate, next after those sacred relations of home and country, than his pro- fession. She should be to him the "fairest of ten thousand" among the institutions of the earth. He must stand for her in all places and resent any at- tack on her honor as he would if the same attack were to be made against his own fair name and reputation. He should enthrone her in the secret places of his heart, and to her he should offer the incense of con- stant devotion. For she is a jealous mistress. That this is not mere sentiment is evidenced by the successful careers of the world's greatest lawyers, who were invariably the most enthusiastic devotees of their profession's honor and esprit du corp. In- deed, the advocate who starts out in his professional life as a free lance with the idea that he will have nothing to do with his professional brethren except as necessity or business compels him; who takes up his profession as some merchants run their business, with the idea that all his brother lawyers are his competitors, and therefore his enemies, to be under- rated at every opportunity and to be antagonized at all times, is assured of an abject and dismal failure. Th'e contempt of his own profession will drive every de- cent client from his office. No client desires for his advocate one whom the courts and his own profes- sion regard disdainfully and to whom, therefore, they bis offense was a violation of Sec. 1781, Rev. Stat. U. S., which provides that "every member of congress who, directly or indirectly, takes or receives any money, property, or other valuable consideration from any person for procuring, or aiding to procure, any contract * * * from the government, or any department thereof, shall be punished, etc/ 1 This statute is merely a declaration of the unwritten code of legal ethics, which the people hare put into statute form for the purpose of more probable and certain punishment. 236 AMERICAN ADVOCACY. do not care to show any courtesies which the law does not strictly compel them to extend. Moreover, it is to the interest of lawyers to stand together. In so many particulars are their duties and obligations reciprocal. Indeed, one advocate who has the opportunity to extend a favor to another advocate to-day may be compelled to request the other advocate to reciprocate to-morrow. Besides, nothing is so profitable and encouraging as the mu- tual interchange of experiences and the friendly exchange of brotherly greetings by attorneys who may have for the moment been on opposite sides of a bitter controversy. Let the attorney, therefore, in all that he does, never forget to keep the honor of his profession unsullied, and to constantly strive to win the respect and confidence of his professional brethren. 184. The Advocate's Relation to His Profession Attitude Towards Opposing Counsel. Toward opposing counsel the advocate's attitude should be courteous but unflinching, generous but not reckless in grant- ing favors. He will avoid all personality so far as possible, never breaking into his opponent's address to the court or jury except when he is grossty mis- stating facts or misrepresenting him, and always dealing fairly with his opponent's arguments. He should never enter upon a trial supposing his adver- sary to be a fool, but rather overestimate his ability. This should serve to stimulate, not to embarrass, his faculties. Whatever may be the riot of unrest within his bosom . he must bear a front as calm and inscru- table as if the day were already his. If our advocate is asked by his adversary, or the lat- ter 's attorney, to state what he knows of a particular transaction, what will be his evidence, who are his witnesses, whether a certain document is in exist LEGAL ETHICS. 237 ence or what are its contents, or whether any of the jury are his clients, he must decline to answer at all or reply truly. The request may be unjustifiable, but this will not permit a false statement, upon which the other will probably rely. Nor will the barrister be too ready to grant every favor which his brother lawyer may suavely ask at his hands; his complaisance becomes treachery if he admits away substantial portions of his client's cause upon the as- surance that the favor is merely formal. But if he promises to concede a formal point, to furnish his opponent a list of his authorities before the trial, or to agree to a continuance of the suit, he falls to the level of a common deceiver if he fails to perform his agreement to the letter. CHAPTER XV. COMPENSATION AND ADVERTISING. 185. Compensation General Considerations. 186. Compensation Regulating the Amount of the Fee. 187. Compensation Contingent Fees. 188. Compensation When an Advocate May Contract for His Services on a Sal- ary Basis. 189. Advertising General Con- siderations. 190. Advertising Legal Direct- ories and Newspaper No- toriety. 191. Advertising Divorce Ad- vertising. 192. Advertising Politics as an Advertising Medium. 193. Advertising Social Ac- quaintance and Club Life. 194. Advertising Pretending to be Learned or Whelmed with Business. 195. Advertising Employment of Runners. 196. Advertising "Buying Up" Causes of Action. 197. Advertising Stealing An- other Attorney's Practice. 198. Advertising Office Furni- ture and Modern Business Methods. 199. Advertising The Final Test of Advertising Methods. 185. Compensation General Considerations. Ad- vocates just starting into practice and compelled to grasp at every straw for a livelihood, are impatient at any suggestion that there is a limitation on their right to contract for their services. This impatience disappears when he is reminded that in practice they are not irksome and serve not only to dignify the profession but to win the confidence of the people. In the first place, as to the "honorarium." The honorarium is the name given to fees paid to advocates in the early English practice and which still obtains, COMPENSATION AND ADVERTISING. 239 in name at least, in England to-day. The honorarium is a gratuitous fee. In the very early common law when the only advocates were clericals, the service rendered by the local priest or monk was considered a pious duty on his part and was rewarded by a gift which the giver paid, not as compensation to the advocate but as an honorable thing to do on his part. This practice has continued down to the present day in England, but never obtained a foothold in this country, probably because of our practice in uniting the office of barrister and solicitor in the same indi- vidual. In this country, therefore, the profession recognizes the principle that "the laborer is worthy of his hire," and that if it is desirable to have a trajned-jggal profession^ the devotees must be com- pensated for the years of study and training neces- sary to perfect themselves for its practice. 1 There is one exception to the modern rule that an advocate is entitled to compensation for his services, i. e., when he is assigned by the court to conduct the defense of an indigent prisoner. The advocate has in such a case the right ,to recover neither from the prisoner, who did not contract to employ him, nor from the county, who expect him to render such services as an officer of the court in return for the privileges which the state gives him to practice his profession. 2 1 "The flimsy pretext of an honorarium has a nominal existence only in England. In this country it is unknown. The attorney, in every case, may demand and enforce such remuneration as shall compensate, him for the time and labor actually expended, and in fixing the amount of such remuneration the preliminary preparation for the as- MI nipt ion of professional duties is a proper factor. Without this the profession of advocacy could not be maintained in this country." Warvelle's Essays in Legal Ethics, p. 75. 8 Johnion v. Wbiteside County, 110 111. 22. 240 AMERICAN ADVOCACY. 186. Compensation Regulating the Amount of the Fee. A lawyer's fee is the most uncertain, thing in the world. It bears some resemblance to a woman's fickleness and, like it, has been the butt of much ridicule and sarcasm. No lawyer ever attempts to apply any hard and fast rules in such matters. It all depends, as the courts would say. on the circum- stances of the particular case. It might also be said to depend on the ' ' circumstances ' ' of the clienfr; whether he is in good or poor circumstances has very often considerable to do with estimating the value of the attorney's services. The young advocate makes a serious mistake by starting out in a spirit of bravado, and charging fees which, while reasonable in an old practitioner, are ridiculous in the case of one without experience. Business is generally thrown to the young practi- tioner by friends, or as "feelers" by business men, or as "too insignificant" by busier lawyers, or the prospective client is very poor. In every one of these cases there is absolutely no reason or justifica- tion for a lawyer to charge what he may term "an honorable and respectable fee." Indeed, most of this business will hardly pay even a retainer, and the young lawyer will probably be asked to take it on a contingent fee. If he is wise he will encourage professional compensation on such a basis, as agree- ments for contingent compensation are to-day per- fectly legitimate and ethical and will net him larger returns than if he exacts a certain cash retainer in advance. Clients, also, will feel more willing- to en- gage his services on this basis, and thus he increases his business as well as his opportunities for getting before the public and for proving his ability as a trial lawyer,. The only safe and wise rule, therefore, is to begin COMPENSATION AND ADVERTISING. 241 by low fees to encourage business and gauge the charges of various clients, not on a basis of the exact time or service rendered, but in proportion to the abilit3 T of the client to pay and the benefit derived from his services. Of course, he should not cheapen his practice too much. Unless on a contingent fee, he probabh 7 should not charge less than five dollars Cn*t*4 for any legal service. This, of course, does not in- clude fees for notarial services. If a client is stub- born, and inclined to contest and quarrel over what is really only a reasonable fee, the young lawyer will probably do well to firmly dismiss the inquirer from his presence without argument, as he will probably be an unprofitable client. Indeed, it might raise him a little in the eyes of the inquirer to say: ''Oh yes, certainly, you can hire such lawyers, but I am too busy at present to take very low-priced prac- . ticej' Still, with this one exception, the young law- yer must remember the proposition with which we opened this paragraph he must be fair and tactful with his clients in the matter of compensation, never driving them away by overcharging. Later on, when his reputation is made and his ability proven, the m atter of fees will trouble neither him nor his clients, as among the better class of clients there is rarely ever any argument over the amount of a fee. Very often associations of commercial lawyers, and sometimes even local bar associations, attempt to regulate the charges for various services to be rendered. An advocate who directly or indirectly agrees to such regulations is bound by them, and would very seriously offend the ethics of the profes- sion were he to disregard such regulations. 1 1 "Sometimes bar associations prescribe rules with respect to the com- pensation to be charged by their member* for certain kinds of service 16 242 AMERICAN ADVOCACY. 187. Compensation Contingent Fees. At a time when the honor of the profession of law was more prominent than its business aspect, the practice of taking contingent fees was frowned upon and placed the offender in a lower and more dishonorable strata of practitioners. Gradually, however, the justice and necessity of such contracts in certain instances have been generally recognized, although courts and laymen seem to still view them with suspicion. 1 The contingent fee is purely a wild growth; it knows neither rules nor limitations. There is neither definiteness nor certainty about it. "If you lose, I get nothing; if you win, you get nothing ," was the well-known definition of a certain lawyer who was asked by a client to explain to him the meaning of the word. While there is some exaggeration about this definition, it sufficiently expresses the idea that the attorney's compensation in this class of cases is not and the conditions under which such service shill be rendered. * * * As between the members of the association the rules would be binding, as they would also be with respect to others who assent to them. but. in the absence of such assent, the right to recover for services must be determined and the amount of such recovery ascertained by the gen- eral law and not by the rules of the bar." Warvelle's Essays in Legal Ethics, p. 87, citing Boylan v. Holt, 45 Miss. 277. 1 "It is contended that if a person could not secure counsel by a promise of large fees in case of success, to be derived from the subject- matter of the suit, it would often place the poor in such a condition as to amount to a practical denial of justice. It not infrequently happens that persons are injured through the negligence or wilful misconduct of others, but who yet, by reason of poverty, are unable to employ counsel to assert their rights. In such event their only means of re- dress lies in gratuitous service, which is rarely given, or in their abil- ity to find some one who will conduct the case for a contingent fee. That relations of this kind are often abused by speculative attorneys, or that suits of this character are turned into a sort of commercial traffic by the ''personal injury'' lawyer, does not destroy the beneficent idea last discussed. So it will be seen that much can be said in favor of con- tingent fees, viewed solely from an ethical standpoint." Warvelle's Essays in Legal Ethics, p. 92. COMPENSATION AND ADVERTISING. 