motion and to let the jury go into the jury-room and worry about the
verdict for an hour or two, while the judge has the hidden intention
of perhaps deciding that they need not spend any time at all about the
matter.
The principle on which the judge passes on this motion to dismiss is,
that after all the case is in and all proof had, that on the proof and
evidence there is not enough on the part of the plaintiff from which
any reasonable man could ever find a verdict for him. The motion
differs from the one at the close of the plaintiff's case in that the
latter is based on there being no proof at all, while the one after
the case is entirely in is based on the theory that there is no
possibility of a verdict.
This sounds again like a metaphysical discussion, but is illustrative
of the futility of formal motions, so that actually the decision
depends upon the good plain common sense of the judge. The tendency is
that if the case has gone to the length of a full trial and there is
any question of fact involved, that the jury should determine the
question of fact and exercise their functions. It must be a poor weak
case of the plaintiff and evidently unsound, in which the judge or the
appellate court interferes.
Throughout the trial the little motions that occur bear the same
relation to the main issue as do the objections and exceptions.
"I tried to stop the car," says the motorman.
Up jumps the other lawyer. "I move to strike out as a conclusion."
The witnesses have testified to slightly different facts than what
were stated in the pleadings. "I move to amend the pleadings to
conform to the proof," says the lawyer.
"I move for an adjournment on the ground of surprise," says the other.
Of course the statement of the conductor is a conclusion of fact. But
if the other side wants to find out how he tried to stop the car, let
him ask what was done. "Did he turn on the brake handle? Did he switch
on the emergency?" A man does not have to be an expert to say that the
car was going fast; he may be examined as to what he considers to be
fast. Nor does he have to be an expert to say that eggs are rotten,
that butter is rancid, that there has been a war in Europe, that a man
has a broken leg or looks sick or acts queerly, that the fish is stale
or the cow was red.
The motion to strike out does not affect the jury, the testimony still
remains on the jurors' minds. The verbal memory stays. Neither does
the motion to amend the pleadings affect the jury. What have they got
to do with it? If the papers are amended it is not important from
their standpoint. Should the plaintiff have written a letter that he
was going to sue for something, to the jury that seems better than any
pleading.
These motions are insignificant and examples of a formalism which,
however valuable it may be as defining the methods of the legal
battle, are not consistent with the modern spirit of investigation
into facts. It is rather significant that the laws creating Public
Service Commissions and Legislative Investigation Committees in some
States go to the length of stating that there shall not be any rules
of evidence such as are employed in the courts of law.
The other motions, such as to direct a verdict, which is usually the
same as a motion to dismiss, and the motions after a verdict has been
rendered, are also formal statements of a request for the disposition
of the case.
They may be all very good and useful in their way, but are merely the
incidents and measures by which the truth of the matter is reached.
The client looks puzzled at the argument and the decision, the jurors
have a not very clear conception of what is going on, the lawyers have
a meretricious feeling that perhaps they are cheapening themselves a
little by making so many motions, yet they, nevertheless, have a legal
right to do so and they must take advantage of every legal right for
the protection of their clients.
After all the witnesses have been called, the plaintiff and the
defendant have proved their sides, the plaintiff has contradicted the
new evidence of the defendant, everybody has been examined, the
interruptions of the objections and motions, exceptions have been had,
the judge asks if both sides are through and the presentation of the
case is ended.
The course of justice has been on a rough and rather narrow road. The
popular revolt at the method of arriving at the truth is, in fact, at
the narrowness of the way. The presentation of a case and the means of
reaching the truth ought to be on a well-defined and orderly system.
It would seem natural that the crooked and ill-paved streets of an old
town should give place to the open, smooth, and broad avenues of the
modern spirit.
XIII
ELOCUTION
At last when both sides rest and the judge has passed on the latest
motions, the intense action of the drama begins. For this the clients
have been waiting, the lawyers have been training. It is the
opportunity for them to display their attainments, to show their
clients what brilliant lawyers they have retained; to let the judge
know how well they have understood the case; to move and sway the jury
to their side; to unravel the mysteries and by the power of oratory to
bring justice where she belongs. When his lawyer is talking, the
client watches him with admiration, but while the opposing lawyer
speaks the client can hardly conceal his contempt. He feels that his
case is secure and he does not understand how there can be anything to
be said on the other side. Yet he is fearful there may be some court
trick which he does not understand and the case may be lost.
"Your Honor and gentlemen of the jury," begins the defendant's lawyer.
Including the judge in his address, although it is a matter of
courtesy for the eloquence of the summing up, is meant solely for the
jury. The judge is only supposed to listen and restrain the attorneys
if they go too far afield in their attempts to influence the jury by
their efforts. The judge is the time keeper or referee and holds the
lawyers to the point.
