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+The Project Gutenberg eBook, The Man in Court, by Frederic DeWitt Wells
+
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+
+
+
+Title: The Man in Court
+
+
+Author: Frederic DeWitt Wells
+
+
+
+Release Date: November 10, 2005  [eBook #17041]
+
+Language: English
+
+Character set encoding: ISO-8859-1
+
+
+***START OF THE PROJECT GUTENBERG EBOOK THE MAN IN COURT***
+
+
+E-text prepared by David Garcia, Jeannie Howse, and the Project Gutenberg
+Online Distributed Proofreading Team (https://www.pgdp.net/)
+
+
+
+     +------------------------------------------------------+
+     | Transcriber's Note: Some obvious typographical       |
+     | errors have been corrected in this text. For a list  |
+     | please see the bottom of the document. The one Greek |
+     | word is transliterated and marked with +'s.          |
+     +------------------------------------------------------+
+
+
+
+
+
+THE MAN IN COURT
+
+by
+
+FREDERIC DEWITT WELLS
+Justice, Municipal Court of New York City
+
+
+
+
+
+
+
+G.P. Putnam's Sons
+New York and London
+The Knickerbocker Press
+1917
+Copyright, 1917
+by
+Frederic Dewitt Wells
+The Knickerbocker Press, New York
+
+
+
+
+
+
+  To
+
+  MY FRIEND
+
+  CHARLES E. GOSTENHOFER
+
+  OF THE NEW YORK BAR
+
+  IN ACKNOWLEDGMENT OF HIS AID AND SUGGESTIONS
+
+  THIS BOOK IS DEDICATED
+
+
+
+
+INTRODUCTION
+
+
+The author has tried to show the point of view of the ordinary man in
+a law court, as the various proceedings of a trial take shape before
+him. To the initiated, the whole book may seem too obvious; but it has
+not been written for them, but for those to whom these proceedings are
+unfamiliar. There are many who have a certain curiosity about the
+courts, and at the same time a real respect for justice, mingled with
+amusement at the panoplies and antiquated forms of legal procedure.
+
+  F. DEW. W.
+
+  NEW YORK,
+  _January, 1917_.
+
+
+
+
+CONTENTS
+
+
+                                                                 PAGE
+
+INTRODUCTION                                             iii
+
+    I.--A NIGHT COURT                                      3
+
+   II.--THE CIVIL COURT                                   21
+
+  III.--THE JUDGE                                         39
+
+   IV.--THE ANXIOUS JURY                                  57
+
+    V.--THE STRENUOUS LAWYER                              75
+
+   VI.--THE WORRIED CLIENT                                93
+
+  VII.--PROGRAMS AND PLEADINGS                           111
+
+ VIII.--PICKING THE JURY                                 129
+
+   IX.--OPENING THE CASE                                 149
+
+    X.--THE CONFUSED WITNESS                             165
+
+   XI.--THOSE TECHNICAL OBJECTIONS                       183
+
+  XII.--THE MOVEMENTS IN COURT                           201
+
+ XIII.--ELOCUTION                                        219
+
+  XIV.--THE HEAVY CHARGE                                 235
+
+   XV.--THE TRUE VERDICT                                 251
+
+  XVI.--LOOKING BACKWARD                                 265
+
+
+
+
+I
+
+A Night Court
+
+
+In the Night Court the drama is vital and throbbing. As the saddest
+object to contemplate is a play where the essentials are wrong, so in
+this court the fundamentals of the law are the cause of making it an
+uncomfortable and pathetic spectacle.
+
+The women who are brought before the Night Court are not heroines, but
+the criminal law does not seem better than they. It makes little
+attempt to mitigate any of the wretchedness that it judges; in many
+cases it moves only to inflict an additional burden of suffering. The
+result is tragedy.
+
+The magistrate sits high, between standards of brass lamps. His black
+gown, the metal buttons and gleaming shields of the waiting police
+officers, the busy court officials behind the long desks on either
+hand tell of the majesty of the law.
+
+In front of the desk but at a lower level is a space of ten or twelve
+feet running across the court-room in which are patrolmen,
+plain-clothes men, detectives, women prisoners, probation officers,
+reporters, witnesses, investigators, and lawyers. Beyond in the
+court-room a large crowd is on the benches. There are witnesses,
+brothers and sisters, friends of the prisoners waiting to see whether
+they go out through the street entrance or back through the strong
+barred gate seen through the door on the left. Also there are the
+"sharks" waiting to follow out the released prisoners, to prey upon
+them as the circumstances may favor; and a number of curiosity seekers
+watching intently. For them it can be nothing but a morbid dumb show,
+for they are so far from the bench that not a word of the proceedings
+could be heard. Only once in a while the shrieks and imprecations of a
+struggling hysterical woman as she is hurried out of court can
+enliven the scene.
+
+Fortified with a letter of introduction to the judge and a disposition
+that will not be too easily shocked at seeing conditions of life as
+they actually exist, the spectator may find his way past the policeman
+at the gate in the rail. It clicks behind him ominously and he wonders
+whether he will have difficulty in getting out. Finally through clerks
+and officials who become more kindly as they learn he is a friend of
+the judge, he is seated in a chair drawn up beside the bench. The
+magistrate is a hearty round-faced man who seems almost human in spite
+of his gown and the dignity of his surroundings. The court looks
+different from this point of view and he may easily watch the judicial
+enforcement of the law supreme.
+
+The organization of these courts is simple. There are not many rules
+or technicalities. The judges are patient, hard working,
+understanding, and efficient. The trouble is with the laws they are
+called upon to administer: Laws which are as absurd, as farcical, and
+as impracticable as the plot of the lightest musical comedy.
+
+At first the visitor can hardly understand what is going on. A
+pale-faced man is in the witness chair, on his left a bedraggled
+little woman is standing before and below the judge, her eyes just
+level with the top of the desk. Clerks are coming with papers to be
+signed: "commitments," "adjournments," "bail bonds"; others are trying
+to engage his attention. In the meanwhile the case proceeds.
+
+"I inform you," says the judge to the woman, "of your legal rights,
+you may retain counsel if you desire to do so and your case will be
+adjourned so that you may advise with him and secure witnesses, or you
+may now proceed to trial. Which will you do?"
+
+She murmurs something. She is pale-faced with sullen eyes, drooping
+mouth, an over-hanging lip. A sad red feather droops in her hat.
+
+"Proceed," says the judge; and to the policeman who is called as a
+witness, "You swear to tell the truth, the whole truth mm-mm-mm--you
+are a plain-clothes man attached to the 16th Precinct detailed by the
+central office, what about this woman?"
+
+"At the corner of Fifteenth Street and Irving Place," says the
+witness, "between the hours of 10:05 and 10:15 this evening I watched
+this woman stop and speak to three different men. I know her, she has
+been here before your Honor."
+
+"What do you say?" the judge asks the woman. She is silent.
+
+"What do you work at?"
+
+"Housework, your Honor."
+
+"Always housework; it is surprising how many houseworkers come before
+me." She smiles a sickly smile.
+
+"Take her record. Next case," says the judge. Outside it is a cold
+sleeting night in early March.
+
+"Witnesses in case of Nellie Farrel," calls the clerk.
+
+Nellie Farrel stands before the desk beside a policeman; she is tall
+with fair waving hair. She must have been pretty once; even now there
+is a delicate line of throat and chin. But her eyes are hard and on
+her cheeks there are traces of paint that has been hastily rubbed off.
+She looks thirty; she is probably not more than twenty.
+
+A callow youth, who seems preternaturally keen, swears that on
+Thirteenth Street between Fifth Avenue and University Place the woman
+stopped and spoke to him; and he tells his story as though it were
+learned by rote.
+
+"Do you know the officer who made the arrest?" the judge asks him.
+
+"I do." A suspicion arises that there may be an interest between the
+witness and the policeman.
+
+A dark-haired, smooth-faced woman who is standing by the prisoner
+says: "Your Honor, she's my sister. I'm a respectable woman, my
+husband is a driver. I have three children. It's disgrace enough to
+have the likes of her in the family. If you'll give her another
+chance I'll take her home with me; my husband is here and he's
+willing." The accused looks down piteously.
+
+"Discharged on probation," says the judge, and the family go out.
+
+"That's the third time that's happened to her," whispers a clerk.
+"Every time the sister comes up like a good one."
+
+A horrible old woman with straggling gray hair, shrivelled neck, and
+claw-like hands grasps a black shawl about her flat chest. "Mary,"
+says the judge, "thirty days on the island for you."
+
+"Oh, your Honor, your Honor, not the workhouse. Oh, God, not the
+workhouse," and she is borne out screaming and fighting and invoking
+Christ to her aid. The judge turns and says in explanation, "an old
+case, an example of what they all may come to."
+
+A dark-haired little French woman is brought in with crimson lips,
+bold black eyes, and expressive hands. A detective testifies that he
+went with her into a tenement house on Seventeenth Street west of
+Sixth Avenue. Charge: Violation of the Tenement House Law.
+
+"Qu'importe," says the woman. "I go in ze street. I am arrested. I
+stay in ze house. I am arrested. I take ze room. I am arrested.
+Chantage--Blackmail. C'est pour rire."
+
+Who are these women who are brought in a crowd together? One of them
+older than the rest is a foreigner plainly dressed in black silk with
+a gold chain. She does not seem particularly evil, but rather
+respectable. The others are in long cloaks or waterproofs hastily
+donned and through which are glimpses of pink stockings. They have
+hair of that disagreeable butter color which speaks of peroxide. There
+has been a raid on a west-side street of a house of ill repute. Some
+testimony is given and the older woman, the "Madam" is held in bail
+for the action of the Grand Jury while the rest are held for further
+evidence. The judge tells us there will probably not be enough
+testimony and they will be released in the morning. But unless bail
+is found they will spend the night in cells.
+
+A nervous, excited woman comes in--two policemen are with her. She has
+been arrested for disorderly conduct on Sixth Avenue near Thirty-first
+Street. She has been fighting with a man who has also been arrested
+and taken to the men's Night Court. Hers is a hard, tough face of the
+lowest type.
+
+"Why should you try to scratch the man's face? What did he do?" the
+judge asks. "Is he your husband?"
+
+"My husband, your Honor? Yes, I guess you can call Al that. We lives
+up town and when I went out he says to me, 'Hustle, kid, you got to
+hustle, the rent's due and if you don't get the money I'll break your
+neck.' The slob won't work. Well, a night like this you couldn't make
+a cent and I only had half a dollar and I wanted to get a bite to eat.
+I hadn't had a thing since four o'clock, and then I met Al going down
+Sixt' Avenue an' he tries to swipe me fifty cents off me and I was
+that wild I wanted to tear him. I'm sorry; I guess it was my fault. I
+don't want to see him jugged, so please let me off, your Honor, and I
+won't make no trouble."
+
+"Take her record," said the judge, "and hold her as a witness against
+the man."
+
+A string of women are brought in for sentence who have been having
+finger prints taken in the adjoining room. The judge proceeds to
+impose sentences according to the previous records which are shown.
+Some of the women are those who have passed in front before. The
+little bedraggled woman with the red feather has been arrested seven
+times in sixteen months. Another has spent eight weeks in the
+workhouse out of a period of seven months; another has been sent
+already to the Bedford Reformatory; another has been twice to houses
+of reform. Before the judge gives his sentence he refers the prisoners
+to the probation officer, who talks with them in a motherly way.
+
+After talking with the little prisoner she addresses the judge. "She
+says its no use, your Honor, she does not want to reform--it will not
+be worth while to put her on probation."
+
+"Committed to the Mary Magdalene Home," says the judge, and the name
+brings a startling surmise as to what He of Galilee would have said.
+
+The foregoing is only a typical session of the court. Night after
+night, from eight o'clock until one in the morning, the scene is
+repeated. The moral effect and its reaction upon those who conduct the
+proceedings--the judges, officers, and the police, cannot but be
+deplorable; the evil done to those forcibly brought there could not be
+over-estimated.
+
+Substantially the law is that the women may not loiter in the streets
+nor solicit in the streets, or in any building open to the public.
+They may live neither in a tenement house nor in a disreputable house.
+The law makes it a crime for the women to walk abroad or stay at home.
+Their existence is not a crime, but only in an indirect way the law
+makes them outlaws. Anyone wishing to prosecute or persecute finds it
+easy to do so. The worst enemies of these unhappy women are to be
+found, curiously enough, among both the best and the most evil people
+in the community. The unspeakably depraved are the men who, either as
+procurers, blackmailers, or the miserable men who live on a share of
+their earnings. The excellent people who oppose any remedial
+legislation which might relieve the situation, seem equally
+responsible for the present condition, however well-intentioned they
+may be.
+
+One effect of the present system is the practically unchecked
+transmission of disease. A reform in this direction would not solve
+the basic problem, for there would remain full opportunities of
+blackmail and extortion, but it might still remove a menace to the
+health of the community which is probably more serious than
+tuberculosis.
+
+A statute to this end was enacted in New York State a few years ago:
+an act for the medical examination of the women. It was declared
+unconstitutional because of one word. It should have read, "the judge
+may"; instead, it read, "the judge _must_." Far more difficult to deal
+with is the opposition of the people who believe that the moral sense
+of the community would be jeopardized by any laws suggesting that
+prostitution is unavoidable.
+
+In ironic contrast to the failure of legislation to prevent the spread
+of disease, is the success of an ill-advised statute making adultery a
+crime. Under it, a married man having relations with a prostitute and
+the woman herself, are subject to criminal prosecution. It affords a
+fresh field for extortion, how largely used it is impossible to say.
+
+The history of the passage of the adultery act presents one of the
+most ghastly jokes ever perpetrated by a State Legislature.
+
+For years such a bill had been introduced in the New York Legislature
+and had been passed by either the Assembly or the Senate without
+comment and then quietly killed in the other house. It was obvious
+that such a law could not be properly enforced and its blackmailing
+possibilities were manifest, yet no one, not even Governor Hughes, who
+was then in office, could be openly opposed to its passage.
+
+The tender morality of the community would not allow a public
+discussion.
+
+It was said, at the time, that when the representative of a society
+for the suppression of vice called on one member asking him to
+introduce the bill, he declined to do so on the ground that he
+represented a Fifth Avenue District and it would make him too
+unpopular among his constituents. When the bill had been introduced by
+another member and came up for final passage, it was decided, since
+Governor Hughes had vetoed many political bills of members of both
+houses, to put him in a dilemma. If the bill were presented to him he
+would have to sign an absurd statute or declare himself the friend of
+unrighteousness. He signed it and the bill became a law. Since its
+enactment there have been ridiculously few convictions under it.
+
+The successive carelessness, timidity, and levity of the Legislature
+is depressing, but there is an encouraging increase of interest on the
+part of the public. The average man is not merely interested in the
+problem; he appears to take the sensible view that the "social evil"
+is not so much a moral question as a condition, a problem to be met
+like other problems. We have become less concerned with the private
+morals of our fellow citizens than with their health, safety, and the
+prevention of unnecessary suffering. We perceive that the courts are
+only our agents and are not directly responsible for what they do;
+they are following instructions given by our ancestors and which we
+have neglected to abolish or modify.
+
+The visitor leaves the Night Court with a strange sense of having his
+social values overthrown. He feels almost sympathetic with the women
+whom he has seen. They may be offenders against morals and the social
+order, but they are human beings over whom the waters of civilization
+seem to sweep with relentless flood. The frightful waste of life and
+energy seems inexcusable. And it is as though some mill dam had burst
+and was flowing in a terrific torrent down a river bed along which a
+few are drawn white and drowned.
+
+The ordinary man knows that the women who go under are such a small
+proportion of those who escape, that it seems either a ghastly joke or
+a terrible tragedy. The whole paraphernalia of the court-room merely
+accents the contrast between those who are caught and those who go
+free.
+
+But all criminal courts are always unpleasant. And humanity if seen
+only in the setting of a criminal trial would be a discouraging
+object. Turning to the more civil court, we find an almost equal
+unfitness between the courts and modern conditions.
+
+
+
+
+II
+
+THE CIVIL COURT
+
+
+In a twenty-four-story office building, on a smooth gliding elevator,
+up seventeen stories, down a low-ceilinged corridor, past fireproof
+doors labeled: "Clerk's Office," "Judge's Chambers," "Witness Room,"
+we find the typical modern court. The old idea of a very
+pseudo-classic courthouse on a placid village green to which the
+neighboring county squires have ridden, and where the jail is in the
+cellar and the town recorder in the attic, is fast disappearing. The
+old courthouse in the city, of red sandstone with battlements and
+turrets, minarets, and a clock tower, seems out of date.
+
+The white marble palaces of the higher courts wherein broad stairways,
+paneled mahogany, stained glass, and soft noiseless carpets giving an
+air of repose and refined culture, are not altogether consistent with
+the modern spirit. The man on the street does not understand whether
+the marble statues on the roof are symbols of justice or late
+presidents of the United States. The usual courthouse of twenty years
+ago was a mixture of armory and Gothic church.
+
+In the larger courthouses where there are many terms or parts in one
+building, there is an air of confusion. Rotundas, corridors,
+stairways, and elevators are constantly filled with a moving crowd of
+lawyers waiting for their cases to be tried, clients who have had
+appointments, witnesses who have been subpoenaed to come to court
+and when they get there find it is not one court, but thirty. The
+latter are found wandering dazedly about asking anyone who will stop
+to listen if they know in which part the case of Martin _vs._ Martin
+is being tried. Lunch counters, telephone booths, and a feeling of awe
+are in the building.
+
+What that terror of a court of law comes from is difficult to analyze.
+There is the impressive majesty of the law; always about a court is
+the inspiring sense of something more than human. Even an empty
+court-room is not as other rooms. Like an empty theater there remains
+an atmosphere of glamour, of mystery, and yet equally true there
+remains a substantial, strong odor of crowds.
+
+It is said that every theater retains its own peculiar smell. The
+scientific investigation of the psychology of odors is too subtle to
+be understandable. The question of analyzing the exudations of a
+nervous crowd seems interesting, but the remembrance of an anxious
+humanity is always present. In former times the attendant placed a
+small bunch of herbs and aromatic flowers on the judge's desk, and
+glasses of the dried bouquets remained in a row for long periods.
+
+Hygienically considered the courts are unsanitary. If the windows are
+opened the cold air is apt to draw directly on the heads of the jury
+and the stenographer. In summer the noise of city streets, the cars,
+the elevated, the cries of children, the hand-organs, the flies, are
+not at all conformable to the supposed dignity of the court. It is
+well-known that the crowded and unhealthy conditions of the courts are
+conducive to disease as well as discomfort to the inhabitants.
+
+The connotations of the name court are generally impressive. There is
+the suggestion of jail, of punishment, of something final, of absolute
+judgment. Also it suggests the courtyard of a tenement house, an
+alleyway or something shut in and confined. The philology is from the
+old French cort or curt. It is curious that it means something narrow.
+There are the suggestions of the lists, of heralds, of trumpets, of
+banners and knights in armor, of prancing steeds, of fair ladies
+watching, of joust, tournaments, and trials by battle. There is
+something royal about the word. We think of pomp and magnificence and
+purple robes, of kings on their thrones, with courtiers standing
+about. The conception of Diety to the simple man who visualizes,
+immediately takes on the form of a court. We speak of the Courts of
+Heaven. The pictures of Godhead represent him as sitting in the center
+on his raised throne with the surrounding tiers of attendant angels.
+
+The modern court-room is only an adapted continuation of a medieval
+idea. On the raised dais under an unsanitary and dusty canopy of green
+plush sits the judge; instead of a sceptre he holds the gavel. This
+gavel, by the way, is falling more and more into disuse. As a symbol
+of authority, a little wooden hammer has become a trifle ludicrous. If
+a judge were to shake it too violently there might be a fear on the
+part of those watching that he was about to throw it at the spectators
+or at one of the arguing lawyers.
+
+The judge sits at an imposing high-railed desk with standard lights at
+either corner. The top of the desk is usually above the level of the
+eyes even of the lawyer standing. This is an arrangement which is
+conventional and convenient; it would not be consistent with the
+majesty of the law if the judge should be discovered writing a
+personal note or taking a glance at the stock market reports in the
+evening paper.
+
+The judge's chair is ordinarily a revolving one with a dip backward.
+Stationary chairs are trying, for those who have to remain quiet for
+so many hours at a time, and the swinging back and forth and twisting
+about gives a little relaxation.
+
+In front of the judge's dais are the counselors' or lawyers' tables,
+and at one side in front and below usually another table for
+reporters. It is somewhat like the arrangement in baronial halls where
+there was an upper and lower table and some sat below the salt and
+others above.
+
+On one side, opposite, but not as high, is the jury-box. This is a pen
+with twelve seats within a high-sided inclosure like an old-fashioned
+pew. What the object of the inclosure may be is uncertain, unless it
+is a relic of a time when it was necessary to imprison the jurors.
+Jury duty has doubtless always been arduous and disagreeable, and in
+earlier days men were probably as anxious to escape serving on the
+jury as they are to-day. In one of the courts, which was not supposed
+to be for jury trials, twelve men once sat on a case without any
+jury-box in plain chairs and at the side of the room. They were
+extremely uncomfortable themselves; their legs were exposed and they
+seemed shockingly unconventional.
+
+Between the judge's desk and the jury-box is the witness chair, an
+ordinary chair placed not quite so high, but beside the judge's and
+where he can look down on the witness. The position of the witness
+chair may be accountable for the feeling of protecting the witness
+that exists in the minds of the judge and jury. There is a natural
+sympathy for him, as though he were being attacked by the examining
+counsel. The witness in former times stood in a little enclosed box
+and in Italy, where court scenes are more intense, the prisoners to
+this day in criminal trials testify from behind iron bars.
+
+Below the witness chair is the stenographer. The former idea of the
+aged scrivener or court clerk with white hair and green eye shade has
+vanished. The modern stenographer, who keeps the record of a trial, is
+probably an energetic young man, who has passed high on the civil
+service list, knows something about law, is studying for a better
+position, or is connected with a very profitable stenographers'
+business on the outside.
+
+The court proper is divided from the rest of the room by an iron or
+wooden rail guarded by a jealous court attendant, who is always a
+strong advocate of court etiquette and very properly maintains the
+dignity of the court. He is in uniform with a shield or badge of
+office conspicuously displayed and being taken from the civil service
+list whereon war veterans and retired firemen or policemen have a
+preference, is generally of a certain age. Naturally, being old and
+having to stand so much, he has tender feet, and with the customary
+effects of all secure and salaried positions, acquires both a slow and
+shuffling gait and the ordinary characteristics of his class. He is
+subject to many petty annoyances, foolish questions, repeated
+inquiries, people talking or arguing, little disorders pursue him on
+every hand.
+
+The object of the attendant in the court is to maintain order and
+preserve dignity. They are almost avid in their pursuit of the
+ignoramus who comes in with his hat on his head or covers himself on
+going out before he reaches the door. Their salaries are not large but
+their duties are not arduous. They may seem solicitous to the judge
+and sometimes overbearing to the litigants and lawyers, but they are
+only in the position of the supes or ushers in the theater. Yet they
+are understanding and wise as regards the human drama constantly
+played before them.
+
+The lighting of the court-room is unusually dramatic. There are no
+foot-lights, but the best theory of stage lighting is that there
+should be none. One of the most effective scenes in the modern
+theater is the court setting in Galsworthy's _Justice_. The lighting
+is indirect and the spots of red and green lights at the judge's desk,
+the corners of the jury-box and the shaded ones at the clerk's elbow,
+give a remarkable impression of mysterious terror.
+
+Whatever may be the cause, there exists a marked resentment against
+the courts. Not only is there a complaint as to the cloying
+technicalities of procedure, the long and fatal delays of the law, the
+absurd forms and mannerisms of the trial, but underneath them all a
+fundamental distrust of justice itself. The complaint is heard of the
+inequality of justice. That there is a law for the poor man and
+another law for the rich. The stage gives expression to the feeling,
+and modern literature voices it. The high-priced millionaire escapes
+and the low-browed pickpocket goes to prison.
+
+Cases are cited where the rich woman returning from a debauch of
+European shopping with a few thousand dollars' worth of pearls sewed
+in the lining of her winter bonnet is only fined, whereas the little
+milliner from the lower end of the city is sent to jail for trying to
+smuggle in a new coat. The impressario of art collections is caught at
+a gigantic scheme for defrauding the government of thousands of
+dollars on imported pictures. He hobbles into court and on the ground
+of ill health escapes a prison sentence and is merely fined, while the
+little Italian fruit vender is summarily jailed for bringing in a few
+dried mushrooms. The high financier who wrecks a railroad or a bank
+serves a light prison term and emerges like a phoenix to buy new
+steamboat lines or float new enterprises. But the peddler on the East
+Side who sells a few dollars' worth of stale fish is punished to the
+limit of the law.
+
+The facts exist and to the popular mind seem unexplainable. There
+undoubtedly must be a reason, and what it is, is not hard to find. It
+seems one of the mysteries of judging and of justice, as though there
+were an unwritten law in the back of the human mind in favor of
+property rights. There is an explanation and not an inequality of
+justice. The facts are not as they are popularly stated or supposed to
+be. The public gets only a portion of the picture, and from an
+enormous group of cases, a few contrasted ones are picked out for the
+sake of the dramatic effect. The limelight of public notice is upon
+them and the softer lights and shadows are omitted. The public does
+not see the gradation. On the one hand we see the rich woman, the
+millionaire art dealer, the financial pirate being leniently dealt
+with, on the other hand we see the little milliner, the Italian fruit
+vender, and the peddler receiving harsh sentences.
+
+The sharp contrasts make good newspaper stories that are appealing and
+touching. What the public does not see is the whole picture of all the
+cases of alleged inequality that come into court. These are only six
+out of seven hundred cases, chosen because they are melodramatic.
+There were nearly seven hundred other offenders that were let off
+with suspended sentences or light fines, of whom nothing is heard,
+but these three are conspicuous on account of their wealth, and the
+cases of the milliner, the mushroom vender, and the peddler are
+reported for the same reason--of being conspicuous. They are unusual
+on account of the sentences. The harshness of their sentences is
+remarkable. There may be special reasons. The six hundred and
+ninety-odd who are punished lightly in the same way as the rich man
+are not noticed.
+
+As a matter of actual experience, the rich man has a harder time in
+court than the poor man. The inequality of justice, if there be any,
+is rather against him. Because he is rich and notorious the public
+prosecutor cannot let him off. If, for example, a poor man who is
+undoubtedly insane, commits a murder he is not tried, but is sent to
+an asylum for the insane. If, after several years, he recovers and is
+released, nothing is said about it; the public does not know. But let
+it be a rich lunatic and the public prosecutor is bound to bring him
+to trial. Public attention demands it. He may know him to be insane,
+but he must still prosecute him. The jury declare him insane. After
+years he is released from the asylum, the public thinks it a
+miscarriage of justice, forgetting in the meanwhile the inconspicuous
+poor man who unnoticed has gone through the same experience, and been
+released years ago.
+
+The delays of the law are partly due to the system of courts and
+partly to the dullness of court procedure. The inefficiency of the
+system of courts and judicial procedure is shown in the practical
+workings of the civil courts of New York City. The antiquated
+organization of all the courts is like a patchwork quilt where each
+additional one has been added or increased as New York has grown from
+a village below the Indian stockade at Wall Street to its present
+size. So that there exist within the city limits now seven different
+kinds of civil courts and five kinds of criminal courts, in nearly
+each of which there is a separate set of rules, different customs,
+and distinct methods of procedure, and of them all the most technical
+and the most complicated are often those where they should be the most
+simple and easy of understanding.
+
+Wherever the court may be the surroundings are substantially the same.
+The scene is laid and the carpenters have left. The spectators have
+found their places. The stage is empty however, there is a sudden
+bustle and shifting of feet, a rumor has gone abroad that something is
+about to happen. The court attendants take their places. One of them
+straightens up and with a commanding voice cries out: "Gentlemen,
+please rise. Hear ye, hear ye, all persons having business draw near
+and ye shall be heard." Enter his Honor, the Judge.
+
+
+
+
+III
+
+THE JUDGE
+
+
+With a rustle of his gown and a bow to the court-room the judge takes
+his seat on the bench. The trivial pleasures of being heralded and
+having the spectators rise when he enters have lost their charm, but
+he would feel uncomfortable without them. The gray-haired clerk hands
+him the list of the cases for the day. The anxious court attendant
+asks if he shall open a window. The judge sniffs audibly and orders
+the steam heat to be turned off. The court attendant does so and
+brings his Honor a glass of water. When the judge sits down in the
+revolving chair he is on the bench and the court is in session.
+
+The fact of the matter is the judge is a pretty decent sort of person.
+The trouble is that the surroundings are all against him. In the
+first place his whole job is one that makes him live up to a part. For
+five or six hours a day he has to sit still in a stuffy court-room on
+a leather chair under a silly canopy of wood or plush and pretend that
+he is the whole thing, that he knows it all, and that whatever he
+decides is absolutely right. Let him waiver or be uncertain in his
+decisions and woe is it to him. No one thinks much of a judge who does
+not know his business or at least does not pretend to know it.
+
+How anyone who has been long on the bench can retain any sense of
+proportion is remarkable. Whatever he says and does in court is final
+and apparently approved. If his decisions are reversed they do not
+affect him seriously; he has tried so many cases that were not
+appealed, and the greater proportion of those that have been are
+affirmed. The reversal comes a long time after and does not hurt his
+feelings. In any event, he was trying to do the best he could and
+human nature may be fallible, although, as far as he can see, the
+whole world of the little court-room where he sits has conspired to
+show him that he is divinely endowed.
+
+His position is not exactly one of bluff, but he is the central figure
+of the stage; like the actor's profession the judge's job makes him an
+egotist. Take for example the essential elements of his knowledge of
+the law. He is the _Jus Dicens_, the one saying the law, the name of
+judge being derived from the two Latin words. He is supposed to know
+the law, at least he ought to know court procedure, and the law of his
+State thereon by heart. In New York State, for example, the Code of
+Civil Procedure is five hundred thousand words long. He is bound to
+take judicial notice without being told of all the statutes of the
+State Legislature, which are being passed at the rate of six hundred a
+year.
+
+He is also supposed to know the laws of the United States passed at
+Washington, and to be thoroughly familiar with the latest decisions of
+the Supreme Courts of the United States, and those for the past 125
+years. He must understand and look as though he knew beforehand any
+decision of the courts of his own State cited, which are conveniently
+and neatly printed in 219 New York Court of Appeals Reports, 173
+volumes of the Appellate Division Reports, and 96 volumes of the
+Miscellaneous Reports, to say nothing of the opinions and decisions of
+other courts that are not printed at all. His knowledge of the law is
+a fearful and wonderful thing; he must have an oceanic mind.
+
+It is told that one of the leaders of the bar had formerly a young man
+in his office who with advancing years and reputation was elected to
+the bench. Before the first of January when he was to take his oath of
+office, the old employer and friend sent for him. When he arrived he
+was greeted as follows: "Joe, I've sent for you because I wanted to
+see you before you become a judge. I am very fond of you and I wanted
+to see you once again as you were, because after you go on the bench
+you are bound to become a stuffed shirt, for they all do."
+
+That so many escape is one of the wonders of human nature. That they
+retain their humanity is due to a disposition of Providence to temper
+the wind to the shorn lamb. The position necessarily takes away all
+initiative. In politics the judge is recognized as being a "dead one."
+After a few years on the bench only the exceptional man can fling off
+the shackles of his profession and get back into real life. He ceases
+from fighting, he is not energetic.
+
+As a good judge he must be firm but restrained. He may not be too
+emphatic. Every inducement is toward making him lazy, fat, and easy.
+Before him everyone bows and waits for him to speak. He is the
+absolute boss within the four walls of his court-room. The only
+restraining influences are the reactions from the lawyers and
+spectators who are before him. Their opinions can not be openly
+expressed; they are reserved until afterwards. If a judge really has
+any idea of the high esteem in which he is held, let him find out what
+is being said of him after the case is over, as the clients and
+lawyers are going down in the elevator, or what the rear benches have
+been whispering.
+
+He probably has a suspicion of this, but no matter how tolerant he
+desires to be, there is the temptation to show that his authority is
+supreme; that when the lawyers begin arguing a point on which he has
+formed an opinion to cut them off; when the witness is trembling on
+the stand as to whether the accident happened on a Thursday or a
+Friday, to ask her, "Don't you know that Thursday was on the 16th of
+April last year," which of course she does not. There is the
+temptation to feel that he can never be wrong; that a question may be
+reargued, but that he is not going to change his opinion.
+
+The possibility is that the judge is a mild sort of bully. But it is
+not always safe to go on the assumption that being a bully he is also
+a coward. He may be, but on a trial the odds are too much in his
+favor. If the lawyer wants to fight the judge, he has a great deal at
+stake; he may awaken so strong a prejudice that the judge knowing the
+rules of the game better than he does, may beat him on a technicality.
+On the other hand it is a mistake for the lawyer to be subservient and
+too cringing. Being a bully, the judge is apt to take advantage of his
+position. The best policy is to appeal to his human instincts as a
+man. He may be decent in spite of critics of the courts to the
+contrary notwithstanding. If he is kindly treated he will respond.
+
+In New York judges were appointed until about 1846, when there was a
+popular upheaval and the constitution was changed, and they have ever
+since been elective, with the exception of some of the minor courts.
+The advantages of the two methods is an open question. The arguments
+in favor of appointment are that it makes for an independent judiciary
+and that it secures better men for the bench, whereas the other does
+not, because the highest class lawyer will not go through the turmoil
+and supposed degradation of a political campaign. These arguments are
+not sound.
+
+The argument for the election of judges is that it keeps the bench
+more humane, modern, and in touch with the will of the people. The one
+is the aristocratic idea, the other the democratic. A court as at
+present constituted is an autocratic institution but the judges should
+be democrats. A feeling prevails that the man who has gone through a
+course of political sprouts involving the training of election
+campaigns, is more understanding of the wants of the people whom he is
+to serve, also that courts should be arranged on a business basis.
+
+An amusing aspect of an elective judge is that he is in an anomalous
+position. If he plays politics, endeavors to make friends either by
+his decisions on the bench or obeying the mandates of a superior
+political boss as to appointment of referees and receivers, he
+immediately becomes a corrupt judge. The stench of his unjust
+decisions will sooner or later come to the nostrils of the community
+and his chances of reëlection are forfeited. He runs the hazard of
+charges and removal.
+
+If, on the other hand, he forgets the organization that has elected
+him either in the matter of patronage or the refusal of some desired
+court remedy, and so conducts his court that there shall be neither
+fear nor favor, he is a political ingrate and deserves neither
+reëlection nor promotion. Of course these are the two extremes;
+fortunately human nature is not what the sociologists and political
+theorists would make it.
+
+The political boss is not the unscrupulous ogre that the
+muck-rakers picture. He does not order the judge to decide the
+hundred-thousand-dollar-contract case in favor of his hench man. He
+might like to have him do so but he does not ask. Neither does the
+judge lean over backwards in the other direction and imprison the
+contractor because he is a friend of the boss. The movements for the
+non-partisan election of judge show the recognition of some of these
+incongruities.
+
+The fierce bright light that plays about a throne also makes the judge
+conspicuous. If he sneezes, if he coughs, if he takes a glass of water
+he is probably feverish and cross. If he keeps still he is going to
+sleep and not paying attention. If he gets up or sits down it is noted
+as indicative of how he is going to decide the case. Every movement is
+watched. The position of a judge is not enviable. He is the concrete
+object to which the evils of the court-room attach. To the popular
+mind he is the court, the law, the method of procedure, the source of
+all the technicalities, and the delays. The beaten side will bear him
+a grudge, and the winning side think they ought to have got more.
+
+If he be lenient in interpreting the law, he may be called to account
+for inability; if he be too strict, he is accused of irritability. If
+he be too polite, he may seem to be extending favor. A justice of one
+court, wishing to be kind, once asked a young counselor whose case had
+been dismissed through a technicality to come up and sit on the bench
+with him. The young man afterward complained to his friends that the
+judge wanted to shame him and make him conspicuous.
+
+There are few judges who dare to cut short the examination of a
+witness, although the length and direction of a trial are supposed to
+be within the discretion of the judge. He is hindered by the
+technicalities of those who insist, hoping for a reversal on appeal,
+and sometimes the same technicalities are used to prevent the actual
+facts being brought out. The solution probably lies in extending the
+powers of the judges over the conduct of a trial.
+
+He has a position of interest and authority and one that commands
+respect. In England he dresses for the part in silk stockings and is
+next to the king in importance or about equal to a bishop. In Germany
+he is a little better than a Herr Pastor or a doctor, but inferior to
+a young lieutenant in the army. In France the salaries of the judges
+are pitiable. The highest, the president of the Cour de Cassation,
+gets $5000 a year and the lower judges only a few hundreds, with no
+possibility of earning anything by practicing law, but there the
+judges are persuaded to take out the balance of what they should have
+in salaries in the honor of their position.
+
+We are so shockingly frank and matter of fact, that we believe that
+the conventionality of pomp and circumstance have been too much
+regarded in courts and court procedure, that dignity is not
+accomplished by wearing a wig, knee breeches, or gowns of ermine and
+silk. It is consistent with a plain-spoken people to feel a contempt
+for state and symbols. Any attempt to return to the conventionalities
+of Europe is met by the contempt of a democracy.
+
+In rebelling at form we have been so occupied that we have not been
+awake to a change in substance that has been demanded by modern
+conditions. The courts are gradually reaching a simpler basis.
+Formerly they may have been surrounded by more pomp and magnificence,
+but the work is now being better laid out and the course of the
+proceeding is on more modern lines. Changes in practice acts will
+revolutionize trials. People smile at the dignity of their courts and
+judges. The modern spirit is for greater frankness, simplicity, and
+directness.
+
+If he is a sane and reasonably simple man the judge tries to do his
+duty according to the light that is in him. He knows some law, has
+seen a quantity of human nature and passions flowing before him. The
+court-room, his position of authority, the respect of the community,
+the human drama, the abstract and intangible demand of something above
+the actual awakens in the judge that passion for justice which is a
+quality almost divine. The man himself becomes patient, understanding,
+and humane. Nearly every man, no matter how small he may be at the
+beginning, rises to the responsibilities of his position. So it is
+with the judge.
+
+It is undecided whether the judge is entitled to more respect from the
+lawyers and laity or whether the laity is entitled to more respect
+from the judge. The judge sits indolently crumpled up in his easy
+chair; before him a leader of the bar is arguing. In an eloquent
+manner he is pleading for a young attorney who is about to be punished
+for "Contempt of court."
+
+"And so your Honor will realize that in the heat and excitement of a
+trial, in the turmoil of the legal battle, in the intensity of a
+forensic struggle, the young man may well have forgotten the respect
+and deference which is ever due from a member of the bar to the
+representative of high-minded justice."
+
+The judge seems unaffected by the appeal. The young man had been rude
+and impertinent, the fine of $250 must stand as punishment for his
+misbehavior.
+
+Suddenly the pleader with a wave of his hand and a twinkle in his eye
+says: "Look at the difference between the position of a lawyer who,
+alert with restless energy, momentarily forgets his manners in
+fighting for his client, and on the other hand the calm"--pointing to
+the judge who is still half reclining in his chair--"the calm, I
+repeat, of complete judicial repose."
+
+There is a smile through the court-room. The judge straightens up,
+sees the humor of the situation, and the fine is remitted.
+
+There is a constant play of opposing influences upon the judge. As an
+upholder of the law he becomes a formalist and a reactionary. The
+insistent demands of humanity which the statute law can never satisfy,
+tend to make him a revolutionist. The saving element for him is that
+he is only a part of a system for which he is not responsible.
+
+When the judge has had the list of cases for the day called and has
+disposed of the applications for adjournments, he turns to the clerk
+who begins to call the roll of the men who are to act an important
+part on the stage--the jury.
+
+The solution of the matter so far as the judge is concerned is to give
+him greater power. Let him be absolutely responsible for the conduct
+of a case in court. His position should not be that of an umpire who
+remains quiet until a dispute arises, but rather that of a head
+enquirer into merits, assisted by the two lawyers and the jury.
+
+
+
+
+IV
+
+THE ANXIOUS JURY
+
+
+The main characteristic of the jury is that it does not want to be in
+court. The name comes from the French word _Juré_, sworn, or the man
+who has taken an oath. There is probably no reason to suppose that the
+word is derived from the state of mind in which a juryman finds
+himself, nor does it mean the words he has expressed with reference to
+his duty: more properly it is the men who are sworn to do justice. The
+implication of the word serve is that there is some punishment or
+penalty attached to jury duty. It is not regarded as penal servitude
+by the average man, but it seems near to it. While he is serving, his
+business goes to pieces, his wife misunderstands why he does not come
+home to dinner and his whole life is disarranged. When a man has
+served on a jury he gets a discharge paper.
+
+Jury duty is one of the obligations of citizenship and its highest
+duty; at the same time it is one of its privileges. Foreigners and
+idiots cannot serve. Doctors, soldiers, journalists, clergymen, and
+others, besides those who are deaf, blind, or otherwise disabled, are
+exempted. The experience of serving on a jury may be annoying but it
+is broadening and gives an opportunity of seeing human nature in a way
+that few appreciate. To serve on a jury is to become a part of the
+judicial system of the State and for the time being to belong to the
+governing class.
+
+"All day long," says the court officer, "they do nothing but grumble
+and grumble at being kept away from their business but when they get
+chosen on a case, they realize it does not do any good so they settle
+down to do what is right." The country man may not have much to do and
+may look on jury duty rather as a diversion or vacation from farm
+work but the average town man feels the $2 a day he receives is only
+lunch money compared to the amount he is losing in his business, and
+so he hates it.
+
+The first warning of trouble that a juryman gets is when he comes home
+and finds that a policeman has been looking for him. It is to be hoped
+that he has a guiltless conscience. He inquires further and learns it
+was only a court officer summoning him to court for the trial term
+next month. His first concern is to see what can be done in a
+political way. If he belongs to the local club of the district--but
+here let the curtain be drawn. Besides he may accomplish very little,
+so many of the judges do not seem to remember their political
+obligations. Then he tries to reach the judge through a friend and
+when that fails he makes his way resignedly to court on the appointed
+day.
+
+When he comes there for the first time he smiles at the court
+attendant and tries to make friends, but the court officer who has
+been there many times before is not at all susceptible. Perhaps he
+hurries around to the judge's chambers and manages to see the judge's
+secretary, who is sympathetic over the fact that the month is December
+and the busy season of the year in the florist business and that there
+is only one assistant in the shop, but the judge is busy and will only
+see him from the bench. Finally he goes into court and waits for his
+name to be called.
+
+After the roll call, he goes timidly up to the rail and stands there
+waiting until his Honor will take notice of him. His Honor is busy
+blowing his nose or signing papers. Finally the court officer points
+him out. The judge scowls and asks him what he wants. Tremblingly he
+explains his difficulty: that his business needs him or that his wife
+is sick and that he will serve any other month if he can be let off
+now. The judge reads him a lecture on the duty of citizenship and the
+responsibility of jury duty and says he is sorry that he can not
+excuse him.
+
+Afterwards when the judge finds that there are enough jurymen in court
+for the needs of the calendar, he may privately send word to the
+juryman by a court attendant that he is excused for the term or for a
+few days until the Christmas rush is over or his wife is better.
+Judges are often humane, but if they were to excuse the juror openly
+they would find all the others in court clamoring for the same
+exemption. If the juryman merely wants to dodge the duty he probably
+does not get excused. The judge seems surprisingly intelligent and
+discriminating and able to pick the sheep from the goats. The man who
+merely wants to escape serving usually has to, and the man on whom it
+is a hardship is sometimes let off. Uniformly the jurymen feel that it
+is a necessary evil, but not so bad when they are once in court.
+
+Until a case is called for trial they sit about the court-room or walk
+in the corridors. In the meanwhile, the judge is arranging the
+calendar, and they have been watching the maneuvers of the lawyers to
+have their cases put off, or they may have seen the amusing little
+by-plays when one lawyer crosses the aisle of the court-room,
+button-holes his opponent, and whispers something to him. The other
+lawyer motions to his client and the party moves to the hall where
+there is a secret conference about a proposition of settlement.
+Something is agreed upon or they may not come to terms and decide to
+go on with the trial. If there is to be a settlement the two lawyers
+walk up to the rail and say:
+
+"Will your Honor excuse us if we interrupt and mark the case of Allen
+against Brewster settled." The judge smiles with pleasure; he does not
+mind at all being interrupted for that purpose. He is pleased to have
+one more case off the score.
+
+When the time comes for the selection of a jury they wait for their
+names to be called with the thought that the axe is about to fall. As
+they are examined they answer the questions of their occupations and
+opinions truthfully, but if for any reason they are excused, they
+leave the box with a smile at those impaneled and a sigh of relief as
+at danger escaped.
+
+Like many honors, the position of foreman of a jury is an empty honor.
+He has the first seat and he heads the procession when the jury walk
+in and out of court; he also announces the verdict, but he has no
+actual power either in the jury-room or in the court. If there is a
+vote to be taken, he has no deciding voice, but in the deliberations
+he quickly falls to the level which his attainments justify.
+
+During the trial a feeling of resentment at court procedure grows. It
+is not the judge any longer who is keeping and delaying them. The
+witnesses appear like fools it is true, but the lawyers make them act
+more foolishly than need be. Why does the judge make such absurd
+rulings? The law must be an unreasonable thing and the judge evidently
+knows a great deal about it. Why can't the witnesses tell what they
+know? The most tiresome parts are when the lawyers begin arguing
+about the testimony. One side wants the witness to tell something and
+the other side does not. The judge keeps still and lets the lawyers go
+on talking as though it were something important, perhaps he can not
+help it. The lawyers or the judge can not have much to do. The judge
+it is true is paid to listen, but the lawyers must be pretty hard up
+when they will go on talking in that way. No juryman would stay here
+wasting his time during business hours, and afterwards there are the
+newspapers, supper, and taking the family to the movies, all of which
+is far more sensible.
+
+"Say, it's like a vaudeville show to see those two go on," thinks the
+juryman. "You couldn't beat it if you put it in an act. Georgie Cohan
+or Joe Weber could make their fortunes if they only hired the lawyers
+as actors or came into court for their material."
+
+Occasionally the judge calls the lawyers up to his desk and together
+they talk over something which the jury can not hear. The jury look
+as though they did not care. If they want to talk some more--well, let
+them. Perhaps they are planning some game, and the jury will wait
+until their turn comes. In the jury-room they can show them what's
+what; that is where they know their chance is coming. Even if the
+judge is only trying to find out something about the case, that is a
+sensible thing to do. Why don't the lawyers come over and talk to the
+jury like that? In a few minutes they could ask them some questions
+that would settle the whole matter.
+
+The strange part is when a witness has said something and told how he
+or she feels about the whole case, which is exactly what the jury want
+to know, one of the lawyers jumps up and says he moves to strike that
+part all out and the judge strikes out. The lawyer having scored a
+hit, then says:
+
+"I ask your Honor to instruct the jury to disregard the testimony just
+given."
+
+"Gentlemen," says the judge, "the evidence just given has been ruled
+out by the court and is not relevant to the issue, and I must instruct
+you to disregard these words of the witness and in arriving at your
+verdict not to consider them."
+
+Of all the absurdities that happen in court, the jurymen think that is
+the worst. Does the judge or the lawyer believe for a moment that
+because they say so the jury are going to forget what the witness
+said, especially when it was the very thing they wanted to find out?
+They watch the stenographer and they notice he does not even take the
+trouble to cross it out of the notebook.
+
+Occasionally a juryman becomes particularly interested and wants to
+question something. Usually he is too self-conscious to run the risk
+of being snubbed, but sometimes he is bolder and ventures a question.
+
+"Why," asks the juryman, "didn't the defendant give back the goods if
+they were not what she wanted?" Both lawyers are on their feet. There
+is a mute appeal to the court; both sides are afraid to object to the
+question for they think the juryman may have a prejudice if he were
+stopped. The judge usually comes to the rescue and tells the juryman
+that he is sorry, but that his question is manifestly improper in
+form. The evidence should be whether the defendant did a certain thing
+or did not do it. The reason why he did it is not in point. After two
+or three attempts of this kind the juryman subsides and sits patiently
+through the trial without any suggestion. He thinks that there is a
+hopelessly complicated game being played before him and he does not
+attempt to interfere.
+
+There may be some truth in the theory of the attorney who says:
+
+"Always look out for the juryman who asks your witness questions. He
+is against you. If he absolutely believed the witness he would let it
+pass without questioning." This reasoning may be used as an argument
+either way, for if the juryman believes the witness he may feel that
+he should like to have him tell more. Or if he does not accept him as
+truthful, he thinks it will not be worth while to ask him other
+questions. An inference may be drawn as to the juror's attitude for
+and against.
+
+An inexplicable thing to the jury is when the judge takes the case
+away from them and directs a verdict or dismissal of the complaint.
+That the jury should be compelled to listen to all that mass of
+testimony and then at the end not have a chance to decide is
+unreasonable. If the plaintiff did not have a case, why did the judge
+let them go on? He should have found it out earlier instead of wasting
+all that time.
+
+After the whole case is in, it may happen that both sides move for a
+direction of the verdict and then the jury have nothing to do. The
+judge says:
+
+"Gentlemen of the Jury, I direct you to find a verdict for so-and-so."
+Before they have a chance to say whether they will or will not, the
+clerk announces a verdict for so-and-so. This is very annoying and
+discouraging, especially when the jury were going to find a verdict
+directly contrary to the way the judge decided. Technically they have
+a right to refuse to find a verdict as the judge directs, but if they
+did, only a mis-trial would result.
+
+It is an illustration of the difference between the function of a
+judge and a jury. The jury pass on the facts, the judge on the law.
+When the judge dismisses the case, he is saying that the facts may be
+so and what happened may be truly stated, but even then it does not
+make any difference. The law is that those facts do not make out a
+case. Only when the facts make out a case do the jury have any
+function. Then it is for them to find out whether the facts are as the
+plaintiff claims them to be or as the defendant. The jury are usually
+puzzled and do not understand the distinction. In certain cases the
+judge determines both the facts and the law and decides the whole
+matter. In those cases, and in what is known as equity, there are no
+jury, but a judge may always ask for a jury if he wishes one to
+determine the facts.
+
+A jury is supposed to be advantageous to the defendant in a criminal
+action and to the plaintiff in a civil action.
+
+"One judge is better than twelve," says the advocate of the non-jury
+system. "Law is a technical thing and you can not put a technical case
+plainly enough so that twelve men could thoroughly understand it."
+
+A discussion of the jury system is not in place. The jurymen have
+already been summoned and are in court and until the structure of the
+law is changed they will remain. They are ready to try any case that
+may come before them. The judge feels a sense of relief at not having
+to pass upon the facts. The law being laid down, all that remains for
+him to do is to see that the facts are fairly and plainly presented to
+the jury, that both sides conduct the case in a reasonable manner and
+that the trial be as open-minded as possible. The anxious attitude of
+mind toward the jury is that of the parties who are to be judged, the
+lawyers and their clients.
+
+The jury do not become very excited over the wrongs of one side or the
+other. They certainly do not enjoy the trial or look upon it as an
+example of a good fight although under the present system of procedure
+that is what it is supposed to be.
+
+
+
+
+V
+
+THE STRENUOUS LAWYER
+
+
+Of equal importance in the cast are the lawyers. They play the parts
+that represent action. The judge and jury are the heavy characters.
+The clients who make their entrances and exits as they take or leave
+the witness chair are of minor importance. The lawyers occupy the
+center of the stage the greater part of the time. Their clients sit
+watching, the judge and jury keep silent and listen to them.
+
+In order to make a trial or a contest there must be two sides. There
+may be three or more lawyers, but usually they divide themselves into
+two groups and take sides. The attacking party,--the plaintiff,
+complainant, or prosecutor,--naturally the more aggressive, and the
+man who is defending himself.
+
+The latter's lawyer is the one who is wary and alert. Sometimes the
+attacking lawyer having gained a position sits down and defends it.
+During the trial there is a constant change of attack, the taking of a
+redoubt, charges and countercharges, trenches captured and forsaken
+again. The intellectual and legal battle is as bitter as any physical
+one. To the understanding observer and the participant it is momentous
+and intense.
+
+While the contest is waging there is no intermission. The fight is
+always hot, keen, bitter. Quietly as the lawyer may handle himself,
+underneath his calm exterior he is ready to fight, bite, scratch,
+shoot, kill, slash, but always he must do so under the rules of the
+game, never hitting below the belt. What the battle is about is the
+issue, the result is called the verdict, or the decision, and the
+formal statement of the court as to the result the judgment.
+
+The contest is so real it soon ceases to be a play. It is too much in
+earnest and whatever humorous quality it may possess never loses the
+underlying intensity of human conflict. One noted trial lawyer says
+that he always feels the loss of a case in the pit of his stomach,
+another that he can never begin a trial without mopping his forehead
+for fear that beads of perspiration might be apparent. However
+ordinary and accustomed court trials may become to the participants,
+there will always remain the deep underlying stress of human passions.
+
+As lawyers are watched, they may appear alternately as jumping up and
+sitting down like jacks-in-the-box or those weather figures, where if
+one goes in the other comes out. Their appearance differs in the
+different courts from the higher courts where the well-groomed eminent
+leader of the bar, with thin lips and white side whiskers debates in a
+frock coat before the appellate court, questions of international
+importance, or the anxious-eyed little attorney where in one of the
+lower courts with a showy diamond ring and a handkerchief sticking
+out of his pocket in the shape of an American flag, argues, while
+chewing gum, whether his client shall pay the fourteen dollars rent or
+not.
+
+There is never any peace between them. Occasionally there is a truce
+when they come together to agree on a certain state of facts, or
+conclusions of law, but essentially they are at war; otherwise they
+would not be in court. The only reason for their being there is an
+issue to be decided.
+
+Often so eager do they appear that physical violence seemed impending.
+It is as though they were on the point of breaking into fisticuffs.
+The judge says: "Gentlemen, gentlemen." They appear like two naughty
+schoolboys who have to be controlled by their master. First one is
+restrained and rebuked, then the other is held strictly to the rules
+of the game. Like schoolboys, although they may be fighting one
+another, they appear at times to be in league against the judge. As in
+a baseball game, both sides join against the umpire. There is a
+common class feeling between the lawyers leaguing them against the
+judge. This may be explained perhaps by a rather subtle psychology.
+
+The lawyers are primarily in court to please their clients. Every
+ruling of the judge against them on even minor points of evidence, any
+adverse decision is fatal to them from the point of view of retaining
+the client for the next litigation. They watch the judge with
+lynx-like eyes. Is he going to drive the client away from them? Should
+he reprimand them or speak severely, their client would think that
+they had angered the judge and so they had lost the case. Defeat in a
+case is so important that if a lawyer loses a case he probably loses
+his client.
+
+In one of the lower city courts on the East Side, a young attorney
+came in one morning with a scar across his cheek, a scratch on his
+nose, and sticking plaster on his chin. The judge had often seen him
+before. After the case was over he called him to the bench and said
+that he was sorry he had an accident, and asked him what had happened.
+"Oh, not much," said the lawyer, "last week I simply lost a case for a
+client."
+
+The complaint of the lawyer against the judge is always that he has
+forgotten that he was a lawyer once himself. He does not realize how
+important it is that the lawyer should make a good impression on his
+client. His feeling is, if the judge cuts him off when he is arguing,
+the client will think that he is talking foolishly. The judge
+overrules his objection. The client thinks the judge does not like
+him. The judge denies his motion to strike out, he evidently does not
+look on the lawyer favorably. The lawyer's chance of display is in
+talking. If he is not allowed to go on he feels the judge is
+unreasonable in not listening to him.
+
+The nice lines to be made by the judge between consideration for the
+feeling of the lawyers and insisting that justice be fully and
+speedily accomplished, are hard to draw. On the one hand there are
+the courts where no limit is put to the digressions of attorneys and
+where they may wander on and on, apparently merely to display their
+oratory to their clients, and other courts where the undoubtedly bad
+manners of the bench to the bar are unforgivable.
+
+Control of the trial is necessary because it is a struggle in a court
+on a defined area. It is an intellectual ordeal by battle, a capping
+of intellects. It is like a game of chess in which luck is eliminated,
+the board is free, the pieces are equal, the way in which they may
+move is fixed by the rules of the game of court procedure. The element
+of chance is made not by the court or the procedure, but by the fact
+that the pawns, the castles, and the knights are not of ivory, but are
+human and mutable.
+
+The lawyers are discontented with the courts, while the judges feel
+that the deficiencies are the fault of the lawyers. The lawyers, they
+say, do not coöperate with the judges in the administration of
+justice, and are too busy with their own game. Here enters that
+academic question of whether a lawyer's duty is first to the court and
+justice, or first to his client,--should he defend a man he knows to
+be guilty. The dispute is sophomoric. He is the advocate of his client
+first, foremost, and all the time. That is the reason for his
+existence. He is the agent for his client; his tongue, brain, and
+energy belong to his client. He is undoubtedly justified in whatever
+he does, if he keeps to the rules. Justice is best promoted by heeding
+the rules of justice to the utmost.
+
+It is to be remembered that the lawyer occupies an uncertain position.
+As an officer of the court he is sworn to promote justice; as a
+champion in the battle he is under the deep obligation of performing
+his utmost for his client. At times the conflict between his duties
+seems real. As an officer of the court he has the privilege of the
+floor. He can be heard and is admitted to the court. It is as though
+he had joined a club in which dueling or gaming is permitted. The
+obligation resting upon him is to act as a gentleman and obey the
+rules and not to cheat. If he keeps to the rules he is presumably a
+gentleman and can do what he pleases for his clients.
+
+If there is any complaint about the courts it is held to be the fault
+of the lawyers, if there are criticisms of the lawyers it is the fault
+of the courts. They are interdependent and indissoluble. If a club
+house is not suitable for its purposes, is old-fashioned, rickety, and
+dirty, it is the fault of the members. If the members do not behave
+the club house gets a bad reputation.
+
+Courts are institutions, and not persons; the lawyers are the
+individual stockholders. If by his actions in court or in the club he
+brings disgrace on himself as a lawyer or upon his club, there is very
+little to be done about it. The club membership may be more limited
+and select, but the building will not be improved except that it may
+be swept a little cleaner.
+
+The judge as the president of the club must see that the lawyers
+observe the rules, he can not rebuild the club house or materially
+change the rules. The only persons who can effect a change are the
+lawyers. As members, they are agents for their clients who are the
+public at large. Occasionally the public awakes to a realization of
+their power over both courts and lawyers, that they are their
+creatures; then happens a revolution in procedure and something is
+accomplished.
+
+The lawyer waits about the courthouse for his case to be reached. It
+may take days or even weeks before it is marked ready. He wastes his
+time. The witnesses have been subpoenaed. They have to be told to
+come again the next day. There is little money in it for the lawyer.
+Office practice pays better than court work and except for the eminent
+pleaders there is but small honor.
+
+During the trial the lawyer seems to be sparring. He takes the
+attitude of saying: "I want that point of law decided; it is such a
+nice point, it ought to be settled." As a matter of fact he only
+wants it settled in his own favor. It is not the abstract interest but
+the concrete fact in which he is interested.
+
+The lawyer is vigilant from the beginning of the trial to the end.
+After the case is marked ready he watches the jury, the other side,
+and the judge; any movement may be of importance; if it escapes his
+notice he may lose his whole case. It is not safe for him to go on the
+assumption that the other side is as honest as he is. If they should
+attempt to put in some evidence that is not proper, to offer a paper
+that is not duly authenticated, to try by some trick or device to take
+an unfair advantage, he must be ready to pounce upon the incident. If
+he is quick he may turn it to the advantage of his own side.
+
+The other lawyer among a bundle of letters offers one that is only a
+copy or is not signed. The lawyer notices it but keeps still and when
+at the proper time calls the attention of the judge and the jury to
+the fact, the plain implication is that the other side must have a
+very weak case if it needs bolstering up by such methods as this. The
+argument is that he let the paper go in without objection because he
+thought the matter trivial anyway, and he wanted the jury to see the
+underhand method of the other side.
+
+The indefinable quality of personal magnetism is of much vaunted
+importance. It is like that horrid word, charm; no one knows what it
+means and seems to have a supernatural quality. The trial lawyer does
+not need either charm or magnetism. They are both nonsense. Like
+actors or fighters if they are sufficiently trained in their parts or
+know how to use their weapons, the lawyers' personal magnetism over
+judge and jury will come of itself. The judge is a fairly hard-hearted
+person. The jury may be governed by sentiment but they are an example
+of the average man and neither are going to be caught by smile or
+mannerisms. Sound qualities will prevail.
+
+A fine-looking trial lawyer who thoroughly knew his business once had
+a hard case. His appearance and manner impressed the jury. They
+followed his every motion. The trial was long and tiresome. It was the
+days of those little iron puzzles to get two rings or anchors apart;
+occasionally he would take one out of his pocket and begin playing
+with it. The jury would follow him with their eyes to see whether he
+could do it. Whenever he thought the evidence for the other side was
+getting too interesting, out would come the little iron puzzle and the
+jury would pay more attention to its solution than to the witness on
+the stand. He won his case but that is no reason to recommend the
+playing of "Pigs in Clover" in the court-room. The reason he won the
+case was because he was the capable man and on the job.
+
+The lawyers' profession is not a creative one but the value in the
+social structure is cohesive. He brings together the investor and the
+manufacturer, he amalgamates capital and labor on a sound legal basis.
+He adjusts conditions to the laws and laws to the conditions. His is
+the most large-minded of the professions. He is theoretically the
+layer of the law. In every community the eminent lawyer is the eminent
+citizen. No one commands greater respect. But there is no doubt that
+the inefficient administration of justice is the fault, to a large
+extent, of the legal profession.
+
+The fine, kind face of the lawyer who, ripe in years and
+understanding, beams a genial smile is a living reproach to the
+detractors of his profession. Painstaking, scrupulous, broad-minded,
+and intelligent, with a twinkle of humor for the frailities of
+humanity, he looks on the pettiness of men with a wise tolerance.
+Beneath his ease of manner and cordiality of intercourse there lies a
+world of experience, of battles fought and won, of inherent force of
+character, of public honors received and gracefully borne. There are
+no limits to the admiration and love to which he is entitled.
+
+Beside the lawyer, and watching him with worried eyes, sits the
+client, who unless he is in the wrong really wants the lawyer to bring
+out the facts in the case rather than to have him exhibit his
+qualities as a fighter.
+
+
+
+
+VI
+
+THE WORRIED CLIENT
+
+
+Like the financial backer of a play, the client does not figure
+largely on the stage. If he does appear as an actor he may have a
+small speaking part, but he is not a star. He owns the show, and if it
+does not pay he loses, or if he wins he gets a proportion of the
+profits. Consequently he hires the best talent he can afford. The star
+performer is the lawyer, but as the producer the client has not only
+the choice in picking the theme, but the play is about him and his
+troubles. Great drama consists in a conflict of emotions. The emotions
+of the two opposing clients make a court drama. The acting and the
+staging is the art of the lawyer.
+
+The philology and derivation of the word client is significant. It
+does not mean the principal, but a follower. It is derived from the
+Latin word _cluere_ and the Greek _+klyein+_, meaning to hear; one who
+listens, a follower.
+
+An ordinary man has a horror of the entanglement of the law. A
+hard-headed man of business says he would rather pay a claim of $250
+or less, although he had never seen the claimant, and the suit was
+utterly unfounded, than go to court. He would rather lose the same
+amount than bring a suit involving the trouble and expense of hiring a
+lawyer, requiring witnesses to waste their time, and wasting his own
+in waiting for a trial, which might possibly result in a judgment
+against him on a perfectly just debt, either through the miscarriage
+of justice, or the chance of not collecting the judgment. The typical
+feeling is that of the stockbroker who said: "Only blackmailing suits
+go to court, for if sensible men have a dispute they know it is easier
+and cheaper to settle it outside."
+
+The client is in a darkened room. He only partially sees what is
+going on. If the whole case is thrown out of court on a question of
+law or a technicality he feels more than resentful against the judge;
+he is revengeful; he will spend every cent he has in the world
+appealing and showing that judge how wrong he is. In the first place,
+it is a disgrace.
+
+"Why," he says, "the judge just kicked us out of court. We didn't have
+a chance; the judge must have been friends with the other side. Do you
+call that justice? I'd like to get that judge outside and talk to him
+man to man. No one can get a square deal in court."
+
+The feeling of the client toward the courts and the lawyer is one of
+distrust, mingled with respect. He will say:
+
+"I would rather take a friend's word as a gentleman that he would do
+something than to have it put in the form of a forty-page contract
+drawn by the best lawyer in the country. I could rely on the word of a
+gentleman, but if any question on that contract came into court, some
+clever lawyer would find a loophole to get out of it." Yet the fact
+is that the world does require legal documents. An interesting
+speculation would be to consider what proportion of the world's
+business affairs is conducted on a basis which could be provable or
+have the authority of enforcement in a court of law. The proportion of
+the business transacted in a so-called legal manner is insignificantly
+small.
+
+The numberless transactions of the retail stores in a great city; such
+cases of proving that a pair of gloves were sold, delivered, and not
+paid for are extremely difficult to prove. The expense and trouble
+involved of subpoenaing the different departments and of breaking up
+the routine of the store, would prevent the stores becoming clients.
+The enormous transactions on the New York Stock Exchange, where a
+hundred million dollars' worth of business is reputed to be done in
+one day, is entirely on the basis of personal honesty. So far as the
+court goes, should one party to a stock sale not be willing to
+complete, there would be little possibility of enforcing it. Therefore
+the Stock Exchange makes its own rules and has its own method of
+settling disputes. The world at large is not a client in the court.
+The man who becomes a client in the sense of litigant is an exception.
+The courts would seem to be unrelated to the demands of actual
+business affairs.
+
+Times have changed since the Victorian days when a solicitor was the
+client's deferential servant, the steward and custodian of the landed
+gentleman's legal affairs. Then the lawyer had a profession which he
+carried in his head. Law reports contained a few thousand, not a
+million decisions, and there were no title insurance companies to make
+a business of determining the ownership of real estate. Yet in those
+days the legal adviser was not a very exalted person, ranking beneath
+the soldier and standing hat in hand before the gentleman of property,
+to whom he owed his living. The citizen who wished to learn whether he
+or his landlord should clear away the snow on the sidewalk, went
+gravely to a lawyer's office and paid a fee for the information. It is
+obvious that lawyers do not make their living through small fees for
+giving advice. As a matter of fact, those whose work is more
+remunerative than a street-car conductor's or a carpenter's, make
+their living through business and not in small litigation.
+
+To-day lawyers complain that their profession is slipping from them.
+But they have gained the prestige of business.
+
+"I am a business man, not a lawyer," says the elderly leader at the
+bar, and scarcely knows whether he is, on the whole, gratified or
+regretful.
+
+Their abilities are used in directing the conduct of business from a
+legal standpoint and protecting it from those who are ready to prey
+upon it. Business needs protection from other business, from accident
+cases, and libel cases. These frequently get into the courts. Citizens
+need protection from business and seek it in the aggressive form of
+suits for damages. Big business looks on the courts as instruments of
+blackmail, and the small citizen feels that the courts are inadequate
+to protect his rights. It makes a deal of difference which side they
+are on. But in any case the present-day successful lawyer is primarily
+a business man.
+
+A corporation is a legal creation; a lawyer is its mother and nurse.
+The stockholders having the curious relation of being partners, one
+not liable for its debts--if its legal affairs are properly handled.
+And so the company retains a lawyer at a yearly salary to give them
+advice and that legal protection. Prominent lawyers are taken in as
+partners of the big banking firms. The large industrial companies have
+the highest priced lawyers exclusively attending to their affairs.
+Accident Insurance Companies have enormous legal plants as efficiently
+organized as factories for handling damage suits and against whom is
+opposed the inexperienced lawyer of the individual citizen.
+
+Furthermore, the corporation, though composed, in reality, of
+individuals, is less personal than any one of its members. It is a
+client without keen emotions, without too distracting hopes, fears, or
+suspicions. Law is an exacting science, arduous and complex. The
+lawyer, to do his best, should work quietly, disturbed as little as
+possible by the human interests at stake. If then the lawyer is
+correct in preferring the soulless corporate client, it must be that
+the ordinary individual is either too poor, or too human. Naturally,
+the corporations are not only the most satisfactory, but the most
+desirable clients.
+
+The client, although he is the originator of the drama is in reality
+only a listener. The client in court has so little to say and the
+lawyers have so much, that it seems unexplainable. The reason is that
+the lawyers are the fighters, the champions, the knights in the
+tournament. A legal battle is only enacted because the lawyers are
+expert fighters. The client having hired them, has little to do but
+watch. When men first went to law they had no champions; they fought
+and took what they could, but as civilization advanced men became too
+busy to engage in legal or actual battles and there grew up a
+specialized class of fighting men. The lawyers are the hired
+mercenaries of the commercial structure; and the clients are the
+ordinary business men. True, some of the lawyers are free lancers, but
+the majority have the sentiments and standards of their class. There
+is a natural class antagonism between the client and the lawyer. The
+client is afraid and mistrusts the lawyer; and the lawyer feels that
+he must act for an unintelligent client who is ignorant and inexpert.
+So long as the courts continue to exist on their present plan the
+difference between client and lawyer will be marked.
+
+An example of a return to formalism and a reactionary development has
+been the change in what is known as the Poor Man's Court of New York
+City. It was originally planned as a court where the client or man
+unlearned in the law could come in to sue in a simple way. They were
+simple justice courts. The limit for which he could sue was $100, then
+$250, then $500, now $1000. Formerly the judges need not be lawyers. A
+trial was an informal affair. The judge would line up both the parties
+at the rail. One side would tell their story, the other side would
+interrupt and finally get a chance to tell theirs. The judge would
+figuratively pat them on the head, decide the case, and tell them to
+go home and be good.
+
+The New York Legislature recently passed a law making the court a
+court of record, and making all the provisions of the Code of Civil
+Procedure applicable. The code with its half million words is
+therefore a part of the procedure. So that the client now before he
+goes into court without a lawyer ought to familiarize himself with the
+code. Formerly these courts may not have been dignified. Pandemonium
+would break loose and the litigants begin screaming at and abusing
+each other. Often the judge was obliged to apply a somewhat arbitrary
+and paternal rule. Now the courts are more dignified and formal, but
+the clients are disappearing from view. They are in fact afraid to
+come into court without a lawyer.
+
+While the dignity and efficiency of the court have been increased, it
+has almost ceased to be a court for the poor man; indeed the procedure
+is so technical that, although possible, it is rather unusual for a
+man to come without a lawyer. Of course, the attorneys who make their
+living by appearing in small suits where the fee is often a contingent
+part of the small amount recovered, or a fixed charge of $5 or less
+for trying a case, do not present examples of the best legal ability.
+
+The point of view of the client is that he is loath to spend the money
+to hire a lawyer for defense. One litigant stated in court, when asked
+if he had not admitted the debt: "Well," he said, "I just went around
+to see the plaintiff to find out if I could not save a few dollars
+instead of hiring a lawyer." It is an open question which brand is
+the best for the client, the rough and ready justice or the formal
+and orderly kind.
+
+While the jury are being examined and during the opening of the
+counsel, the client sits quietly, but a trifle self-consciously, at
+the counsels' table. The talk is about him and frequent references are
+made to him and what he has been doing. He tries to look as though he
+did not care and was accustomed to the surroundings, and when the
+taking of testimony and the wrangles over objections and motions
+begin, he falls quietly into the background.
+
+If it is a criminal action he is not on the stand during the People's
+case. When his side is presented his lawyer does the best he can to
+keep him from the stand, whether he be innocent or guilty. The
+well-known expression is that the defendant hangs himself by taking
+the stand. In civil trials the client may be a corporation or the
+owner of the injured automobile or wagon, but not a witness to the
+accident. He sits silent by his lawyer if he is wise, realizing that
+his lawyer can fight better without being annoyed. If he is nervous,
+he keeps plucking at his sleeve and whispering advice. It is difficult
+for him to restrain himself. There have been months of preparation.
+The drama is being produced; to him it is vital. He knows more about
+the case than the lawyer. He wants to advise, suggest, and instruct.
+Why doesn't the lawyer ask the witness that question about what he
+told Smith or what he told his wife?
+
+The client might be surprised if he knew what the lawyer was thinking
+of him. If asked, the lawyer would moisten his lips, draw a long
+breath, and then pause, not for lack of thoughts however. The best
+client in court for the lawyer is the silent client. One of the
+greatest calamities from the lawyer's point of view is when the client
+is on the witness stand and begins to get confidential with the judge
+and to tell him exactly how he feels about the whole matter.
+
+"Why," said a lawyer, "I had a perfect case and then the judge asked
+a question and spoiled the whole thing. I think it was outrageous, the
+judge had no right to interfere."
+
+The attorney's feeling toward his client is contained in the wish that
+he wasn't there. The legal aspect of the case, the real point at
+issue, is probably something very different to what the client has in
+mind. The lawyer has an uneasy feeling that, in the client's eyes, he
+will not do the case justice.
+
+"How outrageous," thinks the defendant, "that I should be sued when
+I've been over-generous for years. And the jury ought to know exactly
+what these people are who said they'd call off the suit if I'd pay
+them a hundred dollars." The lawyer is aware of these views, because
+he has been told them more than once; he also knows that he cannot try
+the case in that way.
+
+The counteraction of emotions and feelings between the lawyer and the
+client, the judge and the jury, the undercurrents that are constantly
+moving from one to another, make up the drama of the court. The
+characters are laid, the theme is selected, the actors are chosen, and
+it remains for the play to be prepared.
+
+
+
+
+VII
+
+PROGRAMS AND PLEADINGS
+
+
+Pleadings are the programs of the performance. They are printed
+beforehand and everybody gets a copy. Preparation consists in the
+rehearsal and the carpentry of setting the scene. Any lawyer knows how
+important the pleadings are, but nobody else does. The judge does not
+pay any more attention to them than he has to. Juries hardly ever see
+them; if they did, they could not understand them. The witnesses never
+hear of them, the clients have sworn they have read them and have
+sworn that they are true. Yet not one client in a thousand could give
+an explanation of them other than, "My lawyer told me to sign it, so I
+did."
+
+Whenever anyone gets anxious to understand a pleading, there are so
+many volumes about the subject and so many bookcases of decisions they
+would furnish a house. All this may appear flippant, but the subject
+is so absurd, abstruse, and abnormal to a man of business, that it is
+almost impossible to make it understandable. A partial list of
+authorities on the subject sounds like a chapter from _Alice in
+Wonderland_: Pepper on Pleading; Perry on Pleading; Pollock on
+Pleading; Pound on Pleading; Puterbaugh on Pleading; Phillips on
+Pleading; Pomeroy on Pleading. The number of court decisions in which
+this branch of the proceeding has been reverently and gravely dealt
+with reads like a metaphysical discussion in the dark ages. The names
+formerly used were superb. Complaint, demurrer, confession and
+avoidance, traverse, replication, dilatory pleas, peremptory pleas,
+rejoinder, rebutter, and sur-rebutter.
+
+On the other hand the clear, concise technical statement of a case is
+not a matter to be laughed at; no clear thinking is possible without
+it. No plain understanding of what the drama is about, nor what the
+issues of the battle are, can be grasped. Good lawyers are good
+thinkers and usually plain talkers. The present-day revolt against the
+confused pleadings may go to the opposite extreme and abolish them
+all, leaving the case to be presented as formless and loose. The vexed
+question of the proper form of a pleading may delay justice until it
+is determined on appeal from the City Court to the Supreme Court, then
+to the Appellate Division, then to the Court of Appeals. In the
+meanwhile the clients may die, the money in suit may be lost, while
+the audience is waiting merely for the programs to be printed.
+
+In Perry on _Common Law Pleading_, reprinted in 1897, chapter thirteen
+is devoted to rules which tend to prevent obscurity and confusion in
+pleading.
