+------------------------------------------------------+ | Transcriber's Note: Some obvious typographical | | errors have been corrected in this text. For a list | | please see the bottom of the document. The one Greek | | word is transliterated and marked with +'s. | +------------------------------------------------------+

THE MAN IN COURT

by

FREDERIC DEWITT WELLSJustice, Municipal Court of New York City

G. P. Putnam's SonsNew York and LondonThe Knickerbocker Press1917Copyright, 1917byFrederic Dewitt WellsThe Knickerbocker Press, New York

 To

 MY FRIEND

 CHARLES E. GOSTENHOFER

 OF THE NEW YORK BAR

 IN ACKNOWLEDGMENT OF HIS AID AND SUGGESTIONS

 THIS BOOK IS DEDICATED

INTRODUCTION

The author has tried to show the point of view of the ordinary man ina law court, as the various proceedings of a trial take shape beforehim. To the initiated, the whole book may seem too obvious; but it hasnot been written for them, but for those to whom these proceedings areunfamiliar. There are many who have a certain curiosity about thecourts, and at the same time a real respect for justice, mingled withamusement at the panoplies and antiquated forms of legal procedure. 

 F. DEW. W. 

 NEW YORK, _January, 1917_. 

CONTENTS

 PAGE

INTRODUCTION iii

 I. --A NIGHT COURT 3

 II. --THE CIVIL COURT 21

 III. --THE JUDGE 39

 IV. --THE ANXIOUS JURY 57

 V. --THE STRENUOUS LAWYER 75

 VI. --THE WORRIED CLIENT 93

 VII. --PROGRAMS AND PLEADINGS 111

 VIII. --PICKING THE JURY 129

 IX. --OPENING THE CASE 149

 X. --THE CONFUSED WITNESS 165

 XI. --THOSE TECHNICAL OBJECTIONS 183

 XII. --THE MOVEMENTS IN COURT 201

 XIII. --ELOCUTION 219

 XIV. --THE HEAVY CHARGE 235

 XV. --THE TRUE VERDICT 251

 XVI. --LOOKING BACKWARD 265

I

A Night Court

In the Night Court the drama is vital and throbbing. As the saddestobject to contemplate is a play where the essentials are wrong, so inthis court the fundamentals of the law are the cause of making it anuncomfortable and pathetic spectacle. 

The women who are brought before the Night Court are not heroines, butthe criminal law does not seem better than they. It makes littleattempt to mitigate any of the wretchedness that it judges; in manycases it moves only to inflict an additional burden of suffering. Theresult is tragedy. 

The magistrate sits high, between standards of brass lamps. His blackgown, the metal buttons and gleaming shields of the waiting policeofficers, the busy court officials behind the long desks on eitherhand tell of the majesty of the law. 

In front of the desk but at a lower level is a space of ten or twelvefeet running across the court-room in which are patrolmen, plain-clothes men, detectives, women prisoners, probation officers, reporters, witnesses, investigators, and lawyers. Beyond in thecourt-room a large crowd is on the benches. There are witnesses, brothers and sisters, friends of the prisoners waiting to see whetherthey go out through the street entrance or back through the strongbarred gate seen through the door on the left. Also there are the"sharks" waiting to follow out the released prisoners, to prey uponthem as the circumstances may favor; and a number of curiosity seekerswatching intently. For them it can be nothing but a morbid dumb show, for they are so far from the bench that not a word of the proceedingscould be heard. Only once in a while the shrieks and imprecations of astruggling hysterical woman as she is hurried out of court canenliven the scene. 

Fortified with a letter of introduction to the judge and a dispositionthat will not be too easily shocked at seeing conditions of life asthey actually exist, the spectator may find his way past the policemanat the gate in the rail. It clicks behind him ominously and he wonderswhether he will have difficulty in getting out. Finally through clerksand officials who become more kindly as they learn he is a friend ofthe judge, he is seated in a chair drawn up beside the bench. Themagistrate is a hearty round-faced man who seems almost human in spiteof his gown and the dignity of his surroundings. The court looksdifferent from this point of view and he may easily watch the judicialenforcement of the law supreme. 

The organization of these courts is simple. There are not many rulesor technicalities. The judges are patient, hard working, understanding, and efficient. The trouble is with the laws they arecalled upon to administer: Laws which are as absurd, as farcical, andas impracticable as the plot of the lightest musical comedy. 

At first the visitor can hardly understand what is going on. Apale-faced man is in the witness chair, on his left a bedraggledlittle woman is standing before and below the judge, her eyes justlevel with the top of the desk. Clerks are coming with papers to besigned: "commitments, " "adjournments, " "bail bonds"; others are tryingto engage his attention. In the meanwhile the case proceeds. 

"I inform you, " says the judge to the woman, "of your legal rights, you may retain counsel if you desire to do so and your case will beadjourned so that you may advise with him and secure witnesses, or youmay now proceed to trial. Which will you do?"

She murmurs something. She is pale-faced with sullen eyes, droopingmouth, an over-hanging lip. A sad red feather droops in her hat. 

"Proceed, " says the judge; and to the policeman who is called as awitness, "You swear to tell the truth, the whole truth mm-mm-mm--youare a plain-clothes man attached to the 16th Precinct detailed by thecentral office, what about this woman?"

"At the corner of Fifteenth Street and Irving Place, " says thewitness, "between the hours of 10:05 and 10:15 this evening I watchedthis woman stop and speak to three different men. I know her, she hasbeen here before your Honor. "

"What do you say?" the judge asks the woman. She is silent. 

"What do you work at?"

"Housework, your Honor. "

"Always housework; it is surprising how many houseworkers come beforeme. " She smiles a sickly smile. 

"Take her record. Next case, " says the judge. Outside it is a coldsleeting night in early March. 

"Witnesses in case of Nellie Farrel, " calls the clerk. 

Nellie Farrel stands before the desk beside a policeman; she is tallwith fair waving hair. She must have been pretty once; even now thereis a delicate line of throat and chin. But her eyes are hard and onher cheeks there are traces of paint that has been hastily rubbed off. She looks thirty; she is probably not more than twenty. 

A callow youth, who seems preternaturally keen, swears that onThirteenth Street between Fifth Avenue and University Place the womanstopped and spoke to him; and he tells his story as though it werelearned by rote. 

"Do you know the officer who made the arrest?" the judge asks him. 

"I do. " A suspicion arises that there may be an interest between thewitness and the policeman. 

A dark-haired, smooth-faced woman who is standing by the prisonersays: "Your Honor, she's my sister. I'm a respectable woman, myhusband is a driver. I have three children. It's disgrace enough tohave the likes of her in the family. If you'll give her anotherchance I'll take her home with me; my husband is here and he'swilling. " The accused looks down piteously. 

"Discharged on probation, " says the judge, and the family go out. 

"That's the third time that's happened to her, " whispers a clerk. "Every time the sister comes up like a good one. "

A horrible old woman with straggling gray hair, shrivelled neck, andclaw-like hands grasps a black shawl about her flat chest. "Mary, "says the judge, "thirty days on the island for you. "

"Oh, your Honor, your Honor, not the workhouse. Oh, God, not theworkhouse, " and she is borne out screaming and fighting and invokingChrist to her aid. The judge turns and says in explanation, "an oldcase, an example of what they all may come to. "

A dark-haired little French woman is brought in with crimson lips, bold black eyes, and expressive hands. A detective testifies that hewent with her into a tenement house on Seventeenth Street west ofSixth Avenue. Charge: Violation of the Tenement House Law. 

"Qu'importe, " says the woman. "I go in ze street. I am arrested. Istay in ze house. I am arrested. I take ze room. I am arrested. Chantage--Blackmail. C'est pour rire. "

Who are these women who are brought in a crowd together? One of themolder than the rest is a foreigner plainly dressed in black silk witha gold chain. She does not seem particularly evil, but ratherrespectable. The others are in long cloaks or waterproofs hastilydonned and through which are glimpses of pink stockings. They havehair of that disagreeable butter color which speaks of peroxide. Therehas been a raid on a west-side street of a house of ill repute. Sometestimony is given and the older woman, the "Madam" is held in bailfor the action of the Grand Jury while the rest are held for furtherevidence. The judge tells us there will probably not be enoughtestimony and they will be released in the morning. But unless bailis found they will spend the night in cells. 

