going on in the jury's mind. He has seen the gleam of interest which
was in the jury's eyes at the beginning gradually die out. He notices
how they fall into resigned attitudes. He has a glimmering that the
good old legal aphorisms which he has been enunciating with such care
about the burden of proof, the weight of evidence, the credibility of
witnesses and the caution about sympathy and prejudice, are not very
convincing to the jury. But the conventions require that he must go
on.
"Gentlemen," he says, "I must instruct you to eliminate from your
minds any discussion of counsel upon questions of law or rulings of
the court upon the rejections of testimony, or decisions upon motions
to dismiss or direct. They involve matters of law with which you are
not at present concerned. In arriving at your verdict you are to
consider only the evidence."
Perhaps the judge feels a trifle foolish and therefore he becomes more
emphatic and solemn. He carefully and in a painstaking manner defines
the law of negligence. He tells them the law of negligence involves
two cardinal principles. "The first is that the plaintiff must
establish that the defendant by its employees was guilty of
negligence, that he failed to act as a prudent and careful man;
second, that the plaintiff must have shown himself free from
contributory negligence; that unless the jury find both of these, that
the plaintiff cannot recover." Then perhaps he interjects a little
more about the balance of proof as to these particulars. "If the jury
find the plaintiff was negligent and the defendant was negligent, they
must find a verdict for the defendant. If they find the plaintiff was
not negligent and the defendant was negligent, then they may find a
verdict for the plaintiff, provided they find, etc., etc. Otherwise
should they find the plaintiff was not negligent and the accident
happened not through the negligence of the defendant, then again must
they find for the defendant, or again--" but the jury by this time is
exhausted. The alternatives do not interest them. The judge may know
what he is talking about, but they do not. The interesting question is
how much are they going to give the plaintiff.
The judge finally becomes worn out, a kind of self-hypnosis sets in.
He remembers so many phrases and legal maxims that he might enunciate,
his brain becomes confused as to selection. There are volumes of
charges to juries which he has more or less learned by heart. There
are so many glittering and vague generalities about the law of
negligence, the law of contracts, the law of evidence, the burden of
proof, or the weight of testimony, that he could go on indefinitely.
The jury have ceased to understand and the judge realizing the
hopelessness of this situation, winds up by saying--"So, gentlemen,
bearing in mind what I have just told you and the evidence in the
case, you will retire and consider your verdict."
The jury begin to gather their hats and coats, when up jumps one of
the lawyers and says: "One moment, please. I ask your Honor to charge
that if the jury find the cow that was in the plaintiff's garden was a
white cow and not a red cow, then their verdict must be for the
defendant." "I so charge," says the judge. "I except," says the other
lawyer, "and I ask your Honor to charge the jury that if they believe
the cow was the property of the defendant, their verdict must be for
the plaintiff." "I refuse to charge in those words," says the judge,
"there may not have been any cow or he may not have eaten the
cabbages." Or the lawyer for the railway may ask the judge, "That if
the jury find that the driver was forty feet away from the tracks and
the car was a hundred feet away from the corner of Seventy-eighth
Street when he first saw the car, and the car was going at a rapid
rate and the conductor pulled the bell and the driver was sitting on
the right-hand side of the wagon and might have seen the car had the
car been one hundred feet below the corner, then in that event I ask
your Honor to instruct the jury that the plaintiff was guilty of
contributory negligence and cannot recover."
The question is undoubtedly a poser. The judge is evidently worried;
if he make a wrong guess and says "yes" or "no" at this juncture, the
appellate court may say: "Error, judgment reversed, new trial
ordered." What happens is that the judge takes a chance. The lawyer
says, "I refer you to 169 New York Court of Appeals Reports, page 492;
in the case of Jones _vs._ Metropolitan, the court there said that the
refusal to so charge was reversible error." The judge looks wise and
finally says, "yes." There is a little playing of politics in this; he
has possibly been thinking how the jury are going to decide and
realizing that what he charges won't make any difference, he plays
safe by charging what the losing side wants.
