[Speech of Dr. Samuel B. Ward at the annual banquet of the New York
State Bar Association, in the City of Albany, January 18, 1887.]
MR. PRESIDENT AND GENTLEMEN:--That a medical man should be
asked to be in attendance at a banquet such as this was natural, and
when I looked over the list of toasts and found that the clergymen had
been omitted, I took it as an intended though perhaps rather dubious
compliment to my profession, the supposition being that the services of
the clergy would not of course be required. When I was asked to respond
to this toast, in an unguarded moment of good nature, which is
remarkable even in me, I was beguiled into consenting by the persuasive
eloquence of your worthy President and Secretary, and a day or two after
I visited the Executive chamber with the view of endeavoring to make "a
little bargain" with his Excellency. Being myself neither a lawyer, a
politician, nor the editor of a Brooklyn newspaper [laughter], I was
totally unacquainted with such things, but still I am the reader of a
weekly Republican newspaper (that is spelled with two e's and not an a,
and has no reference to the "Albany Evening Journal"), and have
ascertained that among a certain class of men, these "bargains" were
exceedingly common. Respecting the exact nature of the proposition I
shall not reveal? but suffice it to say I failed most ignominiously.
After leaving the executive chamber I spent a good part of the morning
in reflection as to the cause of the failure. Among other things it
occurred to me that perhaps the newspaper statement, that "bargains"
were so common among officials was untrue, but when I reflected that my
newspaper was a republican organ and that the Executive was a democratic
official I knew that every word that organ would say about a political
opponent must be absolutely true. It occurred to me that perhaps
inasmuch as I was not a politician, his Excellency might have feared to
trust me, but I recollected to have read of the dire misfortune that
befalls certain politicians in New York from trusting each other. As the
Governor's shrewdness was well-known, I knew that he felt that if he
could trust any one, it would be one of my profession, and therefore
that excuse would not answer. It also occurred to me, that perhaps I was
somewhat green and unwise in consenting to make this bargain in the
presence of witnesses, but when I thought of all the sagacity and
shrewdness and reticence that was concealed behind Colonel Rice's
outspoken countenance, and of the numerous "arrangements" of which he
was cognizant, and in relation to which he had never said a word, I felt
assured that that was not the reason. I finally came to the conclusion
that the Governor was a man to be trusted; that if there still be cynics
who believe that "every man has his price," they would find the
Governor's price far too high for them ever to reach. [Applause.]
In the play of King Henry VI occurs an expression by Dick, the butcher,
which is so short and so pointed that I may be pardoned for reproducing
it in its completeness. It runs thus: "The first thing we do, let's kill
the lawyers." This is not at all the attitude of our profession toward
yours. On the contrary the most stupid charge that is ever laid to the
door of the medical man is that he intentionally, or ever either by luck
or intention, kills his patients. Ere the coffin-lid closes the doctor's
harvest is reaped, but how different it is with you gentlemen.
[Laughter.] Not more than a few days after the debt of nature has been
paid by the unfortunate patient, your harvest--and especially if he has
had the unusual fortune to make a will--begins, and oh! how we are
sometimes tempted to envy you. Through how many seasons this harvest
will be prolonged no one can foretell. That it will be carefully
garnered to the last we can fully rely upon.
There is perhaps only one state of circumstances under which the
medical man is likely to re-echo the sentiment, and that is when he
steps down from the witness-stand, having served as an "expert." You
lawyers have a duty to discharge to your clients which necessitates your
"taking a part." Even though a man be guilty, there may be "extenuating
circumstances," and it is your right, as it is your duty, "to do all
that lies within your power in his behalf." The "medical expert" should
go upon the stand in a purely judicial frame of mind, and as a rule I
believe he does. But by the manner in which questions are propounded to
him, and by the exercise of every little persuasive art incident to your
calling, he is inevitably led into taking "sides." He is surrounded by
circumstances that are to him entirely strange. He is more or less
annoyed and flurried by his surroundings, and then comes the necessity
of making a categorical answer to questions that are put to him more
especially upon the cross-examination, which cannot be correctly
answered categorically. Unfortunately in a profession like ours, in a
science of art like ours, it often is absolutely impossible to answer a
question categorically without conveying an erroneous impression to the
jury.
In addition to this, we are subjected at the close of the examination to
what you are pleased to term a "hypothetical question." The theory of
this "hypothetical question" is that it embraces or expresses in a few
words, and not always so very few either [laughter], the main features
of the case under consideration. In nine cases out of ten if the expert
makes a direct and unqualified answer to the question he leaves an
absolutely erroneous idea upon the minds of the jury, and this is the
explanation of why so many experts have made answers to questions which
have elicited adverse criticism.
In my judgment, after a not very long experience I must admit, but a
sorry one, in some instances, there is but one way in which this matter
of expert evidence should be conducted. The judge should appoint three
experts, one of them at the suggestion of the counsel upon either side,
and the third one at his own discretion. These three appointees should
present their report in writing to the court, and the compensation for
the service should be equally divided between the parties interested. In
that way can expert evidence escape the disrepute now attaching to it,
and the ends of justice be furthered. Now, gentlemen, the hour is
getting late, and I have but one wish to express to you. The medical
profession of the State of New York has an organization very similar to
your own, which has now reached very nearly its ninetieth year, with a
membership of almost 1,000, and with an annual attendance something
double that of your own. I can only hope that your Association may live
on and develop until it reaches as vigorous and flourishing an old age
as that of the medical profession. [Applause.]