justice quite as much as is the judge on the bench. It is impossible
for you to put your ideals of your profession too high or to attach
yourself to them too firmly. I am no admirer of the acidulous
character of John Adams (not that he was not both great and good,
however, for he was--but he was too sour), yet he announced a great
thing, and lived up to it, when he declared that he was practising law
for the purposes of justice first and a living afterward. (But, then,
John Adams announced many great things; and what he announced he lived
up to. He was supremely honest.)
"Never take a case," said Horace Mann, "unless you believe your client
is right and his cause is just." On the contrary, Lord Brougham
declared that "the conscientious lawyer must be at the service of the
criminal as well as of the state." And this great lawyer proceeds to
argue with characteristic ability that it is as much the duty of the
lawyer to work for the cause he knows to be wrong as for the cause he
knows to be right.
Briefly, the reason is that it is the very essence of justice that
every man shall have his day in court; that the attorney is but the
trained and educated mouthpiece of his client; and that to refuse the
cause of a client in which the attorney does not believe is to
relegate all the controversies to the judge in the first instance,
which, of course, would render the administration of practical justice
impossible.
This is the prevailing practise of our profession, and it is a serious
thing to question its correctness. Its ethics are as wide as they are
ingenious, and when one beholds them through the medium of the great
Englishman's wonderful argument they seem radiant with aggressive
truth. Nevertheless, I am almost of opinion that Horace Mann was
right. It is certain that in his beginnings the young lawyer ought to
lean to that view.
If you consider it your duty to take any side of any case that offers,
right or wrong, it is no far cry to considering it your duty to make
the cause you have espoused a good one before the court. And when that
conception has shot its cancerous roots and filaments through your
brain and conscience, the suggestion to your unscrupulous client of
facts that do not exist, and all the alluring infamies of sharp
practise, are possible.
It is said that burglary exercises such a fascination that, once the
delirium of its danger is tasted, a man can never put that fatal wine
away. An old and distinguished lawyer once told me that one of the
most brilliant young lawyers he ever knew said to him, at the
conclusion of a legal duel in which he had resorted to the sharpest
practise and won, "That was the most delicious experience of my life."
Yes, and it was the most fatal. He became, and is, an attorney of
uncommon resource, ability, and success, with many cases and heavy
fees; nevertheless his life is a failure, for his profession and even
his clients know him for a dealer in tricks. Senator McDonald, an
ideal lawyer in the ethics, learning, and practise of his profession,
told me that one of the justices of the Supreme Court once said to him
of a certain great corporation lawyer of acknowledged power and almost
unrivaled learning:
"Mr. ---- would be the greatest lawyer in the world if he were not a
scoundrel. As it is, I brace myself to resist him every time he
appears before me." One of the ablest Circuit Court judges of the
Federal bench said almost precisely the same thing to me of the same
man.
So you perceive it does not pay to be understood to be capable, or
even great, in the wrong. In time it means ruin; and therefore I
think, on the whole, that it would be wise for you never to take a
cause which, after you have a full statement from your client, you
believe to be wrong.
Many of the most excellent men of our profession will dissent from
this view. Their argument is usually that of Lord Brougham, summarized
above. Also they will declare that a lawyer may be quite wrong in his
first impression that his client has not the right of an impending
controversy. They will cite you instances where they have entered into
the conduct of a case with much doubt in their hearts as to the
rightfulness of their client's position; but that this doubt became an
affirmative certainty before they were half through with it--they
_knew_ their client was right.
The answer to this is that any man can work himself into an
enthusiastic belief in almost anything if he goes upon the theory that
the thing is true, and gives all his energy and ability to proving
its truthfulness to others and to himself. This is peculiarly the case
with the most sincere and genuine men. I repeat, therefore, that upon
a point so vital, and about which there are such sharp differences of
opinion by equally good and wise men, it is better for you to incline
to the stricter view of legal ethics.