These requests to charge may go back and forth indefinitely with
rulings and exceptions. Either lawyer may except to a portion of the
judge's charge, thus serving notice upon him that unless he hurry up
and change it he may be reversed on appeal. That is the reason why the
charge of the judge has not a great effect. He has to be too careful.
In New York State the judge can not say what he thinks about the
case. In other words, the charge must be indefinite. In England and
the Federal courts in this country, the judge may legally express his
opinion as to how the case should be decided, but that is as far as he
can go. The distinction is a relic of the old days of the jury system
when the judges would imprison the jury until they found as was
wanted. Now the judge may only express a preference and the jury may
do as they please. In some courts the democratic idea of the
independence of the juryman goes to the extent of not allowing the
judge to say anything specific.
The result is that the jury are confused. They are usually of so
independent a nature that the judge's charge would not greatly
influence them. The clients sit by utterly confounded; they hear the
judge wisely say, "I think perhaps yes, but on the whole it may be
no," and when he is through, not understanding as much as the jury,
they think the judge's charge is very fair. Having said little of
import it probably is.
The continental method is so entirely different, that it is shocking.
In the courts in France the judge practically says for his charge,
"You've heard the evidence, now go on out and do what's right." This
again illustrates the difference between the old and the new ideas of
courts. The old is a battle ground where the issues are defined, the
courts are kept within narrow limits and the rules of the ordeal
observed strictly, and the modern, merely an investigation of a
dispute with the glamor of a contest left out. It is an investigation
of facts, which however bitter may be the personal animosity, should
never lose sight of the main idea of arriving at the plain truth, in a
common sense way.
At last the lawyers are silent, the trial is over, the judge patiently
asks are there any more requests to charge, and there being no more,
he turns to the jury and says, "Gentlemen, you will retire and
consider your verdict." Slowly they file out, conducted by the court
attendant, to the jury-room.
XV
THE TRUE VERDICT
The truth is said. The battle is over and the mighty have prevailed.
The decision is made. Justice divine and compelling is about to
pronounce its sentence. The truth seeks to burst forth and the jurymen
have knocked at the door of the room in which they have been locked
for so many hours. The court attendant, who has been standing like a
sentinel outside to prevent the approach of eavesdroppers and
listeners, turns the key and sticks his head into the room, withdraws,
locks the door again, and sends off for the judge.
The judge has been in his chambers taking a rest and enjoying a cigar.
The judge always, when he is off the bench, is by courtesy said to be
in chambers--other people might call it a room with an office desk,
but the dignity surrounding a judge invests even the bare office room
where he sits. It is named in the plural, even if it is only one
ordinary room. He throws away his cigar. The lawyers or their
assistants who have been lounging about the empty court-room,
gossiping with one another and trying to evade the importunities of
their clients, who insist upon speculating with them on the probable
result, have been summoned to the bar. The judge takes his seat on the
bench. The jury, marshalled by the court officer, file in. They are
lined up in the jury-box.
"Gentlemen," says the judge, "have you agreed upon a verdict?" "We
have," answers the foreman of the jury.
When the jury have first been locked in the jury-room they have
probably immediately relaxed after the long strain of the trial. They
were entitled to a smoke and to feel at their ease. Besides they know
that if they finished their deliberations too early, they will be
called on another case. It was nearly two when the judge finished his
charge, so they have plenty of time to waste; for if they came back to
the court-room before three they would be impaneled in another trial.
They have taken a straw vote to find out how the sentiment stood, not
with the hope of arriving at a decision but by way of trying out the
matter. The result stands nine for the plaintiff and three for the
defendant. They light their cigars, for they came well prepared for
the tedious hours in the jury-room.
The nine men look at the other three in disgust, the three look at the
nine with contempt and then they begin to argue. The deliberations of
the jury are always secret, their method of procedure is uncertain,
and only the result of their deliberations appears in court.
