the defendant in as a partner only to be defrauded by him? Plaintiff's
attorney will indicate the years of effort briefly, but impressively,
before sketching the manner in which the defendant stole from him by
fraud the fruits of his labor. When the plaintiff then testifies that
in 1890 he opened a small store in Fourteenth Street, moved in 1896 to
Twenty-third Street and thence in 1916 to an up-town street off the
Avenue, the dates will sink into the jurors' minds and they will
portray for themselves the twenty-six years of painstaking effort. No
eloquence then could rival the effect of the witness's slow, bare
recital of his progress. Yet without counsel's prologue what could be
more dull than the naming of street numbers and dates?
The matter of the testimony may be interesting, but unless the witness
has a rare gift of expression and a sense of the picturesque, the way
in which it will be given may be dull and plain. But at this point the
little keen-faced lawyer for the other side jumps up and interrupts:
"I object, your Honor; what difference does it make where he lived in
1890, whether on Fifth Avenue or Mulberry Bend? What we want to know
is what he is suing for now." And the court will probably rule with
him and keep the plaintiff down to more relevant facts.
Some of the important answers may be yes or no. Counsel in such a case
supplies the color and gives an appearance of life to what is actually
alive enough, but which alone would seem dry. Even if so famous a
character of fiction as "Becky Sharp" came into court and only looked
her part with what intense interest would we not hang on her
testimony, though it consisted of no more than "Yes, I did"; "I never
saw him before." We should be fascinated by this bald statement
because Thackeray had interested us so enormously in the lady. The air
would be electrified by the force of her personality. Without a
previous introduction, however, we might be so lacking in discernment
as to find her, in appearance and voice, no more unusual than the
average witness who goes on the stand.
Thackeray not only created Becky Sharp; he also created our interest
in her. Similarly the lawyer may create an interest in his witnesses,
some of whom may be personally every bit as extraordinary as any
character in a novel. If a witness be actually commonplace, there is
all the more need for making him vividly human; if he be so colorless
that nothing could be made of him personally, he may acquire interest
through the class to which he belongs, for classes have a personable
color more deep than the almost colorless individual.
To induce the jury to visualize the story and the characters, the
highest literary gift may be brought into play. The lawyer is limited
as to time and the description he may employ. He has, however, his
voice and expression: an actor's tools. But again the rule of
simplicity and naturalness should apply.
The opening speech is a prologue and it does not argue. Counsel will
not be permitted to argue his case in his opening, for his opponent
will object and the Court will often say, warningly, "Counselor, you
are summing up." This limitation, however, is in reality an advantage,
not merely because it applies to both sides, but for the reason that
no lawyer with any sense of dramatic values would anticipate his
_dénouement_. Argument is apt to be chilling unless the decision
sought for can be discerned, however dimly, without it. And how are
the jury to frame their decision before the evidence has been
presented? The jury should be interested in Miss Becky Sharp and
prepared to understand her testimony, but, before they have heard her
story from witnesses who know, they will not be favorably impressed by
urgings that she was wronged or badly treated.
There is usually leniency in regard to the length of the opening,
because it is well recognized that few witnesses can tell a connected
story, or tell it well. From the old French story of the lawyer who
began _avant le création du monde_, and the judge who asked him to
pass on _áu deluge_, down to the usual modern method of nagging the
lawyer into stating only the skeleton of the action, there are various
degrees of eloquence, varying naturally according to the importance of
the case.
A wonderful thing the prologue may be in its restraint and picturesque
vividness, and, not least, in its clarity. Confused business dealings
may be described so that important sums, figures, and dates will be
remembered and recognized when they appear again in the evidence.
Counsel, for the time, occupies the center of the stage; his course is
in his hands to make or mar. He reaches the end of his speech, bows,
and the first witness is called.