+
+  RULE    I. Pleadings must not be insensible or repugnant.
+  RULE   II. Pleadings must not be ambiguous or doubtful.
+  RULE  III. Pleadings must not be argumentative.
+  RULE   IV. Pleadings must not be hypothetical or in the alternative.
+  RULE    V. Pleadings must not be by way of recital, but must be
+             positive.
+  RULE   VI. Things are to be pleaded according to their legal effect.
+  RULE  VII. Pleadings should observe the known forms of expression as
+             contained in approved precedents.
+  RULE VIII. Pleadings should have their proper formal commencements
+             and conclusions.
+  RULE   IX. A pleading which is bad in part is bad altogether.
+
+These are pleasant rules for a layman to understand, and any time he
+has a day off or a holiday he should study them.
+
+"Shocking," cries the old-fashioned reactionary lawyer, "What! Do away
+with pleadings, you might as well do away with the whole case.
+Pleadings are like the rails for a train. No one on the train sees
+them, but take away the rails and the train would not go very far.
+Pleadings are the groundwork of the trial."
+
+He grows more and more indignant.
+
+"The trouble with the modern courts is that they do not know what they
+are about. If this business of loosening the forms of pleadings had
+not taken place, lawyers would be better prepared when they came into
+court and there would not be this floundering about. The good old
+common law pleadings were the thing. It was a great mistake when they
+were abandoned. Then everyone knew where they were. If there was a
+mistake in the pleading then the whole case was thrown out of court.
+That was as it should be. Men had to be good and careful lawyers in
+those days. The slipshod methods of the present time are abominable."
+
+"You seem to be a little hard," says the modern lawyer. "Justice ought
+not to depend on forms."
+
+"You can never have justice without formalizing and shaping the
+dispute," says the lawyer.
+
+"Quite true," says the modern, "but there has been too much attention
+paid to the form of justice. Pleadings are the mere mechanics like
+printing the program or laying the rail."
+
+However, this is all a question that does not come up in the
+court-room at a trial. Once or twice some reference is made to the
+pleadings. Perhaps there is some such dispute as this. The defendant
+attempts to swear that he "paid for the goods then and there." The
+other lawyer jumps up and says, "I object, your Honor. In his answer
+he does not plead payment. He only pleads a general denial." The judge
+puts on his spectacles. The lawyers gather, business stops while
+everyone looks at the pleadings.
+
+Or again the plaintiff tries to show that when he was thrown from the
+wagon he bruised his right elbow. The counsel objects there is nothing
+about injuries to his right elbow in the Bill of Particulars,
+therefore he can not prove it. The Bill of Particulars says that he
+hurt his hand, scratched the forearm, and injured the right shoulder,
+but says nothing about the elbow. Grave consultation by the learned
+lawyers and the judge ensues. The defendant's lawyer is right, there
+is nothing in the pleadings about the elbow.
+
+The case can not go on until that important question is settled. There
+is argument on both sides. The client looks anxious. The jury sit and
+wonder what that phrase of "the delay of the law" may mean. Finally a
+bright idea occurs to the lawyer.
+
+"I move to amend, your Honor, so as to include the elbow." The other
+side looks shocked and disgusted. "What, move to amend in such a
+casual way as that. The pleading is a serious thing. It has been sworn
+to, you may not amend a sworn statement in that offhand way." The
+judge says that he will allow the amendment but if the other side is
+surprised he will grant an adjournment of the trial to another day.
+The other side says, "Pardon me a moment until I consult with my
+client." The judge smiles. The lawyer goes over to his client and the
+client says, "For goodness' sake don't adjourn. I've broken up my
+business for a week to come here now; what's all this fuss about
+pleadings; let's get on with the case." The lawyer returns to the bar.
+"We have decided to proceed."
+
+"Amendment allowed," says the judge. The witness now tells about
+hurting his elbow.
+
+The preparation of a case goes on behind the scenes and before the
+drama begins. The attempts to rehearse are piece-meal. First one
+witness is seen, then another, their stories are told, their
+statements are taken, and they are drilled in their parts. They are
+told as to what facts they must testify. In one large company that has
+a quantity of damage suits, there is said to be a school for witnesses
+where there are dress rehearsals and they are taught how to behave in
+court.
+
+The greatest farce that occurs in the court-room is the part of
+preparation that is involved in getting a case on for trial. There
+being no limit to the time to examine witnesses, to hear arguments, to
+listen to objections, it is said to be impossible to tell how long a
+case is going to take. Consequently the calendar having been called,
+the cases following are answered ready, by office-boys with no
+expectation of their being immediately reached.
+
+The grave and reverend judge looks over his desk and calls the case of
+Bowring _vs._ Bowring. "Ready for the plaintiff," answers a
+rosy-cheeked boy. "Ready for the defendant," answers another. They
+look rather young to be trying a case. It is marked ready and the
+office-boys sit about the court and telephone to the lawyers when they
+think there is a chance of being nearly reached. This often takes
+several days. In the meanwhile the cases ahead of the Bowring case
+have been dragging out their slow and weary performance on the court
+stage. Matters of fact that should have taken five minutes to bring
+out by the present usual laborious system of proof, have taken two
+hours. Argument of counsel on abstruse questions of law have worn and
+confused the jury and the clients, who have become exhausted and
+impatient.
+
+The clients and witnesses may have been sitting, trying to understand
+and becoming more and more mystified.
+
+The dealings of open-handed Justice ought to be plain, prompt, and
+understandable; instead to the spectator she seems a mysterious jade
+with no understanding of everyday life. She keeps them waiting there
+without reason. If the case is marked ready it ought to be ready. The
+business man feels that Justice is extremely tardy in keeping her
+appointments.
+
+His natural reverence for abstract Justice prevents him formulating
+these thoughts, but he continues to wonder. Not understanding the
+cause he becomes dissatisfied and his experience in court leaves a
+profound contempt for the system of jurisprudence. He thinks that if
+any man conducted his own business on the method and plans on which
+the courts are being run he would soon be bankrupt.
+
+"Why," he says, "does not the court get in an efficiency expert on
+this calendar evil and have it arranged on a business basis?"
+
+During the days the case has been on the calendar the lawyer has had
+to hold himself in readiness to try the case. The managing clerk has
+been sending out for his witnesses. They have been served with
+subpoenas and paid their fees to come to court on the day the case
+was first marked ready. They arrive and are told to come again the
+next day. They also have a respect for the court and are glad to come
+to do their duty and tell the truth. The truth is mighty and will
+prevail; but in court she can only speak through witnesses. Unless the
+witness be treated with consideration it would seem that she will not
+speak very willingly.
+
+In place of having them return and return again, some system soon will
+be devised of giving them timely notice when the case is to be
+reached. Exhausting the patience of the men who are the props and
+mainstays of truth does not seem reasonable, and after a few visits to
+court they are not anxious to come again. If possible they will escape
+the process server.
+
+A man who has witnessed an accident to a woman by a street car, in
+spite of his humanitarian instincts will run around the corner for
+fear of being called as a witness. The man who hears at night the call
+of "Police! Police!" in the street, jumps out of bed and begins to put
+on his clothes, but thinks better of it for the same reason. If a man
+is in a taxicab that is run into by an express wagon, and the
+resulting suit is brought by the taxicab company for $110 damages, he
+may have to attend court five separate days as a witness and the case
+may not be called. He has to leave the State to avoid being annoyed by
+the subpoena server, who dogs him at his club and at his home. The
+witnesses have lost their time and their patience.
+
+Each lawyer knows this and a petty game of playing for delays and
+adjournments sometimes goes on. Suppose there is a good claim which
+nevertheless the defendant denies, knowing how lengthy and wearisome
+is the game of reaching a case, he often succeeds for years in
+preventing its collection. The game is simply to tire out the
+opponents, clients, and witnesses. A clever and unscrupulous lawyer
+can throw so many obstacles in the way of a plaintiff that, unless he
+have a strongly developed streak of obstinacy, he will give up in
+disgust or be glad to compromise.
+
+Unless both sides are anxious to be reached it is practically certain
+a case will be adjourned two or three times. A sworn affidavit is
+presented with the doctor's certificate that the client or witness is
+sick, or the sworn statement that a witness can not be found, or that
+the lawyer is engaged in the trial of another case. The excuse may be
+valid and the reasons may be sound, but the adjournment of the day for
+trial occurs again and again. This is one of the causes for the
+complaint as to the law's delay. Naturally calendars have to be made
+and called. Cases have to be tried and others have to be reached in
+order, but at least there should be sufficient and intelligent
+planning of the order.
+
+It seems rather a weak answer to say that no one can tell how much
+time will be occupied in the trial of a case. If any systematic or
+scientific method of regulating the calendar were devised, one of the
+evils would be avoided.
+
+The very call of the calendar in some courts occupies to an
+unreasonable extent the time of the judge who might as readily be
+engaged in the real work of the court. The aggregate value of the time
+of the judge, the lawyers, the witnesses, and the jurymen who have all
+been sitting about waiting, for the call of the calendar is, for one
+hour's delay a large sum. The waste might be saved by an intelligent
+bureau for the administration of court business which would have
+absolute control over all calendar practice.
+
+That the judge should delay a whole court-room full of people by being
+late in opening court should not only be a matter of apology, but is
+reprehensible to the extent of being multiplied by the number of
+people he has kept waiting. On the other hand, the usual course of
+proceeding being apparently with the object of dragging out the
+business of the court, makes the tardiness of the judge seem only an
+incident.
+
+Fortunately there are few attorneys who make appearances in court
+merely for the sake of adding another item on their bill to the
+client, and the real delay in reaching a case is due more to the
+confusion of administrative methods; until some more practical system
+is devised it will continue. Then witnesses and clients will not be
+loath to go to court.
+
+The weary work is finished, all the tiresome facts have been gathered,
+and the rehearsals have been had. The play is written, the parts are
+cast. The disappointments and delays have been forgotten, the months
+of preparation have passed. At last the bell for the performance rings
+and the case is finally to be tried.
+
+
+
+
+VIII
+
+PICKING THE JURY
+
+
+The clerk calls the case again for trial, not this time to inquire
+whether both sides are ready but to announce that it is about to
+begin. The lawyers, their assistants on both sides and their clients
+move forward to within the rail. There is a certain amount of
+commotion as they arrange their papers, their portfolios, law books,
+hats, and coats, and take their places at the counsellors' table
+opposite the jury-box. In the dignified courts in this country this
+rather uncomfortable disposition of overcoats and hats is arranged in
+an adjacent room. The opposing parties in the battle to be enacted are
+now facing each other. Matters become at once more serious and
+formal. What was once avoidable is now inevitable.
+
+The stage has still in a measure to be set. Twelve important actors
+are to be selected. The jury have not yet been chosen. The jury for
+the sake of comparison take the part of a Greek Chorus, a silent one
+it is true, until the final word is to be said. They nevertheless are
+as important and essential a part of the drama as the Chorus, without
+which in the background no tragedy or comedy was complete.
+
+No curtain divides the theater and the arrangement of the stage goes
+on before the eyes of the spectators. The choice of the jury
+constitutes an interesting part of the performance. In this
+preliminary play the lawyers having important parts, their manner,
+bearing, tones of voice, their courtesy or discourtesy, repose or
+nervousness, are watched and unconsciously noted by the jurors. As the
+jury-box gradually fills, even the slightest idiosyncracy may have
+some effect on the outcome of the case.
+
+Trial lawyers are careful of their actions even before the case is
+called to trial. It may be that among the spectators who have been
+sitting beside the lawyers in the back of the room, waiting for the
+case to be called, are those who may afterwards be called as jurors.
+Any affectation of manner or pomposity is quickly detected.
+
+Experienced lawyers immediately they are observed by their tribunal,
+fall into the parts they are to play during the trial. One lawyer may
+be jovial and radiate a cheerful confidence. Another has a superior,
+detached, and academic air which promises a sarcastic cross-examination.
+Yet another takes on a blustering, brow-beating, intimidating manner, a
+kind of overmastering virility. Each kind has its own particular
+advantages, according to the nature of the parts to be played. The most
+efficient is the manner of the lawyer who is direct, business-like, and
+consistent with his own personality.
+
+As on the modern stage, there is a return to simplicity of acting.
+Naturalness and a constant regard for actuality is the only safe
+rule. Simplicity and naturalness, even if studiously affected, usually
+prove convincing. The aim is toward consistency and a non-elaborate
+manner.
+
+Above all the lawyer remembers that the jury admire the good fighter,
+and it is with a certain obvious subtlety that one successful advocate
+in New York lets his assistant carry his coat, books, and papers, but
+he himself always carries his hat--a derby, by the way, for a high hat
+would be over important. The great man knows that the jurors are aware
+of the importance of the occasion and that their eyes will follow his
+every movement. As he walks up to the counsel table and deposits his
+derby it may well become a gage of battle.
+
+The clerk at the side of the judge's desk begins turning a large
+hollow wooden wheel; within it are cards on each of which is written
+the name of a juror who has been served by the sheriff to attend on
+the panel for the trial term of the court. The number summoned
+naturally is larger than the twelve needed for any one case. Often
+those who have to attend at a term of court sit about with nothing to
+do until they are actually drawn on a case, although they receive
+their fees for attendance. There is the story of the ignorant workman
+who was serving his first time on a panel.
+
+"Why," he said, "I was sitting around all day worryin' about my lost
+working day. If I'd known I was getting two dollars for doing nothing
+I might have been enjoying myself."
+
+The clerk puts his hand into the wooden wheel after the names have
+been well mixed and draws out one card after another, calling the
+names aloud until twelve jurors have been called to the box.
+
+To the entirely new spectator there is a certain mystification about
+this drawing of the jury from the wooden drum with the handle for
+turning. To the initiated it may seem rather humorous, like the
+shuffling of the cards of justice, the drawing from a hat, or the
+turning of a roulette wheel. It is, however, significant of one of the
+great principles of Anglo-Saxon law, and that is a trial by a court of
+average men selected from among the ordinary citizens and drawn on the
+particular case by chance.
+
+As each juror's name is called he comes forward and his appearance is
+not lost by counsel. He takes his seat in the box, the juror being
+first called is known as Juror No. 1, and by this chance, if he remain
+in the box, he ordinarily becomes the foreman of the jury. In cases of
+special juries, as of the Grand Jury, the foreman is chosen by
+selection. The successive jurors are respectively numbered according
+to their seats beginning from right to left facing them. Here it may
+be noted that some lawyers in addressing questions to the individual
+jurors are careful to remember to call them by name, realizing that no
+one likes to be known by a number. Instead of referring to him as
+Juror No. 7 or No. 9, he addresses him as Mr. Sullivan or Mr.
+Schmittberger.
+
+The twelve men being in the box the counsellors begin to examine them
+as to their qualifications. On a small board bound lengthwise by
+rubber bands, or stuck in grooves are the cards drawn from the wheel
+and arranged according to the number of the seats, and containing the
+names, addresses, and occupations of the gentlemen seated in the box.
+There are two means of removing a juryman. One is by challenge for
+cause, _i.e._, that he is shown to be unfit or prejudiced, and the
+other is what is known as a peremptory challenge which is practically
+the same as saying one side or the other does not like the man's
+looks. There are connotations about the word challenge which are
+essentially dramatic. It implies a battle, a duel, a tournament.
+
+It is difficult to ascertain exactly what principles govern the
+successful examination and selection of a jury. In Massachusetts and
+in certain important cases in New York, the whole panel of jurors
+summoned for the term of court have been investigated by detectives
+in order that the lawyer might have information about who was to be
+rejected or accepted as a juror to decide the case. The propriety of
+doing this may be questioned and the ordinary case could not bear such
+an expense.
+
+Nevertheless there is a possibly sound reason for obtaining such
+information. Given a man's condition in life, his habits, his
+occupation, his church, his associations, his politics, and given on
+the other hand a certain state of facts, it is nearly ascertainable
+how he is going to decide those facts. If a man has always been a rent
+payer and has probably had continued trouble with his landlord about
+repairs and a feeling of resentment at the regular recurrence of rent
+day, is it not natural that he is going to be somewhat prejudiced
+against a landlord in a dispute between landlord and tenant? or on the
+other hand can a man who is one of the unfortunate owners of real
+estate, and who having paid taxes, interest, insurance, repairs for
+removal of tenement house violations, and with frequent vacancies,
+really be absolutely just? If a juryman is a Jew, a Catholic, or a
+Baptist, there will probably be an innate sympathy for his
+co-religionist. The law does not recognize this unless the juryman is
+honest enough to confess a prejudice. The soundness of the Anglo-Saxon
+jury system is based on the theory that there is not one juryman but
+that there are twelve and that among twelve there will be an average
+between the landlord and the rent payer, between the Baptist and the
+Catholic.
+
+The counsel ordinarily selects the jury with observation and common
+sense as his sole guide. The customary question asked jurymen,
+whether, given such and such a state of facts, "Do you think you could
+render a fair and impartial verdict?" is manifestly absurd to the
+juryman. Every man believes himself to be perfectly honest and just.
+It takes a strong character to say, "I couldn't be fair." As a matter
+of fact such a man ought to be kept on the jury rather than let go. As
+a juryman once said to a lawyer after the case: "Why did you excuse
+me when I said I knew the other lawyer? You wasted your challenge; he
+wouldn't have let me stay. I knew him too well."
+
+The extent to which the examination of the fitness of jurors may go is
+in the discretion of the court. The two extremes are represented by
+the methods in the English courts where the judge exercises close
+supervision over every question in the selection of the jury in what
+would be considered in America an arbitrary and unjustifiable manner,
+and the extreme liberality at criminal trials in this country. The
+difference in time is often between that of a few minutes and a few
+weeks.
+
+Naturally the challenge for cause may or may not be allowed by the
+judge--the form being, "Your Honor, I ask you to excuse Mr.
+Smith,"--because the lawyers are more careful in attempting them; for
+if they are not allowed the juror challenged may be small-minded
+enough to retain a grudge against the counsel. The sure challenges
+are the peremptory ones without any cause stated or reason given. The
+number of peremptory challenges for each side is usually six. As soon
+as a juror is challenged he steps out of the box and the clerk draws a
+new name from the wheel.
+
+It is very much as if a player were dealt a hand of twelve cards, and
+under the rules of the game each side can discard and draw six times
+from the pack six single cards to improve his holding. The hand,
+however, is not only his but his opponent's, who may likewise discard
+and draw six cards when the first player is satisfied. When the second
+player is through the first may again discard any of the new cards the
+second has substituted, provided, of course, that six drawings have
+not been exhausted. This game of chance is always played with an eye
+to creating a favorable impression on the jury and may be politely
+finessed to the extreme.
+
+"Mr. Merriweather, do you know the defendant in this case, Mr. Jacobs,
+or his attorney, Mr. Jenkins, or his assistant, Mr.--er--the young
+gentleman on his left?" is the usual form, delivered with the utmost
+urbanity. It means very little, but perhaps helps the lawyer to
+identify an antagonistic juryman and to obtain their answers, which
+are almost uniformly in the negative. It is obviously desirable that
+the juryman, as a judge, should not be a friend of the opposite side.
+From the manner of the man in the box, as he answers, may possibly be
+inferred his general disposition, and all further questions have this
+purpose in view. So the attorney for the plaintiff proceeds throughout
+the twelve before him, and he may say at any time, "Your Honor, I
+excuse juror number so and so."
+
+Usually he examines the whole twelve before "excusing" any of them,
+and when doing so many lawyers turn from the box to the judge as they
+say, "I will excuse numbers four, five, and eleven." Frequently those
+remaining do not realize why their brethren have been dismissed. A
+slight bewilderment may pass across the faces of all, as a man here
+and there, under the beckoning finger of the clerk, rises to give up
+his seat.
+
+Opinion differs as to the extent to which challenges should be
+exercised. Some trial lawyers are chary in using them, being anxious
+to appear frank, trusting and willing to accept the judgment of any
+decent citizen. Others are meticulously insistent and exhaust all
+their challenges. The first attitude is the one of saying:
+
+"I have such a fine case, so honest and just, that it is impossible
+that any fair-minded man should decade against me. Therefore, I shall
+not insist on these minor points of interest or prejudice. You are all
+open-minded. I will leave it to anyone." The second attitude was
+explained by one lawyer who always put his hand to his chin, looked
+deeply and inquiringly at the jury, and said in an important voice:
+
+"I challenge jurors numbers 6, 8, 9, and 11, or, 4, 5, and 12." When
+privately asked on what theory he proceeded in his earnest selection
+which seemed to imply so wonderful an insight, confessed to no theory
+at all except the plainly human one that he believed in using up all
+his challenges simply because it made the other jurors, who remained
+in the box, feel better and more selected. But the main purpose of
+selection is to secure a fair and intelligent jury.
+
+Not infrequently one side or the other really wishes to get rid of the
+best men and willing to take the risk that this will not be apparent.
+In a real estate case, counsel for the plaintiff not having a strong
+case succeeded in eliminating every man who had ever owned or who had
+ever had the slightest experience in houses or property. It was a bold
+confession that no one who understood the case would decide for him.
+In railway accident cases, the plaintiff, who asks damages against the
+company, will often excuse so far as he can, every juror who appears
+well-to-do or a man of property.
+
+A prominent New York lawyer, when a young man, had defended a case
+brought against a corporation. The plaintiff and his attorneys were
+Jews, and the jury-box when first filled was seven-twelfths Hebraic.
+Counsel for the plaintiff immediately excused the five Gentiles and
+when the corporation's lawyer stood up, not a man in the jury-box was
+of his own race. He accepted them. The trial went on, and it appeared
+that the plaintiff's claim was very weak indeed. At last counsel for
+the defendant had to sum up and he concluded in this way:
+
+"Gentlemen of the Jury: The plaintiff hopes to win this case not on
+the law, nor on his evidence, nor on any consideration of justice. He
+hopes to succeed because of the simple fact that he is a Jew, his
+lawyer is a Jew, and every one of you men are Jews." With an
+expression of faith in the sense of justice inherent in the Jewish
+race and of confidence in the verdict, the attorney for the defendant
+sat down. The jury decided in his favor.
+
+Such boldness, when successful, is often rewarded, but it is of
+course inherently dangerous.
+
+Skilful counsel will succeed in ingratiating themselves from the very
+beginning, but they will endeavor to do so only with the jury as a
+whole. Nothing is more unfortunate than to bestow attention upon a
+particular juryman: that is to flirt with a juror. If he has not yet
+been sworn in with the rest and the opponent sees it, he will
+certainly get rid of him. If he remained, he would very probably be
+regarded with suspicion by his chosen associates. Should the counsel
+think that one man in the box is favorably disposed toward him, he
+wisely leaves him alone and hoping that the other side will not notice
+it, devotes himself the more earnestly to the others.
+
+The jury is at last selected. The challenges have been exhausted. Both
+lawyers look as though they were pleased. The judge is informed that
+the jury is satisfactory, which is, of course, an euphemistic term. No
+jury is ever entirely satisfactory to both sides, but it is a polite
+way of saying it is the best they can get under the circumstances. The
+judge stops trying to balance his check book and looks up at the jury.
+The attendant motions them to their feet. They hold up their hands.
+The judge also rises.
+
+"Gentlemen," he says, "Do you each and all of you solemnly swear to
+well and truly try the case of John Smith against Thomas Gregory and a
+just verdict render according to the evidence? So help you God." They
+do not answer, but they sit down.
+
+
+
+
+IX
+
+OPENING THE CASE
+
+
+The jury is chosen, sworn, and sitting in the jury-box. The judge
+begins unfolding the papers of the case so that he may read the
+pleadings. The actual trial of issues is about to begin. The court
+attendant has taken the jurymen's hats and coats, another attendant
+has shown spectators to their seats and politely as possible
+suppressed the young law clerk who does not see why he could not go up
+to the judge and ask him what became of the case of Jones against
+Allen that was on the calendar last Thursday and should have been on
+to-day, or ask if "His Honor decided that motion in the case of Meyer
+against Cohen." The doors of the court-room are closed. The
+attendants go about looking for whisperers and saying, "Cease all
+conversation." The lady client is interrupted in telling her lawyer
+that she thinks the judge has a kind face, but that she does not like
+the looks of the man in uniform standing next to him, or vice versa.
+Gradually the court-room quiets and a spirit of expectancy prevails.
+
+But the actual taking of evidence and the hearing of testimony is not
+yet. Now comes what is known as the opening. So in the tournament, the
+armored knights entered with a blast of trumpets, their names and
+titles having been called, and it was customary for them to ride once
+or twice around the lists to let the judges see their armor, their
+weapons, their mounts, their trappings and accoutrements, or they
+might even try a tilt or two at one another. The introductory speech
+of counsel is somewhat in the nature of a parade or a preliminary
+skirmish. It may also be compared to the prologue spoken before the
+beginning of a drama. The speech with the vivid brevity, so common in
+legal terminology, is called the opening.
+
+The object is to show to the judge and jury what the drama is about.
+The secondary object is to arouse interest. Immediately after the
+opening comes the evidence, which is usually bald, fragmentary, and
+disconnected. It might be impossible for the jury to understand the
+relation of one bit of testimony to another. Take a simple case such
+as a suit for the failure to pay a bill at a dry-goods store. One
+witness testifies to the sale, another to the packing of the goods,
+another to the delivery; a receipt is introduced in evidence. Each one
+would not tell a connected story. The opening outlines the facts and
+makes the evidence understandable. It also has the function of an
+appetizer. This may seem a trifle unnecessary. But let us take an
+illustration. A whole case may depend upon a deed. If the paper itself
+were put in and read to the jury without explanation they would be
+bored. One witness is to tell this part of the story, another that,
+and the missing link of the chain may be supplied by the deed. The
+jury are not to be mystified before their interest is aroused. Are not
+the lives, property, or reputations of particular men at stake? The
+ordinary man and even more the average juryman has far too strong a
+sense of responsibility to be bored if truly he can understand what it
+is all about. The function of the opening is to tell him.
+
+As the counsel begins opening every juryman leans forward and watches
+him intently. They feel their responsibility as officers of justice
+and there have been few complaints of their falling asleep during the
+trial. The jurymen have come to know the names of the opposing lawyers
+and the faces of the clients, if they have been pointed out during the
+examination of the jurors, but nothing more. Are the jury to hear a
+story of bitter resentment or of passion and crime, or a calm demand
+for the payment of a debt? The opening will show.
+
+Did the plaintiff during years of effort build up a business and take
+the defendant in as a partner only to be defrauded by him? Plaintiff's
+attorney will indicate the years of effort briefly, but impressively,
+before sketching the manner in which the defendant stole from him by
+fraud the fruits of his labor. When the plaintiff then testifies that
+in 1890 he opened a small store in Fourteenth Street, moved in 1896 to
+Twenty-third Street and thence in 1916 to an up-town street off the
+Avenue, the dates will sink into the jurors' minds and they will
+portray for themselves the twenty-six years of painstaking effort. No
+eloquence then could rival the effect of the witness's slow, bare
+recital of his progress. Yet without counsel's prologue what could be
+more dull than the naming of street numbers and dates?
+
+The matter of the testimony may be interesting, but unless the witness
+has a rare gift of expression and a sense of the picturesque, the way
+in which it will be given may be dull and plain. But at this point the
+little keen-faced lawyer for the other side jumps up and interrupts:
+"I object, your Honor; what difference does it make where he lived in
+1890, whether on Fifth Avenue or Mulberry Bend? What we want to know
+is what he is suing for now." And the court will probably rule with
+him and keep the plaintiff down to more relevant facts.
+
+Some of the important answers may be yes or no. Counsel in such a case
+supplies the color and gives an appearance of life to what is actually
+alive enough, but which alone would seem dry. Even if so famous a
+character of fiction as "Becky Sharp" came into court and only looked
+her part with what intense interest would we not hang on her
+testimony, though it consisted of no more than "Yes, I did"; "I never
+saw him before." We should be fascinated by this bald statement
+because Thackeray had interested us so enormously in the lady. The air
+would be electrified by the force of her personality. Without a
+previous introduction, however, we might be so lacking in discernment
+as to find her, in appearance and voice, no more unusual than the
+average witness who goes on the stand.
+
+Thackeray not only created Becky Sharp; he also created our interest
+in her. Similarly the lawyer may create an interest in his witnesses,
+some of whom may be personally every bit as extraordinary as any
+character in a novel. If a witness be actually commonplace, there is
+all the more need for making him vividly human; if he be so colorless
+that nothing could be made of him personally, he may acquire interest
+through the class to which he belongs, for classes have a personable
+color more deep than the almost colorless individual.
+
+To induce the jury to visualize the story and the characters, the
+highest literary gift may be brought into play. The lawyer is limited
+as to time and the description he may employ. He has, however, his
+voice and expression: an actor's tools. But again the rule of
+simplicity and naturalness should apply.
+
+The opening speech is a prologue and it does not argue. Counsel will
+not be permitted to argue his case in his opening, for his opponent
+will object and the Court will often say, warningly, "Counselor, you
+are summing up." This limitation, however, is in reality an advantage,
+not merely because it applies to both sides, but for the reason that
+no lawyer with any sense of dramatic values would anticipate his
+_dénouement_. Argument is apt to be chilling unless the decision
+sought for can be discerned, however dimly, without it. And how are
+the jury to frame their decision before the evidence has been
+presented? The jury should be interested in Miss Becky Sharp and
+prepared to understand her testimony, but, before they have heard her
+story from witnesses who know, they will not be favorably impressed by
+urgings that she was wronged or badly treated.
+
+There is usually leniency in regard to the length of the opening,
+because it is well recognized that few witnesses can tell a connected
+story, or tell it well. From the old French story of the lawyer who
+began _avant le création du monde_, and the judge who asked him to
+pass on _áu deluge_, down to the usual modern method of nagging the
+lawyer into stating only the skeleton of the action, there are various
+degrees of eloquence, varying naturally according to the importance of
+the case.
+
+A wonderful thing the prologue may be in its restraint and picturesque
+vividness, and, not least, in its clarity. Confused business dealings
+may be described so that important sums, figures, and dates will be
+remembered and recognized when they appear again in the evidence.
+Counsel, for the time, occupies the center of the stage; his course is
+in his hands to make or mar. He reaches the end of his speech, bows,
+and the first witness is called.
+
+Before the testimony begins the judge looks at the defendant's counsel
+and asks him whether he wishes to state his defense. There is a
+different practice in this regard in different courts. Some insist
+that the defendant ought to tell at once what his side is about,
+others that the defendant should wait until the plaintiff is through
+all his evidence and has rested; then at the beginning of the
+defendant's case the defendant's lawyer opens and makes his
+introduction.
+
+The difference between these two manners of proceeding is so essential
+that it may be explained. On the one hand the lawyer feels that he
+should not be compelled to give away what he is going to do, how he
+proposes to meet the attack, whether he will lie in ambush and snipe
+the plaintiff as he comes on or intrench behind a rampart and meet him
+with the full force of his battery of evidence. He may be planning to
+make a sudden sally after the plaintiff has shot his arrows and
+exhausted all his ammunition. The lawyer feels if he tells his plan of
+campaign he loses the advantage of generalship.
+
+Suppose a simple case: The plaintiff is suing on a long account for a
+bill of goods which will take a long time to prove. The defendant has
+a receipt in full showing payment. On the theory that the defendant
+need not disclose his evidence in the opening, he may sit still with
+the receipt up his sleeve, let the plaintiff open and call his
+witness, the evidence may drag itself along with the usual motions and
+objections, and after the plaintiff rests the defendant opens to the
+jury.
+
+"Gentlemen," he says, "this is a simple case. The plaintiff claims he
+sold the goods and the defendant did not pay for them. I propose to
+show you that the plaintiff was not telling the truth. I made him
+prove to you that he sold every item in the bill because I wanted to
+show you how untruthful he is. My client, the defendant, not only paid
+for the goods but I can show the receipt in full signed by the
+plaintiff."
+
+To the layman this is absurd. The defendant should have shown the
+receipt in the first place and all the waste time of the trial would
+have been saved. "No," says the technical lawyer, "if I had disclosed
+my evidence before, the plaintiff would have framed his evidence to
+meet the situation." The modern view is otherwise. In France, for
+instance, no paper can be offered in evidence on a trial unless it has
+been shown to the attorney for the other side beforehand and everyone
+has had a chance to examine it. Indeed, this exhibition of original
+documents is conducted in so open and honest a fashion that it is
+customary to send all the original papers to the other side without
+even taking a receipt or retaining a copy and in the whole history of
+the French bar the loss of such a paper has never been known.
+
+It seems more practical and sensible that the lawyers for the
+defendant should be required to state the nature and detail the facts
+of his defense. It is the difference between the old idea of trial and
+the new. The first was an imitation battle, the new idea is not that
+it is so much a struggle as an investigation of the facts. If the
+plaintiff wants to meet the receipt he can make a counter-attack or
+explanation in the rebuttal and explain how he came to sign the
+receipt in full. The judge and the jury feel the necessary element of
+the trial is to arrive at the facts and that the planning and methods
+of charge and counter-charge are not so significant. The old
+conception of the trial as a battle is disappearing.
+
+The opening by the defendant at the beginning directly after the
+plaintiff has finished his opening and before a witness is called,
+makes the trial simpler to the minds of the jurymen who are to decide
+the facts. The pleadings are supposed to define and state the issues
+but as they are usually technical they have become not sufficiently
+pliable. The defendant by his answer denies merely the facts stated in
+the plaintiff's complaint in the paragraphs numbered six, eight, and
+ten. The defendant on his opening should be compelled to make plain to
+the minds of the jury what he intends to show. He should take the
+position of a plain business man who says, These foolish people
+imagine they have a claim against me. They have nothing of the kind.
+
+The plaintiff says that he understood the contract to be so and so
+and that acting on that assumption both parties did certain things and
+know the defendant with evil intent and wrongfully forgetting the duty
+he owes to keep his word refuses to live up to his agreement,
+therefore, "Gentlemen, we have been compelled to come to court and
+bring this action and we shall show you gentlemen facts from which you
+must find a verdict in our favor." The defendant then arises and says:
+
+"Gentlemen, we are going to show a letter that contradicts all this."
+Oratory has little place in the opening of the defendant.
+
+The judge has been, during the two openings, attempting to keep the
+two counsels down to the facts which he thinks may be proved and from
+wandering too far afield. As quickly as they are both through he says,
+"Call your first witness," and with trepidation the witness takes the
+stand.
+
+
+
+
+X
+
+THE CONFUSED WITNESS
+
+
+The whole question as to witnesses is whether they shall be allowed to
+tell what they want or what the lawyers want. As they are both in the
+court-room they must abide by the rules of the court. That is the
+trouble: the rules are against the witness.
+
+When the witness goes on the stand for the first time the court
+attendant asks her to raise her right hand. She does so and tries to
+sit down in the witness chair so that she may feel a little more at
+ease. "Stand up," says the officer. The judge looks at her
+inquisitorially over his spectacles. She tries to smile and regains
+her feet. "Raise your hand," says the judge. The delightful and
+sanitary custom of kissing the Bible has been done away with. Even
+the habit of resting the hand on the Book is disappearing and in many
+courts a Bible is hard to find.
+
+The lady, in the confusion of appearing on a stage for the first time
+and standing on a raised platform before an audience, holds up her
+left hand. The court attendant jumps at her. The judge has seen the
+same performance many times before and hardly notices the
+_contretemps_. By this time she is confused and ruffled and after
+hearing something murmured about the truth, the whole truth, and
+nothing but the truth, she sinks into the chair and begins in a very
+uncomfortable frame of mind the ordeal of giving testimony.
+
+What she wants to say, what she ought to say, what she was told to say
+is all gone. The jury and the judge understand and feel sympathetic
+but the rules of the court do not permit them to be polite, and to ask
+her to take a more comfortable chair, to have some tea, whether the
+children have had any after-effects of the measles, or to take off
+her hat and stay a while. She knows she has to stay and that she is
+not going to enjoy it.
+
+She is the important witness who was riding in the car at the time it
+crashed into the grocery wagon. She is honest, of average
+intelligence, and wants to tell the truth. She is asked:
+
+"At the time of the accident, where were you?" She says that she was
+in the car going up-town to see her married daughter whose children
+were sick with the measles and she was in a hurry. The lawyer moves to
+strike out the latter part of the answer. The fact that she was going
+to see her daughter, that the children had the measles, and that she
+was in a hurry are not relevant and have nothing to do with the case.
+The only relevant fact is that she was in the up-town car.
+
+She was sitting four seats from the front and thinking the car was
+going very slowly and the children would be asleep before she got
+there. It is immaterial that she was thinking about her grandchildren
+or the measles, or that she was thinking about the car going slowly.
+The real question is how fast the car was going.
+
+The reason for the rule of evidence is that the court always wants to
+know not what she thought, but what she actually saw. She will not be
+allowed to tell what she thought or what she told her daughter after
+the accident. The daughter can not be called to the stand to testify
+what her mother told her, when she reached her house, about what had
+happened. Newspaper accounts of the accident may not be allowed in
+evidence, nor what the policemen reported on the accident, because he
+arrived afterward. Anglo-Saxon law holds the proof down to what was
+actually perceived by the five senses. The court makes up its own mind
+from these perceptions and the facts themselves. It does not want to
+hear what someone thinks, or what the witness believes or concludes,
+but only what he perceived.
+
+There is much to be said for and against this rule on both sides. A
+broader method to the lawyer seems shockingly loose and slipshod. The
+rules of evidence to the bystander seem an inhuman farce. The first
+allows an atmosphere to be created from which the whole truth may be
+reached. Would not an ordinary person, if he wanted to find out about
+the accident, read the newspapers, find out the police reports, ask
+what a witness thought, what that witness told someone else about the
+accident afterward? Is she not now giving someone an account of the
+accident?
+
+Psychologists agree that no one can accurately narrate their
+perceptions and what happens before their eyes. Moreover, the tests
+performed on school and college graduates in regard to their powers of
+observation have shown the fallibility of human perception. The
+failure to perceive, plus the failure to remember, plus inadequacy of
+language, makes all testimony unsatisfactory. People of little
+education are still less able to either see or explain. The only safe
+way is to obtain a composite photograph of the witness's mind and of
+the thoughts that arise from the original perception, a continuation
+of impressions.
+
+Judges or juries never determine cases by first deciding which witness
+is telling the truth or at least the exact truth. They take it for
+granted that both sides are lying somewhat; that no matter how well
+they mean and how hard they try, all witnesses are incapable of
+telling the exact truth. The unfortunate part of the law is that this
+is not officially recognized. There is a hypocrisy in not recognizing
+the inadequacy of human eyes and ears to grasp even simple concrete
+facts. A timidity exists that will not allow the admission of human
+imperfection.
+
+The proof of this is that when three witnesses go on the stand and
+describe a thing as having happened in the same way, immediately there
+is a strong doubt in the mind of the jury about the whole case.
+Suppose the question of the time a crime was committed arises and the
+defense tries to prove an alibi by showing the defendant was in a
+saloon at that time. There may have been three witnesses who really
+saw him at the same time. One witness comes on the stand and says
+3:10, the next witness says he saw him at 3:10, and third says the
+same. The jury conclude that the story has been made up.
+
+Yet suppose the first witness says he saw him sometime after lunch,
+and the second that he remembers seeing the defendant in the saloon
+sometime that day, but he is not sure whether it was in the morning or
+the afternoon, and the third witness says that he saw him during the
+week, but that he does not remember the day, whether a Thursday or a
+Friday--it is probable that the defendant will have a much better
+chance of succeeding with his alibi.
+
+The lady in the car could not remember the time of the day, except
+that it was near the children's bed time. She had heard the crash and
+seen the wagon turn on to the car tracks. With a great many
+objections she finally gets to the point of the crash.
+
+"Did you see the car hit the wagon?" "I object to that as leading,"
+says the other lawyer. "It is leading and suggestive." Technically he
+may be correct, but if the judge has common sense he overrules the
+objection.
+
+The proper question would be: "What happened next?" The witness,
+however, might remember the paper bag of oranges she was carrying to
+her grandchildren and instead of telling about the accident begin to
+describe how she dropped them on the floor. Leading questions are
+necessary in nearly every case. The reason that they are objectionable
+and ruled out is, that the judge and the jury ought to hear not the
+lawyer's narrative of the facts, but what the witness actually
+remembers.
+
+A witness on the stand appears at his worst. If any one from real life
+were suddenly thrust unprepared and unlearned in theatrical art upon a
+stage the incongruity of the situation would be appalling. Yet the
+witness is thrown into new and strange surroundings. It is a portion
+of the reality of life shown vividly against a conventionalized
+background. The judge and jury in a vague manner understand this. The
+lawyer producing the witness feels this and elicits the testimony in a
+soothing manner.
+
+The objects of cross-examination are as follows. The first is to prove
+that the story of the witness is not true, and the other is to bring
+out something new. The opposing counsel often forgets the purpose of
+his cross-examination and by attempting to bully and frighten the
+witness, usually either by sarcasm or a doubting manner, accomplishes
+very little. Not one cross-examination out of five hundred amounts to
+anything. The judge has heard many and he has little hope of their
+being of much interest. The jury make so much allowance for the
+witness being frightened on the stand and for the fact that she is in
+the hands of a clever lawyer, that they are not much impressed even
+if she contradicts herself or is proved mistaken. At best it is only a
+mistake, not a deliberate lie. The lawyer thinks he owes a moral
+obligation to his client and to himself to cross-examine. He is
+compelled to go on. There is a musty tradition of the law that a trial
+without cross-examination is not a proper trial. It is a legal fetish
+and one of the things that is done. The judge expects it, the jury
+expect it, the client expects it and the public.
+
+The client pays his money and he ought not to be disappointed. If it
+were omitted altogether, the judge and jury might not feel the loss so
+bitterly. Perhaps they might prefer it and the question for the lawyer
+is whether it is better to satisfy the client or the jury. In this
+quandary the lawyer may forget that the main point is to win the
+battle. When the case is lost the client does not care at all how
+brilliantly the lawyer looked, acted, or fought.
+
+If the lawyer reasons he will say:
+
+"If the object of my cross-examination is to show that the witness is
+not telling the truth, have I much chance of getting him to confess
+the fact?" The witness knows something about perjury. He is afraid and
+he has heard about those pitfalls of cross-examination. Does the
+lawyer remember his own hopeful son and how only yesterday he could
+not get him to admit stealing the cake even with the prospect of
+immediately impending punishment? Only that little rim of chocolate
+about the ears was the proof. Even the deaf little child, who is not
+as intelligent as the witness, will not admit that he was untruthful.
+But still he goes on cross-examining.
+
+If the witness is finally shown a paper which he or she signed when
+the investigator of the railroad came to see her, and in which she
+said she was sitting on the sixth seat, there is not such a great deal
+to be proud of.
+
+"Ha, Ha," thinks the lawyer "at last," "didn't you just now say you
+were sitting on the fourth seat?" "I don't remember," says the
+witness. "What," thunders the lawyer, "you don't remember; then your
+memory is poor. I will read you what you said on your direct
+examination," and he does. "Now which was it, the sixth or the fourth
+seat."
+
+The other object of cross-examination is to elicit new facts. This is
+a dangerous risk for the lawyer, and unless he is sure of his ground,
+he had better not take it. He will do better to let his own side tell
+the facts than to bring them out through an unwilling witness who is
+on his guard and thinking the opposing lawyer is trying to trap him.
+
+The mistake that most lawyers make in cross-examination is to ask the
+witness to repeat what he said in his direct testimony. Telling the
+same story over again merely accents the facts in the minds of the
+jury. The lawyer asks:
+
+"You say that you saw the driver whip up his horses when the car was a
+block away." The lawyer may doubt the truth of the statement but the
+mere repetition of the words affects the memory of the jury. Unless
+he has a distinct object in going over the testimony, either to show
+the direct contrary strongly, or the fact that the witness has learned
+the testimony by rote and that the repetition is in exactly the same
+words, the lawyer would do better to desist.
+
+Strange as it may seem the rules of evidence are actually based upon
+common sense. The ordinary experience of mankind gave rise to the
+rules of evidence, but the difficulty is that the further experience
+of civilization is giving rise to new rules which are not consistent
+with the old. Nevertheless the present rules when reasonably applied
+are fairly good. The question really is whether there should be any at
+all.
+
+Accepting the fact that there should be rules they are based on two
+principles; the first is that only something which has to do with a
+case can be proved and second that it can be proved only in a safe and
+reasonable way. It may seem impossible to the lawyer and equally to
+the laymen to state the rules of evidence in simple language. But the
+principles of common sense will govern in the end, as they have in the
+past, notwithstanding they have been hidden under a mass of verbiage,
+ancient forms, and obsolete customs.
+
+The theory is that justice wants the highest and best it can obtain,
+the court insists on the two principal rules; that evidence must be
+the very best that can be obtained and must be brought out in the
+safest, clearest, and most authentic manner.
+
+Take, for instance, the rule that conclusions of the witness are not
+allowed. If the court considered as evidence that the testimony "the
+defendant brought the goods and they were delivered," and the
+defendant came on the stand and said, "I did not buy the goods and
+they were not delivered," the court would have before it merely two
+contrary beliefs or conclusions. It would be a case of "Katy did, Katy
+didn't."
+
+The rule of evidence is plain that makes it necessary for the
+plaintiff to show where he saw the defendant, what was done, and what
+was said or written by the two parties. If the question is as to the
+delivery, it is not enough for the plaintiff to say "I delivered the
+goods." The court must have proof of the history of the goods. The
+driver of the wagon must be called who can testify where he drove,
+what package he carried, and what was done with it when he reached the
+house.
+
+The whole subject of expert witnesses is not so complicated after all.
+They are merely persons of exceptional experience who are allowed to
+testify as to something of which they know nothing. They may have
+never seen nor heard the facts in dispute but because they have had so
+much experience on similar facts they are allowed to say what they
+think of facts produced by eye witnesses before the court. As
+conclusions and opinions may be various, there is at times a great
+variety in experts, and because the very name of experts implies
+technicality, there is a feeling in the minds of the jury and the
+public, that the testimony of experts will befog by a mass of
+non-understandable terms.
+
+The doctor who testified in a case in which the plaintiff suffered a
+sore back and had seventy-five dollars damages from the jury is an
+example. He said:
+
+"The plaintiff was suffering from traumatic sacro-illiac disease,
+traumatic sinovitis of the knee and wrist and from traumatic myositis
+of the muscles of the back."
+
+In reality the testimony of expert witnesses is very good evidence. If
+it is given in plain and understandable English and the jury think the
+expert a clean-cut, sensible man, it is just what the jury want to
+learn. An expert's method of reasoning about the facts in evidence is
+the same as that employed by the jury in the jury-room. It is merely
+an opinion; for on the opinion of the jury, based on the evidence
+depends their verdict.
+
+While the witnesses are being examined, called to the stand, sworn,
+being excused, and being cross-examined, there occur numberless
+incidents of the trial known as the objections, exceptions, and
+motions.
+
+
+
+
+XI
+
+THOSE TECHNICAL OBJECTIONS
+
+
+These are the stage tricks and little incidents that give variety to
+the performance. No drama would be complete without a few diversions.
+So far as the drama itself goes, they are of no great importance
+except to give pungency and interest to the action.
+
+The lawyer asks an apparently good question. "I object," says the
+other lawyer, "on the ground that it is incompetent, irrelevant, and
+immaterial." The judge has to rule. He may not exactly have heard the
+question. The stenographer reads it again. The other lawyer leans
+forward in a frenzy of fear lest the question be ruled out. He begins
+to argue.
+
+"The question is perfectly proper; the witness ought to be permitted
+to answer it." "No," says the other lawyer, "it is improper in form,
+calls for a conclusion, and should not be allowed." The judge looks
+puzzled. "Read that again," he says. The question is, "What kind of a
+cow was it you saw in the plaintiff's garden?" "I still object," says
+the lawyer. "The witness has not been shown to be an expert. If my
+learned friend is going to attempt to qualify him as an expert, I
+desire an opportunity to cross-examine him concerning his experience
+in cows." "Not at all," answers the lawyer. "The question is entirely
+proper and I stand on my legal rights." The judge hesitates; if he
+does not rule correctly the lawyer will take an exception and the
+Appellate Court may not like it. So he says, turning to the witness,
+"You may answer, but I will reserve the question and decide it later
+on a motion to strike out." "I except," says the lawyer. The jury look
+relieved. The witness straightens up, the opposing lawyer sits back
+in disgusted contempt at such a loose method of procedure. "Well,"
+says the witness, "it was a red cow."
+
+This may go on for some time.
+
+"I move to strike the answer out," says the lawyer; and the argument
+begins all over again.
+
+Throughout the trial the client and the jury are waiting for these
+objections and exceptions. The nature of an exception is a notice
+served on the judge that his rulings are wrong. The theory is that if
+he wants to change them he had better do so before the case goes to
+appeal. It is a covert threat to the judge. There is a principle in
+some courts that no ruling that is not excepted to can be considered
+on appeal; consequently a lawyer is careful to preserve his rights by
+exceptions.
+
+A young lawyer once had this principle so firmly fixed in his mind
+that when he went to court he began taking exceptions to everything,
+even rulings in his favor. He would make an objection; the judge
+would sustain it. "I except," said the lawyer. He would make a
+motion; the judge would grant it. "I except," said the young lawyer.
+The other side would make an objection; the judge would rule against
+them and in favor of the lawyer, "I except," said the lawyer. Finally
+the situation grew so strained that the judge called the young man to
+the bench and spoke to him confidentially. His explanation was: "This
+is my first case and the head of my firm told me to be sure and take
+exceptions to all rulings."
+
+Some lawyers are so in the habit of excepting, it sounds as though
+they were hiccoughing. "Overruled"; "I except"; "Allowed"; "I except";
+"Denied"; "I except"; "Granted"; "I except." It becomes a custom as
+constant as the refrain in a comic opera.
+
+Theoretically it may have a sound basis under the law, but so little
+practical value has it that it seems ludicrous. The lawyers and the
+judges consider it a matter of course. If the judge after all the
+argument finally decides to let the testimony as to the red cow stand,
+he will not be inclined to change his mind because the lawyer
+interjects that threatening exception. The sound of the word is
+spiteful and seems to express the resentment of the lawyer at the
+ruling of the judge.
+
+No example could be found in the thousand volumes of law reports where
+the judge changes his mind on account of an exception. The object in
+this particular direction is vain.
+
+With regard to appeal; the Appellate Court that attempts to decide a
+case on the exceptions taken at the trial would have a difficult time.
+They would have to disentangle the mesh of evidence and find out
+whether that important piece of testimony on page 204 was excepted to
+or not, then whether there was a proper ruling; refer to the
+stenographer's minutes and look at the important exception on page 59
+and again on page 106. Unless the question decided was excepted to,
+the Appellate Court can not decide it. It is hard to imagine that any
+court could be so rigorous and narrow-minded that they could hang
+justice on such little pegs of exceptions, which the stenographer in
+the hurry of the moment may have forgotten to insert.
+
+In the criminal courts there are no exceptions on the part of the
+people, because there are no appeals on behalf of the State. The
+defendant continues to repeat "I respectfully except." "I must insist
+on my exception." Think of a man being jailed for seventeen years
+because his case was not reversed on account of the failure to except.
+The court could not believe Justice to be so blind-folded that she can
+not understand the evidence as a whole.
+
+Exceptions are the tacks and pin pricks of a trial. They are of so
+little value in the main structure of the drama that if they are
+forgotten by either side, the court should provide them with a bushel
+basketful which could be distributed by the handful wherever the
+lawyers thought they would be useful or pleasant.
+
+Objections are of three main kinds: irrelevant, immaterial, and
+incompetent. They are like the magic words that open or unlock the
+doors of evidence and let it in or keep it out. They have three
+distinct meanings which lawyers understand. A thing may be immaterial,
+but not incompetent, or incompetent and not immaterial, or irrelevant
+and not immaterial, or irrelevant and not incompetent, or incompetent
+and not irrelevant, or one or both or not at all. Any student of law
+can fully explain the difference, but the distinction is immaterial
+and irrelevant, and if the reader is in doubt let him ask any lawyer
+friend to tell him in plain words, without insulting his common sense,
+what the distinction between immaterial and irrelevant is.
+
+The confusion of one young man found expression finally in the terms
+"irreverent, impertinent, and--and--and--no--matter."
+
+The lawyer, when he objects, usually attempts a few other suggestions
+which may be considered by the judge, such as "the question is leading
+and suggestive; grossly improper; calling for a conclusion; objected
+to as argumentative or because of its ambiguity."
+
+Whatever the trouble with objections may be, it is neither the fault
+of the lawyer, the judge, nor the witness. When certain evidence is
+not allowed by law it is proper that it be objected to. Unreasonable
+and often comical as objections sound, the basis of their existence in
+law is that the court wants the best possible proof.
+
+Instead of a copy of a letter the judge and the jury ought to see the
+original. Instead of the copy of a will the paper actually signed by
+the testator is wanted. Suppose a question arises as to the payment of
+a bill. The defendant says that he went into the store and paid it.
+The best proof is to be given by someone who saw him pay it. A witness
+to whom he came afterward and said that he had been down to the store
+and had paid the bill is not so accurate a witness as the man who was
+in the store and saw the money paid over. It is to keep out this
+poorer proof that objections are made.
+
+If the objection is good, the judge says "Objection sustained," or if
+he thinks the evidence the best he allows it and says "Objection
+overruled," then the witness may proceed and answer the question.
+Unless the lawyer objecting states the ground or reasons for his
+objection, the objection is not supposed to be valid for the other
+side ought to be apprised of the reason so that he may supply the
+proper proof, that is why the objection is named as irrelevant,
+incompetent, and immaterial, so as to cover all possible grounds.
+
+The reasons given for the objections: incompetent, irrelevant, and
+immaterial might, so far as the average man is concerned, read
+"incontepent," "irrevelant," and "immature." The words when repeated
+together seem like that old legal term "incorporeal hereditaments."
+They are imposing and add tone to the trial. The solemnity of
+repetition is always a valuable asset. The real value of the word
+irrelevant is shown by repeating irrelevant, "irrevelant," irrelevant,
+"irrevelant." In a short time one sounds as valuable as the other.
+
+When he makes the objection the lawyer rises and when he is through
+sits down. This gives the appearance of constantly jumping up but is
+only a question of etiquette, like taking off the hat or making a bow.
+Some people like the formality but there is a question how much is due
+to the dignity of a court and how much form and manners must be
+sacrificed to efficiency of business. The judge who said that he did
+not hear the constant objections of the lawyer because he made his
+objections sitting down was not so much an adherent of good form as a
+protestor against the absurdity of professional objections.
+
+The mooted question is the same and goes back to the one on evidence.
+Shall everything be allowed in and a photographic picture of numerous
+details be given to the court? If that is the correct idea, a general
+knowledge and atmosphere may be derived from all the surrounding
+circumstances and then there would be no objections. If the strict
+interpretation of the law be followed limiting evidence to only what
+is seen and heard, objections are proper and sensible.
+
+The modern tendency is to do away with all restrictions of the past.
+There has been too great severity in interpreting the law of proof and
+the pendulum is bound to swing far in the opposite direction. A medium
+may not easily be reached, and the only test is the common sense of
+the average.
+
+On the question of time and whether the abolishing objections and
+letting in all evidence would not be shorter, there is much to be
+said. It might take less time for the witness to recount the death-bed
+scene of his wife's sister's brother-in-law's aunt, than for the court
+to hear and pass upon all the objections and arguments as to the
+admission of the testimony on the red cow.
+
+As the jury listen to the objections and exceptions they become more
+and more impatient. The restraining influence of the surroundings, the
+fact that they are impaneled in a box and that they are a part of, the
+drama keeps them silent. They cannot break out in revolt at the
+badgering of the witness. They can say nothing about the absurd
+objections that are interrupting the proceedings or the spiteful
+little exceptions that are being thrown in, but can only quietly store
+up an increasing mistrust of the whole method. When the lawyer objects
+so strenuously the jury thinks he must have something to conceal. Yet
+when the objections are made they have a certain effect which is not
+at first realized. A question is asked that is to the juryman
+perfectly sensible, but which is absolutely inadmissable under the
+rules of evidence. For example, the lawyer asks, "What did you tell
+your wife about the accident when you got home?" Any reasonable man
+knows that what he tells his wife is very important and bears on the
+question of his veracity. The other lawyer very properly objects. The
+jury thinks there must be something in it. The lawyer asks again,
+"Didn't you tell your wife the horses were going very fast?" The other
+lawyer is on his feet. "I object," he says, "and I must ask your Honor
+to instruct the counsel not to ask questions that are manifestly
+improper." The Court rules in favor of the objecting lawyer. He
+admonishes the lawyer and instructs the jury to disregard the
+question. Yet what is the effect? The jury believes unless the lawyer
+thought the answer would be most unfavorable to his side he would not
+have objected to it so strenuously. The impression remains on the
+minds of the jury that there was a good deal to that question of what
+he told his wife.
+
+It is for this reason that when the lawyer keeps on asking
+objectionable questions, the judge will sometimes declare a mistrial
+or allow one side to withdraw a juror, which is only a polite way of
+saying that the present jury in the particular case can not be fair.
+
+Here arises one of the prettiest dilemmas of the law on the trial of a
+case. Suppose the case has been going on all day or for several days.
+The plaintiff is very anxious to have it finished. He has been at
+great expense and trouble to get his witness and the lawyers' time is
+valued at so much per trial day. On the other hand the defendant at
+the worst can only have a judgment against him, which may as well
+happen at another time. He is willing to have the case declared a
+mistrial and start anew; he knows it will take a long time for the
+trial to come up again. It has been a dull grilling proceeding, but he
+does not care so long as there is a chance of postponing the judgment
+against him. It is on the whole better and easier to put it off.
+
+Now if the judge declares a mistrial, on the motion of the plaintiff,
+that is his own look out. He believes that he can not have a fair
+trial, that he can not proceed. But suppose the defendant by his
+lawyer makes the trial unfair. His lawyer keeps asking those improper
+questions which imply so much to the minds of the jury. The judge may
+speak severely to the lawyer and caution him not to keep on putting
+suggestive questions. That is all that he can do. It would be plainly
+unfair to order the withdrawal of a juror. The trial according to the
+opinion of the judge may be unfair. The plaintiff's counsel is afraid
+to ask for a mistrial, first on account of the trouble and expense to
+his client, and second, if it be denied, the jury will believe he
+thinks them unfair and does not want them to try the case. The judge
+is in a curious position with regard to objectionable questions and
+testimony, he ought not to penalize the plaintiff by punishing the
+defendant. The loosening of the laws of evidence might do away with
+quandaries such as these.
+
+
+
+
+XII
+
+THE MOVEMENTS IN COURT
+
+
+Motions imply movement and action especially in a drama, but in a
+court motions are the reverse and occupy the place of dramatic pauses
+which delay the real movement of the play. They are of great interest
+to the lawyers, of some interest to the judge, because he has at once
+to pass upon them, of but little interest to the client, who does not
+understand them, and of no interest whatsoever to the jury, except
+when they result in the disposal of a trial.
+
+Before the case begins the defendant makes a motion. When the
+plaintiff's lawyer has finished his opening, the other side makes a
+motion to dismiss the case. When he ends his evidence, the other
+lawyer moves to dismiss. When both sides are through, each moves.
+When the jury bring in the verdict either side may move, or both when
+neither is satisfied. All through the trial there are quantities of
+little motions. Motions to strike out, motions to instruct, motions to
+make the witness answer a question, motions to make the other lawyer
+behave. Except for pointing the finger or raising the voice in
+talking, they are not movements, they are only verbal, the action
+comes in the play of emotions of the parties in court. Motions are
+merely saying what either side wants; the formal asking for something.
+
+The first important motion is on the pleadings themselves or when the
+plaintiff has opened. If the judge does not believe that the plaintiff
+has stated a case in law, he dismisses it on a motion of the defendant
+and the judgment is "without prejudice." The trouble is that a
+judgment of this kind does not finally dispose of the dispute. The
+plaintiff may bring the action over again.
+
+He may appeal from the decision or judgment and the appellate court
+may rule that the trial judge was wrong and then after an interval
+the case goes to a new trial just the same. By this time the plaintiff
+or his lawyer may believe he has no case and desists, but the course
+depends upon whether the parties have not died, grown tired, gone into
+the hands of a receiver, or moved to Borneo. The jury know little as
+to this state of affairs and are not interested in the preliminary
+motions. The clients do not understand but think the lawyers are good
+talkers.
+
+The lawyers are interested in the point of law and believe so strongly
+in their case that if an adverse ruling comes they are shocked and
+surprised. The judge knows that although he grant the motion to
+dismiss, he will probably allow an amendment. He is not greatly
+concerned unless he foresees a possibility of settling the dispute
+definitely and going on to the next case. He is anxious to try the
+present action and get down to the meat of the matter but really if
+they are going to insist on all technicalities he feels a little
+impatient.
+
+He knows that even if the defendant is right and the pleadings are
+defective because the stenographer forgot to insert a date, it can
+still be put in. Recent legislation has found it necessary to say that
+the courts should allow amendments of pleadings where "Substantial
+Justice" will be accomplished thereby. It is a commentary on the
+system of the courts that the people through its legislatures should
+find it necessary to pass a law that judges should amend paper
+pleadings in furtherance of justice. If justice and right depend upon
+pieces of paper to such an extent, the dry formalism of the courts is
+a matter of regret.
+
+The next important motion is when the plaintiff has put in his
+evidence and has rested. "The plaintiff rests," the lawyer says.
+
+The judge and the jury say to themselves, "Well it is half over."
+
+The defendant's lawyer rises and says, "I move to dismiss on the
+ground that the plaintiff has not made out a cause of action. He has
+not shown that the cow was owned by the defendant, or he has not
+shown that the driver of the plaintiff was free from contributory
+negligence, or he has not made out any kind of case at all."
+
+This is an anxious moment for the young attorney. Did he forget
+something? What was there that he did not remember? Will the case be
+dismissed because he forgot to tie a shoe lace or put in a pin? If he
+is more experienced in court work he will not be so worried. The law
+is that the plaintiff must be given every chance at this stage of the
+proceeding. Only when both sides are through does the law begin to
+weigh the evidence. At the close of the plaintiff's case everything is
+in his favor. Any particle of testimony is sufficient on a particular
+point. The theory of the law is that both sides must be heard. If the
+motion to dismiss is made on the ground that something has been left
+out, the court will usually give an opportunity to prove to whom the
+red cow belonged. This motion like many other relics of a by-gone age,
+is a matter of custom and tradition. It is usually made on the theory
+that the judge may think there is no case and that the plaintiff can
+not make out a case. If he so decides, the case is finished, the jury
+is discharged, and the client has his feelings hurt by being thrown
+out of court.
+
+From a decision of this kind there is also a right of appeal which may
+result in a reversal. Then the new jury is impanelled, the witnesses
+are recalled, and the proceedings are gone over once more. If the
+decision or judgment is affirmed, the case does not usually come up
+again; the higher court has said the plaintiff has no case on the
+evidence, and unless new evidence is produced he can never recover. In
+certain accident cases the appellate courts have stated they would not
+give their reasons for dismissing the complaint after the evidence is
+all in because, they say, if they did so they were afraid the
+plaintiff would supply the missing links by manufactured evidence on
+the next trial and not quite honestly. This again is a commentary on
+procedure.
+
+Just at this point is where the law of the case comes in so
+insistently. Before the case comes to court the lawyer is supposed to
+know whether his client has a right of action. Every state of facts or
+a breach of those rights does not give rise to an action that can be
+maintained in a court of law. If you ask a man to dinner and he
+accepts, but does not come, you can not recover your damages for
+providing the dinner; or if you fall down your own well, you can not
+sue the man who built it. The lawyer is supposed to have carefully
+considered what elements of fact make an action. If the facts
+themselves do not give him a right of recovery his case is dismissed;
+or if he has a cause of action but has not proven the facts, it is
+also dismissed.
+
+But as was said above, if the train of facts or those in the pleading
+is imperfect, the modern spirit is to allow them to be made perfect.
+The only theory of law that is contrary to this spirit is what is
+known as the theory that every man is entitled to his day in court
+and the day being had it is unfair to bring the other side in again on
+account of some defect or forgetfulness on the part of the other.
+
+The reconciliation is that there should be no surprises on a trial,
+the modern tendency is to bring the case away from the idea of an
+ordeal by battle. The little advantages that are gained by sorties and
+surprises and which are usually taken advantage of by motion, are
+after all not of great moment.
+
+An anomalous situation shows the absurdity of these motions, for when
+the plaintiff rests, unless the defendant makes a motion to dismiss
+the plaintiff's case, he is supposed to admit that the plaintiff has
+made a good _prima facie_ case, and if he does not move he is forever
+after, on appeal or otherwise, prevented from claiming that the
+plaintiff did not make out a good case. The result is that at the
+close of the plaintiff's case the motion is usually made as a matter
+of form to preserve the defendant's right.
+
+Usually this motion is denied if there is a possibility of making a
+case, but suppose the judge either through ignorance or to be obliging
+should say, "Well, the plaintiff has made out a good case, but if you
+ask it, the blood be upon your own shoulders, and I will dismiss the
+case." The defendant does not want it dismissed but he has asked for
+it and he has got what he asked for. The result is an anomalous
+situation. The case will undoubtedly be reversed and he will be
+mulcted in costs for being compelled to ask, because of the formalism
+of the court procedure, for what he did not want.
+
+At the end of the defendant's case, when both sides have rested, the
+defendant again moves to dismiss. Here again it is a formal motion,
+which he may not altogether mean, but which the lawyer often makes as
+a matter of form. If the judge really believes there is not enough
+evidence to let the case go to the jury, he ought to say so without
+the necessity of a motion. Suppose there is not, he dismisses the case
+"on the merits" and the trial is over. But suppose there is and the
+judge does not know his business and the fine point of law is not
+entirely clear to his Honor, and he makes a mistake and the case is
+dismissed. The result is that although he has granted the motion of
+the defendant to dismiss and given the defendant what he wanted, he
+has in reality penalized him, for the appellate court will reverse his
+decision and the defendant have to pay all costs and stand the expense
+of a new trial. The judge is in a quandary, which he may get out of in
+two ways. One is to let the weak case of the plaintiff go to the jury
+with the hope that they will see what a poor showing the plaintiff has
+made and find a verdict for the defendant, in which event he will be
+safe. But if the jury should make a mistake and find for the
+plaintiff, then the judge has the intention of setting that verdict
+aside, nullifying all the work of the jury, the witnesses, the
+clients, and the lawyers, and ordering a new trial. This is rather a
+weak-minded proceeding and shows the necessity of having a man in the
+referee's chair who knows how to decide.
+
+The second alternative for the judge is to reserve decision on the
+motion and to let the jury go into the jury-room and worry about the
+verdict for an hour or two, while the judge has the hidden intention
+of perhaps deciding that they need not spend any time at all about the
+matter.
+
+The principle on which the judge passes on this motion to dismiss is,
+that after all the case is in and all proof had, that on the proof and
+evidence there is not enough on the part of the plaintiff from which
+any reasonable man could ever find a verdict for him. The motion
+differs from the one at the close of the plaintiff's case in that the
+latter is based on there being no proof at all, while the one after
+the case is entirely in is based on the theory that there is no
+possibility of a verdict.
+
+This sounds again like a metaphysical discussion, but is illustrative
+of the futility of formal motions, so that actually the decision
+depends upon the good plain common sense of the judge. The tendency is
+that if the case has gone to the length of a full trial and there is
+any question of fact involved, that the jury should determine the
+question of fact and exercise their functions. It must be a poor weak
+case of the plaintiff and evidently unsound, in which the judge or the
+appellate court interferes.
+
+Throughout the trial the little motions that occur bear the same
+relation to the main issue as do the objections and exceptions.
+
+"I tried to stop the car," says the motorman.
+
+Up jumps the other lawyer. "I move to strike out as a conclusion."
+
+The witnesses have testified to slightly different facts than what
+were stated in the pleadings. "I move to amend the pleadings to
+conform to the proof," says the lawyer.
+
+"I move for an adjournment on the ground of surprise," says the other.
+
+Of course the statement of the conductor is a conclusion of fact. But
+if the other side wants to find out how he tried to stop the car, let
+him ask what was done. "Did he turn on the brake handle? Did he switch
+on the emergency?" A man does not have to be an expert to say that the
+car was going fast; he may be examined as to what he considers to be
+fast. Nor does he have to be an expert to say that eggs are rotten,
+that butter is rancid, that there has been a war in Europe, that a man
+has a broken leg or looks sick or acts queerly, that the fish is stale
+or the cow was red.
+
+The motion to strike out does not affect the jury, the testimony still
+remains on the jurors' minds. The verbal memory stays. Neither does
+the motion to amend the pleadings affect the jury. What have they got
+to do with it? If the papers are amended it is not important from
+their standpoint. Should the plaintiff have written a letter that he
+was going to sue for something, to the jury that seems better than any
+pleading.
+
+These motions are insignificant and examples of a formalism which,
+however valuable it may be as defining the methods of the legal
+battle, are not consistent with the modern spirit of investigation
+into facts. It is rather significant that the laws creating Public
+Service Commissions and Legislative Investigation Committees in some
+States go to the length of stating that there shall not be any rules
+of evidence such as are employed in the courts of law.
+
+The other motions, such as to direct a verdict, which is usually the
+same as a motion to dismiss, and the motions after a verdict has been
+rendered, are also formal statements of a request for the disposition
+of the case.
+
+They may be all very good and useful in their way, but are merely the
+incidents and measures by which the truth of the matter is reached.
+The client looks puzzled at the argument and the decision, the jurors
+have a not very clear conception of what is going on, the lawyers have
+a meretricious feeling that perhaps they are cheapening themselves a
+little by making so many motions, yet they, nevertheless, have a legal
+right to do so and they must take advantage of every legal right for
+the protection of their clients.
+
+After all the witnesses have been called, the plaintiff and the
+defendant have proved their sides, the plaintiff has contradicted the
+new evidence of the defendant, everybody has been examined, the
+interruptions of the objections and motions, exceptions have been had,
+the judge asks if both sides are through and the presentation of the
+case is ended.
+
+The course of justice has been on a rough and rather narrow road. The
+popular revolt at the method of arriving at the truth is, in fact, at
+the narrowness of the way. The presentation of a case and the means of
+reaching the truth ought to be on a well-defined and orderly system.
+It would seem natural that the crooked and ill-paved streets of an old
+town should give place to the open, smooth, and broad avenues of the
+modern spirit.
+
+
+
+
+XIII
+
+ELOCUTION
+
+
+At last when both sides rest and the judge has passed on the latest
+motions, the intense action of the drama begins. For this the clients
+have been waiting, the lawyers have been training. It is the
+opportunity for them to display their attainments, to show their
+clients what brilliant lawyers they have retained; to let the judge
+know how well they have understood the case; to move and sway the jury
+to their side; to unravel the mysteries and by the power of oratory to
+bring justice where she belongs. When his lawyer is talking, the
+client watches him with admiration, but while the opposing lawyer
+speaks the client can hardly conceal his contempt. He feels that his
+case is secure and he does not understand how there can be anything to
+be said on the other side. Yet he is fearful there may be some court
+trick which he does not understand and the case may be lost.
+
+"Your Honor and gentlemen of the jury," begins the defendant's lawyer.
+Including the judge in his address, although it is a matter of
+courtesy for the eloquence of the summing up, is meant solely for the
+jury. The judge is only supposed to listen and restrain the attorneys
+if they go too far afield in their attempts to influence the jury by
+their efforts. The judge is the time keeper or referee and holds the
+lawyers to the point.
+
+The object of the attack is the jury. As the burden of proving a case
+is on the plaintiff, he is supposed to have the first and the last
+word; therefore, the defendant begins to sum up. After he is through,
+it is the turn of the plaintiff. The tactical position is in favor of
+the plaintiff. The advantage, as in all verbal disputes, is reputedly
+with the man who has the last word. In all debates the proponent has
+the right of opening and closing. The plaintiff began the case with
+his opening, and after it is over he is permitted to close.
+
+"Gentlemen," says the judge, "how long will you take in your address?"
+Both sides agree upon a certain time, which usually proves too short,
+but which is acquiesced in with alacrity because each side thinks
+their case is so plain and convincing that it will not be difficult to
+explain. The lawyer girds up his loins, the court-room quiets, the
+struggle of conflicting evidence is over, the clients and witnesses
+retire from the foreground, the other counsel sits down and the lawyer
+steps close to the jury-box.
+
+"The jury is yours," says the judge, as though he were abandoning the
+jury. Indeed the summing up is an attack, a vivid, keen, masterly
+struggle in which wit and brain is pitted against wit and brain: where
+facts and passions are to be marshalled in the most intelligent and
+plausible way, where imagination and oratory are to be employed in
+their finest capacities. It may be bold, manly, energetic, or soft and
+persuasive; it may appeal to sympathy or threaten with a battery of
+accumulated facts. Forensic oratory is the highest type of art, the
+most powerful of human gifts. The only trouble with most court oratory
+is that it is only fit for the market-place. The lawyer begins with
+the firm impression that he must win the jury. His voice is bland and
+soothing, he feels that he must be soft and persuasive. He rubs his
+hands and remembering the old adage, that laugh and the world laughs
+with you, attempts a little joke. There is nothing so good as to get a
+smile for his side. Perhaps the joke does not go very well and the
+laugh does not come; the point has missed. He will try what flattery
+can do.
+
+"Men of your intelligence can readily see," he says.
+
+"When I was examining you," he explains in a subtle way. "I knew at
+once how unprejudiced and fair-minded you were."
+
+"You gentlemen are practical men and can understand." Yet somehow the
+jury are impervious. They sit back in their chairs and stare.
+
+Then the lawyer begins to forget the object of ingratiating himself.
+Hypnotized by the memory of his client's wrongs, he works himself into
+a frenzy of feeling. He swings his arms, pounds with his fist, raises
+his voice, and thunders his denunciation. His speech takes on a
+threatening tone. He shouts and bawls; the jury must be waked up. They
+sit stolid and unmoved. He tries to catch their eye, there is no gleam
+of interest. Perhaps he has rather a hopeless feeling that the art of
+oratory is not what it is reputed to be. The jury look particularly
+unresponsive. Even that one little juror, with the clever, smart face,
+who is leaning forward with such an expression of enjoyment may not be
+altogether trustworthy. The lawyer has seen that kind before and the
+one juror who seemed the most interested in the last case he argued
+was the very one who held out against him in the jury-room as he found
+afterwards. It seems a difficult matter to stir the jury and the men
+in the box are not at all a warm or enthusiastic audience.
+
+The jury are not particularly keen about the oratory of the lawyer,
+they look upon him as paid to do his part. It is the portion of the
+trial they can understand; they have not clearly comprehended what
+went before. When the objections were being made and there were the
+cross-examination and badgering of witnesses, they could not separate
+in their minds the functions of the lawyer and the personality of the
+lawyer. It seemed as though he were doing a good many unfair things
+and not acting quite up to the mark, but now the atmosphere has
+cleared. They can realize that he is only the paid talker for his
+client, that he is only making all this noise because that is his
+business. To the jury he is the pleader employed as an actor. The
+position is simple; if any one would pay them for acting and
+gesticulating at so much per day or per hour, they would be very glad
+to earn the money.
+
+The client watches the lawyer with affectionate admiration. True, he
+did not do exactly as he was wanted during the trial. He should have
+asked those questions he suggested, but now he is doing grandly. When
+the lawyer is through the client feels splendidly. He sees but one
+side of the case and believes in it absolutely. With such a good
+talker the jury cannot fail of being convinced.
+
+When the lawyer sits down the client shakes him by the hand and tells
+him how well he has done. He might have been willing to settle the
+case for a thousand dollars before, but now he wouldn't pay a cent,
+not one cent. Later, should the jury find against him, even to the
+amount of the thousand dollars which he was willing to pay, he feels
+terribly disappointed. There must have been something very much amiss
+in the jury-room.
+
+The judge while the summing up is going on, is not very attentive.
