Here in the street poor Juvenis
May raise his head and proudly trudge
Alongside Judex—judicis
The Third Declension—Judge.
_Pater’s Book of Rhymes._
In England the legal profession has two branches. There is also the
root of the matter, but that is seldom referred to. These two branches
are called—(i.) The Upper Branch, and (ii.) The Lower Branch. In great
affairs the Lower Branch tells the Upper Branch what it has learned about
the case from the client, and the Upper Branch tells the Court what it
remembers of what it has been told by the Lower Branch. The advantage
of retaining these separate branches is that where error occurs it is
difficult to assign responsibility therefor. The Upper Branch learns
advocacy by passing examinations and eating dinners; the Lower Branch
by means of further and better examinations and fewer dinners. Those
rules of advocacy that have not been learned by that method are acquired
afterwards, if at all, by practical experience in the Courts of Law at
the expense of the client.
To offer advice to members of the Upper Branch of the Profession on the
Art of Advocacy would be unseemly, and these hints are intended—merely
as suggestions made in the friendliest spirit—for the Law Student of the
Lower Branch who proposes to take up advocacy in those inferior Courts
which are open to him. Long experience of sitting as Judge in an inferior
Court has led me to believe that it is not necessary or convenient that
the advocacy should also be inferior, and I humbly commend this point of
view to the younger members of both branches of the Profession.
Perhaps the most important Court from the young solicitor’s point of
view is the County Court. A solicitor is allowed to act for a client
in a County Court. When he is acting he has what is called a right of
audience. This does not mean that all he says will be listened to by
the audience, even if it be uttered in an audible voice. Moreover, the
advocate’s right of audience must not be confounded with the rights of
the audience themselves, who are always entitled to leave the Court if
they are bored. For this purpose the Judge is not “audience.” He is
bound to go on sitting, and ought to listen. The commission of Judge is
_oyer_ and _terminer_, but in actual practice in County Courts you will
find that Judges are more ready to dispense justice _terminando_ than
_audiendo_.
Law students who have afterwards risen to eminence in their profession
have sought to practise advocacy in their earlier years by making
appearances at the local Police Courts as defendants. Much of the law of
the motor-car may be learned in this matter—and much that is not law.
The young enthusiast will find, I fear, that the method is an expensive
one, the legal educational value of the magistrate’s _dicta_ is slight,
and the opportunities allowed by the magistrate’s clerk to the defendant
for the practice of advocacy wholly unsatisfying.
Even in later life the young solicitor is not advised to begin his career
as an advocate in the Police Courts. Criminals have very little cash,
and ought not to receive much credit. As to licensing matters, these
are wisely placed in the hands of matured and experienced advocates.
A licensing Bench has always made up its mind—which is divided into
two parts—long before the case is called on, and the advocate’s duty
is to say nothing that could conceivably disturb the considered
judgment of the Court. This is a delicate task not often entrusted to
beginners, and although it is well worth while to study the technic of
some of the masters of the game, yet it is to be remembered that only
with a licensing Bench, and perhaps before some of the more remote
Ecclesiastical Courts, is this style of advocacy required. The young
solicitor will probably find more scope for his abilities as an advocate
in the County Court than before any other tribunal. The Judges of these
Courts are far more tolerant of advocacy and less dogmatic on legal
questions than lay Magistrates, and are neither as omnipotent nor as
omnivorous as Magistrates’ Clerks.
Thus much for advocacy in general. “I will now,” as Lord Chesterfield
says, “consider some of the various modes and degrees of it.” I assume
that you are a young solicitor entrusted by some hopeful and friendly
client with a County Court Action. Your first duty as a solicitor
advocate is to get something on account of costs. Do not omit this common
opening. A gambit here is a mistake. The fact of your client being a
personal friend makes it the more necessary. Many a friendship has not
survived a fourteen days’ order to pay a debt and costs. This sum on
account may prove your real and only solace (_solatium_) when you hear
the judgment.