The object of the attack is the jury. As the burden of proving a case
is on the plaintiff, he is supposed to have the first and the last
word; therefore, the defendant begins to sum up. After he is through,
it is the turn of the plaintiff. The tactical position is in favor of
the plaintiff. The advantage, as in all verbal disputes, is reputedly
with the man who has the last word. In all debates the proponent has
the right of opening and closing. The plaintiff began the case with
his opening, and after it is over he is permitted to close.
"Gentlemen," says the judge, "how long will you take in your address?"
Both sides agree upon a certain time, which usually proves too short,
but which is acquiesced in with alacrity because each side thinks
their case is so plain and convincing that it will not be difficult to
explain. The lawyer girds up his loins, the court-room quiets, the
struggle of conflicting evidence is over, the clients and witnesses
retire from the foreground, the other counsel sits down and the lawyer
steps close to the jury-box.
"The jury is yours," says the judge, as though he were abandoning the
jury. Indeed the summing up is an attack, a vivid, keen, masterly
struggle in which wit and brain is pitted against wit and brain: where
facts and passions are to be marshalled in the most intelligent and
plausible way, where imagination and oratory are to be employed in
their finest capacities. It may be bold, manly, energetic, or soft and
persuasive; it may appeal to sympathy or threaten with a battery of
accumulated facts. Forensic oratory is the highest type of art, the
most powerful of human gifts. The only trouble with most court oratory
is that it is only fit for the market-place. The lawyer begins with
the firm impression that he must win the jury. His voice is bland and
soothing, he feels that he must be soft and persuasive. He rubs his
hands and remembering the old adage, that laugh and the world laughs
with you, attempts a little joke. There is nothing so good as to get a
smile for his side. Perhaps the joke does not go very well and the
laugh does not come; the point has missed. He will try what flattery
can do.
"Men of your intelligence can readily see," he says.
"When I was examining you," he explains in a subtle way. "I knew at
once how unprejudiced and fair-minded you were."
"You gentlemen are practical men and can understand." Yet somehow the
jury are impervious. They sit back in their chairs and stare.
Then the lawyer begins to forget the object of ingratiating himself.
Hypnotized by the memory of his client's wrongs, he works himself into
a frenzy of feeling. He swings his arms, pounds with his fist, raises
his voice, and thunders his denunciation. His speech takes on a
threatening tone. He shouts and bawls; the jury must be waked up. They
sit stolid and unmoved. He tries to catch their eye, there is no gleam
of interest. Perhaps he has rather a hopeless feeling that the art of
oratory is not what it is reputed to be. The jury look particularly
unresponsive. Even that one little juror, with the clever, smart face,
who is leaning forward with such an expression of enjoyment may not be
altogether trustworthy. The lawyer has seen that kind before and the
one juror who seemed the most interested in the last case he argued
was the very one who held out against him in the jury-room as he found
afterwards. It seems a difficult matter to stir the jury and the men
in the box are not at all a warm or enthusiastic audience.
The jury are not particularly keen about the oratory of the lawyer,
they look upon him as paid to do his part. It is the portion of the
trial they can understand; they have not clearly comprehended what
went before. When the objections were being made and there were the
cross-examination and badgering of witnesses, they could not separate
in their minds the functions of the lawyer and the personality of the
lawyer. It seemed as though he were doing a good many unfair things
and not acting quite up to the mark, but now the atmosphere has
cleared. They can realize that he is only the paid talker for his
client, that he is only making all this noise because that is his
business. To the jury he is the pleader employed as an actor. The
position is simple; if any one would pay them for acting and
gesticulating at so much per day or per hour, they would be very glad
to earn the money.
The client watches the lawyer with affectionate admiration. True, he
did not do exactly as he was wanted during the trial. He should have
asked those questions he suggested, but now he is doing grandly. When
the lawyer is through the client feels splendidly. He sees but one
side of the case and believes in it absolutely. With such a good
talker the jury cannot fail of being convinced.
When the lawyer sits down the client shakes him by the hand and tells
him how well he has done. He might have been willing to settle the
case for a thousand dollars before, but now he wouldn't pay a cent,
not one cent. Later, should the jury find against him, even to the
amount of the thousand dollars which he was willing to pay, he feels
terribly disappointed. There must have been something very much amiss
in the jury-room.
The judge while the summing up is going on, is not very attentive.
His part of the case is over. While the proof was being given he was
alert. True, the charge is coming afterwards, but he knows fairly well
what he is going to say, and it is going to be formal. It is the
function of the judge to control the address of counsel, but the
counsel are sometimes very hard to control.