A nervous, excited woman comes in--two policemen are with her. She hasbeen arrested for disorderly conduct on Sixth Avenue near Thirty-firstStreet. She has been fighting with a man who has also been arrestedand taken to the men's Night Court. Hers is a hard, tough face of thelowest type. 

"Why should you try to scratch the man's face? What did he do?" thejudge asks. "Is he your husband?"

"My husband, your Honor? Yes, I guess you can call Al that. We livesup town and when I went out he says to me, 'Hustle, kid, you got tohustle, the rent's due and if you don't get the money I'll break yourneck. ' The slob won't work. Well, a night like this you couldn't makea cent and I only had half a dollar and I wanted to get a bite to eat. I hadn't had a thing since four o'clock, and then I met Al going downSixt' Avenue an' he tries to swipe me fifty cents off me and I wasthat wild I wanted to tear him. I'm sorry; I guess it was my fault. Idon't want to see him jugged, so please let me off, your Honor, and Iwon't make no trouble. "

"Take her record, " said the judge, "and hold her as a witness againstthe man. "

A string of women are brought in for sentence who have been havingfinger prints taken in the adjoining room. The judge proceeds toimpose sentences according to the previous records which are shown. Some of the women are those who have passed in front before. Thelittle bedraggled woman with the red feather has been arrested seventimes in sixteen months. Another has spent eight weeks in theworkhouse out of a period of seven months; another has been sentalready to the Bedford Reformatory; another has been twice to housesof reform. Before the judge gives his sentence he refers the prisonersto the probation officer, who talks with them in a motherly way. 

After talking with the little prisoner she addresses the judge. "Shesays its no use, your Honor, she does not want to reform--it will notbe worth while to put her on probation. "

"Committed to the Mary Magdalene Home, " says the judge, and the namebrings a startling surmise as to what He of Galilee would have said. 

The foregoing is only a typical session of the court. Night afternight, from eight o'clock until one in the morning, the scene isrepeated. The moral effect and its reaction upon those who conduct theproceedings--the judges, officers, and the police, cannot but bedeplorable; the evil done to those forcibly brought there could not beover-estimated. 

Substantially the law is that the women may not loiter in the streetsnor solicit in the streets, or in any building open to the public. They may live neither in a tenement house nor in a disreputable house. The law makes it a crime for the women to walk abroad or stay at home. Their existence is not a crime, but only in an indirect way the lawmakes them outlaws. Anyone wishing to prosecute or persecute finds iteasy to do so. The worst enemies of these unhappy women are to befound, curiously enough, among both the best and the most evil peoplein the community. The unspeakably depraved are the men who, either asprocurers, blackmailers, or the miserable men who live on a share oftheir earnings. The excellent people who oppose any remediallegislation which might relieve the situation, seem equallyresponsible for the present condition, however well-intentioned theymay be. 

One effect of the present system is the practically uncheckedtransmission of disease. A reform in this direction would not solvethe basic problem, for there would remain full opportunities ofblackmail and extortion, but it might still remove a menace to thehealth of the community which is probably more serious thantuberculosis. 

A statute to this end was enacted in New York State a few years ago:an act for the medical examination of the women. It was declaredunconstitutional because of one word. It should have read, "the judgemay"; instead, it read, "the judge _must_. " Far more difficult to dealwith is the opposition of the people who believe that the moral senseof the community would be jeopardized by any laws suggesting thatprostitution is unavoidable. 

In ironic contrast to the failure of legislation to prevent the spreadof disease, is the success of an ill-advised statute making adultery acrime. Under it, a married man having relations with a prostitute andthe woman herself, are subject to criminal prosecution. It affords afresh field for extortion, how largely used it is impossible to say. 

The history of the passage of the adultery act presents one of themost ghastly jokes ever perpetrated by a State Legislature. 

For years such a bill had been introduced in the New York Legislatureand had been passed by either the Assembly or the Senate withoutcomment and then quietly killed in the other house. It was obviousthat such a law could not be properly enforced and its blackmailingpossibilities were manifest, yet no one, not even Governor Hughes, whowas then in office, could be openly opposed to its passage. 

The tender morality of the community would not allow a publicdiscussion. 

It was said, at the time, that when the representative of a societyfor the suppression of vice called on one member asking him tointroduce the bill, he declined to do so on the ground that herepresented a Fifth Avenue District and it would make him toounpopular among his constituents. When the bill had been introduced byanother member and came up for final passage, it was decided, sinceGovernor Hughes had vetoed many political bills of members of bothhouses, to put him in a dilemma. If the bill were presented to him hewould have to sign an absurd statute or declare himself the friend ofunrighteousness. He signed it and the bill became a law. Since itsenactment there have been ridiculously few convictions under it. 

The successive carelessness, timidity, and levity of the Legislatureis depressing, but there is an encouraging increase of interest on thepart of the public. The average man is not merely interested in theproblem; he appears to take the sensible view that the "social evil"is not so much a moral question as a condition, a problem to be metlike other problems. We have become less concerned with the privatemorals of our fellow citizens than with their health, safety, and theprevention of unnecessary suffering. We perceive that the courts areonly our agents and are not directly responsible for what they do;they are following instructions given by our ancestors and which wehave neglected to abolish or modify. 

The visitor leaves the Night Court with a strange sense of having hissocial values overthrown. He feels almost sympathetic with the womenwhom he has seen. They may be offenders against morals and the socialorder, but they are human beings over whom the waters of civilizationseem to sweep with relentless flood. The frightful waste of life andenergy seems inexcusable. And it is as though some mill dam had burstand was flowing in a terrific torrent down a river bed along which afew are drawn white and drowned. 

The ordinary man knows that the women who go under are such a smallproportion of those who escape, that it seems either a ghastly joke ora terrible tragedy. The whole paraphernalia of the court-room merelyaccents the contrast between those who are caught and those who gofree. 

But all criminal courts are always unpleasant. And humanity if seenonly in the setting of a criminal trial would be a discouragingobject. Turning to the more civil court, we find an almost equalunfitness between the courts and modern conditions. 

II

THE CIVIL COURT

In a twenty-four-story office building, on a smooth gliding elevator, up seventeen stories, down a low-ceilinged corridor, past fireproofdoors labeled: "Clerk's Office, " "Judge's Chambers, " "Witness Room, "we find the typical modern court. The old idea of a verypseudo-classic courthouse on a placid village green to which theneighboring county squires have ridden, and where the jail is in thecellar and the town recorder in the attic, is fast disappearing. Theold courthouse in the city, of red sandstone with battlements andturrets, minarets, and a clock tower, seems out of date. 

The white marble palaces of the higher courts wherein broad stairways, paneled mahogany, stained glass, and soft noiseless carpets giving anair of repose and refined culture, are not altogether consistent withthe modern spirit. The man on the street does not understand whetherthe marble statues on the roof are symbols of justice or latepresidents of the United States. The usual courthouse of twenty yearsago was a mixture of armory and Gothic church. 

In the larger courthouses where there are many terms or parts in onebuilding, there is an air of confusion. Rotundas, corridors, stairways, and elevators are constantly filled with a moving crowd oflawyers waiting for their cases to be tried, clients who have hadappointments, witnesses who have been subpoenaed to come to courtand when they get there find it is not one court, but thirty. Thelatter are found wandering dazedly about asking anyone who will stopto listen if they know in which part the case of Martin _vs. _ Martinis being tried. Lunch counters, telephone booths, and a feeling of aweare in the building. 

What that terror of a court of law comes from is difficult to analyze. There is the impressive majesty of the law; always about a court isthe inspiring sense of something more than human. Even an emptycourt-room is not as other rooms. Like an empty theater there remainsan atmosphere of glamour, of mystery, and yet equally true thereremains a substantial, strong odor of crowds. 

It is said that every theater retains its own peculiar smell. Thescientific investigation of the psychology of odors is too subtle tobe understandable. The question of analyzing the exudations of anervous crowd seems interesting, but the remembrance of an anxioushumanity is always present. In former times the attendant placed asmall bunch of herbs and aromatic flowers on the judge's desk, andglasses of the dried bouquets remained in a row for long periods. 