243 based on any consideration of the real value of the services of the attorney to his client, but is rather a joint speculation where one puts in his claim and the other his services with an agreement to share in the result at a certain ratio. We have no intention at this time to enter into the question of the validity of agreements for contingent compensation nor to discuss the circumstances under which they may be said to become champertous. It is sufficient to say that the rule sustained by the great weight of American authority is to the effect that a contract between the attorney and his client for a contingent fee is not necessarily invalid. All the law will do in such case is to scrutinize the trans- action, and see that it is fair, and that no unfair advantage has been taken either of the necessities or the ignorance of the client. 1 But when will the law say that a contingent fee stipulated for i-s unconscionable? The general rule is that a contract by an attorney for the prosecution of a claim for a contingent fee is not void, unless it ap- pears that the agreement was clearly extortionate, or that the attorney has taken an undue advantage of his client. 2 In the recent case of Herman v. Metropolitan Street Railway Company, however, the court at- tempts to make the rule more definite by setting a limit to the percentage which may be agreed upon. In the case referred to, which was decided by the United States Circuit Court (Second Circuit) but not yet reported, Judge Lacombe holds that an agree- 1 Chester County v. Barber, 97 Pa. St. 455; Taylor v. Bemia, 110 U 8. 42, 3 Sup. Ct. Rep. 44; Perry v. Dicken, 105 Pa. St. 83, 51 Am. Reu 181. 2 Taylor v. BcmiB, 110 U. S. 42, 3 Sup. Ct. Rep. 441. 244 AMERICAN ADVOCACY. merit to accept a contingent fee of fifty per cent is unconscionable in an ordinary accident case. The authorities on this question are' not very nu- merous. In the case of Rust v. Larne, 1 an attorney agreed to conduct a suit for the recovery of money and certain slaves, and in case of success to receive one-third of the amount recovered, or the value of the slaves. The court held that, the recovery having been at the time doubtful and only obtained after protracted litigation, the amount so agreed on was not so large as to be unconscionable. Another case hold- ing one-third not" to be an unconscionable percentage is In re Hynes, 2 where a guardian of certain infants employed counsel to recover real property of the lat- ter of the value of $141,660, for a contingent fee of one-third. It appearing that the questions involved in the litigation were of great importance and diffi- culty, the court held the agreement a reasonable one. In only one case that has come to our attention, other than the recent one to which we have directed attention, has a contingent fee of fifty per cent been declared unconscionable. 3 The weight of authority, however, is to the effect that no hard and fast rule can be drawn in such cases, and that in many cases a contin- gent fee of fifty per cent would be perfectly reason- able. 4 1 14 Ky. (4 Litt.) 411, 14 Am. Dec. 172. 2 105 X. Y. 560, 12 N". E. Rep. 60. 3 This was the case of In re Sloan (Pa. 1892), 14 Pa. Co. Ct. 359. In this case the court held that an agreement to pay an attorney a contin- gent fee of fifty percent of a claim for collection will not be enforced where it appeared that the claim was not difficult of proof and might have been enforced after judgment, but that the attorney contented himself with obtaining judgment, which was collected twenty years later by counsel associated with him at the creditor's request. 4 Cain v. Warford, 33 Md. 23 ; Reece v. Kyle, 49 Ohio St. 475, 31 1ST. E. Rep. 747, 16 L. R. A. 721. COMPENSATION AND ADVERTISING. 245 188. Compensation When an Advocate May Con- tract for his Services on a Salary Basis. While at the present time there is no ethical objection to an advo- cate giving up his entire services for a stated salary, nevertheless it is a sharp departure from ancient ideals. The advocate originally could accept nothing but an "honorarium," and he must serve all parties alike, and in criminal cases was subject to assign- ment by the court to defend any indigent person charged with crime who might need the services of an advocate. Under such considerations it is difficult to conceive how an advocate could sell his entire time and services for a salary. And even at the present time many objections to such a compact are apparent. In the first place, there is the fundamental idea that advocacy is not an independent calling; indeed, the advocate, as an officer of the court, is subject to the latter's supervision and direction in many par- ticulars, and where he sells his entire time and serv- ice to a third person he in some measure restricts his ability to comply with his obligations as such officer of the court. In addition to that, a lawyer lowers the standard of professional dignity and brings it to the level of a mere clerkship. We are not now speaking, of course, of those contracts in the shape of a retainer by corpora- tions by which they may at any time command the services of the attorney during the life of the con- tract. By such a contract an attorney does not sell himself, nor all his time, to the corporation, but merely gives it a preference over other clients. In other words, they have the first call on their serv- ices, and the yearly retainer may or may not be in full compensation for his services. Another feature of this question, however, is the contract by an attorney for his time and services at 246 AMERICAN ADVOCACY. a stated salary to a corporation or syndicate who de- sire to use his services at a profit to themselves. A contract of this character is clearly urffthieal and il- legal. No unlicensed person can practice law, and any contract by which such person or corporation is enabled to make profit out of law suits by hiring an advocate at a stated salary to carry on matters of litigation, is not only contrary to the ethics of the profession, but is clearly illegal and void. 1 189. Advertising General Considerations. Hardly a single important meeting of a bar association can take place anywhere without some reference being made in the proceedings to the ethics of advertising and as to the extent to which a lawyer may go in soliciting business. The sentiment seems strong in the younger generation of commercial^ lawyers to pull away from the old _ideals of the profession and to look upon the law more in the nature of a business. Some of the most radical of this class of lawyers have gone to the extent of calling the law a busi- ness, and claiming the right to resort to any and all methods made use of in ordiua~ry~trade and com- merce. Such statements have had the unfortunate effect of leading some of the weaker members of the profession into practices which, though they might be tolerated in business, cannot be tolerated in an officer of the court. And herein lies the secret of 1 Jarvis v. Great Western K. W. Co., 8 C- P., cited in 16 Canada .Law Journal, 276. In this case the corporation hired an attorney on a salary basis, but in various ways were able to use hie services in the courts at a profit to themselves. The court said: "If what was sug- gested when the summons was originally moved, namely, that the de- fendants sought unlawfully to realize a profit out of the professional services of their attorney were true, I suppose the taxation of costs would be prevented; for it would, in principle, amount to allowing suits to be carried on in the name of an attorney for the profit of an uncertified person.'* COMPENSATION AND ADVERTISING. 247 the distinction between law and business. The law is not a business nor an independent profession, as that of medicine or dentistry; it is an adjunct to courts of justice. The lawyer is an officer and, as an officer, he owes his superior, the court, every consideration of respect. He can therefore indulge in no practice that would bring the court or the law into disrepute. If he does, he not only incurs the enmity of his own profession but also the severe displeasure of the court, who in exceptional cases will dismiss him as its officer and disbar him from the practice of his profes- sion. In the year 1903, Hon. Mitchell D. Follansbee, in an address before the Northwestern University School of Law, gave utterance to what we. consider the soundest bit of advice as to the extent to which a lawyer may advertise we have ever had drawn to our attention. After a few generalities as to the ethics of advertising, Mr. Follansbee warns the lawyer to re- member, always, that he is a member of the profes- sion, and that because he is a member of the profes- sion, certain things, which would be honorable enough for a tradesman to do in the way of advertising, must not be done by him. In the following pages we have used much of Mr. Follansbee's address, and desire thus publicly to give him credit for it. The author, however, has endeavored to follow out the ideas of Mr Follansbee more minutelv and endeavored to enter a little more in particular in regard to a subject which is of such great interest to lawyers, especially to those about to start in practice. 190. Advertising Legal Directories and Newspaper Notoriety. The legal__^irectory is the commonest form of legal_adver_tising. The desire of members of the bar to increase their 'business has become so well known, that all over the country men in 248 AMERICAN ADVOCACY. their vigils are planning new sclierneg and making new excuses for taking from the lawyer the price of a line or a card for an advertisement. There are over 400 of these le^al directories published, and while few are of any value to the practitioner, they often succeed in making the publisher happy. This advertising in the legal direstories is' all a matter of the last forty or fifty years, and now one may safely say that there are few firms in the country whose names do not appear in one list or another. In the "English Law List," which is the official organ of the bar of that country, are to be seen the cards of Alexander & Green, Evarts, Choate & Beaman, Parsons, Shepard & Ogden, of New York, and sev- eral other well-known firms of the present day. In the "Scottish Law List" names of the same class appear. The same is true of the "Irish Law List." The Canadian firms advertise extensively. In Kine's Internatinal Law Directory, a London pub- lication, are found cards of lawyers from Cape Town, Kimberley and Pietersmartisburg to Moscow. B. D. Milonopulu of Corfus, in Greece, advertises that he corresponds in English; Simeon Petases, Avocat, of Jerusalem, that his letters will be in Arabic; while Philip Morton, barrister at law of the Middle Temple, banished at Lahore, in the Punjamb District of India, calls attention to the fact of his proficiency in Persian and Urdu. The practice of the insertion of a card is so common, so world-wide, that it no longer attracts any adverse criticism. This sort of advertising has one advantage. It keeps a man's name before his friends in the profession, and when they have an item of business to send to his town, and take up the legal directory, or the banker's encyclopedia, or whatever list they use, they are apt to be reminded COMPENSATION AND ADVERTISING. 249 of some one they have known by seeing his name , and so send him business. As a practical matter, it is doubtful whether news- paper notoriet} 7 is potent in building up a good clientage. If it were, there are a lot of men who would have reached affluence long ago; for many men in their time have seen their names in the head lines and their opinion referred to in editorial utterances, but their popularity and prestige seem to have been as ephemeral as the issue of the paper which exploited them, and their reputations have been made and lost before a single new client heard anything about them. That sort of publicity only impresses the man who does not know how those things are done, and that kind of a man seldom has any law business worth doing, and the man who really has law busi- ness that is worth doing, as a rule, does not care to pay to keep his attorney in the calcium light of pub- licity. He recognizes that living in the public eye is not necessarily the most potent in real work. 191. Advertising Divorce Advertising. Divorce advertising seems to be the most prevalent occasion for stumblingon the part of lawyers in soliciting business. Some states prohibit the solicitation of such business altogether, under penalty of fine. Wheresuch statutes do not prevail it is probable that a simple card in a newspaper soliciting divorce business would not be any more* reprehensible in the eye of the court than a solicitation of any other "branch of legal practice, al- though in some respects it is more dajnaging^to pub- lic morals, and is certainly a breach of professional ethics. ! But in such advertisements misleading state - .- 1 Mr. Follansbee relates an interesting incident. He says: "Whil In Cleveland, alongside of a picture of a woman with her right arm raised toward heaven, altnost touching the word 'free' in large letters, we Hnd the following moiest announcement : 'Divorces. Donotapply 250 AMERICAN ADVOCACY. ments are made and false inducements hung out that bring both the courts and the law into bad repute, and affect injuriously the public welfare. Thus where an attorney publishes advertisements without any signature, representing that he can procure di- vorces for causes not known to the law, and without any publicity and without reference to the residence of the parties, and, by such advertisements, solicits business of that character by communication through a particular postoffice box, by its number, such con- duct is a libel on the courts and a disgrace to the at- torney, and is calculated to bring reproach upon the profession, and the name of the offending party should be stricken from the roll. l So, also, an advertisement reading: "Divorces le- gally obtained very quietly ; good everywhere. Box 2344, Denver," is against good morals, is a false rep- resentation, and a libel on courts of justice, and re- peated publications in a newspaper of such adver- tisement by an attorney constitutes malconduct in his office, for which the supreme court is empowered by statute to strike his name from the roll of attorneys. 