So if you believe your client to be in the wrong, frankly tell him so;
show him why; induce him to compromise and to settle, if he ought. If
he will not because he is obstinate, he will probably lose his case
anyhow, and of course blame his lawyer for the loss. So that if you do
not have that case you have lost nothing. On the other hand, you have
gained. The client will say: "If I had followed his advice I should
not have had the expense and humiliation of defeat."
In ninety-nine cases out of a hundred the honest client will respect
you for your position. If the client persists in his course because he
is a scoundrel, then, doubly, you cannot afford to take his unjust
case. After a few years of such practise you will have acquired a
moral influence with court, jury, and people which will be, even from
a money point of view, the most valuable item in your equipment.
Public confidence is the young man's best asset. And you will be
surprised to find how little you will lose, in the way of fees, by
this course.
Of course there is a large class of cases in which the correct
application of the law is very doubtful, with lines of decisions on
both sides; as, for example, in cases of the distribution of funds of
an insolvent corporation, constitutional questions, and the relative
equities of conflicting interests. These are fair examples of
controversies where a lawyer may rightfully and righteously accept a
retainer upon any of half-a-dozen sides. But in the ordinary course of
practise perhaps it is better to stick to Horace Mann rather than to
Lord Brougham, and reject employment in a case you believe to be
wrong.
While the law is not a money-making profession, either in theory or
practise, the young lawyer should begin by charging every cent his
services are worth. It is not only degrading, but reveals a base
attitude of mind and character, to charge a little fee in the
beginning as a bait for a bigger one in future cases. Maintain the
dignity of your effort.
I am assuming that Nature began the work of making you a lawyer before
you were born; that you have been preparing yourself, with the
enthusiasm of the artist and the passion of professional devotion, for
the work of your great calling, by years and years of discipline and
study such as no other calling requires; that, with your natural
qualification and your general equipment, you are bringing to your
client's particular case an industry that knows no limit in his
immediate service.
This being true, tell him frankly that you propose to give him the
best that is in you (and that best is your very life--no less--for you
write "victory" at the end of every one of your cases with your
heart's blood; or "defeat," if you do not win), and that for this best
which is in you you will charge the highest professional fee justified
by your services and the magnitude and difficulty of his case.
At the same time, never turn a poor client away from your office door
because that client comes with no gold in his hand. When a lawyer is
too busy to give counsel without fee and without charge to a poor man
or woman, that lawyer has too much business. I know--we all know--of
very eminent lawyers constantly engaged in causes involving large
interests, who nevertheless find leisure, many times each year, to
serve by advice and counsel, and sometimes even by the active conduct
of cases, numbers of the children of poverty, and to serve them
without a penny of compensation.
Be very careful of the class of business you accept at first. I knew a
young lawyer who had just opened his office, and within a month, by
one of those accidents that occur to every attorney, he was offered a
case on a contingent fee in which the probability of considerable
reward amounted almost to a certainty.
He needed the money--was nearly penniless. He was newly married, had
no clients and few acquaintances; but it was not the quality of
practise to which he wished to devote his career. He courteously
declined the case as though he had been a millionaire, and directed
his would-be client to an attorney who would care for it properly.
Out of that case the latter attorney, by a compromise, in two weeks
made fifteen hundred dollars. Nevertheless, the young man was right,
and acted with a far-seeing wisdom as rare as the courage which
accompanied it. Of course, I assume that you are going into the
profession for the purpose of becoming a lawyer, and not a mere
conductor of legal strifes. If you are, you must deny yourself.
Self-denial is the price of strength, as any college athlete will
tell you. Self-denial is the road to wealth, as any banker will tell
you. Self-denial is the method of all excellencies, as all human
experience will tell you. But this is moralizing.
I do not mean that you should decline small cases. By no means. Take a
five-dollar case, and work with the same sincerity that you would on a
fifty-thousand-dollar case. "Despise not the day of small things." In
selecting your business, I refer to the quality, and not the
magnitude, of cases. Again, again, and still again, this counsel: Care
for your small case with the same painstaking labor you bestow upon a
large one.