Before the testimony begins the judge looks at the defendant's counsel
and asks him whether he wishes to state his defense. There is a
different practice in this regard in different courts. Some insist
that the defendant ought to tell at once what his side is about,
others that the defendant should wait until the plaintiff is through
all his evidence and has rested; then at the beginning of the
defendant's case the defendant's lawyer opens and makes his
introduction.
The difference between these two manners of proceeding is so essential
that it may be explained. On the one hand the lawyer feels that he
should not be compelled to give away what he is going to do, how he
proposes to meet the attack, whether he will lie in ambush and snipe
the plaintiff as he comes on or intrench behind a rampart and meet him
with the full force of his battery of evidence. He may be planning to
make a sudden sally after the plaintiff has shot his arrows and
exhausted all his ammunition. The lawyer feels if he tells his plan of
campaign he loses the advantage of generalship.
Suppose a simple case: The plaintiff is suing on a long account for a
bill of goods which will take a long time to prove. The defendant has
a receipt in full showing payment. On the theory that the defendant
need not disclose his evidence in the opening, he may sit still with
the receipt up his sleeve, let the plaintiff open and call his
witness, the evidence may drag itself along with the usual motions and
objections, and after the plaintiff rests the defendant opens to the
jury.
"Gentlemen," he says, "this is a simple case. The plaintiff claims he
sold the goods and the defendant did not pay for them. I propose to
show you that the plaintiff was not telling the truth. I made him
prove to you that he sold every item in the bill because I wanted to
show you how untruthful he is. My client, the defendant, not only paid
for the goods but I can show the receipt in full signed by the
plaintiff."
To the layman this is absurd. The defendant should have shown the
receipt in the first place and all the waste time of the trial would
have been saved. "No," says the technical lawyer, "if I had disclosed
my evidence before, the plaintiff would have framed his evidence to
meet the situation." The modern view is otherwise. In France, for
instance, no paper can be offered in evidence on a trial unless it has
been shown to the attorney for the other side beforehand and everyone
has had a chance to examine it. Indeed, this exhibition of original
documents is conducted in so open and honest a fashion that it is
customary to send all the original papers to the other side without
even taking a receipt or retaining a copy and in the whole history of
the French bar the loss of such a paper has never been known.
It seems more practical and sensible that the lawyers for the
defendant should be required to state the nature and detail the facts
of his defense. It is the difference between the old idea of trial and
the new. The first was an imitation battle, the new idea is not that
it is so much a struggle as an investigation of the facts. If the
plaintiff wants to meet the receipt he can make a counter-attack or
explanation in the rebuttal and explain how he came to sign the
receipt in full. The judge and the jury feel the necessary element of
the trial is to arrive at the facts and that the planning and methods
of charge and counter-charge are not so significant. The old
conception of the trial as a battle is disappearing.
The opening by the defendant at the beginning directly after the
plaintiff has finished his opening and before a witness is called,
makes the trial simpler to the minds of the jurymen who are to decide
the facts. The pleadings are supposed to define and state the issues
but as they are usually technical they have become not sufficiently
pliable. The defendant by his answer denies merely the facts stated in
the plaintiff's complaint in the paragraphs numbered six, eight, and
ten. The defendant on his opening should be compelled to make plain to
the minds of the jury what he intends to show. He should take the
position of a plain business man who says, These foolish people
imagine they have a claim against me. They have nothing of the kind.
The plaintiff says that he understood the contract to be so and so
and that acting on that assumption both parties did certain things and
know the defendant with evil intent and wrongfully forgetting the duty
he owes to keep his word refuses to live up to his agreement,
therefore, "Gentlemen, we have been compelled to come to court and
bring this action and we shall show you gentlemen facts from which you
must find a verdict in our favor." The defendant then arises and says:
"Gentlemen, we are going to show a letter that contradicts all this."
Oratory has little place in the opening of the defendant.
The judge has been, during the two openings, attempting to keep the
two counsels down to the facts which he thinks may be proved and from
wandering too far afield. As quickly as they are both through he says,
"Call your first witness," and with trepidation the witness takes the
stand.