2 In the leading case of People v. McCabe. cited in the note, the court takes a very pronounced position: "The ethics of the profession," says the court, "for- for a divorce until you have called on us, as we can save you the time, trouble and money. Consult us when in any trouble and it will cost you nothing, and our experience may be of inestimable value to you. The very best experienced legal talent. Divorce and accident or injury cases a specialty.' Of course, nowhere are advertisements such as I have quoted regarded as dignified or professional, and they are utterly useless. It is foolish to lose professional standing if there is no pre- mium in it. It is too much like being a journeyman pirate with no share in the swag." 1 People v. Goodrich, 79 111. 148. 2 People v. McCabe, 18 Colo. 186, 32 Pac. Rep. 28, 36 Am. St. Rep. 270. COMPENSATION AND ADVERTISING. 251 bid that an attorney should advertise his talents or his skill as a shopkeeper advertises his wares. An attorney may properly accept a retainer for the prosecution or defense of an action for divorce when convinced that his client has a good cause. But for any one to invite or encourage such litigation is most reprehensible. The marriage relation is too sacred ; it affects too deeply the happiness of the family; it con- cerns too intimately the welfare of society; it lies too near the foundation of all good government to be broken up or disturbed for slight or transient causes. When a lawyer advertises that divorces can be legally obtained very quietly, and that such divorce will be good everywhere, such advertisement is a strong inducement a powerful temptation to man} r persons to apply for divorces who would otherwise be deterred from taking such a step from a wholesome fear of public opinion. Such an advertise- ment is against good morals public and private; it is a false representation and a libel upon courts of jus- tice. Divorces cannot be legally obtained very quietly which shall be good everywhere. To say that di- vorces can be obtained very quietly is equivalent to saying that they can be obtained without publicity a libel on the integrity of the judiciary." 192. Advertising Politics as an Advertising Me- dium. There are two ways of going into politics: one as the active worker in a limited section of territory, such as a precinct, and there one may grow ac- quainted with a certain number of plain people, and if he is patient and a good fellow, and they like him, sooner or later those plain people, or their f rieuds, will need, and must have, the advice and service of an_attorney_.___The other method is to start in as an orator or spellbinder. The latter method sometimes leads the young lawyer to retainers in sensational 252 AMERICAN ADVOCACY. suits, but there are so many spellbinders in the city or county, and so few sensational suits, that oratory is hardly an employment one can count on. When it comes to officeholding the lawyer is usually disap- pointed, and if he does hold office, though his name is before the people, he does not advance especially in his profession. The offices are few and the aspirants many, and rewards, at best, are scant compared with the industry which is needed. The failure of the 3 T oung lawyer who goes into politics to obtain the proper sort of advertising, is because of the fact that he finds himself advei'tised, not as a law3 T er, but as a politician, or that he becomes known as one who suc- ceeds so little in law that he has time to devote to the duties of every right-minded citizen. 193. Advertising Social Acquaintance and Club Life. Some men hope to become advertised through social connections ; but only in the stories written by high-school girls is the 3 T oung lawyer retained as he emerges from a conservatory or enters the box at the opera. The average business man would rather lend his legal friend one hundred dollars, without any clear hope of getting it back, than trust him with a ten-dollar lawsuit. Tie will do the first thing as a matter of friendship, but when he does the second it is a matter of business, and the business man's whole training has taught him that the men who do the best work are not the men who have much time for |3leas- u res, of the rich. Of course, there are exceptions. Sometimes, when a lawyer once gets a start and has an acquaintance, it is worth while to take a long trip in company with a wealthy client, with a we who may_ become a client; but this is a long shot, and always About one lawyer a day plans to increase his ac- quaintance by joining a club or lodge, and therefore OMPENSATION AND ADVERTISING. 253 whether he join for golf or billiards, or for fraternal insurance, he is sure to find the territory _ovej,'r crowded and overworked, while the whole social fabric is honeycombed with members of the pro- fession; and there, again, the men whose business is worth while, resent the insurance agent, and the dentist brings up unpleasant memories, but of a lawyer, most of all, they are cautious. If they get to know him well as a man, they respect him too highly to confess their financial embarrassments or marital infelicities, or moral delinquencies; and yet, the} T will bring those same troubles to a lawyer whom they do not know, without reserve. 194. Advertising Pretending to be Learned or Whelmed with Business. It was the old idea that a man ought to look like a lawyer. Fifty years ago young men copied the forehead of Mr. Webster. Later, especially in this western country, men failed to comb their hair because Matt Carpenter, of Wis- consin, did not. Boy orators come to the cities every year and think that eccentricities will be mistaken for originality of mind, and that a foghorn voice will be accepted as an indication of great force of thought. It is to be noticed that as they learn the practice of the upper courts they get over the eccentricities of dress and put a soft pedal on their utterances. Like them is the man who always carries the green bag on the streets, whether he has anything in it or not, because he has heard that Boston lawyers do that, and the man who always carries a law book on street cars or s uburban trains, because he thinks it will give him a reputation as a student. There are other men who succeed quite well because through some aphasia they never talk on any but legal subjects, and that,, irrespective of what any particular occa- sion may demand. They succeed pretty fairly well, 254 AMERICAN ADVOCACY. as a rule, because they impress every one with the fact that they are lawyers and up even with the times, and that mere fact helps them. Take a young man with no striking ability and let him constantly attend all manner of bar association and legal club meetings. Sooner or later there will get to be a suspicion among those who see him in such places that heTmust be a lawyer, and if they see him there long enough, they get an idea that he must be a pretty good lawyer, in the same way that we figure that any old settler must have something distinctive about him. 195. Advertising Employment of Runners. Un- der statutes in force in some states, it will be an oc- casion for disbarring an attorney if he "lends his name to be used as attorne} 7 and counselor by another person who is not an attorney and counselor. " Such a statute, for instance, is in force in California. It has been held in that state that a contract by an attorney to pay a layman a third of his fee, if the lay- man procures the employment of the attorney by a litigant, is contrary to the public policy of that state, as expressed by the statute we have quoted, as the effect of such a contract is to permit, by indirection, the use of an attorney's name by another not an attorney. l Since the practice denounced in this case is so often practiced, especially by attorneys making a special tj- of negligence cases, it would not be a useless waste of space to call attention to some strong and unusual statements in the court's opinion in this case. Speak- ing of the attorneys' contract with one Bolte, a lay- man, by which the latter was to receive one- third of the fee of the former in any case procured through his efforts, the court said: "Was not Bolte really 1 Alpers v. Hunt, 86 Cal. 78, 24 Pac . Rep . 846, 21 Am . St Rep . 17, 19 L . R . A . 483 . COMPENSATION AND ADVERTISING. 255 allowed to use their names in the prosecution of a matter in litigation? Under the employment of them as attorneys, made through Bolte's procurement, they engaged to use their faculties as attorneys and counselors at law for his benefit, and that, too, in a cause in which he had no interest as a party. By the terms of the agreement he was to derive a benefit from the rendition of their services in their profes- sional capacity, and to receive a share of their fee, as if he had been concerned with them as a regularly admitted attorney. He was thus enabled through their agency, vicariously, and not openly in his own name, to aid in the prosecution of a matter in litigation, and to receive through it such a reward as is usually gained by an attorney regularly admit- ted to exercise his profession. * If such a practice were allowed, an attorney might have a number of undisclosed associates through his agency exercising the functions of an attorney and counselor, and reaping the rewards flowing therefrom, without resting under any of the responsibilities incident to such position, and possessing none of the qualifica- tions which the law demands and requires.'' 1 1 A certain class of lawyers who look upon their profession more as a business than a profession can see nothing wrong in a contract with a layman by which the latter engages to furnish him with causes of ac- tion and evidence to support them in consideration of a certain percent- age of the attorney's fee. A recent case hoi Is that such a contract is absolutely void and unenforceable. Langdon v. Conlin, 93 N. W. Rep. 388. In this case the Supreme Court of Nebraska held that a contract between an attorney at law and one who is not such an attorney, by which the latter agrees to procure the employment of the former by third persons for the prosecution of suits in courts of record, and also to assist in looking after and procuring witnesses whose testimony is to be used in the cases, in consideration of a share of the fees which the attorney shall receive for his services, is against public policy and void. In rendering its decision the court voiced the following sentiments: "It is apparent that it is the policy of the legislature to fix a high standard of professional ethics to govern the conduct of attorneys in their rela- 256 AMERICAN ADVOCACY. ^ 196. Advertising "Buying Up" Causes of Action. In New York a lawyer can .be disbarred for "buying up" legal business. Thus, a statute in that state provides that "no attorney shall buy any bond, bill, promissory note, book debt, or other thing in action, with the intent and for the purpose of bringing suit thereon." The courts have held that a violation of this statute is a ground for disbarment. 1 In other states, having no such statute, the "buy- ing up" of business of this nature will not be ground for disbarring the attorney and is only questionable as to the extent such action might violate the rule of law in that particular state against champert} T and maintenance. Thus, in Michigan it is a violation of no law for an attorney to purchase a chattel from one party and bring replevin against another to recover possession of it. 2 In a very recent case, however, it has been held that champerty renders an attorney amenable to summary proceedings for disbarment, notwithstand- tions with clients and courts, and to protect litigants and courts of jus- tice from the imposition of shysters, charlatans, and mountebanks. It seems to us that the contract in issue is but a thinly veiled subterfuge by which the plaintiff, who, it is conceded, was not a member of the bar, anil who had never complied with any of the provisions of chapter seven, for the purpose of authorizing him to engage in the practice of law, undertook to break into the conduct of proceedings in a court of risjo^d, to which he was not a party, by attempting to form a limited and silent partnership with one who had complied with the provisions of the law and was entitled to the emoluments of the profession." The decision in this case is supported by the authorities: Alpers v. Hunt, 86 Cal. 78, 24 Pac. Rep. 846, 9 L. R. A. 483, 21 Am. St. Rep. 17: Burt v. Place, 6 Cow. (X. Y.) 431; Munday v. Whisenhunt, 90 N. C. 458; Lyon v. Hussey, 82 Hun. 15. 1 People v. Waldbridge, 6 Cow., (N- Y.) 517. 2 Town v. Tabor, 34 Mich. 262. COMPENSATION AND ADVERTISING. 257 ing it may be effectual as a defense to the enforce- ment of a contract. 1 197. Advertising Stealing Another Attorney's Practice. It is also a good ground for the disbarment of an attorney that he endeavor to win business by stealing the patronage of a brother attorney. Noth- ing, perhaps, could be more reprehensible, at least to the eyes of the profession, than such conduct. One attorney has no right to intermeddle with the clients of another attorney and endeavor to secure his own em- ployment at the expense of the other. He may be dis- bar red for such practice. In the case of Baker v. State, 2 it was considered a proper cause for striking an at- torney from the rolls that he intermeddled between a brother attorney and his client, grossly slandered the former and endeavored to induce the client to forsake the advice of her own counsel and follow his instead, offering to furnish ad vice without charge. 198. Advertising Office Furniture and Modern Business Methods. There are lawyers who do not go out of their offices to advertise, and who smile at those who do. It is a trade maxim in a department store that the most important thing in selling goods is to get customers into the store, and it is figured that every customer who comes into the store will spend just about so much money, and likewise, these men argue that when a man comes into your office, it is only a question of time when he pays some of his money for your advice or efforts, and they clajpa that the money that is spent for this office advertis- ing meets the best returns. In the papers and plead- ings and letters that they send out they affect scru- pulous care, and their recipient concludes that the 1 In re Evans, 22 Utah, 366* 62 Pac. Rep. 913. 