Nevertheless, it is only reasonable to speculate on how they have
arrived at their verdict. Their verdict is the climax of the drama,
the goal of the race, the award of victory. One side must win and the
other be defeated. The psychology of the jury in reaching the verdict
is the great mystery and the most intense interest of the trial. The
judge does not know, the lawyers are unable to understand. There is a
certain respect for the inviolate privacy of a jury-room. If trial
lawyers could understand the method by which they arrive at their
final announcement they would be far better equipped than by a study
of the law for many years.
It is a question whether or not their actions are different from those
of ordinary men outside a court-room. They have left the restraining
influence of an uncomfortable and conspicuous position and have
entered again into the attitude of mind of the everyday world. The
control of the judge has disappeared. The lawyers are only memories.
They have become only plain business men with something definite to
do. They do not know how to do it and the discussion begins in a
desultory way.
"Well, we ought to give that boy something."
"I don't like the looks of that last witness."
"That lawyer for the defendant was too smart."
"But do you think the driver tried to cut him off?"
"He couldn't have been in bed six weeks."
"No man would stay in bed that long with a sore knee."
"Oh, well, he only meant he was about the house."
"That doctor was a great one. He loved to get off those terms; he must
be just graduated from the hospital."
"Did you hear the lawyer say in a case he tried in Brooklyn he had
seventeen of those experts?"
"Well, let's take another vote and see if we can't get together."
"I can't stay here all day. I've got to close something important at
four o'clock."
"You'll stay here if you have to; we want to get this settled right."
Another vote is taken. The result is the same and the two sides
gradually assume opposing positions. Each one takes a leader and
spokesman; the discussion is probably between those two and an
occasional interjection by the others. By this time the argument has
grown tense and after half an hour the original arguments of counsel,
the evidence, the instructions of the judge have become merged in the
minds of the jury with what has been talked of in the jury room. The
recollection of each juror includes the recollection of the discussion
that they are having. The mental picture is now a combination of what
each witness thought, each lawyer conceived it, how the judge
described it, what they imagined it during the trial, and added to the
mental concept is the recent present struggle between twelve points of
view.
They do not remember what it was the judge told them about their
verdict. Suppose they send out and ask him. No, they do not want to
appear like fools. It is plain. Their verdict must be for the
plaintiff or the defendant. But in that contract case where the other
side wanted something back from the plaintiff, how are they going to
find a verdict for both? They can't find a verdict both ways. They had
better send out and ask the judge. No. Well then they will send for
the pleadings, they will show.
"What," says one juryman, "do you think those pleadings would show
anything a reasonable man could understand?"
They decide that there was a bill that told the story. They knock on
the door. The court attendant opens it. They explain, he gathers in
the lawyers, and they go to the judge's desk. There is a thrill. The
jury have agreed so quickly it must mean a verdict for the plaintiff.
If they had been out longer it would have meant there was a
disagreement or a verdict for the defendant. The longer the jury stays
out the better for the defendant thinks the lawyer. But the actions
of the jury are uncertain and there may be no rule of arriving at
their decision.
There is the story of the judge who, after the jury had been out for a
long time, made a bet with the stenographer as to how the jury were
going to decide. The judge thought himself an expert in determining
the probable verdicts of the jury. After they came in and announced
their decision and were discharged, the judge having lost looked
crestfallen. The stenographer smiled. Then the judge recovered
himself.
"You win," he said, "but the next time you and I bet on a decision it
is going to be one of our cases without a jury."
The attendant asks for the bill and returns to the jury-room. The
court falls into a lethargy of waiting. The jury, having their
information, go on with the discussion, probably on the following
lines.
"Sure, I told you the silks were worth four hundred dollars."
"Well, I know those kind of people; they are small people and they
never did that amount of business in all their lives, let alone one
month." Or,
"Don't you know that neighborhood; all the cars speed up whenever they
get there."