Never lose sight of the fact that your greatest reward is not your
fee, but the doing of a perfect piece of work. The same fervor and
ideality should govern your labors in a lawsuit that inspire and
control the great artist and inventor. A distinguished sculptor said
to me one evening:
"I wish the matter of compensation could be wiped out of my
consideration. I must give it attention for obvious reasons, but it is
the matter of least moment to me, and has absolutely no influence upon
my work."
It is no wonder that that man achieved an immortal renown at
thirty-seven. Doctor Barker, the recent occupant of the Chair of
Anatomy in the University of Chicago, recently elected to an even more
notable position in the Johns Hopkins University, who has won for
himself a permanent place in the high seats of his profession by his
work on neurology, was in a company one evening. Said one of his
admirers:
"Why don't you go into practise? You could easily make a great fortune
before you are forty."
Listen to the answer: "Money does not interest me."
We all remember Agassiz's famous reply to a proposition to deliver one
lecture for a large fee: "I must decline, gentlemen; I have no time to
make money." That was why he was Agassiz.
Quite as lofty ideals should inspire the work of those who make their
vows to the greatest of all sciences, the science of justice, and the
greatest of all arts, the art of adjusting the rights of men. No
lawyer can become great who does not resolve, at the beginning of each
case, to make his conduct of it a perfect piece of work, regardless of
compensation.
John M. Butler, the partner of Senator McDonald, and one of the best
lawyers the Central Western states ever produced, was so careful of
pleadings and briefs that he would not endure a blurred or broken
letter, and bad punctuation was a source of real irritation to him.
Many times have I, as his clerk, required his printer to take out an
indistinct letter. It was Mr. Butler's ideal to achieve perfection as
nearly as possible.
The most perfect legal argument I ever heard occupied less than an
hour. Not a word was wasted. Not a single digression weakened the
force of the reasoning. Not a decision was read from. It was assumed
that the learned judges before whom the cause was being heard knew
something of the law and the decisions themselves.
You see the same thing in its highest form in Marshall's decisions. I
once advised a class of law students to commit to memory half a dozen
of Marshall's greatest opinions. After years of reflection I think I
shall stand by that advice.
In making an argument before a court or jury, remember that the most
important thing is the statement of your case. A case properly stated
is a case nearly won. Beware of digression. It calls attention from
your main idea. It is a fault, too, which is well-nigh universal. I
advise every young lawyer, as a practise in accurate thought, to
demonstrate a theorem of geometry every morning.
There is no such remorseless logic as that of logarithms. It will
produce a habit of definiteness, directness, and concentration
invaluable to you. The young gallants of a century ago used to
practise fencing for an hour each morning. Why should not you do the
same thing in intellectual fencing--you, the devotee of the noblest
swordsmanship known to man, the swordsmanship of the law?
Do not waste too much time quoting precedents to a court; it produces
weariness rather than conviction on the part of the judge, who himself
is a daily maker of decisions and knows their value. He knows the
stifling mass of precedents, and sighs under them. It is rare that
more than two cases should be cited in oral argument on any given
point. Those cases ought to be the most controlling you can find--not
necessarily the latest. They should be cases decided upon reason
rather than upon authority. Your true judge likes to syllogize.
Do not, however, go into a court without having thoroughly reviewed
and mastered all the precedents bearing on every phase of your
proposition. It requires desperate labor to do this and will shorten
your life; but such is the hard fate of the profession you choose, and
such is the condition of our absurd system of multiplying reports.
Do not be what is known as a "case lawyer"--an attorney who does not
know the law as a science, but merely looks up precedents and texts
concerning a particular case. You may prevail in your "lawsuit," but
you will not be a lawyer. Stick close to the elemental Blackstone. You
can never get along without Blackstone. Do not read a condensed
edition of that great commentator; it is like reading expurgated
Shakespeare.