Always consider yourself before your client. Your client is here to-day
and gone to-morrow, whilst you, I hope, may remain. Proper pride will
instinctively teach you when to consider your own interests rather than
your client’s. Remember Bacon’s saying that “Affected dispatch is one
of the most dangerous things to business that can be.” All dispatch
is indeed alien to the interests of your profession, whether affected
or otherwise, but there are many forms of affectation which you will
find useful to your advancement. I would not have you pretend to forget
the names of the earlier cases you obtain, though I do not advise you
to take cognisance of the Court number of your case. If you knew this
it would save the Court officials trouble, and they are paid to take
trouble. Later in life you will find it well to call the Defendant by
the Plaintiff’s name and _vice versa_. It suggests to the Court and the
audience that you have too many cases to attend to, though it will not
gratify your particular client.
In examining a witness, never let him tell his own story in his own
way. Many a case is lost by this. The leading question is a sign of
ripe advocacy. But do not overdo it; remember over-ripeness is rotten.
The seniors at the Bar are called “leaders” from their habit of using
this form of question unless restrained by quasi-physical violence.
Cross-examination is not merely the art of making the witness cross. If
your opponent’s witness proves nothing against your client, cross-examine
vigorously. By this means the truth is often brought out and justice is
done. During your cross-examination notice carefully whether the Judge is
taking a note of the answers you are obtaining, or writing letters. In
either case do not prolong your cross-examination, for if the latter it
is useless trouble, and if the former it is probable you are eliciting
answers that will be used against you. In re-examination, endeavour to
lead your witness once more through his proof. It is an excellent test of
judicial complacency.
The rules of the County Court are to be found in books, and need not
therefore be committed to memory. Indeed, most law can be found in
books by those who know where to look for it. Yet it is ill to stir the
green mantle of the standing pool of law yourself if you can persuade
another to do it for you. A slight knowledge of the first principles
of elementary law will always be welcome in any Court. You may evade a
detailed study of the more intricate points in your case by insisting
that it falls within the rule laid down in one of Smith’s Leading Cases.
For this purpose, however, you should learn at least the one rule you
propose to quote. After all, the Judge has to decide the law, and ought
to know it. The legal presumption is that everyone knows the law—this
includes Judges. In cases under the Workmen’s Compensation Act, be
careful how you quote a decision of the Court of Appeal. It may not have
gone to the House of Lords, but if it did it is well to find out what
happened to it when it got there. If an appeal to the House of Lords is
pending the current odds against the legal value of the existing decision
will be found in any sporting paper. If, during your argument, the Judge
points out to you that there is a leading case deciding exactly the
opposite of what you are arguing, ask him, with pained irritation, to be
patient, and tell him you will distinguish it presently—but do not try to
do so. Never give yourself away unnecessarily, rather give your client
away, and you will find that generosity of this kind is never forgotten.
Allow the Registrar’s clerks to fill up for you the prolix and difficult
forms in use in the County Court. They are not solicitors, and are
therefore less likely to make mistakes in the work. If, however, a
mistake is made you can always explain to the Judge how it arose, and
you will not be blamed for it. In any case, where the law is really
obscure and difficult, agree with your learned friend to leave the
matter entirely to His Honour. By this means His Honour—if he makes no
objection—will have to hunt up the authorities, and this will save you
and your learned friend much useless labour, whilst the decision of the
Judge will be far more valuable to your client. If you lose your case and
your client loses his temper, blame the Judge, and urge your client to
write to one of the Government departments—it does not matter which—to
make a formal complaint of the Judge’s conduct. Government departments
enjoy correspondence, and will treat your client’s letter with the
respect and attention it deserves. On days when county cricket matches
are being played in the neighbourhood of the Court, and generally on
fine summer afternoons, your arguments will be the more admired if they
are brief and occasionally to the point. If the case you have lost is
for an amount of over £20, nevertheless ask leave to appeal. You do not
want leave, but the Judge may not remember this, and may either grant or
refuse it. In any case it gives you what you are probably longing for at
that particular moment—an effective exit. Finally, remember that however
genuine your contempt for the Court may be, you conceal it until you get
outside—otherwise, seven days.
If the law student will peruse these suggestions and act upon them,
and assuming him to be, as no doubt he believes he is, a young man of
clear, strong, subtle intellect, of sound judgment, quick perceptions
and brilliant forensic abilities, I can assure him that there is nothing
between him and a very considerable and remunerative practice as an
advocate in the County Court in matters which are not of sufficient
importance to “stand” Counsel.