"Why, yesterday I was getting off a car and the conductor pulls the
bell, etc., etc."
"No, I ain't prejudiced against the railroad; I ain't got nothing
against the railroad."
"Of course, we ain't going to decide this case on sympathy or
prejudice. But that boy's Irish and he looks like he come of good
honest people."
"Vy, I don't see no difference whether he is Irish--or Yiddish; vot ve
vant is justice."
"Now see here, my friend, if you think you're going to make this a
racial matter you're mistaken. Just because that boy's Irish you
needn't think he ought not to get nothing. You're prejudiced, that's
what you are."
"Oh, let's get down to the evidence anyway; what we want is to
decide."
"Vel, the motorman vas Irish, vot you talking about?"
"Sure, but he had to say what he did. Didn't he have to hold down his
job with the company?"
The rest of the jury sink back resigned and despondent. They will
never get out. One of them ventures.
"The judge told us that the law was--"
He is interrupted.
"Oh, we don't care so much about the law. What we want to do is to do
what is right."
Somewhere, somehow, and by non-understandable methods the verdict is
reached. If the jury ask for further instructions, they file back into
the court-room and the judge proceeds to elucidate the hidden mystery
of the law in much the same manner he did in his charge. They return
again not satisfied, and take up the discussion.
The most dramatic moment in the trial is when the officer comes in and
announces the jury have agreed. While they slowly file in, the
prisoner or the parties watch them with soul-tearing eyes; the lawyers
with anxious expectancy. There is an electric thrill in the air. In
some mysterious manner their verdict becomes known before the foreman
speaks. Call it thought transference, mind reading, or what you will,
there is a quick understanding from their faces, their manner of
walking in, and their final pronouncement is only a confirmation of
what was expected.
The jury has spoken, the lawyer who has lost moves to set aside the
verdict. The jury looks startled. Is it possible that after all that
trial and all that deliberation the judge is going to upset it again
and have the long trouble gone over. The judge denies the motion or
takes it under advisement. Only on rare occasions does he set the
verdict aside then and there. The verdict must have been outrageous,
absurd, clearly a compromise, or absolutely and shockingly against
common sense. The theory of the law is that the verdict of a jury is a
final judgment on the facts by the best judges of the facts. It will
not lightly or for small reasons be interfered with.
The question of belief in the jury system is one of the most futile of
all large questions. In the first place, jury trial is so deeply
engraved in the constitutional bill of rights that one might as well
ask: "Do you believe in citizenship?" "Do you believe in the United
States of America?" Secondly, trial by jury is so completely involved
in the present system of court trial and procedure, that they are
inseparable. The evils of the whole attach to the part and the
beneficent aspect of the courts pertain equally to jury trials.
Coming down to a concrete case and leaving the abstract principle to
the theorist, there are certain obvious things to be said for and
against jury trial. The jury represents the opinion of the common or
ordinary man--the _vox populi_. Twelve men picked at random are
probably neither all capitalists nor all laborers. They are made up
of a few of both, but the majority, if not all, are the small
tradesmen or the great middle class. These men are not ignorant,
prejudiced, or unintelligent. They have a limited experience, but
their judgment is the judgment of mediocrity and mediocrity is what is
wanted. The professional man, the expert, the specialist is needed for
the special degree of administration, but for the determination of the
actual right and justice, what is needed is the instinct of the
ordinary man,--the plain ordinary common sense.
When the criminal says: "I stand a better chance with a jury"; when
the civilian says: "If I had the wrong end of the stick give me a
jury," he is appealing not to the wrong side of the jury system, but
to a quality which is not always recognized.
Law is an exact, definite statement of principles, absolute and
apparently immutable. When a man on the street walks up to another and
wantonly insults him, the law is, that the insulted party must turn
and walk away. If the matter came before a jury they would never
convict him for knocking the other down at once. The jury system is
the mitigation of the law.