Hygienically considered the courts are unsanitary. If the windows areopened the cold air is apt to draw directly on the heads of the juryand the stenographer. In summer the noise of city streets, the cars, the elevated, the cries of children, the hand-organs, the flies, arenot at all conformable to the supposed dignity of the court. It iswell-known that the crowded and unhealthy conditions of the courts areconducive to disease as well as discomfort to the inhabitants. 

The connotations of the name court are generally impressive. There isthe suggestion of jail, of punishment, of something final, of absolutejudgment. Also it suggests the courtyard of a tenement house, analleyway or something shut in and confined. The philology is from theold French cort or curt. It is curious that it means something narrow. There are the suggestions of the lists, of heralds, of trumpets, ofbanners and knights in armor, of prancing steeds, of fair ladieswatching, of joust, tournaments, and trials by battle. There issomething royal about the word. We think of pomp and magnificence andpurple robes, of kings on their thrones, with courtiers standingabout. The conception of Diety to the simple man who visualizes, immediately takes on the form of a court. We speak of the Courts ofHeaven. The pictures of Godhead represent him as sitting in the centeron his raised throne with the surrounding tiers of attendant angels. 

The modern court-room is only an adapted continuation of a medievalidea. On the raised dais under an unsanitary and dusty canopy of greenplush sits the judge; instead of a sceptre he holds the gavel. Thisgavel, by the way, is falling more and more into disuse. As a symbolof authority, a little wooden hammer has become a trifle ludicrous. Ifa judge were to shake it too violently there might be a fear on thepart of those watching that he was about to throw it at the spectatorsor at one of the arguing lawyers. 

The judge sits at an imposing high-railed desk with standard lights ateither corner. The top of the desk is usually above the level of theeyes even of the lawyer standing. This is an arrangement which isconventional and convenient; it would not be consistent with themajesty of the law if the judge should be discovered writing apersonal note or taking a glance at the stock market reports in theevening paper. 

The judge's chair is ordinarily a revolving one with a dip backward. Stationary chairs are trying, for those who have to remain quiet forso many hours at a time, and the swinging back and forth and twistingabout gives a little relaxation. 

In front of the judge's dais are the counselors' or lawyers' tables, and at one side in front and below usually another table forreporters. It is somewhat like the arrangement in baronial halls wherethere was an upper and lower table and some sat below the salt andothers above. 

On one side, opposite, but not as high, is the jury-box. This is a penwith twelve seats within a high-sided inclosure like an old-fashionedpew. What the object of the inclosure may be is uncertain, unless itis a relic of a time when it was necessary to imprison the jurors. Jury duty has doubtless always been arduous and disagreeable, and inearlier days men were probably as anxious to escape serving on thejury as they are to-day. In one of the courts, which was not supposedto be for jury trials, twelve men once sat on a case without anyjury-box in plain chairs and at the side of the room. They wereextremely uncomfortable themselves; their legs were exposed and theyseemed shockingly unconventional. 

Between the judge's desk and the jury-box is the witness chair, anordinary chair placed not quite so high, but beside the judge's andwhere he can look down on the witness. The position of the witnesschair may be accountable for the feeling of protecting the witnessthat exists in the minds of the judge and jury. There is a naturalsympathy for him, as though he were being attacked by the examiningcounsel. The witness in former times stood in a little enclosed boxand in Italy, where court scenes are more intense, the prisoners tothis day in criminal trials testify from behind iron bars. 

Below the witness chair is the stenographer. The former idea of theaged scrivener or court clerk with white hair and green eye shade hasvanished. The modern stenographer, who keeps the record of a trial, isprobably an energetic young man, who has passed high on the civilservice list, knows something about law, is studying for a betterposition, or is connected with a very profitable stenographers'business on the outside. 

The court proper is divided from the rest of the room by an iron orwooden rail guarded by a jealous court attendant, who is always astrong advocate of court etiquette and very properly maintains thedignity of the court. He is in uniform with a shield or badge ofoffice conspicuously displayed and being taken from the civil servicelist whereon war veterans and retired firemen or policemen have apreference, is generally of a certain age. Naturally, being old andhaving to stand so much, he has tender feet, and with the customaryeffects of all secure and salaried positions, acquires both a slow andshuffling gait and the ordinary characteristics of his class. He issubject to many petty annoyances, foolish questions, repeatedinquiries, people talking or arguing, little disorders pursue him onevery hand. 

The object of the attendant in the court is to maintain order andpreserve dignity. They are almost avid in their pursuit of theignoramus who comes in with his hat on his head or covers himself ongoing out before he reaches the door. Their salaries are not large buttheir duties are not arduous. They may seem solicitous to the judgeand sometimes overbearing to the litigants and lawyers, but they areonly in the position of the supes or ushers in the theater. Yet theyare understanding and wise as regards the human drama constantlyplayed before them. 

The lighting of the court-room is unusually dramatic. There are nofoot-lights, but the best theory of stage lighting is that thereshould be none. One of the most effective scenes in the moderntheater is the court setting in Galsworthy's _Justice_. The lightingis indirect and the spots of red and green lights at the judge's desk, the corners of the jury-box and the shaded ones at the clerk's elbow, give a remarkable impression of mysterious terror. 

Whatever may be the cause, there exists a marked resentment againstthe courts. Not only is there a complaint as to the cloyingtechnicalities of procedure, the long and fatal delays of the law, theabsurd forms and mannerisms of the trial, but underneath them all afundamental distrust of justice itself. The complaint is heard of theinequality of justice. That there is a law for the poor man andanother law for the rich. The stage gives expression to the feeling, and modern literature voices it. The high-priced millionaire escapesand the low-browed pickpocket goes to prison. 

Cases are cited where the rich woman returning from a debauch ofEuropean shopping with a few thousand dollars' worth of pearls sewedin the lining of her winter bonnet is only fined, whereas the littlemilliner from the lower end of the city is sent to jail for trying tosmuggle in a new coat. The impressario of art collections is caught ata gigantic scheme for defrauding the government of thousands ofdollars on imported pictures. He hobbles into court and on the groundof ill health escapes a prison sentence and is merely fined, while thelittle Italian fruit vender is summarily jailed for bringing in a fewdried mushrooms. The high financier who wrecks a railroad or a bankserves a light prison term and emerges like a phoenix to buy newsteamboat lines or float new enterprises. But the peddler on the EastSide who sells a few dollars' worth of stale fish is punished to thelimit of the law. 

The facts exist and to the popular mind seem unexplainable. Thereundoubtedly must be a reason, and what it is, is not hard to find. Itseems one of the mysteries of judging and of justice, as though therewere an unwritten law in the back of the human mind in favor ofproperty rights. There is an explanation and not an inequality ofjustice. The facts are not as they are popularly stated or supposed tobe. The public gets only a portion of the picture, and from anenormous group of cases, a few contrasted ones are picked out for thesake of the dramatic effect. The limelight of public notice is uponthem and the softer lights and shadows are omitted. The public doesnot see the gradation. On the one hand we see the rich woman, themillionaire art dealer, the financial pirate being leniently dealtwith, on the other hand we see the little milliner, the Italian fruitvender, and the peddler receiving harsh sentences. 

The sharp contrasts make good newspaper stories that are appealing andtouching. What the public does not see is the whole picture of all thecases of alleged inequality that come into court. These are only sixout of seven hundred cases, chosen because they are melodramatic. There were nearly seven hundred other offenders that were let offwith suspended sentences or light fines, of whom nothing is heard, but these three are conspicuous on account of their wealth, and thecases of the milliner, the mushroom vender, and the peddler arereported for the same reason--of being conspicuous. They are unusualon account of the sentences. The harshness of their sentences isremarkable. There may be special reasons. The six hundred andninety-odd who are punished lightly in the same way as the rich manare not noticed. 