+His part of the case is over. While the proof was being given he was
+alert. True, the charge is coming afterwards, but he knows fairly well
+what he is going to say, and it is going to be formal. It is the
+function of the judge to control the address of counsel, but the
+counsel are sometimes very hard to control.
+
+In the criminal trials, reference is made to the emotions of the
+defendant's family; the devoted, anxious wife, the poor little
+children who may bear the stigma of their father's disgrace, should
+the verdict go against him. Since the domestic life of neither party
+to the trial has appeared in evidence, such things being entirely
+"irrelevant and immaterial," it does not make a great deal of
+difference whether the picture is accurate or wholly fanciful. The
+defendant may be a drunkard, a burden to his wife, and a horror to his
+children; he may have abandoned his family to their own resources; it
+is possible that he has never had any family at all. The lawyer has no
+right to refer in his summing up, or otherwise, to anything that has
+not been properly submitted in evidence. He is guilty of unfair
+practice in telling the jury about the defendant's family or
+circumstances, unless this has been part of the case, which is
+improbable. He knows this well; so does his opponent and the judge.
+And should the opposing lawyer protest, the judge will say, looking
+up, "Be careful, counselor, be careful." The counselor bows
+respectfully and probably goes on in the same vein. The judge has not
+heard exactly what was said and feels that the lawyers, if they are
+not too blatant and noisy, may say what they please. There must not be
+too much talk about the wicked, money-grabbing, soulless corporation,
+not too much appeal for the down-trodden poor, nor an over indulgence
+in personalities. The lawyers must not call the other side liars and
+thieves too openly. That is, they may say they are untruthful, but
+liar is too strong. The denunciation must be a little restrained.
+
+The judge throws out a rather mild admonition. "The counsellor must
+keep to the evidence. You may not refer to matters which are not
+before the court." The lawyer says, "Yes, your Honor." The judge
+withdraws again into a contemplation of the high cost of living and
+his diminishing bank balance. The shouting and vociferation grow
+louder. The jury are long-suffering, but they cannot object. The other
+lawyer jumps up, and after an insistent effort makes himself heard.
+"The witness did not say that; you are stating something that is not
+so. I ask to have the stenographer read the minutes." The stenographer
+begins turning over the pages of his stenographic book. The exact
+testimony of the lady in the car is hard to find. "Heavens," think the
+jury, "are we going to have the whole case over again?"
+
+The lawyer who is talking complains, "If my friend is going to keep on
+with his objections I shall never get through in my fifteen minutes."
+The stenographer has not been able to find the exact spot. It is
+apparently not in the testimony. Then the lawyer objecting says, "I
+ask your Honor to instruct the jury to disregard the statement of
+counsel." The lawyer must have a sarcastic vein of humor. Such an
+instruction does not seem necessary. The judge says, "I will cover
+that in my charge, but I must ask the counsel to be careful," and he
+looks warningly at the clock.
+
+Finally the hands point to the agreed time. The judge says, "Your time
+is up, counselor." "Just one minute more," says the lawyer and then he
+goes on for three. The judge raps on his desk. The lawyer winds up his
+speech in a hurried peroration. "Therefore, gentlemen, with the utmost
+confidence in your ability as men of experience and affairs, with the
+sure belief in the justness of my defense, I leave the matter in your
+hands."
+
+The plaintiff's lawyer now takes the floor, the jury shift their feet
+and glance at the clock. "Gentlemen of the jury," he begins. He
+probably leaves out the judge. The plaintiff now having the attack is
+more direct. It is rather significant of the change in all procedure
+that the language of all court addresses is becoming more and more
+simple. The old days when the lawyers delivered homilies of Latin have
+disappeared. No longer does the lawyer refer to _nunc pro tunc_, or
+make facetious jokes in a language the layman and probably the court
+does not understand. If a lawyer makes too many Latin quotations, the
+court thinks him affected. He must be simple, direct, and to the point
+at issue.
+
+His art in presenting his case consists in drawing the picture of the
+facts so vividly that they will remain in the jurors' minds. Employing
+his imagination in forming the concept, he gets it across the rail to
+the jury by the fine gift of selecting words and incidents. No one, it
+is said, is ever convinced by argument, but any one can realize a
+visualized picture of words.
+
+The counsel starts to storm and abuse his opponents and his opponents'
+client, and in his wrath also forgetting that persuasion is not
+accomplished by denunciation. The majority of the jury are rather
+easy-going, kindly men, who do not care to hear others made too vile.
+Just as satire is more effective than direct abuse the tolerant
+juryman prefers to have the other party laughed at than called names.
+
+The clients become worked up over their wrongs and excited by their
+lawyers' oratory. When the case is over they are extremely surprised
+to see the men who have been shaking their fists and ready to spring
+at one another's throats, quietly lock arms and go out to lunch
+together. It is all in the day's work and they must fortify themselves
+for the next trial. The shock is something like that when, after a
+melodrama, the heroine having jumped over the bridge and died in a
+whirlpool, comes out quietly and, in spite of her suffering, bows
+smilingly before the curtain.
+
+The judge and the jury know that the lawyers are coming to life again
+and are not really trying to kill each other. This is one of the
+pleasantest aspects of the life in court. There is a good fellowship
+between the two lawyers who have been so keenly struggling. They even
+have a kindly feeling toward the judge when he is off the bench.
+
+The court attendant calls the attention of the lawyer to the time, who
+with a sidelong look at the clock, also "Confidently leaves the case
+in your hands, gentlemen."
+
+The two lawyers sit down and the judge puts on his spectacles, gathers
+up the notes he has been making of the main points of the trial, and
+turning to the jury begins his charge.
+
+
+
+
+XIV
+
+THE HEAVY CHARGE
+
+
+No, madam, the charge of the judge does not mean his bill for expenses
+or his salary for trying the case. A charge implies something grave,
+heavy, and aggressive. It is what the judge tells the jury about the
+case. It is never light or humorous, but ponderous and hard to
+understand. The court-room doors are locked, no one must come in or go
+out during the charge.
+
+The judge looks solemnly at the jury, the jury straighten up from the
+desponding attitude they gradually have assumed during the address of
+counsel.
+
+The end is near and they begin to have hope. They appear interested
+and a gleam of awakened intelligence is in their eyes. Now at least
+they are going to hear what they wanted to know about the case. The
+judge will probably tell them something new and clear up the points
+they did not understand. It may be even he will explain why he made
+those strange rulings during the trial and what that mysterious
+conference was when he called the lawyers to his desk and they talked
+together for so long.
+
+The judge begins: "Gentlemen of the jury, the plaintiff in this case
+seeks to recover," and then he goes on to tell them what the plaintiff
+wants, which is just what the plaintiff's lawyer has been telling
+them. The judge must have been asleep while he was talking for he is
+saying the same thing over again, only in a little different language.
+After that the defendant's case is set forth. There again that is what
+the defendant's lawyer was saying. It does not appear reasonable that
+they are compelled to hear six times what the case is about. There
+were the two openings of counsel at the beginning, the two summing up
+at the end, and now the two explanations of the judge. There ought to
+be an allowance made for the jury possessing a little intelligence.
+
+The judge then tells again what the witnesses have said, in not quite
+so many words, but covering the main points. There is no use in that.
+The jurymen think they ought to remember fairly well what was said.
+The judge admits it after he is through by saying himself: "Gentlemen,
+you are to be governed by your own recollection of the testimony
+rather than by what is said by either side in summing up or by the
+Court." If he means that he should have kept still and let them have
+their own recollection.
+
+Then he goes on: "If you believe any witness has wilfully testified
+falsely as to a material fact, you may disregard that witness's whole
+testimony." Of course, is that not the reason for their being there?
+Why, the judge in the beginning made them swear to decide the case
+"according to the evidence." The jury is going to do exactly that.
+They are going to decide which side is lying and which side is telling
+the truth. They are not quite so stupid as not to know that. There
+seems no need in insulting them by telling them that they need not
+believe a witness unless they want to. Why are they there?
+
+The judge tells them that the function of the jury is to decide the
+facts and for him to decide the law. That is fortunate, for they could
+not understand the law, even if they wanted to; it is a silly business
+and it is not common sense. What the jury feels is that the judge's
+charge is leaving it to them without any trouble about the law. But
+wait a moment, the judge is going on to tell them about the law as
+applied to the particular facts before them.
+
+The important principle of law they are being told is what is known as
+the preponderance of evidence and the burden of proof. The judge goes
+on at great length about the weight of evidence. The weight of
+evidence, he says, is the preponderance of proof and the preponderance
+of evidence is the weight of evidence, and the man who has the burden
+of proof must have the weight of evidence and the weight of evidence
+being the preponderance of evidence is also upon the man who has the
+burden of proof. And the preponderance of evidence does not mean proof
+beyond a reasonable doubt, as in criminal actions, but that the proof
+must be heavier on one side than the other and the one who has the
+burden of proof must sustain the preponderance of evidence. That is
+the law; the judge has said it. What it means the jury give up. The
+lawyers nod their heads wisely. The judge has stated the law
+correctly.
+
+The judge may go on a little further and tell them more about the
+burden of proof and the preponderance of evidence. He may say that the
+weight of evidence does not mean the number of witnesses. The mere
+fact that one side has six and the other side only two does not mean
+that the jury are to believe the side who has six. The jury know that
+when probably they are all exaggerating somewhat they are going to
+decide the way the thing happened. Then the judge tells them, having
+seen the witnesses, "That they may consider their bearing on the stand
+and their manner of giving testimony." Surely they are going to do
+that. Is not the best way of knowing whether a man is telling the
+truth to look at him and watch him while he is talking? There is
+little sense in the judge advising them to consider his bearing on the
+stand.
+
+Another thing the judge says is that they are not to be governed by
+sympathy or prejudice in arriving at their verdict. This is a caution
+that the judge thinks necessary. He forgets that when they are in the
+jury-room, with locked doors and no one to disturb them, they are
+going to do exactly as they are inclined. Prejudice and sympathy are
+for unintelligent people who do not know what they are about. Both
+lawyers have been telling the jury what intelligent men they were and
+it seems unnecessary for the judge to say that they are not to be
+governed by prejudice and sympathy. Suppose the defendant is a rich
+corporation, they are not going to find against it because it is rich.
+The company can stand the loss of a few dollars out of its pocket
+better than the poor man anyway. Not that they are going to decide for
+that reason.
+
+As these accumulating evidences of the judge's misunderstanding of
+their attitude of mind pile up, the jury sink back into their seats.
+After all, the charge of the judge is not more understandable than
+most of the other parts of the trial. The saving point about it is
+that the end is drawing near and they can soon get away and have a
+smoke in the jury-room, and afterwards go home.
+
+The judge, while he is charging, understands a little of what has been
+going on in the jury's mind. He has seen the gleam of interest which
+was in the jury's eyes at the beginning gradually die out. He notices
+how they fall into resigned attitudes. He has a glimmering that the
+good old legal aphorisms which he has been enunciating with such care
+about the burden of proof, the weight of evidence, the credibility of
+witnesses and the caution about sympathy and prejudice, are not very
+convincing to the jury. But the conventions require that he must go
+on.
+
+"Gentlemen," he says, "I must instruct you to eliminate from your
+minds any discussion of counsel upon questions of law or rulings of
+the court upon the rejections of testimony, or decisions upon motions
+to dismiss or direct. They involve matters of law with which you are
+not at present concerned. In arriving at your verdict you are to
+consider only the evidence."
+
+Perhaps the judge feels a trifle foolish and therefore he becomes more
+emphatic and solemn. He carefully and in a painstaking manner defines
+the law of negligence. He tells them the law of negligence involves
+two cardinal principles. "The first is that the plaintiff must
+establish that the defendant by its employees was guilty of
+negligence, that he failed to act as a prudent and careful man;
+second, that the plaintiff must have shown himself free from
+contributory negligence; that unless the jury find both of these, that
+the plaintiff cannot recover." Then perhaps he interjects a little
+more about the balance of proof as to these particulars. "If the jury
+find the plaintiff was negligent and the defendant was negligent, they
+must find a verdict for the defendant. If they find the plaintiff was
+not negligent and the defendant was negligent, then they may find a
+verdict for the plaintiff, provided they find, etc., etc. Otherwise
+should they find the plaintiff was not negligent and the accident
+happened not through the negligence of the defendant, then again must
+they find for the defendant, or again--" but the jury by this time is
+exhausted. The alternatives do not interest them. The judge may know
+what he is talking about, but they do not. The interesting question is
+how much are they going to give the plaintiff.
+
+The judge finally becomes worn out, a kind of self-hypnosis sets in.
+He remembers so many phrases and legal maxims that he might enunciate,
+his brain becomes confused as to selection. There are volumes of
+charges to juries which he has more or less learned by heart. There
+are so many glittering and vague generalities about the law of
+negligence, the law of contracts, the law of evidence, the burden of
+proof, or the weight of testimony, that he could go on indefinitely.
+The jury have ceased to understand and the judge realizing the
+hopelessness of this situation, winds up by saying--"So, gentlemen,
+bearing in mind what I have just told you and the evidence in the
+case, you will retire and consider your verdict."
+
+The jury begin to gather their hats and coats, when up jumps one of
+the lawyers and says: "One moment, please. I ask your Honor to charge
+that if the jury find the cow that was in the plaintiff's garden was a
+white cow and not a red cow, then their verdict must be for the
+defendant." "I so charge," says the judge. "I except," says the other
+lawyer, "and I ask your Honor to charge the jury that if they believe
+the cow was the property of the defendant, their verdict must be for
+the plaintiff." "I refuse to charge in those words," says the judge,
+"there may not have been any cow or he may not have eaten the
+cabbages." Or the lawyer for the railway may ask the judge, "That if
+the jury find that the driver was forty feet away from the tracks and
+the car was a hundred feet away from the corner of Seventy-eighth
+Street when he first saw the car, and the car was going at a rapid
+rate and the conductor pulled the bell and the driver was sitting on
+the right-hand side of the wagon and might have seen the car had the
+car been one hundred feet below the corner, then in that event I ask
+your Honor to instruct the jury that the plaintiff was guilty of
+contributory negligence and cannot recover."
+
+The question is undoubtedly a poser. The judge is evidently worried;
+if he make a wrong guess and says "yes" or "no" at this juncture, the
+appellate court may say: "Error, judgment reversed, new trial
+ordered." What happens is that the judge takes a chance. The lawyer
+says, "I refer you to 169 New York Court of Appeals Reports, page 492;
+in the case of Jones _vs._ Metropolitan, the court there said that the
+refusal to so charge was reversible error." The judge looks wise and
+finally says, "yes." There is a little playing of politics in this; he
+has possibly been thinking how the jury are going to decide and
+realizing that what he charges won't make any difference, he plays
+safe by charging what the losing side wants.
+
+These requests to charge may go back and forth indefinitely with
+rulings and exceptions. Either lawyer may except to a portion of the
+judge's charge, thus serving notice upon him that unless he hurry up
+and change it he may be reversed on appeal. That is the reason why the
+charge of the judge has not a great effect. He has to be too careful.
+
+In New York State the judge can not say what he thinks about the
+case. In other words, the charge must be indefinite. In England and
+the Federal courts in this country, the judge may legally express his
+opinion as to how the case should be decided, but that is as far as he
+can go. The distinction is a relic of the old days of the jury system
+when the judges would imprison the jury until they found as was
+wanted. Now the judge may only express a preference and the jury may
+do as they please. In some courts the democratic idea of the
+independence of the juryman goes to the extent of not allowing the
+judge to say anything specific.
+
+The result is that the jury are confused. They are usually of so
+independent a nature that the judge's charge would not greatly
+influence them. The clients sit by utterly confounded; they hear the
+judge wisely say, "I think perhaps yes, but on the whole it may be
+no," and when he is through, not understanding as much as the jury,
+they think the judge's charge is very fair. Having said little of
+import it probably is.
+
+The continental method is so entirely different, that it is shocking.
+In the courts in France the judge practically says for his charge,
+"You've heard the evidence, now go on out and do what's right." This
+again illustrates the difference between the old and the new ideas of
+courts. The old is a battle ground where the issues are defined, the
+courts are kept within narrow limits and the rules of the ordeal
+observed strictly, and the modern, merely an investigation of a
+dispute with the glamor of a contest left out. It is an investigation
+of facts, which however bitter may be the personal animosity, should
+never lose sight of the main idea of arriving at the plain truth, in a
+common sense way.
+
+At last the lawyers are silent, the trial is over, the judge patiently
+asks are there any more requests to charge, and there being no more,
+he turns to the jury and says, "Gentlemen, you will retire and
+consider your verdict." Slowly they file out, conducted by the court
+attendant, to the jury-room.
+
+
+
+
+XV
+
+THE TRUE VERDICT
+
+
+The truth is said. The battle is over and the mighty have prevailed.
+The decision is made. Justice divine and compelling is about to
+pronounce its sentence. The truth seeks to burst forth and the jurymen
+have knocked at the door of the room in which they have been locked
+for so many hours. The court attendant, who has been standing like a
+sentinel outside to prevent the approach of eavesdroppers and
+listeners, turns the key and sticks his head into the room, withdraws,
+locks the door again, and sends off for the judge.
+
+The judge has been in his chambers taking a rest and enjoying a cigar.
+The judge always, when he is off the bench, is by courtesy said to be
+in chambers--other people might call it a room with an office desk,
+but the dignity surrounding a judge invests even the bare office room
+where he sits. It is named in the plural, even if it is only one
+ordinary room. He throws away his cigar. The lawyers or their
+assistants who have been lounging about the empty court-room,
+gossiping with one another and trying to evade the importunities of
+their clients, who insist upon speculating with them on the probable
+result, have been summoned to the bar. The judge takes his seat on the
+bench. The jury, marshalled by the court officer, file in. They are
+lined up in the jury-box.
+
+"Gentlemen," says the judge, "have you agreed upon a verdict?" "We
+have," answers the foreman of the jury.
+
+When the jury have first been locked in the jury-room they have
+probably immediately relaxed after the long strain of the trial. They
+were entitled to a smoke and to feel at their ease. Besides they know
+that if they finished their deliberations too early, they will be
+called on another case. It was nearly two when the judge finished his
+charge, so they have plenty of time to waste; for if they came back to
+the court-room before three they would be impaneled in another trial.
+
+They have taken a straw vote to find out how the sentiment stood, not
+with the hope of arriving at a decision but by way of trying out the
+matter. The result stands nine for the plaintiff and three for the
+defendant. They light their cigars, for they came well prepared for
+the tedious hours in the jury-room.
+
+The nine men look at the other three in disgust, the three look at the
+nine with contempt and then they begin to argue. The deliberations of
+the jury are always secret, their method of procedure is uncertain,
+and only the result of their deliberations appears in court.
+Nevertheless, it is only reasonable to speculate on how they have
+arrived at their verdict. Their verdict is the climax of the drama,
+the goal of the race, the award of victory. One side must win and the
+other be defeated. The psychology of the jury in reaching the verdict
+is the great mystery and the most intense interest of the trial. The
+judge does not know, the lawyers are unable to understand. There is a
+certain respect for the inviolate privacy of a jury-room. If trial
+lawyers could understand the method by which they arrive at their
+final announcement they would be far better equipped than by a study
+of the law for many years.
+
+It is a question whether or not their actions are different from those
+of ordinary men outside a court-room. They have left the restraining
+influence of an uncomfortable and conspicuous position and have
+entered again into the attitude of mind of the everyday world. The
+control of the judge has disappeared. The lawyers are only memories.
+They have become only plain business men with something definite to
+do. They do not know how to do it and the discussion begins in a
+desultory way.
+
+"Well, we ought to give that boy something."
+
+"I don't like the looks of that last witness."
+
+"That lawyer for the defendant was too smart."
+
+"But do you think the driver tried to cut him off?"
+
+"He couldn't have been in bed six weeks."
+
+"No man would stay in bed that long with a sore knee."
+
+"Oh, well, he only meant he was about the house."
+
+"That doctor was a great one. He loved to get off those terms; he must
+be just graduated from the hospital."
+
+"Did you hear the lawyer say in a case he tried in Brooklyn he had
+seventeen of those experts?"
+
+"Well, let's take another vote and see if we can't get together."
+
+"I can't stay here all day. I've got to close something important at
+four o'clock."
+
+"You'll stay here if you have to; we want to get this settled right."
+
+Another vote is taken. The result is the same and the two sides
+gradually assume opposing positions. Each one takes a leader and
+spokesman; the discussion is probably between those two and an
+occasional interjection by the others. By this time the argument has
+grown tense and after half an hour the original arguments of counsel,
+the evidence, the instructions of the judge have become merged in the
+minds of the jury with what has been talked of in the jury room. The
+recollection of each juror includes the recollection of the discussion
+that they are having. The mental picture is now a combination of what
+each witness thought, each lawyer conceived it, how the judge
+described it, what they imagined it during the trial, and added to the
+mental concept is the recent present struggle between twelve points of
+view.
+
+They do not remember what it was the judge told them about their
+verdict. Suppose they send out and ask him. No, they do not want to
+appear like fools. It is plain. Their verdict must be for the
+plaintiff or the defendant. But in that contract case where the other
+side wanted something back from the plaintiff, how are they going to
+find a verdict for both? They can't find a verdict both ways. They had
+better send out and ask the judge. No. Well then they will send for
+the pleadings, they will show.
+
+"What," says one juryman, "do you think those pleadings would show
+anything a reasonable man could understand?"
+
+They decide that there was a bill that told the story. They knock on
+the door. The court attendant opens it. They explain, he gathers in
+the lawyers, and they go to the judge's desk. There is a thrill. The
+jury have agreed so quickly it must mean a verdict for the plaintiff.
+If they had been out longer it would have meant there was a
+disagreement or a verdict for the defendant. The longer the jury stays
+out the better for the defendant thinks the lawyer. But the actions
+of the jury are uncertain and there may be no rule of arriving at
+their decision.
+
+There is the story of the judge who, after the jury had been out for a
+long time, made a bet with the stenographer as to how the jury were
+going to decide. The judge thought himself an expert in determining
+the probable verdicts of the jury. After they came in and announced
+their decision and were discharged, the judge having lost looked
+crestfallen. The stenographer smiled. Then the judge recovered
+himself.
+
+"You win," he said, "but the next time you and I bet on a decision it
+is going to be one of our cases without a jury."
+
+The attendant asks for the bill and returns to the jury-room. The
+court falls into a lethargy of waiting. The jury, having their
+information, go on with the discussion, probably on the following
+lines.
+
+"Sure, I told you the silks were worth four hundred dollars."
+
+"Well, I know those kind of people; they are small people and they
+never did that amount of business in all their lives, let alone one
+month." Or,
+
+"Don't you know that neighborhood; all the cars speed up whenever they
+get there."
+
+"Why, yesterday I was getting off a car and the conductor pulls the
+bell, etc., etc."
+
+"No, I ain't prejudiced against the railroad; I ain't got nothing
+against the railroad."
+
+"Of course, we ain't going to decide this case on sympathy or
+prejudice. But that boy's Irish and he looks like he come of good
+honest people."
+
+"Vy, I don't see no difference whether he is Irish--or Yiddish; vot ve
+vant is justice."
+
+"Now see here, my friend, if you think you're going to make this a
+racial matter you're mistaken. Just because that boy's Irish you
+needn't think he ought not to get nothing. You're prejudiced, that's
+what you are."
+
+"Oh, let's get down to the evidence anyway; what we want is to
+decide."
+
+"Vel, the motorman vas Irish, vot you talking about?"
+
+"Sure, but he had to say what he did. Didn't he have to hold down his
+job with the company?"
+
+The rest of the jury sink back resigned and despondent. They will
+never get out. One of them ventures.
+
+"The judge told us that the law was--"
+
+He is interrupted.
+
+"Oh, we don't care so much about the law. What we want to do is to do
+what is right."
+
+Somewhere, somehow, and by non-understandable methods the verdict is
+reached. If the jury ask for further instructions, they file back into
+the court-room and the judge proceeds to elucidate the hidden mystery
+of the law in much the same manner he did in his charge. They return
+again not satisfied, and take up the discussion.
+
+The most dramatic moment in the trial is when the officer comes in and
+announces the jury have agreed. While they slowly file in, the
+prisoner or the parties watch them with soul-tearing eyes; the lawyers
+with anxious expectancy. There is an electric thrill in the air. In
+some mysterious manner their verdict becomes known before the foreman
+speaks. Call it thought transference, mind reading, or what you will,
+there is a quick understanding from their faces, their manner of
+walking in, and their final pronouncement is only a confirmation of
+what was expected.
+
+The jury has spoken, the lawyer who has lost moves to set aside the
+verdict. The jury looks startled. Is it possible that after all that
+trial and all that deliberation the judge is going to upset it again
+and have the long trouble gone over. The judge denies the motion or
+takes it under advisement. Only on rare occasions does he set the
+verdict aside then and there. The verdict must have been outrageous,
+absurd, clearly a compromise, or absolutely and shockingly against
+common sense. The theory of the law is that the verdict of a jury is a
+final judgment on the facts by the best judges of the facts. It will
+not lightly or for small reasons be interfered with.
+
+The question of belief in the jury system is one of the most futile of
+all large questions. In the first place, jury trial is so deeply
+engraved in the constitutional bill of rights that one might as well
+ask: "Do you believe in citizenship?" "Do you believe in the United
+States of America?" Secondly, trial by jury is so completely involved
+in the present system of court trial and procedure, that they are
+inseparable. The evils of the whole attach to the part and the
+beneficent aspect of the courts pertain equally to jury trials.
+
+Coming down to a concrete case and leaving the abstract principle to
+the theorist, there are certain obvious things to be said for and
+against jury trial. The jury represents the opinion of the common or
+ordinary man--the _vox populi_. Twelve men picked at random are
+probably neither all capitalists nor all laborers. They are made up
+of a few of both, but the majority, if not all, are the small
+tradesmen or the great middle class. These men are not ignorant,
+prejudiced, or unintelligent. They have a limited experience, but
+their judgment is the judgment of mediocrity and mediocrity is what is
+wanted. The professional man, the expert, the specialist is needed for
+the special degree of administration, but for the determination of the
+actual right and justice, what is needed is the instinct of the
+ordinary man,--the plain ordinary common sense.
+
+When the criminal says: "I stand a better chance with a jury"; when
+the civilian says: "If I had the wrong end of the stick give me a
+jury," he is appealing not to the wrong side of the jury system, but
+to a quality which is not always recognized.
+
+Law is an exact, definite statement of principles, absolute and
+apparently immutable. When a man on the street walks up to another and
+wantonly insults him, the law is, that the insulted party must turn
+and walk away. If the matter came before a jury they would never
+convict him for knocking the other down at once. The jury system is
+the mitigation of the law.
+
+
+
+
+XVI
+
+LOOKING BACKWARD
+
+  Extracts from the Graduation Dissertation of a Columbia
+  J.E. upon receiving his degree of Juridical Expert in 1947.
+
+
+Historical investigation of obsolete customs is of little value beyond
+preserving some record of what may soon be forgotten.
+
+In the year 1947 it seems almost unbelievable that the universal use
+by the public of Judicial Corporations should have been a matter of
+such recent economic growth. It is interesting to trace their
+development and the social causes from which they sprang.
+
+The efficient administration of these co-operative Corporations being
+demonstrated by their financial success, makes it unnecessary to
+dwell upon the details of their intensely developed organization.
+Existing as they do upon so broad a comprehension of the whole
+commercial and social structures, it is little wonder that they have
+proven their value to the community. Their highly specialized
+departments of Issues, Investigation, Statutory Law, Records,
+Determination and Results correspond in a measure to the former method
+of procedure in the extinct courts of law and equity. Times have
+indeed changed.
+
+The analogy between the present methods and the antiquated and
+conventionalized customs of those cumbersome and inadequate
+institutions is not difficult to find. The department of Issues, for
+example, corresponds to what was known as the pleadings in an action.
+These were formerly bits of paper governed as to form by inflexible
+rules, instead of the efficient method by which under the trained
+managers of able minds the matters in dispute, either of fact or law,
+are now narrowed down to exact points of difference. Naturally the
+methods of their managers being untrammelled by outside rules and they
+being men of wide experience and tact, the work of this department is
+not as difficult as at the first commencement of Judicial Corporations
+was anticipated.
+
+The departments of Investigation and Experts correspond with the
+former division of court trials known as evidence and testimony. Any
+explanation would be futile of this branch of a forgotten formalism.
+The ancient rules of evidence and court procedure could only be
+understood by contemporaries and an extensive research has failed to
+disclose very clear concepts even by them. The modern methods of the
+departments governing the ascertainment of facts, either through the
+experience of the departmental employees or the efficient work of
+trained investigators, have naturally been much aided by the invention
+of the Viviphone making all communication adequate and easy.
+
+The departments of Statutory Law and Records even yet retain certain
+characteristics of a period when judicial officers and clerks
+represented to the public mind the embodiment of what was known as
+"Red Tape," a true colloquialism descriptive of the attitude of
+official conservatism. These departments being governed according to
+the latest bibliographical methods are of merely supplemental value as
+reference. The Simplification and National Unification of Federal and
+State statutes has, of course, added greatly to the facility of this
+branch of the business.
+
+The Determination and Result departments at first were thought to be
+of primary importance. Corresponding as they did in their functions to
+the former exclusively judicial qualities of the courts and the final
+judgments thereof, the exaggerated import previously given to those
+functions pre-supposed an equal necessity in this subdivision of the
+management of the corporation. This proved to be incorrect. It was
+found that after a careful framing and narrowing of the matter in
+dispute by the Issues department, and a thorough and careful sifting
+of facts by the Expert and Investigation departments, the dispute
+gradually, if not wholly, disappeared. Men of the highest character
+and calibre being employed at large salaries as heads of these
+departments, have given adequate satisfaction, as has been proved by
+the prosperity of the Corporations. The recompense of the heads of
+these various departments, requiring as it does men of the greatest
+commercial understanding, is said to be in some instances fabulous.
+
+In the early quarter of the present century and indeed in the latter
+part of the nineteenth, the undercurrents of many movements were
+already stirring the surface of the placid stream in which for so many
+centuries had been flowing the course of justice. Those curious relics
+of a medieval, age, the law courts, still at so recent a date,
+retained many of the forms, characteristics, and usages of a time
+when knights fought in plate armor and indulged in the mimicry of
+battle, urged on by the glamor of chivalry. The very terms and the
+legal phraseology of the period implied the jousts, tournaments, and
+ordeal by battle of a romantic and self-deceptive age.
+
+The universal world war that resulted in such an immense change of
+social and economic values contributed naturally to the destruction
+and abandonment of old forms and structures. Yet even before the war
+and the economic revolution that followed so quickly thereafter, the
+tendencies toward a more sane treatment of the question had already
+begun.
+
+Like the extinct class of so-called physicians and doctors, who have
+now been amalgamated by the Public and Private Health Corporations,
+what was known as the legal profession or men known as lawyers and
+judges, had been gradually losing their characteristics as a class and
+had been step by step merging into men of business.
+
+One of the earliest changes was the disappearance of the lawyers known
+as the real estate lawyer. Up to about 1890 there still remained
+members of the legal profession who made a livelihood out of the
+examination of the titles to real property. The obvious advantages of
+a comprehensive title examination plant by large corporations known as
+Title Insurance companies soon eliminated this particular subdivision.
+
+The next important change arrived in a curious manner under the cry
+for what was then known as Social Justice--a vague term which was then
+advocated by many so-called "reformers" and ignorantly opposed by the
+capitalist class, without any very clear understanding of what was
+meant. So little was realized of the economic and efficiency values of
+insurance against chance, that the beginning of the movement was
+opposed. The movement resulted in certain obvious changes which
+looking back upon them seemed inevitable and natural. This was what
+was known as universal Employers' Liability laws. The principle soon
+extending itself to all classes of accidents, resulted in the passage
+of legislation which had been foreshadowed by the tremendous growth of
+Casualty and Accident Insurance companies. Beginning at first with
+laws holding the employer liable for accident, and afterward resulting
+in the insurance of labor, it was gradually extended to accidents of
+every nature, including injury from travel on common carriers and the
+ordinary vicissitudes of life.
+
+The result of State insurance against negligence and injuries of every
+kind was that all claims for injuries were adjusted by the State and
+the lawyers who lived by pursuing the neglect or misfortunes of
+others, gradually became extinct. A certain distinguished and
+conspicuous type was known by the term "ambulance chasers"--the exact
+derivation of the term not being now, in 1947, entirely clear but
+probably being related to some antiquated legal custom of succoring
+the wounded--very soon disappeared.
+
+The cases that arose from all commercial disputes became less numerous
+as the more candid and intelligent dealings of the economic world
+awoke better and more honest business standards. But long before the
+disappearance of what was known as the commercial lawyer, there are
+evidences that the former courts of law, even before their entire
+abandonment, had fallen into a partial desuetude. Apparently disputes
+of large magnitude never reached the courts. And the legal standards
+enunciated by the courts were so entirely unrelated to the standards
+on which the actual commerce of the world was conducted, that resort
+was but little had to the arbitrament of the law of procedure in
+court.
+
+The entire change of personal and domestic relations and the greater
+freedom from the institutionalism of semi-civilized communities,
+_e.g._, the abandonment of all restriction on divorce, naturally did
+away with the class of litigation that appeared in certain courts of
+law dealing with marital or personal grievances.
+
+In regard to what were known as criminal lawyers and criminal courts,
+the different attitude which the public formerly had toward
+unfortunate sufferers makes the existence of such a class or such
+institutions almost unbelievable. As it is now inconceivable that we
+should throw into unsanitary jails men and women who are mentally or
+socially diseased, so is it hard to realize that during the
+unintelligent period of which we are speaking, nay for many centuries,
+there existed people who lived upon their misfortunes.
+
+Naturally with the disappearance of litigation and lawyers the public
+no longer tolerated the existence of the judges or courts. For a few
+years they retained a hold upon the imagination of a small portion of
+citizens who entertained a sentimental regard for the State
+institutions of a civilization founded upon the unsound teachings of
+eighteenth-century doctrinaires.
+
+The period of the abandonment of the old courts corresponded with the
+extraordinary development for what was called "moving pictures";
+those pale, lifeless presentations without color, speech, or
+substance, at which the people of a benighted age gathered for
+amusement or entertainment! It requires imagination to conceive that
+people were unfamiliar with the ease of communicating with any place
+on the globe and reproducing exactly in form, color, and speech by
+turning on a switch. The observer of that age must have been shocked
+and surprised to find the solemn courthouses turned into what was
+known as moving-picture palaces or as community centers for dancing
+and social entertainments.
+
+The change of class which the lawyers had gradually been undergoing to
+simple men of affairs was not so abrupt as that for the judicial
+officers, who were far removed from actual life. Various expedients
+were attempted by which they could be preserved as a class. Their
+former occupation being gone and the idea of pensioning not being
+satisfactory, as there remained a large number of younger men on the
+bench who might be of some value to the community, a system of court
+cafés was evolved. Even to-day it is fast disappearing and for the
+benefit of future generations it may be well to describe the last
+remnant of an institution that held its position in the social order
+for so long.
+
+Human nature being always substantially the same, it was thought that
+its demands for the dramatic action and stress of battle should have
+some outlet. It was not thought wise to entirely abolish the arenas
+for legal disputes, although the present Judicial Corporations with
+their excellently organized departments were already rapidly
+destroying all litigation. It was felt that perhaps humanity demanded
+the bringing together of the two disputants so that they personally
+might oppose their claims to one another.
+
+It now seems incredible, in view of the absolute simplicity of
+communication by Viviphone, that this should be thought necessary. The
+need for romantic expression seemed to demand the opportunity for
+personal presentment. The social workers who established these café
+courts, did not realize that with the growth of a more intelligent
+public point of view, the question of abstract justice was little more
+than an application of customs and social standards to particular
+facts; and that with the fall of the ideas of justice in the abstract,
+there also fell the appurtenances of justice.
+
+It may here be noted that the learned treatise of Professor
+Humperdinck upon the recent discovery of certain statutes found among
+the ruins of the Great New York Explosion is mistaken. The figure
+which he described among others of the woman blind-folded and with an
+arm extended as though holding something, does not represent as he
+calls it, "The poor blind girl begging," but a figure of the Goddess
+of Justice holding the scales, who was so long worshiped.
+
+The growth of the court cafés was made possible by the amelioration in
+the climate of New England effected through the alteration in the
+course of the Gulf Stream. The inhabitants became accustomed to spend
+more time in the open air so that the courts became popular. Existing
+as places for the display of eccentricities and the airing of personal
+grievances, they soon became extremely frequented as places of
+amusement.
+
+Whenever any litigant felt that there was any matter in dispute which
+needed adjustment by some outside agency, he invited the other party
+to come to the court. The judges occupied the position of proprietors,
+_maîtres d'hôtel_, and waiters, whose business it was to make the
+courts as attractive as possible. As their salaries depended upon the
+amount of receipts and the courts were run upon a partnership basis in
+which all shared the profits, the aim of the judges was to draw as
+large amount of custom as possible.
+
+The surroundings were in every way desirable. In the open air, under
+spreading trees with the sunlight filtering through the leaves upon
+the well-kept lawns, were spread tables covered with delicious fruits
+and every delicacy that the human mind could devise in the way of
+culinary delights. Rare wines, exotic flowers were constantly supplied
+in profuse display. Luxurious divans and reposeful seats were
+interspersed about. The most modern as well as the most famous
+musicians furnished exquisite music, while flitting about in neat
+white aprons partially concealed by their gently swishing gowns of
+black, the attentive justices anxiously tried to add to the pleasure
+and comfort of their customers.
+
+With such temptations as these there was little wonder that the
+opposing party accepted the invitation to attend court. Witnesses and
+spectators crowded about, both on account of the novelty of the
+institution and the opportunity for refreshment and amusement. The aim
+of the judges was to incite the disputants to continue their disputes
+instead of trying to pacify them.
+
+The more vociferous they grew, the more noisy and passionate they
+became, the better the crowds were held who came to observe the
+performance. It was upon this clientele and the sale to them of viands
+and comestibles during the dispute that the profits of the judges
+depended. So long as there was a serious and energetic struggle the
+spectators remained at the adjacent tables and trade was brisk.
+Whenever, however, the litigants came to a full realization of the
+absurdity of their position, either by the continued laughter of the
+spectators at the public airing of their private wrongs with which the
+public had nothing to do, or becoming tired of mere words and came to
+diminish the ardor of their combat, the crowd would begin to dwindle
+away. The judges quick to understand the loss of trade after vainly
+trying to induce the litigants to new efforts, would gently and
+suggestively push under their hands a pair of dice boxes or a pack of
+cards and the dispute would sometimes end upon the throw of a die or
+the turn of a card.
+
+The reason that these court cafés have not long remained in vogue, was
+that all actual litigants soon became so sophisticated as they
+realized the enormity of the position and how unreasonable their
+conduct seemed to the average man. Public sentiment was naturally
+against such a waste of time and real performers became scarce.
+Several of the courts were detected in hiring false litigants as
+actors so as to draw the crowds. The performance not being genuine
+soon lost its interest. The patrons left them and many courts became
+bankrupt. So like their predecessors, those light-minded courts have
+practically ended.
+
+
+THE END
+
+       *       *       *       *       *
+
+
+Justice to All
+
+The Story of the Pennsylvania State Police
+
+  By
+  Katharine Mayo
+
+  Introduction by
+  Theodore Roosevelt
+
+  8º. Illustrated. $2.50
+
+Theodore Roosevelt says: "It is a book so interesting and so valuable
+that it should be in every public library and every school library in
+the land." This State Constabulary in its romantic career has hunted
+down crime, made raids into "Black Hand" strongholds, protected lives
+and property from mob violence, and always risen to every emergency
+where nerve and swift action are required.
+
+G.P. Putnam's Sons
+
+  New York           London
+
+
+
+       *       *       *       *       *
+
+
+
+      +---------------------------------------------------------+
+      |         Typographical errors corrected in text:         |
+      |                                                         |
+      |   Page 7: beween changed to between                     |
+      |   Page 21: psuedo-classic changed to pseudo-classic     |
+      |   Page 173: frigthened changed to frightened            |
+      |   Page 202: planitiff changed to plaintiff              |
+      |                                                         |
+      +---------------------------------------------------------+
+
+
+
+***END OF THE PROJECT GUTENBERG EBOOK THE MAN IN COURT***
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+<h1 class="pg">The Project Gutenberg eBook, The Man in Court, by Frederic DeWitt Wells</h1>
+<pre>
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at <a href = "https://www.gutenberg.org">www.gutenberg.org</a></pre>
+<p>Title: The Man in Court</p>
+<p>Author: Frederic DeWitt Wells</p>
+<p>Release Date: November 10, 2005  [eBook #17041]</p>
+<p>Language: English</p>
+<p>Character set encoding: ISO-8859-1</p>
+<p>***START OF THE PROJECT GUTENBERG EBOOK THE MAN IN COURT***</p>
+<p>&nbsp;</p>
+<h4 class="pg">E-text prepared by David Garcia, Jeannie Howse,<br />
+               and the Project Gutenberg Online Distributed Proofreading Team<br />
+               (https://www.pgdp.net/)</h4>
+<p>&nbsp;</p>
+<div class="tr">
+<p class="noin">Transcriber's Note: <br />Some obvious typographical
+errors have been corrected in this text. For a complete list please
+see the bottom of the document.</p>
+</div>
+<p>&nbsp;</p>
+<hr class="full" />
+<br />
+<br />
+<br />
+<br />
+<br />
+<br />
+<br />
+
+<a name="Page_iii" id="Page_iii"></a>
+
+<h1>The Man in Court</h1>
+<br />
+<br />
+<br />
+<br />
+<br />
+<h3>By</h3>
+<br />
+<h2>Frederic DeWitt Wells</h2>
+<h4>Justice, Municipal Court of New York City</h4>
+<br />
+<br />
+<br />
+<br />
+<br />
+<br />
+<br />
+<h5>G.P. Putnam's Sons<br />
+New York and London<br />
+The Knickerbocker Press<br />
+1917</h5>
+
+<br />
+<hr />
+<br />
+
+<a name="Page_iv" id="Page_iv"></a>
+
+
+<h5 class="sc">Copyright, 1917<br />
+BY<br />
+FREDERIC DeWITT WELLS</h5>
+<br />
+<br />
+<h5>The Knickerbocker Press, New York</h5>
+
+<br />
+<br />
+<br />
+<br />
+<hr />
+<br />
+
+<a name="Page_v" id="Page_v"></a>
+<h4>To<br />
+MY FRIEND<br />
+<br />
+CHARLES E. GOSTENHOFER<br /><br />
+OF THE NEW YORK BAR<br />
+IN ACKNOWLEDGMENT OF HIS AID AND SUGGESTIONS<br />
+THIS BOOK IS DEDICATED</h4>
+
+<br />
+<br />
+<br />
+<br />
+<a name="INTRO" id="INTRO"></a><hr />
+<br />
+
+<a name="Page_vi" id="Page_vi"></a>
+
+<h3>INTRODUCTION<span class="totoc"><a href="#toc">ToC</a></span></h3>
+<br />
+
+<div style="margin-left: 10%; margin-right: 10%;">
+<p>The author has tried to show the point of view of the ordinary man in
+a law court, as the various proceedings of a trial take shape before
+him. To the initiated, the whole book may seem too obvious; but it has
+not been written for them, but for those to whom these proceedings are
+unfamiliar. There are many who have a certain curiosity about the
+courts, and at the same time a real respect for justice, mingled with
+amusement at the panoplies and antiquated forms of legal procedure.</p>
+
+<p class="right"><span class="sc">F. DeW. W.</span></p>
+<p style="margin-left: 1em; margin-bottom: .2em;"><span class="sc">NEW YORK</span>,</p>
+<p style="margin-left: 2em; margin-top: .2em;"><i>January, 1917</i>.</p>
+</div>
+
+<br />
+<br />
+<br />
+<br />
+<a name="toc" id="toc"></a><hr />
+<br />
+
+<a name="Page_vii" id="Page_vii"></a>
+<h3>CONTENTS</h3>
+<br />
+
+<div class="centered">
+<table border="0" cellpadding="1" cellspacing="0" width="60%" summary="Table of Contents">
+  <tr>
+  <td width="10%">&nbsp;</td>
+  <td width="70%">&nbsp;</td>
+  <td class="tdr" width="20%"><span style="font-size: 90%;">Page</span></td>
+  </tr>
+  <tr>
+  <td>&nbsp;</td>
+  <td class="tdlsc">Introduction</td>
+  <td class="tdr"><a href="#INTRO">iii</a></td>
+  </tr>
+  <tr>
+  <td class="tdr">I.&mdash;</td>
+  <td class="tdlsc">A Night Court</td>
+  <td class="tdr"><a href="#I">3</a></td>
+  </tr>
+  <tr>
+  <td class="tdr">II.&mdash;</td>
+  <td class="tdlsc">The Civil Court</td>
+  <td class="tdr"><a href="#II">21</a></td>
+  </tr>
+  <tr>
+  <td class="tdr">III.&mdash;</td>
+  <td class="tdlsc">The Judge</td>
+  <td class="tdr"><a href="#III">39</a></td>
+  </tr>
+  <tr>
+  <td class="tdr">IV.&mdash;</td>
+  <td class="tdlsc">The Anxious Jury</td>
+  <td class="tdr"><a href="#IV">57</a></td>
+  </tr>
+  <tr>
+  <td class="tdr">V.&mdash;</td>
+  <td class="tdlsc">The Strenuous Lawyer</td>
+  <td class="tdr"><a href="#V">75</a></td>
+  </tr>
+  <tr>
+  <td class="tdr">VI.&mdash;</td>
+  <td class="tdlsc">The Worried Client</td>
+  <td class="tdr"><a href="#VI">93</a></td>
+  </tr>
+  <tr>
+  <td class="tdr">VII.&mdash;</td>
+  <td class="tdlsc">Programs and Pleadings</td>
+  <td class="tdr"><a href="#VII">111</a></td>
+  </tr>
+  <tr>
+  <td class="tdr">VIII.&mdash;</td>
+  <td class="tdlsc">Picking the Jury</td>
+  <td class="tdr"><a href="#VIII">129</a></td>
+  </tr>
+  <tr>
+  <td class="tdr">IX.&mdash;</td>
+  <td class="tdlsc">Opening the Case</td>
+  <td class="tdr"><a href="#IX">149</a></td>
+  </tr>
+  <tr>
+  <td class="tdr">X.&mdash;</td>
+  <td class="tdlsc">The Confused Witness</td>
+  <td class="tdr"><a href="#X">165</a></td>
+  </tr>
+  <tr>
+  <td class="tdr">XI.&mdash;</td>
+  <td class="tdlsc">Those Technical Objections</td>
+  <td class="tdr"><a href="#XI">183</a></td>
+  </tr>
+  <tr>
+  <td class="tdr">XII.&mdash;</td>
+  <td class="tdlsc">The Movements in Court</td>
+  <td class="tdr"><a href="#XII">201</a></td>
+  </tr>
+  <tr>
+  <td class="tdr">XIII.&mdash;</td>
+  <td class="tdlsc">Elocution</td>
+  <td class="tdr"><a href="#XIII">219</a></td>
+  </tr>
+  <tr>
+  <td class="tdr">XIV.&mdash;</td>
+  <td class="tdlsc">The Heavy Charge</td>
+  <td class="tdr"><a href="#XIV">235</a></td>
+  </tr>
+  <tr>
+  <td class="tdr">XV.&mdash;</td>
+  <td class="tdlsc">The True Verdict</td>
+  <td class="tdr"><a href="#XV">251</a></td>
+  </tr>
+  <tr>
+  <td class="tdr">XVI.&mdash;</td>
+  <td class="tdlsc">Looking Backward</td>
+  <td class="tdr"><a href="#XVI">265</a></td>
+  </tr>
+</table>
+</div>
+<br />
+
+<br />
+<br />
+<br />
+<br />
+<a name="I" id="I"></a><hr />
+<br />
+
+<a name="Page_1" id="Page_1"></a>
+<!-- I -->
+<!-- A Night Court -->
+<!-- the original book has a separate page for the Chapter number and title,
+then a blank page, and the same information repeated -->
+
+<a name="Page_3" id="Page_3"></a>
+<h3>I<span class="totoc"><a href="#toc">ToC</a></span></h3>
+<h3>A NIGHT COURT</h3>
+<br />
+
+<p>In the Night Court the drama is vital and throbbing. As the saddest
+object to contemplate is a play where the essentials are wrong, so in
+this court the fundamentals of the law are the cause of making it an
+uncomfortable and pathetic spectacle.</p>
+
+<p>The women who are brought before the Night Court are not heroines, but
+the criminal law does not seem better than they. It makes little
+attempt to mitigate any of the wretchedness that it judges; in many
+cases it moves only to inflict an additional burden of suffering. The
+result is tragedy.</p>
+
+<p>The magistrate sits high, between standards of brass lamps. His black
+gown, the metal buttons and gleaming shields of the <a name="Page_4" id="Page_4"></a>waiting police
+officers, the busy court officials behind the long desks on either
+hand tell of the majesty of the law.</p>
+
+<p>In front of the desk but at a lower level is a space of ten or twelve
+feet running across the court-room in which are patrolmen,
+plain-clothes men, detectives, women prisoners, probation officers,
+reporters, witnesses, investigators, and lawyers. Beyond in the
+court-room a large crowd is on the benches. There are witnesses,
+brothers and sisters, friends of the prisoners waiting to see whether
+they go out through the street entrance or back through the strong
+barred gate seen through the door on the left. Also there are the
+"sharks" waiting to follow out the released prisoners, to prey upon
+them as the circumstances may favor; and a number of curiosity seekers
+watching intently. For them it can be nothing but a morbid dumb show,
+for they are so far from the bench that not a word of the proceedings
+could be heard. Only once in a while the shrieks and imprecations of a
+struggling hysterical woman as <a name="Page_5" id="Page_5"></a>she is hurried out of court can
+enliven the scene.</p>
+
+<p>Fortified with a letter of introduction to the judge and a disposition
+that will not be too easily shocked at seeing conditions of life as
+they actually exist, the spectator may find his way past the policeman
+at the gate in the rail. It clicks behind him ominously and he wonders
+whether he will have difficulty in getting out. Finally through clerks
+and officials who become more kindly as they learn he is a friend of
+the judge, he is seated in a chair drawn up beside the bench. The
+magistrate is a hearty round-faced man who seems almost human in spite
+of his gown and the dignity of his surroundings. The court looks
+different from this point of view and he may easily watch the judicial
+enforcement of the law supreme.</p>
+
+<p>The organization of these courts is simple. There are not many rules
+or technicalities. The judges are patient, hard working,
+understanding, and efficient. The trouble is with the laws they are
+called upon to <a name="Page_6" id="Page_6"></a>administer: Laws which are as absurd, as farcical, and
+as impracticable as the plot of the lightest musical comedy.</p>
+
+<p>At first the visitor can hardly understand what is going on. A
+pale-faced man is in the witness chair, on his left a bedraggled
+little woman is standing before and below the judge, her eyes just
+level with the top of the desk. Clerks are coming with papers to be
+signed: "commitments," "adjournments," "bail bonds"; others are trying
+to engage his attention. In the meanwhile the case proceeds.</p>
+
+<p>"I inform you," says the judge to the woman, "of your legal rights,
+you may retain counsel if you desire to do so and your case will be
+adjourned so that you may advise with him and secure witnesses, or you
+may now proceed to trial. Which will you do?"</p>
+
+<p>She murmurs something. She is pale-faced with sullen eyes, drooping
+mouth, an over-hanging lip. A sad red feather droops in her hat.</p>
+
+<p>"Proceed," says the judge; and to the <a name="Page_7" id="Page_7"></a>policeman who is called as a
+witness, "You swear to tell the truth, the whole truth mm-mm-mm&mdash;you
+are a plain-clothes man attached to the 16th Precinct detailed by the
+central office, what about this woman?"</p>
+
+<p>"At the corner of Fifteenth Street and Irving Place," says the
+witness, "between the hours of 10:05 and 10:15 this evening I watched
+this woman stop and speak to three different men. I know her, she has
+been here before your Honor."</p>
+
+<p>"What do you say?" the judge asks the woman. She is silent.</p>
+
+<p>"What do you work at?"</p>
+
+<p>"Housework, your Honor."</p>
+
+<p>"Always housework; it is surprising how many houseworkers come before
+me." She smiles a sickly smile.</p>
+
+<p>"Take her record. Next case," says the judge. Outside it is a cold
+sleeting night in early March.</p>
+
+<p>"Witnesses in case of Nellie Farrel," calls the clerk.</p>
+
+<p>Nellie Farrel stands before the desk beside <a name="Page_8" id="Page_8"></a>a policeman; she is tall
+with fair waving hair. She must have been pretty once; even now there
+is a delicate line of throat and chin. But her eyes are hard and on
+her cheeks there are traces of paint that has been hastily rubbed off.
+She looks thirty; she is probably not more than twenty.</p>
+
+<p>A callow youth, who seems preternaturally keen, swears that on
+Thirteenth Street between Fifth Avenue and University Place the woman
+stopped and spoke to him; and he tells his story as though it were
+learned by rote.</p>
+
+<p>"Do you know the officer who made the arrest?" the judge asks him.</p>
+
+<p>"I do." A suspicion arises that there may be an interest between the
+witness and the policeman.</p>
+
+<p>A dark-haired, smooth-faced woman who is standing by the prisoner
+says: "Your Honor, she's my sister. I'm a respectable woman, my
+husband is a driver. I have three children. It's disgrace enough to
+have the likes of her in the family. If you'll give her another
+<a name="Page_9" id="Page_9"></a>chance I'll take her home with me; my husband is here and he's
+willing." The accused looks down piteously.</p>
+
+<p>"Discharged on probation," says the judge, and the family go out.</p>
+
+<p>"That's the third time that's happened to her," whispers a clerk.
+"Every time the sister comes up like a good one."</p>
+
+<p>A horrible old woman with straggling gray hair, shrivelled neck, and
+claw-like hands grasps a black shawl about her flat chest. "Mary,"
+says the judge, "thirty days on the island for you."</p>
+
+<p>"Oh, your Honor, your Honor, not the workhouse. Oh, God, not the
+workhouse," and she is borne out screaming and fighting and invoking
+Christ to her aid. The judge turns and says in explanation, "an old
+case, an example of what they all may come to."</p>
+
+<p>A dark-haired little French woman is brought in with crimson lips,
+bold black eyes, and expressive hands. A detective testifies that he
+went with her into a tenement house on Seventeenth Street west of
+<a name="Page_10" id="Page_10"></a>Sixth Avenue. Charge: Violation of the Tenement House Law.</p>
+
+<p>"Qu'importe," says the woman. "I go in ze street. I am arrested. I
+stay in ze house. I am arrested. I take ze room. I am arrested.
+Chantage&mdash;Blackmail. C'est pour rire."</p>
+
+<p>Who are these women who are brought in a crowd together? One of them
+older than the rest is a foreigner plainly dressed in black silk with
+a gold chain. She does not seem particularly evil, but rather
+respectable. The others are in long cloaks or waterproofs hastily
+donned and through which are glimpses of pink stockings. They have
+hair of that disagreeable butter color which speaks of peroxide. There
+has been a raid on a west-side street of a house of ill repute. Some
+testimony is given and the older woman, the "Madam" is held in bail
+for the action of the Grand Jury while the rest are held for further
+evidence. The judge tells us there will probably not be enough
+testimony and they will be released in the morning. <a name="Page_11" id="Page_11"></a>But unless bail
+is found they will spend the night in cells.</p>
+
+<p>A nervous, excited woman comes in&mdash;two policemen are with her. She has
+been arrested for disorderly conduct on Sixth Avenue near Thirty-first
+Street. She has been fighting with a man who has also been arrested
+and taken to the men's Night Court. Hers is a hard, tough face of the
+lowest type.</p>
+
+<p>"Why should you try to scratch the man's face? What did he do?" the
+judge asks. "Is he your husband?"</p>
+
+<p>"My husband, your Honor? Yes, I guess you can call Al that. We lives
+up town and when I went out he says to me, 'Hustle, kid, you got to
+hustle, the rent's due and if you don't get the money I'll break your
+neck.' The slob won't work. Well, a night like this you couldn't make
+a cent and I only had half a dollar and I wanted to get a bite to eat.
+I hadn't had a thing since four o'clock, and then I met Al going down
+Sixt' Avenue an' he tries to swipe me fifty cents off me and I was
+that wild I wanted to tear <a name="Page_12" id="Page_12"></a>him. I'm sorry; I guess it was my fault. I
+don't want to see him jugged, so please let me off, your Honor, and I
+won't make no trouble."</p>
+
+<p>"Take her record," said the judge, "and hold her as a witness against
+the man."</p>
+
+<p>A string of women are brought in for sentence who have been having
+finger prints taken in the adjoining room. The judge proceeds to
+impose sentences according to the previous records which are shown.
+Some of the women are those who have passed in front before. The
+little bedraggled woman with the red feather has been arrested seven
+times in sixteen months. Another has spent eight weeks in the
+workhouse out of a period of seven months; another has been sent
+already to the Bedford Reformatory; another has been twice to houses
+of reform. Before the judge gives his sentence he refers the prisoners
+to the probation officer, who talks with them in a motherly way.</p>
+
+<p>After talking with the little prisoner she addresses the judge. "She
+says its no use, <a name="Page_13" id="Page_13"></a>your Honor, she does not want to reform&mdash;it will not
+be worth while to put her on probation."</p>
+
+<p>"Committed to the Mary Magdalene Home," says the judge, and the name
+brings a startling surmise as to what He of Galilee would have said.</p>
+
+<p>The foregoing is only a typical session of the court. Night after
+night, from eight o'clock until one in the morning, the scene is
+repeated. The moral effect and its reaction upon those who conduct the
+proceedings&mdash;the judges, officers, and the police, cannot but be
+deplorable; the evil done to those forcibly brought there could not be
+over-estimated.</p>
+
+<p>Substantially the law is that the women may not loiter in the streets
+nor solicit in the streets, or in any building open to the public.
+They may live neither in a tenement house nor in a disreputable house.
+The law makes it a crime for the women to walk abroad or stay at home.
+Their existence is not a crime, but only in an indirect way the law
+makes them outlaws. Anyone wishing to prosecute <a name="Page_14" id="Page_14"></a>or persecute finds it
+easy to do so. The worst enemies of these unhappy women are to be
+found, curiously enough, among both the best and the most evil people
+in the community. The unspeakably depraved are the men who, either as
+procurers, blackmailers, or the miserable men who live on a share of
+their earnings. The excellent people who oppose any remedial
+legislation which might relieve the situation, seem equally
+responsible for the present condition, however well-intentioned they
+may be.</p>
+
+<p>One effect of the present system is the practically unchecked
+transmission of disease. A reform in this direction would not solve
+the basic problem, for there would remain full opportunities of
+blackmail and extortion, but it might still remove a menace to the
+health of the community which is probably more serious than
+tuberculosis.</p>
+
+<p>A statute to this end was enacted in New York State a few years ago:
+an act for the medical examination of the women. It was declared
+unconstitutional because of one <a name="Page_15" id="Page_15"></a>word. It should have read, "the judge
+may"; instead, it read, "the judge <i>must</i>." Far more difficult to deal
+with is the opposition of the people who believe that the moral sense
+of the community would be jeopardized by any laws suggesting that
+prostitution is unavoidable.</p>
+
+<p>In ironic contrast to the failure of legislation to prevent the spread
+of disease, is the success of an ill-advised statute making adultery a
+crime. Under it, a married man having relations with a prostitute and
+the woman herself, are subject to criminal prosecution. It affords a
+fresh field for extortion, how largely used it is impossible to say.</p>
+
+<p>The history of the passage of the adultery act presents one of the
+most ghastly jokes ever perpetrated by a State Legislature.</p>
+
+<p>For years such a bill had been introduced in the New York Legislature
+and had been passed by either the Assembly or the Senate without
+comment and then quietly killed in the other house. It was obvious
+that such a law could not be properly enforced and its <a name="Page_16" id="Page_16"></a>blackmailing
+possibilities were manifest, yet no one, not even Governor Hughes, who
+was then in office, could be openly opposed to its passage.</p>
+
+<p>The tender morality of the community would not allow a public
+discussion.</p>
+
+<p>It was said, at the time, that when the representative of a society
+for the suppression of vice called on one member asking him to
+introduce the bill, he declined to do so on the ground that he
+represented a Fifth Avenue District and it would make him too
+unpopular among his constituents. When the bill had been introduced by
+another member and came up for final passage, it was decided, since
+Governor Hughes had vetoed many political bills of members of both
+houses, to put him in a dilemma. If the bill were presented to him he
+would have to sign an absurd statute or declare himself the friend of
+unrighteousness. He signed it and the bill became a law. Since its
+enactment there have been ridiculously few convictions under it.</p>
+
+<p>The successive carelessness, timidity, and <a name="Page_17" id="Page_17"></a>levity of the Legislature
+is depressing, but there is an encouraging increase of interest on the
+part of the public. The average man is not merely interested in the
+problem; he appears to take the sensible view that the "social evil"
+is not so much a moral question as a condition, a problem to be met
+like other problems. We have become less concerned with the private
+morals of our fellow citizens than with their health, safety, and the
+prevention of unnecessary suffering. We perceive that the courts are
+only our agents and are not directly responsible for what they do;
+they are following instructions given by our ancestors and which we
+have neglected to abolish or modify.</p>
+
+<p>The visitor leaves the Night Court with a strange sense of having his
+social values overthrown. He feels almost sympathetic with the women
+whom he has seen. They may be offenders against morals and the social
+order, but they are human beings over whom the waters of civilization
+seem to sweep with relentless flood. The frightful waste of life <a name="Page_18" id="Page_18"></a>and
+energy seems inexcusable. And it is as though some mill dam had burst
+and was flowing in a terrific torrent down a river bed along which a
+few are drawn white and drowned.</p>
+
+<p>The ordinary man knows that the women who go under are such a small
+proportion of those who escape, that it seems either a ghastly joke or
+a terrible tragedy. The whole paraphernalia of the court-room merely
+accents the contrast between those who are caught and those who go
+free.</p>
+
+<p>But all criminal courts are always unpleasant. And humanity if seen
+only in the setting of a criminal trial would be a discouraging
+object. Turning to the more civil court, we find an almost equal
+unfitness between the courts and modern conditions.</p>
+
+<br />
+<br />
+<br />
+<br />
+<a name="II" id="II"></a><hr />
+<br />
+
+<a name="Page_19" id="Page_19"></a>
+<!-- II -->
+<!-- THE CIVIL COURT-->
+
+<a name="Page_21" id="Page_21"></a>
+<h3>II<span class="totoc"><a href="#toc">ToC</a></span></h3>
+
+<h3>THE CIVIL COURT</h3>
+<br />
+
+<p>In a twenty-four-story office building, on a smooth gliding elevator,
+up seventeen stories, down a low-ceilinged corridor, past fireproof
+doors labeled: "Clerk's Office," "Judge's Chambers," "Witness Room,"
+we find the typical modern court. The old idea of a very
+pseudo-classic courthouse on a placid village green to which the
+neighboring county squires have ridden, and where the jail is in the
+cellar and the town recorder in the attic, is fast disappearing. The
+old courthouse in the city, of red sandstone with battlements and
+turrets, minarets, and a clock tower, seems out of date.</p>
+
+<p>The white marble palaces of the higher courts wherein broad stairways,
+paneled <a name="Page_22" id="Page_22"></a>mahogany, stained glass, and soft noiseless carpets giving an
+air of repose and refined culture, are not altogether consistent with
+the modern spirit. The man on the street does not understand whether
+the marble statues on the roof are symbols of justice or late
+presidents of the United States. The usual courthouse of twenty years
+ago was a mixture of armory and Gothic church.</p>
+
+<p>In the larger courthouses where there are many terms or parts in one
+building, there is an air of confusion. Rotundas, corridors,
+stairways, and elevators are constantly filled with a moving crowd of
+lawyers waiting for their cases to be tried, clients who have had
+appointments, witnesses who have been subp[oe]naed to come to court
+and when they get there find it is not one court, but thirty. The
+latter are found wandering dazedly about asking anyone who will stop
+to listen if they know in which part the case of Martin <i>vs.</i> Martin
+is being tried. Lunch counters, telephone booths, and a feeling of awe
+are in the building.</p>
+
+<p><a name="Page_23" id="Page_23"></a>What that terror of a court of law comes from is difficult to analyze.
+There is the impressive majesty of the law; always about a court is
+the inspiring sense of something more than human. Even an empty
+court-room is not as other rooms. Like an empty theater there remains
+an atmosphere of glamour, of mystery, and yet equally true there
+remains a substantial, strong odor of crowds.</p>
+
+<p>It is said that every theater retains its own peculiar smell. The
+scientific investigation of the psychology of odors is too subtle to
+be understandable. The question of analyzing the exudations of a
+nervous crowd seems interesting, but the remembrance of an anxious
+humanity is always present. In former times the attendant placed a
+small bunch of herbs and aromatic flowers on the judge's desk, and
+glasses of the dried bouquets remained in a row for long periods.</p>
+
+<p>Hygienically considered the courts are unsanitary. If the windows are
+opened the cold air is apt to draw directly on the heads <a name="Page_24" id="Page_24"></a>of the jury
+and the stenographer. In summer the noise of city streets, the cars,
+the elevated, the cries of children, the hand-organs, the flies, are
+not at all conformable to the supposed dignity of the court. It is
+well-known that the crowded and unhealthy conditions of the courts are
+conducive to disease as well as discomfort to the inhabitants.</p>
+
+<p>The connotations of the name court are generally impressive. There is
+the suggestion of jail, of punishment, of something final, of absolute
+judgment. Also it suggests the courtyard of a tenement house, an
+alleyway or something shut in and confined. The philology is from the
+old French cort or curt. It is curious that it means something narrow.
+There are the suggestions of the lists, of heralds, of trumpets, of
+banners and knights in armor, of prancing steeds, of fair ladies
+watching, of joust, tournaments, and trials by battle. There is
+something royal about the word. We think of pomp and magnificence and
+purple robes, of kings on their thrones, with courtiers standing
+about. The <a name="Page_25" id="Page_25"></a>conception of Diety to the simple man who visualizes,
+immediately takes on the form of a court. We speak of the Courts of
+Heaven. The pictures of Godhead represent him as sitting in the center
+on his raised throne with the surrounding tiers of attendant angels.</p>
+
+<p>The modern court-room is only an adapted continuation of a medieval
+idea. On the raised dais under an unsanitary and dusty canopy of green
+plush sits the judge; instead of a sceptre he holds the gavel. This
+gavel, by the way, is falling more and more into disuse. As a symbol
+of authority, a little wooden hammer has become a trifle ludicrous. If
+a judge were to shake it too violently there might be a fear on the
+part of those watching that he was about to throw it at the spectators
+or at one of the arguing lawyers.</p>
+
+<p>The judge sits at an imposing high-railed desk with standard lights at
+either corner. The top of the desk is usually above the level of the
+eyes even of the lawyer standing. This is an arrangement which is
+<a name="Page_26" id="Page_26"></a>conventional and convenient; it would not be consistent with the
+majesty of the law if the judge should be discovered writing a
+personal note or taking a glance at the stock market reports in the
+evening paper.</p>
+
+<p>The judge's chair is ordinarily a revolving one with a dip backward.
+Stationary chairs are trying, for those who have to remain quiet for
+so many hours at a time, and the swinging back and forth and twisting
+about gives a little relaxation.</p>
+
+<p>In front of the judge's dais are the counselors' or lawyers' tables,
+and at one side in front and below usually another table for
+reporters. It is somewhat like the arrangement in baronial halls where
+there was an upper and lower table and some sat below the salt and
+others above.</p>
+
+<p>On one side, opposite, but not as high, is the jury-box. This is a pen
+with twelve seats within a high-sided inclosure like an old-fashioned
+pew. What the object of the inclosure may be is uncertain, unless it
+is a relic of a time when it was necessary to <a name="Page_27" id="Page_27"></a>imprison the jurors.
+Jury duty has doubtless always been arduous and disagreeable, and in
+earlier days men were probably as anxious to escape serving on the
+jury as they are to-day. In one of the courts, which was not supposed
+to be for jury trials, twelve men once sat on a case without any
+jury-box in plain chairs and at the side of the room. They were
+extremely uncomfortable themselves; their legs were exposed and they
+seemed shockingly unconventional.</p>
+
+<p>Between the judge's desk and the jury-box is the witness chair, an
+ordinary chair placed not quite so high, but beside the judge's and
+where he can look down on the witness. The position of the witness
+chair may be accountable for the feeling of protecting the witness
+that exists in the minds of the judge and jury. There is a natural
+sympathy for him, as though he were being attacked by the examining
+counsel. The witness in former times stood in a little enclosed box
+and in Italy, where court scenes are more intense, the prisoners to
+this <a name="Page_28" id="Page_28"></a>day in criminal trials testify from behind iron bars.</p>
+
+<p>Below the witness chair is the stenographer. The former idea of the
+aged scrivener or court clerk with white hair and green eye shade has
+vanished. The modern stenographer, who keeps the record of a trial, is
+probably an energetic young man, who has passed high on the civil
+service list, knows something about law, is studying for a better
+position, or is connected with a very profitable stenographers'
+business on the outside.</p>
+
+<p>The court proper is divided from the rest of the room by an iron or
+wooden rail guarded by a jealous court attendant, who is always a
+strong advocate of court etiquette and very properly maintains the
+dignity of the court. He is in uniform with a shield or badge of
+office conspicuously displayed and being taken from the civil service
+list whereon war veterans and retired firemen or policemen have a
+preference, is generally of a certain age. Naturally, being old and
+having to stand so much, he has tender feet, and with <a name="Page_29" id="Page_29"></a>the customary
+effects of all secure and salaried positions, acquires both a slow and
+shuffling gait and the ordinary characteristics of his class. He is
+subject to many petty annoyances, foolish questions, repeated
+inquiries, people talking or arguing, little disorders pursue him on
+every hand.</p>
+
+<p>The object of the attendant in the court is to maintain order and
+preserve dignity. They are almost avid in their pursuit of the
+ignoramus who comes in with his hat on his head or covers himself on
+going out before he reaches the door. Their salaries are not large but
+their duties are not arduous. They may seem solicitous to the judge
+and sometimes overbearing to the litigants and lawyers, but they are
+only in the position of the supes or ushers in the theater. Yet they
+are understanding and wise as regards the human drama constantly
+played before them.</p>
+
+<p>The lighting of the court-room is unusually dramatic. There are no
+foot-lights, but the best theory of stage lighting is that there
+should be none. One of the most effective <a name="Page_30" id="Page_30"></a>scenes in the modern
+theater is the court setting in Galsworthy's <i>Justice</i>. The lighting
+is indirect and the spots of red and green lights at the judge's desk,
+the corners of the jury-box and the shaded ones at the clerk's elbow,
+give a remarkable impression of mysterious terror.</p>
+
+<p>Whatever may be the cause, there exists a marked resentment against
+the courts. Not only is there a complaint as to the cloying
+technicalities of procedure, the long and fatal delays of the law, the
+absurd forms and mannerisms of the trial, but underneath them all a
+fundamental distrust of justice itself. The complaint is heard of the
+inequality of justice. That there is a law for the poor man and
+another law for the rich. The stage gives expression to the feeling,
+and modern literature voices it. The high-priced millionaire escapes
+and the low-browed pickpocket goes to prison.</p>
+
+<p>Cases are cited where the rich woman returning from a debauch of
+European shopping with a few thousand dollars' worth <a name="Page_31" id="Page_31"></a>of pearls sewed
+in the lining of her winter bonnet is only fined, whereas the little
+milliner from the lower end of the city is sent to jail for trying to
+smuggle in a new coat. The impressario of art collections is caught at
+a gigantic scheme for defrauding the government of thousands of
+dollars on imported pictures. He hobbles into court and on the ground
+of ill health escapes a prison sentence and is merely fined, while the
+little Italian fruit vender is summarily jailed for bringing in a few
+dried mushrooms. The high financier who wrecks a railroad or a bank
+serves a light prison term and emerges like a ph[oe]nix to buy new
+steamboat lines or float new enterprises. But the peddler on the East
+Side who sells a few dollars' worth of stale fish is punished to the
+limit of the law.</p>
+
+<p>The facts exist and to the popular mind seem unexplainable. There
+undoubtedly must be a reason, and what it is, is not hard to find. It
+seems one of the mysteries of judging and of justice, as though there
+were an unwritten law in the back of the <a name="Page_32" id="Page_32"></a>human mind in favor of
+property rights. There is an explanation and not an inequality of
+justice. The facts are not as they are popularly stated or supposed to
+be. The public gets only a portion of the picture, and from an
+enormous group of cases, a few contrasted ones are picked out for the
+sake of the dramatic effect. The limelight of public notice is upon
+them and the softer lights and shadows are omitted. The public does
+not see the gradation. On the one hand we see the rich woman, the
+millionaire art dealer, the financial pirate being leniently dealt
+with, on the other hand we see the little milliner, the Italian fruit
+vender, and the peddler receiving harsh sentences.</p>
+
+<p>The sharp contrasts make good newspaper stories that are appealing and
+touching. What the public does not see is the whole picture of all the
+cases of alleged inequality that come into court. These are only six
+out of seven hundred cases, chosen because they are melodramatic.
+There were nearly seven hundred other offenders that were let off
+with <a name="Page_33" id="Page_33"></a>suspended sentences or light fines, of whom nothing is heard,
+but these three are conspicuous on account of their wealth, and the
+cases of the milliner, the mushroom vender, and the peddler are
+reported for the same reason&mdash;of being conspicuous. They are unusual
+on account of the sentences. The harshness of their sentences is
+remarkable. There may be special reasons. The six hundred and
+ninety-odd who are punished lightly in the same way as the rich man
+are not noticed.</p>
+
+<p>As a matter of actual experience, the rich man has a harder time in
+court than the poor man. The inequality of justice, if there be any,
+is rather against him. Because he is rich and notorious the public
+prosecutor cannot let him off. If, for example, a poor man who is
+undoubtedly insane, commits a murder he is not tried, but is sent to
+an asylum for the insane. If, after several years, he recovers and is
+released, nothing is said about it; the public does not know. But let
+it be a rich lunatic and the public prosecutor <a name="Page_34" id="Page_34"></a>is bound to bring him
+to trial. Public attention demands it. He may know him to be insane,
+but he must still prosecute him. The jury declare him insane. After
+years he is released from the asylum, the public thinks it a
+miscarriage of justice, forgetting in the meanwhile the inconspicuous
+poor man who unnoticed has gone through the same experience, and been
+released years ago.</p>
+
+<p>The delays of the law are partly due to the system of courts and
+partly to the dullness of court procedure. The inefficiency of the
+system of courts and judicial procedure is shown in the practical
+workings of the civil courts of New York City. The antiquated
+organization of all the courts is like a patchwork quilt where each
+additional one has been added or increased as New York has grown from
+a village below the Indian stockade at Wall Street to its present
+size. So that there exist within the city limits now seven different
+kinds of civil courts and five kinds of criminal courts, in nearly
+each of which there is a <a name="Page_35" id="Page_35"></a>separate set of rules, different customs,
+and distinct methods of procedure, and of them all the most technical
+and the most complicated are often those where they should be the most
+simple and easy of understanding.</p>
+
+<p>Wherever the court may be the surroundings are substantially the same.