2 Baker v. State, 90 Ga. 153. 17 258 AMERICAN ADVOCACY. writer is careful and painstaking, and methodical. The office and the work table are orderly, and this fact argues an orderly mind. The office stationery is rich but not gaudy, which is a sign of prosperity long continued, and generally one feels that the ap- pearance of industry accompanies the fact. 199. Advertising The Final Test of Advertising Methods. The whole test of whether advertising is effective is whether the work of the advertiser is clumsy or artistic, is coarse or smooth. The man who does coarse work may win for a week or a year, but he will never know the heights of prof essional success; while the smooth man, who regards these questions delicately and works quietly and without friction, who dispenses with the steam calliope as an unneces- sary adjunct, finds that each year his profession is more of a joy and his acts in the profession better appreciated. There is, something of a contrast between the peo- ple who are going to make things happen and who bring to the profession the tricks of the market place, and those who prefer to do business in a dignified way, a way that the great leaders of the bar have known, and which the so-called business lawyer can never understand and can never appreciate. And this significant fact remains, and the only fact of which we may be perfectly sure, that the man who does coarse work, and who is guilty of noisy ad- vertising, whether in the country newspapers or in the cafe of the Waldorf-Astoria, will not win enduring success. From time to time some trial reported in the news- paper attracts the attention of everyone, and the young practitioner is asked by the barber who serves him whether a certain man is not the best lawyer in town. The barbers and men in their station of life COMPENSATION AND ADVERTISING. 259 make up their minds easily and usually on insufficient information. They reflect the average opinion of that part of the public to which litigation and ownership are unknown delights, a public never profitable. The clients who really help are the men who are strong and steady. These men will not be deceived by ad- vertising. They will be attracted to polite gentle- men of graceful address, engaging personality and habits of hard work, and little by little they will show their appreciation in practical ways. If the man whom they know is workmanlike, they will hear of that fact sooner or later ; if he wins a difficult case, the news will get to them, even if the young man is guilty of spreading it; if he draws contracts and wills cleverly and smoothly and accurately, knowl- edge of that fact will also get about, until in time the lawyer will find that his clients are so many enthusiasts. They are so sure of his ability and his superiority that they are forever sounding his praises; so proud of his services, and the results those ser- vices have obtained, that each makes an especial effort to send new clients to the office, until the law- yer is beyond the need of any advertising with which he is concerned. 1 1 "Such a lawyer," says Mr. Follansbee, "finds himself sitting quietly and modestly while his name is mentioned at bank boards and around the firesides as one who, by inheritance and training, is honest, thoughtful and quiet, and by industry has become strong; and th monument of such a man will not be a few envelopes of press clippings, or packages of ballots never voted, or programs of Chautauqua assem- blies, but it will be found in the reported decisions of cases in which he was victorious; in accurately drawing conveyances which have stood the test of years; and in the esteem in which be is held by families of quiet, God-fearing people, who have learned from him to place the help and friendship of the lawyer only slightly below that of the priest. " APPENDIX, CODE OF ETHICS ADOPTED BY THE ALABAMA STATE BAR ASSOCIATION.* The purity and efficiency of judicial administration which, under our system, is largely government itself, depend as much upon the character, conduct and demeanor of attorneys in this great trust as upon the fidelity and learning of courts or the honesty and intelligence of juries. A comprehensive summary of the duties specifically en- joined by law upon attorneys, which they are sworn not to violate, is found in Section 791 of the Code of Alabama. These duties are : First. To support the constitution and laws of this state and the United States. Second. To maintain the respect due to courts of justice and judi- cial officers. Third. To employ for the purpose of maintaining the causes con- fided to them such means only as are consistent with truth, and never seek to mislead the judges by any artifice or false statement of the law. Fourth. To maintain inviolate the confidence and, at every peril to themselves, to preserve the secrets of their clients. Fifth. To abstain from all offensive personalities and to advance no fact prejudicial to the honor or reputation of a party or a witness, unless required by the justice of the cause with which they are charged. Sixth. To encourage neither the commencement nor continuance of an action or proceeding from any motive of passion or interest. Seven. Never to reject for any consideration personal to themselves the cause of the defenseless and oppressed. * Printed in accordance with the Act of the General Assembly, approvtd Feb- ruary 2, 1899, in 118 Ala. xxiii. We have taken the liberty to arrange and subdivide the code asthus prepared and to provide the various subdivisions with appro- priate subheads. 262 APPENDIX. No rule will determine an attorney's duty in the varying phases of every cause. What is right and proper must, in the absence of statu- tory rule and an authoritative code, be ascertained in .view of the pe- culiar facts, in the light of conscience, and the conduct of honorable and distinguished attorneys in similar cases, and by analogy to the duties enjoined by statute and the rules of good neighborhood. The following rules arc adopted by the Alabama State Bar Associa- tion for the guidance of its members : Duties of Attorneys to Courts and Judicial Officers. 1. Respect for Judicial Officers. The respect enjoined by law for courts and judicial officers is exacted for the sake of the office, and not for the individual who administers it. Bad opinion of the incumbent, however well founded, cannot excuse the withholding of the respect due the office while administering its functions. 2. Criticism of Judicial Conduct. The proprieties of the judicial station in a great measure disable the judge from defending himself against the strictures upon his official conduct. For this reason, and because such criticisms tend to impair public confidence in the admin- istration of justice, attorneys who, as a rule, refrain from published criticism of judicial conduct, especially in reference to causes in which they have been of counsel otherwise than in courts of review, or when the conduct of a judge is necessarily involved in determining his re- moval or continuance in office. 3. Using Personal Influence on the Court. Marked attention and unusual hospitality to a judge, when the relations of the parties are such that they would not otherwise be extended, subject both judge and attorneys to misconstruction, and should be sedulously avoided. All attempts to gain special personal consideration and favor of a judge are disreputable. 4. Defending the Court Against Popular Clamor. Courts and ju- dicial officers, in the rightful exercise of their functions, should always receive the support and countenance of attorneys against unjust criticism and popular clamor; and it is the duty of an attorney to give them his moral support in all proper ways, and particularly by setting good example in his own person of obedience to law. 5. Candor and Fairness. The utmost candor and fairness should characterize the dealings of attorneys with the courts and with each other. Knowingly citing as authority an overruled case, or treating a repealed statute as in existence ; knowingly misquoting the language of a decision or text book ; knowingly misquoting the contents of a paper, the testimony of a witness or the language or argument of opposite counsel; offering evidence which it is known the court must reject as illegal to get it before the jury under guise of arguing its admissibility, and all kindred practices, are deceits and evasions unworthy of attor- neys. APPENDIX. 263 6. Display of Temper. One side must always lose the case, and it is not wise or respectful to the court for attorneys to display temper because of an adverse ruling. 7. Treatment of Witnesses and Parties to the Cause. Witnesses and suitors should be treated with fairness and kindness. When essen- tial to the ends of justice to arraign their conduct or testimony, it should be done without villification or unnecessary harshness. Fierce- ness of manner and uncivil behavior can add nothing to the truthful dissection of a false witness' testimony and even rob deserved strict- ures of proper weight. 8. Attitude Toward the Jury. It is the duty of the court and its of- ficers to provide for the comfort of jurors. Displaying special concern for their comfort and volunteering to ask favors for them while they are present should be avoided by attorneys. Such intervention of attor- neys, when proper, ought to be had privately with the court, whereby there will be no appearance of fawning upon the jury nor ground for ill feeling of the jury towards the court or opposite counsel if such requisitions are denied. For like reasons, one attorney should never ask another in the presence of the jury to consent to its discharge or dispersion ; and when such a request is made by the court, the attor- neys, without indicating their preference, should ask to be heard if the jury withdraws. 9. Conversing Privately with Jurors. An attorney ought never to converse privately with jurors about the case, and must avoid all un- necessary communication even as to matters foreign to the cause, both before and during the trial. Any other course, no matter how blame- less the attorney's motives, gives color to the imputing of evil designs, and often leads to scandal in the administration of justice. Duties of Attorneys to Clients. 10. How Far an Attorney May Go in Supporting His Client's Cause. Nothing has been more potential in creating a pandering to popular prejudice against lawyers as a class, and in withholding from the pro- fession the full measure of public esteem and confidence which belong to the proper discharge of its duties, than the false claim often set up by the unscrupulous in defense of questionable transactions, that it is an attorney's duty to do everything to succeed in his client's cause. 11. Attitude of State's Attorney Toward Innocent Prisoner. An attorney appearing or continuing as private counsel in the prosecution of a crime of which he believes the accused innocent, forswears him- self. The state's attorney is criminal if he presses for a conviction when, upon the evidence, he believes the prisoner innocent. If the evi- dence is not plain enough to justify a nolle pros., a public prosecutor should submit the case with such comments as are pertinent, accom- panied by a candid statement of his own doubts. 264 APPENDIX. 12. Defending Oue Whom Advocate Believes to Be Guilty. An attorney cannot reject the defense of a person accused of a criminal offense because he knows or believes him guilty. It is his duty by all fair and honorable means to present such defenses as the law of the land permits, to the end that no one may be deprived of life or liberty but by due process of law. 13. Maintaining Harassing Litigation. An attorney must decline in a civil case to conduct a prosecution when satisfied that the purpose is merely to harass or injure the opposite party, dr to work oppression and wrong. 14. Where Attorney Becomes a Witness for His Client. When an attorney is a witness for his client, except as to formal matters, such as the attestation or custody of an instrument or the like, he should leave the trial of the cause to other counsel. Except when essential to the ends of justice, an attorney should scrupulously avoid testifying in court in behalf of his client as to any matter. 15. Impersonality of the Advocate. The same reasons which make it improper in general for an attorney to testify for his client apply with greater force to assertions sometimes made by counsel in argu- ment of personal belief of a client's innocence or the justice of his cause. 16. Confidential Communications. Communications in confidence between client and attorney are the proper secrets of the client, and cannot be divulged except at his instance; even the death of the client does not absolve the attorney from his obligation of secrecy. 17. Accepting Adverse Retainers. The duty not to divulge the secrets of clients extends further than mere silence by the attorney and forbids the acceptance of retainers or employment afterwards from others, involving the client's interests in the matters about which the confidence was reposed. 18. Attacking His Own Instruments or Conveyances, An attorney can never attack an instrument or paper drawn by him for any infirmity apparent on its face ; nor for any other cause where confidence has been reposed as to the facts concerning it. Where the attorney acted as a mere conveyancer, and was not consulted as to facts, and unknown to him the transaction amounted to a violation of the criminal laws, he may assail it on that ground in suits between third persons or between parties to the instrument and strangers. 