As a matter of actual experience, the rich man has a harder time incourt than the poor man. The inequality of justice, if there be any, is rather against him. Because he is rich and notorious the publicprosecutor cannot let him off. If, for example, a poor man who isundoubtedly insane, commits a murder he is not tried, but is sent toan asylum for the insane. If, after several years, he recovers and isreleased, nothing is said about it; the public does not know. But letit be a rich lunatic and the public prosecutor is bound to bring himto trial. Public attention demands it. He may know him to be insane, but he must still prosecute him. The jury declare him insane. Afteryears he is released from the asylum, the public thinks it amiscarriage of justice, forgetting in the meanwhile the inconspicuouspoor man who unnoticed has gone through the same experience, and beenreleased years ago. 

The delays of the law are partly due to the system of courts andpartly to the dullness of court procedure. The inefficiency of thesystem of courts and judicial procedure is shown in the practicalworkings of the civil courts of New York City. The antiquatedorganization of all the courts is like a patchwork quilt where eachadditional one has been added or increased as New York has grown froma village below the Indian stockade at Wall Street to its presentsize. So that there exist within the city limits now seven differentkinds of civil courts and five kinds of criminal courts, in nearlyeach of which there is a separate set of rules, different customs, and distinct methods of procedure, and of them all the most technicaland the most complicated are often those where they should be the mostsimple and easy of understanding. 

Wherever the court may be the surroundings are substantially the same. The scene is laid and the carpenters have left. The spectators havefound their places. The stage is empty however, there is a suddenbustle and shifting of feet, a rumor has gone abroad that something isabout to happen. The court attendants take their places. One of themstraightens up and with a commanding voice cries out: "Gentlemen, please rise. Hear ye, hear ye, all persons having business draw nearand ye shall be heard. " Enter his Honor, the Judge. 

III

THE JUDGE

With a rustle of his gown and a bow to the court-room the judge takeshis seat on the bench. The trivial pleasures of being heralded andhaving the spectators rise when he enters have lost their charm, buthe would feel uncomfortable without them. The gray-haired clerk handshim the list of the cases for the day. The anxious court attendantasks if he shall open a window. The judge sniffs audibly and ordersthe steam heat to be turned off. The court attendant does so andbrings his Honor a glass of water. When the judge sits down in therevolving chair he is on the bench and the court is in session. 

The fact of the matter is the judge is a pretty decent sort of person. The trouble is that the surroundings are all against him. In thefirst place his whole job is one that makes him live up to a part. Forfive or six hours a day he has to sit still in a stuffy court-room ona leather chair under a silly canopy of wood or plush and pretend thathe is the whole thing, that he knows it all, and that whatever hedecides is absolutely right. Let him waiver or be uncertain in hisdecisions and woe is it to him. No one thinks much of a judge who doesnot know his business or at least does not pretend to know it. 

How anyone who has been long on the bench can retain any sense ofproportion is remarkable. Whatever he says and does in court is finaland apparently approved. If his decisions are reversed they do notaffect him seriously; he has tried so many cases that were notappealed, and the greater proportion of those that have been areaffirmed. The reversal comes a long time after and does not hurt hisfeelings. In any event, he was trying to do the best he could andhuman nature may be fallible, although, as far as he can see, thewhole world of the little court-room where he sits has conspired toshow him that he is divinely endowed. 

His position is not exactly one of bluff, but he is the central figureof the stage; like the actor's profession the judge's job makes him anegotist. Take for example the essential elements of his knowledge ofthe law. He is the _Jus Dicens_, the one saying the law, the name ofjudge being derived from the two Latin words. He is supposed to knowthe law, at least he ought to know court procedure, and the law of hisState thereon by heart. In New York State, for example, the Code ofCivil Procedure is five hundred thousand words long. He is bound totake judicial notice without being told of all the statutes of theState Legislature, which are being passed at the rate of six hundred ayear. 

He is also supposed to know the laws of the United States passed atWashington, and to be thoroughly familiar with the latest decisions ofthe Supreme Courts of the United States, and those for the past 125years. He must understand and look as though he knew beforehand anydecision of the courts of his own State cited, which are convenientlyand neatly printed in 219 New York Court of Appeals Reports, 173volumes of the Appellate Division Reports, and 96 volumes of theMiscellaneous Reports, to say nothing of the opinions and decisions ofother courts that are not printed at all. His knowledge of the law isa fearful and wonderful thing; he must have an oceanic mind. 

It is told that one of the leaders of the bar had formerly a young manin his office who with advancing years and reputation was elected tothe bench. Before the first of January when he was to take his oath ofoffice, the old employer and friend sent for him. When he arrived hewas greeted as follows: "Joe, I've sent for you because I wanted tosee you before you become a judge. I am very fond of you and I wantedto see you once again as you were, because after you go on the benchyou are bound to become a stuffed shirt, for they all do. "

That so many escape is one of the wonders of human nature. That theyretain their humanity is due to a disposition of Providence to temperthe wind to the shorn lamb. The position necessarily takes away allinitiative. In politics the judge is recognized as being a "dead one. "After a few years on the bench only the exceptional man can fling offthe shackles of his profession and get back into real life. He ceasesfrom fighting, he is not energetic. 

As a good judge he must be firm but restrained. He may not be tooemphatic. Every inducement is toward making him lazy, fat, and easy. Before him everyone bows and waits for him to speak. He is theabsolute boss within the four walls of his court-room. The onlyrestraining influences are the reactions from the lawyers andspectators who are before him. Their opinions can not be openlyexpressed; they are reserved until afterwards. If a judge really hasany idea of the high esteem in which he is held, let him find out whatis being said of him after the case is over, as the clients andlawyers are going down in the elevator, or what the rear benches havebeen whispering. 

He probably has a suspicion of this, but no matter how tolerant hedesires to be, there is the temptation to show that his authority issupreme; that when the lawyers begin arguing a point on which he hasformed an opinion to cut them off; when the witness is trembling onthe stand as to whether the accident happened on a Thursday or aFriday, to ask her, "Don't you know that Thursday was on the 16th ofApril last year, " which of course she does not. There is thetemptation to feel that he can never be wrong; that a question may bereargued, but that he is not going to change his opinion. 

The possibility is that the judge is a mild sort of bully. But it isnot always safe to go on the assumption that being a bully he is alsoa coward. He may be, but on a trial the odds are too much in hisfavor. If the lawyer wants to fight the judge, he has a great deal atstake; he may awaken so strong a prejudice that the judge knowing therules of the game better than he does, may beat him on a technicality. On the other hand it is a mistake for the lawyer to be subservient andtoo cringing. Being a bully, the judge is apt to take advantage of hisposition. The best policy is to appeal to his human instincts as aman. He may be decent in spite of critics of the courts to thecontrary notwithstanding. If he is kindly treated he will respond. 

In New York judges were appointed until about 1846, when there was apopular upheaval and the constitution was changed, and they have eversince been elective, with the exception of some of the minor courts. The advantages of the two methods is an open question. The argumentsin favor of appointment are that it makes for an independent judiciaryand that it secures better men for the bench, whereas the other doesnot, because the highest class lawyer will not go through the turmoiland supposed degradation of a political campaign. These arguments arenot sound. 

The argument for the election of judges is that it keeps the benchmore humane, modern, and in touch with the will of the people. The oneis the aristocratic idea, the other the democratic. A court as atpresent constituted is an autocratic institution but the judges shouldbe democrats. A feeling prevails that the man who has gone through acourse of political sprouts involving the training of electioncampaigns, is more understanding of the wants of the people whom he isto serve, also that courts should be arranged on a business basis. 

An amusing aspect of an elective judge is that he is in an anomalousposition. If he plays politics, endeavors to make friends either byhis decisions on the bench or obeying the mandates of a superiorpolitical boss as to appointment of referees and receivers, heimmediately becomes a corrupt judge. The stench of his unjustdecisions will sooner or later come to the nostrils of the communityand his chances of reëlection are forfeited. He runs the hazard ofcharges and removal. 

If, on the other hand, he forgets the organization that has electedhim either in the matter of patronage or the refusal of some desiredcourt remedy, and so conducts his court that there shall be neitherfear nor favor, he is a political ingrate and deserves neitherreëlection nor promotion. Of course these are the two extremes;fortunately human nature is not what the sociologists and politicaltheorists would make it. 