+The scene is laid and the carpenters have left. The spectators have
+found their places. The stage is empty however, there is a sudden
+bustle and shifting of feet, a rumor has gone abroad that something is
+about to happen. The court attendants take their places. One of them
+straightens up and with a commanding voice cries out: "Gentlemen,
+please rise. Hear ye, hear ye, all persons having business draw near
+and ye shall be heard." Enter his Honor, the Judge.</p>
+
+<br />
+<br />
+<br />
+<br />
+<a name="III" id="III"></a><hr />
+<br />
+
+<a name="Page_37" id="Page_37"></a>
+<!-- III -->
+<!-- THE JUDGE -->
+
+<a name="Page_39" id="Page_39"></a>
+<h3>III<span class="totoc"><a href="#toc">ToC</a></span></h3>
+
+<h3>THE JUDGE</h3>
+<br />
+
+<p>With a rustle of his gown and a bow to the court-room the judge takes
+his seat on the bench. The trivial pleasures of being heralded and
+having the spectators rise when he enters have lost their charm, but
+he would feel uncomfortable without them. The gray-haired clerk hands
+him the list of the cases for the day. The anxious court attendant
+asks if he shall open a window. The judge sniffs audibly and orders
+the steam heat to be turned off. The court attendant does so and
+brings his Honor a glass of water. When the judge sits down in the
+revolving chair he is on the bench and the court is in session.</p>
+
+<p>The fact of the matter is the judge is a pretty decent sort of person.
+The trouble is <a name="Page_40" id="Page_40"></a>that the surroundings are all against him. In the
+first place his whole job is one that makes him live up to a part. For
+five or six hours a day he has to sit still in a stuffy court-room on
+a leather chair under a silly canopy of wood or plush and pretend that
+he is the whole thing, that he knows it all, and that whatever he
+decides is absolutely right. Let him waiver or be uncertain in his
+decisions and woe is it to him. No one thinks much of a judge who does
+not know his business or at least does not pretend to know it.</p>
+
+<p>How anyone who has been long on the bench can retain any sense of
+proportion is remarkable. Whatever he says and does in court is final
+and apparently approved. If his decisions are reversed they do not
+affect him seriously; he has tried so many cases that were not
+appealed, and the greater proportion of those that have been are
+affirmed. The reversal comes a long time after and does not hurt his
+feelings. In any event, he was trying to do the best he could and
+human nature may be fallible, although, <a name="Page_41" id="Page_41"></a>as far as he can see, the
+whole world of the little court-room where he sits has conspired to
+show him that he is divinely endowed.</p>
+
+<p>His position is not exactly one of bluff, but he is the central figure
+of the stage; like the actor's profession the judge's job makes him an
+egotist. Take for example the essential elements of his knowledge of
+the law. He is the <i>Jus Dicens</i>, the one saying the law, the name of
+judge being derived from the two Latin words. He is supposed to know
+the law, at least he ought to know court procedure, and the law of his
+State thereon by heart. In New York State, for example, the Code of
+Civil Procedure is five hundred thousand words long. He is bound to
+take judicial notice without being told of all the statutes of the
+State Legislature, which are being passed at the rate of six hundred a
+year.</p>
+
+<p>He is also supposed to know the laws of the United States passed at
+Washington, and to be thoroughly familiar with the latest decisions of
+the Supreme Courts of the United <a name="Page_42" id="Page_42"></a>States, and those for the past 125
+years. He must understand and look as though he knew beforehand any
+decision of the courts of his own State cited, which are conveniently
+and neatly printed in 219 New York Court of Appeals Reports, 173
+volumes of the Appellate Division Reports, and 96 volumes of the
+Miscellaneous Reports, to say nothing of the opinions and decisions of
+other courts that are not printed at all. His knowledge of the law is
+a fearful and wonderful thing; he must have an oceanic mind.</p>
+
+<p>It is told that one of the leaders of the bar had formerly a young man
+in his office who with advancing years and reputation was elected to
+the bench. Before the first of January when he was to take his oath of
+office, the old employer and friend sent for him. When he arrived he
+was greeted as follows: "Joe, I've sent for you because I wanted to
+see you before you become a judge. I am very fond of you and I wanted
+to see you once again as you were, because after you go <a name="Page_43" id="Page_43"></a>on the bench
+you are bound to become a stuffed shirt, for they all do."</p>
+
+<p>That so many escape is one of the wonders of human nature. That they
+retain their humanity is due to a disposition of Providence to temper
+the wind to the shorn lamb. The position necessarily takes away all
+initiative. In politics the judge is recognized as being a "dead one."
+After a few years on the bench only the exceptional man can fling off
+the shackles of his profession and get back into real life. He ceases
+from fighting, he is not energetic.</p>
+
+<p>As a good judge he must be firm but restrained. He may not be too
+emphatic. Every inducement is toward making him lazy, fat, and easy.
+Before him everyone bows and waits for him to speak. He is the
+absolute boss within the four walls of his court-room. The only
+restraining influences are the reactions from the lawyers and
+spectators who are before him. Their opinions can not be openly
+expressed; they are reserved until afterwards. If a judge really <a name="Page_44" id="Page_44"></a>has
+any idea of the high esteem in which he is held, let him find out what
+is being said of him after the case is over, as the clients and
+lawyers are going down in the elevator, or what the rear benches have
+been whispering.</p>
+
+<p>He probably has a suspicion of this, but no matter how tolerant he
+desires to be, there is the temptation to show that his authority is
+supreme; that when the lawyers begin arguing a point on which he has
+formed an opinion to cut them off; when the witness is trembling on
+the stand as to whether the accident happened on a Thursday or a
+Friday, to ask her, "Don't you know that Thursday was on the 16th of
+April last year," which of course she does not. There is the
+temptation to feel that he can never be wrong; that a question may be
+reargued, but that he is not going to change his opinion.</p>
+
+<p>The possibility is that the judge is a mild sort of bully. But it is
+not always safe to go on the assumption that being a bully he is also
+a coward. He may be, but on a trial the odds are too much in his
+favor. If the <a name="Page_45" id="Page_45"></a>lawyer wants to fight the judge, he has a great deal at
+stake; he may awaken so strong a prejudice that the judge knowing the
+rules of the game better than he does, may beat him on a technicality.
+On the other hand it is a mistake for the lawyer to be subservient and
+too cringing. Being a bully, the judge is apt to take advantage of his
+position. The best policy is to appeal to his human instincts as a
+man. He may be decent in spite of critics of the courts to the
+contrary notwithstanding. If he is kindly treated he will respond.</p>
+
+<p>In New York judges were appointed until about 1846, when there was a
+popular upheaval and the constitution was changed, and they have ever
+since been elective, with the exception of some of the minor courts.
+The advantages of the two methods is an open question. The arguments
+in favor of appointment are that it makes for an independent judiciary
+and that it secures better men for the bench, whereas the other does
+not, because the highest class lawyer <a name="Page_46" id="Page_46"></a>will not go through the turmoil
+and supposed degradation of a political campaign. These arguments are
+not sound.</p>
+
+<p>The argument for the election of judges is that it keeps the bench
+more humane, modern, and in touch with the will of the people. The one
+is the aristocratic idea, the other the democratic. A court as at
+present constituted is an autocratic institution but the judges should
+be democrats. A feeling prevails that the man who has gone through a
+course of political sprouts involving the training of election
+campaigns, is more understanding of the wants of the people whom he is
+to serve, also that courts should be arranged on a business basis.</p>
+
+<p>An amusing aspect of an elective judge is that he is in an anomalous
+position. If he plays politics, endeavors to make friends either by
+his decisions on the bench or obeying the mandates of a superior
+political boss as to appointment of referees and receivers, he
+immediately becomes a corrupt judge. The stench of his unjust
+decisions will sooner or <a name="Page_47" id="Page_47"></a>later come to the nostrils of the community
+and his chances of re&euml;lection are forfeited. He runs the hazard of
+charges and removal.</p>
+
+<p>If, on the other hand, he forgets the organization that has elected
+him either in the matter of patronage or the refusal of some desired
+court remedy, and so conducts his court that there shall be neither
+fear nor favor, he is a political ingrate and deserves neither
+re&euml;lection nor promotion. Of course these are the two extremes;
+fortunately human nature is not what the sociologists and political
+theorists would make it.</p>
+
+<p>The political boss is not the unscrupulous ogre that the muck-rakers
+picture. He does not order the judge to decide the
+hundred-thousand-dollar-contract case in favor of his hench man. He
+might like to have him do so but he does not ask. Neither does the
+judge lean over backwards in the other direction and imprison the
+contractor because he is a friend of the boss. The movements for the
+non-partisan election of judge show the recognition of some of these
+incongruities.</p>
+
+<p><a name="Page_48" id="Page_48"></a>The fierce bright light that plays about a throne also makes the judge
+conspicuous. If he sneezes, if he coughs, if he takes a glass of water
+he is probably feverish and cross. If he keeps still he is going to
+sleep and not paying attention. If he gets up or sits down it is noted
+as indicative of how he is going to decide the case. Every movement is
+watched. The position of a judge is not enviable. He is the concrete
+object to which the evils of the court-room attach. To the popular
+mind he is the court, the law, the method of procedure, the source of
+all the technicalities, and the delays. The beaten side will bear him
+a grudge, and the winning side think they ought to have got more.</p>
+
+<p>If he be lenient in interpreting the law, he may be called to account
+for inability; if he be too strict, he is accused of irritability. If
+he be too polite, he may seem to be extending favor. A justice of one
+court, wishing to be kind, once asked a young counselor whose case had
+been dismissed through a technicality to come up and sit on the bench
+with him. <a name="Page_49" id="Page_49"></a>The young man afterward complained to his friends that the
+judge wanted to shame him and make him conspicuous.</p>
+
+<p>There are few judges who dare to cut short the examination of a
+witness, although the length and direction of a trial are supposed to
+be within the discretion of the judge. He is hindered by the
+technicalities of those who insist, hoping for a reversal on appeal,
+and sometimes the same technicalities are used to prevent the actual
+facts being brought out. The solution probably lies in extending the
+powers of the judges over the conduct of a trial.</p>
+
+<p>He has a position of interest and authority and one that commands
+respect. In England he dresses for the part in silk stockings and is
+next to the king in importance or about equal to a bishop. In Germany
+he is a little better than a Herr Pastor or a doctor, but inferior to
+a young lieutenant in the army. In France the salaries of the judges
+are pitiable. The highest, the president of the Cour de Cassation,
+gets $5000 a year and <a name="Page_50" id="Page_50"></a>the lower judges only a few hundreds, with no
+possibility of earning anything by practicing law, but there the
+judges are persuaded to take out the balance of what they should have
+in salaries in the honor of their position.</p>
+
+<p>We are so shockingly frank and matter of fact, that we believe that
+the conventionality of pomp and circumstance have been too much
+regarded in courts and court procedure, that dignity is not
+accomplished by wearing a wig, knee breeches, or gowns of ermine and
+silk. It is consistent with a plain-spoken people to feel a contempt
+for state and symbols. Any attempt to return to the conventionalities
+of Europe is met by the contempt of a democracy.</p>
+
+<p>In rebelling at form we have been so occupied that we have not been
+awake to a change in substance that has been demanded by modern
+conditions. The courts are gradually reaching a simpler basis.
+Formerly they may have been surrounded by more pomp and magnificence,
+but the work is now being better laid out and the course of the
+<a name="Page_51" id="Page_51"></a>proceeding is on more modern lines. Changes in practice acts will
+revolutionize trials. People smile at the dignity of their courts and
+judges. The modern spirit is for greater frankness, simplicity, and
+directness.</p>
+
+<p>If he is a sane and reasonably simple man the judge tries to do his
+duty according to the light that is in him. He knows some law, has
+seen a quantity of human nature and passions flowing before him. The
+court-room, his position of authority, the respect of the community,
+the human drama, the abstract and intangible demand of something above
+the actual awakens in the judge that passion for justice which is a
+quality almost divine. The man himself becomes patient, understanding,
+and humane. Nearly every man, no matter how small he may be at the
+beginning, rises to the responsibilities of his position. So it is
+with the judge.</p>
+
+<p>It is undecided whether the judge is entitled to more respect from the
+lawyers and laity or whether the laity is entitled to more respect
+from the judge. The judge <a name="Page_52" id="Page_52"></a>sits indolently crumpled up in his easy
+chair; before him a leader of the bar is arguing. In an eloquent
+manner he is pleading for a young attorney who is about to be punished
+for "Contempt of court."</p>
+
+<p>"And so your Honor will realize that in the heat and excitement of a
+trial, in the turmoil of the legal battle, in the intensity of a
+forensic struggle, the young man may well have forgotten the respect
+and deference which is ever due from a member of the bar to the
+representative of high-minded justice."</p>
+
+<p>The judge seems unaffected by the appeal. The young man had been rude
+and impertinent, the fine of $250 must stand as punishment for his
+misbehavior.</p>
+
+<p>Suddenly the pleader with a wave of his hand and a twinkle in his eye
+says: "Look at the difference between the position of a lawyer who,
+alert with restless energy, momentarily forgets his manners in
+fighting for his client, and on the other hand the calm"&mdash;pointing to
+the judge who is still half reclining <a name="Page_53" id="Page_53"></a>in his chair&mdash;"the calm, I
+repeat, of complete judicial repose."</p>
+
+<p>There is a smile through the court-room. The judge straightens up,
+sees the humor of the situation, and the fine is remitted.</p>
+
+<p>There is a constant play of opposing influences upon the judge. As an
+upholder of the law he becomes a formalist and a reactionary. The
+insistent demands of humanity which the statute law can never satisfy,
+tend to make him a revolutionist. The saving element for him is that
+he is only a part of a system for which he is not responsible.</p>
+
+<p>When the judge has had the list of cases for the day called and has
+disposed of the applications for adjournments, he turns to the clerk
+who begins to call the roll of the men who are to act an important
+part on the stage&mdash;the jury.</p>
+
+<p>The solution of the matter so far as the judge is concerned is to give
+him greater power. Let him be absolutely responsible for the conduct
+of a case in court. His <a name="Page_54" id="Page_54"></a>position should not be that of an umpire who
+remains quiet until a dispute arises, but rather that of a head
+enquirer into merits, assisted by the two lawyers and the jury.</p>
+
+<br />
+<br />
+<br />
+<br />
+<a name="IV" id="IV"></a><hr />
+<br />
+
+<a name="Page_55" id="Page_55"></a>
+<!-- IV -->
+<!-- THE ANXIOUS JURY -->
+
+<a name="Page_57" id="Page_57"></a>
+<h3>IV<span class="totoc"><a href="#toc">ToC</a></span></h3>
+<h3>THE ANXIOUS JURY</h3>
+<br />
+
+<p>The main characteristic of the jury is that it does not want to be in
+court. The name comes from the French word <i>Jur&eacute;</i>, sworn, or the man
+who has taken an oath. There is probably no reason to suppose that the
+word is derived from the state of mind in which a juryman finds
+himself, nor does it mean the words he has expressed with reference to
+his duty: more properly it is the men who are sworn to do justice. The
+implication of the word serve is that there is some punishment or
+penalty attached to jury duty. It is not regarded as penal servitude
+by the average man, but it seems near to it. While he is serving, his
+business goes to pieces, his wife misunderstands why he does not come
+home <a name="Page_58" id="Page_58"></a>to dinner and his whole life is disarranged. When a man has
+served on a jury he gets a discharge paper.</p>
+
+<p>Jury duty is one of the obligations of citizenship and its highest
+duty; at the same time it is one of its privileges. Foreigners and
+idiots cannot serve. Doctors, soldiers, journalists, clergymen, and
+others, besides those who are deaf, blind, or otherwise disabled, are
+exempted. The experience of serving on a jury may be annoying but it
+is broadening and gives an opportunity of seeing human nature in a way
+that few appreciate. To serve on a jury is to become a part of the
+judicial system of the State and for the time being to belong to the
+governing class.</p>
+
+<p>"All day long," says the court officer, "they do nothing but grumble
+and grumble at being kept away from their business but when they get
+chosen on a case, they realize it does not do any good so they settle
+down to do what is right." The country man may not have much to do and
+may look on <a name="Page_59" id="Page_59"></a>jury duty rather as a diversion or vacation from farm
+work but the average town man feels the $2 a day he receives is only
+lunch money compared to the amount he is losing in his business, and
+so he hates it.</p>
+
+<p>The first warning of trouble that a juryman gets is when he comes home
+and finds that a policeman has been looking for him. It is to be hoped
+that he has a guiltless conscience. He inquires further and learns it
+was only a court officer summoning him to court for the trial term
+next month. His first concern is to see what can be done in a
+political way. If he belongs to the local club of the district&mdash;but
+here let the curtain be drawn. Besides he may accomplish very little,
+so many of the judges do not seem to remember their political
+obligations. Then he tries to reach the judge through a friend and
+when that fails he makes his way resignedly to court on the appointed
+day.</p>
+
+<p>When he comes there for the first time he smiles at the court
+attendant and tries to make friends, but the court officer who has
+<a name="Page_60" id="Page_60"></a>been there many times before is not at all susceptible. Perhaps he
+hurries around to the judge's chambers and manages to see the judge's
+secretary, who is sympathetic over the fact that the month is December
+and the busy season of the year in the florist business and that there
+is only one assistant in the shop, but the judge is busy and will only
+see him from the bench. Finally he goes into court and waits for his
+name to be called.</p>
+
+<p>After the roll call, he goes timidly up to the rail and stands there
+waiting until his Honor will take notice of him. His Honor is busy
+blowing his nose or signing papers. Finally the court officer points
+him out. The judge scowls and asks him what he wants. Tremblingly he
+explains his difficulty: that his business needs him or that his wife
+is sick and that he will serve any other month if he can be let off
+now. The judge reads him a lecture on the duty of citizenship and the
+responsibility of jury duty and says he is sorry that he can not
+excuse him.</p>
+
+<p><a name="Page_61" id="Page_61"></a>Afterwards when the judge finds that there are enough jurymen in court
+for the needs of the calendar, he may privately send word to the
+juryman by a court attendant that he is excused for the term or for a
+few days until the Christmas rush is over or his wife is better.
+Judges are often humane, but if they were to excuse the juror openly
+they would find all the others in court clamoring for the same
+exemption. If the juryman merely wants to dodge the duty he probably
+does not get excused. The judge seems surprisingly intelligent and
+discriminating and able to pick the sheep from the goats. The man who
+merely wants to escape serving usually has to, and the man on whom it
+is a hardship is sometimes let off. Uniformly the jurymen feel that it
+is a necessary evil, but not so bad when they are once in court.</p>
+
+<p>Until a case is called for trial they sit about the court-room or walk
+in the corridors. In the meanwhile, the judge is arranging the
+calendar, and they have been watching the <a name="Page_62" id="Page_62"></a>maneuvers of the lawyers to
+have their cases put off, or they may have seen the amusing little
+by-plays when one lawyer crosses the aisle of the court-room,
+button-holes his opponent, and whispers something to him. The other
+lawyer motions to his client and the party moves to the hall where
+there is a secret conference about a proposition of settlement.
+Something is agreed upon or they may not come to terms and decide to
+go on with the trial. If there is to be a settlement the two lawyers
+walk up to the rail and say:</p>
+
+<p>"Will your Honor excuse us if we interrupt and mark the case of Allen
+against Brewster settled." The judge smiles with pleasure; he does not
+mind at all being interrupted for that purpose. He is pleased to have
+one more case off the score.</p>
+
+<p>When the time comes for the selection of a jury they wait for their
+names to be called with the thought that the axe is about to fall. As
+they are examined they answer the questions of their occupations and
+opinions <a name="Page_63" id="Page_63"></a>truthfully, but if for any reason they are excused, they
+leave the box with a smile at those impaneled and a sigh of relief as
+at danger escaped.</p>
+
+<p>Like many honors, the position of foreman of a jury is an empty honor.
+He has the first seat and he heads the procession when the jury walk
+in and out of court; he also announces the verdict, but he has no
+actual power either in the jury-room or in the court. If there is a
+vote to be taken, he has no deciding voice, but in the deliberations
+he quickly falls to the level which his attainments justify.</p>
+
+<p>During the trial a feeling of resentment at court procedure grows. It
+is not the judge any longer who is keeping and delaying them. The
+witnesses appear like fools it is true, but the lawyers make them act
+more foolishly than need be. Why does the judge make such absurd
+rulings? The law must be an unreasonable thing and the judge evidently
+knows a great deal about it. Why can't the witnesses tell what they
+know? The most <a name="Page_64" id="Page_64"></a>tiresome parts are when the lawyers begin arguing
+about the testimony. One side wants the witness to tell something and
+the other side does not. The judge keeps still and lets the lawyers go
+on talking as though it were something important, perhaps he can not
+help it. The lawyers or the judge can not have much to do. The judge
+it is true is paid to listen, but the lawyers must be pretty hard up
+when they will go on talking in that way. No juryman would stay here
+wasting his time during business hours, and afterwards there are the
+newspapers, supper, and taking the family to the movies, all of which
+is far more sensible.</p>
+
+<p>"Say, it's like a vaudeville show to see those two go on," thinks the
+juryman. "You couldn't beat it if you put it in an act. Georgie Cohan
+or Joe Weber could make their fortunes if they only hired the lawyers
+as actors or came into court for their material."</p>
+
+<p>Occasionally the judge calls the lawyers up to his desk and together
+they talk over <a name="Page_65" id="Page_65"></a>something which the jury can not hear. The jury look
+as though they did not care. If they want to talk some more&mdash;well, let
+them. Perhaps they are planning some game, and the jury will wait
+until their turn comes. In the jury-room they can show them what's
+what; that is where they know their chance is coming. Even if the
+judge is only trying to find out something about the case, that is a
+sensible thing to do. Why don't the lawyers come over and talk to the
+jury like that? In a few minutes they could ask them some questions
+that would settle the whole matter.</p>
+
+<p>The strange part is when a witness has said something and told how he
+or she feels about the whole case, which is exactly what the jury want
+to know, one of the lawyers jumps up and says he moves to strike that
+part all out and the judge strikes out. The lawyer having scored a
+hit, then says:</p>
+
+<p>"I ask your Honor to instruct the jury to disregard the testimony just
+given."</p>
+
+<p>"Gentlemen," says the judge, "the <a name="Page_66" id="Page_66"></a>evidence just given has been ruled
+out by the court and is not relevant to the issue, and I must instruct
+you to disregard these words of the witness and in arriving at your
+verdict not to consider them."</p>
+
+<p>Of all the absurdities that happen in court, the jurymen think that is
+the worst. Does the judge or the lawyer believe for a moment that
+because they say so the jury are going to forget what the witness
+said, especially when it was the very thing they wanted to find out?
+They watch the stenographer and they notice he does not even take the
+trouble to cross it out of the notebook.</p>
+
+<p>Occasionally a juryman becomes particularly interested and wants to
+question something. Usually he is too self-conscious to run the risk
+of being snubbed, but sometimes he is bolder and ventures a question.</p>
+
+<p>"Why," asks the juryman, "didn't the defendant give back the goods if
+they were not what she wanted?" Both lawyers are on their feet. There
+is a mute appeal to the court; both sides are afraid to object to the
+<a name="Page_67" id="Page_67"></a>question for they think the juryman may have a prejudice if he were
+stopped. The judge usually comes to the rescue and tells the juryman
+that he is sorry, but that his question is manifestly improper in
+form. The evidence should be whether the defendant did a certain thing
+or did not do it. The reason why he did it is not in point. After two
+or three attempts of this kind the juryman subsides and sits patiently
+through the trial without any suggestion. He thinks that there is a
+hopelessly complicated game being played before him and he does not
+attempt to interfere.</p>
+
+<p>There may be some truth in the theory of the attorney who says:</p>
+
+<p>"Always look out for the juryman who asks your witness questions. He
+is against you. If he absolutely believed the witness he would let it
+pass without questioning." This reasoning may be used as an argument
+either way, for if the juryman believes the witness he may feel that
+he should like to have him tell more. Or if he does not accept <a name="Page_68" id="Page_68"></a>him as
+truthful, he thinks it will not be worth while to ask him other
+questions. An inference may be drawn as to the juror's attitude for
+and against.</p>
+
+<p>An inexplicable thing to the jury is when the judge takes the case
+away from them and directs a verdict or dismissal of the complaint.
+That the jury should be compelled to listen to all that mass of
+testimony and then at the end not have a chance to decide is
+unreasonable. If the plaintiff did not have a case, why did the judge
+let them go on? He should have found it out earlier instead of wasting
+all that time.</p>
+
+<p>After the whole case is in, it may happen that both sides move for a
+direction of the verdict and then the jury have nothing to do. The
+judge says:</p>
+
+<p>"Gentlemen of the Jury, I direct you to find a verdict for so-and-so."
+Before they have a chance to say whether they will or will not, the
+clerk announces a verdict for so-and-so. This is very annoying and
+discouraging, especially when the jury were going to <a name="Page_69" id="Page_69"></a>find a verdict
+directly contrary to the way the judge decided. Technically they have
+a right to refuse to find a verdict as the judge directs, but if they
+did, only a mis-trial would result.</p>
+
+<p>It is an illustration of the difference between the function of a
+judge and a jury. The jury pass on the facts, the judge on the law.
+When the judge dismisses the case, he is saying that the facts may be
+so and what happened may be truly stated, but even then it does not
+make any difference. The law is that those facts do not make out a
+case. Only when the facts make out a case do the jury have any
+function. Then it is for them to find out whether the facts are as the
+plaintiff claims them to be or as the defendant. The jury are usually
+puzzled and do not understand the distinction. In certain cases the
+judge determines both the facts and the law and decides the whole
+matter. In those cases, and in what is known as equity, there are no
+jury, but a judge may always ask for a jury if he wishes one to
+determine the facts.</p>
+
+<p><a name="Page_70" id="Page_70"></a>A jury is supposed to be advantageous to the defendant in a criminal
+action and to the plaintiff in a civil action.</p>
+
+<p>"One judge is better than twelve," says the advocate of the non-jury
+system. "Law is a technical thing and you can not put a technical case
+plainly enough so that twelve men could thoroughly understand it."</p>
+
+<p>A discussion of the jury system is not in place. The jurymen have
+already been summoned and are in court and until the structure of the
+law is changed they will remain. They are ready to try any case that
+may come before them. The judge feels a sense of relief at not having
+to pass upon the facts. The law being laid down, all that remains for
+him to do is to see that the facts are fairly and plainly presented to
+the jury, that both sides conduct the case in a reasonable manner and
+that the trial be as open-minded as possible. The anxious attitude of
+mind toward the jury is that of the parties who are to be judged, the
+lawyers and their clients.</p>
+
+<p><a name="Page_71" id="Page_71"></a>The jury do not become very excited over the wrongs of one side or the
+other. They certainly do not enjoy the trial or look upon it as an
+example of a good fight although under the present system of procedure
+that is what it is supposed to be.</p>
+
+<br />
+<br />
+<br />
+<br />
+<a name="V" id="V"></a><hr />
+<br />
+
+<a name="Page_73" id="Page_73"></a>
+<!-- V -->
+<!-- THE STRENUOUS LAWYER -->
+
+<a name="Page_75" id="Page_75"></a>
+
+<h3>V<span class="totoc"><a href="#toc">ToC</a></span></h3>
+<h3>THE STRENUOUS LAWYER</h3>
+<br />
+
+<p>Of equal importance in the cast are the lawyers. They play the parts
+that represent action. The judge and jury are the heavy characters.
+The clients who make their entrances and exits as they take or leave
+the witness chair are of minor importance. The lawyers occupy the
+center of the stage the greater part of the time. Their clients sit
+watching, the judge and jury keep silent and listen to them.</p>
+
+<p>In order to make a trial or a contest there must be two sides. There
+may be three or more lawyers, but usually they divide themselves into
+two groups and take sides. The attacking party,&mdash;the plaintiff,
+complainant, or prosecutor,&mdash;naturally the more <a name="Page_76" id="Page_76"></a>aggressive, and the
+man who is defending himself.</p>
+
+<p>The latter's lawyer is the one who is wary and alert. Sometimes the
+attacking lawyer having gained a position sits down and defends it.
+During the trial there is a constant change of attack, the taking of a
+redoubt, charges and countercharges, trenches captured and forsaken
+again. The intellectual and legal battle is as bitter as any physical
+one. To the understanding observer and the participant it is momentous
+and intense.</p>
+
+<p>While the contest is waging there is no intermission. The fight is
+always hot, keen, bitter. Quietly as the lawyer may handle himself,
+underneath his calm exterior he is ready to fight, bite, scratch,
+shoot, kill, slash, but always he must do so under the rules of the
+game, never hitting below the belt. What the battle is about is the
+issue, the result is called the verdict, or the decision, and the
+formal statement of the court as to the result the judgment.</p>
+
+<p>The contest is so real it soon ceases to be a <a name="Page_77" id="Page_77"></a>play. It is too much in
+earnest and whatever humorous quality it may possess never loses the
+underlying intensity of human conflict. One noted trial lawyer says
+that he always feels the loss of a case in the pit of his stomach,
+another that he can never begin a trial without mopping his forehead
+for fear that beads of perspiration might be apparent. However
+ordinary and accustomed court trials may become to the participants,
+there will always remain the deep underlying stress of human passions.</p>
+
+<p>As lawyers are watched, they may appear alternately as jumping up and
+sitting down like jacks-in-the-box or those weather figures, where if
+one goes in the other comes out. Their appearance differs in the
+different courts from the higher courts where the well-groomed eminent
+leader of the bar, with thin lips and white side whiskers debates in a
+frock coat before the appellate court, questions of international
+importance, or the anxious-eyed little attorney where in one of the
+lower courts with a showy <a name="Page_78" id="Page_78"></a>diamond ring and a handkerchief sticking
+out of his pocket in the shape of an American flag, argues, while
+chewing gum, whether his client shall pay the fourteen dollars rent or
+not.</p>
+
+<p>There is never any peace between them. Occasionally there is a truce
+when they come together to agree on a certain state of facts, or
+conclusions of law, but essentially they are at war; otherwise they
+would not be in court. The only reason for their being there is an
+issue to be decided.</p>
+
+<p>Often so eager do they appear that physical violence seemed impending.
+It is as though they were on the point of breaking into fisticuffs.
+The judge says: "Gentlemen, gentlemen." They appear like two naughty
+schoolboys who have to be controlled by their master. First one is
+restrained and rebuked, then the other is held strictly to the rules
+of the game. Like schoolboys, although they may be fighting one
+another, they appear at times to be in league against the judge. As in
+a baseball game, both sides <a name="Page_79" id="Page_79"></a>join against the umpire. There is a
+common class feeling between the lawyers leaguing them against the
+judge. This may be explained perhaps by a rather subtle psychology.</p>
+
+<p>The lawyers are primarily in court to please their clients. Every
+ruling of the judge against them on even minor points of evidence, any
+adverse decision is fatal to them from the point of view of retaining
+the client for the next litigation. They watch the judge with
+lynx-like eyes. Is he going to drive the client away from them? Should
+he reprimand them or speak severely, their client would think that
+they had angered the judge and so they had lost the case. Defeat in a
+case is so important that if a lawyer loses a case he probably loses
+his client.</p>
+
+<p>In one of the lower city courts on the East Side, a young attorney
+came in one morning with a scar across his cheek, a scratch on his
+nose, and sticking plaster on his chin. The judge had often seen him
+before. After the <a name="Page_80" id="Page_80"></a>case was over he called him to the bench and said
+that he was sorry he had an accident, and asked him what had happened.
+"Oh, not much," said the lawyer, "last week I simply lost a case for a
+client."</p>
+
+<p>The complaint of the lawyer against the judge is always that he has
+forgotten that he was a lawyer once himself. He does not realize how
+important it is that the lawyer should make a good impression on his
+client. His feeling is, if the judge cuts him off when he is arguing,
+the client will think that he is talking foolishly. The judge
+overrules his objection. The client thinks the judge does not like
+him. The judge denies his motion to strike out, he evidently does not
+look on the lawyer favorably. The lawyer's chance of display is in
+talking. If he is not allowed to go on he feels the judge is
+unreasonable in not listening to him.</p>
+
+<p>The nice lines to be made by the judge between consideration for the
+feeling of the lawyers and insisting that justice be fully and
+speedily accomplished, are hard to draw. <a name="Page_81" id="Page_81"></a>On the one hand there are
+the courts where no limit is put to the digressions of attorneys and
+where they may wander on and on, apparently merely to display their
+oratory to their clients, and other courts where the undoubtedly bad
+manners of the bench to the bar are unforgivable.</p>
+
+<p>Control of the trial is necessary because it is a struggle in a court
+on a defined area. It is an intellectual ordeal by battle, a capping
+of intellects. It is like a game of chess in which luck is eliminated,
+the board is free, the pieces are equal, the way in which they may
+move is fixed by the rules of the game of court procedure. The element
+of chance is made not by the court or the procedure, but by the fact
+that the pawns, the castles, and the knights are not of ivory, but are
+human and mutable.</p>
+
+<p>The lawyers are discontented with the courts, while the judges feel
+that the deficiencies are the fault of the lawyers. The lawyers, they
+say, do not co&ouml;perate with the judges in the administration of
+justice, <a name="Page_82" id="Page_82"></a>and are too busy with their own game. Here enters that
+academic question of whether a lawyer's duty is first to the court and
+justice, or first to his client,&mdash;should he defend a man he knows to
+be guilty. The dispute is sophomoric. He is the advocate of his client
+first, foremost, and all the time. That is the reason for his
+existence. He is the agent for his client; his tongue, brain, and
+energy belong to his client. He is undoubtedly justified in whatever
+he does, if he keeps to the rules. Justice is best promoted by heeding
+the rules of justice to the utmost.</p>
+
+<p>It is to be remembered that the lawyer occupies an uncertain position.
+As an officer of the court he is sworn to promote justice; as a
+champion in the battle he is under the deep obligation of performing
+his utmost for his client. At times the conflict between his duties
+seems real. As an officer of the court he has the privilege of the
+floor. He can be heard and is admitted to the court. It is as though
+he had joined a club in which <a name="Page_83" id="Page_83"></a>dueling or gaming is permitted. The
+obligation resting upon him is to act as a gentleman and obey the
+rules and not to cheat. If he keeps to the rules he is presumably a
+gentleman and can do what he pleases for his clients.</p>
+
+<p>If there is any complaint about the courts it is held to be the fault
+of the lawyers, if there are criticisms of the lawyers it is the fault
+of the courts. They are interdependent and indissoluble. If a club
+house is not suitable for its purposes, is old-fashioned, rickety, and
+dirty, it is the fault of the members. If the members do not behave
+the club house gets a bad reputation.</p>
+
+<p>Courts are institutions, and not persons; the lawyers are the
+individual stockholders. If by his actions in court or in the club he
+brings disgrace on himself as a lawyer or upon his club, there is very
+little to be done about it. The club membership may be more limited
+and select, but the building will not be improved except that it may
+be swept a little cleaner.</p>
+
+<p>The judge as the president of the club <a name="Page_84" id="Page_84"></a>must see that the lawyers
+observe the rules, he can not rebuild the club house or materially
+change the rules. The only persons who can effect a change are the
+lawyers. As members, they are agents for their clients who are the
+public at large. Occasionally the public awakes to a realization of
+their power over both courts and lawyers, that they are their
+creatures; then happens a revolution in procedure and something is
+accomplished.</p>
+
+<p>The lawyer waits about the courthouse for his case to be reached. It
+may take days or even weeks before it is marked ready. He wastes his
+time. The witnesses have been subp[oe]naed. They have to be told to
+come again the next day. There is little money in it for the lawyer.
+Office practice pays better than court work and except for the eminent
+pleaders there is but small honor.</p>
+
+<p>During the trial the lawyer seems to be sparring. He takes the
+attitude of saying: "I want that point of law decided; it is such a
+nice point, it ought to be settled." As a <a name="Page_85" id="Page_85"></a>matter of fact he only
+wants it settled in his own favor. It is not the abstract interest but
+the concrete fact in which he is interested.</p>
+
+<p>The lawyer is vigilant from the beginning of the trial to the end.
+After the case is marked ready he watches the jury, the other side,
+and the judge; any movement may be of importance; if it escapes his
+notice he may lose his whole case. It is not safe for him to go on the
+assumption that the other side is as honest as he is. If they should
+attempt to put in some evidence that is not proper, to offer a paper
+that is not duly authenticated, to try by some trick or device to take
+an unfair advantage, he must be ready to pounce upon the incident. If
+he is quick he may turn it to the advantage of his own side.</p>
+
+<p>The other lawyer among a bundle of letters offers one that is only a
+copy or is not signed. The lawyer notices it but keeps still and when
+at the proper time calls the attention of the judge and the jury to
+the fact, <a name="Page_86" id="Page_86"></a>the plain implication is that the other side must have a
+very weak case if it needs bolstering up by such methods as this. The
+argument is that he let the paper go in without objection because he
+thought the matter trivial anyway, and he wanted the jury to see the
+underhand method of the other side.</p>
+
+<p>The indefinable quality of personal magnetism is of much vaunted
+importance. It is like that horrid word, charm; no one knows what it
+means and seems to have a supernatural quality. The trial lawyer does
+not need either charm or magnetism. They are both nonsense. Like
+actors or fighters if they are sufficiently trained in their parts or
+know how to use their weapons, the lawyers' personal magnetism over
+judge and jury will come of itself. The judge is a fairly hard-hearted
+person. The jury may be governed by sentiment but they are an example
+of the average man and neither are going to be caught by smile or
+mannerisms. Sound qualities will prevail.</p>
+
+<p><a name="Page_87" id="Page_87"></a>A fine-looking trial lawyer who thoroughly knew his business once had
+a hard case. His appearance and manner impressed the jury. They
+followed his every motion. The trial was long and tiresome. It was the
+days of those little iron puzzles to get two rings or anchors apart;
+occasionally he would take one out of his pocket and begin playing
+with it. The jury would follow him with their eyes to see whether he
+could do it. Whenever he thought the evidence for the other side was
+getting too interesting, out would come the little iron puzzle and the
+jury would pay more attention to its solution than to the witness on
+the stand. He won his case but that is no reason to recommend the
+playing of "Pigs in Clover" in the court-room. The reason he won the
+case was because he was the capable man and on the job.</p>
+
+<p>The lawyers' profession is not a creative one but the value in the
+social structure is cohesive. He brings together the investor and the
+manufacturer, he amalgamates capital and labor on a sound legal basis.
+He <a name="Page_88" id="Page_88"></a>adjusts conditions to the laws and laws to the conditions. His is
+the most large-minded of the professions. He is theoretically the
+layer of the law. In every community the eminent lawyer is the eminent
+citizen. No one commands greater respect. But there is no doubt that
+the inefficient administration of justice is the fault, to a large
+extent, of the legal profession.</p>
+
+<p>The fine, kind face of the lawyer who, ripe in years and
+understanding, beams a genial smile is a living reproach to the
+detractors of his profession. Painstaking, scrupulous, broad-minded,
+and intelligent, with a twinkle of humor for the frailities of
+humanity, he looks on the pettiness of men with a wise tolerance.
+Beneath his ease of manner and cordiality of intercourse there lies a
+world of experience, of battles fought and won, of inherent force of
+character, of public honors received and gracefully borne. There are
+no limits to the admiration and love to which he is entitled.</p>
+
+<p>Beside the lawyer, and watching him with <a name="Page_89" id="Page_89"></a>worried eyes, sits the
+client, who unless he is in the wrong really wants the lawyer to bring
+out the facts in the case rather than to have him exhibit his
+qualities as a fighter.</p>
+
+<br />
+<br />
+<br />
+<br />
+<a name="VI" id="VI"></a><hr />
+<br />
+
+<a name="Page_91" id="Page_91"></a>
+<!-- VI -->
+<!-- THE WORRIED CLIENT -->
+
+<a name="Page_93" id="Page_93"></a>
+<h3>VI<span class="totoc"><a href="#toc">ToC</a></span></h3>
+
+<h3>THE WORRIED CLIENT</h3>
+<br />
+
+<p>Like the financial backer of a play, the client does not figure
+largely on the stage. If he does appear as an actor he may have a
+small speaking part, but he is not a star. He owns the show, and if it
+does not pay he loses, or if he wins he gets a proportion of the
+profits. Consequently he hires the best talent he can afford. The star
+performer is the lawyer, but as the producer the client has not only
+the choice in picking the theme, but the play is about him and his
+troubles. Great drama consists in a conflict of emotions. The emotions
+of the two opposing clients make a court drama. The acting and the
+staging is the art of the lawyer.</p>
+
+<p>The philology and derivation of the word <a name="Page_94" id="Page_94"></a>client is significant. It
+does not mean the principal, but a follower. It is derived from the
+Latin word <i>cluere</i> and the Greek <span class="Greek" title="klyein">&#954;&#955;&#965;&#949;&#953;&#957;</span>, meaning to hear; one who
+listens, a follower.</p>
+
+<p>An ordinary man has a horror of the entanglement of the law. A
+hard-headed man of business says he would rather pay a claim of $250
+or less, although he had never seen the claimant, and the suit was
+utterly unfounded, than go to court. He would rather lose the same
+amount than bring a suit involving the trouble and expense of hiring a
+lawyer, requiring witnesses to waste their time, and wasting his own
+in waiting for a trial, which might possibly result in a judgment
+against him on a perfectly just debt, either through the miscarriage
+of justice, or the chance of not collecting the judgment. The typical
+feeling is that of the stockbroker who said: "Only blackmailing suits
+go to court, for if sensible men have a dispute they know it is easier
+and cheaper to settle it outside."</p>
+
+<p>The client is in a darkened room. He only <a name="Page_95" id="Page_95"></a>partially sees what is
+going on. If the whole case is thrown out of court on a question of
+law or a technicality he feels more than resentful against the judge;
+he is revengeful; he will spend every cent he has in the world
+appealing and showing that judge how wrong he is. In the first place,
+it is a disgrace.</p>
+
+<p>"Why," he says, "the judge just kicked us out of court. We didn't have
+a chance; the judge must have been friends with the other side. Do you
+call that justice? I'd like to get that judge outside and talk to him
+man to man. No one can get a square deal in court."</p>
+
+<p>The feeling of the client toward the courts and the lawyer is one of
+distrust, mingled with respect. He will say:</p>
+
+<p>"I would rather take a friend's word as a gentleman that he would do
+something than to have it put in the form of a forty-page contract
+drawn by the best lawyer in the country. I could rely on the word of a
+gentleman, but if any question on that contract came into court, some
+clever lawyer <a name="Page_96" id="Page_96"></a>would find a loophole to get out of it." Yet the fact
+is that the world does require legal documents. An interesting
+speculation would be to consider what proportion of the world's
+business affairs is conducted on a basis which could be provable or
+have the authority of enforcement in a court of law. The proportion of
+the business transacted in a so-called legal manner is insignificantly
+small.</p>
+
+<p>The numberless transactions of the retail stores in a great city; such
+cases of proving that a pair of gloves were sold, delivered, and not
+paid for are extremely difficult to prove. The expense and trouble
+involved of subp[oe]naing the different departments and of breaking up
+the routine of the store, would prevent the stores becoming clients.
+The enormous transactions on the New York Stock Exchange, where a
+hundred million dollars' worth of business is reputed to be done in
+one day, is entirely on the basis of personal honesty. So far as the
+court goes, should one party to a stock sale not be willing <a name="Page_97" id="Page_97"></a>to
+complete, there would be little possibility of enforcing it. Therefore
+the Stock Exchange makes its own rules and has its own method of
+settling disputes. The world at large is not a client in the court.
+The man who becomes a client in the sense of litigant is an exception.
+The courts would seem to be unrelated to the demands of actual
+business affairs.</p>
+
+<p>Times have changed since the Victorian days when a solicitor was the
+client's deferential servant, the steward and custodian of the landed
+gentleman's legal affairs. Then the lawyer had a profession which he
+carried in his head. Law reports contained a few thousand, not a
+million decisions, and there were no title insurance companies to make
+a business of determining the ownership of real estate. Yet in those
+days the legal adviser was not a very exalted person, ranking beneath
+the soldier and standing hat in hand before the gentleman of property,
+to whom he owed his living. The citizen who wished to learn whether he
+or his landlord <a name="Page_98" id="Page_98"></a>should clear away the snow on the sidewalk, went
+gravely to a lawyer's office and paid a fee for the information. It is
+obvious that lawyers do not make their living through small fees for
+giving advice. As a matter of fact, those whose work is more
+remunerative than a street-car conductor's or a carpenter's, make
+their living through business and not in small litigation.</p>
+
+<p>To-day lawyers complain that their profession is slipping from them.
+But they have gained the prestige of business.</p>
+
+<p>"I am a business man, not a lawyer," says the elderly leader at the
+bar, and scarcely knows whether he is, on the whole, gratified or
+regretful.</p>
+
+<p>Their abilities are used in directing the conduct of business from a
+legal standpoint and protecting it from those who are ready to prey
+upon it. Business needs protection from other business, from accident
+cases, and libel cases. These frequently get into the courts. Citizens
+need protection from business and seek it in the aggressive form of
+<a name="Page_99" id="Page_99"></a>suits for damages. Big business looks on the courts as instruments of
+blackmail, and the small citizen feels that the courts are inadequate
+to protect his rights. It makes a deal of difference which side they
+are on. But in any case the present-day successful lawyer is primarily
+a business man.</p>
+
+<p>A corporation is a legal creation; a lawyer is its mother and nurse.
+The stockholders having the curious relation of being partners, one
+not liable for its debts&mdash;if its legal affairs are properly handled.
+And so the company retains a lawyer at a yearly salary to give them
+advice and that legal protection. Prominent lawyers are taken in as
+partners of the big banking firms. The large industrial companies have
+the highest priced lawyers exclusively attending to their affairs.
+Accident Insurance Companies have enormous legal plants as efficiently
+organized as factories for handling damage suits and against whom is
+opposed the inexperienced lawyer of the individual citizen.</p>
+
+<p>Furthermore, the corporation, though <a name="Page_100" id="Page_100"></a>composed, in reality, of
+individuals, is less personal than any one of its members. It is a
+client without keen emotions, without too distracting hopes, fears, or
+suspicions. Law is an exacting science, arduous and complex. The
+lawyer, to do his best, should work quietly, disturbed as little as
+possible by the human interests at stake. If then the lawyer is
+correct in preferring the soulless corporate client, it must be that
+the ordinary individual is either too poor, or too human. Naturally,
+the corporations are not only the most satisfactory, but the most
+desirable clients.</p>
+
+<p>The client, although he is the originator of the drama is in reality
+only a listener. The client in court has so little to say and the
+lawyers have so much, that it seems unexplainable. The reason is that
+the lawyers are the fighters, the champions, the knights in the
+tournament. A legal battle is only enacted because the lawyers are
+expert fighters. The client having hired them, has little to do but
+watch. When men first went <a name="Page_101" id="Page_101"></a>to law they had no champions; they fought
+and took what they could, but as civilization advanced men became too
+busy to engage in legal or actual battles and there grew up a
+specialized class of fighting men. The lawyers are the hired
+mercenaries of the commercial structure; and the clients are the
+ordinary business men. True, some of the lawyers are free lancers, but
+the majority have the sentiments and standards of their class. There
+is a natural class antagonism between the client and the lawyer. The
+client is afraid and mistrusts the lawyer; and the lawyer feels that
+he must act for an unintelligent client who is ignorant and inexpert.
+So long as the courts continue to exist on their present plan the
+difference between client and lawyer will be marked.</p>
+
+<p>An example of a return to formalism and a reactionary development has
+been the change in what is known as the Poor Man's Court of New York
+City. It was originally planned as a court where the client or man
+unlearned in the law could come in to sue in a simple way. <a name="Page_102" id="Page_102"></a>They were
+simple justice courts. The limit for which he could sue was $100, then
+$250, then $500, now $1000. Formerly the judges need not be lawyers. A
+trial was an informal affair. The judge would line up both the parties
+at the rail. One side would tell their story, the other side would
+interrupt and finally get a chance to tell theirs. The judge would
+figuratively pat them on the head, decide the case, and tell them to
+go home and be good.</p>
+
+<p>The New York Legislature recently passed a law making the court a
+court of record, and making all the provisions of the Code of Civil
+Procedure applicable. The code with its half million words is
+therefore a part of the procedure. So that the client now before he
+goes into court without a lawyer ought to familiarize himself with the
+code. Formerly these courts may not have been dignified. Pandemonium
+would break loose and the litigants begin screaming at and abusing
+each other. Often the judge was obliged to apply a somewhat arbitrary
+and paternal rule. <a name="Page_103" id="Page_103"></a>Now the courts are more dignified and formal, but
+the clients are disappearing from view. They are in fact afraid to
+come into court without a lawyer.</p>
+
+<p>While the dignity and efficiency of the court have been increased, it
+has almost ceased to be a court for the poor man; indeed the procedure
+is so technical that, although possible, it is rather unusual for a
+man to come without a lawyer. Of course, the attorneys who make their
+living by appearing in small suits where the fee is often a contingent
+part of the small amount recovered, or a fixed charge of $5 or less
+for trying a case, do not present examples of the best legal ability.</p>
+
+<p>The point of view of the client is that he is loath to spend the money
+to hire a lawyer for defense. One litigant stated in court, when asked
+if he had not admitted the debt: "Well," he said, "I just went around
+to see the plaintiff to find out if I could not save a few dollars
+instead of hiring a lawyer." It is an open question which brand is
+the <a name="Page_104" id="Page_104"></a>best for the client, the rough and ready justice or the formal
+and orderly kind.</p>
+
+<p>While the jury are being examined and during the opening of the
+counsel, the client sits quietly, but a trifle self-consciously, at
+the counsels' table. The talk is about him and frequent references are
+made to him and what he has been doing. He tries to look as though he
+did not care and was accustomed to the surroundings, and when the
+taking of testimony and the wrangles over objections and motions
+begin, he falls quietly into the background.</p>
+
+<p>If it is a criminal action he is not on the stand during the People's
+case. When his side is presented his lawyer does the best he can to
+keep him from the stand, whether he be innocent or guilty. The
+well-known expression is that the defendant hangs himself by taking
+the stand. In civil trials the client may be a corporation or the
+owner of the injured automobile or wagon, but not a witness to the
+accident. He sits silent by his lawyer if he is wise, realizing that
+his lawyer <a name="Page_105" id="Page_105"></a>can fight better without being annoyed. If he is nervous,
+he keeps plucking at his sleeve and whispering advice. It is difficult
+for him to restrain himself. There have been months of preparation.
+The drama is being produced; to him it is vital. He knows more about
+the case than the lawyer. He wants to advise, suggest, and instruct.
+Why doesn't the lawyer ask the witness that question about what he
+told Smith or what he told his wife?</p>
+
+<p>The client might be surprised if he knew what the lawyer was thinking
+of him. If asked, the lawyer would moisten his lips, draw a long
+breath, and then pause, not for lack of thoughts however. The best
+client in court for the lawyer is the silent client. One of the
+greatest calamities from the lawyer's point of view is when the client
+is on the witness stand and begins to get confidential with the judge
+and to tell him exactly how he feels about the whole matter.</p>
+
+<p>"Why," said a lawyer, "I had a perfect <a name="Page_106" id="Page_106"></a>case and then the judge asked
+a question and spoiled the whole thing. I think it was outrageous, the
+judge had no right to interfere."</p>
+
+<p>The attorney's feeling toward his client is contained in the wish that
+he wasn't there. The legal aspect of the case, the real point at
+issue, is probably something very different to what the client has in
+mind. The lawyer has an uneasy feeling that, in the client's eyes, he
+will not do the case justice.</p>
+
+<p>"How outrageous," thinks the defendant, "that I should be sued when
+I've been over-generous for years. And the jury ought to know exactly
+what these people are who said they'd call off the suit if I'd pay
+them a hundred dollars." The lawyer is aware of these views, because
+he has been told them more than once; he also knows that he cannot try
+the case in that way.</p>
+
+<p>The counteraction of emotions and feelings between the lawyer and the
+client, the judge and the jury, the undercurrents that are constantly
+moving from one to another, make <a name="Page_107" id="Page_107"></a>up the drama of the court. The
+characters are laid, the theme is selected, the actors are chosen, and
+it remains for the play to be prepared.</p>
+
+<br />
+<br />
+<br />
+<br />
+<a name="VII" id="VII"></a><hr />
+<br />
+
+<a name="Page_109" id="Page_109"></a>
+<!-- VII -->
+<!-- PROGRAMS AND PLEADINGS -->
+
+<a name="Page_111" id="Page_111"></a>
+<h3>VII<span class="totoc"><a href="#toc">ToC</a></span></h3>
+<h3>PROGRAMS AND PLEADINGS</h3>
+<br />
+
+<p>Pleadings are the programs of the performance. They are printed
+beforehand and everybody gets a copy. Preparation consists in the
+rehearsal and the carpentry of setting the scene. Any lawyer knows how
+important the pleadings are, but nobody else does. The judge does not
+pay any more attention to them than he has to. Juries hardly ever see
+them; if they did, they could not understand them. The witnesses never
+hear of them, the clients have sworn they have read them and have
+sworn that they are true. Yet not one client in a thousand could give
+an explanation of them other than, "My lawyer told me to sign it, so I
+did."</p>
+
+<p>Whenever anyone gets anxious to <a name="Page_112" id="Page_112"></a>understand a pleading, there are so
+many volumes about the subject and so many bookcases of decisions they
+would furnish a house. All this may appear flippant, but the subject
+is so absurd, abstruse, and abnormal to a man of business, that it is
+almost impossible to make it understandable. A partial list of
+authorities on the subject sounds like a chapter from <i>Alice in
+Wonderland</i>: Pepper on Pleading; Perry on Pleading; Pollock on
+Pleading; Pound on Pleading; Puterbaugh on Pleading; Phillips on
+Pleading; Pomeroy on Pleading. The number of court decisions in which
+this branch of the proceeding has been reverently and gravely dealt
+with reads like a metaphysical discussion in the dark ages. The names
+formerly used were superb. Complaint, demurrer, confession and
+avoidance, traverse, replication, dilatory pleas, peremptory pleas,
+rejoinder, rebutter, and sur-rebutter.</p>
+
+<p>On the other hand the clear, concise technical statement of a case is
+not a matter to be laughed at; no clear thinking is possible <a name="Page_113" id="Page_113"></a>without
+it. No plain understanding of what the drama is about, nor what the
+issues of the battle are, can be grasped. Good lawyers are good
+thinkers and usually plain talkers. The present-day revolt against the
+confused pleadings may go to the opposite extreme and abolish them
+all, leaving the case to be presented as formless and loose. The vexed
+question of the proper form of a pleading may delay justice until it
+is determined on appeal from the City Court to the Supreme Court, then
+to the Appellate Division, then to the Court of Appeals. In the
+meanwhile the clients may die, the money in suit may be lost, while
+the audience is waiting merely for the programs to be printed.</p>
+
+<p>In Perry on <i>Common Law Pleading</i>, reprinted in 1897, chapter thirteen
+is devoted to rules which tend to prevent obscurity and confusion in
+pleading.</p>
+
+<div style="margin-left: 5%;">
+<table border="0" cellpadding="1" cellspacing="0" width="100%" summary="Rules which tend to prevent obscurity">
+  <tr>
+  <td class="tdlsc" width="5%">Rule</td>
+  <td class="tdrp" width="5%">I. </td>
+  <td class="tdl" width="90%">Pleadings must not be insensible or repugnant.</td>
+  </tr>
+  <tr>
+  <td class="tdlsc">Rule</td>
+  <td class="tdrp">II.</td>
+  <td class="tdl">Pleadings must not be ambiguous or doubtful.</td>
+  </tr>
+  <tr>
+  <td class="tdlsc"><a name="Page_114" id="Page_114"></a>Rule</td>
+  <td class="tdrp">III.</td>
+  <td class="tdl">Pleadings must not be argumentative.</td>
+  </tr>
+  <tr>
+  <td class="tdlsc">Rule</td>
+  <td class="tdrp">IV.</td>
+  <td class="tdl">Pleadings must not be hypothetical or in the alternative.</td>
+  </tr>
+  <tr>
+  <td class="tdlsc">Rule</td>
+  <td class="tdrp">V.</td>
+  <td class="tdl">Pleadings must not be by way of recital, but must be positive.</td>
+  </tr>
+  <tr>
+  <td class="tdlsc">Rule</td>
+  <td class="tdrp">VI.</td>
+  <td class="tdl">Things are to be pleaded according to their legal effect.</td>
+  </tr>
+  <tr>
+  <td class="tdlsc">Rule</td>
+  <td class="tdrp">VII.</td>
+  <td class="tdl">Pleadings should observe the known forms of expression as
+contained in approved precedents.</td>
+  </tr>
+  <tr>
+  <td class="tdlsc">Rule</td>
+  <td class="tdrp">VIII.</td>
+  <td class="tdl">Pleadings should have their proper formal commencements and conclusions.</td>
+  </tr>
+  <tr>
+  <td class="tdlsc">Rule</td>
+  <td class="tdrp">IX.</td>
+  <td class="tdl">A pleading which is bad in part is bad altogether.</td>
+  </tr>
+</table>
+</div>
+
+<p>These are pleasant rules for a layman to understand, and any time he
+has a day off or a holiday he should study them.</p>
+
+<p>"Shocking," cries the old-fashioned reactionary lawyer, "What! Do away
+with pleadings, you might as well do away with the whole case.
+Pleadings are like the rails for a train. No one on the train sees
+them, but take away the rails and the train would <a name="Page_115" id="Page_115"></a>not go very far.
+Pleadings are the groundwork of the trial."</p>
+
+<p>He grows more and more indignant.</p>
+
+<p>"The trouble with the modern courts is that they do not know what they
+are about. If this business of loosening the forms of pleadings had
+not taken place, lawyers would be better prepared when they came into
+court and there would not be this floundering about. The good old
+common law pleadings were the thing. It was a great mistake when they
+were abandoned. Then everyone knew where they were. If there was a
+mistake in the pleading then the whole case was thrown out of court.
+That was as it should be. Men had to be good and careful lawyers in
+those days. The slipshod methods of the present time are abominable."</p>
+
+<p>"You seem to be a little hard," says the modern lawyer. "Justice ought
+not to depend on forms."</p>
+
+<p>"You can never have justice without formalizing and shaping the
+dispute," says the lawyer.</p>
+
+<p><a name="Page_116" id="Page_116"></a>"Quite true," says the modern, "but there has been too much attention
+paid to the form of justice. Pleadings are the mere mechanics like
+printing the program or laying the rail."</p>
+
+<p>However, this is all a question that does not come up in the
+court-room at a trial. Once or twice some reference is made to the
+pleadings. Perhaps there is some such dispute as this. The defendant
+attempts to swear that he "paid for the goods then and there." The
+other lawyer jumps up and says, "I object, your Honor. In his answer
+he does not plead payment. He only pleads a general denial." The judge
+puts on his spectacles. The lawyers gather, business stops while
+everyone looks at the pleadings.</p>
+
+<p>Or again the plaintiff tries to show that when he was thrown from the
+wagon he bruised his right elbow. The counsel objects there is nothing
+about injuries to his right elbow in the Bill of Particulars,
+therefore he can not prove it. The Bill of Particulars says that he
+hurt his hand, scratched the forearm, <a name="Page_117" id="Page_117"></a>and injured the right shoulder,
+but says nothing about the elbow. Grave consultation by the learned
+lawyers and the judge ensues. The defendant's lawyer is right, there
+is nothing in the pleadings about the elbow.</p>
+
+<p>The case can not go on until that important question is settled. There
+is argument on both sides. The client looks anxious. The jury sit and
+wonder what that phrase of "the delay of the law" may mean. Finally a
+bright idea occurs to the lawyer.</p>
+
+<p>"I move to amend, your Honor, so as to include the elbow." The other
+side looks shocked and disgusted. "What, move to amend in such a
+casual way as that. The pleading is a serious thing. It has been sworn
+to, you may not amend a sworn statement in that offhand way." The
+judge says that he will allow the amendment but if the other side is
+surprised he will grant an adjournment of the trial to another day.
+The other side says, "Pardon me a moment until I consult with my
+client." The judge <a name="Page_118" id="Page_118"></a>smiles. The lawyer goes over to his client and the
+client says, "For goodness' sake don't adjourn. I've broken up my
+business for a week to come here now; what's all this fuss about
+pleadings; let's get on with the case." The lawyer returns to the bar.
+"We have decided to proceed."</p>
+
+<p>"Amendment allowed," says the judge. The witness now tells about
+hurting his elbow.</p>
+
+<p>The preparation of a case goes on behind the scenes and before the
+drama begins. The attempts to rehearse are piece-meal. First one
+witness is seen, then another, their stories are told, their
+statements are taken, and they are drilled in their parts. They are
+told as to what facts they must testify. In one large company that has
+a quantity of damage suits, there is said to be a school for witnesses
+where there are dress rehearsals and they are taught how to behave in
+court.</p>
+
+<p>The greatest farce that occurs in the court-room is the part of
+preparation that is involved in getting a case on for trial. There
+<a name="Page_119" id="Page_119"></a>being no limit to the time to examine witnesses, to hear arguments, to
+listen to objections, it is said to be impossible to tell how long a
+case is going to take. Consequently the calendar having been called,
+the cases following are answered ready, by office-boys with no
+expectation of their being immediately reached.</p>
+
+<p>The grave and reverend judge looks over his desk and calls the case of
+Bowring <i>vs.</i> Bowring. "Ready for the plaintiff," answers a
+rosy-cheeked boy. "Ready for the defendant," answers another. They
+look rather young to be trying a case. It is marked ready and the
+office-boys sit about the court and telephone to the lawyers when they
+think there is a chance of being nearly reached. This often takes
+several days. In the meanwhile the cases ahead of the Bowring case
+have been dragging out their slow and weary performance on the court
+stage. Matters of fact that should have taken five minutes to bring
+out by the present usual laborious system of proof, have taken two
+hours. <a name="Page_120" id="Page_120"></a>Argument of counsel on abstruse questions of law have worn and
+confused the jury and the clients, who have become exhausted and
+impatient.</p>
+
+<p>The clients and witnesses may have been sitting, trying to understand
+and becoming more and more mystified.</p>
+
+<p>The dealings of open-handed Justice ought to be plain, prompt, and
+understandable; instead to the spectator she seems a mysterious jade
+with no understanding of everyday life. She keeps them waiting there
+without reason. If the case is marked ready it ought to be ready. The
+business man feels that Justice is extremely tardy in keeping her
+appointments.</p>
+
+<p>His natural reverence for abstract Justice prevents him formulating
+these thoughts, but he continues to wonder. Not understanding the
+cause he becomes dissatisfied and his experience in court leaves a
+profound contempt for the system of jurisprudence. He thinks that if
+any man conducted his own business on the method and plans on <a name="Page_121" id="Page_121"></a>which
+the courts are being run he would soon be bankrupt.</p>
+
+<p>"Why," he says, "does not the court get in an efficiency expert on
+this calendar evil and have it arranged on a business basis?"</p>
+
+<p>During the days the case has been on the calendar the lawyer has had
+to hold himself in readiness to try the case. The managing clerk has
+been sending out for his witnesses. They have been served with
+subp[oe]nas and paid their fees to come to court on the day the case
+was first marked ready. They arrive and are told to come again the
+next day. They also have a respect for the court and are glad to come
+to do their duty and tell the truth. The truth is mighty and will
+prevail; but in court she can only speak through witnesses. Unless the
+witness be treated with consideration it would seem that she will not
+speak very willingly.</p>
+
+<p>In place of having them return and return again, some system soon will
+be devised of giving them timely notice when the case is to be
+reached. Exhausting the patience of the <a name="Page_122" id="Page_122"></a>men who are the props and
+mainstays of truth does not seem reasonable, and after a few visits to
+court they are not anxious to come again. If possible they will escape
+the process server.</p>
+
+<p>A man who has witnessed an accident to a woman by a street car, in
+spite of his humanitarian instincts will run around the corner for
+fear of being called as a witness. The man who hears at night the call
+of "Police! Police!" in the street, jumps out of bed and begins to put
+on his clothes, but thinks better of it for the same reason. If a man
+is in a taxicab that is run into by an express wagon, and the
+resulting suit is brought by the taxicab company for $110 damages, he
+may have to attend court five separate days as a witness and the case
+may not be called. He has to leave the State to avoid being annoyed by
+the subp[oe]na server, who dogs him at his club and at his home. The
+witnesses have lost their time and their patience.</p>
+
+<p>Each lawyer knows this and a petty game of playing for delays and
+adjournments <a name="Page_123" id="Page_123"></a>sometimes goes on. Suppose there is a good claim which
+nevertheless the defendant denies, knowing how lengthy and wearisome
+is the game of reaching a case, he often succeeds for years in
+preventing its collection. The game is simply to tire out the
+opponents, clients, and witnesses. A clever and unscrupulous lawyer
+can throw so many obstacles in the way of a plaintiff that, unless he
+have a strongly developed streak of obstinacy, he will give up in
+disgust or be glad to compromise.</p>
+
+<p>Unless both sides are anxious to be reached it is practically certain
+a case will be adjourned two or three times. A sworn affidavit is
+presented with the doctor's certificate that the client or witness is
+sick, or the sworn statement that a witness can not be found, or that
+the lawyer is engaged in the trial of another case. The excuse may be
+valid and the reasons may be sound, but the adjournment of the day for
+trial occurs again and again. This is one of the causes for the
+complaint as to the law's delay. Naturally <a name="Page_124" id="Page_124"></a>calendars have to be made
+and called. Cases have to be tried and others have to be reached in
+order, but at least there should be sufficient and intelligent
+planning of the order.</p>
+
+<p>It seems rather a weak answer to say that no one can tell how much
+time will be occupied in the trial of a case. If any systematic or
+scientific method of regulating the calendar were devised, one of the
+evils would be avoided.</p>
+
+<p>The very call of the calendar in some courts occupies to an
+unreasonable extent the time of the judge who might as readily be
+engaged in the real work of the court. The aggregate value of the time
+of the judge, the lawyers, the witnesses, and the jurymen who have all
+been sitting about waiting, for the call of the calendar is, for one
+hour's delay a large sum. The waste might be saved by an intelligent
+bureau for the administration of court business which would have
+absolute control over all calendar practice.</p>
+
+<p>That the judge should delay a whole court-room full of people by being
+late in opening <a name="Page_125" id="Page_125"></a>court should not only be a matter of apology, but is
+reprehensible to the extent of being multiplied by the number of
+people he has kept waiting. On the other hand, the usual course of
+proceeding being apparently with the object of dragging out the
+business of the court, makes the tardiness of the judge seem only an
+incident.</p>
+
+<p>Fortunately there are few attorneys who make appearances in court
+merely for the sake of adding another item on their bill to the
+client, and the real delay in reaching a case is due more to the
+confusion of administrative methods; until some more practical system
+is devised it will continue. Then witnesses and clients will not be
+loath to go to court.</p>
+
+<p>The weary work is finished, all the tiresome facts have been gathered,
+and the rehearsals have been had. The play is written, the parts are
+cast. The disappointments and delays have been forgotten, the months
+of preparation have passed. At last the bell for the performance rings
+and the case is finally to be tried.</p>
+
+<br />
+<br />
+<br />
+<br />
+<a name="VIII" id="VIII"></a><hr />
+<br />
+
+<a name="Page_127" id="Page_127"></a>
+<!-- VIII -->
+<!-- PICKING THE JURY -->
+
+<a name="Page_129" id="Page_129"></a>
+<h3>VIII<span class="totoc"><a href="#toc">ToC</a></span></h3>
+<h3>PICKING THE JURY</h3>
+<br />
+
+<p>The clerk calls the case again for trial, not this time to inquire
+whether both sides are ready but to announce that it is about to
+begin. The lawyers, their assistants on both sides and their clients
+move forward to within the rail. There is a certain amount of
+commotion as they arrange their papers, their portfolios, law books,
+hats, and coats, and take their places at the counsellors' table
+opposite the jury-box. In the dignified courts in this country this
+rather uncomfortable disposition of overcoats and hats is arranged in
+an adjacent room. The opposing parties in the battle to be enacted are
+now facing each other. Matters become at once <a name="Page_130" id="Page_130"></a>more serious and
+formal. What was once avoidable is now inevitable.</p>
+
+<p>The stage has still in a measure to be set. Twelve important actors
+are to be selected. The jury have not yet been chosen. The jury for
+the sake of comparison take the part of a Greek Chorus, a silent one
+it is true, until the final word is to be said. They nevertheless are
+as important and essential a part of the drama as the Chorus, without
+which in the background no tragedy or comedy was complete.</p>
+
+<p>No curtain divides the theater and the arrangement of the stage goes
+on before the eyes of the spectators. The choice of the jury
+constitutes an interesting part of the performance. In this
+preliminary play the lawyers having important parts, their manner,
+bearing, tones of voice, their courtesy or discourtesy, repose or
+nervousness, are watched and unconsciously noted by the jurors. As the
+jury-box gradually fills, even the slightest idiosyncracy may have
+some effect on the outcome of the case.</p>
+
+<p><a name="Page_131" id="Page_131"></a>Trial lawyers are careful of their actions even before the case is
+called to trial. It may be that among the spectators who have been
+sitting beside the lawyers in the back of the room, waiting for the
+case to be called, are those who may afterwards be called as jurors.
+Any affectation of manner or pomposity is quickly detected.</p>
+
+<p>Experienced lawyers immediately they are observed by their tribunal,
+fall into the parts they are to play during the trial. One lawyer may
+be jovial and radiate a cheerful confidence. Another has a superior,
+detached, and academic air which promises a sarcastic cross-examination.
+Yet another takes on a blustering, brow-beating, intimidating manner, a
+kind of overmastering virility. Each kind has its own particular
+advantages, according to the nature of the parts to be played. The most
+efficient is the manner of the lawyer who is direct, business-like, and
+consistent with his own personality.</p>
+
+<p>As on the modern stage, there is a return to simplicity of acting.
+Naturalness and a <a name="Page_132" id="Page_132"></a>constant regard for actuality is the only safe
+rule. Simplicity and naturalness, even if studiously affected, usually
+prove convincing. The aim is toward consistency and a non-elaborate
+manner.</p>
+
+<p>Above all the lawyer remembers that the jury admire the good fighter,
+and it is with a certain obvious subtlety that one successful advocate
+in New York lets his assistant carry his coat, books, and papers, but
+he himself always carries his hat&mdash;a derby, by the way, for a high hat
+would be over important. The great man knows that the jurors are aware
+of the importance of the occasion and that their eyes will follow his
+every movement. As he walks up to the counsel table and deposits his
+derby it may well become a gage of battle.</p>
+
+<p>The clerk at the side of the judge's desk begins turning a large
+hollow wooden wheel; within it are cards on each of which is written
+the name of a juror who has been served by the sheriff to attend on
+the panel for the trial term of the court. The number <a name="Page_133" id="Page_133"></a>summoned
+naturally is larger than the twelve needed for any one case. Often
+those who have to attend at a term of court sit about with nothing to
+do until they are actually drawn on a case, although they receive
+their fees for attendance. There is the story of the ignorant workman
+who was serving his first time on a panel.</p>
+
+<p>"Why," he said, "I was sitting around all day worryin' about my lost
+working day. If I'd known I was getting two dollars for doing nothing
+I might have been enjoying myself."</p>
+
+<p>The clerk puts his hand into the wooden wheel after the names have
+been well mixed and draws out one card after another, calling the
+names aloud until twelve jurors have been called to the box.</p>
+
+<p>To the entirely new spectator there is a certain mystification about
+this drawing of the jury from the wooden drum with the handle for
+turning. To the initiated it may seem rather humorous, like the
+shuffling of the cards of justice, the drawing from a hat, <a name="Page_134" id="Page_134"></a>or the
+turning of a roulette wheel. It is, however, significant of one of the
+great principles of Anglo-Saxon law, and that is a trial by a court of
+average men selected from among the ordinary citizens and drawn on the
+particular case by chance.</p>
+
+<p>As each juror's name is called he comes forward and his appearance is
+not lost by counsel. He takes his seat in the box, the juror being
+first called is known as Juror No. 1, and by this chance, if he remain
+in the box, he ordinarily becomes the foreman of the jury. In cases of
+special juries, as of the Grand Jury, the foreman is chosen by
+selection. The successive jurors are respectively numbered according
+to their seats beginning from right to left facing them. Here it may
+be noted that some lawyers in addressing questions to the individual
+jurors are careful to remember to call them by name, realizing that no
+one likes to be known by a number. Instead of referring to him as
+Juror No. 7 or No. 9, he addresses him as Mr. Sullivan or Mr.
+Schmittberger.</p>
+
+<p><a name="Page_135" id="Page_135"></a>The twelve men being in the box the counsellors begin to examine them
+as to their qualifications. On a small board bound lengthwise by
+rubber bands, or stuck in grooves are the cards drawn from the wheel
+and arranged according to the number of the seats, and containing the
+names, addresses, and occupations of the gentlemen seated in the box.
+There are two means of removing a juryman. One is by challenge for
+cause, <i>i.e.</i>, that he is shown to be unfit or prejudiced, and the
+other is what is known as a peremptory challenge which is practically
+the same as saying one side or the other does not like the man's
+looks. There are connotations about the word challenge which are
+essentially dramatic. It implies a battle, a duel, a tournament.</p>
+
+<p>It is difficult to ascertain exactly what principles govern the
+successful examination and selection of a jury. In Massachusetts and
+in certain important cases in New York, the whole panel of jurors
+summoned for the term of court have been investigated by <a name="Page_136" id="Page_136"></a>detectives
+in order that the lawyer might have information about who was to be
+rejected or accepted as a juror to decide the case. The propriety of
+doing this may be questioned and the ordinary case could not bear such
+an expense.</p>
+
+<p>Nevertheless there is a possibly sound reason for obtaining such
+information. Given a man's condition in life, his habits, his
+occupation, his church, his associations, his politics, and given on
+the other hand a certain state of facts, it is nearly ascertainable
+how he is going to decide those facts. If a man has always been a rent
+payer and has probably had continued trouble with his landlord about
+repairs and a feeling of resentment at the regular recurrence of rent
+day, is it not natural that he is going to be somewhat prejudiced
+against a landlord in a dispute between landlord and tenant? or on the
+other hand can a man who is one of the unfortunate owners of real
+estate, and who having paid taxes, interest, insurance, repairs for
+removal of tenement house violations, and with <a name="Page_137" id="Page_137"></a>frequent vacancies,
+really be absolutely just? If a juryman is a Jew, a Catholic, or a
+Baptist, there will probably be an innate sympathy for his
+co-religionist. The law does not recognize this unless the juryman is
+honest enough to confess a prejudice. The soundness of the Anglo-Saxon
+jury system is based on the theory that there is not one juryman but
+that there are twelve and that among twelve there will be an average
+between the landlord and the rent payer, between the Baptist and the
+Catholic.</p>
+
+<p>The counsel ordinarily selects the jury with observation and common
+sense as his sole guide. The customary question asked jurymen,
+whether, given such and such a state of facts, "Do you think you could
+render a fair and impartial verdict?" is manifestly absurd to the
+juryman. Every man believes himself to be perfectly honest and just.
+It takes a strong character to say, "I couldn't be fair." As a matter
+of fact such a man ought to be kept on the jury rather than let go. As
+a juryman once said <a name="Page_138" id="Page_138"></a>to a lawyer after the case: "Why did you excuse
+me when I said I knew the other lawyer? You wasted your challenge; he
+wouldn't have let me stay. I knew him too well."</p>
+
+<p>The extent to which the examination of the fitness of jurors may go is
+in the discretion of the court. The two extremes are represented by
+the methods in the English courts where the judge exercises close
+supervision over every question in the selection of the jury in what
+would be considered in America an arbitrary and unjustifiable manner,
+and the extreme liberality at criminal trials in this country. The
+difference in time is often between that of a few minutes and a few
+weeks.</p>
+
+<p>Naturally the challenge for cause may or may not be allowed by the
+judge&mdash;the form being, "Your Honor, I ask you to excuse Mr.
