it is given in plain and understandable English and the jury think the
expert a clean-cut, sensible man, it is just what the jury want to
learn. An expert's method of reasoning about the facts in evidence is
the same as that employed by the jury in the jury-room. It is merely
an opinion; for on the opinion of the jury, based on the evidence
depends their verdict.
While the witnesses are being examined, called to the stand, sworn,
being excused, and being cross-examined, there occur numberless
incidents of the trial known as the objections, exceptions, and
motions.
XI
THOSE TECHNICAL OBJECTIONS
These are the stage tricks and little incidents that give variety to
the performance. No drama would be complete without a few diversions.
So far as the drama itself goes, they are of no great importance
except to give pungency and interest to the action.
The lawyer asks an apparently good question. "I object," says the
other lawyer, "on the ground that it is incompetent, irrelevant, and
immaterial." The judge has to rule. He may not exactly have heard the
question. The stenographer reads it again. The other lawyer leans
forward in a frenzy of fear lest the question be ruled out. He begins
to argue.
"The question is perfectly proper; the witness ought to be permitted
to answer it." "No," says the other lawyer, "it is improper in form,
calls for a conclusion, and should not be allowed." The judge looks
puzzled. "Read that again," he says. The question is, "What kind of a
cow was it you saw in the plaintiff's garden?" "I still object," says
the lawyer. "The witness has not been shown to be an expert. If my
learned friend is going to attempt to qualify him as an expert, I
desire an opportunity to cross-examine him concerning his experience
in cows." "Not at all," answers the lawyer. "The question is entirely
proper and I stand on my legal rights." The judge hesitates; if he
does not rule correctly the lawyer will take an exception and the
Appellate Court may not like it. So he says, turning to the witness,
"You may answer, but I will reserve the question and decide it later
on a motion to strike out." "I except," says the lawyer. The jury look
relieved. The witness straightens up, the opposing lawyer sits back
in disgusted contempt at such a loose method of procedure. "Well,"
says the witness, "it was a red cow."
This may go on for some time.
"I move to strike the answer out," says the lawyer; and the argument
begins all over again.
Throughout the trial the client and the jury are waiting for these
objections and exceptions. The nature of an exception is a notice
served on the judge that his rulings are wrong. The theory is that if
he wants to change them he had better do so before the case goes to
appeal. It is a covert threat to the judge. There is a principle in
some courts that no ruling that is not excepted to can be considered
on appeal; consequently a lawyer is careful to preserve his rights by
exceptions.
A young lawyer once had this principle so firmly fixed in his mind
that when he went to court he began taking exceptions to everything,
even rulings in his favor. He would make an objection; the judge
would sustain it. "I except," said the lawyer. He would make a
motion; the judge would grant it. "I except," said the young lawyer.
The other side would make an objection; the judge would rule against
them and in favor of the lawyer, "I except," said the lawyer. Finally
the situation grew so strained that the judge called the young man to
the bench and spoke to him confidentially. His explanation was: "This
is my first case and the head of my firm told me to be sure and take
exceptions to all rulings."
Some lawyers are so in the habit of excepting, it sounds as though
they were hiccoughing. "Overruled"; "I except"; "Allowed"; "I except";
"Denied"; "I except"; "Granted"; "I except." It becomes a custom as
constant as the refrain in a comic opera.
Theoretically it may have a sound basis under the law, but so little
practical value has it that it seems ludicrous. The lawyers and the
judges consider it a matter of course. If the judge after all the
argument finally decides to let the testimony as to the red cow stand,
he will not be inclined to change his mind because the lawyer
interjects that threatening exception. The sound of the word is
spiteful and seems to express the resentment of the lawyer at the
ruling of the judge.
No example could be found in the thousand volumes of law reports where
the judge changes his mind on account of an exception. The object in
this particular direction is vain.
With regard to appeal; the Appellate Court that attempts to decide a
case on the exceptions taken at the trial would have a difficult time.