The political boss is not the unscrupulous ogre that themuck-rakers picture. He does not order the judge to decide thehundred-thousand-dollar-contract case in favor of his hench man. Hemight like to have him do so but he does not ask. Neither does thejudge lean over backwards in the other direction and imprison thecontractor because he is a friend of the boss. The movements for thenon-partisan election of judge show the recognition of some of theseincongruities. 

The fierce bright light that plays about a throne also makes the judgeconspicuous. If he sneezes, if he coughs, if he takes a glass of waterhe is probably feverish and cross. If he keeps still he is going tosleep and not paying attention. If he gets up or sits down it is notedas indicative of how he is going to decide the case. Every movement iswatched. The position of a judge is not enviable. He is the concreteobject to which the evils of the court-room attach. To the popularmind he is the court, the law, the method of procedure, the source ofall the technicalities, and the delays. The beaten side will bear hima grudge, and the winning side think they ought to have got more. 

If he be lenient in interpreting the law, he may be called to accountfor inability; if he be too strict, he is accused of irritability. Ifhe be too polite, he may seem to be extending favor. A justice of onecourt, wishing to be kind, once asked a young counselor whose case hadbeen dismissed through a technicality to come up and sit on the benchwith him. The young man afterward complained to his friends that thejudge wanted to shame him and make him conspicuous. 

There are few judges who dare to cut short the examination of awitness, although the length and direction of a trial are supposed tobe within the discretion of the judge. He is hindered by thetechnicalities of those who insist, hoping for a reversal on appeal, and sometimes the same technicalities are used to prevent the actualfacts being brought out. The solution probably lies in extending thepowers of the judges over the conduct of a trial. 

He has a position of interest and authority and one that commandsrespect. In England he dresses for the part in silk stockings and isnext to the king in importance or about equal to a bishop. In Germanyhe is a little better than a Herr Pastor or a doctor, but inferior toa young lieutenant in the army. In France the salaries of the judgesare pitiable. The highest, the president of the Cour de Cassation, gets $5000 a year and the lower judges only a few hundreds, with nopossibility of earning anything by practicing law, but there thejudges are persuaded to take out the balance of what they should havein salaries in the honor of their position. 

We are so shockingly frank and matter of fact, that we believe thatthe conventionality of pomp and circumstance have been too muchregarded in courts and court procedure, that dignity is notaccomplished by wearing a wig, knee breeches, or gowns of ermine andsilk. It is consistent with a plain-spoken people to feel a contemptfor state and symbols. Any attempt to return to the conventionalitiesof Europe is met by the contempt of a democracy. 

In rebelling at form we have been so occupied that we have not beenawake to a change in substance that has been demanded by modernconditions. The courts are gradually reaching a simpler basis. Formerly they may have been surrounded by more pomp and magnificence, but the work is now being better laid out and the course of theproceeding is on more modern lines. Changes in practice acts willrevolutionize trials. People smile at the dignity of their courts andjudges. The modern spirit is for greater frankness, simplicity, anddirectness. 

If he is a sane and reasonably simple man the judge tries to do hisduty according to the light that is in him. He knows some law, hasseen a quantity of human nature and passions flowing before him. Thecourt-room, his position of authority, the respect of the community, the human drama, the abstract and intangible demand of something abovethe actual awakens in the judge that passion for justice which is aquality almost divine. The man himself becomes patient, understanding, and humane. Nearly every man, no matter how small he may be at thebeginning, rises to the responsibilities of his position. So it iswith the judge. 

It is undecided whether the judge is entitled to more respect from thelawyers and laity or whether the laity is entitled to more respectfrom the judge. The judge sits indolently crumpled up in his easychair; before him a leader of the bar is arguing. In an eloquentmanner he is pleading for a young attorney who is about to be punishedfor "Contempt of court. "

"And so your Honor will realize that in the heat and excitement of atrial, in the turmoil of the legal battle, in the intensity of aforensic struggle, the young man may well have forgotten the respectand deference which is ever due from a member of the bar to therepresentative of high-minded justice. "

The judge seems unaffected by the appeal. The young man had been rudeand impertinent, the fine of $250 must stand as punishment for hismisbehavior. 

Suddenly the pleader with a wave of his hand and a twinkle in his eyesays: "Look at the difference between the position of a lawyer who, alert with restless energy, momentarily forgets his manners infighting for his client, and on the other hand the calm"--pointing tothe judge who is still half reclining in his chair--"the calm, Irepeat, of complete judicial repose. "

There is a smile through the court-room. The judge straightens up, sees the humor of the situation, and the fine is remitted. 

There is a constant play of opposing influences upon the judge. As anupholder of the law he becomes a formalist and a reactionary. Theinsistent demands of humanity which the statute law can never satisfy, tend to make him a revolutionist. The saving element for him is thathe is only a part of a system for which he is not responsible. 

When the judge has had the list of cases for the day called and hasdisposed of the applications for adjournments, he turns to the clerkwho begins to call the roll of the men who are to act an importantpart on the stage--the jury. 

The solution of the matter so far as the judge is concerned is to givehim greater power. Let him be absolutely responsible for the conductof a case in court. His position should not be that of an umpire whoremains quiet until a dispute arises, but rather that of a headenquirer into merits, assisted by the two lawyers and the jury. 

IV

THE ANXIOUS JURY

The main characteristic of the jury is that it does not want to be incourt. The name comes from the French word _Juré_, sworn, or the manwho has taken an oath. There is probably no reason to suppose that theword is derived from the state of mind in which a juryman findshimself, nor does it mean the words he has expressed with reference tohis duty: more properly it is the men who are sworn to do justice. Theimplication of the word serve is that there is some punishment orpenalty attached to jury duty. It is not regarded as penal servitudeby the average man, but it seems near to it. While he is serving, hisbusiness goes to pieces, his wife misunderstands why he does not comehome to dinner and his whole life is disarranged. When a man hasserved on a jury he gets a discharge paper. 

Jury duty is one of the obligations of citizenship and its highestduty; at the same time it is one of its privileges. Foreigners andidiots cannot serve. Doctors, soldiers, journalists, clergymen, andothers, besides those who are deaf, blind, or otherwise disabled, areexempted. The experience of serving on a jury may be annoying but itis broadening and gives an opportunity of seeing human nature in a waythat few appreciate. To serve on a jury is to become a part of thejudicial system of the State and for the time being to belong to thegoverning class. 

"All day long, " says the court officer, "they do nothing but grumbleand grumble at being kept away from their business but when they getchosen on a case, they realize it does not do any good so they settledown to do what is right. " The country man may not have much to do andmay look on jury duty rather as a diversion or vacation from farmwork but the average town man feels the $2 a day he receives is onlylunch money compared to the amount he is losing in his business, andso he hates it. 

The first warning of trouble that a juryman gets is when he comes homeand finds that a policeman has been looking for him. It is to be hopedthat he has a guiltless conscience. He inquires further and learns itwas only a court officer summoning him to court for the trial termnext month. His first concern is to see what can be done in apolitical way. If he belongs to the local club of the district--buthere let the curtain be drawn. Besides he may accomplish very little, so many of the judges do not seem to remember their politicalobligations. Then he tries to reach the judge through a friend andwhen that fails he makes his way resignedly to court on the appointedday. 

When he comes there for the first time he smiles at the courtattendant and tries to make friends, but the court officer who hasbeen there many times before is not at all susceptible. Perhaps hehurries around to the judge's chambers and manages to see the judge'ssecretary, who is sympathetic over the fact that the month is Decemberand the busy season of the year in the florist business and that thereis only one assistant in the shop, but the judge is busy and will onlysee him from the bench. Finally he goes into court and waits for hisname to be called. 

After the roll call, he goes timidly up to the rail and stands therewaiting until his Honor will take notice of him. His Honor is busyblowing his nose or signing papers. Finally the court officer pointshim out. The judge scowls and asks him what he wants. Tremblingly heexplains his difficulty: that his business needs him or that his wifeis sick and that he will serve any other month if he can be let offnow. The judge reads him a lecture on the duty of citizenship and theresponsibility of jury duty and says he is sorry that he can notexcuse him. 