XVI
LOOKING BACKWARD
Extracts from the Graduation Dissertation of a Columbia
J.E. upon receiving his degree of Juridical Expert in 1947.
Historical investigation of obsolete customs is of little value beyond
preserving some record of what may soon be forgotten.
In the year 1947 it seems almost unbelievable that the universal use
by the public of Judicial Corporations should have been a matter of
such recent economic growth. It is interesting to trace their
development and the social causes from which they sprang.
The efficient administration of these co-operative Corporations being
demonstrated by their financial success, makes it unnecessary to
dwell upon the details of their intensely developed organization.
Existing as they do upon so broad a comprehension of the whole
commercial and social structures, it is little wonder that they have
proven their value to the community. Their highly specialized
departments of Issues, Investigation, Statutory Law, Records,
Determination and Results correspond in a measure to the former method
of procedure in the extinct courts of law and equity. Times have
indeed changed.
The analogy between the present methods and the antiquated and
conventionalized customs of those cumbersome and inadequate
institutions is not difficult to find. The department of Issues, for
example, corresponds to what was known as the pleadings in an action.
These were formerly bits of paper governed as to form by inflexible
rules, instead of the efficient method by which under the trained
managers of able minds the matters in dispute, either of fact or law,
are now narrowed down to exact points of difference. Naturally the
methods of their managers being untrammelled by outside rules and they
being men of wide experience and tact, the work of this department is
not as difficult as at the first commencement of Judicial Corporations
was anticipated.
The departments of Investigation and Experts correspond with the
former division of court trials known as evidence and testimony. Any
explanation would be futile of this branch of a forgotten formalism.
The ancient rules of evidence and court procedure could only be
understood by contemporaries and an extensive research has failed to
disclose very clear concepts even by them. The modern methods of the
departments governing the ascertainment of facts, either through the
experience of the departmental employees or the efficient work of
trained investigators, have naturally been much aided by the invention
of the Viviphone making all communication adequate and easy.
The departments of Statutory Law and Records even yet retain certain
characteristics of a period when judicial officers and clerks
represented to the public mind the embodiment of what was known as
"Red Tape," a true colloquialism descriptive of the attitude of
official conservatism. These departments being governed according to
the latest bibliographical methods are of merely supplemental value as
reference. The Simplification and National Unification of Federal and
State statutes has, of course, added greatly to the facility of this
branch of the business.
The Determination and Result departments at first were thought to be
of primary importance. Corresponding as they did in their functions to
the former exclusively judicial qualities of the courts and the final
judgments thereof, the exaggerated import previously given to those
functions pre-supposed an equal necessity in this subdivision of the
management of the corporation. This proved to be incorrect. It was
found that after a careful framing and narrowing of the matter in
dispute by the Issues department, and a thorough and careful sifting
of facts by the Expert and Investigation departments, the dispute
gradually, if not wholly, disappeared. Men of the highest character
and calibre being employed at large salaries as heads of these
departments, have given adequate satisfaction, as has been proved by
the prosperity of the Corporations. The recompense of the heads of
these various departments, requiring as it does men of the greatest
commercial understanding, is said to be in some instances fabulous.
In the early quarter of the present century and indeed in the latter
part of the nineteenth, the undercurrents of many movements were
already stirring the surface of the placid stream in which for so many
centuries had been flowing the course of justice. Those curious relics
of a medieval, age, the law courts, still at so recent a date,
retained many of the forms, characteristics, and usages of a time
when knights fought in plate armor and indulged in the mimicry of
battle, urged on by the glamor of chivalry. The very terms and the
legal phraseology of the period implied the jousts, tournaments, and
ordeal by battle of a romantic and self-deceptive age.
The universal world war that resulted in such an immense change of
social and economic values contributed naturally to the destruction
and abandonment of old forms and structures. Yet even before the war
and the economic revolution that followed so quickly thereafter, the
tendencies toward a more sane treatment of the question had already
begun.