In the criminal trials, reference is made to the emotions of the
defendant's family; the devoted, anxious wife, the poor little
children who may bear the stigma of their father's disgrace, should
the verdict go against him. Since the domestic life of neither party
to the trial has appeared in evidence, such things being entirely
"irrelevant and immaterial," it does not make a great deal of
difference whether the picture is accurate or wholly fanciful. The
defendant may be a drunkard, a burden to his wife, and a horror to his
children; he may have abandoned his family to their own resources; it
is possible that he has never had any family at all. The lawyer has no
right to refer in his summing up, or otherwise, to anything that has
not been properly submitted in evidence. He is guilty of unfair
practice in telling the jury about the defendant's family or
circumstances, unless this has been part of the case, which is
improbable. He knows this well; so does his opponent and the judge.
And should the opposing lawyer protest, the judge will say, looking
up, "Be careful, counselor, be careful." The counselor bows
respectfully and probably goes on in the same vein. The judge has not
heard exactly what was said and feels that the lawyers, if they are
not too blatant and noisy, may say what they please. There must not be
too much talk about the wicked, money-grabbing, soulless corporation,
not too much appeal for the down-trodden poor, nor an over indulgence
in personalities. The lawyers must not call the other side liars and
thieves too openly. That is, they may say they are untruthful, but
liar is too strong. The denunciation must be a little restrained.
The judge throws out a rather mild admonition. "The counsellor must
keep to the evidence. You may not refer to matters which are not
before the court." The lawyer says, "Yes, your Honor." The judge
withdraws again into a contemplation of the high cost of living and
his diminishing bank balance. The shouting and vociferation grow
louder. The jury are long-suffering, but they cannot object. The other
lawyer jumps up, and after an insistent effort makes himself heard.
"The witness did not say that; you are stating something that is not
so. I ask to have the stenographer read the minutes." The stenographer
begins turning over the pages of his stenographic book. The exact
testimony of the lady in the car is hard to find. "Heavens," think the
jury, "are we going to have the whole case over again?"
The lawyer who is talking complains, "If my friend is going to keep on
with his objections I shall never get through in my fifteen minutes."
The stenographer has not been able to find the exact spot. It is
apparently not in the testimony. Then the lawyer objecting says, "I
ask your Honor to instruct the jury to disregard the statement of
counsel." The lawyer must have a sarcastic vein of humor. Such an
instruction does not seem necessary. The judge says, "I will cover
that in my charge, but I must ask the counsel to be careful," and he
looks warningly at the clock.
Finally the hands point to the agreed time. The judge says, "Your time
is up, counselor." "Just one minute more," says the lawyer and then he
goes on for three. The judge raps on his desk. The lawyer winds up his
speech in a hurried peroration. "Therefore, gentlemen, with the utmost
confidence in your ability as men of experience and affairs, with the
sure belief in the justness of my defense, I leave the matter in your
hands."
The plaintiff's lawyer now takes the floor, the jury shift their feet
and glance at the clock. "Gentlemen of the jury," he begins. He
probably leaves out the judge. The plaintiff now having the attack is
more direct. It is rather significant of the change in all procedure
that the language of all court addresses is becoming more and more
simple. The old days when the lawyers delivered homilies of Latin have
disappeared. No longer does the lawyer refer to _nunc pro tunc_, or
make facetious jokes in a language the layman and probably the court
does not understand. If a lawyer makes too many Latin quotations, the
court thinks him affected. He must be simple, direct, and to the point
at issue.
His art in presenting his case consists in drawing the picture of the
facts so vividly that they will remain in the jurors' minds. Employing
his imagination in forming the concept, he gets it across the rail to
the jury by the fine gift of selecting words and incidents. No one, it
is said, is ever convinced by argument, but any one can realize a
visualized picture of words.
The counsel starts to storm and abuse his opponents and his opponents'
client, and in his wrath also forgetting that persuasion is not
accomplished by denunciation. The majority of the jury are rather
easy-going, kindly men, who do not care to hear others made too vile.
Just as satire is more effective than direct abuse the tolerant
juryman prefers to have the other party laughed at than called names.
The clients become worked up over their wrongs and excited by their
lawyers' oratory. When the case is over they are extremely surprised
to see the men who have been shaking their fists and ready to spring
at one another's throats, quietly lock arms and go out to lunch
together. It is all in the day's work and they must fortify themselves
for the next trial. The shock is something like that when, after a
melodrama, the heroine having jumped over the bridge and died in a
whirlpool, comes out quietly and, in spite of her suffering, bows
smilingly before the curtain.
The judge and the jury know that the lawyers are coming to life again
and are not really trying to kill each other. This is one of the
pleasantest aspects of the life in court. There is a good fellowship
between the two lawyers who have been so keenly struggling. They even
have a kindly feeling toward the judge when he is off the bench.
The court attendant calls the attention of the lawyer to the time, who
with a sidelong look at the clock, also "Confidently leaves the case
in your hands, gentlemen."
The two lawyers sit down and the judge puts on his spectacles, gathers
up the notes he has been making of the main points of the trial, and
turning to the jury begins his charge.