I understand that one of the Justices of the Supreme Court still reads
Blackstone once each year. This may be a fable, but I hope it is not.
You cannot do a better thing. Thirty minutes each day will give you
Blackstone from cover to cover in less than a year, with many
holidays. Few modern "text-books" are of permanent value. Pomeroy's
"Equity Jurisprudence" is an exception.
But, of course, I cannot give here a list of those books which should
be your daily food; any really educated lawyer will mention them to
you. The great mass of text-books are nothing more than digests. But
don't miss the introduction to Stephens' "Pleading," and also the
introduction to Stephens' "Digest of the Law of Evidence." Both are
classics and give you the reason and the spirit of our law in
fascinating form.
Let your reading in the law be mainly upon the general principles of
the common law. The study of the civil law will also be
helpful--although English jurisprudence developed of and by itself
with only moderate help from the Romans. Reading statutes is
unprofitable. You should never answer a question or proceed in a case
on the presumption that you remember the statute. The rule of Sir
Edwin Coke ought to be your rule.
"I should," said Coke, "feel that I ought to be put out of my
profession if I could not answer a question in the common law without
referring to the books. I should feel that I ought to be put out of my
profession if I would answer a question in the statute law without
referring to the statute."
_Do not confine yourself to law-books._ A man who does so is like the
farmer who persists in planting the same soil with the same crop;
exhaustion, barrenness, and unprofitableness are the results in each
case. Read generously, widely. It is impossible for a man to be a
great lawyer, so far as the learning of his profession is concerned,
who has not saturated himself with the Bible. He may be a great
practitioner, but not a great lawyer. It illuminates all our law--is
the source of much of it. There is no more curious and fascinating
study than a comparison of the ordinances of the Hebrews with what we
think our modern statutes.
Read deeply in science. Read widely the _great_ novelists. They are
scientists of human nature, and you are dealing with human nature in
your profession. Read profoundly in history. A comprehensive knowledge
of history is absolutely indispensable to an understanding of our
Constitution. The _Federalist_, the constitutional debates, and all
the discussions that preceded and accompanied the adoption of our
organic law are bewilderingly full of historical references. If you
were to study every decision on constitutional questions made by every
court in this country, you could not understand the Constitution.
You must go back to the roots of it. Trace out the growth of our
institutions in Holland. Work out the modifications by these upon
institutions adopted from England. Follow the indigenous development
of both of these from the old Crown Charters, and finally up to the
Constitution itself.
Then take Bancroft's "History of the United States"; then that great
monument of intellectual achievement in the realm of historical
criticism, Von Holtz's "Constitutional History of the United States."
Books like Douglass Campbell's remarkable production, Fisher's
convincing yet novel essay, and other like serious and original works,
too numerous to properly mention here, are helpful.
Nothing is more disgusting to an informed court than to hear a surface
argument on constitutional law by an advocate who thinks he has
mastered that tremendous subject by studying all the decisions upon
any given point.
You will say this is a heavy task I am assigning you. It is, indeed.
But have you not chosen the profession of the law? And, if so, do you
dare to be less than a lawyer? How dare you not shoulder your glorious
burden with patience, fortitude, and determination? Do not be as if
you were to enlist as a soldier, and end as a camp-follower.
I am told that the leader of the American bar has a standing order
with his booksellers to send him every new book of approved merit in
all the departments of literature. The result is that when he comes
before the court his mind is fresh and sparkling with clear ideas and
varied knowledge poured into his brain from every mountain-peak of
inspiration in all the world of human thought. He brings to the
service of his client not only a study of his case and an
understanding of the grand science of the law, but the vivifying,
vitalizing power of all the great minds in all the realms of
intellect.
If you say you have no time for all this, the answer is: If that is
true, you have no time to be a great lawyer. You have the time, if you
will use it. A little less lingering at the club, an economy of hours
here and there--this will give you time, and to spare. Of course if
you would rather "loaf" than be great, if you hunger rather after the
flesh-pots than the lawyer's wreaths, this advice is not for you.
