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.