+Smith,"&mdash;because the lawyers are more careful in attempting them; for
+if they are not allowed the juror challenged may be small-minded
+enough to retain a grudge against the <a name="Page_139" id="Page_139"></a>counsel. The sure challenges
+are the peremptory ones without any cause stated or reason given. The
+number of peremptory challenges for each side is usually six. As soon
+as a juror is challenged he steps out of the box and the clerk draws a
+new name from the wheel.</p>
+
+<p>It is very much as if a player were dealt a hand of twelve cards, and
+under the rules of the game each side can discard and draw six times
+from the pack six single cards to improve his holding. The hand,
+however, is not only his but his opponent's, who may likewise discard
+and draw six cards when the first player is satisfied. When the second
+player is through the first may again discard any of the new cards the
+second has substituted, provided, of course, that six drawings have
+not been exhausted. This game of chance is always played with an eye
+to creating a favorable impression on the jury and may be politely
+finessed to the extreme.</p>
+
+<p>"Mr. Merriweather, do you know the defendant in this case, Mr. Jacobs,
+or his <a name="Page_140" id="Page_140"></a>attorney, Mr. Jenkins, or his assistant, Mr.&mdash;er&mdash;the young
+gentleman on his left?" is the usual form, delivered with the utmost
+urbanity. It means very little, but perhaps helps the lawyer to
+identify an antagonistic juryman and to obtain their answers, which
+are almost uniformly in the negative. It is obviously desirable that
+the juryman, as a judge, should not be a friend of the opposite side.
+From the manner of the man in the box, as he answers, may possibly be
+inferred his general disposition, and all further questions have this
+purpose in view. So the attorney for the plaintiff proceeds throughout
+the twelve before him, and he may say at any time, "Your Honor, I
+excuse juror number so and so."</p>
+
+<p>Usually he examines the whole twelve before "excusing" any of them,
+and when doing so many lawyers turn from the box to the judge as they
+say, "I will excuse numbers four, five, and eleven." Frequently those
+remaining do not realize why their brethren have been dismissed. A
+slight <a name="Page_141" id="Page_141"></a>bewilderment may pass across the faces of all, as a man here
+and there, under the beckoning finger of the clerk, rises to give up
+his seat.</p>
+
+<p>Opinion differs as to the extent to which challenges should be
+exercised. Some trial lawyers are chary in using them, being anxious
+to appear frank, trusting and willing to accept the judgment of any
+decent citizen. Others are meticulously insistent and exhaust all
+their challenges. The first attitude is the one of saying:</p>
+
+<p>"I have such a fine case, so honest and just, that it is impossible
+that any fair-minded man should decade against me. Therefore, I shall
+not insist on these minor points of interest or prejudice. You are all
+open-minded. I will leave it to anyone." The second attitude was
+explained by one lawyer who always put his hand to his chin, looked
+deeply and inquiringly at the jury, and said in an important voice:</p>
+
+<p>"I challenge jurors numbers 6, 8, 9, and 11, or, 4, 5, and 12." When
+privately asked on <a name="Page_142" id="Page_142"></a>what theory he proceeded in his earnest selection
+which seemed to imply so wonderful an insight, confessed to no theory
+at all except the plainly human one that he believed in using up all
+his challenges simply because it made the other jurors, who remained
+in the box, feel better and more selected. But the main purpose of
+selection is to secure a fair and intelligent jury.</p>
+
+<p>Not infrequently one side or the other really wishes to get rid of the
+best men and willing to take the risk that this will not be apparent.
+In a real estate case, counsel for the plaintiff not having a strong
+case succeeded in eliminating every man who had ever owned or who had
+ever had the slightest experience in houses or property. It was a bold
+confession that no one who understood the case would decide for him.
+In railway accident cases, the plaintiff, who asks damages against the
+company, will often excuse so far as he can, every juror who appears
+well-to-do or a man of property.</p>
+
+<p>A prominent New York lawyer, when a <a name="Page_143" id="Page_143"></a>young man, had defended a case
+brought against a corporation. The plaintiff and his attorneys were
+Jews, and the jury-box when first filled was seven-twelfths Hebraic.
+Counsel for the plaintiff immediately excused the five Gentiles and
+when the corporation's lawyer stood up, not a man in the jury-box was
+of his own race. He accepted them. The trial went on, and it appeared
+that the plaintiff's claim was very weak indeed. At last counsel for
+the defendant had to sum up and he concluded in this way:</p>
+
+<p>"Gentlemen of the Jury: The plaintiff hopes to win this case not on
+the law, nor on his evidence, nor on any consideration of justice. He
+hopes to succeed because of the simple fact that he is a Jew, his
+lawyer is a Jew, and every one of you men are Jews." With an
+expression of faith in the sense of justice inherent in the Jewish
+race and of confidence in the verdict, the attorney for the defendant
+sat down. The jury decided in his favor.</p>
+
+<p>Such boldness, when successful, is often <a name="Page_144" id="Page_144"></a>rewarded, but it is of
+course inherently dangerous.</p>
+
+<p>Skilful counsel will succeed in ingratiating themselves from the very
+beginning, but they will endeavor to do so only with the jury as a
+whole. Nothing is more unfortunate than to bestow attention upon a
+particular juryman: that is to flirt with a juror. If he has not yet
+been sworn in with the rest and the opponent sees it, he will
+certainly get rid of him. If he remained, he would very probably be
+regarded with suspicion by his chosen associates. Should the counsel
+think that one man in the box is favorably disposed toward him, he
+wisely leaves him alone and hoping that the other side will not notice
+it, devotes himself the more earnestly to the others.</p>
+
+<p>The jury is at last selected. The challenges have been exhausted. Both
+lawyers look as though they were pleased. The judge is informed that
+the jury is satisfactory, which is, of course, an euphemistic term. No
+jury is ever entirely satisfactory to both sides, <a name="Page_145" id="Page_145"></a>but it is a polite
+way of saying it is the best they can get under the circumstances. The
+judge stops trying to balance his check book and looks up at the jury.
+The attendant motions them to their feet. They hold up their hands.
+The judge also rises.</p>
+
+<p>"Gentlemen," he says, "Do you each and all of you solemnly swear to
+well and truly try the case of John Smith against Thomas Gregory and a
+just verdict render according to the evidence? So help you God." They
+do not answer, but they sit down.</p>
+
+<br />
+<br />
+<br />
+<br />
+<a name="IX" id="IX"></a><hr />
+<br />
+
+<a name="Page_147" id="Page_147"></a>
+<!-- IX -->
+<!-- OPENING THE CASE -->
+
+<a name="Page_149" id="Page_149"></a>
+
+<h3>IX<span class="totoc"><a href="#toc">ToC</a></span></h3>
+<h3>OPENING THE CASE</h3>
+<br />
+
+<p>The jury is chosen, sworn, and sitting in the jury-box. The judge
+begins unfolding the papers of the case so that he may read the
+pleadings. The actual trial of issues is about to begin. The court
+attendant has taken the jurymen's hats and coats, another attendant
+has shown spectators to their seats and politely as possible
+suppressed the young law clerk who does not see why he could not go up
+to the judge and ask him what became of the case of Jones against
+Allen that was on the calendar last Thursday and should have been on
+to-day, or ask if "His Honor decided that motion in the case of Meyer
+against Cohen." The doors of the court-room are closed. The
+attendants <a name="Page_150" id="Page_150"></a>go about looking for whisperers and saying, "Cease all
+conversation." The lady client is interrupted in telling her lawyer
+that she thinks the judge has a kind face, but that she does not like
+the looks of the man in uniform standing next to him, or vice versa.
+Gradually the court-room quiets and a spirit of expectancy prevails.</p>
+
+<p>But the actual taking of evidence and the hearing of testimony is not
+yet. Now comes what is known as the opening. So in the tournament, the
+armored knights entered with a blast of trumpets, their names and
+titles having been called, and it was customary for them to ride once
+or twice around the lists to let the judges see their armor, their
+weapons, their mounts, their trappings and accoutrements, or they
+might even try a tilt or two at one another. The introductory speech
+of counsel is somewhat in the nature of a parade or a preliminary
+skirmish. It may also be compared to the prologue spoken before the
+beginning of a drama. The speech with the vivid brevity, so <a name="Page_151" id="Page_151"></a>common in
+legal terminology, is called the opening.</p>
+
+<p>The object is to show to the judge and jury what the drama is about.
+The secondary object is to arouse interest. Immediately after the
+opening comes the evidence, which is usually bald, fragmentary, and
+disconnected. It might be impossible for the jury to understand the
+relation of one bit of testimony to another. Take a simple case such
+as a suit for the failure to pay a bill at a dry-goods store. One
+witness testifies to the sale, another to the packing of the goods,
+another to the delivery; a receipt is introduced in evidence. Each one
+would not tell a connected story. The opening outlines the facts and
+makes the evidence understandable. It also has the function of an
+appetizer. This may seem a trifle unnecessary. But let us take an
+illustration. A whole case may depend upon a deed. If the paper itself
+were put in and read to the jury without explanation they would be
+bored. One witness is to tell this part of the story, <a name="Page_152" id="Page_152"></a>another that,
+and the missing link of the chain may be supplied by the deed. The
+jury are not to be mystified before their interest is aroused. Are not
+the lives, property, or reputations of particular men at stake? The
+ordinary man and even more the average juryman has far too strong a
+sense of responsibility to be bored if truly he can understand what it
+is all about. The function of the opening is to tell him.</p>
+
+<p>As the counsel begins opening every juryman leans forward and watches
+him intently. They feel their responsibility as officers of justice
+and there have been few complaints of their falling asleep during the
+trial. The jurymen have come to know the names of the opposing lawyers
+and the faces of the clients, if they have been pointed out during the
+examination of the jurors, but nothing more. Are the jury to hear a
+story of bitter resentment or of passion and crime, or a calm demand
+for the payment of a debt? The opening will show.</p>
+
+<p>Did the plaintiff during years of effort <a name="Page_153" id="Page_153"></a>build up a business and take
+the defendant in as a partner only to be defrauded by him? Plaintiff's
+attorney will indicate the years of effort briefly, but impressively,
+before sketching the manner in which the defendant stole from him by
+fraud the fruits of his labor. When the plaintiff then testifies that
+in 1890 he opened a small store in Fourteenth Street, moved in 1896 to
+Twenty-third Street and thence in 1916 to an up-town street off the
+Avenue, the dates will sink into the jurors' minds and they will
+portray for themselves the twenty-six years of painstaking effort. No
+eloquence then could rival the effect of the witness's slow, bare
+recital of his progress. Yet without counsel's prologue what could be
+more dull than the naming of street numbers and dates?</p>
+
+<p>The matter of the testimony may be interesting, but unless the witness
+has a rare gift of expression and a sense of the picturesque, the way
+in which it will be given may be dull and plain. But at this point the
+little keen-faced lawyer for the other side jumps <a name="Page_154" id="Page_154"></a>up and interrupts:
+"I object, your Honor; what difference does it make where he lived in
+1890, whether on Fifth Avenue or Mulberry Bend? What we want to know
+is what he is suing for now." And the court will probably rule with
+him and keep the plaintiff down to more relevant facts.</p>
+
+<p>Some of the important answers may be yes or no. Counsel in such a case
+supplies the color and gives an appearance of life to what is actually
+alive enough, but which alone would seem dry. Even if so famous a
+character of fiction as "Becky Sharp" came into court and only looked
+her part with what intense interest would we not hang on her
+testimony, though it consisted of no more than "Yes, I did"; "I never
+saw him before." We should be fascinated by this bald statement
+because Thackeray had interested us so enormously in the lady. The air
+would be electrified by the force of her personality. Without a
+previous introduction, however, we might be so lacking in discernment
+as to find her, in appearance and voice, no more <a name="Page_155" id="Page_155"></a>unusual than the
+average witness who goes on the stand.</p>
+
+<p>Thackeray not only created Becky Sharp; he also created our interest
+in her. Similarly the lawyer may create an interest in his witnesses,
+some of whom may be personally every bit as extraordinary as any
+character in a novel. If a witness be actually commonplace, there is
+all the more need for making him vividly human; if he be so colorless
+that nothing could be made of him personally, he may acquire interest
+through the class to which he belongs, for classes have a personable
+color more deep than the almost colorless individual.</p>
+
+<p>To induce the jury to visualize the story and the characters, the
+highest literary gift may be brought into play. The lawyer is limited
+as to time and the description he may employ. He has, however, his
+voice and expression: an actor's tools. But again the rule of
+simplicity and naturalness should apply.</p>
+
+<p>The opening speech is a prologue and it <a name="Page_156" id="Page_156"></a>does not argue. Counsel will
+not be permitted to argue his case in his opening, for his opponent
+will object and the Court will often say, warningly, "Counselor, you
+are summing up." This limitation, however, is in reality an advantage,
+not merely because it applies to both sides, but for the reason that
+no lawyer with any sense of dramatic values would anticipate his
+<i>d&eacute;nouement</i>. Argument is apt to be chilling unless the decision
+sought for can be discerned, however dimly, without it. And how are
+the jury to frame their decision before the evidence has been
+presented? The jury should be interested in Miss Becky Sharp and
+prepared to understand her testimony, but, before they have heard her
+story from witnesses who know, they will not be favorably impressed by
+urgings that she was wronged or badly treated.</p>
+
+<p>There is usually leniency in regard to the length of the opening,
+because it is well recognized that few witnesses can tell a connected
+story, or tell it well. From the <a name="Page_157" id="Page_157"></a>old French story of the lawyer who
+began <i>avant le cr&eacute;ation du monde</i>, and the judge who asked him to
+pass on <i>&aacute;u deluge</i>, down to the usual modern method of nagging the
+lawyer into stating only the skeleton of the action, there are various
+degrees of eloquence, varying naturally according to the importance of
+the case.</p>
+
+<p>A wonderful thing the prologue may be in its restraint and picturesque
+vividness, and, not least, in its clarity. Confused business dealings
+may be described so that important sums, figures, and dates will be
+remembered and recognized when they appear again in the evidence.
+Counsel, for the time, occupies the center of the stage; his course is
+in his hands to make or mar. He reaches the end of his speech, bows,
+and the first witness is called.</p>
+
+<p>Before the testimony begins the judge looks at the defendant's counsel
+and asks him whether he wishes to state his defense. There is a
+different practice in this regard in different courts. Some insist
+that the <a name="Page_158" id="Page_158"></a>defendant ought to tell at once what his side is about,
+others that the defendant should wait until the plaintiff is through
+all his evidence and has rested; then at the beginning of the
+defendant's case the defendant's lawyer opens and makes his
+introduction.</p>
+
+<p>The difference between these two manners of proceeding is so essential
+that it may be explained. On the one hand the lawyer feels that he
+should not be compelled to give away what he is going to do, how he
+proposes to meet the attack, whether he will lie in ambush and snipe
+the plaintiff as he comes on or intrench behind a rampart and meet him
+with the full force of his battery of evidence. He may be planning to
+make a sudden sally after the plaintiff has shot his arrows and
+exhausted all his ammunition. The lawyer feels if he tells his plan of
+campaign he loses the advantage of generalship.</p>
+
+<p>Suppose a simple case: The plaintiff is suing on a long account for a
+bill of goods which will take a long time to prove. The defendant has
+a receipt in full showing <a name="Page_159" id="Page_159"></a>payment. On the theory that the defendant
+need not disclose his evidence in the opening, he may sit still with
+the receipt up his sleeve, let the plaintiff open and call his
+witness, the evidence may drag itself along with the usual motions and
+objections, and after the plaintiff rests the defendant opens to the
+jury.</p>
+
+<p>"Gentlemen," he says, "this is a simple case. The plaintiff claims he
+sold the goods and the defendant did not pay for them. I propose to
+show you that the plaintiff was not telling the truth. I made him
+prove to you that he sold every item in the bill because I wanted to
+show you how untruthful he is. My client, the defendant, not only paid
+for the goods but I can show the receipt in full signed by the
+plaintiff."</p>
+
+<p>To the layman this is absurd. The defendant should have shown the
+receipt in the first place and all the waste time of the trial would
+have been saved. "No," says the technical lawyer, "if I had disclosed
+my evidence before, the plaintiff would have framed his evidence to
+meet the situation." <a name="Page_160" id="Page_160"></a>The modern view is otherwise. In France, for
+instance, no paper can be offered in evidence on a trial unless it has
+been shown to the attorney for the other side beforehand and everyone
+has had a chance to examine it. Indeed, this exhibition of original
+documents is conducted in so open and honest a fashion that it is
+customary to send all the original papers to the other side without
+even taking a receipt or retaining a copy and in the whole history of
+the French bar the loss of such a paper has never been known.</p>
+
+<p>It seems more practical and sensible that the lawyers for the
+defendant should be required to state the nature and detail the facts
+of his defense. It is the difference between the old idea of trial and
+the new. The first was an imitation battle, the new idea is not that
+it is so much a struggle as an investigation of the facts. If the
+plaintiff wants to meet the receipt he can make a counter-attack or
+explanation in the rebuttal and explain how he came to sign the
+receipt in full. The judge and the jury feel the <a name="Page_161" id="Page_161"></a>necessary element of
+the trial is to arrive at the facts and that the planning and methods
+of charge and counter-charge are not so significant. The old
+conception of the trial as a battle is disappearing.</p>
+
+<p>The opening by the defendant at the beginning directly after the
+plaintiff has finished his opening and before a witness is called,
+makes the trial simpler to the minds of the jurymen who are to decide
+the facts. The pleadings are supposed to define and state the issues
+but as they are usually technical they have become not sufficiently
+pliable. The defendant by his answer denies merely the facts stated in
+the plaintiff's complaint in the paragraphs numbered six, eight, and
+ten. The defendant on his opening should be compelled to make plain to
+the minds of the jury what he intends to show. He should take the
+position of a plain business man who says, These foolish people
+imagine they have a claim against me. They have nothing of the kind.</p>
+
+<p>The plaintiff says that he understood the <a name="Page_162" id="Page_162"></a>contract to be so and so
+and that acting on that assumption both parties did certain things and
+know the defendant with evil intent and wrongfully forgetting the duty
+he owes to keep his word refuses to live up to his agreement,
+therefore, "Gentlemen, we have been compelled to come to court and
+bring this action and we shall show you gentlemen facts from which you
+must find a verdict in our favor." The defendant then arises and says:</p>
+
+<p>"Gentlemen, we are going to show a letter that contradicts all this."
+Oratory has little place in the opening of the defendant.</p>
+
+<p>The judge has been, during the two openings, attempting to keep the
+two counsels down to the facts which he thinks may be proved and from
+wandering too far afield. As quickly as they are both through he says,
+"Call your first witness," and with trepidation the witness takes the
+stand.</p>
+
+<br />
+<br />
+<br />
+<br />
+<a name="X" id="X"></a><hr />
+<br />
+
+<a name="Page_163" id="Page_163"></a>
+
+<!-- X -->
+<!-- THE CONFUSED WITNESS -->
+
+<a name="Page_165" id="Page_165"></a>
+
+<h3>X<span class="totoc"><a href="#toc">ToC</a></span></h3>
+<h3>THE CONFUSED WITNESS</h3>
+<br />
+
+<p>The whole question as to witnesses is whether they shall be allowed to
+tell what they want or what the lawyers want. As they are both in the
+court-room they must abide by the rules of the court. That is the
+trouble: the rules are against the witness.</p>
+
+<p>When the witness goes on the stand for the first time the court
+attendant asks her to raise her right hand. She does so and tries to
+sit down in the witness chair so that she may feel a little more at
+ease. "Stand up," says the officer. The judge looks at her
+inquisitorially over his spectacles. She tries to smile and regains
+her feet. "Raise your hand," says the judge. The delightful and
+sanitary custom of kissing the Bible <a name="Page_166" id="Page_166"></a>has been done away with. Even
+the habit of resting the hand on the Book is disappearing and in many
+courts a Bible is hard to find.</p>
+
+<p>The lady, in the confusion of appearing on a stage for the first time
+and standing on a raised platform before an audience, holds up her
+left hand. The court attendant jumps at her. The judge has seen the
+same performance many times before and hardly notices the
+<i>contretemps</i>. By this time she is confused and ruffled and after
+hearing something murmured about the truth, the whole truth, and
+nothing but the truth, she sinks into the chair and begins in a very
+uncomfortable frame of mind the ordeal of giving testimony.</p>
+
+<p>What she wants to say, what she ought to say, what she was told to say
+is all gone. The jury and the judge understand and feel sympathetic
+but the rules of the court do not permit them to be polite, and to ask
+her to take a more comfortable chair, to have some tea, whether the
+children have had any <a name="Page_167" id="Page_167"></a>after-effects of the measles, or to take off
+her hat and stay a while. She knows she has to stay and that she is
+not going to enjoy it.</p>
+
+<p>She is the important witness who was riding in the car at the time it
+crashed into the grocery wagon. She is honest, of average
+intelligence, and wants to tell the truth. She is asked:</p>
+
+<p>"At the time of the accident, where were you?" She says that she was
+in the car going up-town to see her married daughter whose children
+were sick with the measles and she was in a hurry. The lawyer moves to
+strike out the latter part of the answer. The fact that she was going
+to see her daughter, that the children had the measles, and that she
+was in a hurry are not relevant and have nothing to do with the case.
+The only relevant fact is that she was in the up-town car.</p>
+
+<p>She was sitting four seats from the front and thinking the car was
+going very slowly and the children would be asleep before she <a name="Page_168" id="Page_168"></a>got
+there. It is immaterial that she was thinking about her grandchildren
+or the measles, or that she was thinking about the car going slowly.
+The real question is how fast the car was going.</p>
+
+<p>The reason for the rule of evidence is that the court always wants to
+know not what she thought, but what she actually saw. She will not be
+allowed to tell what she thought or what she told her daughter after
+the accident. The daughter can not be called to the stand to testify
+what her mother told her, when she reached her house, about what had
+happened. Newspaper accounts of the accident may not be allowed in
+evidence, nor what the policemen reported on the accident, because he
+arrived afterward. Anglo-Saxon law holds the proof down to what was
+actually perceived by the five senses. The court makes up its own mind
+from these perceptions and the facts themselves. It does not want to
+hear what someone thinks, or what the witness believes or concludes,
+but only what he perceived.</p>
+
+<p><a name="Page_169" id="Page_169"></a>There is much to be said for and against this rule on both sides. A
+broader method to the lawyer seems shockingly loose and slipshod. The
+rules of evidence to the bystander seem an inhuman farce. The first
+allows an atmosphere to be created from which the whole truth may be
+reached. Would not an ordinary person, if he wanted to find out about
+the accident, read the newspapers, find out the police reports, ask
+what a witness thought, what that witness told someone else about the
+accident afterward? Is she not now giving someone an account of the
+accident?</p>
+
+<p>Psychologists agree that no one can accurately narrate their
+perceptions and what happens before their eyes. Moreover, the tests
+performed on school and college graduates in regard to their powers of
+observation have shown the fallibility of human perception. The
+failure to perceive, plus the failure to remember, plus inadequacy of
+language, makes all testimony unsatisfactory. People of little
+education are still <a name="Page_170" id="Page_170"></a>less able to either see or explain. The only safe
+way is to obtain a composite photograph of the witness's mind and of
+the thoughts that arise from the original perception, a continuation
+of impressions.</p>
+
+<p>Judges or juries never determine cases by first deciding which witness
+is telling the truth or at least the exact truth. They take it for
+granted that both sides are lying somewhat; that no matter how well
+they mean and how hard they try, all witnesses are incapable of
+telling the exact truth. The unfortunate part of the law is that this
+is not officially recognized. There is a hypocrisy in not recognizing
+the inadequacy of human eyes and ears to grasp even simple concrete
+facts. A timidity exists that will not allow the admission of human
+imperfection.</p>
+
+<p>The proof of this is that when three witnesses go on the stand and
+describe a thing as having happened in the same way, immediately there
+is a strong doubt in the mind of the jury about the whole case.
+Suppose the question of the time a crime was <a name="Page_171" id="Page_171"></a>committed arises and the
+defense tries to prove an alibi by showing the defendant was in a
+saloon at that time. There may have been three witnesses who really
+saw him at the same time. One witness comes on the stand and says
+3:10, the next witness says he saw him at 3:10, and third says the
+same. The jury conclude that the story has been made up.</p>
+
+<p>Yet suppose the first witness says he saw him sometime after lunch,
+and the second that he remembers seeing the defendant in the saloon
+sometime that day, but he is not sure whether it was in the morning or
+the afternoon, and the third witness says that he saw him during the
+week, but that he does not remember the day, whether a Thursday or a
+Friday&mdash;it is probable that the defendant will have a much better
+chance of succeeding with his alibi.</p>
+
+<p>The lady in the car could not remember the time of the day, except
+that it was near the children's bed time. She had heard the crash and
+seen the wagon turn on to the <a name="Page_172" id="Page_172"></a>car tracks. With a great many
+objections she finally gets to the point of the crash.</p>
+
+<p>"Did you see the car hit the wagon?" "I object to that as leading,"
+says the other lawyer. "It is leading and suggestive." Technically he
+may be correct, but if the judge has common sense he overrules the
+objection.</p>
+
+<p>The proper question would be: "What happened next?" The witness,
+however, might remember the paper bag of oranges she was carrying to
+her grandchildren and instead of telling about the accident begin to
+describe how she dropped them on the floor. Leading questions are
+necessary in nearly every case. The reason that they are objectionable
+and ruled out is, that the judge and the jury ought to hear not the
+lawyer's narrative of the facts, but what the witness actually
+remembers.</p>
+
+<p>A witness on the stand appears at his worst. If any one from real life
+were suddenly thrust unprepared and unlearned in theatrical art upon a
+stage the incongruity <a name="Page_173" id="Page_173"></a>of the situation would be appalling. Yet the
+witness is thrown into new and strange surroundings. It is a portion
+of the reality of life shown vividly against a conventionalized
+background. The judge and jury in a vague manner understand this. The
+lawyer producing the witness feels this and elicits the testimony in a
+soothing manner.</p>
+
+<p>The objects of cross-examination are as follows. The first is to prove
+that the story of the witness is not true, and the other is to bring
+out something new. The opposing counsel often forgets the purpose of
+his cross-examination and by attempting to bully and frighten the
+witness, usually either by sarcasm or a doubting manner, accomplishes
+very little. Not one cross-examination out of five hundred amounts to
+anything. The judge has heard many and he has little hope of their
+being of much interest. The jury make so much allowance for the
+witness being frightened on the stand and for the fact that she is in
+the hands of a clever lawyer, that they are not much <a name="Page_174" id="Page_174"></a>impressed even
+if she contradicts herself or is proved mistaken. At best it is only a
+mistake, not a deliberate lie. The lawyer thinks he owes a moral
+obligation to his client and to himself to cross-examine. He is
+compelled to go on. There is a musty tradition of the law that a trial
+without cross-examination is not a proper trial. It is a legal fetish
+and one of the things that is done. The judge expects it, the jury
+expect it, the client expects it and the public.</p>
+
+<p>The client pays his money and he ought not to be disappointed. If it
+were omitted altogether, the judge and jury might not feel the loss so
+bitterly. Perhaps they might prefer it and the question for the lawyer
+is whether it is better to satisfy the client or the jury. In this
+quandary the lawyer may forget that the main point is to win the
+battle. When the case is lost the client does not care at all how
+brilliantly the lawyer looked, acted, or fought.</p>
+
+<p>If the lawyer reasons he will say:</p>
+
+<p>"If the object of my cross-examination <a name="Page_175" id="Page_175"></a>is to show that the witness is
+not telling the truth, have I much chance of getting him to confess
+the fact?" The witness knows something about perjury. He is afraid and
+he has heard about those pitfalls of cross-examination. Does the
+lawyer remember his own hopeful son and how only yesterday he could
+not get him to admit stealing the cake even with the prospect of
+immediately impending punishment? Only that little rim of chocolate
+about the ears was the proof. Even the deaf little child, who is not
+as intelligent as the witness, will not admit that he was untruthful.
+But still he goes on cross-examining.</p>
+
+<p>If the witness is finally shown a paper which he or she signed when
+the investigator of the railroad came to see her, and in which she
+said she was sitting on the sixth seat, there is not such a great deal
+to be proud of.</p>
+
+<p>"Ha, Ha," thinks the lawyer "at last," "didn't you just now say you
+were sitting on the fourth seat?" "I don't remember," says the
+witness. "What," thunders the <a name="Page_176" id="Page_176"></a>lawyer, "you don't remember; then your
+memory is poor. I will read you what you said on your direct
+examination," and he does. "Now which was it, the sixth or the fourth
+seat."</p>
+
+<p>The other object of cross-examination is to elicit new facts. This is
+a dangerous risk for the lawyer, and unless he is sure of his ground,
+he had better not take it. He will do better to let his own side tell
+the facts than to bring them out through an unwilling witness who is
+on his guard and thinking the opposing lawyer is trying to trap him.</p>
+
+<p>The mistake that most lawyers make in cross-examination is to ask the
+witness to repeat what he said in his direct testimony. Telling the
+same story over again merely accents the facts in the minds of the
+jury. The lawyer asks:</p>
+
+<p>"You say that you saw the driver whip up his horses when the car was a
+block away." The lawyer may doubt the truth of the statement but the
+mere repetition of the words affects the memory of the jury. <a name="Page_177" id="Page_177"></a>Unless
+he has a distinct object in going over the testimony, either to show
+the direct contrary strongly, or the fact that the witness has learned
+the testimony by rote and that the repetition is in exactly the same
+words, the lawyer would do better to desist.</p>
+
+<p>Strange as it may seem the rules of evidence are actually based upon
+common sense. The ordinary experience of mankind gave rise to the
+rules of evidence, but the difficulty is that the further experience
+of civilization is giving rise to new rules which are not consistent
+with the old. Nevertheless the present rules when reasonably applied
+are fairly good. The question really is whether there should be any at
+all.</p>
+
+<p>Accepting the fact that there should be rules they are based on two
+principles; the first is that only something which has to do with a
+case can be proved and second that it can be proved only in a safe and
+reasonable way. It may seem impossible to the lawyer and equally to
+the laymen to state the rules of evidence in simple language. But the
+<a name="Page_178" id="Page_178"></a>principles of common sense will govern in the end, as they have in the
+past, notwithstanding they have been hidden under a mass of verbiage,
+ancient forms, and obsolete customs.</p>
+
+<p>The theory is that justice wants the highest and best it can obtain,
+the court insists on the two principal rules; that evidence must be
+the very best that can be obtained and must be brought out in the
+safest, clearest, and most authentic manner.</p>
+
+<p>Take, for instance, the rule that conclusions of the witness are not
+allowed. If the court considered as evidence that the testimony "the
+defendant brought the goods and they were delivered," and the
+defendant came on the stand and said, "I did not buy the goods and
+they were not delivered," the court would have before it merely two
+contrary beliefs or conclusions. It would be a case of "Katy did, Katy
+didn't."</p>
+
+<p>The rule of evidence is plain that makes it necessary for the
+plaintiff to show where he saw the defendant, what was done, and what
+was said or written by the two parties. <a name="Page_179" id="Page_179"></a>If the question is as to the
+delivery, it is not enough for the plaintiff to say "I delivered the
+goods." The court must have proof of the history of the goods. The
+driver of the wagon must be called who can testify where he drove,
+what package he carried, and what was done with it when he reached the
+house.</p>
+
+<p>The whole subject of expert witnesses is not so complicated after all.
+They are merely persons of exceptional experience who are allowed to
+testify as to something of which they know nothing. They may have
+never seen nor heard the facts in dispute but because they have had so
+much experience on similar facts they are allowed to say what they
+think of facts produced by eye witnesses before the court. As
+conclusions and opinions may be various, there is at times a great
+variety in experts, and because the very name of experts implies
+technicality, there is a feeling in the minds of the jury and the
+public, that the testimony of experts will befog by a mass of
+non-understandable terms.</p>
+
+<p><a name="Page_180" id="Page_180"></a>The doctor who testified in a case in which the plaintiff suffered a
+sore back and had seventy-five dollars damages from the jury is an
+example. He said:</p>
+
+<p>"The plaintiff was suffering from traumatic sacro-illiac disease,
+traumatic sinovitis of the knee and wrist and from traumatic myositis
+of the muscles of the back."</p>
+
+<p>In reality the testimony of expert witnesses is very good evidence. If
+it is given in plain and understandable English and the jury think the
+expert a clean-cut, sensible man, it is just what the jury want to
+learn. An expert's method of reasoning about the facts in evidence is
+the same as that employed by the jury in the jury-room. It is merely
+an opinion; for on the opinion of the jury, based on the evidence
+depends their verdict.</p>
+
+<p>While the witnesses are being examined, called to the stand, sworn,
+being excused, and being cross-examined, there occur numberless
+incidents of the trial known as the objections, exceptions, and
+motions.</p>
+
+<br />
+<br />
+<br />
+<br />
+<a name="XI" id="XI"></a><hr />
+<br />
+
+<a name="Page_181" id="Page_181"></a>
+
+<!-- XI -->
+<!-- THOSE TECHNICAL OBJECTIONS -->
+
+<a name="Page_183" id="Page_183"></a>
+
+<h3>XI<span class="totoc"><a href="#toc">ToC</a></span></h3>
+<h3>THOSE TECHNICAL OBJECTIONS</h3>
+<br />
+
+<p>These are the stage tricks and little incidents that give variety to
+the performance. No drama would be complete without a few diversions.
+So far as the drama itself goes, they are of no great importance
+except to give pungency and interest to the action.</p>
+
+<p>The lawyer asks an apparently good question. "I object," says the
+other lawyer, "on the ground that it is incompetent, irrelevant, and
+immaterial." The judge has to rule. He may not exactly have heard the
+question. The stenographer reads it again. The other lawyer leans
+forward in a frenzy of fear lest the question be ruled out. He begins
+to argue.</p>
+
+<p><a name="Page_184" id="Page_184"></a>"The question is perfectly proper; the witness ought to be permitted
+to answer it." "No," says the other lawyer, "it is improper in form,
+calls for a conclusion, and should not be allowed." The judge looks
+puzzled. "Read that again," he says. The question is, "What kind of a
+cow was it you saw in the plaintiff's garden?" "I still object," says
+the lawyer. "The witness has not been shown to be an expert. If my
+learned friend is going to attempt to qualify him as an expert, I
+desire an opportunity to cross-examine him concerning his experience
+in cows." "Not at all," answers the lawyer. "The question is entirely
+proper and I stand on my legal rights." The judge hesitates; if he
+does not rule correctly the lawyer will take an exception and the
+Appellate Court may not like it. So he says, turning to the witness,
+"You may answer, but I will reserve the question and decide it later
+on a motion to strike out." "I except," says the lawyer. The jury look
+relieved. The witness straightens up, the opposing lawyer <a name="Page_185" id="Page_185"></a>sits back
+in disgusted contempt at such a loose method of procedure. "Well,"
+says the witness, "it was a red cow."</p>
+
+<p>This may go on for some time.</p>
+
+<p>"I move to strike the answer out," says the lawyer; and the argument
+begins all over again.</p>
+
+<p>Throughout the trial the client and the jury are waiting for these
+objections and exceptions. The nature of an exception is a notice
+served on the judge that his rulings are wrong. The theory is that if
+he wants to change them he had better do so before the case goes to
+appeal. It is a covert threat to the judge. There is a principle in
+some courts that no ruling that is not excepted to can be considered
+on appeal; consequently a lawyer is careful to preserve his rights by
+exceptions.</p>
+
+<p>A young lawyer once had this principle so firmly fixed in his mind
+that when he went to court he began taking exceptions to everything,
+even rulings in his favor. He would make an objection; the judge
+would <a name="Page_186" id="Page_186"></a>sustain it. "I except," said the lawyer. He would make a
+motion; the judge would grant it. "I except," said the young lawyer.
+The other side would make an objection; the judge would rule against
+them and in favor of the lawyer, "I except," said the lawyer. Finally
+the situation grew so strained that the judge called the young man to
+the bench and spoke to him confidentially. His explanation was: "This
+is my first case and the head of my firm told me to be sure and take
+exceptions to all rulings."</p>
+
+<p>Some lawyers are so in the habit of excepting, it sounds as though
+they were hiccoughing. "Overruled"; "I except"; "Allowed"; "I except";
+"Denied"; "I except"; "Granted"; "I except." It becomes a custom as
+constant as the refrain in a comic opera.</p>
+
+<p>Theoretically it may have a sound basis under the law, but so little
+practical value has it that it seems ludicrous. The lawyers and the
+judges consider it a matter of course. <a name="Page_187" id="Page_187"></a>If the judge after all the
+argument finally decides to let the testimony as to the red cow stand,
+he will not be inclined to change his mind because the lawyer
+interjects that threatening exception. The sound of the word is
+spiteful and seems to express the resentment of the lawyer at the
+ruling of the judge.</p>
+
+<p>No example could be found in the thousand volumes of law reports where
+the judge changes his mind on account of an exception. The object in
+this particular direction is vain.</p>
+
+<p>With regard to appeal; the Appellate Court that attempts to decide a
+case on the exceptions taken at the trial would have a difficult time.
+They would have to disentangle the mesh of evidence and find out
+whether that important piece of testimony on page 204 was excepted to
+or not, then whether there was a proper ruling; refer to the
+stenographer's minutes and look at the important exception on page 59
+and again on page 106. Unless the question decided was <a name="Page_188" id="Page_188"></a>excepted to,
+the Appellate Court can not decide it. It is hard to imagine that any
+court could be so rigorous and narrow-minded that they could hang
+justice on such little pegs of exceptions, which the stenographer in
+the hurry of the moment may have forgotten to insert.</p>
+
+<p>In the criminal courts there are no exceptions on the part of the
+people, because there are no appeals on behalf of the State. The
+defendant continues to repeat "I respectfully except." "I must insist
+on my exception." Think of a man being jailed for seventeen years
+because his case was not reversed on account of the failure to except.
+The court could not believe Justice to be so blind-folded that she can
+not understand the evidence as a whole.</p>
+
+<p>Exceptions are the tacks and pin pricks of a trial. They are of so
+little value in the main structure of the drama that if they are
+forgotten by either side, the court should provide them with a bushel
+basketful which could be distributed by the handful wherever <a name="Page_189" id="Page_189"></a>the
+lawyers thought they would be useful or pleasant.</p>
+
+<p>Objections are of three main kinds: irrelevant, immaterial, and
+incompetent. They are like the magic words that open or unlock the
+doors of evidence and let it in or keep it out. They have three
+distinct meanings which lawyers understand. A thing may be immaterial,
+but not incompetent, or incompetent and not immaterial, or irrelevant
+and not immaterial, or irrelevant and not incompetent, or incompetent
+and not irrelevant, or one or both or not at all. Any student of law
+can fully explain the difference, but the distinction is immaterial
+and irrelevant, and if the reader is in doubt let him ask any lawyer
+friend to tell him in plain words, without insulting his common sense,
+what the distinction between immaterial and irrelevant is.</p>
+
+<p>The confusion of one young man found expression finally in the terms
+"irreverent, impertinent, and&mdash;and&mdash;and&mdash;no&mdash;matter."</p>
+
+<p>The lawyer, when he objects, usually <a name="Page_190" id="Page_190"></a>attempts a few other suggestions
+which may be considered by the judge, such as "the question is leading
+and suggestive; grossly improper; calling for a conclusion; objected
+to as argumentative or because of its ambiguity."</p>
+
+<p>Whatever the trouble with objections may be, it is neither the fault
+of the lawyer, the judge, nor the witness. When certain evidence is
+not allowed by law it is proper that it be objected to. Unreasonable
+and often comical as objections sound, the basis of their existence in
+law is that the court wants the best possible proof.</p>
+
+<p>Instead of a copy of a letter the judge and the jury ought to see the
+original. Instead of the copy of a will the paper actually signed by
+the testator is wanted. Suppose a question arises as to the payment of
+a bill. The defendant says that he went into the store and paid it.
+The best proof is to be given by someone who saw him pay it. A witness
+to whom he came afterward and said that he had been down to the store
+<a name="Page_191" id="Page_191"></a>and had paid the bill is not so accurate a witness as the man who was
+in the store and saw the money paid over. It is to keep out this
+poorer proof that objections are made.</p>
+
+<p>If the objection is good, the judge says "Objection sustained," or if
+he thinks the evidence the best he allows it and says "Objection
+overruled," then the witness may proceed and answer the question.
+Unless the lawyer objecting states the ground or reasons for his
+objection, the objection is not supposed to be valid for the other
+side ought to be apprised of the reason so that he may supply the
+proper proof, that is why the objection is named as irrelevant,
+incompetent, and immaterial, so as to cover all possible grounds.</p>
+
+<p>The reasons given for the objections: incompetent, irrelevant, and
+immaterial might, so far as the average man is concerned, read
+"incontepent," "irrevelant," and "immature." The words when repeated
+together seem like that old legal term "incorporeal hereditaments."
+They are imposing and add <a name="Page_192" id="Page_192"></a>tone to the trial. The solemnity of
+repetition is always a valuable asset. The real value of the word
+irrelevant is shown by repeating irrelevant, "irrevelant," irrelevant,
+"irrevelant." In a short time one sounds as valuable as the other.</p>
+
+<p>When he makes the objection the lawyer rises and when he is through
+sits down. This gives the appearance of constantly jumping up but is
+only a question of etiquette, like taking off the hat or making a bow.
+Some people like the formality but there is a question how much is due
+to the dignity of a court and how much form and manners must be
+sacrificed to efficiency of business. The judge who said that he did
+not hear the constant objections of the lawyer because he made his
+objections sitting down was not so much an adherent of good form as a
+protestor against the absurdity of professional objections.</p>
+
+<p>The mooted question is the same and goes back to the one on evidence.
+Shall everything be allowed in and a photographic <a name="Page_193" id="Page_193"></a>picture of numerous
+details be given to the court? If that is the correct idea, a general
+knowledge and atmosphere may be derived from all the surrounding
+circumstances and then there would be no objections. If the strict
+interpretation of the law be followed limiting evidence to only what
+is seen and heard, objections are proper and sensible.</p>
+
+<p>The modern tendency is to do away with all restrictions of the past.
+There has been too great severity in interpreting the law of proof and
+the pendulum is bound to swing far in the opposite direction. A medium
+may not easily be reached, and the only test is the common sense of
+the average.</p>
+
+<p>On the question of time and whether the abolishing objections and
+letting in all evidence would not be shorter, there is much to be
+said. It might take less time for the witness to recount the death-bed
+scene of his wife's sister's brother-in-law's aunt, than for the court
+to hear and pass upon all the objections and arguments as to the
+admission of the testimony on the red cow.</p>
+
+<p><a name="Page_194" id="Page_194"></a>As the jury listen to the objections and exceptions they become more
+and more impatient. The restraining influence of the surroundings, the
+fact that they are impaneled in a box and that they are a part of, the
+drama keeps them silent. They cannot break out in revolt at the
+badgering of the witness. They can say nothing about the absurd
+objections that are interrupting the proceedings or the spiteful
+little exceptions that are being thrown in, but can only quietly store
+up an increasing mistrust of the whole method. When the lawyer objects
+so strenuously the jury thinks he must have something to conceal. Yet
+when the objections are made they have a certain effect which is not
+at first realized. A question is asked that is to the juryman
+perfectly sensible, but which is absolutely inadmissable under the
+rules of evidence. For example, the lawyer asks, "What did you tell
+your wife about the accident when you got home?" Any reasonable man
+knows that what he tells his wife is very important and bears on the
+question <a name="Page_195" id="Page_195"></a>of his veracity. The other lawyer very properly objects. The
+jury thinks there must be something in it. The lawyer asks again,
+"Didn't you tell your wife the horses were going very fast?" The other
+lawyer is on his feet. "I object," he says, "and I must ask your Honor
+to instruct the counsel not to ask questions that are manifestly
+improper." The Court rules in favor of the objecting lawyer. He
+admonishes the lawyer and instructs the jury to disregard the
+question. Yet what is the effect? The jury believes unless the lawyer
+thought the answer would be most unfavorable to his side he would not
+have objected to it so strenuously. The impression remains on the
+minds of the jury that there was a good deal to that question of what
+he told his wife.</p>
+
+<p>It is for this reason that when the lawyer keeps on asking
+objectionable questions, the judge will sometimes declare a mistrial
+or allow one side to withdraw a juror, which is only a polite way of
+saying that the present jury in the particular case can not be fair.</p>
+
+<p><a name="Page_196" id="Page_196"></a>Here arises one of the prettiest dilemmas of the law on the trial of a
+case. Suppose the case has been going on all day or for several days.
+The plaintiff is very anxious to have it finished. He has been at
+great expense and trouble to get his witness and the lawyers' time is
+valued at so much per trial day. On the other hand the defendant at
+the worst can only have a judgment against him, which may as well
+happen at another time. He is willing to have the case declared a
+mistrial and start anew; he knows it will take a long time for the
+trial to come up again. It has been a dull grilling proceeding, but he
+does not care so long as there is a chance of postponing the judgment
+against him. It is on the whole better and easier to put it off.</p>
+
+<p>Now if the judge declares a mistrial, on the motion of the plaintiff,
+that is his own look out. He believes that he can not have a fair
+trial, that he can not proceed. But suppose the defendant by his
+lawyer makes the trial unfair. His lawyer keeps asking <a name="Page_197" id="Page_197"></a>those improper
+questions which imply so much to the minds of the jury. The judge may
+speak severely to the lawyer and caution him not to keep on putting
+suggestive questions. That is all that he can do. It would be plainly
+unfair to order the withdrawal of a juror. The trial according to the
+opinion of the judge may be unfair. The plaintiff's counsel is afraid
+to ask for a mistrial, first on account of the trouble and expense to
+his client, and second, if it be denied, the jury will believe he
+thinks them unfair and does not want them to try the case. The judge
+is in a curious position with regard to objectionable questions and
+testimony, he ought not to penalize the plaintiff by punishing the
+defendant. The loosening of the laws of evidence might do away with
+quandaries such as these.</p>
+
+<br />
+<br />
+<br />
+<br />
+<a name="XII" id="XII"></a><hr />
+<br />
+
+<a name="Page_199" id="Page_199"></a>
+<!-- XII -->
+<!-- THE MOVEMENTS IN COURT -->
+
+<a name="Page_201" id="Page_201"></a>
+
+<h3>XII<span class="totoc"><a href="#toc">ToC</a></span></h3>
+<h3>THE MOVEMENTS IN COURT</h3>
+<br />
+
+<p>Motions imply movement and action especially in a drama, but in a
+court motions are the reverse and occupy the place of dramatic pauses
+which delay the real movement of the play. They are of great interest
+to the lawyers, of some interest to the judge, because he has at once
+to pass upon them, of but little interest to the client, who does not
+understand them, and of no interest whatsoever to the jury, except
+when they result in the disposal of a trial.</p>
+
+<p>Before the case begins the defendant makes a motion. When the
+plaintiff's lawyer has finished his opening, the other side makes a
+motion to dismiss the case. When he ends his evidence, the other
+lawyer moves to dismiss. When both sides are through, <a name="Page_202" id="Page_202"></a>each moves.
+When the jury bring in the verdict either side may move, or both when
+neither is satisfied. All through the trial there are quantities of
+little motions. Motions to strike out, motions to instruct, motions to
+make the witness answer a question, motions to make the other lawyer
+behave. Except for pointing the finger or raising the voice in
+talking, they are not movements, they are only verbal, the action
+comes in the play of emotions of the parties in court. Motions are
+merely saying what either side wants; the formal asking for something.</p>
+
+<p>The first important motion is on the pleadings themselves or when the
+plaintiff has opened. If the judge does not believe that the plaintiff
+has stated a case in law, he dismisses it on a motion of the defendant
+and the judgment is "without prejudice." The trouble is that a
+judgment of this kind does not finally dispose of the dispute. The
+plaintiff may bring the action over again.</p>
+
+<p>He may appeal from the decision or judgment and the appellate court
+may rule that <a name="Page_203" id="Page_203"></a>the trial judge was wrong and then after an interval
+the case goes to a new trial just the same. By this time the plaintiff
+or his lawyer may believe he has no case and desists, but the course
+depends upon whether the parties have not died, grown tired, gone into
+the hands of a receiver, or moved to Borneo. The jury know little as
+to this state of affairs and are not interested in the preliminary
+motions. The clients do not understand but think the lawyers are good
+talkers.</p>
+
+<p>The lawyers are interested in the point of law and believe so strongly
+in their case that if an adverse ruling comes they are shocked and
+surprised. The judge knows that although he grant the motion to
+dismiss, he will probably allow an amendment. He is not greatly
+concerned unless he foresees a possibility of settling the dispute
+definitely and going on to the next case. He is anxious to try the
+present action and get down to the meat of the matter but really if
+they are going to insist on all technicalities he feels a little
+impatient.</p>
+
+<p><a name="Page_204" id="Page_204"></a>He knows that even if the defendant is right and the pleadings are
+defective because the stenographer forgot to insert a date, it can
+still be put in. Recent legislation has found it necessary to say that
+the courts should allow amendments of pleadings where "Substantial
+Justice" will be accomplished thereby. It is a commentary on the
+system of the courts that the people through its legislatures should
+find it necessary to pass a law that judges should amend paper
+pleadings in furtherance of justice. If justice and right depend upon
+pieces of paper to such an extent, the dry formalism of the courts is
+a matter of regret.</p>
+
+<p>The next important motion is when the plaintiff has put in his
+evidence and has rested. "The plaintiff rests," the lawyer says.</p>
+
+<p>The judge and the jury say to themselves, "Well it is half over."</p>
+
+<p>The defendant's lawyer rises and says, "I move to dismiss on the
+ground that the plaintiff has not made out a cause of action. He has
+not shown that the cow was owned <a name="Page_205" id="Page_205"></a>by the defendant, or he has not
+shown that the driver of the plaintiff was free from contributory
+negligence, or he has not made out any kind of case at all."</p>
+
+<p>This is an anxious moment for the young attorney. Did he forget
+something? What was there that he did not remember? Will the case be
+dismissed because he forgot to tie a shoe lace or put in a pin? If he
+is more experienced in court work he will not be so worried. The law
+is that the plaintiff must be given every chance at this stage of the
+proceeding. Only when both sides are through does the law begin to
+weigh the evidence. At the close of the plaintiff's case everything is
+in his favor. Any particle of testimony is sufficient on a particular
+point. The theory of the law is that both sides must be heard. If the
+motion to dismiss is made on the ground that something has been left
+out, the court will usually give an opportunity to prove to whom the
+red cow belonged. This motion like many other relics of a by-gone age,
+is a matter of custom <a name="Page_206" id="Page_206"></a>and tradition. It is usually made on the theory
+that the judge may think there is no case and that the plaintiff can
+not make out a case. If he so decides, the case is finished, the jury
+is discharged, and the client has his feelings hurt by being thrown
+out of court.</p>
+
+<p>From a decision of this kind there is also a right of appeal which may
+result in a reversal. Then the new jury is impanelled, the witnesses
+are recalled, and the proceedings are gone over once more. If the
+decision or judgment is affirmed, the case does not usually come up
+again; the higher court has said the plaintiff has no case on the
+evidence, and unless new evidence is produced he can never recover. In
+certain accident cases the appellate courts have stated they would not
+give their reasons for dismissing the complaint after the evidence is
+all in because, they say, if they did so they were afraid the
+plaintiff would supply the missing links by manufactured evidence on
+the next trial and not quite honestly. This again is a commentary on
+procedure.</p>
+
+<p><a name="Page_207" id="Page_207"></a>Just at this point is where the law of the case comes in so
+insistently. Before the case comes to court the lawyer is supposed to
+know whether his client has a right of action. Every state of facts or
+a breach of those rights does not give rise to an action that can be
+maintained in a court of law. If you ask a man to dinner and he
+accepts, but does not come, you can not recover your damages for
+providing the dinner; or if you fall down your own well, you can not
+sue the man who built it. The lawyer is supposed to have carefully
+considered what elements of fact make an action. If the facts
+themselves do not give him a right of recovery his case is dismissed;
+or if he has a cause of action but has not proven the facts, it is
+also dismissed.</p>
+
+<p>But as was said above, if the train of facts or those in the pleading
+is imperfect, the modern spirit is to allow them to be made perfect.
+The only theory of law that is contrary to this spirit is what is
+known as the theory that every man is entitled to his <a name="Page_208" id="Page_208"></a>day in court
+and the day being had it is unfair to bring the other side in again on
+account of some defect or forgetfulness on the part of the other.</p>
+
+<p>The reconciliation is that there should be no surprises on a trial,
+the modern tendency is to bring the case away from the idea of an
+ordeal by battle. The little advantages that are gained by sorties and
+surprises and which are usually taken advantage of by motion, are
+after all not of great moment.</p>
+
+<p>An anomalous situation shows the absurdity of these motions, for when
+the plaintiff rests, unless the defendant makes a motion to dismiss
+the plaintiff's case, he is supposed to admit that the plaintiff has
+made a good <i>prima facie</i> case, and if he does not move he is forever
+after, on appeal or otherwise, prevented from claiming that the
+plaintiff did not make out a good case. The result is that at the
+close of the plaintiff's case the motion is usually made as a matter
+of form to preserve the defendant's right.</p>
+
+<p><a name="Page_209" id="Page_209"></a>Usually this motion is denied if there is a possibility of making a
+case, but suppose the judge either through ignorance or to be obliging
+should say, "Well, the plaintiff has made out a good case, but if you
+ask it, the blood be upon your own shoulders, and I will dismiss the
+case." The defendant does not want it dismissed but he has asked for
+it and he has got what he asked for. The result is an anomalous
+situation. The case will undoubtedly be reversed and he will be
+mulcted in costs for being compelled to ask, because of the formalism
+of the court procedure, for what he did not want.</p>
+
+<p>At the end of the defendant's case, when both sides have rested, the
+defendant again moves to dismiss. Here again it is a formal motion,
+which he may not altogether mean, but which the lawyer often makes as
+a matter of form. If the judge really believes there is not enough
+evidence to let the case go to the jury, he ought to say so without
+the necessity of a motion. Suppose there is not, he dismisses the case
+"on the merits" <a name="Page_210" id="Page_210"></a>and the trial is over. But suppose there is and the
+judge does not know his business and the fine point of law is not
+entirely clear to his Honor, and he makes a mistake and the case is
+dismissed. The result is that although he has granted the motion of
+the defendant to dismiss and given the defendant what he wanted, he
+has in reality penalized him, for the appellate court will reverse his
+decision and the defendant have to pay all costs and stand the expense
+of a new trial. The judge is in a quandary, which he may get out of in
+two ways. One is to let the weak case of the plaintiff go to the jury
+with the hope that they will see what a poor showing the plaintiff has
+made and find a verdict for the defendant, in which event he will be
+safe. But if the jury should make a mistake and find for the
+plaintiff, then the judge has the intention of setting that verdict
+aside, nullifying all the work of the jury, the witnesses, the
+clients, and the lawyers, and ordering a new trial. This is rather a
+weak-minded proceeding and shows <a name="Page_211" id="Page_211"></a>the necessity of having a man in the
+referee's chair who knows how to decide.</p>
+
+<p>The second alternative for the judge is to reserve decision on the
+motion and to let the jury go into the jury-room and worry about the
+verdict for an hour or two, while the judge has the hidden intention
+of perhaps deciding that they need not spend any time at all about the
+matter.</p>
+
+<p>The principle on which the judge passes on this motion to dismiss is,
+that after all the case is in and all proof had, that on the proof and
+evidence there is not enough on the part of the plaintiff from which
+any reasonable man could ever find a verdict for him. The motion
+differs from the one at the close of the plaintiff's case in that the
+latter is based on there being no proof at all, while the one after
+the case is entirely in is based on the theory that there is no
+possibility of a verdict.</p>
+
+<p>This sounds again like a metaphysical discussion, but is illustrative
+of the futility of formal motions, so that actually the <a name="Page_212" id="Page_212"></a>decision
+depends upon the good plain common sense of the judge. The tendency is
+that if the case has gone to the length of a full trial and there is
+any question of fact involved, that the jury should determine the
+question of fact and exercise their functions. It must be a poor weak
+case of the plaintiff and evidently unsound, in which the judge or the
+appellate court interferes.</p>
+
+<p>Throughout the trial the little motions that occur bear the same
+relation to the main issue as do the objections and exceptions.</p>
+
+<p>"I tried to stop the car," says the motorman.</p>
+
+<p>Up jumps the other lawyer. "I move to strike out as a conclusion."</p>
+
+<p>The witnesses have testified to slightly different facts than what
+were stated in the pleadings. "I move to amend the pleadings to
+conform to the proof," says the lawyer.</p>
+
+<p>"I move for an adjournment on the ground of surprise," says the other.</p>
+
+<p>Of course the statement of the conductor <a name="Page_213" id="Page_213"></a>is a conclusion of fact. But
+if the other side wants to find out how he tried to stop the car, let
+him ask what was done. "Did he turn on the brake handle? Did he switch
+on the emergency?" A man does not have to be an expert to say that the
+car was going fast; he may be examined as to what he considers to be
+fast. Nor does he have to be an expert to say that eggs are rotten,
+that butter is rancid, that there has been a war in Europe, that a man
+has a broken leg or looks sick or acts queerly, that the fish is stale
+or the cow was red.</p>
+
+<p>The motion to strike out does not affect the jury, the testimony still
+remains on the jurors' minds. The verbal memory stays. Neither does
+the motion to amend the pleadings affect the jury. What have they got
+to do with it? If the papers are amended it is not important from
+their standpoint. Should the plaintiff have written a letter that he
+was going to sue for something, to the jury that seems better than any
+pleading.</p>
+
+<p>These motions are insignificant and <a name="Page_214" id="Page_214"></a>examples of a formalism which,
+however valuable it may be as defining the methods of the legal
+battle, are not consistent with the modern spirit of investigation
+into facts. It is rather significant that the laws creating Public
+Service Commissions and Legislative Investigation Committees in some
+States go to the length of stating that there shall not be any rules
+of evidence such as are employed in the courts of law.</p>
+
+<p>The other motions, such as to direct a verdict, which is usually the
+same as a motion to dismiss, and the motions after a verdict has been
+rendered, are also formal statements of a request for the disposition
+of the case.</p>
+
+<p>They may be all very good and useful in their way, but are merely the
+incidents and measures by which the truth of the matter is reached.
+The client looks puzzled at the argument and the decision, the jurors
+have a not very clear conception of what is going on, the lawyers have
+a meretricious feeling that perhaps they are cheapening themselves <a name="Page_215" id="Page_215"></a>a
+little by making so many motions, yet they, nevertheless, have a legal
+right to do so and they must take advantage of every legal right for
+the protection of their clients.</p>
+
+<p>After all the witnesses have been called, the plaintiff and the
+defendant have proved their sides, the plaintiff has contradicted the
+new evidence of the defendant, everybody has been examined, the
+interruptions of the objections and motions, exceptions have been had,
+the judge asks if both sides are through and the presentation of the
+case is ended.</p>
+
+<p>The course of justice has been on a rough and rather narrow road. The
+popular revolt at the method of arriving at the truth is, in fact, at
+the narrowness of the way. The presentation of a case and the means of
+reaching the truth ought to be on a well-defined and orderly system.
+It would seem natural that the crooked and ill-paved streets of an old
+town should give place to the open, smooth, and broad avenues of the
+modern spirit.</p>
+
+<br />
+<br />
+<br />
+<br />
+<a name="XIII" id="XIII"></a><hr />
+<br />
+
+<a name="Page_217" id="Page_217"></a>
+<!-- XIII -->
+<!-- ELOCUTION -->
+
+<a name="Page_219" id="Page_219"></a>
+
+<h3>XIII<span class="totoc"><a href="#toc">ToC</a></span></h3>
+<h3>ELOCUTION</h3>
+<br />
+
+<p>At last when both sides rest and the judge has passed on the latest
+motions, the intense action of the drama begins. For this the clients
+have been waiting, the lawyers have been training. It is the
+opportunity for them to display their attainments, to show their
+clients what brilliant lawyers they have retained; to let the judge
+know how well they have understood the case; to move and sway the jury
+to their side; to unravel the mysteries and by the power of oratory to
+bring justice where she belongs. When his lawyer is talking, the
+client watches him with admiration, but while the opposing lawyer
+speaks the client can hardly conceal his contempt. He feels that his
+case is secure and he does not understand how there can be anything to
+be <a name="Page_220" id="Page_220"></a>said on the other side. Yet he is fearful there may be some court
+trick which he does not understand and the case may be lost.</p>
+
+<p>"Your Honor and gentlemen of the jury," begins the defendant's lawyer.
+Including the judge in his address, although it is a matter of
+courtesy for the eloquence of the summing up, is meant solely for the
+jury. The judge is only supposed to listen and restrain the attorneys
+if they go too far afield in their attempts to influence the jury by
+their efforts. The judge is the time keeper or referee and holds the
+lawyers to the point.</p>
+
+<p>The object of the attack is the jury. As the burden of proving a case
+is on the plaintiff, he is supposed to have the first and the last
+word; therefore, the defendant begins to sum up. After he is through,
+it is the turn of the plaintiff. The tactical position is in favor of
+the plaintiff. The advantage, as in all verbal disputes, is reputedly
+with the man who has the last word. In all <a name="Page_221" id="Page_221"></a>debates the proponent has
+the right of opening and closing. The plaintiff began the case with
+his opening, and after it is over he is permitted to close.</p>
+
+<p>"Gentlemen," says the judge, "how long will you take in your address?"
+Both sides agree upon a certain time, which usually proves too short,
+but which is acquiesced in with alacrity because each side thinks
+their case is so plain and convincing that it will not be difficult to
+explain. The lawyer girds up his loins, the court-room quiets, the
+struggle of conflicting evidence is over, the clients and witnesses
+retire from the foreground, the other counsel sits down and the lawyer
+steps close to the jury-box.</p>
+
+<p>"The jury is yours," says the judge, as though he were abandoning the
+jury. Indeed the summing up is an attack, a vivid, keen, masterly
+struggle in which wit and brain is pitted against wit and brain: where
+facts and passions are to be marshalled in the most intelligent and
+plausible way, where imagination and oratory are to be employed <a name="Page_222" id="Page_222"></a>in
+their finest capacities. It may be bold, manly, energetic, or soft and
+persuasive; it may appeal to sympathy or threaten with a battery of
+accumulated facts. Forensic oratory is the highest type of art, the
+most powerful of human gifts. The only trouble with most court oratory
+is that it is only fit for the market-place. The lawyer begins with
+the firm impression that he must win the jury. His voice is bland and
+soothing, he feels that he must be soft and persuasive. He rubs his
+hands and remembering the old adage, that laugh and the world laughs
+with you, attempts a little joke. There is nothing so good as to get a
+smile for his side. Perhaps the joke does not go very well and the
+laugh does not come; the point has missed. He will try what flattery
+can do.</p>
+
+<p>"Men of your intelligence can readily see," he says.</p>
+
+<p>"When I was examining you," he explains in a subtle way. "I knew at
+once how unprejudiced and fair-minded you were."</p>
+
+<p><a name="Page_223" id="Page_223"></a>"You gentlemen are practical men and can understand." Yet somehow the
+jury are impervious. They sit back in their chairs and stare.</p>
+
+<p>Then the lawyer begins to forget the object of ingratiating himself.
+Hypnotized by the memory of his client's wrongs, he works himself into
+a frenzy of feeling. He swings his arms, pounds with his fist, raises
+his voice, and thunders his denunciation. His speech takes on a
+threatening tone. He shouts and bawls; the jury must be waked up. They
+sit stolid and unmoved. He tries to catch their eye, there is no gleam
+of interest. Perhaps he has rather a hopeless feeling that the art of
+oratory is not what it is reputed to be. The jury look particularly
+unresponsive. Even that one little juror, with the clever, smart face,
+who is leaning forward with such an expression of enjoyment may not be
+altogether trustworthy. The lawyer has seen that kind before and the
+one juror who seemed the most interested in the last case he argued
+<a name="Page_224" id="Page_224"></a>was the very one who held out against him in the jury-room as he found
+afterwards. It seems a difficult matter to stir the jury and the men
+in the box are not at all a warm or enthusiastic audience.</p>
+
+<p>The jury are not particularly keen about the oratory of the lawyer,
+they look upon him as paid to do his part. It is the portion of the
+trial they can understand; they have not clearly comprehended what
+went before. When the objections were being made and there were the
+cross-examination and badgering of witnesses, they could not separate
+in their minds the functions of the lawyer and the personality of the
+lawyer. It seemed as though he were doing a good many unfair things
+and not acting quite up to the mark, but now the atmosphere has
+cleared. They can realize that he is only the paid talker for his
+client, that he is only making all this noise because that is his
+business. To the jury he is the pleader employed as an actor. The
+position is simple; if any one would pay them for acting and
+gesticulating at so <a name="Page_225" id="Page_225"></a>much per day or per hour, they would be very glad
+to earn the money.</p>
+
+<p>The client watches the lawyer with affectionate admiration. True, he
+did not do exactly as he was wanted during the trial. He should have
+asked those questions he suggested, but now he is doing grandly. When
+the lawyer is through the client feels splendidly. He sees but one
+side of the case and believes in it absolutely. With such a good
+talker the jury cannot fail of being convinced.</p>
+
+<p>When the lawyer sits down the client shakes him by the hand and tells
+him how well he has done. He might have been willing to settle the
+case for a thousand dollars before, but now he wouldn't pay a cent,
+not one cent. Later, should the jury find against him, even to the
+amount of the thousand dollars which he was willing to pay, he feels
+terribly disappointed. There must have been something very much amiss
+in the jury-room.</p>
+
+<p>The judge while the summing up is going <a name="Page_226" id="Page_226"></a>on, is not very attentive.
+His part of the case is over. While the proof was being given he was
+alert. True, the charge is coming afterwards, but he knows fairly well
+what he is going to say, and it is going to be formal. It is the
+function of the judge to control the address of counsel, but the
+counsel are sometimes very hard to control.</p>
+
+<p>In the criminal trials, reference is made to the emotions of the
+defendant's family; the devoted, anxious wife, the poor little
+children who may bear the stigma of their father's disgrace, should
+the verdict go against him. Since the domestic life of neither party
+to the trial has appeared in evidence, such things being entirely
+"irrelevant and immaterial," it does not make a great deal of
+difference whether the picture is accurate or wholly fanciful. The
+defendant may be a drunkard, a burden to his wife, and a horror to his
+children; he may have abandoned his family to their own resources; it
+is possible that he has never had any family at all. The lawyer has no
+right to refer in his summing <a name="Page_227" id="Page_227"></a>up, or otherwise, to anything that has
+not been properly submitted in evidence. He is guilty of unfair
+practice in telling the jury about the defendant's family or
+circumstances, unless this has been part of the case, which is
+improbable. He knows this well; so does his opponent and the judge.
+And should the opposing lawyer protest, the judge will say, looking
+up, "Be careful, counselor, be careful." The counselor bows
+respectfully and probably goes on in the same vein. The judge has not
+heard exactly what was said and feels that the lawyers, if they are
+not too blatant and noisy, may say what they please. There must not be
+too much talk about the wicked, money-grabbing, soulless corporation,
+not too much appeal for the down-trodden poor, nor an over indulgence
+in personalities. The lawyers must not call the other side liars and
+thieves too openly. That is, they may say they are untruthful, but
+liar is too strong. The denunciation must be a little restrained.</p>
+
+<p>The judge throws out a rather mild <a name="Page_228" id="Page_228"></a>admonition. "The counsellor must
+keep to the evidence. You may not refer to matters which are not
+before the court." The lawyer says, "Yes, your Honor." The judge
+withdraws again into a contemplation of the high cost of living and
+his diminishing bank balance. The shouting and vociferation grow
+louder. The jury are long-suffering, but they cannot object. The other
+lawyer jumps up, and after an insistent effort makes himself heard.
+"The witness did not say that; you are stating something that is not
+so. I ask to have the stenographer read the minutes." The stenographer
+begins turning over the pages of his stenographic book. The exact
+testimony of the lady in the car is hard to find. "Heavens," think the
+jury, "are we going to have the whole case over again?"</p>
+
+<p>The lawyer who is talking complains, "If my friend is going to keep on
+with his objections I shall never get through in my fifteen minutes."
+The stenographer has not been able to find the exact spot. It is
+apparently <a name="Page_229" id="Page_229"></a>not in the testimony. Then the lawyer objecting says, "I
+ask your Honor to instruct the jury to disregard the statement of
+counsel." The lawyer must have a sarcastic vein of humor. Such an
+instruction does not seem necessary. The judge says, "I will cover
+that in my charge, but I must ask the counsel to be careful," and he
+looks warningly at the clock.</p>
+
+<p>Finally the hands point to the agreed time. The judge says, "Your time
+is up, counselor." "Just one minute more," says the lawyer and then he
+goes on for three. The judge raps on his desk. The lawyer winds up his
+speech in a hurried peroration. "Therefore, gentlemen, with the utmost
+confidence in your ability as men of experience and affairs, with the
+sure belief in the justness of my defense, I leave the matter in your
+hands."</p>
+
+<p>The plaintiff's lawyer now takes the floor, the jury shift their feet
+and glance at the clock. "Gentlemen of the jury," he begins. He
+probably leaves out the judge. The <a name="Page_230" id="Page_230"></a>plaintiff now having the attack is
+more direct. It is rather significant of the change in all procedure
+that the language of all court addresses is becoming more and more
+simple. The old days when the lawyers delivered homilies of Latin have
+disappeared. No longer does the lawyer refer to <i>nunc pro tunc</i>, or
+make facetious jokes in a language the layman and probably the court
+does not understand. If a lawyer makes too many Latin quotations, the
+court thinks him affected. He must be simple, direct, and to the point
+at issue.</p>
+
+<p>His art in presenting his case consists in drawing the picture of the
+facts so vividly that they will remain in the jurors' minds. Employing
+his imagination in forming the concept, he gets it across the rail to
+the jury by the fine gift of selecting words and incidents. No one, it
+is said, is ever convinced by argument, but any one can realize a
+visualized picture of words.</p>
+
+<p>The counsel starts to storm and abuse his opponents and his opponents'
+client, and <a name="Page_231" id="Page_231"></a>in his wrath also forgetting that persuasion is not
+accomplished by denunciation. The majority of the jury are rather
+easy-going, kindly men, who do not care to hear others made too vile.
+Just as satire is more effective than direct abuse the tolerant
+juryman prefers to have the other party laughed at than called names.</p>
+
+<p>The clients become worked up over their wrongs and excited by their
+lawyers' oratory. When the case is over they are extremely surprised
+to see the men who have been shaking their fists and ready to spring
+at one another's throats, quietly lock arms and go out to lunch
+together. It is all in the day's work and they must fortify themselves
+for the next trial. The shock is something like that when, after a
+melodrama, the heroine having jumped over the bridge and died in a
+whirlpool, comes out quietly and, in spite of her suffering, bows
+smilingly before the curtain.</p>
+
+<p>The judge and the jury know that the lawyers are coming to life again
+and are <a name="Page_232" id="Page_232"></a>not really trying to kill each other. This is one of the
+pleasantest aspects of the life in court. There is a good fellowship
+between the two lawyers who have been so keenly struggling. They even
+have a kindly feeling toward the judge when he is off the bench.</p>
+
+<p>The court attendant calls the attention of the lawyer to the time, who
+with a sidelong look at the clock, also "Confidently leaves the case
+in your hands, gentlemen."</p>
+
+<p>The two lawyers sit down and the judge puts on his spectacles, gathers
+up the notes he has been making of the main points of the trial, and
+turning to the jury begins his charge.</p>
+
+<br />
+<br />
+<br />
+<br />
+<a name="XIV" id="XIV"></a><hr />
+<br />
+
+<a name="Page_233" id="Page_233"></a>
+<!-- XIV -->
+<!-- THE HEAVY CHARGE -->
+
+<a name="Page_235" id="Page_235"></a>
+
+<h3>XIV<span class="totoc"><a href="#toc">ToC</a></span></h3>
+<h3>THE HEAVY CHARGE</h3>
+<br />
+
+<p>No, madam, the charge of the judge does not mean his bill for expenses
+or his salary for trying the case. A charge implies something grave,
+heavy, and aggressive. It is what the judge tells the jury about the
+case. It is never light or humorous, but ponderous and hard to
+understand. The court-room doors are locked, no one must come in or go
+out during the charge.</p>
+
+<p>The judge looks solemnly at the jury, the jury straighten up from the
+desponding attitude they gradually have assumed during the address of
+counsel.</p>
+
+<p>The end is near and they begin to have hope. They appear interested
+and a gleam of awakened intelligence is in their eyes. Now at least
+they are going to hear what <a name="Page_236" id="Page_236"></a>they wanted to know about the case. The
+judge will probably tell them something new and clear up the points
+they did not understand. It may be even he will explain why he made
+those strange rulings during the trial and what that mysterious
+conference was when he called the lawyers to his desk and they talked
+together for so long.</p>
+
+<p>The judge begins: "Gentlemen of the jury, the plaintiff in this case
+seeks to recover," and then he goes on to tell them what the plaintiff
+wants, which is just what the plaintiff's lawyer has been telling
+them. The judge must have been asleep while he was talking for he is
+saying the same thing over again, only in a little different language.
+After that the defendant's case is set forth. There again that is what
+the defendant's lawyer was saying. It does not appear reasonable that
+they are compelled to hear six times what the case is about. There
+were the two openings of counsel at the beginning, the two summing up
+at the end, and now the two explanations of the judge. <a name="Page_237" id="Page_237"></a>There ought to
+be an allowance made for the jury possessing a little intelligence.</p>
+
+<p>The judge then tells again what the witnesses have said, in not quite
+so many words, but covering the main points. There is no use in that.
+The jurymen think they ought to remember fairly well what was said.
+The judge admits it after he is through by saying himself: "Gentlemen,
+you are to be governed by your own recollection of the testimony
+rather than by what is said by either side in summing up or by the
+Court." If he means that he should have kept still and let them have
+their own recollection.</p>
+
+<p>Then he goes on: "If you believe any witness has wilfully testified
+falsely as to a material fact, you may disregard that witness's whole
+testimony." Of course, is that not the reason for their being there?
+Why, the judge in the beginning made them swear to decide the case
+"according to the evidence." The jury is going to do exactly that.
+They are going to decide which side is lying and which side is telling
+the truth. <a name="Page_238" id="Page_238"></a>They are not quite so stupid as not to know that. There
+seems no need in insulting them by telling them that they need not
+believe a witness unless they want to. Why are they there?</p>
+
+<p>The judge tells them that the function of the jury is to decide the
+facts and for him to decide the law. That is fortunate, for they could
+not understand the law, even if they wanted to; it is a silly business
+and it is not common sense. What the jury feels is that the judge's
+charge is leaving it to them without any trouble about the law. But
+wait a moment, the judge is going on to tell them about the law as
+applied to the particular facts before them.</p>
+
+<p>The important principle of law they are being told is what is known as
+the preponderance of evidence and the burden of proof. The judge goes
+on at great length about the weight of evidence. The weight of
+evidence, he says, is the preponderance of proof and the preponderance
+of evidence is the weight of evidence, and the man who has <a name="Page_239" id="Page_239"></a>the burden
+of proof must have the weight of evidence and the weight of evidence
+being the preponderance of evidence is also upon the man who has the
+burden of proof. And the preponderance of evidence does not mean proof
+beyond a reasonable doubt, as in criminal actions, but that the proof
+must be heavier on one side than the other and the one who has the
+burden of proof must sustain the preponderance of evidence. That is
+the law; the judge has said it. What it means the jury give up. The
+lawyers nod their heads wisely. The judge has stated the law
+correctly.</p>
+
+<p>The judge may go on a little further and tell them more about the
+burden of proof and the preponderance of evidence. He may say that the
+weight of evidence does not mean the number of witnesses. The mere
+fact that one side has six and the other side only two does not mean
+that the jury are to believe the side who has six. The jury know that
+when probably they are all exaggerating somewhat they are going to
+<a name="Page_240" id="Page_240"></a>decide the way the thing happened. Then the judge tells them, having
+seen the witnesses, "That they may consider their bearing on the stand
+and their manner of giving testimony." Surely they are going to do
+that. Is not the best way of knowing whether a man is telling the
+truth to look at him and watch him while he is talking? There is
+little sense in the judge advising them to consider his bearing on the
+stand.</p>
+
+<p>Another thing the judge says is that they are not to be governed by
+sympathy or prejudice in arriving at their verdict. This is a caution
+that the judge thinks necessary. He forgets that when they are in the
+jury-room, with locked doors and no one to disturb them, they are
+going to do exactly as they are inclined. Prejudice and sympathy are
+for unintelligent people who do not know what they are about. Both
+lawyers have been telling the jury what intelligent men they were and
+it seems unnecessary for the judge to say that they are not to be
+governed by prejudice and <a name="Page_241" id="Page_241"></a>sympathy. Suppose the defendant is a rich
+corporation, they are not going to find against it because it is rich.
