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.