X
THE CONFUSED WITNESS
The whole question as to witnesses is whether they shall be allowed to
tell what they want or what the lawyers want. As they are both in the
court-room they must abide by the rules of the court. That is the
trouble: the rules are against the witness.
When the witness goes on the stand for the first time the court
attendant asks her to raise her right hand. She does so and tries to
sit down in the witness chair so that she may feel a little more at
ease. "Stand up," says the officer. The judge looks at her
inquisitorially over his spectacles. She tries to smile and regains
her feet. "Raise your hand," says the judge. The delightful and
sanitary custom of kissing the Bible has been done away with. Even
the habit of resting the hand on the Book is disappearing and in many
courts a Bible is hard to find.
The lady, in the confusion of appearing on a stage for the first time
and standing on a raised platform before an audience, holds up her
left hand. The court attendant jumps at her. The judge has seen the
same performance many times before and hardly notices the
_contretemps_. By this time she is confused and ruffled and after
hearing something murmured about the truth, the whole truth, and
nothing but the truth, she sinks into the chair and begins in a very
uncomfortable frame of mind the ordeal of giving testimony.
What she wants to say, what she ought to say, what she was told to say
is all gone. The jury and the judge understand and feel sympathetic
but the rules of the court do not permit them to be polite, and to ask
her to take a more comfortable chair, to have some tea, whether the
children have had any after-effects of the measles, or to take off
her hat and stay a while. She knows she has to stay and that she is
not going to enjoy it.
She is the important witness who was riding in the car at the time it
crashed into the grocery wagon. She is honest, of average
intelligence, and wants to tell the truth. She is asked:
"At the time of the accident, where were you?" She says that she was
in the car going up-town to see her married daughter whose children
were sick with the measles and she was in a hurry. The lawyer moves to
strike out the latter part of the answer. The fact that she was going
to see her daughter, that the children had the measles, and that she
was in a hurry are not relevant and have nothing to do with the case.
The only relevant fact is that she was in the up-town car.
She was sitting four seats from the front and thinking the car was
going very slowly and the children would be asleep before she got
there. It is immaterial that she was thinking about her grandchildren
or the measles, or that she was thinking about the car going slowly.
The real question is how fast the car was going.
The reason for the rule of evidence is that the court always wants to
know not what she thought, but what she actually saw. She will not be
allowed to tell what she thought or what she told her daughter after
the accident. The daughter can not be called to the stand to testify
what her mother told her, when she reached her house, about what had
happened. Newspaper accounts of the accident may not be allowed in
evidence, nor what the policemen reported on the accident, because he
arrived afterward. Anglo-Saxon law holds the proof down to what was
actually perceived by the five senses. The court makes up its own mind
from these perceptions and the facts themselves. It does not want to
hear what someone thinks, or what the witness believes or concludes,
but only what he perceived.
There is much to be said for and against this rule on both sides. A
broader method to the lawyer seems shockingly loose and slipshod. The
rules of evidence to the bystander seem an inhuman farce. The first
allows an atmosphere to be created from which the whole truth may be
reached. Would not an ordinary person, if he wanted to find out about
the accident, read the newspapers, find out the police reports, ask
what a witness thought, what that witness told someone else about the
accident afterward? Is she not now giving someone an account of the
accident?
Psychologists agree that no one can accurately narrate their
perceptions and what happens before their eyes. Moreover, the tests
performed on school and college graduates in regard to their powers of
observation have shown the fallibility of human perception. The
failure to perceive, plus the failure to remember, plus inadequacy of
language, makes all testimony unsatisfactory. People of little
education are still less able to either see or explain. The only safe
way is to obtain a composite photograph of the witness's mind and of
the thoughts that arise from the original perception, a continuation
of impressions.