19. Representing Conflicting Interests. An attorney can never represent conflicting interests in the same suit or transaction except by express consent of all so concerned with full knowledge of the facts. Even then such position is embarrassing and ought to be avoided . An attorney represents conflicting interests within the meaning of this rule when it is his duty in behalf of one of his clients to contend for that which dutj to other clients in the transaction requires him to oppose. 20. Ministering to the Prejudices of his Client. An attorney is APPENDIX. 265 under no obligation to minister to the malevolence or prejudices of the client in the trial or conduct of a cause. The client cannot be made the keeper of the attorney's conscience in professional matters. He cannot demand as of right that his attorney shall abuse the opposite party or indulge in offensive personalities. The attorney, under the solemnity of his oath, must determine for himself whether such course is essential to the cause of justice and, therefore, justifiable. 21. Right of Attorney to Control the Incidental Matters of the Trial. As to the incidental matters pending the trial, not affecting the merits of the case or working substantial prejudice to the rights of the client, such as forcing the opposite attorney to trial when he is under affliction or bereavement; forcing the trial on a particular day to the serious injury of the opposite party, when no harm will result from a trial at a different time; the time allowed for signing the bill of excep- tions, crossing interrogatories and the like, the attorney must be allowed to judge. No client has a right to demand that his attorney shall be illiberal in such matters or that he should do anything therein repugnant to his own sense of honor and propriety; and if such course is insisted on the attorney should retire from the cause. 22. Making Bold Assurances to Clients. The miscarriages to which justice is subject and the uncertainty of predicting results admonish attorneys to beware of bold and confident assurances to clients, especi- ally where the employment depends upon the assurance, and the case is not plain. 23. Promptness and Punctuality. Prompt preparation for trial, punctuality in answering letters and keeping engagements, are due from an attorney to his client and do much to strengthen their confidence and friendship. 24. Disclosing Adverse Influences. An attorney is in honor bound to disclose to the client at the time of retainer all the circumstances of his relation to the parties or interest or connection with the controversy which might justly influence the client in the selection of his attorney. He must decline to appear in any case where his obligation or relations to the opposite party will hinder or seriously embarrass the full and fearless discharge of all his duties. 25. Expressing a Candid Opinion as to the Merit* of a Client's Cause. An attorney should endeavor to obtain full knowledge of his client's cause before advising him and is bound to give him a candid opinion of the merits and probable result of his cause. When the con- troversy will admit of it, he ought to seek to adjust it without litigation if practicable. 26. Dealing With Trust Property. Money or rather trust property coming into the possession of the attorney should be promptly reported, and never commingled with his private property or used by him except with the client's knowledge and consent. 27. Business Beatings With the Client. Attorneys should, as far as possible, avoid becoming either borrowers or creditors of their client ; 266 APPENDIX. and they should scrupulously refrain from bargaining about the subject matter of the litigation so long as the relation of attorney and client continues. 28. Keeping Agreements with the Client. Important agreements affecting the rights of clients should, as far as possible, be reduced to writing; but it is dishonorable to avoid performance of an agreement fairly made because not reduced to writing as required by rules of court. 29. How to Decide Disagreements of Associate Counsel. Where attorneys jointly associated in a cause cannot agree as to any matter vital to the interests of their client, the course to be pursued should be left to his decision. A client's decision should be cheerfully ac- quiesced in unless the nature of the difference makes it impracticable for the attorney to co-operate heartily and effectively, in which event it is his duty to ask to be discharged. Duties of Attorneys to the State. 30. Stirring up Litigation. It is indecent to hunt up defects in titles and the like and inform thereof in order to be employed to bring suit: or to seek out a person supposed to have a cause of action and endeavor to get a fee to litigate about it. Except where ties of blood, relationship or trust make it an attorney's duty, it is unprofessional to volunteer advice to bring a law suit. Stirring up strife and litigation is forbidden by law and disreputable in morals. 31. What Influences an Attorney May Use. An attorney openly, and in his true character, may render purely professional services be- fore committees regarding proposed legislation and in advocacy of claims before departments of the government upon the same princi- ples of ethics which justify his appearance before the courts; but it is immoral and illegal for an attorney so engaged to conceal his attorney- ship or to employ secret personal solicitations or to use means other than those addressed to the reason and understanding to influence action. Duties of an Attorney to His Profession. 32. Upholding the Dignity of the Profession. An attorney should strive at all times to uphold the honor, maintain the dignity and pro- mote the usefulness of the profession; for it is so interwoven with the administration of justice that whatever redounds to the good of one advances the other; and the attorney thus discharges not merely an ob- ligation to his professional brethren but a high duty to the state and his fellow man. 33. Disparaging Members of the Profession. An attorney should not speak slightingly or disparagingly of his profession, or pander in any way to unjust popular prejudices against it; and he should scrupu- lously refrain at all times and in all relations of life from availing him- APPENDIX. 267 self of any prejudice or popular misconception against lawyers in order to carry a point against a brother attorney. 34. Exposing Corrupt Attorneys. Attorneys should fearlessly ex- pose before the proper tribunals corrupt or dishonest conduct in the profession ; and there should never be any hesitancy in accepting em- ployment against an attorney who has wronged his client. 35. Newspaper Discussion *f Pending Litigation. Newspaper pub- lications by an attorney as to the merits of pending or anticipated liti- gation call lorth discussion and reply from the opposite party, tend to prevent a fair trial in the courts, and otherwise prejudice the due ad- ministration of justice. It requires a strong case to justify such pub- lications, and when proper at all, it is unprofessional to make them anonymously. 36. Ill-Feeling and Personalities Between Advocates. Clients and not their attorneys are the litigants; and whatever may be the ill-feel- ing existing between clients, it is unprofessional for attorneys to partake of it in their conduct and demeanor to each other, or to suitors in the case. In the conduct of litigation and the trial of causes, the attor- neys should try the merits of the cause and not try each other. It is not proper to allude to or comment upon the personal history or men- tal or physical peculiarities or idiosyncracies of opposite counsel. Personalities should always be avoided and the utmost courtesy always extended to an honorable opponent. 37. Taking Advantage of Opposite Counsel Without Notice to Him. An attorney should not ignore known customs or practices of the bar of a particular court, even when the law permits, without giv- ing opposing counsel timely notice. Nor should an attorney attempt to compromise with the opposite party without notifying the latter's attorney if practicable. Nor should an attorney engage in discussion or arguments about the merits of the case with the opposite party, without notice to the latter's attorney. 38. Where Association With Other Attorneys is Objectionable. An attorney coming into a cause in which others are employed should give notice as soon as practicable and ask for a conference, and if the association is objectionable to the attorney already in the cause the other attorney should decline to take part unless the first attorney is relieved. Compensation. 39. Explicit Understanding as to Compensation. Satisfactory rela- tions between attorney and client are best preserved by a frank and ex- plicit understanding at the outset as to the amount of the attorney's compensation; and where it is possible this should always be agreed on in advance. 40. Siiinir a Client for a Fee. In general it is better to yield some- thing to a client's dissatisfaction at the amount of th<- fee, though the 268 APPENDIX. sum be reasonable, than to engage in a law suit to justify it, which ought always to be avoided except as a last resort to prevent imposition or fraud. 41. Fixing the Amount of the Fee. Men as a rule overestimate rather than undervalue the worth of their services, and attorneys in fixing their fees should avoid charges which unduly magnify the value of their services as well as those which practically belittle them. A client's ability to pay can never justify a charge for more than the ser- vice is worth; though his poverty may require a less charge in many instances, sometimes none at all. An attorney may charge a regular client, who intrusts him with all his business, less for a particular ser- vice than he would charge a casual client for like services. The ele- ment of uncertainty of compensation where a contingent fee is agreed on justifies a higher charge than where compensation is assured. 42. Elements to be Considered in Fixing the Fee. In fixing the fees the following elements should be considered. 1st. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to properly conduct the cause. 2nd. Whether the particular case will debar the attorney's appearance for others in cases likely to arise out of the transaction and in which there is a rea- sonable expectation that the attorney would otherwise be employed; and herein of the loss of other business while employed in the par- ticular case, and the antagonism with other clients growing out of the employment. 3rd. Customary charges of the bar for similar services. 4th. The real amount involved and the benefit resulting from the ser- vices. 5th. Whether the compensation was contingent or assured. 6th. Is the client a regular one retaining the attorney in all his busi- ness. No one of these considerations is in itself controlling. They are mere guides in ascertaining what the services are really worth and in fixing the amount it should never be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade. 43. Contingent Fees. Contingent fees may be contracted for; but they lead to many abuses and certain compensation is to be preferred. 44. Compensation for Services Rendered to Another Attorney. Casual and slight services should be rendered without charge by one attorney to another in his pengonal cause; but when the service goes beyond this the attorney may be charged as other clients. Ordinary advice and services to the 'family of a deceased attorney should be rendered without charge in most instances; and where the circum- stances make it proper to charge, the fee should generally be less than the case of other clients. APPENDIX. 269 Advertising. 45. General Rule as to Professional and Unprofessional Adver- tising. Newspaper advertisements, circulars and business cards ten- dering professional services to the general public are proper; but special solicitation of particular individuals to "become cliehts"sn"ould be avoided. Indirect advertisement for business by furnishing or in- spiring editorials or press notices regarding causes in which the attor- ney takes part, the manner in which they were conducted, the impor- tance of his position, the magnitude of the interests involved and al other self-laud'ation is of evil tendency and wholly unprofessional. 270 APPENDIX. THE IDEALS OF THE AMERICAN ADTOCATE A SYMPOSIUM. BY HON. SIMEON . BALDWIN. Justice Supreme Court of Connecticut. Every true man works toward an ideal. He imposes it upon him- self. In the rough but impressive phrase of Emerson, he has hitched his wagon to a star . To this responsibility of the individual there is added for every lawyer a responsibility that comes from without. He owes a special duty to his profession, and to the world because he is of that profes- sion. Noblesse oblige. Nobility, under our institutions, does not belong to any individual. If some foreign sovereign decorates an American with a title, it confers no pre-eminence upon him here. But under our institutions that nobility of purpose and character which belongs to the legal profession in other countries beloHgs to it in equal measure in the United States. It is everywhere, as concerns its most conspicuous office the advocacy of causes a profession of strenuous and chivalric endeavor, and honored, as such, now, as much as in any former times or other lands. It is the profession of those who contend for the rights of others Altruism and personal sacrifice are its foundations. Let a lawyer plead his own cause, and he finds, as the proverb says, that he has a fool for his client. The Romans put this strongly in their Corpus Juris: "Advocates who resolve the doubtful fates of causes and by the strength of their defense often set up again that which had fallen, and restore that which was weakened, whether in public or in private concerns, protect mankind not less than If they saved country and home by battle and by wounds. , For in our warlike empire we confide not in those alone who contend with swords, shields and breastplates, but in advocates also; for those who manage others' causes fight as, confident in the strength of glorious eloquence, they defend the hope and life and chil- dren of those in peril."