They would have to disentangle the mesh of evidence and find out
whether that important piece of testimony on page 204 was excepted to
or not, then whether there was a proper ruling; refer to the
stenographer's minutes and look at the important exception on page 59
and again on page 106. Unless the question decided was excepted to,
the Appellate Court can not decide it. It is hard to imagine that any
court could be so rigorous and narrow-minded that they could hang
justice on such little pegs of exceptions, which the stenographer in
the hurry of the moment may have forgotten to insert.
In the criminal courts there are no exceptions on the part of the
people, because there are no appeals on behalf of the State. The
defendant continues to repeat "I respectfully except." "I must insist
on my exception." Think of a man being jailed for seventeen years
because his case was not reversed on account of the failure to except.
The court could not believe Justice to be so blind-folded that she can
not understand the evidence as a whole.
Exceptions are the tacks and pin pricks of a trial. They are of so
little value in the main structure of the drama that if they are
forgotten by either side, the court should provide them with a bushel
basketful which could be distributed by the handful wherever the
lawyers thought they would be useful or pleasant.
Objections are of three main kinds: irrelevant, immaterial, and
incompetent. They are like the magic words that open or unlock the
doors of evidence and let it in or keep it out. They have three
distinct meanings which lawyers understand. A thing may be immaterial,
but not incompetent, or incompetent and not immaterial, or irrelevant
and not immaterial, or irrelevant and not incompetent, or incompetent
and not irrelevant, or one or both or not at all. Any student of law
can fully explain the difference, but the distinction is immaterial
and irrelevant, and if the reader is in doubt let him ask any lawyer
friend to tell him in plain words, without insulting his common sense,
what the distinction between immaterial and irrelevant is.
The confusion of one young man found expression finally in the terms
"irreverent, impertinent, and--and--and--no--matter."
The lawyer, when he objects, usually attempts a few other suggestions
which may be considered by the judge, such as "the question is leading
and suggestive; grossly improper; calling for a conclusion; objected
to as argumentative or because of its ambiguity."
Whatever the trouble with objections may be, it is neither the fault
of the lawyer, the judge, nor the witness. When certain evidence is
not allowed by law it is proper that it be objected to. Unreasonable
and often comical as objections sound, the basis of their existence in
law is that the court wants the best possible proof.
Instead of a copy of a letter the judge and the jury ought to see the
original. Instead of the copy of a will the paper actually signed by
the testator is wanted. Suppose a question arises as to the payment of
a bill. The defendant says that he went into the store and paid it.
The best proof is to be given by someone who saw him pay it. A witness
to whom he came afterward and said that he had been down to the store
and had paid the bill is not so accurate a witness as the man who was
in the store and saw the money paid over. It is to keep out this
poorer proof that objections are made.
If the objection is good, the judge says "Objection sustained," or if
he thinks the evidence the best he allows it and says "Objection
overruled," then the witness may proceed and answer the question.
Unless the lawyer objecting states the ground or reasons for his
objection, the objection is not supposed to be valid for the other
side ought to be apprised of the reason so that he may supply the
proper proof, that is why the objection is named as irrelevant,
incompetent, and immaterial, so as to cover all possible grounds.
The reasons given for the objections: incompetent, irrelevant, and
immaterial might, so far as the average man is concerned, read
"incontepent," "irrevelant," and "immature." The words when repeated
together seem like that old legal term "incorporeal hereditaments."
They are imposing and add tone to the trial. The solemnity of
repetition is always a valuable asset. The real value of the word
irrelevant is shown by repeating irrelevant, "irrevelant," irrelevant,
"irrevelant." In a short time one sounds as valuable as the other.
When he makes the objection the lawyer rises and when he is through
sits down. This gives the appearance of constantly jumping up but is
only a question of etiquette, like taking off the hat or making a bow.
Some people like the formality but there is a question how much is due
to the dignity of a court and how much form and manners must be
sacrificed to efficiency of business. The judge who said that he did
not hear the constant objections of the lawyer because he made his
objections sitting down was not so much an adherent of good form as a
protestor against the absurdity of professional objections.