XIV
THE HEAVY CHARGE
No, madam, the charge of the judge does not mean his bill for expenses
or his salary for trying the case. A charge implies something grave,
heavy, and aggressive. It is what the judge tells the jury about the
case. It is never light or humorous, but ponderous and hard to
understand. The court-room doors are locked, no one must come in or go
out during the charge.
The judge looks solemnly at the jury, the jury straighten up from the
desponding attitude they gradually have assumed during the address of
counsel.
The end is near and they begin to have hope. They appear interested
and a gleam of awakened intelligence is in their eyes. Now at least
they are going to hear what they wanted to know about the case. The
judge will probably tell them something new and clear up the points
they did not understand. It may be even he will explain why he made
those strange rulings during the trial and what that mysterious
conference was when he called the lawyers to his desk and they talked
together for so long.
The judge begins: "Gentlemen of the jury, the plaintiff in this case
seeks to recover," and then he goes on to tell them what the plaintiff
wants, which is just what the plaintiff's lawyer has been telling
them. The judge must have been asleep while he was talking for he is
saying the same thing over again, only in a little different language.
After that the defendant's case is set forth. There again that is what
the defendant's lawyer was saying. It does not appear reasonable that
they are compelled to hear six times what the case is about. There
were the two openings of counsel at the beginning, the two summing up
at the end, and now the two explanations of the judge. There ought to
be an allowance made for the jury possessing a little intelligence.
The judge then tells again what the witnesses have said, in not quite
so many words, but covering the main points. There is no use in that.
The jurymen think they ought to remember fairly well what was said.
The judge admits it after he is through by saying himself: "Gentlemen,
you are to be governed by your own recollection of the testimony
rather than by what is said by either side in summing up or by the
Court." If he means that he should have kept still and let them have
their own recollection.
Then he goes on: "If you believe any witness has wilfully testified
falsely as to a material fact, you may disregard that witness's whole
testimony." Of course, is that not the reason for their being there?
Why, the judge in the beginning made them swear to decide the case
"according to the evidence." The jury is going to do exactly that.
They are going to decide which side is lying and which side is telling
the truth. They are not quite so stupid as not to know that. There
seems no need in insulting them by telling them that they need not
believe a witness unless they want to. Why are they there?
The judge tells them that the function of the jury is to decide the
facts and for him to decide the law. That is fortunate, for they could
not understand the law, even if they wanted to; it is a silly business
and it is not common sense. What the jury feels is that the judge's
charge is leaving it to them without any trouble about the law. But
wait a moment, the judge is going on to tell them about the law as
applied to the particular facts before them.
The important principle of law they are being told is what is known as
the preponderance of evidence and the burden of proof. The judge goes
on at great length about the weight of evidence. The weight of
evidence, he says, is the preponderance of proof and the preponderance
of evidence is the weight of evidence, and the man who has the burden
of proof must have the weight of evidence and the weight of evidence
being the preponderance of evidence is also upon the man who has the
burden of proof. And the preponderance of evidence does not mean proof
beyond a reasonable doubt, as in criminal actions, but that the proof
must be heavier on one side than the other and the one who has the
burden of proof must sustain the preponderance of evidence. That is
the law; the judge has said it. What it means the jury give up. The
lawyers nod their heads wisely. The judge has stated the law
correctly.
The judge may go on a little further and tell them more about the
burden of proof and the preponderance of evidence. He may say that the
weight of evidence does not mean the number of witnesses. The mere
fact that one side has six and the other side only two does not mean
that the jury are to believe the side who has six. The jury know that
when probably they are all exaggerating somewhat they are going to
decide the way the thing happened. Then the judge tells them, having
seen the witnesses, "That they may consider their bearing on the stand
and their manner of giving testimony." Surely they are going to do
that. Is not the best way of knowing whether a man is telling the
truth to look at him and watch him while he is talking? There is
little sense in the judge advising them to consider his bearing on the
stand.
Another thing the judge says is that they are not to be governed by
sympathy or prejudice in arriving at their verdict. This is a caution
that the judge thinks necessary. He forgets that when they are in the
jury-room, with locked doors and no one to disturb them, they are
going to do exactly as they are inclined. Prejudice and sympathy are
for unintelligent people who do not know what they are about. Both
lawyers have been telling the jury what intelligent men they were and
it seems unnecessary for the judge to say that they are not to be
governed by prejudice and sympathy. Suppose the defendant is a rich
corporation, they are not going to find against it because it is rich.
The company can stand the loss of a few dollars out of its pocket
better than the poor man anyway. Not that they are going to decide for
that reason.
As these accumulating evidences of the judge's misunderstanding of
their attitude of mind pile up, the jury sink back into their seats.
After all, the charge of the judge is not more understandable than
most of the other parts of the trial. The saving point about it is
that the end is drawing near and they can soon get away and have a
smoke in the jury-room, and afterwards go home.