* This sentiment was the inspiration of Malesherbes, when he elaiuied the honor of defending the king, whose disregard of his counsels had cost him-his crown and was to cost him his life. It was the inspiration of Denman, in supporting the rights of Queen Caroline; of Evarts, before the senate of the United States in resisting the impeachment of President Johnson. *Code II, 7 de advocatis diversor um jvdiciorum , 14. APPENDIX. 271 Great occasions like these come seldom, but the same qualities of advocacy are displayed and the same duties of advocacy discharged daily in every American state. Disregard of personal interest in ful- fillment of professional obligations; sacrifice of personal convenience to secure the interests of others ; putting all the powers of mind and body, in one supreme effort of concentrated energy, at the service of clients : these are tha common story of the contests of the bar. The undue multiplication of lawyers in the United States, incident in part to our being a new country, and in part to our being a great and rich one, has had a necessary tendency to weaken the personal sense of what is due from him to his profession, on the part of each individual member of it. It was partly to counteract this tendency that the American Bar Association was organized in 1878. Its influ- ence has been steadily good. It has not only consolidated the Ameri- can Bar, but has helped to bring together that of every state, and to put before it a high standard of professional honor and excellence. It has had no new ideals to propose. It could have none. The ideals of the ad- vocate have been unchanged since the first foundation, on a sure foot- ing, of courts of justice. They are all bound up in the one thought of the honor of the profession. Honesty may do for the office lawyer. Something finer honor is the watchword of the court-house. The advocate can achieve the ideals of his profession without elo- quence. Simple, plain, straightforward statement is often better than eloquence. He can achieve them without any legal learning that could be called profound. A fair knowledge of law, with the power to make the most of what he knows, is generally enough. He cannot achieve them without a high sense of the rights of man, as man; with- out a sincere reverence for the institutions of human justice; without patient, self-forgetful, chivalric devotion to his client's cause. BY HON. HENRY WADE ROUERS. Dean of the Yale Law School. You ask for an expression of my views on the "Ideals of the Ameri- can Advocate." I know of no reason why an American advocate's ideals should be different from those of an English advocate, or of any lawyer in the active practice of his profession, whether he advises clients in his office or addresses courts and juries. In any and all cases he acts unworthily if he disregards the fact that he is a minister of justice, and cannot do, as a lawyer, anything which dishonors him as a Christian gentleman and a law-abiding member of society. When one reflects upon the lawyer's ideals there comes instinc- tively to mind Lord Brougham's celebrated declaration concerning an advocate's duty to his client. "An advocate," he said in his famous defense of Queen Caroline, "in the discharge of his duty knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to 272 APPENDIX. other persons, and among them to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the tor- ments, the destruction he may bring upon others. Separating the duly of a patriot from that of a advocate, he must go on, reckless of con- sequences; though it should be his unhappy lot to involve his coun- try in confusion." This is a most extraordinary and wholly indefen- sible and unworthy statement of a lawyer's duty. Brougham was un- doubtedly a remarkable man who possessed great talents, enjoyed a wide fame and played a very conspicuous part in public affairs. He devoted himself to many things. He was not merely a lawyer, but was a man of letters, a man of science, a statesman and one who aspired to excel in all things and who directed his attention to many branches of human knowledge. He was not the ideal lawyer. The law was not congenial to him and in his early life he spoke of it as "the cursedestof all cursed professions,'' and referred to it as an "odious" profession. We do not look to such a man for our professional ideals. In his own day there were better and greater advocates at the bar, and on the bench more learned judges. We are told that he wanted that moral elevation which inspires confidence and respect, and which is essential to lasting fame. The statement I have quoted from him proves this estimate of him to be correct. If his declaration were to be accepted no honest man could enter the legal profession, or having entered it could remain in it. As matter of fact the only men who attain to any great degree of eminence in the profession are, as a rule, men of conscience and honor. It was said in Lord Bale's day that there were as many honest men among lawyers, proportionately, as among any profession of men in England, not excepting the divines. I bt-lieve that is true of the pro- fession in the United States to-day. The lawyer should never assert to court, jury or client what he does not believe to be the truth. He should never resort to practices which are not in conformity with the principles of morality. We live, no doubt, in a commercial age. Its aspirations are for wealth, more than for renown or service. It is common observation that "The learned pate Ducks to the golden fool." The bar may not have escaped entirely the insidious influence. No calling, not even the ministry, haa been altogether untouched by it. Every profession has its mercenary side. But in no one of the learned professions is avarice the leading aim. In Robert Louis Stevenson's essay on "The Morality of the Profession of Letters" can be found this admirable statement: "The salary in any business under heaven is not the only, nor indeed the first question. That you should continue to exist is a matter for your own consideration; but that your business should be first honest, and second useful, are points in which honor APPENDIX. 273 and morality are concerned." The ethics of the profession require that a member of the bar shall be first an honest man. He must live in rectitude and cherish his personal honor, not forgetting that per- sonal honor is the distinguishing badge of the legal profession. BY HON. I . M. ROSE. fix-President American Bar Association. It was a maxim of Cato the Censor that the orator "is a good man skilled in speaking.' 1 Quintilian, who is more emphatic, says : "Now, according to my definition, no man can be a complete orator unless he is a good man. I therefore require that he should be not only all- accomplished in eloquence, but possessed of every moral virtue." As the art of public speaking is one that most lawyers must exer- cise, these sayings have often been applied to our profession. They may seem hard at first sight, since moral perfection is not attainable in our present state of existence. But it must be remembered that these distinguished men were speaking of the ideal orator; a model for aspi- ration, though too lofty for unimpaired realization. The complete ora- tor and the perfect man are equally unknown ; but one may be a good man though subject to many frailties, provided that these are not so grave or numerous as to stain his whole character. There are differ- ent degrees of virtue, but the habitual exercise of a few that are fun- damental, such as are enjoined by legal ethics, tends to a gradual and general elevation of character. The central idea intended to be im- parted by these two classical moralists is undoubtedly a true one. These rules are not the work of Pharisaism, or the outcome of frivolous and over-refining casuistry; they are practical, well defined, profitable ; and are based on long observation and experience. In ao far as the lawyer fails to live up to them he will derogate from his own best interests, will bring reproach on himself and his profession, and will lay up provision for the day of regret and remorse. However great our apostasy may be, the standards, handed down from genera- tion to generation, are still there; and if we can by any effort on our part render them more commanding and serviceable, the line of duty is too plain to admit of hesitation or dispute. They do not embrace the entire sphere of moral sentiments; but they do include the whole circumference of professional duties; erecting standards higher and more exacting than those which are commonly insisted upon; stan- dards of courtesy, fairness, honesty, fidelity, truthfulness, good faith; and a quality of disinterestedness by no means common; in short, all of the attributes that go to make up the character of the true gentleman. The lawyer who lives up to these mandates stands on a proud emi- nence; his life, if he is not otherwise deficient, and if he is not made the victim of unrelenting and implacable fate, will be worth much in the world; while his influence will be a power in the land. A good name is better than great riches, and words spoken by one 18 274 APPENDIX. who sets a praiseworthy and consistent example to his fellowmen will be golden; while those uttered by a man of profligate habits and evil life will be as chaff, like those of the Duke of VVharton, the most brilliant orator of his time, but unprincipled, and the slave of many vices, described by Pope, who knew him well, as possessing "An angel tongue, which no man can dissuade." Certainly the career of the lawyer is beset with difficulties, and is exposed to many temptations; but these are only multiplied and en- hanced by evil practices. Consistently with allotted space only one other point may be briefly mentioned. Fraternal feeling at the bar is something that softens the asperity of controversy, tends to the better administration of justice, and adds to the pleasures of life. It is neither so active nor so potent in our country as in others that might be named. The reasons are ob- vious; and are closely allied with the immense expanse of our territory, and the want of compactness of much of our population, the facility of admisson to the bar which is often indulged, and the general loose- ness of discipline. The American lawyer is frequently overworked. In England, France and Italy the advocate is relieved of much drudg- ery by the collaboration of attorneys, a well trained body of assis- tants, leaving him more time for social duties, the amenities of life, and the widening of the field of endeavor. Other restrictions peculiar to our situation might be recited; but however serious the obstacles may be, it is nevertheless true that the lawyer owes an affectionate al- legiance to his profession, which always demands a grateful remem- brance; and that he should bring ungrudgingly his quota of influence to the work of elevating the tone of the bar, cheerfully lending his aid to secure the harmony of its members, and to the promotion of its dignity, honor and usefulness. BY HON. JOHN I . PHILIPS. United States District Judge. As law is '-the perfection of human reason,'' it ought to be "the pride of human intellect,'" and the practice of it should be pursued rather for its honors than its pelf. The spirit of commercialism has too largely taken possession of the profession. Fee getting is the ruling passion, the effect of which is to narrow the mental hori/on and eat out the heart. The ancient chivalry and sentiment of the advocate move him little nowadays, un- less he perceives in the occasion some alchemy for transmuting the cause into gold. The ewe larnb of the orphan and the milch cow of the widow are turned over for protection to the shyster, who, if he win, takes the lamb and the cow for his fee. The most fruitful source of litigation to-day is on the increase because lawyer and client stand as full partners in the spoil. The noblest quality of an advocate is intellectual honesty. The APPENDIX. j275 mind, whatever its endowments, that "toils in mischief" that is not honest with itself is apt to reflect a distorted image on court and jury. The practice of making counterfeit presentment naturally enough ren- ders the mind oblique and sinister. By progressive steps it loses the sense of distinction between right and wrong. Whereas, the mental habit of presenting the law and the facts as they are brings the mind and heart into co-operation, exciting the sympathy born of candor, and exerting the power that ever lives in truth. Another ideal of the advocate is that he should be the man of "high erected thought seated in the heart of courtesy/' Obsequiousness evinces moral cowardice and mental weakness. Courtesy, without sincerity, is a false pretense. Amenity at the bar, if used merely as a feint to aid a sinister purpose, excites only disgust. There is no su- perior in odium to the professional lago. The charlatan, if he be rea- sonably honest is more tolerable. While the advocate cannot always choose his client, yet, if he con- stantly be found in the advocacy of questionable transactions it eviden- ces a readiness to make merchandise of his learning regardless of ethics. He may, with propriety, urge a case against his opinion of the better law, because the law of the case is what the court may declare it to be. But he cannot, with self-respect, advocate a cause he believes to be dishonest, or hurtful to society, or dangerous to the state. Cicero said, a lawyer may defend the guilty, under limitations, but his duty will never permit him to accuse the innocent. Id facere lans est drcet, non quod licet. No respectable lawyer can encourage litigation or foment petty strife. The street-soliciting advocate is the burning shame of the bar, whose dislike it were an honor to share by bench and bar. The successful advocate now is logical and analytical rather than rhetorical and glittering. He is less original and inventive, because of accumulated precedents tending to develop the faculty of discriminat- ing assimilation. He looks to ultimate results rather than present effect. BY