The mooted question is the same and goes back to the one on evidence.
Shall everything be allowed in and a photographic picture of numerous
details be given to the court? If that is the correct idea, a general
knowledge and atmosphere may be derived from all the surrounding
circumstances and then there would be no objections. If the strict
interpretation of the law be followed limiting evidence to only what
is seen and heard, objections are proper and sensible.
The modern tendency is to do away with all restrictions of the past.
There has been too great severity in interpreting the law of proof and
the pendulum is bound to swing far in the opposite direction. A medium
may not easily be reached, and the only test is the common sense of
the average.
On the question of time and whether the abolishing objections and
letting in all evidence would not be shorter, there is much to be
said. It might take less time for the witness to recount the death-bed
scene of his wife's sister's brother-in-law's aunt, than for the court
to hear and pass upon all the objections and arguments as to the
admission of the testimony on the red cow.
As the jury listen to the objections and exceptions they become more
and more impatient. The restraining influence of the surroundings, the
fact that they are impaneled in a box and that they are a part of, the
drama keeps them silent. They cannot break out in revolt at the
badgering of the witness. They can say nothing about the absurd
objections that are interrupting the proceedings or the spiteful
little exceptions that are being thrown in, but can only quietly store
up an increasing mistrust of the whole method. When the lawyer objects
so strenuously the jury thinks he must have something to conceal. Yet
when the objections are made they have a certain effect which is not
at first realized. A question is asked that is to the juryman
perfectly sensible, but which is absolutely inadmissable under the
rules of evidence. For example, the lawyer asks, "What did you tell
your wife about the accident when you got home?" Any reasonable man
knows that what he tells his wife is very important and bears on the
question of his veracity. The other lawyer very properly objects. The
jury thinks there must be something in it. The lawyer asks again,
"Didn't you tell your wife the horses were going very fast?" The other
lawyer is on his feet. "I object," he says, "and I must ask your Honor
to instruct the counsel not to ask questions that are manifestly
improper." The Court rules in favor of the objecting lawyer. He
admonishes the lawyer and instructs the jury to disregard the
question. Yet what is the effect? The jury believes unless the lawyer
thought the answer would be most unfavorable to his side he would not
have objected to it so strenuously. The impression remains on the
minds of the jury that there was a good deal to that question of what
he told his wife.
It is for this reason that when the lawyer keeps on asking
objectionable questions, the judge will sometimes declare a mistrial
or allow one side to withdraw a juror, which is only a polite way of
saying that the present jury in the particular case can not be fair.
Here arises one of the prettiest dilemmas of the law on the trial of a
case. Suppose the case has been going on all day or for several days.
The plaintiff is very anxious to have it finished. He has been at
great expense and trouble to get his witness and the lawyers' time is
valued at so much per trial day. On the other hand the defendant at
the worst can only have a judgment against him, which may as well
happen at another time. He is willing to have the case declared a
mistrial and start anew; he knows it will take a long time for the
trial to come up again. It has been a dull grilling proceeding, but he
does not care so long as there is a chance of postponing the judgment
against him. It is on the whole better and easier to put it off.
Now if the judge declares a mistrial, on the motion of the plaintiff,
that is his own look out. He believes that he can not have a fair
trial, that he can not proceed. But suppose the defendant by his
lawyer makes the trial unfair. His lawyer keeps asking those improper
questions which imply so much to the minds of the jury. The judge may
speak severely to the lawyer and caution him not to keep on putting
suggestive questions. That is all that he can do. It would be plainly
unfair to order the withdrawal of a juror. The trial according to the
opinion of the judge may be unfair. The plaintiff's counsel is afraid
to ask for a mistrial, first on account of the trouble and expense to
his client, and second, if it be denied, the jury will believe he
thinks them unfair and does not want them to try the case. The judge
is in a curious position with regard to objectionable questions and
testimony, he ought not to penalize the plaintiff by punishing the
defendant. The loosening of the laws of evidence might do away with
quandaries such as these.