Afterwards when the judge finds that there are enough jurymen in courtfor the needs of the calendar, he may privately send word to thejuryman by a court attendant that he is excused for the term or for afew days until the Christmas rush is over or his wife is better. Judges are often humane, but if they were to excuse the juror openlythey would find all the others in court clamoring for the sameexemption. If the juryman merely wants to dodge the duty he probablydoes not get excused. The judge seems surprisingly intelligent anddiscriminating and able to pick the sheep from the goats. The man whomerely wants to escape serving usually has to, and the man on whom itis a hardship is sometimes let off. Uniformly the jurymen feel that itis a necessary evil, but not so bad when they are once in court. 

Until a case is called for trial they sit about the court-room or walkin the corridors. In the meanwhile, the judge is arranging thecalendar, and they have been watching the maneuvers of the lawyers tohave their cases put off, or they may have seen the amusing littleby-plays when one lawyer crosses the aisle of the court-room, button-holes his opponent, and whispers something to him. The otherlawyer motions to his client and the party moves to the hall wherethere is a secret conference about a proposition of settlement. Something is agreed upon or they may not come to terms and decide togo on with the trial. If there is to be a settlement the two lawyerswalk up to the rail and say:

"Will your Honor excuse us if we interrupt and mark the case of Allenagainst Brewster settled. " The judge smiles with pleasure; he does notmind at all being interrupted for that purpose. He is pleased to haveone more case off the score. 

When the time comes for the selection of a jury they wait for theirnames to be called with the thought that the axe is about to fall. Asthey are examined they answer the questions of their occupations andopinions truthfully, but if for any reason they are excused, theyleave the box with a smile at those impaneled and a sigh of relief asat danger escaped. 

Like many honors, the position of foreman of a jury is an empty honor. He has the first seat and he heads the procession when the jury walkin and out of court; he also announces the verdict, but he has noactual power either in the jury-room or in the court. If there is avote to be taken, he has no deciding voice, but in the deliberationshe quickly falls to the level which his attainments justify. 

During the trial a feeling of resentment at court procedure grows. Itis not the judge any longer who is keeping and delaying them. Thewitnesses appear like fools it is true, but the lawyers make them actmore foolishly than need be. Why does the judge make such absurdrulings? The law must be an unreasonable thing and the judge evidentlyknows a great deal about it. Why can't the witnesses tell what theyknow? The most tiresome parts are when the lawyers begin arguingabout the testimony. One side wants the witness to tell something andthe other side does not. The judge keeps still and lets the lawyers goon talking as though it were something important, perhaps he can nothelp it. The lawyers or the judge can not have much to do. The judgeit is true is paid to listen, but the lawyers must be pretty hard upwhen they will go on talking in that way. No juryman would stay herewasting his time during business hours, and afterwards there are thenewspapers, supper, and taking the family to the movies, all of whichis far more sensible. 

"Say, it's like a vaudeville show to see those two go on, " thinks thejuryman. "You couldn't beat it if you put it in an act. Georgie Cohanor Joe Weber could make their fortunes if they only hired the lawyersas actors or came into court for their material. "

Occasionally the judge calls the lawyers up to his desk and togetherthey talk over something which the jury can not hear. The jury lookas though they did not care. If they want to talk some more--well, letthem. Perhaps they are planning some game, and the jury will waituntil their turn comes. In the jury-room they can show them what'swhat; that is where they know their chance is coming. Even if thejudge is only trying to find out something about the case, that is asensible thing to do. Why don't the lawyers come over and talk to thejury like that? In a few minutes they could ask them some questionsthat would settle the whole matter. 

The strange part is when a witness has said something and told how heor she feels about the whole case, which is exactly what the jury wantto know, one of the lawyers jumps up and says he moves to strike thatpart all out and the judge strikes out. The lawyer having scored ahit, then says:

"I ask your Honor to instruct the jury to disregard the testimony justgiven. "

"Gentlemen, " says the judge, "the evidence just given has been ruledout by the court and is not relevant to the issue, and I must instructyou to disregard these words of the witness and in arriving at yourverdict not to consider them. "

Of all the absurdities that happen in court, the jurymen think that isthe worst. Does the judge or the lawyer believe for a moment thatbecause they say so the jury are going to forget what the witnesssaid, especially when it was the very thing they wanted to find out?They watch the stenographer and they notice he does not even take thetrouble to cross it out of the notebook. 

Occasionally a juryman becomes particularly interested and wants toquestion something. Usually he is too self-conscious to run the riskof being snubbed, but sometimes he is bolder and ventures a question. 

"Why, " asks the juryman, "didn't the defendant give back the goods ifthey were not what she wanted?" Both lawyers are on their feet. Thereis a mute appeal to the court; both sides are afraid to object to thequestion for they think the juryman may have a prejudice if he werestopped. The judge usually comes to the rescue and tells the jurymanthat he is sorry, but that his question is manifestly improper inform. The evidence should be whether the defendant did a certain thingor did not do it. The reason why he did it is not in point. After twoor three attempts of this kind the juryman subsides and sits patientlythrough the trial without any suggestion. He thinks that there is ahopelessly complicated game being played before him and he does notattempt to interfere. 

There may be some truth in the theory of the attorney who says:

"Always look out for the juryman who asks your witness questions. Heis against you. If he absolutely believed the witness he would let itpass without questioning. " This reasoning may be used as an argumenteither way, for if the juryman believes the witness he may feel thathe should like to have him tell more. Or if he does not accept him astruthful, he thinks it will not be worth while to ask him otherquestions. An inference may be drawn as to the juror's attitude forand against. 

An inexplicable thing to the jury is when the judge takes the caseaway from them and directs a verdict or dismissal of the complaint. That the jury should be compelled to listen to all that mass oftestimony and then at the end not have a chance to decide isunreasonable. If the plaintiff did not have a case, why did the judgelet them go on? He should have found it out earlier instead of wastingall that time. 

After the whole case is in, it may happen that both sides move for adirection of the verdict and then the jury have nothing to do. Thejudge says:

"Gentlemen of the Jury, I direct you to find a verdict for so-and-so. "Before they have a chance to say whether they will or will not, theclerk announces a verdict for so-and-so. This is very annoying anddiscouraging, especially when the jury were going to find a verdictdirectly contrary to the way the judge decided. Technically they havea right to refuse to find a verdict as the judge directs, but if theydid, only a mis-trial would result. 

It is an illustration of the difference between the function of ajudge and a jury. The jury pass on the facts, the judge on the law. When the judge dismisses the case, he is saying that the facts may beso and what happened may be truly stated, but even then it does notmake any difference. The law is that those facts do not make out acase. Only when the facts make out a case do the jury have anyfunction. Then it is for them to find out whether the facts are as theplaintiff claims them to be or as the defendant. The jury are usuallypuzzled and do not understand the distinction. In certain cases thejudge determines both the facts and the law and decides the wholematter. In those cases, and in what is known as equity, there are nojury, but a judge may always ask for a jury if he wishes one todetermine the facts. 

A jury is supposed to be advantageous to the defendant in a criminalaction and to the plaintiff in a civil action. 

"One judge is better than twelve, " says the advocate of the non-jurysystem. "Law is a technical thing and you can not put a technical caseplainly enough so that twelve men could thoroughly understand it. "

A discussion of the jury system is not in place. The jurymen havealready been summoned and are in court and until the structure of thelaw is changed they will remain. They are ready to try any case thatmay come before them. The judge feels a sense of relief at not havingto pass upon the facts. The law being laid down, all that remains forhim to do is to see that the facts are fairly and plainly presented tothe jury, that both sides conduct the case in a reasonable manner andthat the trial be as open-minded as possible. The anxious attitude ofmind toward the jury is that of the parties who are to be judged, thelawyers and their clients. 

The jury do not become very excited over the wrongs of one side or theother. They certainly do not enjoy the trial or look upon it as anexample of a good fight although under the present system of procedurethat is what it is supposed to be. 

V

THE STRENUOUS LAWYER

Of equal importance in the cast are the lawyers. They play the partsthat represent action. The judge and jury are the heavy characters. The clients who make their entrances and exits as they take or leavethe witness chair are of minor importance. The lawyers occupy thecenter of the stage the greater part of the time. Their clients sitwatching, the judge and jury keep silent and listen to them. 