HON. T. A. SH i |{\\oody. and its law writers, have insistently demanded to be maintained, as a barrier against temptation to corrupt practices, and preserve the prestige of the pro- fession, have tended to elevate his ideals of duty, and develop the best qualities of his character. There are influences constantly at work to restrain the lawyer from deviations of duty, to develop the good im- pulses of his nature, and to stimulate his ambition to a life of useful- ness and honorable distinction among men. The lawyer is not de- generating in moral or intellectual culture. The bar still maintains its rank for deep learning, high mental discipline and refined moral culture. The bench, drawn from its ranks, represents the best product of civilization and is the bulwark of constitutional freedom. It is true there are shysters, but they are few and exceptional, usually known to the public and profession and shunned by both, except those who need their services and create the supply. Formerly the business of the law was limited as compared with its present volume and the affairs to which it was applied, plain and simple, as compared with the intricate and complex relations to which it must now he adapted. The old law- yer was a fine specimen of the legal profession. He was able and learned, eloquent and dignified. He prepared his speeches with care and delivered them with effect. He was ambitious of distinction and his talents gave him influence and standing in the community, and in- spired its respect and confidence. But times change and men charge with thein. The advance of civilization and its gigantic business operation have wrought changes which have affected the legal pro- fession. The lawyer of to-day is compelled to keep pace with its movements. There is less time and opportunity for speech-making and the display of oratory; but there is no abatement in the demand for highly trained lawyers of elevated character, endowed with ex- tensive learning. The improved methods for committing thought to paper have enabled the lawyer to perform a vast amount of legal labor and submit his opinions in a form better calculated to influence and convince the mind. He is equal to his day and generation. The bar has not declined in character, power or influence. It still maintains the moral and intellectual standard of the law. So long as the law prescribes, as requisites for admission to the bar, fair abilities, good morals and a knowledge of its principles, and the court rigorously enforces compliance with these conditions; so long as APPENDIX. 279 the study and practice of the law shall influence character tending to develop the mental faculties, refine the moral sense, and inspire aspi- rations for intellectual excellence, and honorable distinction ; so long as the bar associations shall maintain its high ideals of intellectual cul- ture and professional ethics, and exclude from its associations mem- bers guilty of moral delinquency, and cause to be rigorously weeded out from the profession all lawyers known to be engaged in corrupt practices; so long as legal writers and journals continue to urge the need of culture, learning and character, as essential to equip the law- yer, and of fidelity, honesty and strict integrity in the performance of his duties, and mercilessly expose and denounce all conduct, or prac- tices involving derelictions of duty and bringing reproach upon the legal profession, there will be no deterioration in the high standing and character of the lawyer, nor loss of influence and power, or lowering of the high intellectual and ethical standards, so long maintained by the profession. INDEX A. ABSTRACT, proper abstract of the record, 174. ADMISSIONS, admissions by counsel or his client, 164. ADVERTISING, general considerations determining the propriety of advertising methods, 246. legal directories and newspaper notoriety as advertising methods 247. the gross impropriety of advertising for divorce litigation, 249. politics as an advertising medium, 251. social acquaintance and club life as methods of advertising. 252. pretending to be learned or whelmed with business, 253. the impropriety of employing "runners," 254. the propriety of "buying up" causes of action, 256. the propriety of stealing another attorney's practice, 257. the test of advertising methods, 258. the value of office furniture and modern business methods as suc- cessful means of advertising, 257. ADVOCACY, stating personal belief as to guilt of accused in opening case for the state, 94. ALIBI, how to break down a false alibi, 101. ANTICIPATION. anticipating defendant's case, 24. ARGUMENT, effect of argument in demolishing plaintiff's case, 34. right to argue upon antecedent evidence, 73. requisites and value of oral argument in addressing the court,. 177. discussion of principle versus the citation of authority in advocate's brief, 179. 282 T-NDEX. ARRANGEMENT, arranging and marshalling the evidence before trial, 6. order and arrangement of facts in opening statement, 26. arrangement of facts with regard to probabilities in defendant's opening statement, 36. proper and artistic arrangement of evidence in defendant's opening statement, 37. order of time to be observed in eliciting evidence, 45. order and arrangement of the reply. 79. ASSIGNMENT OF ERRORS. See EKKORS. ATTENTION, securing attention of court and jury, 76. B. BRIEF, the requisites and value of a lawyer's brief, 172. clearness and brevity as important characteristics of advocate's brief, 176. literary style of advocate's brief, 176. superior value of oral argument over printed briefs, 177. discussion of principle versus the citation of authority in advocate's brief, 179, c. CHARACTER, emphasizing good character of accused in closing address for the defense, 121. CLIENT, listening to the client's complaint. 4. sifting the client's story, 5. admissions by client, 164. the supremacy of the client's interest as determining the advo- cate's conduct, 227. is truth a higher obligation than the interests of the advocate's client, 228. CLOSING ADDRESS, as to the closing address for the defendant, see SUMMING UP. as to the closing address for the plaintiff, see REPLY. COACHING, interviewing and coaching witnesses, 14. CODE, as to code of ethics, see ETHICS. COMMON SENSE, value of common sense in advocacy, 1. INDEX. 283 COMPENSATION, general considerations determining the amount of compensation for legal services, 238. gratuitous services in behalf of indigent prisoners, 240. duty of advocate to observe rules as to compensation imposed by commercial law association of which he is a member, 241. the propriety of contracting for a contingent fee, 242. when an advocate may contract for bis services on a salary basic, 245. COMPLAINT, listening to the client's complaint, 4. CONCENTRATION, concentration as a cardinal requisite to success at the bar, 21. CONCISENESS, conciseness in the reply, 84. CONSULTATION, the art of consultation. 3. listening to the client's complaint, 4. sifting the client's story, 5. interviewing and coaching witnesses, 14. interviewing the adversary party interrogatories, 16. CONTINGENT FEE, the propriety of contracting for a contingent fee, 242. COUNSELOR, consultation and the writing of legal opinions as 1 iterative features of the counselor's office work, 3. COURTESY, good temper of the cross-examiner, 54. COURTS, securing attention of court and jury, 76. proper tactics in overcoming the preconceptions of the judge, 167. assuming that the court is ignorant of the law, 167. requisites and value of oral argument in addressing the court, 177. how to meet interruptions by the court, 181. CRIMINAL DEFENSE, the young lawyer before the police magistrate, 106. how far defense should show its hand before committing magistrate, 108. how to deal with a defective indictment, 110. what and how many defenses to make, 110. opening statement of counsel for defendant, 111. methods of objection to evidence by defense, 112. under criminal defense emphasi/.ing mistakes of inaccurate wit- nesses, 113, general rules as to cross-examination by the defense, 114. 284 , INDEX. CRIMINAL DEFENSE CONTINUED. drawing out an opposing witness in cross-examination by the de- fense, 115. how to handle hostile witnesses in cross-examination by the de- fense, 116. whether or not witnesses should be called or case submitted on state's evidence, 117. calling attention to absence of motive on part of ace-used in closing address for the defense, 118. calling attention to motive of prosecuting witness in closing ad- dress for the defense. 119. emphasizing good character of accused in closing address for the defense, 121. CRIMINAL PROSECUTION, order of a criminal trial, 88. arraignment of accused, 89. prosecution not persecution, 90. avoiding argument in opening statement, 92. avoiding exaggeration in opening statement, 93. use of conventional and undignified phrases in opening state- ment. 93. stating personal belief as to guilt of accused in opening state- ment, 94. interpreting the indictment to the jurv in the opening statement, 94. only facts bearing directly on the issue to be stated in opening statement. 95. anticipating the defense in opening statement, 96. order and arrangement of the evidence, 97. overlaying the case with too much evidence, 97. police testimony not to be implicitly relied upon, 99. concentrating attack on main defenses of accused, 100. taking advantage of defendant's cross-examination, 101. how to break down a false alibi, 101. temperate reply versus earnest appeal, in closing address for the state, 104. explaining away difficult and awkward points in the evidence in closing address for the defense, 120. general considerations as to closing address for the defense, 122. CROSS-EXAMINATION, knowledge of human nature as necessary to proper cross-examina- tion, 50. dangers of cross-examination, 51. good temper of the cross-examiner, 54. prejudice and other hostile motives on the part of the witness to be emphasized on cross-examination, 56. manner, style and tone of voice of cross-examiner, 58. INDEX. 285 CROSS-EXAMINATIONCONTINUED. asking questions liable to call forth adverse replies, 60. cross-examination of evasive and hostile witnesses, 61. cross-examiner should never put a question without being able to give a reason for it, 62. cross-examination for impugning the veracity of the witness, 62. value of long experience in determining the proper questions to be asked, 63. how not to cross-examine, 64. general rules aa to cross-examination by the defense in a criminal prosecution, 114. drawing out an opposing witness in cross-examination by the de- fense in a criminal prosecution, 115. how to handle hostile witnesses in cross-examination by the defense in a criminal prosecution, 116. I). DANGERS OF ADVOCACY, what to do with weak or dangerous points in the line f battle, 18. dangers of cross-examination, 51. dangers of re-examination, 66. pursuing an equivocal reply of one's own witness elicited on cross- examination, 70. points of danger in defendant's summing up, 73. how to take care of the weak point in a case, 163. how to meet an unscrupulous and ill-natured opponent, 168. danger in wandering from the main point of a case, 170. danger of achieving a reputation as a wit, 202. DEFENDANT'S OPENING, general rule, 32. when and where to open the attack, 33. effect of argument in demolishing plaintiff's case, 34. use of plaintiff's witnesses to prove defendant's case, 34. force of eloquence in defendant's opening speech, 35. misstatements and false representations by defendant in opening statement, 36. arrangement of facts with regard to probabilities in defendant's opening statement, 36. proper and artistic arrangement of evidence in defendant's opening statement, 37. answering exaggerated or improbable evidence, 37. effect of defendant praising his own witnesses, 88. points of rhetoric to be observed by defendant's attorney, 39 opening statement of counsel for defendant in a criminal prosecu- tion, 111. 286 INDEX. DEFENSE. See CRIMINAL DEFENSE. DELAY. under what condition an advocate profits by delay, 168. DEPOSITIONS, superior value of oral testimony to written depositions, 161. DIRECT EXAMINATION, all of the facts must be elicited. 41. the fewest possible questions and interruptions, 42. proper and improper questions, 43. irritable and unintelligible questions, 44. order of time to be observed in eliciting evidence, 45. cross-examining one's own witness, 46. cautioning witnesses about rules of evidence, 47. leading a witness. 48. unnecessary rapidity and repetition, 48. verbose questions to be avoided in examining witnesses, 49. E. ELOCUTION, points of rhetoric to be observed by defendant's attorney, 39. what modulation of voice assists the cross-examiner in his examina- tion, 58. use of illustrations and conventional phrases, 84. temperate and accurate style, 86. peroration, 87. avoiding exaggerated statements, 93. avoiding the use of conventional and undignified phrases, 93. how to meet interruptions by the court, 181. order, arrangement and peroration, 196. cultivation of the power of speech, 199. imitation and affectations of speech, 201. appropriate physical gestures and facial expression in speaking, 203. ELOQUENCE. See ELOCUTION. force of eloquence in defendant's opening speech, 35. appeals to passion or prejudice, 85. temperate reply versus earnest appeal, in closing address for the state, 104. oratory before the jury, 186. value and requisites of forensic eloquence, 187. genius or hard work as a requisite to attaining superiority as a forensic speaker, 188. mental absorption and concentration as necessary to attaining superiority as a public speaker, 191. the value of a personal inquisition in preparing an address, 192. how to prepare to meet an attack, 194. discussion of adverse authorities, 195. order, arrangement and peroration. 196. INDEX 287 (The references are to sections.) ENTHUSIAST, enthusiasm as a cardinal requisite to success at the bar, 21. ERRORS, proper assignment of 3rrors in advocate's brief, 175. ETHICS, as to rules of ethics regulating compensation and advertising by lawyers, see COMPENSATION AND ADVERTISING. proper and improper questions to be asked on examination, 43. personal attack on opponent or his counsel, 78. general code of ethics, 206. code of legal ethics. 