Do not use intoxicants. Even beware of coffee; it is one of the most
powerful nerve and brain stimulants. The coffee habit is as easily
formed, and as remorseless, as the alcohol habit. After a while, if
excessively used, it produces its sure result; your faculties have
been sharpened by this intellectual emery-wheel until the edges begin
to crumble. Your mind becomes dull; you pass your hand wearily over
your eyes; you don't know what is the matter with you and say so.
Overwork, over-stimulation, and the worry these produce are what is
the matter with you.
There are lawyers in every town who day by day and year by year find
that they have to work harder to understand a case or master a
precedent than they did the year before. Whereas formerly they could
get the point of a precedent by reading it over once, they must now
read it over four or five times. You usually find them the victims of
ceaseless toil without rest, of that destroying fretfulness which
brain-fag brings, and of some flogger of exhausted nerves, such as
coffee in excess.
Do not work late at night. It is a fictitious clearness of mind that
comes to the midnight toiler. This also grows into a habit. Conform to
Nature. Go to bed early. Get up early, and do your fine and original
work in the morning. It will be hard for you to form the habit, but
after you have done it you will be amazed at the comparatively immense
nervous power you possess in the morning hours.
In trying a case before a jury, never be trivial. Do not bandy gibes,
no matter how witty you may know yourself to be in repartee. The jury,
and even the court, may laugh, but they are not impressed, and you
have not helped your case; _and you are there to win your case_. As in
your argument, so in your examination of witnesses, _keep to the
point_.
In arguing a case, no matter what its nature, before a court or jury,
never rage or rave. Get to the point. Speak with great earnestness,
but not with violence or volume of sound. Remember that even the most
terrible emotions of the human heart in their most intense expression
are comparatively quiet. Be earnest. Be sincere. Be the master of your
case, and the result must be satisfactory.
It sometimes becomes necessary for an attorney to assert his rights
and privileges to the judge himself. Do not shrink from it. It is your
duty to your client, your profession, and the cause of justice. Never
cringe to a court. Never cringe to any one. He will despise you for
it, and properly so. Remember the dignity of your profession. Erskine,
in his first case, rebuked a prejudiced and perhaps an unjust judge
with such vigor that England rang with it.
Cultivate lucidity of style. You will do that at some risk at first.
When a young lawyer is extremely clear, he is apt to be regarded as
not deep. Abstruseness in expression is very frequently regarded as an
indication of profundity. Nevertheless, persist in a clear and simple
style. Make the statement of your case and the argument in support of
your propositions so lucid and plain that the judge or jury will say:
"Why, of course, that is so. What is the use of the young man stating
that?"
The study of Abraham Lincoln's speeches will be very helpful. Two or
three of Roscoe Conkling's arguments after he left the Senate are
models of perspicuity. Mr. Potter's argument in the legal tender cases
is a model--it is Euclid stated in terms of the law. Webster's
arguments you will study, of course. Blackstone is one of the clearest
writers who ever illustrated the great science to which you and I are
devoted. Perhaps as great a logician as ever lived was the Apostle
Paul; read him as a master of logical utterance.
Never be ponderous; never be florid. At the same time, never be dry.
Be clear; be pointed; be luminous. I remember having heard both sides
of a case argued before an eminent Federal Judge. One of the lawyers
made a long, turgid, "profound"--and musty--argument; proceeding like
a draft-horse from mile-post to mile-post, until the alert mind of the
judge was almost frantic with impatience.
The lawyer on the other side is one of the most eminent members of our
profession. He is as lithe as a panther, physically and mentally,
sharp as a serpent's tooth, as lucid as the atmosphere on a cloudless
day, and yet as suggestive as a hickory-wood fire in the old home
fireplace on a wintry night. He paced the floor in impatience while
Mr. Turgidity blew the clouds of dust from precedent after precedent.