In order to make a trial or a contest there must be two sides. Theremay be three or more lawyers, but usually they divide themselves intotwo groups and take sides. The attacking party, --the plaintiff, complainant, or prosecutor, --naturally the more aggressive, and theman who is defending himself. 

The latter's lawyer is the one who is wary and alert. Sometimes theattacking lawyer having gained a position sits down and defends it. During the trial there is a constant change of attack, the taking of aredoubt, charges and countercharges, trenches captured and forsakenagain. The intellectual and legal battle is as bitter as any physicalone. To the understanding observer and the participant it is momentousand intense. 

While the contest is waging there is no intermission. The fight isalways hot, keen, bitter. Quietly as the lawyer may handle himself, underneath his calm exterior he is ready to fight, bite, scratch, shoot, kill, slash, but always he must do so under the rules of thegame, never hitting below the belt. What the battle is about is theissue, the result is called the verdict, or the decision, and theformal statement of the court as to the result the judgment. 

The contest is so real it soon ceases to be a play. It is too much inearnest and whatever humorous quality it may possess never loses theunderlying intensity of human conflict. One noted trial lawyer saysthat he always feels the loss of a case in the pit of his stomach, another that he can never begin a trial without mopping his foreheadfor fear that beads of perspiration might be apparent. Howeverordinary and accustomed court trials may become to the participants, there will always remain the deep underlying stress of human passions. 

As lawyers are watched, they may appear alternately as jumping up andsitting down like jacks-in-the-box or those weather figures, where ifone goes in the other comes out. Their appearance differs in thedifferent courts from the higher courts where the well-groomed eminentleader of the bar, with thin lips and white side whiskers debates in afrock coat before the appellate court, questions of internationalimportance, or the anxious-eyed little attorney where in one of thelower courts with a showy diamond ring and a handkerchief stickingout of his pocket in the shape of an American flag, argues, whilechewing gum, whether his client shall pay the fourteen dollars rent ornot. 

There is never any peace between them. Occasionally there is a trucewhen they come together to agree on a certain state of facts, orconclusions of law, but essentially they are at war; otherwise theywould not be in court. The only reason for their being there is anissue to be decided. 

Often so eager do they appear that physical violence seemed impending. It is as though they were on the point of breaking into fisticuffs. The judge says: "Gentlemen, gentlemen. " They appear like two naughtyschoolboys who have to be controlled by their master. First one isrestrained and rebuked, then the other is held strictly to the rulesof the game. Like schoolboys, although they may be fighting oneanother, they appear at times to be in league against the judge. As ina baseball game, both sides join against the umpire. There is acommon class feeling between the lawyers leaguing them against thejudge. This may be explained perhaps by a rather subtle psychology. 

The lawyers are primarily in court to please their clients. Everyruling of the judge against them on even minor points of evidence, anyadverse decision is fatal to them from the point of view of retainingthe client for the next litigation. They watch the judge withlynx-like eyes. Is he going to drive the client away from them? Shouldhe reprimand them or speak severely, their client would think thatthey had angered the judge and so they had lost the case. Defeat in acase is so important that if a lawyer loses a case he probably loseshis client. 

In one of the lower city courts on the East Side, a young attorneycame in one morning with a scar across his cheek, a scratch on hisnose, and sticking plaster on his chin. The judge had often seen himbefore. After the case was over he called him to the bench and saidthat he was sorry he had an accident, and asked him what had happened. "Oh, not much, " said the lawyer, "last week I simply lost a case for aclient. "

The complaint of the lawyer against the judge is always that he hasforgotten that he was a lawyer once himself. He does not realize howimportant it is that the lawyer should make a good impression on hisclient. His feeling is, if the judge cuts him off when he is arguing, the client will think that he is talking foolishly. The judgeoverrules his objection. The client thinks the judge does not likehim. The judge denies his motion to strike out, he evidently does notlook on the lawyer favorably. The lawyer's chance of display is intalking. If he is not allowed to go on he feels the judge isunreasonable in not listening to him. 

The nice lines to be made by the judge between consideration for thefeeling of the lawyers and insisting that justice be fully andspeedily accomplished, are hard to draw. On the one hand there arethe courts where no limit is put to the digressions of attorneys andwhere they may wander on and on, apparently merely to display theiroratory to their clients, and other courts where the undoubtedly badmanners of the bench to the bar are unforgivable. 

Control of the trial is necessary because it is a struggle in a courton a defined area. It is an intellectual ordeal by battle, a cappingof intellects. It is like a game of chess in which luck is eliminated, the board is free, the pieces are equal, the way in which they maymove is fixed by the rules of the game of court procedure. The elementof chance is made not by the court or the procedure, but by the factthat the pawns, the castles, and the knights are not of ivory, but arehuman and mutable. 

The lawyers are discontented with the courts, while the judges feelthat the deficiencies are the fault of the lawyers. The lawyers, theysay, do not coöperate with the judges in the administration ofjustice, and are too busy with their own game. Here enters thatacademic question of whether a lawyer's duty is first to the court andjustice, or first to his client, --should he defend a man he knows tobe guilty. The dispute is sophomoric. He is the advocate of his clientfirst, foremost, and all the time. That is the reason for hisexistence. He is the agent for his client; his tongue, brain, andenergy belong to his client. He is undoubtedly justified in whateverhe does, if he keeps to the rules. Justice is best promoted by heedingthe rules of justice to the utmost. 

It is to be remembered that the lawyer occupies an uncertain position. As an officer of the court he is sworn to promote justice; as achampion in the battle he is under the deep obligation of performinghis utmost for his client. At times the conflict between his dutiesseems real. As an officer of the court he has the privilege of thefloor. He can be heard and is admitted to the court. It is as thoughhe had joined a club in which dueling or gaming is permitted. Theobligation resting upon him is to act as a gentleman and obey therules and not to cheat. If he keeps to the rules he is presumably agentleman and can do what he pleases for his clients. 

If there is any complaint about the courts it is held to be the faultof the lawyers, if there are criticisms of the lawyers it is the faultof the courts. They are interdependent and indissoluble. If a clubhouse is not suitable for its purposes, is old-fashioned, rickety, anddirty, it is the fault of the members. If the members do not behavethe club house gets a bad reputation. 

Courts are institutions, and not persons; the lawyers are theindividual stockholders. If by his actions in court or in the club hebrings disgrace on himself as a lawyer or upon his club, there is verylittle to be done about it. The club membership may be more limitedand select, but the building will not be improved except that it maybe swept a little cleaner. 

The judge as the president of the club must see that the lawyersobserve the rules, he can not rebuild the club house or materiallychange the rules. The only persons who can effect a change are thelawyers. As members, they are agents for their clients who are thepublic at large. Occasionally the public awakes to a realization oftheir power over both courts and lawyers, that they are theircreatures; then happens a revolution in procedure and something isaccomplished. 

The lawyer waits about the courthouse for his case to be reached. Itmay take days or even weeks before it is marked ready. He wastes histime. The witnesses have been subpoenaed. They have to be told tocome again the next day. There is little money in it for the lawyer. Office practice pays better than court work and except for the eminentpleaders there is but small honor. 

During the trial the lawyer seems to be sparring. He takes theattitude of saying: "I want that point of law decided; it is such anice point, it ought to be settled. " As a matter of fact he onlywants it settled in his own favor. It is not the abstract interest butthe concrete fact in which he is interested. 

The lawyer is vigilant from the beginning of the trial to the end. After the case is marked ready he watches the jury, the other side, and the judge; any movement may be of importance; if it escapes hisnotice he may lose his whole case. It is not safe for him to go on theassumption that the other side is as honest as he is. If they shouldattempt to put in some evidence that is not proper, to offer a paperthat is not duly authenticated, to try by some trick or device to takean unfair advantage, he must be ready to pounce upon the incident. Ifhe is quick he may turn it to the advantage of his own side. 

The other lawyer among a bundle of letters offers one that is only acopy or is not signed. The lawyer notices it but keeps still and whenat the proper time calls the attention of the judge and the jury tothe fact, the plain implication is that the other side must have avery weak case if it needs bolstering up by such methods as this. Theargument is that he let the paper go in without objection because hethought the matter trivial anyway, and he wanted the jury to see theunderhand method of the other side. 