208. inviolability of the code of ethics, 209. to what extent professional conduct is affected by the code, 211. methods of enforcing the code of. ethics, 213. general considerations determining the advocate's relation to the State, 214. general considerations determining the advocate's relation to the court, 216. attitude and conduct of advocate in the presence of the judge and court, 218. attitude of the advocate towards his own and opposing witnesses, 220. should the advocate practice in a court in which the judge is his near kinsman, 222. the impersonality of the advocate before the court, 225. the supremacy of the client's interest as determining the advocate's conduct, 227. is truth a higher obligation than the interests of the advocate's client, 228. .right of advocate to defend one whom he believes to be guilty, 231. whether an advocate should become a party to a fraud or maintain harassing or oppressive litigation, 232. what methods or influences are improper for an advocate to use in attaining the end desired, 234. general considerations determining the advocate's relation to his profession, 235. what attitude should be observed by advocate to opposing counsel, 236. EVIDENCE, arranging and marshalling the evidence before trial, 0. answering exaggerated or improbable evidence, 37. order of time to be observed in eliciting evidence, 45. cautioning witnesses about rules of evidence, 47. seizing opportunities offered by the cross-examination to introduce .matter otherwise inadmissible, 68. 288 INDEX. EVIDENCE CONTINUED. dealing with the effect of the testimony, not the testimony itself, 80. importance to be attached to the probabilities of the evidence, 83. order and arrangement of evidence for the state in a criminal prosecution, 97. overlaying a prosecution with too much evidence, 97. police testimony not to be implicitly relied upon, 99. so marshalling the evidence as to concentrate attack on main de- fenses of accused, 100. methods of objection to evidence by defendant in a criminal prose- cution, 112. explaining away difficult and awkward points in the evidence in closing address for the defense, 120. EXAGGERATION, answering exaggerated or improbable evidence, 37. accuracy and exaggeration in the summing up, 74. EXAMINATION . See DIRECT EXAMINATION. See RE-EXAMINATION. See CROSS-EXAMINATION. F. FALSE REPRESENTATIONS, misstatements and false representations by defendant in opening statement, 36. FORENSIC ELOQUENCE. See ELOQUENCE. FRAUD. whether an advocate should become a party to a fraud or maintain harassing or oppressive litigation, 232. 0. GESTURES, appropriate physical gestures and facial expression in speaking, 203. GOOD TEMPER, good temper of the cross-examiner, 54. H. HANDWRITING, the handwriting expert as a witness, 145. HARASSING LITIGATION, whether an advocate should become a party to a fraud or maintain harassing or oppressive litigation, 232. HOSTILITY, prejudice and other hostile motives on the part of the witness to emphasized on cross-examination, 56. cross-examination of evasive and hostile witnesses, 61. INDEX. 289 HUMAN NATURE, knowledge of human nature as essential to the success of the advo- cate, 2. knowledge of human nature in dealing successfully with a jury, 2. knowledge of human nat'ire as necessary to proper cross-examina- tion, 50. HYPOTHESIS, the importance of arriving at a proper hypothesis, 7. I. ILLUSTRATIONS, ornamentation and illustration in opening statement, 26. use of illustrations and conventional phrases, 84. IMPERSONALITY OF THE ADVOCATE, stating personal belief as to guilt of accused in opening case for the state, 94. the impersonality of the advocate before the court, 225. INDEX, proper form of index in advocate's brief, 175. INDICTMENT, how to deal with a defective indictment, 110. INTERROGATORIES, value of interrogatories as discovering opponent's case, 16. IRRITATION, irritable and unintelligible questions, 44. J. JUDGES, proper tactics in overcoming the preconceptions of the judge, 107. JURY, knowledge of human nature in dealing successfully with a jury, 2. preparation of address to the jury, 20. flattering the jury, 76. securing attention of court and jury, 7(5. delicacy of the proceeding to impanel the jury, 154. ascertaining motives tending to influence the jury, 156. calculating the value of the evidence over the verdict of thftjiiry, 165. general considerations to be observed in addressing the jury. 181. a temperate style before the jury, 184. how to win the master mind of the jury, 185. oratory before the jury, 186. L. "LAST WORD," value of the "last word," 75. 19 290 INDEX. LAWYER'S BRIEF. See BRIEF. LEADING, leading a witness, 48. LYNCHING, unprofessional conduct of advocate in advising a mob to lynch a prisoner, 215. M. MAGISTRATE. See POLICE MAGISTRATE. MARSHALLING. See ARRANGEMENT. METHODS, proper business methods as essential to success at the bar, 21. danger in wandering from the main point of a case, 170. requisites and value of oral argument in addressing the court, 177. discussion of principle versus the citation of authority in address- ing the court, 179. how to meet interruptions by the court, 181. general considerations to be observed in addressing the jury, 181. a temperate style before the jury, 184. how to win the master mind of the jury, 185. oratory before the jury, 186. discussion of adverse authorities, 195. danger of achieving a reputation as a wit, 202. appropriate physical gestures and facial expressions in speaking, 203. METHODS OF SPEAKING. See ELOCUTION. MODERATION, moderation in opening statement, 28. N. NARRATION, narration not argument in an opening statement, 24. 0. OFFICE WORK, consultation and the writing of legal opinions as lucrative features of the counselor's office work, 3. arranging and marshalling the evidence before trial, 6. the theory of a case and its importance, 7. discovering and determining the legal outline, 10. what to do with weak or dangerous points in the line of battle, 18. leading up the law of the case, 19. OPENING STATEMENT, See PLAINTIFF'S OPENING. See DEFENDANT'S OPENING. INDEX. 291 OPINIONS, consultation and the writing of legal opinions as lucrative features of the counselor's office work, 3. ORNAMENTATION, ornamentation and illustration in opening statement, 26. P. PLAINTIFF'S OPENING, plaintiff must have confidence in his case, 23. narration not argument in an opening statement, 24. anticipating defendant's case, 24. redundancy of expression in opening statement, 25. ornamentation and illustration in opening statement, 26. order and arrangement of facts in opening statement, 26. moderation in opening statement, 28. length of opening statement, 30. avoiding argument in opening case for the state, 92. avoiding exaggeration in opening case for the state, 93. avoiding conventional and undignified phrases in opening case for the state, 93. stating personal belief as to guilt of accused in opening case for the state, 94. interpreting the indictment to the jury in opening case for the state, 94. only facts bearing directly on the issue to be stated in opening case for the state, 95. anticipating the defense in opening case for the state, 96. proper tactics in opening the case, 157. PLEADING, the theory of a case and its importance, 7. the importance of arriving at a proper hypothesis, 7. preparation of pleadings what are essential characteristics, 12. POINTS AND AUTHORITIES, proper statement of points and authorities in advocate's brief, 175. POLICE COURTS. See POLICE MAGISTRATE. POLICE MAGISTRATE. the young lawyer before the police magistrate, 106. how far defense should show its hand before committing magis- trate. 108. POLITENESS. See COURTESY. PREJUDICE, prejudice and other hostile motives on the part of the witness to be emphasized on cross-examination, 56. PREPARATION FOR TRIAL, discovering and determining the legal outline, 10. 292 -INDEX. PREPARATION FOR TRIAL CONTINUED. what to do with weak or dangerous points in the line of battle, 18. reading up the law of the case, 19. preparation of address to the jury, 20. determining the leading point in the case, 156. PRINCIPLE, discussion of principle versus the citation of authority in addressing the court, 179. PROOF, use of plaintiff's witnesses to prove defendant's case, 34. PROSECUTION. See CRIMINAL PROSECUTION. E. REDUNDANCY, redundancy of expression in opening statement, 25. unnecessary repetition in examination of witnesses, 48. verbose questions to be avoided in examining witnesses, 49. repetition of evidence in chief on re-examination, 70. RE -EXAMINATION, general principles, 65. dangers of re-examination, 66. what questions to be asked where the cross-examination is favorable to the re-examiner, 67. re-exainination where the cross-examination is unfavorable to the re-examiner, 67. seixing opportunities offered by the cross-examination to introduce matter otherwise inadmissible, 68. re-examination in cases where character or credibility of witness has been attacked, 68. pursuing an equivocal reply of one's own witness elicited on cross- examination. 70. repetition of evidence in chief on re-examination, 70. REPETITION. See REDUNDANCY. REPLY, value of the "last word," 75. securing attention of court and jury, 76. flattering the jury, 76. display of self confidence, 77. personal attack on opponent or his counsel, 78. effect of an earnest quiet manner, 78. order and arrangement of the reply, 79. attacking opponent's case first, 79. dealing with the effect of the testimony, not the testimony itself. 80. importance to be attached to the probabilities of the evidence, 83. conciseness in the reply, 84. use of illustrations and conventional phrases, 84. INDEX. 293 REPLY CONTINUED. appeals to passion or prejudice, 85. temperate and accurate style, 86. peroration, 87. adaptation and arrangement of the evidentiary forces in closing address. 166. HETOKIC. See ELOCUTION. 8. STATEMENT, proper statement of the case in advocate's brief. 174. STYLE, in what style to conduct the examination of witnesses, 58. SUMMING UP, general considerations as to the summing up of defendant's case, 72. right to argue upon antecedent evidence, 73. points of danger in defendant's summing up, 73. accuracy and exaggeration in the summing up, 74. calling attention to absence of motive on part of accused in closing address for the defense in a criminal prosecution, 118. calling attention to motive of prosecuting witness in closing address for the defense in a criminal prosecution, 119. explaining away dilHcult and awkward points in the evidence in closing address for the defense in a criminal prosecution, 120. emphasizing good character of accused in closing address for the defense in a criminal prosecution, 121. general considerations as to closing address for the defense in a criminal prosecution, 122. T. TACT. the meaning and value of tact, 151. tact in handling and impaneling th jury. 154. tact in ascertaining motives tending to influence the jury, 156. tact in determining the leading point in the case, 156. exercise of tact by counsel in not making admissions detrimental to his client, 164. how to meet an unscrupulous and ill-natured opponent, 168. TACTICS, the meaning and value of tactics, 151. proper tactics in opening the case, 157. proper tactics in calling witnesses and in what order to call tlH-m. 159. superior value of oral testimony to written depositions, ltd. how to take care of the weak point in a case, Ifl3. calculating the value of the evidence over the verdict of the jury, 165. 294 INDEX. TACTICS CONTINUED. proper tactics in securing the "last word,'' 165. adaptation and arrangement of the evidentiary forces in closing address, 166. proper tactics in overcoming the preconceptions of the judge, 167. assuming that the court is ignorant of the law, 167. under what condition an advocate profits by delay, 168. danger in wandering from tke main point of a case, 170. THEORY, the theory of a case and its importance, 7. TIME, order of time to be observed in eliciting evidence, 45. TRIAL. See PREPARATION FOU TRIAL. TRIAL AND PROCEDURE, order of a criminal trial, 88. whether or not witnesses should be called or case submitted on state's evidence, 117. TRUTH, is truth a higher obligation than the interests of the advocate's client, 228. TRUTHFULNESS, cross-examination for impugning the veracity of the witness, 62. V. VERBOSITY. See REDUNDANCY. VERACITY. See TRUTHFULNESS. w. WEAK POINTS. See DANGERS OF ADVOCACY. WIT AND HUMOR, danger of achieving a reputation as a wit, 202. WITNESSES, interviewing and coaching witnesses, 14. use of plaintiff's witnesses to prove defendant's case, 34. effect of defendant praising his own witnesses, 38. cross-examining one's own witness. 46. cautioning witnesses about rules of evidence, 47. leading a witness, 48. prejudice and other hostile motives on the part of the witness to be emphasized on cross-examination, 56. asking questions liable to call forth adverse replies, 60. cross-examination for impugning the veracity of the witness, 62. re-examination in cases where character or credibility of witness has been attacked, 68. INDEX. 295 WITNESSES CONTINUED. under criminal defense emphasizing mistakes of inaccurate wit- nesses, 113. whether or not witnesses should be called or case submitted on state's evidence, 117. the lying witness, 124. the flippant witness, 129. the dogged witness, 131. the hesitating witness, 133. the nervous witness, 134. the cunning witness, 134. the witness partly true and partly false, 135. the stupid witness, 136. the semi-professional witness, 137. the official witness, 138. the policeman as a witness, 139. the truthful witness, 141. the convict as a witness, 142. the private detective as a witness, 143. the handwriting expert as a witness, 145. the medical witness, 147. the vanity of witnesses, 149. what witnesses should be called and in what order, 159. UNIVERSITY OF CALIFORNIA ] JS^i? EeiONA l- LIBRARY FACILITY A 000 689 488 5