XII
THE MOVEMENTS IN COURT
Motions imply movement and action especially in a drama, but in a
court motions are the reverse and occupy the place of dramatic pauses
which delay the real movement of the play. They are of great interest
to the lawyers, of some interest to the judge, because he has at once
to pass upon them, of but little interest to the client, who does not
understand them, and of no interest whatsoever to the jury, except
when they result in the disposal of a trial.
Before the case begins the defendant makes a motion. When the
plaintiff's lawyer has finished his opening, the other side makes a
motion to dismiss the case. When he ends his evidence, the other
lawyer moves to dismiss. When both sides are through, each moves.
When the jury bring in the verdict either side may move, or both when
neither is satisfied. All through the trial there are quantities of
little motions. Motions to strike out, motions to instruct, motions to
make the witness answer a question, motions to make the other lawyer
behave. Except for pointing the finger or raising the voice in
talking, they are not movements, they are only verbal, the action
comes in the play of emotions of the parties in court. Motions are
merely saying what either side wants; the formal asking for something.
The first important motion is on the pleadings themselves or when the
plaintiff has opened. If the judge does not believe that the plaintiff
has stated a case in law, he dismisses it on a motion of the defendant
and the judgment is "without prejudice." The trouble is that a
judgment of this kind does not finally dispose of the dispute. The
plaintiff may bring the action over again.
He may appeal from the decision or judgment and the appellate court
may rule that the trial judge was wrong and then after an interval
the case goes to a new trial just the same. By this time the plaintiff
or his lawyer may believe he has no case and desists, but the course
depends upon whether the parties have not died, grown tired, gone into
the hands of a receiver, or moved to Borneo. The jury know little as
to this state of affairs and are not interested in the preliminary
motions. The clients do not understand but think the lawyers are good
talkers.
The lawyers are interested in the point of law and believe so strongly
in their case that if an adverse ruling comes they are shocked and
surprised. The judge knows that although he grant the motion to
dismiss, he will probably allow an amendment. He is not greatly
concerned unless he foresees a possibility of settling the dispute
definitely and going on to the next case. He is anxious to try the
present action and get down to the meat of the matter but really if
they are going to insist on all technicalities he feels a little
impatient.
He knows that even if the defendant is right and the pleadings are
defective because the stenographer forgot to insert a date, it can
still be put in. Recent legislation has found it necessary to say that
the courts should allow amendments of pleadings where "Substantial
Justice" will be accomplished thereby. It is a commentary on the
system of the courts that the people through its legislatures should
find it necessary to pass a law that judges should amend paper
pleadings in furtherance of justice. If justice and right depend upon
pieces of paper to such an extent, the dry formalism of the courts is
a matter of regret.
The next important motion is when the plaintiff has put in his
evidence and has rested. "The plaintiff rests," the lawyer says.
The judge and the jury say to themselves, "Well it is half over."
The defendant's lawyer rises and says, "I move to dismiss on the
ground that the plaintiff has not made out a cause of action. He has
not shown that the cow was owned by the defendant, or he has not
shown that the driver of the plaintiff was free from contributory
negligence, or he has not made out any kind of case at all."
This is an anxious moment for the young attorney. Did he forget
something? What was there that he did not remember? Will the case be
dismissed because he forgot to tie a shoe lace or put in a pin? If he
is more experienced in court work he will not be so worried. The law
is that the plaintiff must be given every chance at this stage of the
proceeding. Only when both sides are through does the law begin to
weigh the evidence. At the close of the plaintiff's case everything is
in his favor. Any particle of testimony is sufficient on a particular
point. The theory of the law is that both sides must be heard. If the
motion to dismiss is made on the ground that something has been left
out, the court will usually give an opportunity to prove to whom the
red cow belonged. This motion like many other relics of a by-gone age,
is a matter of custom and tradition. It is usually made on the theory
that the judge may think there is no case and that the plaintiff can
not make out a case. If he so decides, the case is finished, the jury
is discharged, and the client has his feelings hurt by being thrown
out of court.
