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.