Judges or juries never determine cases by first deciding which witness
is telling the truth or at least the exact truth. They take it for
granted that both sides are lying somewhat; that no matter how well
they mean and how hard they try, all witnesses are incapable of
telling the exact truth. The unfortunate part of the law is that this
is not officially recognized. There is a hypocrisy in not recognizing
the inadequacy of human eyes and ears to grasp even simple concrete
facts. A timidity exists that will not allow the admission of human
imperfection.
The proof of this is that when three witnesses go on the stand and
describe a thing as having happened in the same way, immediately there
is a strong doubt in the mind of the jury about the whole case.
Suppose the question of the time a crime was committed arises and the
defense tries to prove an alibi by showing the defendant was in a
saloon at that time. There may have been three witnesses who really
saw him at the same time. One witness comes on the stand and says
3:10, the next witness says he saw him at 3:10, and third says the
same. The jury conclude that the story has been made up.
Yet suppose the first witness says he saw him sometime after lunch,
and the second that he remembers seeing the defendant in the saloon
sometime that day, but he is not sure whether it was in the morning or
the afternoon, and the third witness says that he saw him during the
week, but that he does not remember the day, whether a Thursday or a
Friday--it is probable that the defendant will have a much better
chance of succeeding with his alibi.
The lady in the car could not remember the time of the day, except
that it was near the children's bed time. She had heard the crash and
seen the wagon turn on to the car tracks. With a great many
objections she finally gets to the point of the crash.
"Did you see the car hit the wagon?" "I object to that as leading,"
says the other lawyer. "It is leading and suggestive." Technically he
may be correct, but if the judge has common sense he overrules the
objection.
The proper question would be: "What happened next?" The witness,
however, might remember the paper bag of oranges she was carrying to
her grandchildren and instead of telling about the accident begin to
describe how she dropped them on the floor. Leading questions are
necessary in nearly every case. The reason that they are objectionable
and ruled out is, that the judge and the jury ought to hear not the
lawyer's narrative of the facts, but what the witness actually
remembers.
A witness on the stand appears at his worst. If any one from real life
were suddenly thrust unprepared and unlearned in theatrical art upon a
stage the incongruity of the situation would be appalling. Yet the
witness is thrown into new and strange surroundings. It is a portion
of the reality of life shown vividly against a conventionalized
background. The judge and jury in a vague manner understand this. The
lawyer producing the witness feels this and elicits the testimony in a
soothing manner.
The objects of cross-examination are as follows. The first is to prove
that the story of the witness is not true, and the other is to bring
out something new. The opposing counsel often forgets the purpose of
his cross-examination and by attempting to bully and frighten the
witness, usually either by sarcasm or a doubting manner, accomplishes
very little. Not one cross-examination out of five hundred amounts to
anything. The judge has heard many and he has little hope of their
being of much interest. The jury make so much allowance for the
witness being frightened on the stand and for the fact that she is in
the hands of a clever lawyer, that they are not much impressed even
if she contradicts herself or is proved mistaken. At best it is only a
mistake, not a deliberate lie. The lawyer thinks he owes a moral
obligation to his client and to himself to cross-examine. He is
compelled to go on. There is a musty tradition of the law that a trial
without cross-examination is not a proper trial. It is a legal fetish
and one of the things that is done. The judge expects it, the jury
expect it, the client expects it and the public.
The client pays his money and he ought not to be disappointed. If it
were omitted altogether, the judge and jury might not feel the loss so
bitterly. Perhaps they might prefer it and the question for the lawyer
is whether it is better to satisfy the client or the jury. In this
quandary the lawyer may forget that the main point is to win the
battle. When the case is lost the client does not care at all how
brilliantly the lawyer looked, acted, or fought.
If the lawyer reasons he will say:
"If the object of my cross-examination is to show that the witness is
not telling the truth, have I much chance of getting him to confess
the fact?" The witness knows something about perjury. He is afraid and
he has heard about those pitfalls of cross-examination. Does the
lawyer remember his own hopeful son and how only yesterday he could
not get him to admit stealing the cake even with the prospect of
immediately impending punishment? Only that little rim of chocolate
about the ears was the proof. Even the deaf little child, who is not
as intelligent as the witness, will not admit that he was untruthful.