From a decision of this kind there is also a right of appeal which may
result in a reversal. Then the new jury is impanelled, the witnesses
are recalled, and the proceedings are gone over once more. If the
decision or judgment is affirmed, the case does not usually come up
again; the higher court has said the plaintiff has no case on the
evidence, and unless new evidence is produced he can never recover. In
certain accident cases the appellate courts have stated they would not
give their reasons for dismissing the complaint after the evidence is
all in because, they say, if they did so they were afraid the
plaintiff would supply the missing links by manufactured evidence on
the next trial and not quite honestly. This again is a commentary on
procedure.
Just at this point is where the law of the case comes in so
insistently. Before the case comes to court the lawyer is supposed to
know whether his client has a right of action. Every state of facts or
a breach of those rights does not give rise to an action that can be
maintained in a court of law. If you ask a man to dinner and he
accepts, but does not come, you can not recover your damages for
providing the dinner; or if you fall down your own well, you can not
sue the man who built it. The lawyer is supposed to have carefully
considered what elements of fact make an action. If the facts
themselves do not give him a right of recovery his case is dismissed;
or if he has a cause of action but has not proven the facts, it is
also dismissed.
But as was said above, if the train of facts or those in the pleading
is imperfect, the modern spirit is to allow them to be made perfect.
The only theory of law that is contrary to this spirit is what is
known as the theory that every man is entitled to his day in court
and the day being had it is unfair to bring the other side in again on
account of some defect or forgetfulness on the part of the other.
The reconciliation is that there should be no surprises on a trial,
the modern tendency is to bring the case away from the idea of an
ordeal by battle. The little advantages that are gained by sorties and
surprises and which are usually taken advantage of by motion, are
after all not of great moment.
An anomalous situation shows the absurdity of these motions, for when
the plaintiff rests, unless the defendant makes a motion to dismiss
the plaintiff's case, he is supposed to admit that the plaintiff has
made a good _prima facie_ case, and if he does not move he is forever
after, on appeal or otherwise, prevented from claiming that the
plaintiff did not make out a good case. The result is that at the
close of the plaintiff's case the motion is usually made as a matter
of form to preserve the defendant's right.
Usually this motion is denied if there is a possibility of making a
case, but suppose the judge either through ignorance or to be obliging
should say, "Well, the plaintiff has made out a good case, but if you
ask it, the blood be upon your own shoulders, and I will dismiss the
case." The defendant does not want it dismissed but he has asked for
it and he has got what he asked for. The result is an anomalous
situation. The case will undoubtedly be reversed and he will be
mulcted in costs for being compelled to ask, because of the formalism
of the court procedure, for what he did not want.
At the end of the defendant's case, when both sides have rested, the
defendant again moves to dismiss. Here again it is a formal motion,
which he may not altogether mean, but which the lawyer often makes as
a matter of form. If the judge really believes there is not enough
evidence to let the case go to the jury, he ought to say so without
the necessity of a motion. Suppose there is not, he dismisses the case
"on the merits" and the trial is over. But suppose there is and the
judge does not know his business and the fine point of law is not
entirely clear to his Honor, and he makes a mistake and the case is
dismissed. The result is that although he has granted the motion of
the defendant to dismiss and given the defendant what he wanted, he
has in reality penalized him, for the appellate court will reverse his
decision and the defendant have to pay all costs and stand the expense
of a new trial. The judge is in a quandary, which he may get out of in
two ways. One is to let the weak case of the plaintiff go to the jury
with the hope that they will see what a poor showing the plaintiff has
made and find a verdict for the defendant, in which event he will be
safe. But if the jury should make a mistake and find for the
plaintiff, then the judge has the intention of setting that verdict
aside, nullifying all the work of the jury, the witnesses, the
clients, and the lawyers, and ordering a new trial. This is rather a
weak-minded proceeding and shows the necessity of having a man in the
referee's chair who knows how to decide.