+The company can stand the loss of a few dollars out of its pocket
+better than the poor man anyway. Not that they are going to decide for
+that reason.</p>
+
+<p>As these accumulating evidences of the judge's misunderstanding of
+their attitude of mind pile up, the jury sink back into their seats.
+After all, the charge of the judge is not more understandable than
+most of the other parts of the trial. The saving point about it is
+that the end is drawing near and they can soon get away and have a
+smoke in the jury-room, and afterwards go home.</p>
+
+<p>The judge, while he is charging, understands a little of what has been
+going on in the jury's mind. He has seen the gleam of interest which
+was in the jury's eyes at the beginning gradually die out. He notices
+how they fall into resigned attitudes. He has a glimmering that the
+good old legal aphorisms which he has been enunciating <a name="Page_242" id="Page_242"></a>with such care
+about the burden of proof, the weight of evidence, the credibility of
+witnesses and the caution about sympathy and prejudice, are not very
+convincing to the jury. But the conventions require that he must go
+on.</p>
+
+<p>"Gentlemen," he says, "I must instruct you to eliminate from your
+minds any discussion of counsel upon questions of law or rulings of
+the court upon the rejections of testimony, or decisions upon motions
+to dismiss or direct. They involve matters of law with which you are
+not at present concerned. In arriving at your verdict you are to
+consider only the evidence."</p>
+
+<p>Perhaps the judge feels a trifle foolish and therefore he becomes more
+emphatic and solemn. He carefully and in a painstaking manner defines
+the law of negligence. He tells them the law of negligence involves
+two cardinal principles. "The first is that the plaintiff must
+establish that the defendant by its employees was guilty of
+negligence, that he failed to act as a prudent <a name="Page_243" id="Page_243"></a>and careful man;
+second, that the plaintiff must have shown himself free from
+contributory negligence; that unless the jury find both of these, that
+the plaintiff cannot recover." Then perhaps he interjects a little
+more about the balance of proof as to these particulars. "If the jury
+find the plaintiff was negligent and the defendant was negligent, they
+must find a verdict for the defendant. If they find the plaintiff was
+not negligent and the defendant was negligent, then they may find a
+verdict for the plaintiff, provided they find, etc., etc. Otherwise
+should they find the plaintiff was not negligent and the accident
+happened not through the negligence of the defendant, then again must
+they find for the defendant, or again&mdash;" but the jury by this time is
+exhausted. The alternatives do not interest them. The judge may know
+what he is talking about, but they do not. The interesting question is
+how much are they going to give the plaintiff.</p>
+
+<p>The judge finally becomes worn out, a <a name="Page_244" id="Page_244"></a>kind of self-hypnosis sets in.
+He remembers so many phrases and legal maxims that he might enunciate,
+his brain becomes confused as to selection. There are volumes of
+charges to juries which he has more or less learned by heart. There
+are so many glittering and vague generalities about the law of
+negligence, the law of contracts, the law of evidence, the burden of
+proof, or the weight of testimony, that he could go on indefinitely.
+The jury have ceased to understand and the judge realizing the
+hopelessness of this situation, winds up by saying&mdash;"So, gentlemen,
+bearing in mind what I have just told you and the evidence in the
+case, you will retire and consider your verdict."</p>
+
+<p>The jury begin to gather their hats and coats, when up jumps one of
+the lawyers and says: "One moment, please. I ask your Honor to charge
+that if the jury find the cow that was in the plaintiff's garden was a
+white cow and not a red cow, then their verdict must be for the
+defendant." "I so charge," says the judge. "I except," says <a name="Page_245" id="Page_245"></a>the other
+lawyer, "and I ask your Honor to charge the jury that if they believe
+the cow was the property of the defendant, their verdict must be for
+the plaintiff." "I refuse to charge in those words," says the judge,
+"there may not have been any cow or he may not have eaten the
+cabbages." Or the lawyer for the railway may ask the judge, "That if
+the jury find that the driver was forty feet away from the tracks and
+the car was a hundred feet away from the corner of Seventy-eighth
+Street when he first saw the car, and the car was going at a rapid
+rate and the conductor pulled the bell and the driver was sitting on
+the right-hand side of the wagon and might have seen the car had the
+car been one hundred feet below the corner, then in that event I ask
+your Honor to instruct the jury that the plaintiff was guilty of
+contributory negligence and cannot recover."</p>
+
+<p>The question is undoubtedly a poser. The judge is evidently worried;
+if he make a wrong guess and says "yes" or "no" at this <a name="Page_246" id="Page_246"></a>juncture, the
+appellate court may say: "Error, judgment reversed, new trial
+ordered." What happens is that the judge takes a chance. The lawyer
+says, "I refer you to 169 New York Court of Appeals Reports, page 492;
+in the case of Jones <i>vs.</i> Metropolitan, the court there said that the
+refusal to so charge was reversible error." The judge looks wise and
+finally says, "yes." There is a little playing of politics in this; he
+has possibly been thinking how the jury are going to decide and
+realizing that what he charges won't make any difference, he plays
+safe by charging what the losing side wants.</p>
+
+<p>These requests to charge may go back and forth indefinitely with
+rulings and exceptions. Either lawyer may except to a portion of the
+judge's charge, thus serving notice upon him that unless he hurry up
+and change it he may be reversed on appeal. That is the reason why the
+charge of the judge has not a great effect. He has to be too careful.</p>
+
+<p>In New York State the judge can not say <a name="Page_247" id="Page_247"></a>what he thinks about the
+case. In other words, the charge must be indefinite. In England and
+the Federal courts in this country, the judge may legally express his
+opinion as to how the case should be decided, but that is as far as he
+can go. The distinction is a relic of the old days of the jury system
+when the judges would imprison the jury until they found as was
+wanted. Now the judge may only express a preference and the jury may
+do as they please. In some courts the democratic idea of the
+independence of the juryman goes to the extent of not allowing the
+judge to say anything specific.</p>
+
+<p>The result is that the jury are confused. They are usually of so
+independent a nature that the judge's charge would not greatly
+influence them. The clients sit by utterly confounded; they hear the
+judge wisely say, "I think perhaps yes, but on the whole it may be
+no," and when he is through, not understanding as much as the jury,
+they think the judge's charge is very fair. Having said little of
+import it probably is.</p>
+
+<p><a name="Page_248" id="Page_248"></a>The continental method is so entirely different, that it is shocking.
+In the courts in France the judge practically says for his charge,
+"You've heard the evidence, now go on out and do what's right." This
+again illustrates the difference between the old and the new ideas of
+courts. The old is a battle ground where the issues are defined, the
+courts are kept within narrow limits and the rules of the ordeal
+observed strictly, and the modern, merely an investigation of a
+dispute with the glamor of a contest left out. It is an investigation
+of facts, which however bitter may be the personal animosity, should
+never lose sight of the main idea of arriving at the plain truth, in a
+common sense way.</p>
+
+<p>At last the lawyers are silent, the trial is over, the judge patiently
+asks are there any more requests to charge, and there being no more,
+he turns to the jury and says, "Gentlemen, you will retire and
+consider your verdict." Slowly they file out, conducted by the court
+attendant, to the jury-room.</p>
+
+<br />
+<br />
+<br />
+<br />
+<a name="XV" id="XV"></a><hr />
+<br />
+
+<a name="Page_249" id="Page_249"></a>
+
+<!-- XV -->
+<!-- THE TRUE VERDICT -->
+
+<a name="Page_251" id="Page_251"></a>
+
+<h3>XV<span class="totoc"><a href="#toc">ToC</a></span></h3>
+<h3>THE TRUE VERDICT</h3>
+<br />
+
+<p>The truth is said. The battle is over and the mighty have prevailed.
+The decision is made. Justice divine and compelling is about to
+pronounce its sentence. The truth seeks to burst forth and the jurymen
+have knocked at the door of the room in which they have been locked
+for so many hours. The court attendant, who has been standing like a
+sentinel outside to prevent the approach of eavesdroppers and
+listeners, turns the key and sticks his head into the room, withdraws,
+locks the door again, and sends off for the judge.</p>
+
+<p>The judge has been in his chambers taking a rest and enjoying a cigar.
+The judge always, when he is off the bench, is by courtesy said to be
+in chambers&mdash;other <a name="Page_252" id="Page_252"></a>people might call it a room with an office desk,
+but the dignity surrounding a judge invests even the bare office room
+where he sits. It is named in the plural, even if it is only one
+ordinary room. He throws away his cigar. The lawyers or their
+assistants who have been lounging about the empty court-room,
+gossiping with one another and trying to evade the importunities of
+their clients, who insist upon speculating with them on the probable
+result, have been summoned to the bar. The judge takes his seat on the
+bench. The jury, marshalled by the court officer, file in. They are
+lined up in the jury-box.</p>
+
+<p>"Gentlemen," says the judge, "have you agreed upon a verdict?" "We
+have," answers the foreman of the jury.</p>
+
+<p>When the jury have first been locked in the jury-room they have
+probably immediately relaxed after the long strain of the trial. They
+were entitled to a smoke and to feel at their ease. Besides they know
+that if they finished their deliberations too early, <a name="Page_253" id="Page_253"></a>they will be
+called on another case. It was nearly two when the judge finished his
+charge, so they have plenty of time to waste; for if they came back to
+the court-room before three they would be impaneled in another trial.</p>
+
+<p>They have taken a straw vote to find out how the sentiment stood, not
+with the hope of arriving at a decision but by way of trying out the
+matter. The result stands nine for the plaintiff and three for the
+defendant. They light their cigars, for they came well prepared for
+the tedious hours in the jury-room.</p>
+
+<p>The nine men look at the other three in disgust, the three look at the
+nine with contempt and then they begin to argue. The deliberations of
+the jury are always secret, their method of procedure is uncertain,
+and only the result of their deliberations appears in court.
+Nevertheless, it is only reasonable to speculate on how they have
+arrived at their verdict. Their verdict is the climax of the drama,
+the goal of the <a name="Page_254" id="Page_254"></a>race, the award of victory. One side must win and the
+other be defeated. The psychology of the jury in reaching the verdict
+is the great mystery and the most intense interest of the trial. The
+judge does not know, the lawyers are unable to understand. There is a
+certain respect for the inviolate privacy of a jury-room. If trial
+lawyers could understand the method by which they arrive at their
+final announcement they would be far better equipped than by a study
+of the law for many years.</p>
+
+<p>It is a question whether or not their actions are different from those
+of ordinary men outside a court-room. They have left the restraining
+influence of an uncomfortable and conspicuous position and have
+entered again into the attitude of mind of the everyday world. The
+control of the judge has disappeared. The lawyers are only memories.
+They have become only plain business men with something definite to
+do. They do not know how to do it and the discussion begins in a
+desultory way.</p>
+
+<p><a name="Page_255" id="Page_255"></a>"Well, we ought to give that boy something."</p>
+
+<p>"I don't like the looks of that last witness."</p>
+
+<p>"That lawyer for the defendant was too smart."</p>
+
+<p>"But do you think the driver tried to cut him off?"</p>
+
+<p>"He couldn't have been in bed six weeks."</p>
+
+<p>"No man would stay in bed that long with a sore knee."</p>
+
+<p>"Oh, well, he only meant he was about the house."</p>
+
+<p>"That doctor was a great one. He loved to get off those terms; he must
+be just graduated from the hospital."</p>
+
+<p>"Did you hear the lawyer say in a case he tried in Brooklyn he had
+seventeen of those experts?"</p>
+
+<p>"Well, let's take another vote and see if we can't get together."</p>
+
+<p>"I can't stay here all day. I've got to close something important at
+four o'clock."</p>
+
+<p><a name="Page_256" id="Page_256"></a>"You'll stay here if you have to; we want to get this settled right."</p>
+
+<p>Another vote is taken. The result is the same and the two sides
+gradually assume opposing positions. Each one takes a leader and
+spokesman; the discussion is probably between those two and an
+occasional interjection by the others. By this time the argument has
+grown tense and after half an hour the original arguments of counsel,
+the evidence, the instructions of the judge have become merged in the
+minds of the jury with what has been talked of in the jury room. The
+recollection of each juror includes the recollection of the discussion
+that they are having. The mental picture is now a combination of what
+each witness thought, each lawyer conceived it, how the judge
+described it, what they imagined it during the trial, and added to the
+mental concept is the recent present struggle between twelve points of
+view.</p>
+
+<p>They do not remember what it was the judge told them about their
+verdict. <a name="Page_257" id="Page_257"></a>Suppose they send out and ask him. No, they do not want to
+appear like fools. It is plain. Their verdict must be for the
+plaintiff or the defendant. But in that contract case where the other
+side wanted something back from the plaintiff, how are they going to
+find a verdict for both? They can't find a verdict both ways. They had
+better send out and ask the judge. No. Well then they will send for
+the pleadings, they will show.</p>
+
+<p>"What," says one juryman, "do you think those pleadings would show
+anything a reasonable man could understand?"</p>
+
+<p>They decide that there was a bill that told the story. They knock on
+the door. The court attendant opens it. They explain, he gathers in
+the lawyers, and they go to the judge's desk. There is a thrill. The
+jury have agreed so quickly it must mean a verdict for the plaintiff.
+If they had been out longer it would have meant there was a
+disagreement or a verdict for the defendant. The longer the jury stays
+out the better for <a name="Page_258" id="Page_258"></a>the defendant thinks the lawyer. But the actions
+of the jury are uncertain and there may be no rule of arriving at
+their decision.</p>
+
+<p>There is the story of the judge who, after the jury had been out for a
+long time, made a bet with the stenographer as to how the jury were
+going to decide. The judge thought himself an expert in determining
+the probable verdicts of the jury. After they came in and announced
+their decision and were discharged, the judge having lost looked
+crestfallen. The stenographer smiled. Then the judge recovered
+himself.</p>
+
+<p>"You win," he said, "but the next time you and I bet on a decision it
+is going to be one of our cases without a jury."</p>
+
+<p>The attendant asks for the bill and returns to the jury-room. The
+court falls into a lethargy of waiting. The jury, having their
+information, go on with the discussion, probably on the following
+lines.</p>
+
+<p>"Sure, I told you the silks were worth four hundred dollars."</p>
+
+<p>"Well, I know those kind of people; they <a name="Page_259" id="Page_259"></a>are small people and they
+never did that amount of business in all their lives, let alone one
+month." Or,</p>
+
+<p>"Don't you know that neighborhood; all the cars speed up whenever they
+get there."</p>
+
+<p>"Why, yesterday I was getting off a car and the conductor pulls the
+bell, etc., etc."</p>
+
+<p>"No, I ain't prejudiced against the railroad; I ain't got nothing
+against the railroad."</p>
+
+<p>"Of course, we ain't going to decide this case on sympathy or
+prejudice. But that boy's Irish and he looks like he come of good
+honest people."</p>
+
+<p>"Vy, I don't see no difference whether he is Irish&mdash;or Yiddish; vot ve
+vant is justice."</p>
+
+<p>"Now see here, my friend, if you think you're going to make this a
+racial matter you're mistaken. Just because that boy's Irish you
+needn't think he ought not to get nothing. You're prejudiced, that's
+what you are."</p>
+
+<p>"Oh, let's get down to the evidence anyway; what we want is to
+decide."</p>
+
+<p><a name="Page_260" id="Page_260"></a>"Vel, the motorman vas Irish, vot you talking about?"</p>
+
+<p>"Sure, but he had to say what he did. Didn't he have to hold down his
+job with the company?"</p>
+
+<p>The rest of the jury sink back resigned and despondent. They will
+never get out. One of them ventures.</p>
+
+<p>"The judge told us that the law was&mdash;"</p>
+
+<p>He is interrupted.</p>
+
+<p>"Oh, we don't care so much about the law. What we want to do is to do
+what is right."</p>
+
+<p>Somewhere, somehow, and by non-understandable methods the verdict is
+reached. If the jury ask for further instructions, they file back into
+the court-room and the judge proceeds to elucidate the hidden mystery
+of the law in much the same manner he did in his charge. They return
+again not satisfied, and take up the discussion.</p>
+
+<p>The most dramatic moment in the trial is when the officer comes in and
+announces the jury have agreed. While they slowly <a name="Page_261" id="Page_261"></a>file in, the
+prisoner or the parties watch them with soul-tearing eyes; the lawyers
+with anxious expectancy. There is an electric thrill in the air. In
+some mysterious manner their verdict becomes known before the foreman
+speaks. Call it thought transference, mind reading, or what you will,
+there is a quick understanding from their faces, their manner of
+walking in, and their final pronouncement is only a confirmation of
+what was expected.</p>
+
+<p>The jury has spoken, the lawyer who has lost moves to set aside the
+verdict. The jury looks startled. Is it possible that after all that
+trial and all that deliberation the judge is going to upset it again
+and have the long trouble gone over. The judge denies the motion or
+takes it under advisement. Only on rare occasions does he set the
+verdict aside then and there. The verdict must have been outrageous,
+absurd, clearly a compromise, or absolutely and shockingly against
+common sense. The theory of the law is that the verdict of a jury is a
+final <a name="Page_262" id="Page_262"></a>judgment on the facts by the best judges of the facts. It will
+not lightly or for small reasons be interfered with.</p>
+
+<p>The question of belief in the jury system is one of the most futile of
+all large questions. In the first place, jury trial is so deeply
+engraved in the constitutional bill of rights that one might as well
+ask: "Do you believe in citizenship?" "Do you believe in the United
+States of America?" Secondly, trial by jury is so completely involved
+in the present system of court trial and procedure, that they are
+inseparable. The evils of the whole attach to the part and the
+beneficent aspect of the courts pertain equally to jury trials.</p>
+
+<p>Coming down to a concrete case and leaving the abstract principle to
+the theorist, there are certain obvious things to be said for and
+against jury trial. The jury represents the opinion of the common or
+ordinary man&mdash;the <i>vox populi</i>. Twelve men picked at random are
+probably neither all capitalists nor all laborers. They are made <a name="Page_263" id="Page_263"></a>up
+of a few of both, but the majority, if not all, are the small
+tradesmen or the great middle class. These men are not ignorant,
+prejudiced, or unintelligent. They have a limited experience, but
+their judgment is the judgment of mediocrity and mediocrity is what is
+wanted. The professional man, the expert, the specialist is needed for
+the special degree of administration, but for the determination of the
+actual right and justice, what is needed is the instinct of the
+ordinary man,&mdash;the plain ordinary common sense.</p>
+
+<p>When the criminal says: "I stand a better chance with a jury"; when
+the civilian says: "If I had the wrong end of the stick give me a
+jury," he is appealing not to the wrong side of the jury system, but
+to a quality which is not always recognized.</p>
+
+<p>Law is an exact, definite statement of principles, absolute and
+apparently immutable. When a man on the street walks up to another and
+wantonly insults him, the law is, that the insulted party must turn
+<a name="Page_264" id="Page_264"></a>and walk away. If the matter came before a jury they would never
+convict him for knocking the other down at once. The jury system is
+the mitigation of the law.</p>
+
+<br />
+<br />
+<br />
+<br />
+<a name="XVI" id="XVI"></a><hr />
+<br />
+
+<a name="Page_265" id="Page_265"></a>
+<!-- XVI -->
+<!-- LOOKING BACKWARD -->
+
+<a name="Page_267" id="Page_267"></a>
+
+<h3>XVI<span class="totoc"><a href="#toc">ToC</a></span></h3>
+<h3>LOOKING BACKWARD</h3>
+
+<h5>Extracts from the Graduation Dissertation of a Columbia
+J.E. upon receiving his degree of Juridical Expert in 1947.</h5>
+
+
+<p>Historical investigation of obsolete customs is of little value beyond
+preserving some record of what may soon be forgotten.</p>
+
+<p>In the year 1947 it seems almost unbelievable that the universal use
+by the public of Judicial Corporations should have been a matter of
+such recent economic growth. It is interesting to trace their
+development and the social causes from which they sprang.</p>
+
+<p>The efficient administration of these co-operative Corporations being
+demonstrated <a name="Page_268" id="Page_268"></a>by their financial success, makes it unnecessary to
+dwell upon the details of their intensely developed organization.
+Existing as they do upon so broad a comprehension of the whole
+commercial and social structures, it is little wonder that they have
+proven their value to the community. Their highly specialized
+departments of Issues, Investigation, Statutory Law, Records,
+Determination and Results correspond in a measure to the former method
+of procedure in the extinct courts of law and equity. Times have
+indeed changed.</p>
+
+<p>The analogy between the present methods and the antiquated and
+conventionalized customs of those cumbersome and inadequate
+institutions is not difficult to find. The department of Issues, for
+example, corresponds to what was known as the pleadings in an action.
+These were formerly bits of paper governed as to form by inflexible
+rules, instead of the efficient method by which under the trained
+managers of able minds the matters in dispute, either of fact <a name="Page_269" id="Page_269"></a>or law,
+are now narrowed down to exact points of difference. Naturally the
+methods of their managers being untrammelled by outside rules and they
+being men of wide experience and tact, the work of this department is
+not as difficult as at the first commencement of Judicial Corporations
+was anticipated.</p>
+
+<p>The departments of Investigation and Experts correspond with the
+former division of court trials known as evidence and testimony. Any
+explanation would be futile of this branch of a forgotten formalism.
+The ancient rules of evidence and court procedure could only be
+understood by contemporaries and an extensive research has failed to
+disclose very clear concepts even by them. The modern methods of the
+departments governing the ascertainment of facts, either through the
+experience of the departmental employees or the efficient work of
+trained investigators, have naturally been much aided by the invention
+of the Viviphone making all communication adequate and easy.</p>
+
+<p><a name="Page_270" id="Page_270"></a>The departments of Statutory Law and Records even yet retain certain
+characteristics of a period when judicial officers and clerks
+represented to the public mind the embodiment of what was known as
+"Red Tape," a true colloquialism descriptive of the attitude of
+official conservatism. These departments being governed according to
+the latest bibliographical methods are of merely supplemental value as
+reference. The Simplification and National Unification of Federal and
+State statutes has, of course, added greatly to the facility of this
+branch of the business.</p>
+
+<p>The Determination and Result departments at first were thought to be
+of primary importance. Corresponding as they did in their functions to
+the former exclusively judicial qualities of the courts and the final
+judgments thereof, the exaggerated import previously given to those
+functions pre-supposed an equal necessity in this subdivision of the
+management of the corporation. This proved to be incorrect. It was
+found <a name="Page_271" id="Page_271"></a>that after a careful framing and narrowing of the matter in
+dispute by the Issues department, and a thorough and careful sifting
+of facts by the Expert and Investigation departments, the dispute
+gradually, if not wholly, disappeared. Men of the highest character
+and calibre being employed at large salaries as heads of these
+departments, have given adequate satisfaction, as has been proved by
+the prosperity of the Corporations. The recompense of the heads of
+these various departments, requiring as it does men of the greatest
+commercial understanding, is said to be in some instances fabulous.</p>
+
+<p>In the early quarter of the present century and indeed in the latter
+part of the nineteenth, the undercurrents of many movements were
+already stirring the surface of the placid stream in which for so many
+centuries had been flowing the course of justice. Those curious relics
+of a medieval, age, the law courts, still at so recent a date,
+retained many of the forms, characteristics, <a name="Page_272" id="Page_272"></a>and usages of a time
+when knights fought in plate armor and indulged in the mimicry of
+battle, urged on by the glamor of chivalry. The very terms and the
+legal phraseology of the period implied the jousts, tournaments, and
+ordeal by battle of a romantic and self-deceptive age.</p>
+
+<p>The universal world war that resulted in such an immense change of
+social and economic values contributed naturally to the destruction
+and abandonment of old forms and structures. Yet even before the war
+and the economic revolution that followed so quickly thereafter, the
+tendencies toward a more sane treatment of the question had already
+begun.</p>
+
+<p>Like the extinct class of so-called physicians and doctors, who have
+now been amalgamated by the Public and Private Health Corporations,
+what was known as the legal profession or men known as lawyers and
+judges, had been gradually losing their characteristics as a class and
+had been step by step merging into men of business.</p>
+
+<p><a name="Page_273" id="Page_273"></a>One of the earliest changes was the disappearance of the lawyers known
+as the real estate lawyer. Up to about 1890 there still remained
+members of the legal profession who made a livelihood out of the
+examination of the titles to real property. The obvious advantages of
+a comprehensive title examination plant by large corporations known as
+Title Insurance companies soon eliminated this particular subdivision.</p>
+
+<p>The next important change arrived in a curious manner under the cry
+for what was then known as Social Justice&mdash;a vague term which was then
+advocated by many so-called "reformers" and ignorantly opposed by the
+capitalist class, without any very clear understanding of what was
+meant. So little was realized of the economic and efficiency values of
+insurance against chance, that the beginning of the movement was
+opposed. The movement resulted in certain obvious changes which
+looking back upon them seemed inevitable and natural. This was what
+was known as universal Employers' <a name="Page_274" id="Page_274"></a>Liability laws. The principle soon
+extending itself to all classes of accidents, resulted in the passage
+of legislation which had been foreshadowed by the tremendous growth of
+Casualty and Accident Insurance companies. Beginning at first with
+laws holding the employer liable for accident, and afterward resulting
+in the insurance of labor, it was gradually extended to accidents of
+every nature, including injury from travel on common carriers and the
+ordinary vicissitudes of life.</p>
+
+<p>The result of State insurance against negligence and injuries of every
+kind was that all claims for injuries were adjusted by the State and
+the lawyers who lived by pursuing the neglect or misfortunes of
+others, gradually became extinct. A certain distinguished and
+conspicuous type was known by the term "ambulance chasers"&mdash;the exact
+derivation of the term not being now, in 1947, entirely clear but
+probably being related to some antiquated legal custom of succoring
+the wounded&mdash;very soon disappeared.</p>
+
+<p><a name="Page_275" id="Page_275"></a>The cases that arose from all commercial disputes became less numerous
+as the more candid and intelligent dealings of the economic world
+awoke better and more honest business standards. But long before the
+disappearance of what was known as the commercial lawyer, there are
+evidences that the former courts of law, even before their entire
+abandonment, had fallen into a partial desuetude. Apparently disputes
+of large magnitude never reached the courts. And the legal standards
+enunciated by the courts were so entirely unrelated to the standards
+on which the actual commerce of the world was conducted, that resort
+was but little had to the arbitrament of the law of procedure in
+court.</p>
+
+<p>The entire change of personal and domestic relations and the greater
+freedom from the institutionalism of semi-civilized communities,
+<i>e.g.</i>, the abandonment of all restriction on divorce, naturally did
+away with the class of litigation that appeared in certain courts of
+law dealing with marital or personal grievances.</p>
+
+<p><a name="Page_276" id="Page_276"></a>In regard to what were known as criminal lawyers and criminal courts,
+the different attitude which the public formerly had toward
+unfortunate sufferers makes the existence of such a class or such
+institutions almost unbelievable. As it is now inconceivable that we
+should throw into unsanitary jails men and women who are mentally or
+socially diseased, so is it hard to realize that during the
+unintelligent period of which we are speaking, nay for many centuries,
+there existed people who lived upon their misfortunes.</p>
+
+<p>Naturally with the disappearance of litigation and lawyers the public
+no longer tolerated the existence of the judges or courts. For a few
+years they retained a hold upon the imagination of a small portion of
+citizens who entertained a sentimental regard for the State
+institutions of a civilization founded upon the unsound teachings of
+eighteenth-century doctrinaires.</p>
+
+<p>The period of the abandonment of the old courts corresponded with the
+extraordinary <a name="Page_277" id="Page_277"></a>development for what was called "moving pictures";
+those pale, lifeless presentations without color, speech, or
+substance, at which the people of a benighted age gathered for
+amusement or entertainment! It requires imagination to conceive that
+people were unfamiliar with the ease of communicating with any place
+on the globe and reproducing exactly in form, color, and speech by
+turning on a switch. The observer of that age must have been shocked
+and surprised to find the solemn courthouses turned into what was
+known as moving-picture palaces or as community centers for dancing
+and social entertainments.</p>
+
+<p>The change of class which the lawyers had gradually been undergoing to
+simple men of affairs was not so abrupt as that for the judicial
+officers, who were far removed from actual life. Various expedients
+were attempted by which they could be preserved as a class. Their
+former occupation being gone and the idea of pensioning not being
+satisfactory, as there remained a large <a name="Page_278" id="Page_278"></a>number of younger men on the
+bench who might be of some value to the community, a system of court
+caf&eacute;s was evolved. Even to-day it is fast disappearing and for the
+benefit of future generations it may be well to describe the last
+remnant of an institution that held its position in the social order
+for so long.</p>
+
+<p>Human nature being always substantially the same, it was thought that
+its demands for the dramatic action and stress of battle should have
+some outlet. It was not thought wise to entirely abolish the arenas
+for legal disputes, although the present Judicial Corporations with
+their excellently organized departments were already rapidly
+destroying all litigation. It was felt that perhaps humanity demanded
+the bringing together of the two disputants so that they personally
+might oppose their claims to one another.</p>
+
+<p>It now seems incredible, in view of the absolute simplicity of
+communication by Viviphone, that this should be thought necessary. The
+need for romantic expression <a name="Page_279" id="Page_279"></a>seemed to demand the opportunity for
+personal presentment. The social workers who established these caf&eacute;
+courts, did not realize that with the growth of a more intelligent
+public point of view, the question of abstract justice was little more
+than an application of customs and social standards to particular
+facts; and that with the fall of the ideas of justice in the abstract,
+there also fell the appurtenances of justice.</p>
+
+<p>It may here be noted that the learned treatise of Professor
+Humperdinck upon the recent discovery of certain statutes found among
+the ruins of the Great New York Explosion is mistaken. The figure
+which he described among others of the woman blind-folded and with an
+arm extended as though holding something, does not represent as he
+calls it, "The poor blind girl begging," but a figure of the Goddess
+of Justice holding the scales, who was so long worshiped.</p>
+
+<p>The growth of the court caf&eacute;s was made possible by the amelioration in
+the climate of New England effected through the <a name="Page_280" id="Page_280"></a>alteration in the
+course of the Gulf Stream. The inhabitants became accustomed to spend
+more time in the open air so that the courts became popular. Existing
+as places for the display of eccentricities and the airing of personal
+grievances, they soon became extremely frequented as places of
+amusement.</p>
+
+<p>Whenever any litigant felt that there was any matter in dispute which
+needed adjustment by some outside agency, he invited the other party
+to come to the court. The judges occupied the position of proprietors,
+<i>ma&icirc;tres d'h&ocirc;tel</i>, and waiters, whose business it was to make the
+courts as attractive as possible. As their salaries depended upon the
+amount of receipts and the courts were run upon a partnership basis in
+which all shared the profits, the aim of the judges was to draw as
+large amount of custom as possible.</p>
+
+<p>The surroundings were in every way desirable. In the open air, under
+spreading trees with the sunlight filtering through the leaves upon
+the well-kept lawns, were spread <a name="Page_281" id="Page_281"></a>tables covered with delicious fruits
+and every delicacy that the human mind could devise in the way of
+culinary delights. Rare wines, exotic flowers were constantly supplied
+in profuse display. Luxurious divans and reposeful seats were
+interspersed about. The most modern as well as the most famous
+musicians furnished exquisite music, while flitting about in neat
+white aprons partially concealed by their gently swishing gowns of
+black, the attentive justices anxiously tried to add to the pleasure
+and comfort of their customers.</p>
+
+<p>With such temptations as these there was little wonder that the
+opposing party accepted the invitation to attend court. Witnesses and
+spectators crowded about, both on account of the novelty of the
+institution and the opportunity for refreshment and amusement. The aim
+of the judges was to incite the disputants to continue their disputes
+instead of trying to pacify them.</p>
+
+<p>The more vociferous they grew, the more noisy and passionate they
+became, the better the crowds were held who came to <a name="Page_282" id="Page_282"></a>observe the
+performance. It was upon this clientele and the sale to them of viands
+and comestibles during the dispute that the profits of the judges
+depended. So long as there was a serious and energetic struggle the
+spectators remained at the adjacent tables and trade was brisk.
+Whenever, however, the litigants came to a full realization of the
+absurdity of their position, either by the continued laughter of the
+spectators at the public airing of their private wrongs with which the
+public had nothing to do, or becoming tired of mere words and came to
+diminish the ardor of their combat, the crowd would begin to dwindle
+away. The judges quick to understand the loss of trade after vainly
+trying to induce the litigants to new efforts, would gently and
+suggestively push under their hands a pair of dice boxes or a pack of
+cards and the dispute would sometimes end upon the throw of a die or
+the turn of a card.</p>
+
+<p>The reason that these court caf&eacute;s have not long remained in vogue, was
+that all actual <a name="Page_283" id="Page_283"></a>litigants soon became so sophisticated as they
+realized the enormity of the position and how unreasonable their
+conduct seemed to the average man. Public sentiment was naturally
+against such a waste of time and real performers became scarce.
+Several of the courts were detected in hiring false litigants as
+actors so as to draw the crowds. The performance not being genuine
+soon lost its interest. The patrons left them and many courts became
+bankrupt. So like their predecessors, those light-minded courts have
+practically ended.</p>
+<br />
+
+<h4 class="sc">The End</h4>
+
+<br />
+<br />
+<br />
+<br />
+<hr />
+<br />
+
+<div class="tr2">
+
+<h2>Justice to All</h2>
+<h3>The Story of the Pennsylvania State Police</h3>
+
+<h4>By</h4>
+
+<h3>Katharine Mayo</h3>
+<br />
+<h4>Introduction by<br />
+Theodore Roosevelt</h4>
+<br />
+<h4>8&ordm;. Illustrated. $2.50</h4>
+
+<blockquote><p>Theodore Roosevelt says: "It is a book so interesting and so valuable
+that it should be in every public library and every school library in
+the land." This State Constabulary in its romantic career has hunted
+down crime, made raids into "Black Hand" strongholds, protected lives
+and property from mob violence, and always risen to every emergency
+where nerve and swift action are required.</p></blockquote>
+<br />
+<hr style="width: 20%; color: black;" />
+<br />
+
+
+<h5>G.P. Putnam's Sons</h5>
+
+<h5>New York&nbsp; &nbsp; &nbsp; &nbsp; &nbsp;  London</h5>
+</div>
+
+<br />
+<hr />
+<br />
+
+<div class="tr">
+<h5>Typos corrected in text:</h5>
+
+<p class="noin">
+<span style="margin-left: 1em;">Page 7: beween changed to between</span><br />
+<span style="margin-left: 0.5em;">Page 21: psuedo-classic changed to pseudo-classic</span><br />
+Page 173: frigthened changed to frightened<br />
+Page 202: planitiff changed to plaintiff<br />
+</p>
+
+</div>
+
+<br />
+<br />
+<br />
+<br />
+<br />
+
+<hr class="full" />
+<p>***END OF THE PROJECT GUTENBERG EBOOK THE MAN IN COURT***</p>
+<p>******* This file should be named 17041-h.txt or 17041-h.zip *******</p>
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+<a href="https://www.gutenberg.org/dirs/1/7/0/4/17041">https://www.gutenberg.org/1/7/0/4/17041</a></p>
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diff --git a/17041.txt b/17041.txt
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--- /dev/null
+++ b/17041.txt
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+The Project Gutenberg eBook, The Man in Court, by Frederic DeWitt Wells
+
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+
+
+
+Title: The Man in Court
+
+
+Author: Frederic DeWitt Wells
+
+
+
+Release Date: November 10, 2005  [eBook #17041]
+
+Language: English
+
+Character set encoding: ISO-646-US (US-ASCII)
+
+
+***START OF THE PROJECT GUTENBERG EBOOK THE MAN IN COURT***
+
+
+E-text prepared by David Garcia, Jeannie Howse, and the Project Gutenberg
+Online Distributed Proofreading Team (https://www.pgdp.net/)
+
+
+
+     +------------------------------------------------------+
+     | Transcriber's Note: Some obvious typographical       |
+     | errors have been corrected in this text. For a list  |
+     | please see the bottom of the document. The one Greek |
+     | word is transliterated and marked with +'s.          |
+     +------------------------------------------------------+
+
+
+
+
+
+THE MAN IN COURT
+
+by
+
+FREDERIC DEWITT WELLS
+Justice, Municipal Court of New York City
+
+
+
+
+
+
+
+G.P. Putnam's Sons
+New York and London
+The Knickerbocker Press
+1917
+Copyright, 1917
+by
+Frederic Dewitt Wells
+The Knickerbocker Press, New York
+
+
+
+
+
+
+  To
+
+  MY FRIEND
+
+  CHARLES E. GOSTENHOFER
+
+  OF THE NEW YORK BAR
+
+  IN ACKNOWLEDGMENT OF HIS AID AND SUGGESTIONS
+
+  THIS BOOK IS DEDICATED
+
+
+
+
+INTRODUCTION
+
+
+The author has tried to show the point of view of the ordinary man in
+a law court, as the various proceedings of a trial take shape before
+him. To the initiated, the whole book may seem too obvious; but it has
+not been written for them, but for those to whom these proceedings are
+unfamiliar. There are many who have a certain curiosity about the
+courts, and at the same time a real respect for justice, mingled with
+amusement at the panoplies and antiquated forms of legal procedure.
+
+  F. DEW. W.
+
+  NEW YORK,
+  _January, 1917_.
+
+
+
+
+CONTENTS
+
+
+                                                                 PAGE
+
+INTRODUCTION                                             iii
+
+    I.--A NIGHT COURT                                      3
+
+   II.--THE CIVIL COURT                                   21
+
+  III.--THE JUDGE                                         39
+
+   IV.--THE ANXIOUS JURY                                  57
+
+    V.--THE STRENUOUS LAWYER                              75
+
+   VI.--THE WORRIED CLIENT                                93
+
+  VII.--PROGRAMS AND PLEADINGS                           111
+
+ VIII.--PICKING THE JURY                                 129
+
+   IX.--OPENING THE CASE                                 149
+
+    X.--THE CONFUSED WITNESS                             165
+
+   XI.--THOSE TECHNICAL OBJECTIONS                       183
+
+  XII.--THE MOVEMENTS IN COURT                           201
+
+ XIII.--ELOCUTION                                        219
+
+  XIV.--THE HEAVY CHARGE                                 235
+
+   XV.--THE TRUE VERDICT                                 251
+
+  XVI.--LOOKING BACKWARD                                 265
+
+
+
+
+I
+
+A Night Court
+
+
+In the Night Court the drama is vital and throbbing. As the saddest
+object to contemplate is a play where the essentials are wrong, so in
+this court the fundamentals of the law are the cause of making it an
+uncomfortable and pathetic spectacle.
+
+The women who are brought before the Night Court are not heroines, but
+the criminal law does not seem better than they. It makes little
+attempt to mitigate any of the wretchedness that it judges; in many
+cases it moves only to inflict an additional burden of suffering. The
+result is tragedy.
+
+The magistrate sits high, between standards of brass lamps. His black
+gown, the metal buttons and gleaming shields of the waiting police
+officers, the busy court officials behind the long desks on either
+hand tell of the majesty of the law.
+
+In front of the desk but at a lower level is a space of ten or twelve
+feet running across the court-room in which are patrolmen,
+plain-clothes men, detectives, women prisoners, probation officers,
+reporters, witnesses, investigators, and lawyers. Beyond in the
+court-room a large crowd is on the benches. There are witnesses,
+brothers and sisters, friends of the prisoners waiting to see whether
+they go out through the street entrance or back through the strong
+barred gate seen through the door on the left. Also there are the
+"sharks" waiting to follow out the released prisoners, to prey upon
+them as the circumstances may favor; and a number of curiosity seekers
+watching intently. For them it can be nothing but a morbid dumb show,
+for they are so far from the bench that not a word of the proceedings
+could be heard. Only once in a while the shrieks and imprecations of a
+struggling hysterical woman as she is hurried out of court can
+enliven the scene.
+
+Fortified with a letter of introduction to the judge and a disposition
+that will not be too easily shocked at seeing conditions of life as
+they actually exist, the spectator may find his way past the policeman
+at the gate in the rail. It clicks behind him ominously and he wonders
+whether he will have difficulty in getting out. Finally through clerks
+and officials who become more kindly as they learn he is a friend of
+the judge, he is seated in a chair drawn up beside the bench. The
+magistrate is a hearty round-faced man who seems almost human in spite
+of his gown and the dignity of his surroundings. The court looks
+different from this point of view and he may easily watch the judicial
+enforcement of the law supreme.
+
+The organization of these courts is simple. There are not many rules
+or technicalities. The judges are patient, hard working,
+understanding, and efficient. The trouble is with the laws they are
+called upon to administer: Laws which are as absurd, as farcical, and
+as impracticable as the plot of the lightest musical comedy.
+
+At first the visitor can hardly understand what is going on. A
+pale-faced man is in the witness chair, on his left a bedraggled
+little woman is standing before and below the judge, her eyes just
+level with the top of the desk. Clerks are coming with papers to be
+signed: "commitments," "adjournments," "bail bonds"; others are trying
+to engage his attention. In the meanwhile the case proceeds.
+
+"I inform you," says the judge to the woman, "of your legal rights,
+you may retain counsel if you desire to do so and your case will be
+adjourned so that you may advise with him and secure witnesses, or you
+may now proceed to trial. Which will you do?"
+
+She murmurs something. She is pale-faced with sullen eyes, drooping
+mouth, an over-hanging lip. A sad red feather droops in her hat.
+
+"Proceed," says the judge; and to the policeman who is called as a
+witness, "You swear to tell the truth, the whole truth mm-mm-mm--you
+are a plain-clothes man attached to the 16th Precinct detailed by the
+central office, what about this woman?"
+
+"At the corner of Fifteenth Street and Irving Place," says the
+witness, "between the hours of 10:05 and 10:15 this evening I watched
+this woman stop and speak to three different men. I know her, she has
+been here before your Honor."
+
+"What do you say?" the judge asks the woman. She is silent.
+
+"What do you work at?"
+
+"Housework, your Honor."
+
+"Always housework; it is surprising how many houseworkers come before
+me." She smiles a sickly smile.
+
+"Take her record. Next case," says the judge. Outside it is a cold
+sleeting night in early March.
+
+"Witnesses in case of Nellie Farrel," calls the clerk.
+
+Nellie Farrel stands before the desk beside a policeman; she is tall
+with fair waving hair. She must have been pretty once; even now there
+is a delicate line of throat and chin. But her eyes are hard and on
+her cheeks there are traces of paint that has been hastily rubbed off.
+She looks thirty; she is probably not more than twenty.
+
+A callow youth, who seems preternaturally keen, swears that on
+Thirteenth Street between Fifth Avenue and University Place the woman
+stopped and spoke to him; and he tells his story as though it were
+learned by rote.
+
+"Do you know the officer who made the arrest?" the judge asks him.
+
+"I do." A suspicion arises that there may be an interest between the
+witness and the policeman.
+
+A dark-haired, smooth-faced woman who is standing by the prisoner
+says: "Your Honor, she's my sister. I'm a respectable woman, my
+husband is a driver. I have three children. It's disgrace enough to
+have the likes of her in the family. If you'll give her another
+chance I'll take her home with me; my husband is here and he's
+willing." The accused looks down piteously.
+
+"Discharged on probation," says the judge, and the family go out.
+
+"That's the third time that's happened to her," whispers a clerk.
+"Every time the sister comes up like a good one."
+
+A horrible old woman with straggling gray hair, shrivelled neck, and
+claw-like hands grasps a black shawl about her flat chest. "Mary,"
+says the judge, "thirty days on the island for you."
+
+"Oh, your Honor, your Honor, not the workhouse. Oh, God, not the
+workhouse," and she is borne out screaming and fighting and invoking
+Christ to her aid. The judge turns and says in explanation, "an old
+case, an example of what they all may come to."
+
+A dark-haired little French woman is brought in with crimson lips,
+bold black eyes, and expressive hands. A detective testifies that he
+went with her into a tenement house on Seventeenth Street west of
+Sixth Avenue. Charge: Violation of the Tenement House Law.
+
+"Qu'importe," says the woman. "I go in ze street. I am arrested. I
+stay in ze house. I am arrested. I take ze room. I am arrested.
+Chantage--Blackmail. C'est pour rire."
+
+Who are these women who are brought in a crowd together? One of them
+older than the rest is a foreigner plainly dressed in black silk with
+a gold chain. She does not seem particularly evil, but rather
+respectable. The others are in long cloaks or waterproofs hastily
+donned and through which are glimpses of pink stockings. They have
+hair of that disagreeable butter color which speaks of peroxide. There
+has been a raid on a west-side street of a house of ill repute. Some
+testimony is given and the older woman, the "Madam" is held in bail
+for the action of the Grand Jury while the rest are held for further
+evidence. The judge tells us there will probably not be enough
+testimony and they will be released in the morning. But unless bail
+is found they will spend the night in cells.
+
+A nervous, excited woman comes in--two policemen are with her. She has
+been arrested for disorderly conduct on Sixth Avenue near Thirty-first
+Street. She has been fighting with a man who has also been arrested
+and taken to the men's Night Court. Hers is a hard, tough face of the
+lowest type.
+
+"Why should you try to scratch the man's face? What did he do?" the
+judge asks. "Is he your husband?"
+
+"My husband, your Honor? Yes, I guess you can call Al that. We lives
+up town and when I went out he says to me, 'Hustle, kid, you got to
+hustle, the rent's due and if you don't get the money I'll break your
+neck.' The slob won't work. Well, a night like this you couldn't make
+a cent and I only had half a dollar and I wanted to get a bite to eat.
+I hadn't had a thing since four o'clock, and then I met Al going down
+Sixt' Avenue an' he tries to swipe me fifty cents off me and I was
+that wild I wanted to tear him. I'm sorry; I guess it was my fault. I
+don't want to see him jugged, so please let me off, your Honor, and I
+won't make no trouble."
+
+"Take her record," said the judge, "and hold her as a witness against
+the man."
+
+A string of women are brought in for sentence who have been having
+finger prints taken in the adjoining room. The judge proceeds to
+impose sentences according to the previous records which are shown.
+Some of the women are those who have passed in front before. The
+little bedraggled woman with the red feather has been arrested seven
+times in sixteen months. Another has spent eight weeks in the
+workhouse out of a period of seven months; another has been sent
+already to the Bedford Reformatory; another has been twice to houses
+of reform. Before the judge gives his sentence he refers the prisoners
+to the probation officer, who talks with them in a motherly way.
+
+After talking with the little prisoner she addresses the judge. "She
+says its no use, your Honor, she does not want to reform--it will not
+be worth while to put her on probation."
+
+"Committed to the Mary Magdalene Home," says the judge, and the name
+brings a startling surmise as to what He of Galilee would have said.
+
+The foregoing is only a typical session of the court. Night after
+night, from eight o'clock until one in the morning, the scene is
+repeated. The moral effect and its reaction upon those who conduct the
+proceedings--the judges, officers, and the police, cannot but be
+deplorable; the evil done to those forcibly brought there could not be
+over-estimated.
+
+Substantially the law is that the women may not loiter in the streets
+nor solicit in the streets, or in any building open to the public.
+They may live neither in a tenement house nor in a disreputable house.
+The law makes it a crime for the women to walk abroad or stay at home.
+Their existence is not a crime, but only in an indirect way the law
+makes them outlaws. Anyone wishing to prosecute or persecute finds it
+easy to do so. The worst enemies of these unhappy women are to be
+found, curiously enough, among both the best and the most evil people
+in the community. The unspeakably depraved are the men who, either as
+procurers, blackmailers, or the miserable men who live on a share of
+their earnings. The excellent people who oppose any remedial
+legislation which might relieve the situation, seem equally
+responsible for the present condition, however well-intentioned they
+may be.
+
+One effect of the present system is the practically unchecked
+transmission of disease. A reform in this direction would not solve
+the basic problem, for there would remain full opportunities of
+blackmail and extortion, but it might still remove a menace to the
+health of the community which is probably more serious than
+tuberculosis.
+
+A statute to this end was enacted in New York State a few years ago:
+an act for the medical examination of the women. It was declared
+unconstitutional because of one word. It should have read, "the judge
+may"; instead, it read, "the judge _must_." Far more difficult to deal
+with is the opposition of the people who believe that the moral sense
+of the community would be jeopardized by any laws suggesting that
+prostitution is unavoidable.
+
+In ironic contrast to the failure of legislation to prevent the spread
+of disease, is the success of an ill-advised statute making adultery a
+crime. Under it, a married man having relations with a prostitute and
+the woman herself, are subject to criminal prosecution. It affords a
+fresh field for extortion, how largely used it is impossible to say.
+
+The history of the passage of the adultery act presents one of the
+most ghastly jokes ever perpetrated by a State Legislature.
+
+For years such a bill had been introduced in the New York Legislature
+and had been passed by either the Assembly or the Senate without
+comment and then quietly killed in the other house. It was obvious
+that such a law could not be properly enforced and its blackmailing
+possibilities were manifest, yet no one, not even Governor Hughes, who
+was then in office, could be openly opposed to its passage.
+
+The tender morality of the community would not allow a public
+discussion.
+
+It was said, at the time, that when the representative of a society
+for the suppression of vice called on one member asking him to
+introduce the bill, he declined to do so on the ground that he
+represented a Fifth Avenue District and it would make him too
+unpopular among his constituents. When the bill had been introduced by
+another member and came up for final passage, it was decided, since
+Governor Hughes had vetoed many political bills of members of both
+houses, to put him in a dilemma. If the bill were presented to him he
+would have to sign an absurd statute or declare himself the friend of
+unrighteousness. He signed it and the bill became a law. Since its
+enactment there have been ridiculously few convictions under it.
+
+The successive carelessness, timidity, and levity of the Legislature
+is depressing, but there is an encouraging increase of interest on the
+part of the public. The average man is not merely interested in the
+problem; he appears to take the sensible view that the "social evil"
+is not so much a moral question as a condition, a problem to be met
+like other problems. We have become less concerned with the private
+morals of our fellow citizens than with their health, safety, and the
+prevention of unnecessary suffering. We perceive that the courts are
+only our agents and are not directly responsible for what they do;
+they are following instructions given by our ancestors and which we
+have neglected to abolish or modify.
+
+The visitor leaves the Night Court with a strange sense of having his
+social values overthrown. He feels almost sympathetic with the women
+whom he has seen. They may be offenders against morals and the social
+order, but they are human beings over whom the waters of civilization
+seem to sweep with relentless flood. The frightful waste of life and
+energy seems inexcusable. And it is as though some mill dam had burst
+and was flowing in a terrific torrent down a river bed along which a
+few are drawn white and drowned.
+
+The ordinary man knows that the women who go under are such a small
+proportion of those who escape, that it seems either a ghastly joke or
+a terrible tragedy. The whole paraphernalia of the court-room merely
+accents the contrast between those who are caught and those who go
+free.
+
+But all criminal courts are always unpleasant. And humanity if seen
+only in the setting of a criminal trial would be a discouraging
+object. Turning to the more civil court, we find an almost equal
+unfitness between the courts and modern conditions.
+
+
+
+
+II
+
+THE CIVIL COURT
+
+
+In a twenty-four-story office building, on a smooth gliding elevator,
+up seventeen stories, down a low-ceilinged corridor, past fireproof
+doors labeled: "Clerk's Office," "Judge's Chambers," "Witness Room,"
+we find the typical modern court. The old idea of a very
+pseudo-classic courthouse on a placid village green to which the
+neighboring county squires have ridden, and where the jail is in the
+cellar and the town recorder in the attic, is fast disappearing. The
+old courthouse in the city, of red sandstone with battlements and
+turrets, minarets, and a clock tower, seems out of date.
+
+The white marble palaces of the higher courts wherein broad stairways,
+paneled mahogany, stained glass, and soft noiseless carpets giving an
+air of repose and refined culture, are not altogether consistent with
+the modern spirit. The man on the street does not understand whether
+the marble statues on the roof are symbols of justice or late
+presidents of the United States. The usual courthouse of twenty years
+ago was a mixture of armory and Gothic church.
+
+In the larger courthouses where there are many terms or parts in one
+building, there is an air of confusion. Rotundas, corridors,
+stairways, and elevators are constantly filled with a moving crowd of
+lawyers waiting for their cases to be tried, clients who have had
+appointments, witnesses who have been subpoenaed to come to court
+and when they get there find it is not one court, but thirty. The
+latter are found wandering dazedly about asking anyone who will stop
+to listen if they know in which part the case of Martin _vs._ Martin
+is being tried. Lunch counters, telephone booths, and a feeling of awe
+are in the building.
+
+What that terror of a court of law comes from is difficult to analyze.
+There is the impressive majesty of the law; always about a court is
+the inspiring sense of something more than human. Even an empty
+court-room is not as other rooms. Like an empty theater there remains
+an atmosphere of glamour, of mystery, and yet equally true there
+remains a substantial, strong odor of crowds.
+
+It is said that every theater retains its own peculiar smell. The
+scientific investigation of the psychology of odors is too subtle to
+be understandable. The question of analyzing the exudations of a
+nervous crowd seems interesting, but the remembrance of an anxious
+humanity is always present. In former times the attendant placed a
+small bunch of herbs and aromatic flowers on the judge's desk, and
+glasses of the dried bouquets remained in a row for long periods.
+
+Hygienically considered the courts are unsanitary. If the windows are
+opened the cold air is apt to draw directly on the heads of the jury
+and the stenographer. In summer the noise of city streets, the cars,
+the elevated, the cries of children, the hand-organs, the flies, are
+not at all conformable to the supposed dignity of the court. It is
+well-known that the crowded and unhealthy conditions of the courts are
+conducive to disease as well as discomfort to the inhabitants.
+
+The connotations of the name court are generally impressive. There is
+the suggestion of jail, of punishment, of something final, of absolute
+judgment. Also it suggests the courtyard of a tenement house, an
+alleyway or something shut in and confined. The philology is from the
+old French cort or curt. It is curious that it means something narrow.
+There are the suggestions of the lists, of heralds, of trumpets, of
+banners and knights in armor, of prancing steeds, of fair ladies
+watching, of joust, tournaments, and trials by battle. There is
+something royal about the word. We think of pomp and magnificence and
+purple robes, of kings on their thrones, with courtiers standing
+about. The conception of Diety to the simple man who visualizes,
+immediately takes on the form of a court. We speak of the Courts of
+Heaven. The pictures of Godhead represent him as sitting in the center
+on his raised throne with the surrounding tiers of attendant angels.
+
+The modern court-room is only an adapted continuation of a medieval
+idea. On the raised dais under an unsanitary and dusty canopy of green
+plush sits the judge; instead of a sceptre he holds the gavel. This
+gavel, by the way, is falling more and more into disuse. As a symbol
+of authority, a little wooden hammer has become a trifle ludicrous. If
+a judge were to shake it too violently there might be a fear on the
+part of those watching that he was about to throw it at the spectators
+or at one of the arguing lawyers.
+
+The judge sits at an imposing high-railed desk with standard lights at
+either corner. The top of the desk is usually above the level of the
+eyes even of the lawyer standing. This is an arrangement which is
+conventional and convenient; it would not be consistent with the
+majesty of the law if the judge should be discovered writing a
+personal note or taking a glance at the stock market reports in the
+evening paper.
+
+The judge's chair is ordinarily a revolving one with a dip backward.
+Stationary chairs are trying, for those who have to remain quiet for
+so many hours at a time, and the swinging back and forth and twisting
+about gives a little relaxation.
+
+In front of the judge's dais are the counselors' or lawyers' tables,
+and at one side in front and below usually another table for
+reporters. It is somewhat like the arrangement in baronial halls where
+there was an upper and lower table and some sat below the salt and
+others above.
+
+On one side, opposite, but not as high, is the jury-box. This is a pen
+with twelve seats within a high-sided inclosure like an old-fashioned
+pew. What the object of the inclosure may be is uncertain, unless it
+is a relic of a time when it was necessary to imprison the jurors.
+Jury duty has doubtless always been arduous and disagreeable, and in
+earlier days men were probably as anxious to escape serving on the
+jury as they are to-day. In one of the courts, which was not supposed
+to be for jury trials, twelve men once sat on a case without any
+jury-box in plain chairs and at the side of the room. They were
+extremely uncomfortable themselves; their legs were exposed and they
+seemed shockingly unconventional.
+
+Between the judge's desk and the jury-box is the witness chair, an
+ordinary chair placed not quite so high, but beside the judge's and
+where he can look down on the witness. The position of the witness
+chair may be accountable for the feeling of protecting the witness
+that exists in the minds of the judge and jury. There is a natural
+sympathy for him, as though he were being attacked by the examining
+counsel. The witness in former times stood in a little enclosed box
+and in Italy, where court scenes are more intense, the prisoners to
+this day in criminal trials testify from behind iron bars.
+
+Below the witness chair is the stenographer. The former idea of the
+aged scrivener or court clerk with white hair and green eye shade has
+vanished. The modern stenographer, who keeps the record of a trial, is
+probably an energetic young man, who has passed high on the civil
+service list, knows something about law, is studying for a better
+position, or is connected with a very profitable stenographers'
+business on the outside.
+
+The court proper is divided from the rest of the room by an iron or
+wooden rail guarded by a jealous court attendant, who is always a
+strong advocate of court etiquette and very properly maintains the
+dignity of the court. He is in uniform with a shield or badge of
+office conspicuously displayed and being taken from the civil service
+list whereon war veterans and retired firemen or policemen have a
+preference, is generally of a certain age. Naturally, being old and
+having to stand so much, he has tender feet, and with the customary
+effects of all secure and salaried positions, acquires both a slow and
+shuffling gait and the ordinary characteristics of his class. He is
+subject to many petty annoyances, foolish questions, repeated
+inquiries, people talking or arguing, little disorders pursue him on
+every hand.
+
+The object of the attendant in the court is to maintain order and
+preserve dignity. They are almost avid in their pursuit of the
+ignoramus who comes in with his hat on his head or covers himself on
+going out before he reaches the door. Their salaries are not large but
+their duties are not arduous. They may seem solicitous to the judge
+and sometimes overbearing to the litigants and lawyers, but they are
+only in the position of the supes or ushers in the theater. Yet they
+are understanding and wise as regards the human drama constantly
+played before them.
+
+The lighting of the court-room is unusually dramatic. There are no
+foot-lights, but the best theory of stage lighting is that there
+should be none. One of the most effective scenes in the modern
+theater is the court setting in Galsworthy's _Justice_. The lighting
+is indirect and the spots of red and green lights at the judge's desk,
+the corners of the jury-box and the shaded ones at the clerk's elbow,
+give a remarkable impression of mysterious terror.
+
+Whatever may be the cause, there exists a marked resentment against
+the courts. Not only is there a complaint as to the cloying
+technicalities of procedure, the long and fatal delays of the law, the
+absurd forms and mannerisms of the trial, but underneath them all a
+fundamental distrust of justice itself. The complaint is heard of the
+inequality of justice. That there is a law for the poor man and
+another law for the rich. The stage gives expression to the feeling,
+and modern literature voices it. The high-priced millionaire escapes
+and the low-browed pickpocket goes to prison.
+
+Cases are cited where the rich woman returning from a debauch of
+European shopping with a few thousand dollars' worth of pearls sewed
+in the lining of her winter bonnet is only fined, whereas the little
+milliner from the lower end of the city is sent to jail for trying to
+smuggle in a new coat. The impressario of art collections is caught at
+a gigantic scheme for defrauding the government of thousands of
+dollars on imported pictures. He hobbles into court and on the ground
+of ill health escapes a prison sentence and is merely fined, while the
+little Italian fruit vender is summarily jailed for bringing in a few
+dried mushrooms. The high financier who wrecks a railroad or a bank
+serves a light prison term and emerges like a phoenix to buy new
+steamboat lines or float new enterprises. But the peddler on the East
+Side who sells a few dollars' worth of stale fish is punished to the
+limit of the law.
+
+The facts exist and to the popular mind seem unexplainable. There
+undoubtedly must be a reason, and what it is, is not hard to find. It
+seems one of the mysteries of judging and of justice, as though there
+were an unwritten law in the back of the human mind in favor of
+property rights. There is an explanation and not an inequality of
+justice. The facts are not as they are popularly stated or supposed to
+be. The public gets only a portion of the picture, and from an
+enormous group of cases, a few contrasted ones are picked out for the
+sake of the dramatic effect. The limelight of public notice is upon
+them and the softer lights and shadows are omitted. The public does
+not see the gradation. On the one hand we see the rich woman, the
+millionaire art dealer, the financial pirate being leniently dealt
+with, on the other hand we see the little milliner, the Italian fruit
+vender, and the peddler receiving harsh sentences.
+
+The sharp contrasts make good newspaper stories that are appealing and
+touching. What the public does not see is the whole picture of all the
+cases of alleged inequality that come into court. These are only six
+out of seven hundred cases, chosen because they are melodramatic.
+There were nearly seven hundred other offenders that were let off
+with suspended sentences or light fines, of whom nothing is heard,
+but these three are conspicuous on account of their wealth, and the
+cases of the milliner, the mushroom vender, and the peddler are
+reported for the same reason--of being conspicuous. They are unusual
+on account of the sentences. The harshness of their sentences is
+remarkable. There may be special reasons. The six hundred and
+ninety-odd who are punished lightly in the same way as the rich man
+are not noticed.
+
+As a matter of actual experience, the rich man has a harder time in
+court than the poor man. The inequality of justice, if there be any,
+is rather against him. Because he is rich and notorious the public
+prosecutor cannot let him off. If, for example, a poor man who is
+undoubtedly insane, commits a murder he is not tried, but is sent to
+an asylum for the insane. If, after several years, he recovers and is
+released, nothing is said about it; the public does not know. But let
+it be a rich lunatic and the public prosecutor is bound to bring him
+to trial. Public attention demands it. He may know him to be insane,
+but he must still prosecute him. The jury declare him insane. After
+years he is released from the asylum, the public thinks it a
+miscarriage of justice, forgetting in the meanwhile the inconspicuous
+poor man who unnoticed has gone through the same experience, and been
+released years ago.
+
+The delays of the law are partly due to the system of courts and
+partly to the dullness of court procedure. The inefficiency of the
+system of courts and judicial procedure is shown in the practical
+workings of the civil courts of New York City. The antiquated
+organization of all the courts is like a patchwork quilt where each
+additional one has been added or increased as New York has grown from
+a village below the Indian stockade at Wall Street to its present
+size. So that there exist within the city limits now seven different
+kinds of civil courts and five kinds of criminal courts, in nearly
+each of which there is a separate set of rules, different customs,
+and distinct methods of procedure, and of them all the most technical
+and the most complicated are often those where they should be the most
+simple and easy of understanding.
+
+Wherever the court may be the surroundings are substantially the same.
+The scene is laid and the carpenters have left. The spectators have
+found their places. The stage is empty however, there is a sudden
+bustle and shifting of feet, a rumor has gone abroad that something is
+about to happen. The court attendants take their places. One of them
+straightens up and with a commanding voice cries out: "Gentlemen,
+please rise. Hear ye, hear ye, all persons having business draw near
+and ye shall be heard." Enter his Honor, the Judge.
+
+
+
+
+III
+
+THE JUDGE
+
+
+With a rustle of his gown and a bow to the court-room the judge takes
+his seat on the bench. The trivial pleasures of being heralded and
+having the spectators rise when he enters have lost their charm, but
+he would feel uncomfortable without them. The gray-haired clerk hands
+him the list of the cases for the day. The anxious court attendant
+asks if he shall open a window. The judge sniffs audibly and orders
+the steam heat to be turned off. The court attendant does so and
+brings his Honor a glass of water. When the judge sits down in the
+revolving chair he is on the bench and the court is in session.
+
+The fact of the matter is the judge is a pretty decent sort of person.
+The trouble is that the surroundings are all against him. In the
+first place his whole job is one that makes him live up to a part. For
+five or six hours a day he has to sit still in a stuffy court-room on
+a leather chair under a silly canopy of wood or plush and pretend that
+he is the whole thing, that he knows it all, and that whatever he
+decides is absolutely right. Let him waiver or be uncertain in his
+decisions and woe is it to him. No one thinks much of a judge who does
+not know his business or at least does not pretend to know it.
+
+How anyone who has been long on the bench can retain any sense of
+proportion is remarkable. Whatever he says and does in court is final
+and apparently approved. If his decisions are reversed they do not
+affect him seriously; he has tried so many cases that were not
+appealed, and the greater proportion of those that have been are
+affirmed. The reversal comes a long time after and does not hurt his
+feelings. In any event, he was trying to do the best he could and
+human nature may be fallible, although, as far as he can see, the
+whole world of the little court-room where he sits has conspired to
+show him that he is divinely endowed.
+
+His position is not exactly one of bluff, but he is the central figure
+of the stage; like the actor's profession the judge's job makes him an
+egotist. Take for example the essential elements of his knowledge of
+the law. He is the _Jus Dicens_, the one saying the law, the name of
+judge being derived from the two Latin words. He is supposed to know
+the law, at least he ought to know court procedure, and the law of his
+State thereon by heart. In New York State, for example, the Code of
+Civil Procedure is five hundred thousand words long. He is bound to
+take judicial notice without being told of all the statutes of the
+State Legislature, which are being passed at the rate of six hundred a
+year.
+
+He is also supposed to know the laws of the United States passed at
+Washington, and to be thoroughly familiar with the latest decisions of
+the Supreme Courts of the United States, and those for the past 125
+years. He must understand and look as though he knew beforehand any
+decision of the courts of his own State cited, which are conveniently
+and neatly printed in 219 New York Court of Appeals Reports, 173
+volumes of the Appellate Division Reports, and 96 volumes of the
+Miscellaneous Reports, to say nothing of the opinions and decisions of
+other courts that are not printed at all. His knowledge of the law is
+a fearful and wonderful thing; he must have an oceanic mind.
+
+It is told that one of the leaders of the bar had formerly a young man
+in his office who with advancing years and reputation was elected to
+the bench. Before the first of January when he was to take his oath of
+office, the old employer and friend sent for him. When he arrived he
+was greeted as follows: "Joe, I've sent for you because I wanted to
+see you before you become a judge. I am very fond of you and I wanted
+to see you once again as you were, because after you go on the bench
+you are bound to become a stuffed shirt, for they all do."
+
+That so many escape is one of the wonders of human nature. That they
+retain their humanity is due to a disposition of Providence to temper
+the wind to the shorn lamb. The position necessarily takes away all
+initiative. In politics the judge is recognized as being a "dead one."
+After a few years on the bench only the exceptional man can fling off
+the shackles of his profession and get back into real life. He ceases
+from fighting, he is not energetic.
+
+As a good judge he must be firm but restrained. He may not be too
+emphatic. Every inducement is toward making him lazy, fat, and easy.
+Before him everyone bows and waits for him to speak. He is the
+absolute boss within the four walls of his court-room. The only
+restraining influences are the reactions from the lawyers and
+spectators who are before him. Their opinions can not be openly
+expressed; they are reserved until afterwards. If a judge really has
+any idea of the high esteem in which he is held, let him find out what
+is being said of him after the case is over, as the clients and
+lawyers are going down in the elevator, or what the rear benches have
+been whispering.
+
+He probably has a suspicion of this, but no matter how tolerant he
+desires to be, there is the temptation to show that his authority is
+supreme; that when the lawyers begin arguing a point on which he has
+formed an opinion to cut them off; when the witness is trembling on
+the stand as to whether the accident happened on a Thursday or a
+Friday, to ask her, "Don't you know that Thursday was on the 16th of
+April last year," which of course she does not. There is the
+temptation to feel that he can never be wrong; that a question may be
+reargued, but that he is not going to change his opinion.
+
+The possibility is that the judge is a mild sort of bully. But it is
+not always safe to go on the assumption that being a bully he is also
+a coward. He may be, but on a trial the odds are too much in his
+favor. If the lawyer wants to fight the judge, he has a great deal at
+stake; he may awaken so strong a prejudice that the judge knowing the
+rules of the game better than he does, may beat him on a technicality.
+On the other hand it is a mistake for the lawyer to be subservient and
+too cringing. Being a bully, the judge is apt to take advantage of his
+position. The best policy is to appeal to his human instincts as a
+man. He may be decent in spite of critics of the courts to the
+contrary notwithstanding. If he is kindly treated he will respond.
+
+In New York judges were appointed until about 1846, when there was a
+popular upheaval and the constitution was changed, and they have ever
+since been elective, with the exception of some of the minor courts.
+The advantages of the two methods is an open question. The arguments
+in favor of appointment are that it makes for an independent judiciary
+and that it secures better men for the bench, whereas the other does
+not, because the highest class lawyer will not go through the turmoil
+and supposed degradation of a political campaign. These arguments are
+not sound.
+
+The argument for the election of judges is that it keeps the bench
+more humane, modern, and in touch with the will of the people. The one
+is the aristocratic idea, the other the democratic. A court as at
+present constituted is an autocratic institution but the judges should
+be democrats. A feeling prevails that the man who has gone through a
+course of political sprouts involving the training of election
+campaigns, is more understanding of the wants of the people whom he is
+to serve, also that courts should be arranged on a business basis.
+
+An amusing aspect of an elective judge is that he is in an anomalous
+position. If he plays politics, endeavors to make friends either by
+his decisions on the bench or obeying the mandates of a superior
+political boss as to appointment of referees and receivers, he
+immediately becomes a corrupt judge. The stench of his unjust
+decisions will sooner or later come to the nostrils of the community
+and his chances of reelection are forfeited. He runs the hazard of
+charges and removal.
+
+If, on the other hand, he forgets the organization that has elected
+him either in the matter of patronage or the refusal of some desired
+court remedy, and so conducts his court that there shall be neither
+fear nor favor, he is a political ingrate and deserves neither
+reelection nor promotion. Of course these are the two extremes;
+fortunately human nature is not what the sociologists and political
+theorists would make it.
+
+The political boss is not the unscrupulous ogre that the
+muck-rakers picture. He does not order the judge to decide the
+hundred-thousand-dollar-contract case in favor of his hench man. He
+might like to have him do so but he does not ask. Neither does the
+judge lean over backwards in the other direction and imprison the
+contractor because he is a friend of the boss. The movements for the
+non-partisan election of judge show the recognition of some of these
+incongruities.
+
+The fierce bright light that plays about a throne also makes the judge
+conspicuous. If he sneezes, if he coughs, if he takes a glass of water
+he is probably feverish and cross. If he keeps still he is going to
+sleep and not paying attention. If he gets up or sits down it is noted
+as indicative of how he is going to decide the case. Every movement is
+watched. The position of a judge is not enviable. He is the concrete
+object to which the evils of the court-room attach. To the popular
+mind he is the court, the law, the method of procedure, the source of
+all the technicalities, and the delays. The beaten side will bear him
+a grudge, and the winning side think they ought to have got more.
+
+If he be lenient in interpreting the law, he may be called to account
+for inability; if he be too strict, he is accused of irritability. If
+he be too polite, he may seem to be extending favor. A justice of one
+court, wishing to be kind, once asked a young counselor whose case had
+been dismissed through a technicality to come up and sit on the bench
+with him. The young man afterward complained to his friends that the
+judge wanted to shame him and make him conspicuous.
+
+There are few judges who dare to cut short the examination of a
+witness, although the length and direction of a trial are supposed to
+be within the discretion of the judge. He is hindered by the
+technicalities of those who insist, hoping for a reversal on appeal,
+and sometimes the same technicalities are used to prevent the actual
+facts being brought out. The solution probably lies in extending the
+powers of the judges over the conduct of a trial.
+
+He has a position of interest and authority and one that commands
+respect. In England he dresses for the part in silk stockings and is
+next to the king in importance or about equal to a bishop. In Germany
+he is a little better than a Herr Pastor or a doctor, but inferior to
+a young lieutenant in the army. In France the salaries of the judges
+are pitiable. The highest, the president of the Cour de Cassation,
+gets $5000 a year and the lower judges only a few hundreds, with no
+possibility of earning anything by practicing law, but there the
+judges are persuaded to take out the balance of what they should have
+in salaries in the honor of their position.
+
+We are so shockingly frank and matter of fact, that we believe that
+the conventionality of pomp and circumstance have been too much
+regarded in courts and court procedure, that dignity is not
+accomplished by wearing a wig, knee breeches, or gowns of ermine and
+silk. It is consistent with a plain-spoken people to feel a contempt
+for state and symbols. Any attempt to return to the conventionalities
+of Europe is met by the contempt of a democracy.
+
+In rebelling at form we have been so occupied that we have not been
+awake to a change in substance that has been demanded by modern
+conditions. The courts are gradually reaching a simpler basis.
+Formerly they may have been surrounded by more pomp and magnificence,
+but the work is now being better laid out and the course of the
+proceeding is on more modern lines. Changes in practice acts will
+revolutionize trials. People smile at the dignity of their courts and
+judges. The modern spirit is for greater frankness, simplicity, and
+directness.
+
+If he is a sane and reasonably simple man the judge tries to do his
+duty according to the light that is in him. He knows some law, has
+seen a quantity of human nature and passions flowing before him. The
+court-room, his position of authority, the respect of the community,
+the human drama, the abstract and intangible demand of something above
+the actual awakens in the judge that passion for justice which is a
+quality almost divine. The man himself becomes patient, understanding,
+and humane. Nearly every man, no matter how small he may be at the
+beginning, rises to the responsibilities of his position. So it is
+with the judge.
+
+It is undecided whether the judge is entitled to more respect from the
+lawyers and laity or whether the laity is entitled to more respect
+from the judge. The judge sits indolently crumpled up in his easy
+chair; before him a leader of the bar is arguing. In an eloquent
+manner he is pleading for a young attorney who is about to be punished
+for "Contempt of court."
+
+"And so your Honor will realize that in the heat and excitement of a
+trial, in the turmoil of the legal battle, in the intensity of a
+forensic struggle, the young man may well have forgotten the respect
+and deference which is ever due from a member of the bar to the
+representative of high-minded justice."
+
+The judge seems unaffected by the appeal. The young man had been rude
+and impertinent, the fine of $250 must stand as punishment for his
+misbehavior.
+
+Suddenly the pleader with a wave of his hand and a twinkle in his eye
+says: "Look at the difference between the position of a lawyer who,
+alert with restless energy, momentarily forgets his manners in
+fighting for his client, and on the other hand the calm"--pointing to
+the judge who is still half reclining in his chair--"the calm, I
+repeat, of complete judicial repose."
+
+There is a smile through the court-room. The judge straightens up,
+sees the humor of the situation, and the fine is remitted.
+
+There is a constant play of opposing influences upon the judge. As an
+upholder of the law he becomes a formalist and a reactionary. The
+insistent demands of humanity which the statute law can never satisfy,
+tend to make him a revolutionist. The saving element for him is that
+he is only a part of a system for which he is not responsible.
+
+When the judge has had the list of cases for the day called and has
+disposed of the applications for adjournments, he turns to the clerk
+who begins to call the roll of the men who are to act an important
+part on the stage--the jury.
+
+The solution of the matter so far as the judge is concerned is to give
+him greater power. Let him be absolutely responsible for the conduct
+of a case in court. His position should not be that of an umpire who
+remains quiet until a dispute arises, but rather that of a head
+enquirer into merits, assisted by the two lawyers and the jury.