But still he goes on cross-examining.
If the witness is finally shown a paper which he or she signed when
the investigator of the railroad came to see her, and in which she
said she was sitting on the sixth seat, there is not such a great deal
to be proud of.
"Ha, Ha," thinks the lawyer "at last," "didn't you just now say you
were sitting on the fourth seat?" "I don't remember," says the
witness. "What," thunders the lawyer, "you don't remember; then your
memory is poor. I will read you what you said on your direct
examination," and he does. "Now which was it, the sixth or the fourth
seat."
The other object of cross-examination is to elicit new facts. This is
a dangerous risk for the lawyer, and unless he is sure of his ground,
he had better not take it. He will do better to let his own side tell
the facts than to bring them out through an unwilling witness who is
on his guard and thinking the opposing lawyer is trying to trap him.
The mistake that most lawyers make in cross-examination is to ask the
witness to repeat what he said in his direct testimony. Telling the
same story over again merely accents the facts in the minds of the
jury. The lawyer asks:
"You say that you saw the driver whip up his horses when the car was a
block away." The lawyer may doubt the truth of the statement but the
mere repetition of the words affects the memory of the jury. Unless
he has a distinct object in going over the testimony, either to show
the direct contrary strongly, or the fact that the witness has learned
the testimony by rote and that the repetition is in exactly the same
words, the lawyer would do better to desist.
Strange as it may seem the rules of evidence are actually based upon
common sense. The ordinary experience of mankind gave rise to the
rules of evidence, but the difficulty is that the further experience
of civilization is giving rise to new rules which are not consistent
with the old. Nevertheless the present rules when reasonably applied
are fairly good. The question really is whether there should be any at
all.
Accepting the fact that there should be rules they are based on two
principles; the first is that only something which has to do with a
case can be proved and second that it can be proved only in a safe and
reasonable way. It may seem impossible to the lawyer and equally to
the laymen to state the rules of evidence in simple language. But the
principles of common sense will govern in the end, as they have in the
past, notwithstanding they have been hidden under a mass of verbiage,
ancient forms, and obsolete customs.
The theory is that justice wants the highest and best it can obtain,
the court insists on the two principal rules; that evidence must be
the very best that can be obtained and must be brought out in the
safest, clearest, and most authentic manner.
Take, for instance, the rule that conclusions of the witness are not
allowed. If the court considered as evidence that the testimony "the
defendant brought the goods and they were delivered," and the
defendant came on the stand and said, "I did not buy the goods and
they were not delivered," the court would have before it merely two
contrary beliefs or conclusions. It would be a case of "Katy did, Katy
didn't."
The rule of evidence is plain that makes it necessary for the
plaintiff to show where he saw the defendant, what was done, and what
was said or written by the two parties. If the question is as to the
delivery, it is not enough for the plaintiff to say "I delivered the
goods." The court must have proof of the history of the goods. The
driver of the wagon must be called who can testify where he drove,
what package he carried, and what was done with it when he reached the
house.
The whole subject of expert witnesses is not so complicated after all.
They are merely persons of exceptional experience who are allowed to
testify as to something of which they know nothing. They may have
never seen nor heard the facts in dispute but because they have had so
much experience on similar facts they are allowed to say what they
think of facts produced by eye witnesses before the court. As
conclusions and opinions may be various, there is at times a great
variety in experts, and because the very name of experts implies
technicality, there is a feeling in the minds of the jury and the
public, that the testimony of experts will befog by a mass of
non-understandable terms.
The doctor who testified in a case in which the plaintiff suffered a
sore back and had seventy-five dollars damages from the jury is an
example. He said:
"The plaintiff was suffering from traumatic sacro-illiac disease,
traumatic sinovitis of the knee and wrist and from traumatic myositis
of the muscles of the back."