+
+
+
+
+IV
+
+THE ANXIOUS JURY
+
+
+The main characteristic of the jury is that it does not want to be in
+court. The name comes from the French word _Jure_, sworn, or the man
+who has taken an oath. There is probably no reason to suppose that the
+word is derived from the state of mind in which a juryman finds
+himself, nor does it mean the words he has expressed with reference to
+his duty: more properly it is the men who are sworn to do justice. The
+implication of the word serve is that there is some punishment or
+penalty attached to jury duty. It is not regarded as penal servitude
+by the average man, but it seems near to it. While he is serving, his
+business goes to pieces, his wife misunderstands why he does not come
+home to dinner and his whole life is disarranged. When a man has
+served on a jury he gets a discharge paper.
+
+Jury duty is one of the obligations of citizenship and its highest
+duty; at the same time it is one of its privileges. Foreigners and
+idiots cannot serve. Doctors, soldiers, journalists, clergymen, and
+others, besides those who are deaf, blind, or otherwise disabled, are
+exempted. The experience of serving on a jury may be annoying but it
+is broadening and gives an opportunity of seeing human nature in a way
+that few appreciate. To serve on a jury is to become a part of the
+judicial system of the State and for the time being to belong to the
+governing class.
+
+"All day long," says the court officer, "they do nothing but grumble
+and grumble at being kept away from their business but when they get
+chosen on a case, they realize it does not do any good so they settle
+down to do what is right." The country man may not have much to do and
+may look on jury duty rather as a diversion or vacation from farm
+work but the average town man feels the $2 a day he receives is only
+lunch money compared to the amount he is losing in his business, and
+so he hates it.
+
+The first warning of trouble that a juryman gets is when he comes home
+and finds that a policeman has been looking for him. It is to be hoped
+that he has a guiltless conscience. He inquires further and learns it
+was only a court officer summoning him to court for the trial term
+next month. His first concern is to see what can be done in a
+political way. If he belongs to the local club of the district--but
+here let the curtain be drawn. Besides he may accomplish very little,
+so many of the judges do not seem to remember their political
+obligations. Then he tries to reach the judge through a friend and
+when that fails he makes his way resignedly to court on the appointed
+day.
+
+When he comes there for the first time he smiles at the court
+attendant and tries to make friends, but the court officer who has
+been there many times before is not at all susceptible. Perhaps he
+hurries around to the judge's chambers and manages to see the judge's
+secretary, who is sympathetic over the fact that the month is December
+and the busy season of the year in the florist business and that there
+is only one assistant in the shop, but the judge is busy and will only
+see him from the bench. Finally he goes into court and waits for his
+name to be called.
+
+After the roll call, he goes timidly up to the rail and stands there
+waiting until his Honor will take notice of him. His Honor is busy
+blowing his nose or signing papers. Finally the court officer points
+him out. The judge scowls and asks him what he wants. Tremblingly he
+explains his difficulty: that his business needs him or that his wife
+is sick and that he will serve any other month if he can be let off
+now. The judge reads him a lecture on the duty of citizenship and the
+responsibility of jury duty and says he is sorry that he can not
+excuse him.
+
+Afterwards when the judge finds that there are enough jurymen in court
+for the needs of the calendar, he may privately send word to the
+juryman by a court attendant that he is excused for the term or for a
+few days until the Christmas rush is over or his wife is better.
+Judges are often humane, but if they were to excuse the juror openly
+they would find all the others in court clamoring for the same
+exemption. If the juryman merely wants to dodge the duty he probably
+does not get excused. The judge seems surprisingly intelligent and
+discriminating and able to pick the sheep from the goats. The man who
+merely wants to escape serving usually has to, and the man on whom it
+is a hardship is sometimes let off. Uniformly the jurymen feel that it
+is a necessary evil, but not so bad when they are once in court.
+
+Until a case is called for trial they sit about the court-room or walk
+in the corridors. In the meanwhile, the judge is arranging the
+calendar, and they have been watching the maneuvers of the lawyers to
+have their cases put off, or they may have seen the amusing little
+by-plays when one lawyer crosses the aisle of the court-room,
+button-holes his opponent, and whispers something to him. The other
+lawyer motions to his client and the party moves to the hall where
+there is a secret conference about a proposition of settlement.
+Something is agreed upon or they may not come to terms and decide to
+go on with the trial. If there is to be a settlement the two lawyers
+walk up to the rail and say:
+
+"Will your Honor excuse us if we interrupt and mark the case of Allen
+against Brewster settled." The judge smiles with pleasure; he does not
+mind at all being interrupted for that purpose. He is pleased to have
+one more case off the score.
+
+When the time comes for the selection of a jury they wait for their
+names to be called with the thought that the axe is about to fall. As
+they are examined they answer the questions of their occupations and
+opinions truthfully, but if for any reason they are excused, they
+leave the box with a smile at those impaneled and a sigh of relief as
+at danger escaped.
+
+Like many honors, the position of foreman of a jury is an empty honor.
+He has the first seat and he heads the procession when the jury walk
+in and out of court; he also announces the verdict, but he has no
+actual power either in the jury-room or in the court. If there is a
+vote to be taken, he has no deciding voice, but in the deliberations
+he quickly falls to the level which his attainments justify.
+
+During the trial a feeling of resentment at court procedure grows. It
+is not the judge any longer who is keeping and delaying them. The
+witnesses appear like fools it is true, but the lawyers make them act
+more foolishly than need be. Why does the judge make such absurd
+rulings? The law must be an unreasonable thing and the judge evidently
+knows a great deal about it. Why can't the witnesses tell what they
+know? The most tiresome parts are when the lawyers begin arguing
+about the testimony. One side wants the witness to tell something and
+the other side does not. The judge keeps still and lets the lawyers go
+on talking as though it were something important, perhaps he can not
+help it. The lawyers or the judge can not have much to do. The judge
+it is true is paid to listen, but the lawyers must be pretty hard up
+when they will go on talking in that way. No juryman would stay here
+wasting his time during business hours, and afterwards there are the
+newspapers, supper, and taking the family to the movies, all of which
+is far more sensible.
+
+"Say, it's like a vaudeville show to see those two go on," thinks the
+juryman. "You couldn't beat it if you put it in an act. Georgie Cohan
+or Joe Weber could make their fortunes if they only hired the lawyers
+as actors or came into court for their material."
+
+Occasionally the judge calls the lawyers up to his desk and together
+they talk over something which the jury can not hear. The jury look
+as though they did not care. If they want to talk some more--well, let
+them. Perhaps they are planning some game, and the jury will wait
+until their turn comes. In the jury-room they can show them what's
+what; that is where they know their chance is coming. Even if the
+judge is only trying to find out something about the case, that is a
+sensible thing to do. Why don't the lawyers come over and talk to the
+jury like that? In a few minutes they could ask them some questions
+that would settle the whole matter.
+
+The strange part is when a witness has said something and told how he
+or she feels about the whole case, which is exactly what the jury want
+to know, one of the lawyers jumps up and says he moves to strike that
+part all out and the judge strikes out. The lawyer having scored a
+hit, then says:
+
+"I ask your Honor to instruct the jury to disregard the testimony just
+given."
+
+"Gentlemen," says the judge, "the evidence just given has been ruled
+out by the court and is not relevant to the issue, and I must instruct
+you to disregard these words of the witness and in arriving at your
+verdict not to consider them."
+
+Of all the absurdities that happen in court, the jurymen think that is
+the worst. Does the judge or the lawyer believe for a moment that
+because they say so the jury are going to forget what the witness
+said, especially when it was the very thing they wanted to find out?
+They watch the stenographer and they notice he does not even take the
+trouble to cross it out of the notebook.
+
+Occasionally a juryman becomes particularly interested and wants to
+question something. Usually he is too self-conscious to run the risk
+of being snubbed, but sometimes he is bolder and ventures a question.
+
+"Why," asks the juryman, "didn't the defendant give back the goods if
+they were not what she wanted?" Both lawyers are on their feet. There
+is a mute appeal to the court; both sides are afraid to object to the
+question for they think the juryman may have a prejudice if he were
+stopped. The judge usually comes to the rescue and tells the juryman
+that he is sorry, but that his question is manifestly improper in
+form. The evidence should be whether the defendant did a certain thing
+or did not do it. The reason why he did it is not in point. After two
+or three attempts of this kind the juryman subsides and sits patiently
+through the trial without any suggestion. He thinks that there is a
+hopelessly complicated game being played before him and he does not
+attempt to interfere.
+
+There may be some truth in the theory of the attorney who says:
+
+"Always look out for the juryman who asks your witness questions. He
+is against you. If he absolutely believed the witness he would let it
+pass without questioning." This reasoning may be used as an argument
+either way, for if the juryman believes the witness he may feel that
+he should like to have him tell more. Or if he does not accept him as
+truthful, he thinks it will not be worth while to ask him other
+questions. An inference may be drawn as to the juror's attitude for
+and against.
+
+An inexplicable thing to the jury is when the judge takes the case
+away from them and directs a verdict or dismissal of the complaint.
+That the jury should be compelled to listen to all that mass of
+testimony and then at the end not have a chance to decide is
+unreasonable. If the plaintiff did not have a case, why did the judge
+let them go on? He should have found it out earlier instead of wasting
+all that time.
+
+After the whole case is in, it may happen that both sides move for a
+direction of the verdict and then the jury have nothing to do. The
+judge says:
+
+"Gentlemen of the Jury, I direct you to find a verdict for so-and-so."
+Before they have a chance to say whether they will or will not, the
+clerk announces a verdict for so-and-so. This is very annoying and
+discouraging, especially when the jury were going to find a verdict
+directly contrary to the way the judge decided. Technically they have
+a right to refuse to find a verdict as the judge directs, but if they
+did, only a mis-trial would result.
+
+It is an illustration of the difference between the function of a
+judge and a jury. The jury pass on the facts, the judge on the law.
+When the judge dismisses the case, he is saying that the facts may be
+so and what happened may be truly stated, but even then it does not
+make any difference. The law is that those facts do not make out a
+case. Only when the facts make out a case do the jury have any
+function. Then it is for them to find out whether the facts are as the
+plaintiff claims them to be or as the defendant. The jury are usually
+puzzled and do not understand the distinction. In certain cases the
+judge determines both the facts and the law and decides the whole
+matter. In those cases, and in what is known as equity, there are no
+jury, but a judge may always ask for a jury if he wishes one to
+determine the facts.
+
+A jury is supposed to be advantageous to the defendant in a criminal
+action and to the plaintiff in a civil action.
+
+"One judge is better than twelve," says the advocate of the non-jury
+system. "Law is a technical thing and you can not put a technical case
+plainly enough so that twelve men could thoroughly understand it."
+
+A discussion of the jury system is not in place. The jurymen have
+already been summoned and are in court and until the structure of the
+law is changed they will remain. They are ready to try any case that
+may come before them. The judge feels a sense of relief at not having
+to pass upon the facts. The law being laid down, all that remains for
+him to do is to see that the facts are fairly and plainly presented to
+the jury, that both sides conduct the case in a reasonable manner and
+that the trial be as open-minded as possible. The anxious attitude of
+mind toward the jury is that of the parties who are to be judged, the
+lawyers and their clients.
+
+The jury do not become very excited over the wrongs of one side or the
+other. They certainly do not enjoy the trial or look upon it as an
+example of a good fight although under the present system of procedure
+that is what it is supposed to be.
+
+
+
+
+V
+
+THE STRENUOUS LAWYER
+
+
+Of equal importance in the cast are the lawyers. They play the parts
+that represent action. The judge and jury are the heavy characters.
+The clients who make their entrances and exits as they take or leave
+the witness chair are of minor importance. The lawyers occupy the
+center of the stage the greater part of the time. Their clients sit
+watching, the judge and jury keep silent and listen to them.
+
+In order to make a trial or a contest there must be two sides. There
+may be three or more lawyers, but usually they divide themselves into
+two groups and take sides. The attacking party,--the plaintiff,
+complainant, or prosecutor,--naturally the more aggressive, and the
+man who is defending himself.
+
+The latter's lawyer is the one who is wary and alert. Sometimes the
+attacking lawyer having gained a position sits down and defends it.
+During the trial there is a constant change of attack, the taking of a
+redoubt, charges and countercharges, trenches captured and forsaken
+again. The intellectual and legal battle is as bitter as any physical
+one. To the understanding observer and the participant it is momentous
+and intense.
+
+While the contest is waging there is no intermission. The fight is
+always hot, keen, bitter. Quietly as the lawyer may handle himself,
+underneath his calm exterior he is ready to fight, bite, scratch,
+shoot, kill, slash, but always he must do so under the rules of the
+game, never hitting below the belt. What the battle is about is the
+issue, the result is called the verdict, or the decision, and the
+formal statement of the court as to the result the judgment.
+
+The contest is so real it soon ceases to be a play. It is too much in
+earnest and whatever humorous quality it may possess never loses the
+underlying intensity of human conflict. One noted trial lawyer says
+that he always feels the loss of a case in the pit of his stomach,
+another that he can never begin a trial without mopping his forehead
+for fear that beads of perspiration might be apparent. However
+ordinary and accustomed court trials may become to the participants,
+there will always remain the deep underlying stress of human passions.
+
+As lawyers are watched, they may appear alternately as jumping up and
+sitting down like jacks-in-the-box or those weather figures, where if
+one goes in the other comes out. Their appearance differs in the
+different courts from the higher courts where the well-groomed eminent
+leader of the bar, with thin lips and white side whiskers debates in a
+frock coat before the appellate court, questions of international
+importance, or the anxious-eyed little attorney where in one of the
+lower courts with a showy diamond ring and a handkerchief sticking
+out of his pocket in the shape of an American flag, argues, while
+chewing gum, whether his client shall pay the fourteen dollars rent or
+not.
+
+There is never any peace between them. Occasionally there is a truce
+when they come together to agree on a certain state of facts, or
+conclusions of law, but essentially they are at war; otherwise they
+would not be in court. The only reason for their being there is an
+issue to be decided.
+
+Often so eager do they appear that physical violence seemed impending.
+It is as though they were on the point of breaking into fisticuffs.
+The judge says: "Gentlemen, gentlemen." They appear like two naughty
+schoolboys who have to be controlled by their master. First one is
+restrained and rebuked, then the other is held strictly to the rules
+of the game. Like schoolboys, although they may be fighting one
+another, they appear at times to be in league against the judge. As in
+a baseball game, both sides join against the umpire. There is a
+common class feeling between the lawyers leaguing them against the
+judge. This may be explained perhaps by a rather subtle psychology.
+
+The lawyers are primarily in court to please their clients. Every
+ruling of the judge against them on even minor points of evidence, any
+adverse decision is fatal to them from the point of view of retaining
+the client for the next litigation. They watch the judge with
+lynx-like eyes. Is he going to drive the client away from them? Should
+he reprimand them or speak severely, their client would think that
+they had angered the judge and so they had lost the case. Defeat in a
+case is so important that if a lawyer loses a case he probably loses
+his client.
+
+In one of the lower city courts on the East Side, a young attorney
+came in one morning with a scar across his cheek, a scratch on his
+nose, and sticking plaster on his chin. The judge had often seen him
+before. After the case was over he called him to the bench and said
+that he was sorry he had an accident, and asked him what had happened.
+"Oh, not much," said the lawyer, "last week I simply lost a case for a
+client."
+
+The complaint of the lawyer against the judge is always that he has
+forgotten that he was a lawyer once himself. He does not realize how
+important it is that the lawyer should make a good impression on his
+client. His feeling is, if the judge cuts him off when he is arguing,
+the client will think that he is talking foolishly. The judge
+overrules his objection. The client thinks the judge does not like
+him. The judge denies his motion to strike out, he evidently does not
+look on the lawyer favorably. The lawyer's chance of display is in
+talking. If he is not allowed to go on he feels the judge is
+unreasonable in not listening to him.
+
+The nice lines to be made by the judge between consideration for the
+feeling of the lawyers and insisting that justice be fully and
+speedily accomplished, are hard to draw. On the one hand there are
+the courts where no limit is put to the digressions of attorneys and
+where they may wander on and on, apparently merely to display their
+oratory to their clients, and other courts where the undoubtedly bad
+manners of the bench to the bar are unforgivable.
+
+Control of the trial is necessary because it is a struggle in a court
+on a defined area. It is an intellectual ordeal by battle, a capping
+of intellects. It is like a game of chess in which luck is eliminated,
+the board is free, the pieces are equal, the way in which they may
+move is fixed by the rules of the game of court procedure. The element
+of chance is made not by the court or the procedure, but by the fact
+that the pawns, the castles, and the knights are not of ivory, but are
+human and mutable.
+
+The lawyers are discontented with the courts, while the judges feel
+that the deficiencies are the fault of the lawyers. The lawyers, they
+say, do not cooeperate with the judges in the administration of
+justice, and are too busy with their own game. Here enters that
+academic question of whether a lawyer's duty is first to the court and
+justice, or first to his client,--should he defend a man he knows to
+be guilty. The dispute is sophomoric. He is the advocate of his client
+first, foremost, and all the time. That is the reason for his
+existence. He is the agent for his client; his tongue, brain, and
+energy belong to his client. He is undoubtedly justified in whatever
+he does, if he keeps to the rules. Justice is best promoted by heeding
+the rules of justice to the utmost.
+
+It is to be remembered that the lawyer occupies an uncertain position.
+As an officer of the court he is sworn to promote justice; as a
+champion in the battle he is under the deep obligation of performing
+his utmost for his client. At times the conflict between his duties
+seems real. As an officer of the court he has the privilege of the
+floor. He can be heard and is admitted to the court. It is as though
+he had joined a club in which dueling or gaming is permitted. The
+obligation resting upon him is to act as a gentleman and obey the
+rules and not to cheat. If he keeps to the rules he is presumably a
+gentleman and can do what he pleases for his clients.
+
+If there is any complaint about the courts it is held to be the fault
+of the lawyers, if there are criticisms of the lawyers it is the fault
+of the courts. They are interdependent and indissoluble. If a club
+house is not suitable for its purposes, is old-fashioned, rickety, and
+dirty, it is the fault of the members. If the members do not behave
+the club house gets a bad reputation.
+
+Courts are institutions, and not persons; the lawyers are the
+individual stockholders. If by his actions in court or in the club he
+brings disgrace on himself as a lawyer or upon his club, there is very
+little to be done about it. The club membership may be more limited
+and select, but the building will not be improved except that it may
+be swept a little cleaner.
+
+The judge as the president of the club must see that the lawyers
+observe the rules, he can not rebuild the club house or materially
+change the rules. The only persons who can effect a change are the
+lawyers. As members, they are agents for their clients who are the
+public at large. Occasionally the public awakes to a realization of
+their power over both courts and lawyers, that they are their
+creatures; then happens a revolution in procedure and something is
+accomplished.
+
+The lawyer waits about the courthouse for his case to be reached. It
+may take days or even weeks before it is marked ready. He wastes his
+time. The witnesses have been subpoenaed. They have to be told to
+come again the next day. There is little money in it for the lawyer.
+Office practice pays better than court work and except for the eminent
+pleaders there is but small honor.
+
+During the trial the lawyer seems to be sparring. He takes the
+attitude of saying: "I want that point of law decided; it is such a
+nice point, it ought to be settled." As a matter of fact he only
+wants it settled in his own favor. It is not the abstract interest but
+the concrete fact in which he is interested.
+
+The lawyer is vigilant from the beginning of the trial to the end.
+After the case is marked ready he watches the jury, the other side,
+and the judge; any movement may be of importance; if it escapes his
+notice he may lose his whole case. It is not safe for him to go on the
+assumption that the other side is as honest as he is. If they should
+attempt to put in some evidence that is not proper, to offer a paper
+that is not duly authenticated, to try by some trick or device to take
+an unfair advantage, he must be ready to pounce upon the incident. If
+he is quick he may turn it to the advantage of his own side.
+
+The other lawyer among a bundle of letters offers one that is only a
+copy or is not signed. The lawyer notices it but keeps still and when
+at the proper time calls the attention of the judge and the jury to
+the fact, the plain implication is that the other side must have a
+very weak case if it needs bolstering up by such methods as this. The
+argument is that he let the paper go in without objection because he
+thought the matter trivial anyway, and he wanted the jury to see the
+underhand method of the other side.
+
+The indefinable quality of personal magnetism is of much vaunted
+importance. It is like that horrid word, charm; no one knows what it
+means and seems to have a supernatural quality. The trial lawyer does
+not need either charm or magnetism. They are both nonsense. Like
+actors or fighters if they are sufficiently trained in their parts or
+know how to use their weapons, the lawyers' personal magnetism over
+judge and jury will come of itself. The judge is a fairly hard-hearted
+person. The jury may be governed by sentiment but they are an example
+of the average man and neither are going to be caught by smile or
+mannerisms. Sound qualities will prevail.
+
+A fine-looking trial lawyer who thoroughly knew his business once had
+a hard case. His appearance and manner impressed the jury. They
+followed his every motion. The trial was long and tiresome. It was the
+days of those little iron puzzles to get two rings or anchors apart;
+occasionally he would take one out of his pocket and begin playing
+with it. The jury would follow him with their eyes to see whether he
+could do it. Whenever he thought the evidence for the other side was
+getting too interesting, out would come the little iron puzzle and the
+jury would pay more attention to its solution than to the witness on
+the stand. He won his case but that is no reason to recommend the
+playing of "Pigs in Clover" in the court-room. The reason he won the
+case was because he was the capable man and on the job.
+
+The lawyers' profession is not a creative one but the value in the
+social structure is cohesive. He brings together the investor and the
+manufacturer, he amalgamates capital and labor on a sound legal basis.
+He adjusts conditions to the laws and laws to the conditions. His is
+the most large-minded of the professions. He is theoretically the
+layer of the law. In every community the eminent lawyer is the eminent
+citizen. No one commands greater respect. But there is no doubt that
+the inefficient administration of justice is the fault, to a large
+extent, of the legal profession.
+
+The fine, kind face of the lawyer who, ripe in years and
+understanding, beams a genial smile is a living reproach to the
+detractors of his profession. Painstaking, scrupulous, broad-minded,
+and intelligent, with a twinkle of humor for the frailities of
+humanity, he looks on the pettiness of men with a wise tolerance.
+Beneath his ease of manner and cordiality of intercourse there lies a
+world of experience, of battles fought and won, of inherent force of
+character, of public honors received and gracefully borne. There are
+no limits to the admiration and love to which he is entitled.
+
+Beside the lawyer, and watching him with worried eyes, sits the
+client, who unless he is in the wrong really wants the lawyer to bring
+out the facts in the case rather than to have him exhibit his
+qualities as a fighter.
+
+
+
+
+VI
+
+THE WORRIED CLIENT
+
+
+Like the financial backer of a play, the client does not figure
+largely on the stage. If he does appear as an actor he may have a
+small speaking part, but he is not a star. He owns the show, and if it
+does not pay he loses, or if he wins he gets a proportion of the
+profits. Consequently he hires the best talent he can afford. The star
+performer is the lawyer, but as the producer the client has not only
+the choice in picking the theme, but the play is about him and his
+troubles. Great drama consists in a conflict of emotions. The emotions
+of the two opposing clients make a court drama. The acting and the
+staging is the art of the lawyer.
+
+The philology and derivation of the word client is significant. It
+does not mean the principal, but a follower. It is derived from the
+Latin word _cluere_ and the Greek _+klyein+_, meaning to hear; one who
+listens, a follower.
+
+An ordinary man has a horror of the entanglement of the law. A
+hard-headed man of business says he would rather pay a claim of $250
+or less, although he had never seen the claimant, and the suit was
+utterly unfounded, than go to court. He would rather lose the same
+amount than bring a suit involving the trouble and expense of hiring a
+lawyer, requiring witnesses to waste their time, and wasting his own
+in waiting for a trial, which might possibly result in a judgment
+against him on a perfectly just debt, either through the miscarriage
+of justice, or the chance of not collecting the judgment. The typical
+feeling is that of the stockbroker who said: "Only blackmailing suits
+go to court, for if sensible men have a dispute they know it is easier
+and cheaper to settle it outside."
+
+The client is in a darkened room. He only partially sees what is
+going on. If the whole case is thrown out of court on a question of
+law or a technicality he feels more than resentful against the judge;
+he is revengeful; he will spend every cent he has in the world
+appealing and showing that judge how wrong he is. In the first place,
+it is a disgrace.
+
+"Why," he says, "the judge just kicked us out of court. We didn't have
+a chance; the judge must have been friends with the other side. Do you
+call that justice? I'd like to get that judge outside and talk to him
+man to man. No one can get a square deal in court."
+
+The feeling of the client toward the courts and the lawyer is one of
+distrust, mingled with respect. He will say:
+
+"I would rather take a friend's word as a gentleman that he would do
+something than to have it put in the form of a forty-page contract
+drawn by the best lawyer in the country. I could rely on the word of a
+gentleman, but if any question on that contract came into court, some
+clever lawyer would find a loophole to get out of it." Yet the fact
+is that the world does require legal documents. An interesting
+speculation would be to consider what proportion of the world's
+business affairs is conducted on a basis which could be provable or
+have the authority of enforcement in a court of law. The proportion of
+the business transacted in a so-called legal manner is insignificantly
+small.
+
+The numberless transactions of the retail stores in a great city; such
+cases of proving that a pair of gloves were sold, delivered, and not
+paid for are extremely difficult to prove. The expense and trouble
+involved of subpoenaing the different departments and of breaking up
+the routine of the store, would prevent the stores becoming clients.
+The enormous transactions on the New York Stock Exchange, where a
+hundred million dollars' worth of business is reputed to be done in
+one day, is entirely on the basis of personal honesty. So far as the
+court goes, should one party to a stock sale not be willing to
+complete, there would be little possibility of enforcing it. Therefore
+the Stock Exchange makes its own rules and has its own method of
+settling disputes. The world at large is not a client in the court.
+The man who becomes a client in the sense of litigant is an exception.
+The courts would seem to be unrelated to the demands of actual
+business affairs.
+
+Times have changed since the Victorian days when a solicitor was the
+client's deferential servant, the steward and custodian of the landed
+gentleman's legal affairs. Then the lawyer had a profession which he
+carried in his head. Law reports contained a few thousand, not a
+million decisions, and there were no title insurance companies to make
+a business of determining the ownership of real estate. Yet in those
+days the legal adviser was not a very exalted person, ranking beneath
+the soldier and standing hat in hand before the gentleman of property,
+to whom he owed his living. The citizen who wished to learn whether he
+or his landlord should clear away the snow on the sidewalk, went
+gravely to a lawyer's office and paid a fee for the information. It is
+obvious that lawyers do not make their living through small fees for
+giving advice. As a matter of fact, those whose work is more
+remunerative than a street-car conductor's or a carpenter's, make
+their living through business and not in small litigation.
+
+To-day lawyers complain that their profession is slipping from them.
+But they have gained the prestige of business.
+
+"I am a business man, not a lawyer," says the elderly leader at the
+bar, and scarcely knows whether he is, on the whole, gratified or
+regretful.
+
+Their abilities are used in directing the conduct of business from a
+legal standpoint and protecting it from those who are ready to prey
+upon it. Business needs protection from other business, from accident
+cases, and libel cases. These frequently get into the courts. Citizens
+need protection from business and seek it in the aggressive form of
+suits for damages. Big business looks on the courts as instruments of
+blackmail, and the small citizen feels that the courts are inadequate
+to protect his rights. It makes a deal of difference which side they
+are on. But in any case the present-day successful lawyer is primarily
+a business man.
+
+A corporation is a legal creation; a lawyer is its mother and nurse.
+The stockholders having the curious relation of being partners, one
+not liable for its debts--if its legal affairs are properly handled.
+And so the company retains a lawyer at a yearly salary to give them
+advice and that legal protection. Prominent lawyers are taken in as
+partners of the big banking firms. The large industrial companies have
+the highest priced lawyers exclusively attending to their affairs.
+Accident Insurance Companies have enormous legal plants as efficiently
+organized as factories for handling damage suits and against whom is
+opposed the inexperienced lawyer of the individual citizen.
+
+Furthermore, the corporation, though composed, in reality, of
+individuals, is less personal than any one of its members. It is a
+client without keen emotions, without too distracting hopes, fears, or
+suspicions. Law is an exacting science, arduous and complex. The
+lawyer, to do his best, should work quietly, disturbed as little as
+possible by the human interests at stake. If then the lawyer is
+correct in preferring the soulless corporate client, it must be that
+the ordinary individual is either too poor, or too human. Naturally,
+the corporations are not only the most satisfactory, but the most
+desirable clients.
+
+The client, although he is the originator of the drama is in reality
+only a listener. The client in court has so little to say and the
+lawyers have so much, that it seems unexplainable. The reason is that
+the lawyers are the fighters, the champions, the knights in the
+tournament. A legal battle is only enacted because the lawyers are
+expert fighters. The client having hired them, has little to do but
+watch. When men first went to law they had no champions; they fought
+and took what they could, but as civilization advanced men became too
+busy to engage in legal or actual battles and there grew up a
+specialized class of fighting men. The lawyers are the hired
+mercenaries of the commercial structure; and the clients are the
+ordinary business men. True, some of the lawyers are free lancers, but
+the majority have the sentiments and standards of their class. There
+is a natural class antagonism between the client and the lawyer. The
+client is afraid and mistrusts the lawyer; and the lawyer feels that
+he must act for an unintelligent client who is ignorant and inexpert.
+So long as the courts continue to exist on their present plan the
+difference between client and lawyer will be marked.
+
+An example of a return to formalism and a reactionary development has
+been the change in what is known as the Poor Man's Court of New York
+City. It was originally planned as a court where the client or man
+unlearned in the law could come in to sue in a simple way. They were
+simple justice courts. The limit for which he could sue was $100, then
+$250, then $500, now $1000. Formerly the judges need not be lawyers. A
+trial was an informal affair. The judge would line up both the parties
+at the rail. One side would tell their story, the other side would
+interrupt and finally get a chance to tell theirs. The judge would
+figuratively pat them on the head, decide the case, and tell them to
+go home and be good.
+
+The New York Legislature recently passed a law making the court a
+court of record, and making all the provisions of the Code of Civil
+Procedure applicable. The code with its half million words is
+therefore a part of the procedure. So that the client now before he
+goes into court without a lawyer ought to familiarize himself with the
+code. Formerly these courts may not have been dignified. Pandemonium
+would break loose and the litigants begin screaming at and abusing
+each other. Often the judge was obliged to apply a somewhat arbitrary
+and paternal rule. Now the courts are more dignified and formal, but
+the clients are disappearing from view. They are in fact afraid to
+come into court without a lawyer.
+
+While the dignity and efficiency of the court have been increased, it
+has almost ceased to be a court for the poor man; indeed the procedure
+is so technical that, although possible, it is rather unusual for a
+man to come without a lawyer. Of course, the attorneys who make their
+living by appearing in small suits where the fee is often a contingent
+part of the small amount recovered, or a fixed charge of $5 or less
+for trying a case, do not present examples of the best legal ability.
+
+The point of view of the client is that he is loath to spend the money
+to hire a lawyer for defense. One litigant stated in court, when asked
+if he had not admitted the debt: "Well," he said, "I just went around
+to see the plaintiff to find out if I could not save a few dollars
+instead of hiring a lawyer." It is an open question which brand is
+the best for the client, the rough and ready justice or the formal
+and orderly kind.
+
+While the jury are being examined and during the opening of the
+counsel, the client sits quietly, but a trifle self-consciously, at
+the counsels' table. The talk is about him and frequent references are
+made to him and what he has been doing. He tries to look as though he
+did not care and was accustomed to the surroundings, and when the
+taking of testimony and the wrangles over objections and motions
+begin, he falls quietly into the background.
+
+If it is a criminal action he is not on the stand during the People's
+case. When his side is presented his lawyer does the best he can to
+keep him from the stand, whether he be innocent or guilty. The
+well-known expression is that the defendant hangs himself by taking
+the stand. In civil trials the client may be a corporation or the
+owner of the injured automobile or wagon, but not a witness to the
+accident. He sits silent by his lawyer if he is wise, realizing that
+his lawyer can fight better without being annoyed. If he is nervous,
+he keeps plucking at his sleeve and whispering advice. It is difficult
+for him to restrain himself. There have been months of preparation.
+The drama is being produced; to him it is vital. He knows more about
+the case than the lawyer. He wants to advise, suggest, and instruct.
+Why doesn't the lawyer ask the witness that question about what he
+told Smith or what he told his wife?
+
+The client might be surprised if he knew what the lawyer was thinking
+of him. If asked, the lawyer would moisten his lips, draw a long
+breath, and then pause, not for lack of thoughts however. The best
+client in court for the lawyer is the silent client. One of the
+greatest calamities from the lawyer's point of view is when the client
+is on the witness stand and begins to get confidential with the judge
+and to tell him exactly how he feels about the whole matter.
+
+"Why," said a lawyer, "I had a perfect case and then the judge asked
+a question and spoiled the whole thing. I think it was outrageous, the
+judge had no right to interfere."
+
+The attorney's feeling toward his client is contained in the wish that
+he wasn't there. The legal aspect of the case, the real point at
+issue, is probably something very different to what the client has in
+mind. The lawyer has an uneasy feeling that, in the client's eyes, he
+will not do the case justice.
+
+"How outrageous," thinks the defendant, "that I should be sued when
+I've been over-generous for years. And the jury ought to know exactly
+what these people are who said they'd call off the suit if I'd pay
+them a hundred dollars." The lawyer is aware of these views, because
+he has been told them more than once; he also knows that he cannot try
+the case in that way.
+
+The counteraction of emotions and feelings between the lawyer and the
+client, the judge and the jury, the undercurrents that are constantly
+moving from one to another, make up the drama of the court. The
+characters are laid, the theme is selected, the actors are chosen, and
+it remains for the play to be prepared.
+
+
+
+
+VII
+
+PROGRAMS AND PLEADINGS
+
+
+Pleadings are the programs of the performance. They are printed
+beforehand and everybody gets a copy. Preparation consists in the
+rehearsal and the carpentry of setting the scene. Any lawyer knows how
+important the pleadings are, but nobody else does. The judge does not
+pay any more attention to them than he has to. Juries hardly ever see
+them; if they did, they could not understand them. The witnesses never
+hear of them, the clients have sworn they have read them and have
+sworn that they are true. Yet not one client in a thousand could give
+an explanation of them other than, "My lawyer told me to sign it, so I
+did."
+
+Whenever anyone gets anxious to understand a pleading, there are so
+many volumes about the subject and so many bookcases of decisions they
+would furnish a house. All this may appear flippant, but the subject
+is so absurd, abstruse, and abnormal to a man of business, that it is
+almost impossible to make it understandable. A partial list of
+authorities on the subject sounds like a chapter from _Alice in
+Wonderland_: Pepper on Pleading; Perry on Pleading; Pollock on
+Pleading; Pound on Pleading; Puterbaugh on Pleading; Phillips on
+Pleading; Pomeroy on Pleading. The number of court decisions in which
+this branch of the proceeding has been reverently and gravely dealt
+with reads like a metaphysical discussion in the dark ages. The names
+formerly used were superb. Complaint, demurrer, confession and
+avoidance, traverse, replication, dilatory pleas, peremptory pleas,
+rejoinder, rebutter, and sur-rebutter.
+
+On the other hand the clear, concise technical statement of a case is
+not a matter to be laughed at; no clear thinking is possible without
+it. No plain understanding of what the drama is about, nor what the
+issues of the battle are, can be grasped. Good lawyers are good
+thinkers and usually plain talkers. The present-day revolt against the
+confused pleadings may go to the opposite extreme and abolish them
+all, leaving the case to be presented as formless and loose. The vexed
+question of the proper form of a pleading may delay justice until it
+is determined on appeal from the City Court to the Supreme Court, then
+to the Appellate Division, then to the Court of Appeals. In the
+meanwhile the clients may die, the money in suit may be lost, while
+the audience is waiting merely for the programs to be printed.
+
+In Perry on _Common Law Pleading_, reprinted in 1897, chapter thirteen
+is devoted to rules which tend to prevent obscurity and confusion in
+pleading.
+
+  RULE    I. Pleadings must not be insensible or repugnant.
+  RULE   II. Pleadings must not be ambiguous or doubtful.
+  RULE  III. Pleadings must not be argumentative.
+  RULE   IV. Pleadings must not be hypothetical or in the alternative.
+  RULE    V. Pleadings must not be by way of recital, but must be
+             positive.
+  RULE   VI. Things are to be pleaded according to their legal effect.
+  RULE  VII. Pleadings should observe the known forms of expression as
+             contained in approved precedents.
+  RULE VIII. Pleadings should have their proper formal commencements
+             and conclusions.
+  RULE   IX. A pleading which is bad in part is bad altogether.
+
+These are pleasant rules for a layman to understand, and any time he
+has a day off or a holiday he should study them.
+
+"Shocking," cries the old-fashioned reactionary lawyer, "What! Do away
+with pleadings, you might as well do away with the whole case.
+Pleadings are like the rails for a train. No one on the train sees
+them, but take away the rails and the train would not go very far.
+Pleadings are the groundwork of the trial."
+
+He grows more and more indignant.
+
+"The trouble with the modern courts is that they do not know what they
+are about. If this business of loosening the forms of pleadings had
+not taken place, lawyers would be better prepared when they came into
+court and there would not be this floundering about. The good old
+common law pleadings were the thing. It was a great mistake when they
+were abandoned. Then everyone knew where they were. If there was a
+mistake in the pleading then the whole case was thrown out of court.
+That was as it should be. Men had to be good and careful lawyers in
+those days. The slipshod methods of the present time are abominable."
+
+"You seem to be a little hard," says the modern lawyer. "Justice ought
+not to depend on forms."
+
+"You can never have justice without formalizing and shaping the
+dispute," says the lawyer.
+
+"Quite true," says the modern, "but there has been too much attention
+paid to the form of justice. Pleadings are the mere mechanics like
+printing the program or laying the rail."
+
+However, this is all a question that does not come up in the
+court-room at a trial. Once or twice some reference is made to the
+pleadings. Perhaps there is some such dispute as this. The defendant
+attempts to swear that he "paid for the goods then and there." The
+other lawyer jumps up and says, "I object, your Honor. In his answer
+he does not plead payment. He only pleads a general denial." The judge
+puts on his spectacles. The lawyers gather, business stops while
+everyone looks at the pleadings.
+
+Or again the plaintiff tries to show that when he was thrown from the
+wagon he bruised his right elbow. The counsel objects there is nothing
+about injuries to his right elbow in the Bill of Particulars,
+therefore he can not prove it. The Bill of Particulars says that he
+hurt his hand, scratched the forearm, and injured the right shoulder,
+but says nothing about the elbow. Grave consultation by the learned
+lawyers and the judge ensues. The defendant's lawyer is right, there
+is nothing in the pleadings about the elbow.
+
+The case can not go on until that important question is settled. There
+is argument on both sides. The client looks anxious. The jury sit and
+wonder what that phrase of "the delay of the law" may mean. Finally a
+bright idea occurs to the lawyer.
+
+"I move to amend, your Honor, so as to include the elbow." The other
+side looks shocked and disgusted. "What, move to amend in such a
+casual way as that. The pleading is a serious thing. It has been sworn
+to, you may not amend a sworn statement in that offhand way." The
+judge says that he will allow the amendment but if the other side is
+surprised he will grant an adjournment of the trial to another day.
+The other side says, "Pardon me a moment until I consult with my
+client." The judge smiles. The lawyer goes over to his client and the
+client says, "For goodness' sake don't adjourn. I've broken up my
+business for a week to come here now; what's all this fuss about
+pleadings; let's get on with the case." The lawyer returns to the bar.
+"We have decided to proceed."
+
+"Amendment allowed," says the judge. The witness now tells about
+hurting his elbow.
+
+The preparation of a case goes on behind the scenes and before the
+drama begins. The attempts to rehearse are piece-meal. First one
+witness is seen, then another, their stories are told, their
+statements are taken, and they are drilled in their parts. They are
+told as to what facts they must testify. In one large company that has
+a quantity of damage suits, there is said to be a school for witnesses
+where there are dress rehearsals and they are taught how to behave in
+court.
+
+The greatest farce that occurs in the court-room is the part of
+preparation that is involved in getting a case on for trial. There
+being no limit to the time to examine witnesses, to hear arguments, to
+listen to objections, it is said to be impossible to tell how long a
+case is going to take. Consequently the calendar having been called,
+the cases following are answered ready, by office-boys with no
+expectation of their being immediately reached.
+
+The grave and reverend judge looks over his desk and calls the case of
+Bowring _vs._ Bowring. "Ready for the plaintiff," answers a
+rosy-cheeked boy. "Ready for the defendant," answers another. They
+look rather young to be trying a case. It is marked ready and the
+office-boys sit about the court and telephone to the lawyers when they
+think there is a chance of being nearly reached. This often takes
+several days. In the meanwhile the cases ahead of the Bowring case
+have been dragging out their slow and weary performance on the court
+stage. Matters of fact that should have taken five minutes to bring
+out by the present usual laborious system of proof, have taken two
+hours. Argument of counsel on abstruse questions of law have worn and
+confused the jury and the clients, who have become exhausted and
+impatient.
+
+The clients and witnesses may have been sitting, trying to understand
+and becoming more and more mystified.
+
+The dealings of open-handed Justice ought to be plain, prompt, and
+understandable; instead to the spectator she seems a mysterious jade
+with no understanding of everyday life. She keeps them waiting there
+without reason. If the case is marked ready it ought to be ready. The
+business man feels that Justice is extremely tardy in keeping her
+appointments.
+
+His natural reverence for abstract Justice prevents him formulating
+these thoughts, but he continues to wonder. Not understanding the
+cause he becomes dissatisfied and his experience in court leaves a
+profound contempt for the system of jurisprudence. He thinks that if
+any man conducted his own business on the method and plans on which
+the courts are being run he would soon be bankrupt.
+
+"Why," he says, "does not the court get in an efficiency expert on
+this calendar evil and have it arranged on a business basis?"
+
+During the days the case has been on the calendar the lawyer has had
+to hold himself in readiness to try the case. The managing clerk has
+been sending out for his witnesses. They have been served with
+subpoenas and paid their fees to come to court on the day the case
+was first marked ready. They arrive and are told to come again the
+next day. They also have a respect for the court and are glad to come
+to do their duty and tell the truth. The truth is mighty and will
+prevail; but in court she can only speak through witnesses. Unless the
+witness be treated with consideration it would seem that she will not
+speak very willingly.
+
+In place of having them return and return again, some system soon will
+be devised of giving them timely notice when the case is to be
+reached. Exhausting the patience of the men who are the props and
+mainstays of truth does not seem reasonable, and after a few visits to
+court they are not anxious to come again. If possible they will escape
+the process server.
+
+A man who has witnessed an accident to a woman by a street car, in
+spite of his humanitarian instincts will run around the corner for
+fear of being called as a witness. The man who hears at night the call
+of "Police! Police!" in the street, jumps out of bed and begins to put
+on his clothes, but thinks better of it for the same reason. If a man
+is in a taxicab that is run into by an express wagon, and the
+resulting suit is brought by the taxicab company for $110 damages, he
+may have to attend court five separate days as a witness and the case
+may not be called. He has to leave the State to avoid being annoyed by
+the subpoena server, who dogs him at his club and at his home. The
+witnesses have lost their time and their patience.
+
+Each lawyer knows this and a petty game of playing for delays and
+adjournments sometimes goes on. Suppose there is a good claim which
+nevertheless the defendant denies, knowing how lengthy and wearisome
+is the game of reaching a case, he often succeeds for years in
+preventing its collection. The game is simply to tire out the
+opponents, clients, and witnesses. A clever and unscrupulous lawyer
+can throw so many obstacles in the way of a plaintiff that, unless he
+have a strongly developed streak of obstinacy, he will give up in
+disgust or be glad to compromise.
+
+Unless both sides are anxious to be reached it is practically certain
+a case will be adjourned two or three times. A sworn affidavit is
+presented with the doctor's certificate that the client or witness is
+sick, or the sworn statement that a witness can not be found, or that
+the lawyer is engaged in the trial of another case. The excuse may be
+valid and the reasons may be sound, but the adjournment of the day for
+trial occurs again and again. This is one of the causes for the
+complaint as to the law's delay. Naturally calendars have to be made
+and called. Cases have to be tried and others have to be reached in
+order, but at least there should be sufficient and intelligent
+planning of the order.
+
+It seems rather a weak answer to say that no one can tell how much
+time will be occupied in the trial of a case. If any systematic or
+scientific method of regulating the calendar were devised, one of the
+evils would be avoided.
+
+The very call of the calendar in some courts occupies to an
+unreasonable extent the time of the judge who might as readily be
+engaged in the real work of the court. The aggregate value of the time
+of the judge, the lawyers, the witnesses, and the jurymen who have all
+been sitting about waiting, for the call of the calendar is, for one
+hour's delay a large sum. The waste might be saved by an intelligent
+bureau for the administration of court business which would have
+absolute control over all calendar practice.
+
+That the judge should delay a whole court-room full of people by being
+late in opening court should not only be a matter of apology, but is
+reprehensible to the extent of being multiplied by the number of
+people he has kept waiting. On the other hand, the usual course of
+proceeding being apparently with the object of dragging out the
+business of the court, makes the tardiness of the judge seem only an
+incident.
+
+Fortunately there are few attorneys who make appearances in court
+merely for the sake of adding another item on their bill to the
+client, and the real delay in reaching a case is due more to the
+confusion of administrative methods; until some more practical system
+is devised it will continue. Then witnesses and clients will not be
+loath to go to court.
+
+The weary work is finished, all the tiresome facts have been gathered,
+and the rehearsals have been had. The play is written, the parts are
+cast. The disappointments and delays have been forgotten, the months
+of preparation have passed. At last the bell for the performance rings
+and the case is finally to be tried.
+
+
+
+
+VIII
+
+PICKING THE JURY
+
+
+The clerk calls the case again for trial, not this time to inquire
+whether both sides are ready but to announce that it is about to
+begin. The lawyers, their assistants on both sides and their clients
+move forward to within the rail. There is a certain amount of
+commotion as they arrange their papers, their portfolios, law books,
+hats, and coats, and take their places at the counsellors' table
+opposite the jury-box. In the dignified courts in this country this
+rather uncomfortable disposition of overcoats and hats is arranged in
+an adjacent room. The opposing parties in the battle to be enacted are
+now facing each other. Matters become at once more serious and
+formal. What was once avoidable is now inevitable.
+
+The stage has still in a measure to be set. Twelve important actors
+are to be selected. The jury have not yet been chosen. The jury for
+the sake of comparison take the part of a Greek Chorus, a silent one
+it is true, until the final word is to be said. They nevertheless are
+as important and essential a part of the drama as the Chorus, without
+which in the background no tragedy or comedy was complete.
+
+No curtain divides the theater and the arrangement of the stage goes
+on before the eyes of the spectators. The choice of the jury
+constitutes an interesting part of the performance. In this
+preliminary play the lawyers having important parts, their manner,
+bearing, tones of voice, their courtesy or discourtesy, repose or
+nervousness, are watched and unconsciously noted by the jurors. As the
+jury-box gradually fills, even the slightest idiosyncracy may have
+some effect on the outcome of the case.
+
+Trial lawyers are careful of their actions even before the case is
+called to trial. It may be that among the spectators who have been
+sitting beside the lawyers in the back of the room, waiting for the
+case to be called, are those who may afterwards be called as jurors.
+Any affectation of manner or pomposity is quickly detected.
+
+Experienced lawyers immediately they are observed by their tribunal,
+fall into the parts they are to play during the trial. One lawyer may
+be jovial and radiate a cheerful confidence. Another has a superior,
+detached, and academic air which promises a sarcastic cross-examination.
+Yet another takes on a blustering, brow-beating, intimidating manner, a
+kind of overmastering virility. Each kind has its own particular
+advantages, according to the nature of the parts to be played. The most
+efficient is the manner of the lawyer who is direct, business-like, and
+consistent with his own personality.
+
+As on the modern stage, there is a return to simplicity of acting.
+Naturalness and a constant regard for actuality is the only safe
+rule. Simplicity and naturalness, even if studiously affected, usually
+prove convincing. The aim is toward consistency and a non-elaborate
+manner.
+
+Above all the lawyer remembers that the jury admire the good fighter,
+and it is with a certain obvious subtlety that one successful advocate
+in New York lets his assistant carry his coat, books, and papers, but
+he himself always carries his hat--a derby, by the way, for a high hat
+would be over important. The great man knows that the jurors are aware
+of the importance of the occasion and that their eyes will follow his
+every movement. As he walks up to the counsel table and deposits his
+derby it may well become a gage of battle.
+
+The clerk at the side of the judge's desk begins turning a large
+hollow wooden wheel; within it are cards on each of which is written
+the name of a juror who has been served by the sheriff to attend on
+the panel for the trial term of the court. The number summoned
+naturally is larger than the twelve needed for any one case. Often
+those who have to attend at a term of court sit about with nothing to
+do until they are actually drawn on a case, although they receive
+their fees for attendance. There is the story of the ignorant workman
+who was serving his first time on a panel.
+
+"Why," he said, "I was sitting around all day worryin' about my lost
+working day. If I'd known I was getting two dollars for doing nothing
+I might have been enjoying myself."
+
+The clerk puts his hand into the wooden wheel after the names have
+been well mixed and draws out one card after another, calling the
+names aloud until twelve jurors have been called to the box.
+
+To the entirely new spectator there is a certain mystification about
+this drawing of the jury from the wooden drum with the handle for
+turning. To the initiated it may seem rather humorous, like the
+shuffling of the cards of justice, the drawing from a hat, or the
+turning of a roulette wheel. It is, however, significant of one of the
+great principles of Anglo-Saxon law, and that is a trial by a court of
+average men selected from among the ordinary citizens and drawn on the
+particular case by chance.
+
+As each juror's name is called he comes forward and his appearance is
+not lost by counsel. He takes his seat in the box, the juror being
+first called is known as Juror No. 1, and by this chance, if he remain
+in the box, he ordinarily becomes the foreman of the jury. In cases of
+special juries, as of the Grand Jury, the foreman is chosen by
+selection. The successive jurors are respectively numbered according
+to their seats beginning from right to left facing them. Here it may
+be noted that some lawyers in addressing questions to the individual
+jurors are careful to remember to call them by name, realizing that no
+one likes to be known by a number. Instead of referring to him as
+Juror No. 7 or No. 9, he addresses him as Mr. Sullivan or Mr.
+Schmittberger.
+
+The twelve men being in the box the counsellors begin to examine them
+as to their qualifications. On a small board bound lengthwise by
+rubber bands, or stuck in grooves are the cards drawn from the wheel
+and arranged according to the number of the seats, and containing the
+names, addresses, and occupations of the gentlemen seated in the box.
+There are two means of removing a juryman. One is by challenge for
+cause, _i.e._, that he is shown to be unfit or prejudiced, and the
+other is what is known as a peremptory challenge which is practically
+the same as saying one side or the other does not like the man's
+looks. There are connotations about the word challenge which are
+essentially dramatic. It implies a battle, a duel, a tournament.
+
+It is difficult to ascertain exactly what principles govern the
+successful examination and selection of a jury. In Massachusetts and
+in certain important cases in New York, the whole panel of jurors
+summoned for the term of court have been investigated by detectives
+in order that the lawyer might have information about who was to be
+rejected or accepted as a juror to decide the case. The propriety of
+doing this may be questioned and the ordinary case could not bear such
+an expense.
+
+Nevertheless there is a possibly sound reason for obtaining such
+information. Given a man's condition in life, his habits, his
+occupation, his church, his associations, his politics, and given on
+the other hand a certain state of facts, it is nearly ascertainable
+how he is going to decide those facts. If a man has always been a rent
+payer and has probably had continued trouble with his landlord about
+repairs and a feeling of resentment at the regular recurrence of rent
+day, is it not natural that he is going to be somewhat prejudiced
+against a landlord in a dispute between landlord and tenant? or on the
+other hand can a man who is one of the unfortunate owners of real
+estate, and who having paid taxes, interest, insurance, repairs for
+removal of tenement house violations, and with frequent vacancies,
+really be absolutely just? If a juryman is a Jew, a Catholic, or a
+Baptist, there will probably be an innate sympathy for his
+co-religionist. The law does not recognize this unless the juryman is
+honest enough to confess a prejudice. The soundness of the Anglo-Saxon
+jury system is based on the theory that there is not one juryman but
+that there are twelve and that among twelve there will be an average
+between the landlord and the rent payer, between the Baptist and the
+Catholic.
+
+The counsel ordinarily selects the jury with observation and common
+sense as his sole guide. The customary question asked jurymen,
+whether, given such and such a state of facts, "Do you think you could
+render a fair and impartial verdict?" is manifestly absurd to the
+juryman. Every man believes himself to be perfectly honest and just.
+It takes a strong character to say, "I couldn't be fair." As a matter
+of fact such a man ought to be kept on the jury rather than let go. As
+a juryman once said to a lawyer after the case: "Why did you excuse
+me when I said I knew the other lawyer? You wasted your challenge; he
+wouldn't have let me stay. I knew him too well."
+
+The extent to which the examination of the fitness of jurors may go is
+in the discretion of the court. The two extremes are represented by
+the methods in the English courts where the judge exercises close
+supervision over every question in the selection of the jury in what
+would be considered in America an arbitrary and unjustifiable manner,
+and the extreme liberality at criminal trials in this country. The
+difference in time is often between that of a few minutes and a few
+weeks.
+
+Naturally the challenge for cause may or may not be allowed by the
+judge--the form being, "Your Honor, I ask you to excuse Mr.
+Smith,"--because the lawyers are more careful in attempting them; for
+if they are not allowed the juror challenged may be small-minded
+enough to retain a grudge against the counsel. The sure challenges
+are the peremptory ones without any cause stated or reason given. The
+number of peremptory challenges for each side is usually six. As soon
+as a juror is challenged he steps out of the box and the clerk draws a
+new name from the wheel.
+
+It is very much as if a player were dealt a hand of twelve cards, and
+under the rules of the game each side can discard and draw six times
+from the pack six single cards to improve his holding. The hand,
+however, is not only his but his opponent's, who may likewise discard
+and draw six cards when the first player is satisfied. When the second
+player is through the first may again discard any of the new cards the
+second has substituted, provided, of course, that six drawings have
+not been exhausted. This game of chance is always played with an eye
+to creating a favorable impression on the jury and may be politely
+finessed to the extreme.
+
+"Mr. Merriweather, do you know the defendant in this case, Mr. Jacobs,
+or his attorney, Mr. Jenkins, or his assistant, Mr.--er--the young
+gentleman on his left?" is the usual form, delivered with the utmost
+urbanity. It means very little, but perhaps helps the lawyer to
+identify an antagonistic juryman and to obtain their answers, which
+are almost uniformly in the negative. It is obviously desirable that
+the juryman, as a judge, should not be a friend of the opposite side.
+From the manner of the man in the box, as he answers, may possibly be
+inferred his general disposition, and all further questions have this
+purpose in view. So the attorney for the plaintiff proceeds throughout
+the twelve before him, and he may say at any time, "Your Honor, I
+excuse juror number so and so."
+
+Usually he examines the whole twelve before "excusing" any of them,
+and when doing so many lawyers turn from the box to the judge as they
+say, "I will excuse numbers four, five, and eleven." Frequently those
+remaining do not realize why their brethren have been dismissed. A
+slight bewilderment may pass across the faces of all, as a man here
+and there, under the beckoning finger of the clerk, rises to give up
+his seat.
+
+Opinion differs as to the extent to which challenges should be
+exercised. Some trial lawyers are chary in using them, being anxious
+to appear frank, trusting and willing to accept the judgment of any
+decent citizen. Others are meticulously insistent and exhaust all
+their challenges. The first attitude is the one of saying:
+
+"I have such a fine case, so honest and just, that it is impossible
+that any fair-minded man should decade against me. Therefore, I shall
+not insist on these minor points of interest or prejudice. You are all
+open-minded. I will leave it to anyone." The second attitude was
+explained by one lawyer who always put his hand to his chin, looked
+deeply and inquiringly at the jury, and said in an important voice:
+
+"I challenge jurors numbers 6, 8, 9, and 11, or, 4, 5, and 12." When
+privately asked on what theory he proceeded in his earnest selection
+which seemed to imply so wonderful an insight, confessed to no theory
+at all except the plainly human one that he believed in using up all
+his challenges simply because it made the other jurors, who remained
+in the box, feel better and more selected. But the main purpose of
+selection is to secure a fair and intelligent jury.
+
+Not infrequently one side or the other really wishes to get rid of the
+best men and willing to take the risk that this will not be apparent.
+In a real estate case, counsel for the plaintiff not having a strong
+case succeeded in eliminating every man who had ever owned or who had
+ever had the slightest experience in houses or property. It was a bold
+confession that no one who understood the case would decide for him.
+In railway accident cases, the plaintiff, who asks damages against the
+company, will often excuse so far as he can, every juror who appears
+well-to-do or a man of property.
+
+A prominent New York lawyer, when a young man, had defended a case
+brought against a corporation. The plaintiff and his attorneys were
+Jews, and the jury-box when first filled was seven-twelfths Hebraic.
+Counsel for the plaintiff immediately excused the five Gentiles and
+when the corporation's lawyer stood up, not a man in the jury-box was
+of his own race. He accepted them. The trial went on, and it appeared
+that the plaintiff's claim was very weak indeed. At last counsel for
+the defendant had to sum up and he concluded in this way:
+
+"Gentlemen of the Jury: The plaintiff hopes to win this case not on
+the law, nor on his evidence, nor on any consideration of justice. He
+hopes to succeed because of the simple fact that he is a Jew, his
+lawyer is a Jew, and every one of you men are Jews." With an
+expression of faith in the sense of justice inherent in the Jewish
+race and of confidence in the verdict, the attorney for the defendant
+sat down. The jury decided in his favor.
+
+Such boldness, when successful, is often rewarded, but it is of
+course inherently dangerous.
+
+Skilful counsel will succeed in ingratiating themselves from the very
+beginning, but they will endeavor to do so only with the jury as a
+whole. Nothing is more unfortunate than to bestow attention upon a
+particular juryman: that is to flirt with a juror. If he has not yet
+been sworn in with the rest and the opponent sees it, he will
+certainly get rid of him. If he remained, he would very probably be
+regarded with suspicion by his chosen associates. Should the counsel
+think that one man in the box is favorably disposed toward him, he
+wisely leaves him alone and hoping that the other side will not notice
+it, devotes himself the more earnestly to the others.
+
+The jury is at last selected. The challenges have been exhausted. Both
+lawyers look as though they were pleased. The judge is informed that
+the jury is satisfactory, which is, of course, an euphemistic term. No
+jury is ever entirely satisfactory to both sides, but it is a polite
+way of saying it is the best they can get under the circumstances. The
+judge stops trying to balance his check book and looks up at the jury.
+The attendant motions them to their feet. They hold up their hands.
+The judge also rises.
+
+"Gentlemen," he says, "Do you each and all of you solemnly swear to
+well and truly try the case of John Smith against Thomas Gregory and a
+just verdict render according to the evidence? So help you God." They
+do not answer, but they sit down.
+
+
+
+
+IX
+
+OPENING THE CASE
+
+
+The jury is chosen, sworn, and sitting in the jury-box. The judge
+begins unfolding the papers of the case so that he may read the
+pleadings. The actual trial of issues is about to begin. The court
+attendant has taken the jurymen's hats and coats, another attendant
+has shown spectators to their seats and politely as possible
+suppressed the young law clerk who does not see why he could not go up
+to the judge and ask him what became of the case of Jones against
+Allen that was on the calendar last Thursday and should have been on
+to-day, or ask if "His Honor decided that motion in the case of Meyer
+against Cohen." The doors of the court-room are closed. The
+attendants go about looking for whisperers and saying, "Cease all
+conversation." The lady client is interrupted in telling her lawyer
+that she thinks the judge has a kind face, but that she does not like
+the looks of the man in uniform standing next to him, or vice versa.
+Gradually the court-room quiets and a spirit of expectancy prevails.
+
+But the actual taking of evidence and the hearing of testimony is not
+yet. Now comes what is known as the opening. So in the tournament, the
+armored knights entered with a blast of trumpets, their names and
+titles having been called, and it was customary for them to ride once
+or twice around the lists to let the judges see their armor, their
+weapons, their mounts, their trappings and accoutrements, or they
+might even try a tilt or two at one another. The introductory speech
+of counsel is somewhat in the nature of a parade or a preliminary
+skirmish. It may also be compared to the prologue spoken before the
+beginning of a drama. The speech with the vivid brevity, so common in
+legal terminology, is called the opening.
+
+The object is to show to the judge and jury what the drama is about.
+The secondary object is to arouse interest. Immediately after the
+opening comes the evidence, which is usually bald, fragmentary, and
+disconnected. It might be impossible for the jury to understand the
+relation of one bit of testimony to another. Take a simple case such
+as a suit for the failure to pay a bill at a dry-goods store. One
+witness testifies to the sale, another to the packing of the goods,
+another to the delivery; a receipt is introduced in evidence. Each one
+would not tell a connected story. The opening outlines the facts and
+makes the evidence understandable. It also has the function of an
+appetizer. This may seem a trifle unnecessary. But let us take an
+illustration. A whole case may depend upon a deed. If the paper itself
+were put in and read to the jury without explanation they would be
+bored. One witness is to tell this part of the story, another that,
+and the missing link of the chain may be supplied by the deed. The
+jury are not to be mystified before their interest is aroused. Are not
+the lives, property, or reputations of particular men at stake? The
+ordinary man and even more the average juryman has far too strong a
+sense of responsibility to be bored if truly he can understand what it
+is all about. The function of the opening is to tell him.
+
+As the counsel begins opening every juryman leans forward and watches
+him intently. They feel their responsibility as officers of justice
+and there have been few complaints of their falling asleep during the
+trial. The jurymen have come to know the names of the opposing lawyers
+and the faces of the clients, if they have been pointed out during the
+examination of the jurors, but nothing more. Are the jury to hear a
+story of bitter resentment or of passion and crime, or a calm demand
+for the payment of a debt? The opening will show.
+
+Did the plaintiff during years of effort build up a business and take
+the defendant in as a partner only to be defrauded by him? Plaintiff's
+attorney will indicate the years of effort briefly, but impressively,
+before sketching the manner in which the defendant stole from him by
+fraud the fruits of his labor. When the plaintiff then testifies that
+in 1890 he opened a small store in Fourteenth Street, moved in 1896 to
+Twenty-third Street and thence in 1916 to an up-town street off the
+Avenue, the dates will sink into the jurors' minds and they will
+portray for themselves the twenty-six years of painstaking effort. No
+eloquence then could rival the effect of the witness's slow, bare
+recital of his progress. Yet without counsel's prologue what could be
+more dull than the naming of street numbers and dates?
+
+The matter of the testimony may be interesting, but unless the witness
+has a rare gift of expression and a sense of the picturesque, the way
+in which it will be given may be dull and plain. But at this point the
+little keen-faced lawyer for the other side jumps up and interrupts:
+"I object, your Honor; what difference does it make where he lived in
+1890, whether on Fifth Avenue or Mulberry Bend? What we want to know
+is what he is suing for now." And the court will probably rule with
+him and keep the plaintiff down to more relevant facts.
+
+Some of the important answers may be yes or no. Counsel in such a case
+supplies the color and gives an appearance of life to what is actually
+alive enough, but which alone would seem dry. Even if so famous a
+character of fiction as "Becky Sharp" came into court and only looked
+her part with what intense interest would we not hang on her
+testimony, though it consisted of no more than "Yes, I did"; "I never
+saw him before." We should be fascinated by this bald statement
+because Thackeray had interested us so enormously in the lady. The air
+would be electrified by the force of her personality. Without a
+previous introduction, however, we might be so lacking in discernment
+as to find her, in appearance and voice, no more unusual than the
+average witness who goes on the stand.
+
+Thackeray not only created Becky Sharp; he also created our interest
+in her. Similarly the lawyer may create an interest in his witnesses,
+some of whom may be personally every bit as extraordinary as any
+character in a novel. If a witness be actually commonplace, there is
+all the more need for making him vividly human; if he be so colorless
+that nothing could be made of him personally, he may acquire interest
+through the class to which he belongs, for classes have a personable
+color more deep than the almost colorless individual.
+
+To induce the jury to visualize the story and the characters, the
+highest literary gift may be brought into play. The lawyer is limited
+as to time and the description he may employ. He has, however, his
+voice and expression: an actor's tools. But again the rule of
+simplicity and naturalness should apply.
+
+The opening speech is a prologue and it does not argue. Counsel will
+not be permitted to argue his case in his opening, for his opponent
+will object and the Court will often say, warningly, "Counselor, you
+are summing up." This limitation, however, is in reality an advantage,
+not merely because it applies to both sides, but for the reason that
+no lawyer with any sense of dramatic values would anticipate his
+_denouement_. Argument is apt to be chilling unless the decision
+sought for can be discerned, however dimly, without it. And how are
+the jury to frame their decision before the evidence has been
+presented? The jury should be interested in Miss Becky Sharp and
+prepared to understand her testimony, but, before they have heard her
+story from witnesses who know, they will not be favorably impressed by
+urgings that she was wronged or badly treated.
+
+There is usually leniency in regard to the length of the opening,
+because it is well recognized that few witnesses can tell a connected
+story, or tell it well. From the old French story of the lawyer who
+began _avant le creation du monde_, and the judge who asked him to
+pass on _au deluge_, down to the usual modern method of nagging the
+lawyer into stating only the skeleton of the action, there are various
+degrees of eloquence, varying naturally according to the importance of
+the case.
+
+A wonderful thing the prologue may be in its restraint and picturesque
+vividness, and, not least, in its clarity. Confused business dealings
+may be described so that important sums, figures, and dates will be
+remembered and recognized when they appear again in the evidence.
+Counsel, for the time, occupies the center of the stage; his course is
+in his hands to make or mar. He reaches the end of his speech, bows,
+and the first witness is called.
+
+Before the testimony begins the judge looks at the defendant's counsel
+and asks him whether he wishes to state his defense. There is a
+different practice in this regard in different courts. Some insist
+that the defendant ought to tell at once what his side is about,
+others that the defendant should wait until the plaintiff is through
+all his evidence and has rested; then at the beginning of the
+defendant's case the defendant's lawyer opens and makes his
+introduction.
+
+The difference between these two manners of proceeding is so essential
+that it may be explained. On the one hand the lawyer feels that he
+should not be compelled to give away what he is going to do, how he
+proposes to meet the attack, whether he will lie in ambush and snipe
+the plaintiff as he comes on or intrench behind a rampart and meet him
+with the full force of his battery of evidence. He may be planning to
+make a sudden sally after the plaintiff has shot his arrows and
+exhausted all his ammunition. The lawyer feels if he tells his plan of
+campaign he loses the advantage of generalship.
+
+Suppose a simple case: The plaintiff is suing on a long account for a
+bill of goods which will take a long time to prove. The defendant has
+a receipt in full showing payment. On the theory that the defendant
+need not disclose his evidence in the opening, he may sit still with
+the receipt up his sleeve, let the plaintiff open and call his
+witness, the evidence may drag itself along with the usual motions and
+objections, and after the plaintiff rests the defendant opens to the
+jury.
+
+"Gentlemen," he says, "this is a simple case. The plaintiff claims he
+sold the goods and the defendant did not pay for them. I propose to
+show you that the plaintiff was not telling the truth. I made him
+prove to you that he sold every item in the bill because I wanted to
+show you how untruthful he is. My client, the defendant, not only paid
+for the goods but I can show the receipt in full signed by the
+plaintiff."
+
+To the layman this is absurd. The defendant should have shown the
+receipt in the first place and all the waste time of the trial would
+have been saved. "No," says the technical lawyer, "if I had disclosed
+my evidence before, the plaintiff would have framed his evidence to
+meet the situation." The modern view is otherwise. In France, for
+instance, no paper can be offered in evidence on a trial unless it has
+been shown to the attorney for the other side beforehand and everyone
+has had a chance to examine it. Indeed, this exhibition of original
+documents is conducted in so open and honest a fashion that it is
+customary to send all the original papers to the other side without
+even taking a receipt or retaining a copy and in the whole history of
+the French bar the loss of such a paper has never been known.
+
+It seems more practical and sensible that the lawyers for the
+defendant should be required to state the nature and detail the facts
+of his defense. It is the difference between the old idea of trial and
+the new. The first was an imitation battle, the new idea is not that
+it is so much a struggle as an investigation of the facts. If the
+plaintiff wants to meet the receipt he can make a counter-attack or
+explanation in the rebuttal and explain how he came to sign the
+receipt in full. The judge and the jury feel the necessary element of
+the trial is to arrive at the facts and that the planning and methods
+of charge and counter-charge are not so significant. The old
+conception of the trial as a battle is disappearing.
+
+The opening by the defendant at the beginning directly after the
+plaintiff has finished his opening and before a witness is called,
+makes the trial simpler to the minds of the jurymen who are to decide
+the facts. The pleadings are supposed to define and state the issues
+but as they are usually technical they have become not sufficiently
+pliable. The defendant by his answer denies merely the facts stated in
+the plaintiff's complaint in the paragraphs numbered six, eight, and
+ten. The defendant on his opening should be compelled to make plain to
+the minds of the jury what he intends to show. He should take the
+position of a plain business man who says, These foolish people
+imagine they have a claim against me. They have nothing of the kind.
+
+The plaintiff says that he understood the contract to be so and so
+and that acting on that assumption both parties did certain things and
+know the defendant with evil intent and wrongfully forgetting the duty
+he owes to keep his word refuses to live up to his agreement,
+therefore, "Gentlemen, we have been compelled to come to court and
+bring this action and we shall show you gentlemen facts from which you
+must find a verdict in our favor." The defendant then arises and says:
+
+"Gentlemen, we are going to show a letter that contradicts all this."
+Oratory has little place in the opening of the defendant.
+
+The judge has been, during the two openings, attempting to keep the
+two counsels down to the facts which he thinks may be proved and from
+wandering too far afield. As quickly as they are both through he says,
+"Call your first witness," and with trepidation the witness takes the
+stand.
+
+
+
+
+X
+
+THE CONFUSED WITNESS
+
+
+The whole question as to witnesses is whether they shall be allowed to
+tell what they want or what the lawyers want. As they are both in the
+court-room they must abide by the rules of the court. That is the
+trouble: the rules are against the witness.
+
+When the witness goes on the stand for the first time the court
+attendant asks her to raise her right hand. She does so and tries to
+sit down in the witness chair so that she may feel a little more at
+ease. "Stand up," says the officer. The judge looks at her
+inquisitorially over his spectacles. She tries to smile and regains
+her feet. "Raise your hand," says the judge. The delightful and
+sanitary custom of kissing the Bible has been done away with. Even
+the habit of resting the hand on the Book is disappearing and in many
+courts a Bible is hard to find.
+
+The lady, in the confusion of appearing on a stage for the first time
+and standing on a raised platform before an audience, holds up her
+left hand. The court attendant jumps at her. The judge has seen the
+same performance many times before and hardly notices the
+_contretemps_. By this time she is confused and ruffled and after
+hearing something murmured about the truth, the whole truth, and
+nothing but the truth, she sinks into the chair and begins in a very
+uncomfortable frame of mind the ordeal of giving testimony.
+
+What she wants to say, what she ought to say, what she was told to say
+is all gone. The jury and the judge understand and feel sympathetic
+but the rules of the court do not permit them to be polite, and to ask
+her to take a more comfortable chair, to have some tea, whether the
+children have had any after-effects of the measles, or to take off
+her hat and stay a while. She knows she has to stay and that she is
+not going to enjoy it.
+
+She is the important witness who was riding in the car at the time it
+crashed into the grocery wagon. She is honest, of average
+intelligence, and wants to tell the truth. She is asked:
+
+"At the time of the accident, where were you?" She says that she was
+in the car going up-town to see her married daughter whose children
+were sick with the measles and she was in a hurry. The lawyer moves to
+strike out the latter part of the answer. The fact that she was going
+to see her daughter, that the children had the measles, and that she
+was in a hurry are not relevant and have nothing to do with the case.
+The only relevant fact is that she was in the up-town car.
+
+She was sitting four seats from the front and thinking the car was
+going very slowly and the children would be asleep before she got
+there. It is immaterial that she was thinking about her grandchildren
+or the measles, or that she was thinking about the car going slowly.
+The real question is how fast the car was going.
+
+The reason for the rule of evidence is that the court always wants to
+know not what she thought, but what she actually saw. She will not be
+allowed to tell what she thought or what she told her daughter after
+the accident. The daughter can not be called to the stand to testify
+what her mother told her, when she reached her house, about what had
+happened. Newspaper accounts of the accident may not be allowed in
+evidence, nor what the policemen reported on the accident, because he
+arrived afterward. Anglo-Saxon law holds the proof down to what was
+actually perceived by the five senses. The court makes up its own mind
+from these perceptions and the facts themselves. It does not want to
+hear what someone thinks, or what the witness believes or concludes,
+but only what he perceived.
+
+There is much to be said for and against this rule on both sides. A
+broader method to the lawyer seems shockingly loose and slipshod. The
+rules of evidence to the bystander seem an inhuman farce. The first
+allows an atmosphere to be created from which the whole truth may be
+reached. Would not an ordinary person, if he wanted to find out about
+the accident, read the newspapers, find out the police reports, ask
+what a witness thought, what that witness told someone else about the
+accident afterward? Is she not now giving someone an account of the
+accident?
+
+Psychologists agree that no one can accurately narrate their
+perceptions and what happens before their eyes. Moreover, the tests
+performed on school and college graduates in regard to their powers of
+observation have shown the fallibility of human perception. The
+failure to perceive, plus the failure to remember, plus inadequacy of
+language, makes all testimony unsatisfactory. People of little
+education are still less able to either see or explain. The only safe
+way is to obtain a composite photograph of the witness's mind and of
+the thoughts that arise from the original perception, a continuation
+of impressions.
+
+Judges or juries never determine cases by first deciding which witness
+is telling the truth or at least the exact truth. They take it for
+granted that both sides are lying somewhat; that no matter how well
+they mean and how hard they try, all witnesses are incapable of
+telling the exact truth. The unfortunate part of the law is that this
+is not officially recognized. There is a hypocrisy in not recognizing
+the inadequacy of human eyes and ears to grasp even simple concrete
+facts. A timidity exists that will not allow the admission of human
+imperfection.
+
+The proof of this is that when three witnesses go on the stand and
+describe a thing as having happened in the same way, immediately there
+is a strong doubt in the mind of the jury about the whole case.
+Suppose the question of the time a crime was committed arises and the
+defense tries to prove an alibi by showing the defendant was in a
+saloon at that time. There may have been three witnesses who really
+saw him at the same time. One witness comes on the stand and says
+3:10, the next witness says he saw him at 3:10, and third says the
+same. The jury conclude that the story has been made up.
+
+Yet suppose the first witness says he saw him sometime after lunch,
+and the second that he remembers seeing the defendant in the saloon
+sometime that day, but he is not sure whether it was in the morning or
+the afternoon, and the third witness says that he saw him during the
+week, but that he does not remember the day, whether a Thursday or a
+Friday--it is probable that the defendant will have a much better
+chance of succeeding with his alibi.
+
+The lady in the car could not remember the time of the day, except
+that it was near the children's bed time. She had heard the crash and
+seen the wagon turn on to the car tracks. With a great many
+objections she finally gets to the point of the crash.
+
+"Did you see the car hit the wagon?" "I object to that as leading,"
+says the other lawyer. "It is leading and suggestive." Technically he
+may be correct, but if the judge has common sense he overrules the
+objection.
+
+The proper question would be: "What happened next?" The witness,
+however, might remember the paper bag of oranges she was carrying to
+her grandchildren and instead of telling about the accident begin to
+describe how she dropped them on the floor. Leading questions are
+necessary in nearly every case. The reason that they are objectionable
+and ruled out is, that the judge and the jury ought to hear not the
+lawyer's narrative of the facts, but what the witness actually
+remembers.
+
+A witness on the stand appears at his worst. If any one from real life
+were suddenly thrust unprepared and unlearned in theatrical art upon a
+stage the incongruity of the situation would be appalling. Yet the
+witness is thrown into new and strange surroundings. It is a portion
+of the reality of life shown vividly against a conventionalized
+background. The judge and jury in a vague manner understand this. The
+lawyer producing the witness feels this and elicits the testimony in a
+soothing manner.
+
+The objects of cross-examination are as follows. The first is to prove
+that the story of the witness is not true, and the other is to bring
+out something new. The opposing counsel often forgets the purpose of
+his cross-examination and by attempting to bully and frighten the
+witness, usually either by sarcasm or a doubting manner, accomplishes
+very little. Not one cross-examination out of five hundred amounts to
+anything. The judge has heard many and he has little hope of their
+being of much interest. The jury make so much allowance for the
+witness being frightened on the stand and for the fact that she is in
+the hands of a clever lawyer, that they are not much impressed even
+if she contradicts herself or is proved mistaken. At best it is only a
+mistake, not a deliberate lie. The lawyer thinks he owes a moral
+obligation to his client and to himself to cross-examine. He is
+compelled to go on. There is a musty tradition of the law that a trial
+without cross-examination is not a proper trial. It is a legal fetish
+and one of the things that is done. The judge expects it, the jury
+expect it, the client expects it and the public.
+
+The client pays his money and he ought not to be disappointed. If it
+were omitted altogether, the judge and jury might not feel the loss so
+bitterly. Perhaps they might prefer it and the question for the lawyer
+is whether it is better to satisfy the client or the jury. In this
+quandary the lawyer may forget that the main point is to win the
+battle. When the case is lost the client does not care at all how
+brilliantly the lawyer looked, acted, or fought.
+
+If the lawyer reasons he will say:
+
+"If the object of my cross-examination is to show that the witness is
+not telling the truth, have I much chance of getting him to confess
+the fact?" The witness knows something about perjury. He is afraid and
+he has heard about those pitfalls of cross-examination. Does the
+lawyer remember his own hopeful son and how only yesterday he could
+not get him to admit stealing the cake even with the prospect of
+immediately impending punishment? Only that little rim of chocolate
+about the ears was the proof. Even the deaf little child, who is not
+as intelligent as the witness, will not admit that he was untruthful.
+But still he goes on cross-examining.
+
+If the witness is finally shown a paper which he or she signed when
+the investigator of the railroad came to see her, and in which she
+said she was sitting on the sixth seat, there is not such a great deal
+to be proud of.
+
+"Ha, Ha," thinks the lawyer "at last," "didn't you just now say you
+were sitting on the fourth seat?" "I don't remember," says the
+witness. "What," thunders the lawyer, "you don't remember; then your
+memory is poor. I will read you what you said on your direct
+examination," and he does. "Now which was it, the sixth or the fourth
+seat."
+
+The other object of cross-examination is to elicit new facts. This is
+a dangerous risk for the lawyer, and unless he is sure of his ground,
+he had better not take it. He will do better to let his own side tell
+the facts than to bring them out through an unwilling witness who is
+on his guard and thinking the opposing lawyer is trying to trap him.
+
+The mistake that most lawyers make in cross-examination is to ask the
+witness to repeat what he said in his direct testimony. Telling the
+same story over again merely accents the facts in the minds of the
+jury. The lawyer asks:
+
+"You say that you saw the driver whip up his horses when the car was a
+block away." The lawyer may doubt the truth of the statement but the
+mere repetition of the words affects the memory of the jury. Unless
+he has a distinct object in going over the testimony, either to show
+the direct contrary strongly, or the fact that the witness has learned
+the testimony by rote and that the repetition is in exactly the same
+words, the lawyer would do better to desist.
+
+Strange as it may seem the rules of evidence are actually based upon
+common sense. The ordinary experience of mankind gave rise to the
+rules of evidence, but the difficulty is that the further experience
+of civilization is giving rise to new rules which are not consistent
+with the old. Nevertheless the present rules when reasonably applied
+are fairly good. The question really is whether there should be any at
+all.
+
+Accepting the fact that there should be rules they are based on two
+principles; the first is that only something which has to do with a
+case can be proved and second that it can be proved only in a safe and
+reasonable way. It may seem impossible to the lawyer and equally to
+the laymen to state the rules of evidence in simple language. But the
+principles of common sense will govern in the end, as they have in the
+past, notwithstanding they have been hidden under a mass of verbiage,
+ancient forms, and obsolete customs.
+
+The theory is that justice wants the highest and best it can obtain,
+the court insists on the two principal rules; that evidence must be
+the very best that can be obtained and must be brought out in the
+safest, clearest, and most authentic manner.
+
+Take, for instance, the rule that conclusions of the witness are not
+allowed. If the court considered as evidence that the testimony "the
+defendant brought the goods and they were delivered," and the
+defendant came on the stand and said, "I did not buy the goods and
+they were not delivered," the court would have before it merely two
+contrary beliefs or conclusions. It would be a case of "Katy did, Katy
+didn't."
+
+The rule of evidence is plain that makes it necessary for the
+plaintiff to show where he saw the defendant, what was done, and what
+was said or written by the two parties. If the question is as to the
+delivery, it is not enough for the plaintiff to say "I delivered the
+goods." The court must have proof of the history of the goods. The
+driver of the wagon must be called who can testify where he drove,
+what package he carried, and what was done with it when he reached the
+house.
+
+The whole subject of expert witnesses is not so complicated after all.
+They are merely persons of exceptional experience who are allowed to
+testify as to something of which they know nothing. They may have
+never seen nor heard the facts in dispute but because they have had so
+much experience on similar facts they are allowed to say what they
+think of facts produced by eye witnesses before the court. As
+conclusions and opinions may be various, there is at times a great
+variety in experts, and because the very name of experts implies
+technicality, there is a feeling in the minds of the jury and the
+public, that the testimony of experts will befog by a mass of
+non-understandable terms.
+
+The doctor who testified in a case in which the plaintiff suffered a
+sore back and had seventy-five dollars damages from the jury is an
+example. He said:
+
+"The plaintiff was suffering from traumatic sacro-illiac disease,
+traumatic sinovitis of the knee and wrist and from traumatic myositis
+of the muscles of the back."
+
+In reality the testimony of expert witnesses is very good evidence. If
+it is given in plain and understandable English and the jury think the
+expert a clean-cut, sensible man, it is just what the jury want to
+learn. An expert's method of reasoning about the facts in evidence is
+the same as that employed by the jury in the jury-room. It is merely
+an opinion; for on the opinion of the jury, based on the evidence
+depends their verdict.
+
+While the witnesses are being examined, called to the stand, sworn,
+being excused, and being cross-examined, there occur numberless
+incidents of the trial known as the objections, exceptions, and
+motions.
+
+
+
+
+XI
+
+THOSE TECHNICAL OBJECTIONS
+
+
+These are the stage tricks and little incidents that give variety to
+the performance. No drama would be complete without a few diversions.
+So far as the drama itself goes, they are of no great importance
+except to give pungency and interest to the action.
+
+The lawyer asks an apparently good question. "I object," says the
+other lawyer, "on the ground that it is incompetent, irrelevant, and
+immaterial." The judge has to rule. He may not exactly have heard the
+question. The stenographer reads it again. The other lawyer leans
+forward in a frenzy of fear lest the question be ruled out. He begins
+to argue.
+
+"The question is perfectly proper; the witness ought to be permitted
+to answer it." "No," says the other lawyer, "it is improper in form,
+calls for a conclusion, and should not be allowed." The judge looks
+puzzled. "Read that again," he says. The question is, "What kind of a
+cow was it you saw in the plaintiff's garden?" "I still object," says
+the lawyer. "The witness has not been shown to be an expert. If my
+learned friend is going to attempt to qualify him as an expert, I
+desire an opportunity to cross-examine him concerning his experience
+in cows." "Not at all," answers the lawyer. "The question is entirely
+proper and I stand on my legal rights." The judge hesitates; if he
+does not rule correctly the lawyer will take an exception and the
+Appellate Court may not like it. So he says, turning to the witness,
+"You may answer, but I will reserve the question and decide it later
+on a motion to strike out." "I except," says the lawyer. The jury look
+relieved. The witness straightens up, the opposing lawyer sits back
+in disgusted contempt at such a loose method of procedure. "Well,"
+says the witness, "it was a red cow."
+
+This may go on for some time.
+
+"I move to strike the answer out," says the lawyer; and the argument
+begins all over again.
+
+Throughout the trial the client and the jury are waiting for these
+objections and exceptions. The nature of an exception is a notice
+served on the judge that his rulings are wrong. The theory is that if
+he wants to change them he had better do so before the case goes to
+appeal. It is a covert threat to the judge. There is a principle in
+some courts that no ruling that is not excepted to can be considered
+on appeal; consequently a lawyer is careful to preserve his rights by
+exceptions.
+
+A young lawyer once had this principle so firmly fixed in his mind
+that when he went to court he began taking exceptions to everything,
+even rulings in his favor. He would make an objection; the judge
+would sustain it. "I except," said the lawyer. He would make a
+motion; the judge would grant it. "I except," said the young lawyer.
+The other side would make an objection; the judge would rule against
+them and in favor of the lawyer, "I except," said the lawyer. Finally
+the situation grew so strained that the judge called the young man to
+the bench and spoke to him confidentially. His explanation was: "This
+is my first case and the head of my firm told me to be sure and take
+exceptions to all rulings."
+
+Some lawyers are so in the habit of excepting, it sounds as though
+they were hiccoughing. "Overruled"; "I except"; "Allowed"; "I except";
+"Denied"; "I except"; "Granted"; "I except." It becomes a custom as
+constant as the refrain in a comic opera.
+
+Theoretically it may have a sound basis under the law, but so little
+practical value has it that it seems ludicrous. The lawyers and the
+judges consider it a matter of course. If the judge after all the
+argument finally decides to let the testimony as to the red cow stand,
+he will not be inclined to change his mind because the lawyer
+interjects that threatening exception. The sound of the word is
+spiteful and seems to express the resentment of the lawyer at the
+ruling of the judge.
+
+No example could be found in the thousand volumes of law reports where
+the judge changes his mind on account of an exception. The object in
+this particular direction is vain.
+
+With regard to appeal; the Appellate Court that attempts to decide a
+case on the exceptions taken at the trial would have a difficult time.
+They would have to disentangle the mesh of evidence and find out
+whether that important piece of testimony on page 204 was excepted to
+or not, then whether there was a proper ruling; refer to the
+stenographer's minutes and look at the important exception on page 59
+and again on page 106. Unless the question decided was excepted to,
+the Appellate Court can not decide it. It is hard to imagine that any
+court could be so rigorous and narrow-minded that they could hang
+justice on such little pegs of exceptions, which the stenographer in
+the hurry of the moment may have forgotten to insert.
+
+In the criminal courts there are no exceptions on the part of the
+people, because there are no appeals on behalf of the State. The
+defendant continues to repeat "I respectfully except." "I must insist
+on my exception." Think of a man being jailed for seventeen years
+because his case was not reversed on account of the failure to except.
+The court could not believe Justice to be so blind-folded that she can
+not understand the evidence as a whole.
+
+Exceptions are the tacks and pin pricks of a trial. They are of so
+little value in the main structure of the drama that if they are
+forgotten by either side, the court should provide them with a bushel
+basketful which could be distributed by the handful wherever the
+lawyers thought they would be useful or pleasant.
+
+Objections are of three main kinds: irrelevant, immaterial, and
+incompetent. They are like the magic words that open or unlock the
+doors of evidence and let it in or keep it out. They have three
+distinct meanings which lawyers understand. A thing may be immaterial,
+but not incompetent, or incompetent and not immaterial, or irrelevant
+and not immaterial, or irrelevant and not incompetent, or incompetent
+and not irrelevant, or one or both or not at all. Any student of law
+can fully explain the difference, but the distinction is immaterial
+and irrelevant, and if the reader is in doubt let him ask any lawyer
+friend to tell him in plain words, without insulting his common sense,
+what the distinction between immaterial and irrelevant is.
+
+The confusion of one young man found expression finally in the terms
+"irreverent, impertinent, and--and--and--no--matter."
+
+The lawyer, when he objects, usually attempts a few other suggestions
+which may be considered by the judge, such as "the question is leading
+and suggestive; grossly improper; calling for a conclusion; objected
+to as argumentative or because of its ambiguity."
+
+Whatever the trouble with objections may be, it is neither the fault
+of the lawyer, the judge, nor the witness. When certain evidence is
+not allowed by law it is proper that it be objected to. Unreasonable
+and often comical as objections sound, the basis of their existence in
+law is that the court wants the best possible proof.
+
+Instead of a copy of a letter the judge and the jury ought to see the
+original. Instead of the copy of a will the paper actually signed by
+the testator is wanted. Suppose a question arises as to the payment of
+a bill. The defendant says that he went into the store and paid it.
+The best proof is to be given by someone who saw him pay it. A witness
+to whom he came afterward and said that he had been down to the store
+and had paid the bill is not so accurate a witness as the man who was
+in the store and saw the money paid over. It is to keep out this
+poorer proof that objections are made.
+
+If the objection is good, the judge says "Objection sustained," or if
+he thinks the evidence the best he allows it and says "Objection
+overruled," then the witness may proceed and answer the question.
+Unless the lawyer objecting states the ground or reasons for his
+objection, the objection is not supposed to be valid for the other
+side ought to be apprised of the reason so that he may supply the
+proper proof, that is why the objection is named as irrelevant,
+incompetent, and immaterial, so as to cover all possible grounds.
+
+The reasons given for the objections: incompetent, irrelevant, and
+immaterial might, so far as the average man is concerned, read
+"incontepent," "irrevelant," and "immature." The words when repeated
+together seem like that old legal term "incorporeal hereditaments."
+They are imposing and add tone to the trial. The solemnity of
+repetition is always a valuable asset. The real value of the word
+irrelevant is shown by repeating irrelevant, "irrevelant," irrelevant,
+"irrevelant." In a short time one sounds as valuable as the other.
+
+When he makes the objection the lawyer rises and when he is through
+sits down. This gives the appearance of constantly jumping up but is
+only a question of etiquette, like taking off the hat or making a bow.
+Some people like the formality but there is a question how much is due
+to the dignity of a court and how much form and manners must be
+sacrificed to efficiency of business. The judge who said that he did
+not hear the constant objections of the lawyer because he made his
+objections sitting down was not so much an adherent of good form as a
+protestor against the absurdity of professional objections.
+
+The mooted question is the same and goes back to the one on evidence.
+Shall everything be allowed in and a photographic picture of numerous
+details be given to the court? If that is the correct idea, a general
+knowledge and atmosphere may be derived from all the surrounding
+circumstances and then there would be no objections. If the strict
+interpretation of the law be followed limiting evidence to only what
+is seen and heard, objections are proper and sensible.
+
+The modern tendency is to do away with all restrictions of the past.
+There has been too great severity in interpreting the law of proof and
+the pendulum is bound to swing far in the opposite direction. A medium
+may not easily be reached, and the only test is the common sense of
+the average.
+
+On the question of time and whether the abolishing objections and
+letting in all evidence would not be shorter, there is much to be
+said. It might take less time for the witness to recount the death-bed
+scene of his wife's sister's brother-in-law's aunt, than for the court
+to hear and pass upon all the objections and arguments as to the
+admission of the testimony on the red cow.
+
+As the jury listen to the objections and exceptions they become more
+and more impatient. The restraining influence of the surroundings, the
+fact that they are impaneled in a box and that they are a part of, the
+drama keeps them silent. They cannot break out in revolt at the
+badgering of the witness. They can say nothing about the absurd
+objections that are interrupting the proceedings or the spiteful
+little exceptions that are being thrown in, but can only quietly store
+up an increasing mistrust of the whole method. When the lawyer objects
+so strenuously the jury thinks he must have something to conceal. Yet
+when the objections are made they have a certain effect which is not
+at first realized. A question is asked that is to the juryman
+perfectly sensible, but which is absolutely inadmissable under the
+rules of evidence. For example, the lawyer asks, "What did you tell
+your wife about the accident when you got home?" Any reasonable man
+knows that what he tells his wife is very important and bears on the
+question of his veracity. The other lawyer very properly objects. The
+jury thinks there must be something in it. The lawyer asks again,
+"Didn't you tell your wife the horses were going very fast?" The other
+lawyer is on his feet. "I object," he says, "and I must ask your Honor
+to instruct the counsel not to ask questions that are manifestly
+improper." The Court rules in favor of the objecting lawyer. He
+admonishes the lawyer and instructs the jury to disregard the
+question. Yet what is the effect? The jury believes unless the lawyer
+thought the answer would be most unfavorable to his side he would not
+have objected to it so strenuously. The impression remains on the
+minds of the jury that there was a good deal to that question of what
+he told his wife.
+
+It is for this reason that when the lawyer keeps on asking
+objectionable questions, the judge will sometimes declare a mistrial
+or allow one side to withdraw a juror, which is only a polite way of
+saying that the present jury in the particular case can not be fair.
+
+Here arises one of the prettiest dilemmas of the law on the trial of a
+case. Suppose the case has been going on all day or for several days.
+The plaintiff is very anxious to have it finished. He has been at
+great expense and trouble to get his witness and the lawyers' time is
+valued at so much per trial day. On the other hand the defendant at
+the worst can only have a judgment against him, which may as well
+happen at another time. He is willing to have the case declared a
+mistrial and start anew; he knows it will take a long time for the
+trial to come up again. It has been a dull grilling proceeding, but he
+does not care so long as there is a chance of postponing the judgment
+against him. It is on the whole better and easier to put it off.
+
+Now if the judge declares a mistrial, on the motion of the plaintiff,
+that is his own look out. He believes that he can not have a fair
+trial, that he can not proceed. But suppose the defendant by his
+lawyer makes the trial unfair. His lawyer keeps asking those improper
+questions which imply so much to the minds of the jury. The judge may
+speak severely to the lawyer and caution him not to keep on putting
+suggestive questions. That is all that he can do. It would be plainly
+unfair to order the withdrawal of a juror. The trial according to the
+opinion of the judge may be unfair. The plaintiff's counsel is afraid
+to ask for a mistrial, first on account of the trouble and expense to
+his client, and second, if it be denied, the jury will believe he
+thinks them unfair and does not want them to try the case. The judge
+is in a curious position with regard to objectionable questions and
+testimony, he ought not to penalize the plaintiff by punishing the
+defendant. The loosening of the laws of evidence might do away with
+quandaries such as these.
+
+
+
+
+XII
+
+THE MOVEMENTS IN COURT
+
+
+Motions imply movement and action especially in a drama, but in a
+court motions are the reverse and occupy the place of dramatic pauses
+which delay the real movement of the play. They are of great interest
+to the lawyers, of some interest to the judge, because he has at once
+to pass upon them, of but little interest to the client, who does not
+understand them, and of no interest whatsoever to the jury, except
+when they result in the disposal of a trial.
+
+Before the case begins the defendant makes a motion. When the
+plaintiff's lawyer has finished his opening, the other side makes a
+motion to dismiss the case. When he ends his evidence, the other
+lawyer moves to dismiss. When both sides are through, each moves.
+When the jury bring in the verdict either side may move, or both when
+neither is satisfied. All through the trial there are quantities of
+little motions. Motions to strike out, motions to instruct, motions to
+make the witness answer a question, motions to make the other lawyer
+behave. Except for pointing the finger or raising the voice in
+talking, they are not movements, they are only verbal, the action
+comes in the play of emotions of the parties in court. Motions are
+merely saying what either side wants; the formal asking for something.
+
+The first important motion is on the pleadings themselves or when the
+plaintiff has opened. If the judge does not believe that the plaintiff
+has stated a case in law, he dismisses it on a motion of the defendant
+and the judgment is "without prejudice." The trouble is that a
+judgment of this kind does not finally dispose of the dispute. The
+plaintiff may bring the action over again.
+
+He may appeal from the decision or judgment and the appellate court
+may rule that the trial judge was wrong and then after an interval
+the case goes to a new trial just the same. By this time the plaintiff
+or his lawyer may believe he has no case and desists, but the course
+depends upon whether the parties have not died, grown tired, gone into
+the hands of a receiver, or moved to Borneo. The jury know little as
+to this state of affairs and are not interested in the preliminary
+motions. The clients do not understand but think the lawyers are good
+talkers.
+
+The lawyers are interested in the point of law and believe so strongly
+in their case that if an adverse ruling comes they are shocked and
+surprised. The judge knows that although he grant the motion to
+dismiss, he will probably allow an amendment. He is not greatly
+concerned unless he foresees a possibility of settling the dispute
+definitely and going on to the next case. He is anxious to try the
+present action and get down to the meat of the matter but really if
+they are going to insist on all technicalities he feels a little
+impatient.
+
+He knows that even if the defendant is right and the pleadings are
+defective because the stenographer forgot to insert a date, it can
+still be put in. Recent legislation has found it necessary to say that
+the courts should allow amendments of pleadings where "Substantial
+Justice" will be accomplished thereby. It is a commentary on the
+system of the courts that the people through its legislatures should
+find it necessary to pass a law that judges should amend paper
+pleadings in furtherance of justice. If justice and right depend upon
+pieces of paper to such an extent, the dry formalism of the courts is
+a matter of regret.
+
+The next important motion is when the plaintiff has put in his
+evidence and has rested. "The plaintiff rests," the lawyer says.
+
+The judge and the jury say to themselves, "Well it is half over."
+
+The defendant's lawyer rises and says, "I move to dismiss on the
+ground that the plaintiff has not made out a cause of action. He has
+not shown that the cow was owned by the defendant, or he has not
+shown that the driver of the plaintiff was free from contributory
+negligence, or he has not made out any kind of case at all."
+
+This is an anxious moment for the young attorney. Did he forget
+something? What was there that he did not remember? Will the case be
+dismissed because he forgot to tie a shoe lace or put in a pin? If he
+is more experienced in court work he will not be so worried. The law
+is that the plaintiff must be given every chance at this stage of the
+proceeding. Only when both sides are through does the law begin to
+weigh the evidence. At the close of the plaintiff's case everything is
+in his favor. Any particle of testimony is sufficient on a particular
+point. The theory of the law is that both sides must be heard. If the
+motion to dismiss is made on the ground that something has been left
+out, the court will usually give an opportunity to prove to whom the
+red cow belonged. This motion like many other relics of a by-gone age,
+is a matter of custom and tradition. It is usually made on the theory
+that the judge may think there is no case and that the plaintiff can
+not make out a case. If he so decides, the case is finished, the jury
+is discharged, and the client has his feelings hurt by being thrown
+out of court.
+
+From a decision of this kind there is also a right of appeal which may
+result in a reversal. Then the new jury is impanelled, the witnesses
+are recalled, and the proceedings are gone over once more. If the
+decision or judgment is affirmed, the case does not usually come up
+again; the higher court has said the plaintiff has no case on the
+evidence, and unless new evidence is produced he can never recover. In
+certain accident cases the appellate courts have stated they would not
+give their reasons for dismissing the complaint after the evidence is
+all in because, they say, if they did so they were afraid the
+plaintiff would supply the missing links by manufactured evidence on
+the next trial and not quite honestly. This again is a commentary on
+procedure.
+
+Just at this point is where the law of the case comes in so
+insistently. Before the case comes to court the lawyer is supposed to
+know whether his client has a right of action. Every state of facts or
+a breach of those rights does not give rise to an action that can be
+maintained in a court of law. If you ask a man to dinner and he
+accepts, but does not come, you can not recover your damages for
+providing the dinner; or if you fall down your own well, you can not
+sue the man who built it. The lawyer is supposed to have carefully
+considered what elements of fact make an action. If the facts
+themselves do not give him a right of recovery his case is dismissed;
+or if he has a cause of action but has not proven the facts, it is
+also dismissed.
+
+But as was said above, if the train of facts or those in the pleading
+is imperfect, the modern spirit is to allow them to be made perfect.
+The only theory of law that is contrary to this spirit is what is
+known as the theory that every man is entitled to his day in court
+and the day being had it is unfair to bring the other side in again on
+account of some defect or forgetfulness on the part of the other.
+
+The reconciliation is that there should be no surprises on a trial,
+the modern tendency is to bring the case away from the idea of an
+ordeal by battle. The little advantages that are gained by sorties and
+surprises and which are usually taken advantage of by motion, are
+after all not of great moment.
+
+An anomalous situation shows the absurdity of these motions, for when
+the plaintiff rests, unless the defendant makes a motion to dismiss
+the plaintiff's case, he is supposed to admit that the plaintiff has
+made a good _prima facie_ case, and if he does not move he is forever
+after, on appeal or otherwise, prevented from claiming that the
+plaintiff did not make out a good case. The result is that at the
+close of the plaintiff's case the motion is usually made as a matter
+of form to preserve the defendant's right.
+
+Usually this motion is denied if there is a possibility of making a
+case, but suppose the judge either through ignorance or to be obliging
+should say, "Well, the plaintiff has made out a good case, but if you
+ask it, the blood be upon your own shoulders, and I will dismiss the
+case." The defendant does not want it dismissed but he has asked for
+it and he has got what he asked for. The result is an anomalous
+situation. The case will undoubtedly be reversed and he will be
+mulcted in costs for being compelled to ask, because of the formalism
+of the court procedure, for what he did not want.
+
+At the end of the defendant's case, when both sides have rested, the
+defendant again moves to dismiss. Here again it is a formal motion,
+which he may not altogether mean, but which the lawyer often makes as
+a matter of form. If the judge really believes there is not enough
+evidence to let the case go to the jury, he ought to say so without
+the necessity of a motion. Suppose there is not, he dismisses the case
+"on the merits" and the trial is over. But suppose there is and the
+judge does not know his business and the fine point of law is not
+entirely clear to his Honor, and he makes a mistake and the case is
+dismissed. The result is that although he has granted the motion of
+the defendant to dismiss and given the defendant what he wanted, he
+has in reality penalized him, for the appellate court will reverse his
+decision and the defendant have to pay all costs and stand the expense
+of a new trial. The judge is in a quandary, which he may get out of in
+two ways. One is to let the weak case of the plaintiff go to the jury
+with the hope that they will see what a poor showing the plaintiff has
+made and find a verdict for the defendant, in which event he will be
+safe. But if the jury should make a mistake and find for the
+plaintiff, then the judge has the intention of setting that verdict
+aside, nullifying all the work of the jury, the witnesses, the
+clients, and the lawyers, and ordering a new trial. This is rather a
+weak-minded proceeding and shows the necessity of having a man in the
+referee's chair who knows how to decide.
+
+The second alternative for the judge is to reserve decision on the
+motion and to let the jury go into the jury-room and worry about the
+verdict for an hour or two, while the judge has the hidden intention
+of perhaps deciding that they need not spend any time at all about the
+matter.
+
+The principle on which the judge passes on this motion to dismiss is,
+that after all the case is in and all proof had, that on the proof and
+evidence there is not enough on the part of the plaintiff from which
+any reasonable man could ever find a verdict for him. The motion
+differs from the one at the close of the plaintiff's case in that the
+latter is based on there being no proof at all, while the one after
+the case is entirely in is based on the theory that there is no
+possibility of a verdict.
+
+This sounds again like a metaphysical discussion, but is illustrative
+of the futility of formal motions, so that actually the decision
+depends upon the good plain common sense of the judge. The tendency is
+that if the case has gone to the length of a full trial and there is
+any question of fact involved, that the jury should determine the
+question of fact and exercise their functions. It must be a poor weak
+case of the plaintiff and evidently unsound, in which the judge or the
+appellate court interferes.
+
+Throughout the trial the little motions that occur bear the same
+relation to the main issue as do the objections and exceptions.
+
+"I tried to stop the car," says the motorman.
+
+Up jumps the other lawyer. "I move to strike out as a conclusion."
+
+The witnesses have testified to slightly different facts than what
+were stated in the pleadings. "I move to amend the pleadings to
+conform to the proof," says the lawyer.
+
+"I move for an adjournment on the ground of surprise," says the other.
+
+Of course the statement of the conductor is a conclusion of fact. But
+if the other side wants to find out how he tried to stop the car, let
+him ask what was done. "Did he turn on the brake handle? Did he switch
+on the emergency?" A man does not have to be an expert to say that the
+car was going fast; he may be examined as to what he considers to be
+fast. Nor does he have to be an expert to say that eggs are rotten,
+that butter is rancid, that there has been a war in Europe, that a man
+has a broken leg or looks sick or acts queerly, that the fish is stale
+or the cow was red.
+
+The motion to strike out does not affect the jury, the testimony still
+remains on the jurors' minds. The verbal memory stays. Neither does
+the motion to amend the pleadings affect the jury. What have they got
+to do with it? If the papers are amended it is not important from
+their standpoint. Should the plaintiff have written a letter that he
+was going to sue for something, to the jury that seems better than any
+pleading.
+
+These motions are insignificant and examples of a formalism which,
+however valuable it may be as defining the methods of the legal
+battle, are not consistent with the modern spirit of investigation
+into facts. It is rather significant that the laws creating Public
+Service Commissions and Legislative Investigation Committees in some
+States go to the length of stating that there shall not be any rules
+of evidence such as are employed in the courts of law.
+
+The other motions, such as to direct a verdict, which is usually the
+same as a motion to dismiss, and the motions after a verdict has been
+rendered, are also formal statements of a request for the disposition
+of the case.
+
+They may be all very good and useful in their way, but are merely the
+incidents and measures by which the truth of the matter is reached.
+The client looks puzzled at the argument and the decision, the jurors
+have a not very clear conception of what is going on, the lawyers have
+a meretricious feeling that perhaps they are cheapening themselves a
+little by making so many motions, yet they, nevertheless, have a legal
+right to do so and they must take advantage of every legal right for
+the protection of their clients.
+
+After all the witnesses have been called, the plaintiff and the
+defendant have proved their sides, the plaintiff has contradicted the
+new evidence of the defendant, everybody has been examined, the
+interruptions of the objections and motions, exceptions have been had,
+the judge asks if both sides are through and the presentation of the
+case is ended.
+
+The course of justice has been on a rough and rather narrow road. The
+popular revolt at the method of arriving at the truth is, in fact, at
+the narrowness of the way. The presentation of a case and the means of
+reaching the truth ought to be on a well-defined and orderly system.
+It would seem natural that the crooked and ill-paved streets of an old
+town should give place to the open, smooth, and broad avenues of the
+modern spirit.
+
+
+
+
+XIII
+
+ELOCUTION
+
+
+At last when both sides rest and the judge has passed on the latest
+motions, the intense action of the drama begins. For this the clients
+have been waiting, the lawyers have been training. It is the
+opportunity for them to display their attainments, to show their
+clients what brilliant lawyers they have retained; to let the judge
+know how well they have understood the case; to move and sway the jury
+to their side; to unravel the mysteries and by the power of oratory to
+bring justice where she belongs. When his lawyer is talking, the
+client watches him with admiration, but while the opposing lawyer
+speaks the client can hardly conceal his contempt. He feels that his
+case is secure and he does not understand how there can be anything to
+be said on the other side. Yet he is fearful there may be some court
+trick which he does not understand and the case may be lost.
+
+"Your Honor and gentlemen of the jury," begins the defendant's lawyer.
+Including the judge in his address, although it is a matter of
+courtesy for the eloquence of the summing up, is meant solely for the
+jury. The judge is only supposed to listen and restrain the attorneys
+if they go too far afield in their attempts to influence the jury by
+their efforts. The judge is the time keeper or referee and holds the
+lawyers to the point.
+
+The object of the attack is the jury. As the burden of proving a case
+is on the plaintiff, he is supposed to have the first and the last
+word; therefore, the defendant begins to sum up. After he is through,
+it is the turn of the plaintiff. The tactical position is in favor of
+the plaintiff. The advantage, as in all verbal disputes, is reputedly
+with the man who has the last word. In all debates the proponent has
+the right of opening and closing. The plaintiff began the case with
+his opening, and after it is over he is permitted to close.
+
+"Gentlemen," says the judge, "how long will you take in your address?"
+Both sides agree upon a certain time, which usually proves too short,
+but which is acquiesced in with alacrity because each side thinks
+their case is so plain and convincing that it will not be difficult to
+explain. The lawyer girds up his loins, the court-room quiets, the
+struggle of conflicting evidence is over, the clients and witnesses
+retire from the foreground, the other counsel sits down and the lawyer
+steps close to the jury-box.
+
+"The jury is yours," says the judge, as though he were abandoning the
+jury. Indeed the summing up is an attack, a vivid, keen, masterly
+struggle in which wit and brain is pitted against wit and brain: where
+facts and passions are to be marshalled in the most intelligent and
+plausible way, where imagination and oratory are to be employed in
+their finest capacities. It may be bold, manly, energetic, or soft and
+persuasive; it may appeal to sympathy or threaten with a battery of
+accumulated facts. Forensic oratory is the highest type of art, the
+most powerful of human gifts. The only trouble with most court oratory
+is that it is only fit for the market-place. The lawyer begins with
+the firm impression that he must win the jury. His voice is bland and
+soothing, he feels that he must be soft and persuasive. He rubs his
+hands and remembering the old adage, that laugh and the world laughs
+with you, attempts a little joke. There is nothing so good as to get a
+smile for his side. Perhaps the joke does not go very well and the
+laugh does not come; the point has missed. He will try what flattery
+can do.
+
+"Men of your intelligence can readily see," he says.
+
+"When I was examining you," he explains in a subtle way. "I knew at
+once how unprejudiced and fair-minded you were."
+
+"You gentlemen are practical men and can understand." Yet somehow the
+jury are impervious. They sit back in their chairs and stare.
+
+Then the lawyer begins to forget the object of ingratiating himself.
+Hypnotized by the memory of his client's wrongs, he works himself into
+a frenzy of feeling. He swings his arms, pounds with his fist, raises
+his voice, and thunders his denunciation. His speech takes on a
+threatening tone. He shouts and bawls; the jury must be waked up. They
+sit stolid and unmoved. He tries to catch their eye, there is no gleam
+of interest. Perhaps he has rather a hopeless feeling that the art of
+oratory is not what it is reputed to be. The jury look particularly
+unresponsive. Even that one little juror, with the clever, smart face,
+who is leaning forward with such an expression of enjoyment may not be
+altogether trustworthy. The lawyer has seen that kind before and the
+one juror who seemed the most interested in the last case he argued
+was the very one who held out against him in the jury-room as he found
+afterwards. It seems a difficult matter to stir the jury and the men
+in the box are not at all a warm or enthusiastic audience.
+
+The jury are not particularly keen about the oratory of the lawyer,
+they look upon him as paid to do his part. It is the portion of the
+trial they can understand; they have not clearly comprehended what
+went before. When the objections were being made and there were the
+cross-examination and badgering of witnesses, they could not separate
+in their minds the functions of the lawyer and the personality of the
+lawyer. It seemed as though he were doing a good many unfair things
+and not acting quite up to the mark, but now the atmosphere has
+cleared. They can realize that he is only the paid talker for his
+client, that he is only making all this noise because that is his
+business. To the jury he is the pleader employed as an actor. The
+position is simple; if any one would pay them for acting and
+gesticulating at so much per day or per hour, they would be very glad
+to earn the money.
+
+The client watches the lawyer with affectionate admiration. True, he
+did not do exactly as he was wanted during the trial. He should have
+asked those questions he suggested, but now he is doing grandly. When
+the lawyer is through the client feels splendidly. He sees but one
+side of the case and believes in it absolutely. With such a good
+talker the jury cannot fail of being convinced.
+
+When the lawyer sits down the client shakes him by the hand and tells
+him how well he has done. He might have been willing to settle the
+case for a thousand dollars before, but now he wouldn't pay a cent,
+not one cent. Later, should the jury find against him, even to the
+amount of the thousand dollars which he was willing to pay, he feels
+terribly disappointed. There must have been something very much amiss
+in the jury-room.
+
+The judge while the summing up is going on, is not very attentive.
+His part of the case is over. While the proof was being given he was
+alert. True, the charge is coming afterwards, but he knows fairly well
+what he is going to say, and it is going to be formal. It is the
+function of the judge to control the address of counsel, but the
+counsel are sometimes very hard to control.
+
+In the criminal trials, reference is made to the emotions of the
+defendant's family; the devoted, anxious wife, the poor little
+children who may bear the stigma of their father's disgrace, should
+the verdict go against him. Since the domestic life of neither party
+to the trial has appeared in evidence, such things being entirely
+"irrelevant and immaterial," it does not make a great deal of
+difference whether the picture is accurate or wholly fanciful. The
+defendant may be a drunkard, a burden to his wife, and a horror to his
+children; he may have abandoned his family to their own resources; it
+is possible that he has never had any family at all. The lawyer has no
+right to refer in his summing up, or otherwise, to anything that has
+not been properly submitted in evidence. He is guilty of unfair
+practice in telling the jury about the defendant's family or
+circumstances, unless this has been part of the case, which is
+improbable. He knows this well; so does his opponent and the judge.
+And should the opposing lawyer protest, the judge will say, looking
+up, "Be careful, counselor, be careful." The counselor bows
+respectfully and probably goes on in the same vein. The judge has not
+heard exactly what was said and feels that the lawyers, if they are
+not too blatant and noisy, may say what they please. There must not be
+too much talk about the wicked, money-grabbing, soulless corporation,
+not too much appeal for the down-trodden poor, nor an over indulgence
+in personalities. The lawyers must not call the other side liars and
+thieves too openly. That is, they may say they are untruthful, but
+liar is too strong. The denunciation must be a little restrained.
+
+The judge throws out a rather mild admonition. "The counsellor must
+keep to the evidence. You may not refer to matters which are not
+before the court." The lawyer says, "Yes, your Honor." The judge
+withdraws again into a contemplation of the high cost of living and
+his diminishing bank balance. The shouting and vociferation grow
+louder. The jury are long-suffering, but they cannot object. The other
+lawyer jumps up, and after an insistent effort makes himself heard.
+"The witness did not say that; you are stating something that is not
+so. I ask to have the stenographer read the minutes." The stenographer
+begins turning over the pages of his stenographic book. The exact
+testimony of the lady in the car is hard to find. "Heavens," think the
+jury, "are we going to have the whole case over again?"
+
+The lawyer who is talking complains, "If my friend is going to keep on
+with his objections I shall never get through in my fifteen minutes."
+The stenographer has not been able to find the exact spot. It is
+apparently not in the testimony. Then the lawyer objecting says, "I
+ask your Honor to instruct the jury to disregard the statement of
+counsel." The lawyer must have a sarcastic vein of humor. Such an
+instruction does not seem necessary. The judge says, "I will cover
+that in my charge, but I must ask the counsel to be careful," and he
+looks warningly at the clock.
+
+Finally the hands point to the agreed time. The judge says, "Your time
+is up, counselor." "Just one minute more," says the lawyer and then he
+goes on for three. The judge raps on his desk. The lawyer winds up his
+speech in a hurried peroration. "Therefore, gentlemen, with the utmost
+confidence in your ability as men of experience and affairs, with the
+sure belief in the justness of my defense, I leave the matter in your
+hands."
+
+The plaintiff's lawyer now takes the floor, the jury shift their feet
+and glance at the clock. "Gentlemen of the jury," he begins. He
+probably leaves out the judge. The plaintiff now having the attack is
+more direct. It is rather significant of the change in all procedure
+that the language of all court addresses is becoming more and more
+simple. The old days when the lawyers delivered homilies of Latin have
+disappeared. No longer does the lawyer refer to _nunc pro tunc_, or
+make facetious jokes in a language the layman and probably the court
+does not understand. If a lawyer makes too many Latin quotations, the
+court thinks him affected. He must be simple, direct, and to the point
+at issue.
+
+His art in presenting his case consists in drawing the picture of the
+facts so vividly that they will remain in the jurors' minds. Employing
+his imagination in forming the concept, he gets it across the rail to
+the jury by the fine gift of selecting words and incidents. No one, it
+is said, is ever convinced by argument, but any one can realize a
+visualized picture of words.
+
+The counsel starts to storm and abuse his opponents and his opponents'
+client, and in his wrath also forgetting that persuasion is not
+accomplished by denunciation. The majority of the jury are rather
+easy-going, kindly men, who do not care to hear others made too vile.
+Just as satire is more effective than direct abuse the tolerant
+juryman prefers to have the other party laughed at than called names.
+
+The clients become worked up over their wrongs and excited by their
+lawyers' oratory. When the case is over they are extremely surprised
+to see the men who have been shaking their fists and ready to spring
+at one another's throats, quietly lock arms and go out to lunch
+together. It is all in the day's work and they must fortify themselves
+for the next trial. The shock is something like that when, after a
+melodrama, the heroine having jumped over the bridge and died in a
+whirlpool, comes out quietly and, in spite of her suffering, bows
+smilingly before the curtain.
+
+The judge and the jury know that the lawyers are coming to life again
+and are not really trying to kill each other. This is one of the
+pleasantest aspects of the life in court. There is a good fellowship
+between the two lawyers who have been so keenly struggling. They even
+have a kindly feeling toward the judge when he is off the bench.
+
+The court attendant calls the attention of the lawyer to the time, who
+with a sidelong look at the clock, also "Confidently leaves the case
+in your hands, gentlemen."
+
+The two lawyers sit down and the judge puts on his spectacles, gathers
+up the notes he has been making of the main points of the trial, and
+turning to the jury begins his charge.
+
+
+
+
+XIV
+
+THE HEAVY CHARGE
+
+
+No, madam, the charge of the judge does not mean his bill for expenses
+or his salary for trying the case. A charge implies something grave,
+heavy, and aggressive. It is what the judge tells the jury about the
+case. It is never light or humorous, but ponderous and hard to
+understand. The court-room doors are locked, no one must come in or go
+out during the charge.
+
+The judge looks solemnly at the jury, the jury straighten up from the
+desponding attitude they gradually have assumed during the address of
+counsel.
+
+The end is near and they begin to have hope. They appear interested
+and a gleam of awakened intelligence is in their eyes. Now at least
+they are going to hear what they wanted to know about the case. The
+judge will probably tell them something new and clear up the points
+they did not understand. It may be even he will explain why he made
+those strange rulings during the trial and what that mysterious
+conference was when he called the lawyers to his desk and they talked
+together for so long.
+
+The judge begins: "Gentlemen of the jury, the plaintiff in this case
+seeks to recover," and then he goes on to tell them what the plaintiff
+wants, which is just what the plaintiff's lawyer has been telling
+them. The judge must have been asleep while he was talking for he is
+saying the same thing over again, only in a little different language.
+After that the defendant's case is set forth. There again that is what
+the defendant's lawyer was saying. It does not appear reasonable that
+they are compelled to hear six times what the case is about. There
+were the two openings of counsel at the beginning, the two summing up
+at the end, and now the two explanations of the judge. There ought to
+be an allowance made for the jury possessing a little intelligence.
+
+The judge then tells again what the witnesses have said, in not quite
+so many words, but covering the main points. There is no use in that.
+The jurymen think they ought to remember fairly well what was said.
+The judge admits it after he is through by saying himself: "Gentlemen,
+you are to be governed by your own recollection of the testimony
+rather than by what is said by either side in summing up or by the
+Court." If he means that he should have kept still and let them have
+their own recollection.
+
+Then he goes on: "If you believe any witness has wilfully testified
+falsely as to a material fact, you may disregard that witness's whole
+testimony." Of course, is that not the reason for their being there?
+Why, the judge in the beginning made them swear to decide the case
+"according to the evidence." The jury is going to do exactly that.
+They are going to decide which side is lying and which side is telling
+the truth. They are not quite so stupid as not to know that. There
+seems no need in insulting them by telling them that they need not
+believe a witness unless they want to. Why are they there?
+
+The judge tells them that the function of the jury is to decide the
+facts and for him to decide the law. That is fortunate, for they could
+not understand the law, even if they wanted to; it is a silly business
+and it is not common sense. What the jury feels is that the judge's
+charge is leaving it to them without any trouble about the law. But
+wait a moment, the judge is going on to tell them about the law as
+applied to the particular facts before them.
+
+The important principle of law they are being told is what is known as
+the preponderance of evidence and the burden of proof. The judge goes
+on at great length about the weight of evidence. The weight of
+evidence, he says, is the preponderance of proof and the preponderance
+of evidence is the weight of evidence, and the man who has the burden
+of proof must have the weight of evidence and the weight of evidence
+being the preponderance of evidence is also upon the man who has the
+burden of proof. And the preponderance of evidence does not mean proof
+beyond a reasonable doubt, as in criminal actions, but that the proof
+must be heavier on one side than the other and the one who has the
+burden of proof must sustain the preponderance of evidence. That is
+the law; the judge has said it. What it means the jury give up. The
+lawyers nod their heads wisely. The judge has stated the law
+correctly.
+
+The judge may go on a little further and tell them more about the
+burden of proof and the preponderance of evidence. He may say that the
+weight of evidence does not mean the number of witnesses. The mere
+fact that one side has six and the other side only two does not mean
+that the jury are to believe the side who has six. The jury know that
+when probably they are all exaggerating somewhat they are going to
+decide the way the thing happened. Then the judge tells them, having
+seen the witnesses, "That they may consider their bearing on the stand
+and their manner of giving testimony." Surely they are going to do
+that. Is not the best way of knowing whether a man is telling the
+truth to look at him and watch him while he is talking? There is
+little sense in the judge advising them to consider his bearing on the
+stand.
+
+Another thing the judge says is that they are not to be governed by
+sympathy or prejudice in arriving at their verdict. This is a caution
+that the judge thinks necessary. He forgets that when they are in the
+jury-room, with locked doors and no one to disturb them, they are
+going to do exactly as they are inclined. Prejudice and sympathy are
+for unintelligent people who do not know what they are about. Both
+lawyers have been telling the jury what intelligent men they were and
+it seems unnecessary for the judge to say that they are not to be
+governed by prejudice and sympathy. Suppose the defendant is a rich
+corporation, they are not going to find against it because it is rich.
+The company can stand the loss of a few dollars out of its pocket
+better than the poor man anyway. Not that they are going to decide for
+that reason.
+
+As these accumulating evidences of the judge's misunderstanding of
+their attitude of mind pile up, the jury sink back into their seats.
+After all, the charge of the judge is not more understandable than
+most of the other parts of the trial. The saving point about it is
+that the end is drawing near and they can soon get away and have a
+smoke in the jury-room, and afterwards go home.
+
+The judge, while he is charging, understands a little of what has been
+going on in the jury's mind. He has seen the gleam of interest which
+was in the jury's eyes at the beginning gradually die out. He notices
+how they fall into resigned attitudes. He has a glimmering that the
+good old legal aphorisms which he has been enunciating with such care
+about the burden of proof, the weight of evidence, the credibility of
+witnesses and the caution about sympathy and prejudice, are not very
+convincing to the jury. But the conventions require that he must go
+on.
+
+"Gentlemen," he says, "I must instruct you to eliminate from your
+minds any discussion of counsel upon questions of law or rulings of
+the court upon the rejections of testimony, or decisions upon motions
+to dismiss or direct. They involve matters of law with which you are
+not at present concerned. In arriving at your verdict you are to
+consider only the evidence."
+
+Perhaps the judge feels a trifle foolish and therefore he becomes more
+emphatic and solemn. He carefully and in a painstaking manner defines
+the law of negligence. He tells them the law of negligence involves
+two cardinal principles. "The first is that the plaintiff must
+establish that the defendant by its employees was guilty of
+negligence, that he failed to act as a prudent and careful man;
+second, that the plaintiff must have shown himself free from
+contributory negligence; that unless the jury find both of these, that
+the plaintiff cannot recover." Then perhaps he interjects a little
+more about the balance of proof as to these particulars. "If the jury
+find the plaintiff was negligent and the defendant was negligent, they
+must find a verdict for the defendant. If they find the plaintiff was
+not negligent and the defendant was negligent, then they may find a
+verdict for the plaintiff, provided they find, etc., etc. Otherwise
+should they find the plaintiff was not negligent and the accident
+happened not through the negligence of the defendant, then again must
+they find for the defendant, or again--" but the jury by this time is
+exhausted. The alternatives do not interest them. The judge may know
+what he is talking about, but they do not. The interesting question is
+how much are they going to give the plaintiff.
+
+The judge finally becomes worn out, a kind of self-hypnosis sets in.
+He remembers so many phrases and legal maxims that he might enunciate,
+his brain becomes confused as to selection. There are volumes of
+charges to juries which he has more or less learned by heart. There
+are so many glittering and vague generalities about the law of
+negligence, the law of contracts, the law of evidence, the burden of
+proof, or the weight of testimony, that he could go on indefinitely.
+The jury have ceased to understand and the judge realizing the
+hopelessness of this situation, winds up by saying--"So, gentlemen,
+bearing in mind what I have just told you and the evidence in the
+case, you will retire and consider your verdict."
+
+The jury begin to gather their hats and coats, when up jumps one of
+the lawyers and says: "One moment, please. I ask your Honor to charge
+that if the jury find the cow that was in the plaintiff's garden was a
+white cow and not a red cow, then their verdict must be for the
+defendant." "I so charge," says the judge. "I except," says the other
+lawyer, "and I ask your Honor to charge the jury that if they believe
+the cow was the property of the defendant, their verdict must be for
+the plaintiff." "I refuse to charge in those words," says the judge,
+"there may not have been any cow or he may not have eaten the
+cabbages." Or the lawyer for the railway may ask the judge, "That if
+the jury find that the driver was forty feet away from the tracks and
+the car was a hundred feet away from the corner of Seventy-eighth
+Street when he first saw the car, and the car was going at a rapid
+rate and the conductor pulled the bell and the driver was sitting on
+the right-hand side of the wagon and might have seen the car had the
+car been one hundred feet below the corner, then in that event I ask
+your Honor to instruct the jury that the plaintiff was guilty of
+contributory negligence and cannot recover."
+
+The question is undoubtedly a poser. The judge is evidently worried;
+if he make a wrong guess and says "yes" or "no" at this juncture, the
+appellate court may say: "Error, judgment reversed, new trial
+ordered." What happens is that the judge takes a chance. The lawyer
+says, "I refer you to 169 New York Court of Appeals Reports, page 492;
+in the case of Jones _vs._ Metropolitan, the court there said that the
+refusal to so charge was reversible error." The judge looks wise and
+finally says, "yes." There is a little playing of politics in this; he
+has possibly been thinking how the jury are going to decide and
+realizing that what he charges won't make any difference, he plays
+safe by charging what the losing side wants.
+
+These requests to charge may go back and forth indefinitely with
+rulings and exceptions. Either lawyer may except to a portion of the
+judge's charge, thus serving notice upon him that unless he hurry up
+and change it he may be reversed on appeal. That is the reason why the
+charge of the judge has not a great effect. He has to be too careful.
+
+In New York State the judge can not say what he thinks about the
+case. In other words, the charge must be indefinite. In England and
+the Federal courts in this country, the judge may legally express his
+opinion as to how the case should be decided, but that is as far as he
+can go. The distinction is a relic of the old days of the jury system
+when the judges would imprison the jury until they found as was
+wanted. Now the judge may only express a preference and the jury may
+do as they please. In some courts the democratic idea of the
+independence of the juryman goes to the extent of not allowing the
+judge to say anything specific.
+
+The result is that the jury are confused. They are usually of so
+independent a nature that the judge's charge would not greatly
+influence them. The clients sit by utterly confounded; they hear the
+judge wisely say, "I think perhaps yes, but on the whole it may be
+no," and when he is through, not understanding as much as the jury,
+they think the judge's charge is very fair. Having said little of
+import it probably is.
+
+The continental method is so entirely different, that it is shocking.
+In the courts in France the judge practically says for his charge,
+"You've heard the evidence, now go on out and do what's right." This
+again illustrates the difference between the old and the new ideas of
+courts. The old is a battle ground where the issues are defined, the
+courts are kept within narrow limits and the rules of the ordeal
+observed strictly, and the modern, merely an investigation of a
+dispute with the glamor of a contest left out. It is an investigation
+of facts, which however bitter may be the personal animosity, should
+never lose sight of the main idea of arriving at the plain truth, in a
+common sense way.
+
+At last the lawyers are silent, the trial is over, the judge patiently
+asks are there any more requests to charge, and there being no more,
+he turns to the jury and says, "Gentlemen, you will retire and
+consider your verdict." Slowly they file out, conducted by the court
+attendant, to the jury-room.
+
+
+
+
+XV
+
+THE TRUE VERDICT
+
+
+The truth is said. The battle is over and the mighty have prevailed.
+The decision is made. Justice divine and compelling is about to
+pronounce its sentence. The truth seeks to burst forth and the jurymen
+have knocked at the door of the room in which they have been locked
+for so many hours. The court attendant, who has been standing like a
+sentinel outside to prevent the approach of eavesdroppers and
+listeners, turns the key and sticks his head into the room, withdraws,
+locks the door again, and sends off for the judge.
+
+The judge has been in his chambers taking a rest and enjoying a cigar.
+The judge always, when he is off the bench, is by courtesy said to be
+in chambers--other people might call it a room with an office desk,
+but the dignity surrounding a judge invests even the bare office room
+where he sits. It is named in the plural, even if it is only one
+ordinary room. He throws away his cigar. The lawyers or their
+assistants who have been lounging about the empty court-room,
+gossiping with one another and trying to evade the importunities of
+their clients, who insist upon speculating with them on the probable
+result, have been summoned to the bar. The judge takes his seat on the
+bench. The jury, marshalled by the court officer, file in. They are
+lined up in the jury-box.
+
+"Gentlemen," says the judge, "have you agreed upon a verdict?" "We
+have," answers the foreman of the jury.
+
+When the jury have first been locked in the jury-room they have
+probably immediately relaxed after the long strain of the trial. They
+were entitled to a smoke and to feel at their ease. Besides they know
+that if they finished their deliberations too early, they will be
+called on another case. It was nearly two when the judge finished his
+charge, so they have plenty of time to waste; for if they came back to
+the court-room before three they would be impaneled in another trial.
+
+They have taken a straw vote to find out how the sentiment stood, not
+with the hope of arriving at a decision but by way of trying out the
+matter. The result stands nine for the plaintiff and three for the
+defendant. They light their cigars, for they came well prepared for
+the tedious hours in the jury-room.
+
+The nine men look at the other three in disgust, the three look at the
+nine with contempt and then they begin to argue. The deliberations of
+the jury are always secret, their method of procedure is uncertain,
+and only the result of their deliberations appears in court.
+Nevertheless, it is only reasonable to speculate on how they have
+arrived at their verdict. Their verdict is the climax of the drama,
+the goal of the race, the award of victory. One side must win and the
+other be defeated. The psychology of the jury in reaching the verdict
+is the great mystery and the most intense interest of the trial. The
+judge does not know, the lawyers are unable to understand. There is a
+certain respect for the inviolate privacy of a jury-room. If trial
+lawyers could understand the method by which they arrive at their
+final announcement they would be far better equipped than by a study
+of the law for many years.
+
+It is a question whether or not their actions are different from those
+of ordinary men outside a court-room. They have left the restraining
+influence of an uncomfortable and conspicuous position and have
+entered again into the attitude of mind of the everyday world. The
+control of the judge has disappeared. The lawyers are only memories.
+They have become only plain business men with something definite to
+do. They do not know how to do it and the discussion begins in a
+desultory way.
+
+"Well, we ought to give that boy something."
+
+"I don't like the looks of that last witness."
+
+"That lawyer for the defendant was too smart."
+
+"But do you think the driver tried to cut him off?"
+
+"He couldn't have been in bed six weeks."
+
+"No man would stay in bed that long with a sore knee."
+
+"Oh, well, he only meant he was about the house."
+
+"That doctor was a great one. He loved to get off those terms; he must
+be just graduated from the hospital."
+
+"Did you hear the lawyer say in a case he tried in Brooklyn he had
+seventeen of those experts?"
+
+"Well, let's take another vote and see if we can't get together."
+
+"I can't stay here all day. I've got to close something important at
+four o'clock."
+
+"You'll stay here if you have to; we want to get this settled right."
+
+Another vote is taken. The result is the same and the two sides
+gradually assume opposing positions. Each one takes a leader and
+spokesman; the discussion is probably between those two and an
+occasional interjection by the others. By this time the argument has
+grown tense and after half an hour the original arguments of counsel,
+the evidence, the instructions of the judge have become merged in the
+minds of the jury with what has been talked of in the jury room. The
+recollection of each juror includes the recollection of the discussion
+that they are having. The mental picture is now a combination of what
+each witness thought, each lawyer conceived it, how the judge
+described it, what they imagined it during the trial, and added to the
+mental concept is the recent present struggle between twelve points of
+view.
+
+They do not remember what it was the judge told them about their
+verdict. Suppose they send out and ask him. No, they do not want to
+appear like fools. It is plain. Their verdict must be for the
+plaintiff or the defendant. But in that contract case where the other
+side wanted something back from the plaintiff, how are they going to
+find a verdict for both? They can't find a verdict both ways. They had
+better send out and ask the judge. No. Well then they will send for
+the pleadings, they will show.
+
+"What," says one juryman, "do you think those pleadings would show
+anything a reasonable man could understand?"
+
+They decide that there was a bill that told the story. They knock on
+the door. The court attendant opens it. They explain, he gathers in
+the lawyers, and they go to the judge's desk. There is a thrill. The
+jury have agreed so quickly it must mean a verdict for the plaintiff.
+If they had been out longer it would have meant there was a
+disagreement or a verdict for the defendant. The longer the jury stays
+out the better for the defendant thinks the lawyer. But the actions
+of the jury are uncertain and there may be no rule of arriving at
+their decision.
+
+There is the story of the judge who, after the jury had been out for a
+long time, made a bet with the stenographer as to how the jury were
+going to decide. The judge thought himself an expert in determining
+the probable verdicts of the jury. After they came in and announced
+their decision and were discharged, the judge having lost looked
+crestfallen. The stenographer smiled. Then the judge recovered
+himself.
+
+"You win," he said, "but the next time you and I bet on a decision it
+is going to be one of our cases without a jury."
+
+The attendant asks for the bill and returns to the jury-room. The
+court falls into a lethargy of waiting. The jury, having their
+information, go on with the discussion, probably on the following
+lines.
+
+"Sure, I told you the silks were worth four hundred dollars."
+
+"Well, I know those kind of people; they are small people and they
+never did that amount of business in all their lives, let alone one
+month." Or,
+
+"Don't you know that neighborhood; all the cars speed up whenever they
+get there."
+
+"Why, yesterday I was getting off a car and the conductor pulls the
+bell, etc., etc."
+
+"No, I ain't prejudiced against the railroad; I ain't got nothing
+against the railroad."
+
+"Of course, we ain't going to decide this case on sympathy or
+prejudice. But that boy's Irish and he looks like he come of good
+honest people."
+
+"Vy, I don't see no difference whether he is Irish--or Yiddish; vot ve
+vant is justice."
+
+"Now see here, my friend, if you think you're going to make this a
+racial matter you're mistaken. Just because that boy's Irish you
+needn't think he ought not to get nothing. You're prejudiced, that's
+what you are."
+
+"Oh, let's get down to the evidence anyway; what we want is to
+decide."
+
+"Vel, the motorman vas Irish, vot you talking about?"
+
+"Sure, but he had to say what he did. Didn't he have to hold down his
+job with the company?"
+
+The rest of the jury sink back resigned and despondent. They will
+never get out. One of them ventures.
+
+"The judge told us that the law was--"
+
+He is interrupted.
+
+"Oh, we don't care so much about the law. What we want to do is to do
+what is right."
+
+Somewhere, somehow, and by non-understandable methods the verdict is
+reached. If the jury ask for further instructions, they file back into
+the court-room and the judge proceeds to elucidate the hidden mystery
+of the law in much the same manner he did in his charge. They return
+again not satisfied, and take up the discussion.
+
+The most dramatic moment in the trial is when the officer comes in and
+announces the jury have agreed. While they slowly file in, the
+prisoner or the parties watch them with soul-tearing eyes; the lawyers
+with anxious expectancy. There is an electric thrill in the air. In
+some mysterious manner their verdict becomes known before the foreman
+speaks. Call it thought transference, mind reading, or what you will,
+there is a quick understanding from their faces, their manner of
+walking in, and their final pronouncement is only a confirmation of
+what was expected.
+
+The jury has spoken, the lawyer who has lost moves to set aside the
+verdict. The jury looks startled. Is it possible that after all that
+trial and all that deliberation the judge is going to upset it again
+and have the long trouble gone over. The judge denies the motion or
+takes it under advisement. Only on rare occasions does he set the
+verdict aside then and there. The verdict must have been outrageous,
+absurd, clearly a compromise, or absolutely and shockingly against
+common sense. The theory of the law is that the verdict of a jury is a
+final judgment on the facts by the best judges of the facts. It will
+not lightly or for small reasons be interfered with.
+
+The question of belief in the jury system is one of the most futile of
+all large questions. In the first place, jury trial is so deeply
+engraved in the constitutional bill of rights that one might as well
+ask: "Do you believe in citizenship?" "Do you believe in the United
+States of America?" Secondly, trial by jury is so completely involved
+in the present system of court trial and procedure, that they are
+inseparable. The evils of the whole attach to the part and the
+beneficent aspect of the courts pertain equally to jury trials.
+
+Coming down to a concrete case and leaving the abstract principle to
+the theorist, there are certain obvious things to be said for and
+against jury trial. The jury represents the opinion of the common or
+ordinary man--the _vox populi_. Twelve men picked at random are
+probably neither all capitalists nor all laborers. They are made up
+of a few of both, but the majority, if not all, are the small
+tradesmen or the great middle class. These men are not ignorant,
+prejudiced, or unintelligent. They have a limited experience, but
+their judgment is the judgment of mediocrity and mediocrity is what is
+wanted. The professional man, the expert, the specialist is needed for
+the special degree of administration, but for the determination of the
+actual right and justice, what is needed is the instinct of the
+ordinary man,--the plain ordinary common sense.
+
+When the criminal says: "I stand a better chance with a jury"; when
+the civilian says: "If I had the wrong end of the stick give me a
+jury," he is appealing not to the wrong side of the jury system, but
+to a quality which is not always recognized.
+
+Law is an exact, definite statement of principles, absolute and
+apparently immutable. When a man on the street walks up to another and
+wantonly insults him, the law is, that the insulted party must turn
+and walk away. If the matter came before a jury they would never
+convict him for knocking the other down at once. The jury system is
+the mitigation of the law.
+
+
+
+
+XVI
+
+LOOKING BACKWARD
+
+  Extracts from the Graduation Dissertation of a Columbia
+  J.E. upon receiving his degree of Juridical Expert in 1947.
+
+
+Historical investigation of obsolete customs is of little value beyond
+preserving some record of what may soon be forgotten.
+
+In the year 1947 it seems almost unbelievable that the universal use
+by the public of Judicial Corporations should have been a matter of
+such recent economic growth. It is interesting to trace their
+development and the social causes from which they sprang.
+
+The efficient administration of these co-operative Corporations being
+demonstrated by their financial success, makes it unnecessary to
+dwell upon the details of their intensely developed organization.
+Existing as they do upon so broad a comprehension of the whole
+commercial and social structures, it is little wonder that they have
+proven their value to the community. Their highly specialized
+departments of Issues, Investigation, Statutory Law, Records,
+Determination and Results correspond in a measure to the former method
+of procedure in the extinct courts of law and equity. Times have
+indeed changed.
+
+The analogy between the present methods and the antiquated and
+conventionalized customs of those cumbersome and inadequate
+institutions is not difficult to find. The department of Issues, for
+example, corresponds to what was known as the pleadings in an action.
+These were formerly bits of paper governed as to form by inflexible
+rules, instead of the efficient method by which under the trained
+managers of able minds the matters in dispute, either of fact or law,
+are now narrowed down to exact points of difference. Naturally the
+methods of their managers being untrammelled by outside rules and they
+being men of wide experience and tact, the work of this department is
+not as difficult as at the first commencement of Judicial Corporations
+was anticipated.
+
+The departments of Investigation and Experts correspond with the
+former division of court trials known as evidence and testimony. Any
+explanation would be futile of this branch of a forgotten formalism.
+The ancient rules of evidence and court procedure could only be
+understood by contemporaries and an extensive research has failed to
+disclose very clear concepts even by them. The modern methods of the
+departments governing the ascertainment of facts, either through the
+experience of the departmental employees or the efficient work of
+trained investigators, have naturally been much aided by the invention
+of the Viviphone making all communication adequate and easy.
+
+The departments of Statutory Law and Records even yet retain certain
+characteristics of a period when judicial officers and clerks
+represented to the public mind the embodiment of what was known as
+"Red Tape," a true colloquialism descriptive of the attitude of
+official conservatism. These departments being governed according to
+the latest bibliographical methods are of merely supplemental value as
+reference. The Simplification and National Unification of Federal and
+State statutes has, of course, added greatly to the facility of this
+branch of the business.
+
+The Determination and Result departments at first were thought to be
+of primary importance. Corresponding as they did in their functions to
+the former exclusively judicial qualities of the courts and the final
+judgments thereof, the exaggerated import previously given to those
+functions pre-supposed an equal necessity in this subdivision of the
+management of the corporation. This proved to be incorrect. It was
+found that after a careful framing and narrowing of the matter in
+dispute by the Issues department, and a thorough and careful sifting
+of facts by the Expert and Investigation departments, the dispute
+gradually, if not wholly, disappeared. Men of the highest character
+and calibre being employed at large salaries as heads of these
+departments, have given adequate satisfaction, as has been proved by
+the prosperity of the Corporations. The recompense of the heads of
+these various departments, requiring as it does men of the greatest
+commercial understanding, is said to be in some instances fabulous.
+
+In the early quarter of the present century and indeed in the latter
+part of the nineteenth, the undercurrents of many movements were
+already stirring the surface of the placid stream in which for so many
+centuries had been flowing the course of justice. Those curious relics
+of a medieval, age, the law courts, still at so recent a date,
+retained many of the forms, characteristics, and usages of a time
+when knights fought in plate armor and indulged in the mimicry of
+battle, urged on by the glamor of chivalry. The very terms and the
+legal phraseology of the period implied the jousts, tournaments, and
+ordeal by battle of a romantic and self-deceptive age.
+
+The universal world war that resulted in such an immense change of
+social and economic values contributed naturally to the destruction
+and abandonment of old forms and structures. Yet even before the war
+and the economic revolution that followed so quickly thereafter, the
+tendencies toward a more sane treatment of the question had already
+begun.
+
+Like the extinct class of so-called physicians and doctors, who have
+now been amalgamated by the Public and Private Health Corporations,
+what was known as the legal profession or men known as lawyers and
+judges, had been gradually losing their characteristics as a class and
+had been step by step merging into men of business.
+
+One of the earliest changes was the disappearance of the lawyers known
+as the real estate lawyer. Up to about 1890 there still remained
+members of the legal profession who made a livelihood out of the
+examination of the titles to real property. The obvious advantages of
+a comprehensive title examination plant by large corporations known as
+Title Insurance companies soon eliminated this particular subdivision.
+
+The next important change arrived in a curious manner under the cry
+for what was then known as Social Justice--a vague term which was then
+advocated by many so-called "reformers" and ignorantly opposed by the
+capitalist class, without any very clear understanding of what was
+meant. So little was realized of the economic and efficiency values of
+insurance against chance, that the beginning of the movement was
+opposed. The movement resulted in certain obvious changes which
+looking back upon them seemed inevitable and natural. This was what
+was known as universal Employers' Liability laws. The principle soon
+extending itself to all classes of accidents, resulted in the passage
+of legislation which had been foreshadowed by the tremendous growth of
+Casualty and Accident Insurance companies. Beginning at first with
+laws holding the employer liable for accident, and afterward resulting
+in the insurance of labor, it was gradually extended to accidents of
+every nature, including injury from travel on common carriers and the
+ordinary vicissitudes of life.
+
+The result of State insurance against negligence and injuries of every
+kind was that all claims for injuries were adjusted by the State and
+the lawyers who lived by pursuing the neglect or misfortunes of
+others, gradually became extinct. A certain distinguished and
+conspicuous type was known by the term "ambulance chasers"--the exact
+derivation of the term not being now, in 1947, entirely clear but
+probably being related to some antiquated legal custom of succoring
+the wounded--very soon disappeared.
+
+The cases that arose from all commercial disputes became less numerous
+as the more candid and intelligent dealings of the economic world
+awoke better and more honest business standards. But long before the
+disappearance of what was known as the commercial lawyer, there are
+evidences that the former courts of law, even before their entire
+abandonment, had fallen into a partial desuetude. Apparently disputes
+of large magnitude never reached the courts. And the legal standards
+enunciated by the courts were so entirely unrelated to the standards
+on which the actual commerce of the world was conducted, that resort
+was but little had to the arbitrament of the law of procedure in
+court.
+
+The entire change of personal and domestic relations and the greater
+freedom from the institutionalism of semi-civilized communities,
+_e.g._, the abandonment of all restriction on divorce, naturally did
+away with the class of litigation that appeared in certain courts of
+law dealing with marital or personal grievances.
+
+In regard to what were known as criminal lawyers and criminal courts,
+the different attitude which the public formerly had toward
+unfortunate sufferers makes the existence of such a class or such
+institutions almost unbelievable. As it is now inconceivable that we
+should throw into unsanitary jails men and women who are mentally or
+socially diseased, so is it hard to realize that during the
+unintelligent period of which we are speaking, nay for many centuries,
+there existed people who lived upon their misfortunes.
+
+Naturally with the disappearance of litigation and lawyers the public
+no longer tolerated the existence of the judges or courts. For a few
+years they retained a hold upon the imagination of a small portion of
+citizens who entertained a sentimental regard for the State
+institutions of a civilization founded upon the unsound teachings of
+eighteenth-century doctrinaires.
+
+The period of the abandonment of the old courts corresponded with the
+extraordinary development for what was called "moving pictures";
+those pale, lifeless presentations without color, speech, or
+substance, at which the people of a benighted age gathered for
+amusement or entertainment! It requires imagination to conceive that
+people were unfamiliar with the ease of communicating with any place
+on the globe and reproducing exactly in form, color, and speech by
+turning on a switch. The observer of that age must have been shocked
+and surprised to find the solemn courthouses turned into what was
+known as moving-picture palaces or as community centers for dancing
+and social entertainments.
+
+The change of class which the lawyers had gradually been undergoing to
+simple men of affairs was not so abrupt as that for the judicial
+officers, who were far removed from actual life. Various expedients
+were attempted by which they could be preserved as a class. Their
+former occupation being gone and the idea of pensioning not being
+satisfactory, as there remained a large number of younger men on the
+bench who might be of some value to the community, a system of court
+cafes was evolved. Even to-day it is fast disappearing and for the
+benefit of future generations it may be well to describe the last
+remnant of an institution that held its position in the social order
+for so long.
+
+Human nature being always substantially the same, it was thought that
+its demands for the dramatic action and stress of battle should have
+some outlet. It was not thought wise to entirely abolish the arenas
+for legal disputes, although the present Judicial Corporations with
+their excellently organized departments were already rapidly
+destroying all litigation. It was felt that perhaps humanity demanded
+the bringing together of the two disputants so that they personally
+might oppose their claims to one another.
+
+It now seems incredible, in view of the absolute simplicity of
+communication by Viviphone, that this should be thought necessary. The
+need for romantic expression seemed to demand the opportunity for
+personal presentment. The social workers who established these cafe
+courts, did not realize that with the growth of a more intelligent
+public point of view, the question of abstract justice was little more
+than an application of customs and social standards to particular
+facts; and that with the fall of the ideas of justice in the abstract,
+there also fell the appurtenances of justice.
+
+It may here be noted that the learned treatise of Professor
+Humperdinck upon the recent discovery of certain statutes found among
+the ruins of the Great New York Explosion is mistaken. The figure
+which he described among others of the woman blind-folded and with an
+arm extended as though holding something, does not represent as he
+calls it, "The poor blind girl begging," but a figure of the Goddess
+of Justice holding the scales, who was so long worshiped.
+
+The growth of the court cafes was made possible by the amelioration in
+the climate of New England effected through the alteration in the
+course of the Gulf Stream. The inhabitants became accustomed to spend
+more time in the open air so that the courts became popular. Existing
+as places for the display of eccentricities and the airing of personal
+grievances, they soon became extremely frequented as places of
+amusement.
+
+Whenever any litigant felt that there was any matter in dispute which
+needed adjustment by some outside agency, he invited the other party
+to come to the court. The judges occupied the position of proprietors,
+_maitres d'hotel_, and waiters, whose business it was to make the
+courts as attractive as possible. As their salaries depended upon the
+amount of receipts and the courts were run upon a partnership basis in
+which all shared the profits, the aim of the judges was to draw as
+large amount of custom as possible.
+
+The surroundings were in every way desirable. In the open air, under
+spreading trees with the sunlight filtering through the leaves upon
+the well-kept lawns, were spread tables covered with delicious fruits
+and every delicacy that the human mind could devise in the way of
+culinary delights. Rare wines, exotic flowers were constantly supplied
+in profuse display. Luxurious divans and reposeful seats were
+interspersed about. The most modern as well as the most famous
+musicians furnished exquisite music, while flitting about in neat
+white aprons partially concealed by their gently swishing gowns of
+black, the attentive justices anxiously tried to add to the pleasure
+and comfort of their customers.
+
+With such temptations as these there was little wonder that the
+opposing party accepted the invitation to attend court. Witnesses and
+spectators crowded about, both on account of the novelty of the
+institution and the opportunity for refreshment and amusement. The aim
+of the judges was to incite the disputants to continue their disputes
+instead of trying to pacify them.
+
+The more vociferous they grew, the more noisy and passionate they
+became, the better the crowds were held who came to observe the
+performance. It was upon this clientele and the sale to them of viands
+and comestibles during the dispute that the profits of the judges
+depended. So long as there was a serious and energetic struggle the
+spectators remained at the adjacent tables and trade was brisk.
+Whenever, however, the litigants came to a full realization of the
+absurdity of their position, either by the continued laughter of the
+spectators at the public airing of their private wrongs with which the
+public had nothing to do, or becoming tired of mere words and came to
+diminish the ardor of their combat, the crowd would begin to dwindle
+away. The judges quick to understand the loss of trade after vainly
+trying to induce the litigants to new efforts, would gently and
+suggestively push under their hands a pair of dice boxes or a pack of
+cards and the dispute would sometimes end upon the throw of a die or
+the turn of a card.
+
+The reason that these court cafes have not long remained in vogue, was
+that all actual litigants soon became so sophisticated as they
+realized the enormity of the position and how unreasonable their
+conduct seemed to the average man. Public sentiment was naturally
+against such a waste of time and real performers became scarce.
+Several of the courts were detected in hiring false litigants as
+actors so as to draw the crowds. The performance not being genuine
+soon lost its interest. The patrons left them and many courts became
+bankrupt. So like their predecessors, those light-minded courts have
+practically ended.
+
+
+THE END
+
+       *       *       *       *       *
+
+
+Justice to All
+
+The Story of the Pennsylvania State Police
+
+  By
+  Katharine Mayo
+
+  Introduction by
+  Theodore Roosevelt
+
+  8th. Illustrated. $2.50
+
+Theodore Roosevelt says: "It is a book so interesting and so valuable
+that it should be in every public library and every school library in
+the land." This State Constabulary in its romantic career has hunted
+down crime, made raids into "Black Hand" strongholds, protected lives
+and property from mob violence, and always risen to every emergency
+where nerve and swift action are required.
+
+G.P. Putnam's Sons
+
+  New York           London
+
+
+
+       *       *       *       *       *
+
+
+
+      +---------------------------------------------------------+
+      |         Typographical errors corrected in text:         |
+      |                                                         |
+      |   Page 7: beween changed to between                     |
+      |   Page 21: psuedo-classic changed to pseudo-classic     |
+      |   Page 173: frigthened changed to frightened            |
+      |   Page 202: planitiff changed to plaintiff              |
+      |                                                         |
+      +---------------------------------------------------------+
+
+
+
+***END OF THE PROJECT GUTENBERG EBOOK THE MAN IN COURT***
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