The indefinable quality of personal magnetism is of much vauntedimportance. It is like that horrid word, charm; no one knows what itmeans and seems to have a supernatural quality. The trial lawyer doesnot need either charm or magnetism. They are both nonsense. Likeactors or fighters if they are sufficiently trained in their parts orknow how to use their weapons, the lawyers' personal magnetism overjudge and jury will come of itself. The judge is a fairly hard-heartedperson. The jury may be governed by sentiment but they are an exampleof the average man and neither are going to be caught by smile ormannerisms. Sound qualities will prevail. 

A fine-looking trial lawyer who thoroughly knew his business once hada hard case. His appearance and manner impressed the jury. Theyfollowed his every motion. The trial was long and tiresome. It was thedays of those little iron puzzles to get two rings or anchors apart;occasionally he would take one out of his pocket and begin playingwith it. The jury would follow him with their eyes to see whether hecould do it. Whenever he thought the evidence for the other side wasgetting too interesting, out would come the little iron puzzle and thejury would pay more attention to its solution than to the witness onthe stand. He won his case but that is no reason to recommend theplaying of "Pigs in Clover" in the court-room. The reason he won thecase was because he was the capable man and on the job. 

The lawyers' profession is not a creative one but the value in thesocial structure is cohesive. He brings together the investor and themanufacturer, he amalgamates capital and labor on a sound legal basis. He adjusts conditions to the laws and laws to the conditions. His isthe most large-minded of the professions. He is theoretically thelayer of the law. In every community the eminent lawyer is the eminentcitizen. No one commands greater respect. But there is no doubt thatthe inefficient administration of justice is the fault, to a largeextent, of the legal profession. 

The fine, kind face of the lawyer who, ripe in years andunderstanding, beams a genial smile is a living reproach to thedetractors of his profession. Painstaking, scrupulous, broad-minded, and intelligent, with a twinkle of humor for the frailities ofhumanity, he looks on the pettiness of men with a wise tolerance. Beneath his ease of manner and cordiality of intercourse there lies aworld of experience, of battles fought and won, of inherent force ofcharacter, of public honors received and gracefully borne. There areno limits to the admiration and love to which he is entitled. 

Beside the lawyer, and watching him with worried eyes, sits theclient, who unless he is in the wrong really wants the lawyer to bringout the facts in the case rather than to have him exhibit hisqualities as a fighter. 

VI

THE WORRIED CLIENT

Like the financial backer of a play, the client does not figurelargely on the stage. If he does appear as an actor he may have asmall speaking part, but he is not a star. He owns the show, and if itdoes not pay he loses, or if he wins he gets a proportion of theprofits. Consequently he hires the best talent he can afford. The starperformer is the lawyer, but as the producer the client has not onlythe choice in picking the theme, but the play is about him and histroubles. Great drama consists in a conflict of emotions. The emotionsof the two opposing clients make a court drama. The acting and thestaging is the art of the lawyer. 

The philology and derivation of the word client is significant. Itdoes not mean the principal, but a follower. It is derived from theLatin word _cluere_ and the Greek _+klyein+_, meaning to hear; one wholistens, a follower. 

An ordinary man has a horror of the entanglement of the law. Ahard-headed man of business says he would rather pay a claim of $250or less, although he had never seen the claimant, and the suit wasutterly unfounded, than go to court. He would rather lose the sameamount than bring a suit involving the trouble and expense of hiring alawyer, requiring witnesses to waste their time, and wasting his ownin waiting for a trial, which might possibly result in a judgmentagainst him on a perfectly just debt, either through the miscarriageof justice, or the chance of not collecting the judgment. The typicalfeeling is that of the stockbroker who said: "Only blackmailing suitsgo to court, for if sensible men have a dispute they know it is easierand cheaper to settle it outside. "

The client is in a darkened room. He only partially sees what isgoing on. If the whole case is thrown out of court on a question oflaw or a technicality he feels more than resentful against the judge;he is revengeful; he will spend every cent he has in the worldappealing and showing that judge how wrong he is. In the first place, it is a disgrace. 

"Why, " he says, "the judge just kicked us out of court. We didn't havea chance; the judge must have been friends with the other side. Do youcall that justice? I'd like to get that judge outside and talk to himman to man. No one can get a square deal in court. "

The feeling of the client toward the courts and the lawyer is one ofdistrust, mingled with respect. He will say:

"I would rather take a friend's word as a gentleman that he would dosomething than to have it put in the form of a forty-page contractdrawn by the best lawyer in the country. I could rely on the word of agentleman, but if any question on that contract came into court, someclever lawyer would find a loophole to get out of it. " Yet the factis that the world does require legal documents. An interestingspeculation would be to consider what proportion of the world'sbusiness affairs is conducted on a basis which could be provable orhave the authority of enforcement in a court of law. The proportion ofthe business transacted in a so-called legal manner is insignificantlysmall. 

The numberless transactions of the retail stores in a great city; suchcases of proving that a pair of gloves were sold, delivered, and notpaid for are extremely difficult to prove. The expense and troubleinvolved of subpoenaing the different departments and of breaking upthe routine of the store, would prevent the stores becoming clients. The enormous transactions on the New York Stock Exchange, where ahundred million dollars' worth of business is reputed to be done inone day, is entirely on the basis of personal honesty. So far as thecourt goes, should one party to a stock sale not be willing tocomplete, there would be little possibility of enforcing it. Thereforethe Stock Exchange makes its own rules and has its own method ofsettling disputes. The world at large is not a client in the court. The man who becomes a client in the sense of litigant is an exception. The courts would seem to be unrelated to the demands of actualbusiness affairs. 

Times have changed since the Victorian days when a solicitor was theclient's deferential servant, the steward and custodian of the landedgentleman's legal affairs. Then the lawyer had a profession which hecarried in his head. Law reports contained a few thousand, not amillion decisions, and there were no title insurance companies to makea business of determining the ownership of real estate. Yet in thosedays the legal adviser was not a very exalted person, ranking beneaththe soldier and standing hat in hand before the gentleman of property, to whom he owed his living. The citizen who wished to learn whether heor his landlord should clear away the snow on the sidewalk, wentgravely to a lawyer's office and paid a fee for the information. It isobvious that lawyers do not make their living through small fees forgiving advice. As a matter of fact, those whose work is moreremunerative than a street-car conductor's or a carpenter's, maketheir living through business and not in small litigation. 

To-day lawyers complain that their profession is slipping from them. But they have gained the prestige of business. 

"I am a business man, not a lawyer, " says the elderly leader at thebar, and scarcely knows whether he is, on the whole, gratified orregretful. 

Their abilities are used in directing the conduct of business from alegal standpoint and protecting it from those who are ready to preyupon it. Business needs protection from other business, from accidentcases, and libel cases. These frequently get into the courts. Citizensneed protection from business and seek it in the aggressive form ofsuits for damages. Big business looks on the courts as instruments ofblackmail, and the small citizen feels that the courts are inadequateto protect his rights. It makes a deal of difference which side theyare on. But in any case the present-day successful lawyer is primarilya business man. 

A corporation is a legal creation; a lawyer is its mother and nurse. The stockholders having the curious relation of being partners, onenot liable for its debts--if its legal affairs are properly handled. And so the company retains a lawyer at a yearly salary to give themadvice and that legal protection. Prominent lawyers are taken in aspartners of the big banking firms. The large industrial companies havethe highest priced lawyers exclusively attending to their affairs. Accident Insurance Companies have enormous legal plants as efficientlyorganized as factories for handling damage suits and against whom isopposed the inexperienced lawyer of the individual citizen. 

Furthermore, the corporation, though composed, in reality, ofindividuals, is less personal than any one of its members. It is aclient without keen emotions, without too distracting hopes, fears, orsuspicions. Law is an exacting science, arduous and complex. Thelawyer, to do his best, should work quietly, disturbed as little aspossible by the human interests at stake. If then the lawyer iscorrect in preferring the soulless corporate client, it must be thatthe ordinary individual is either too poor, or too human. Naturally, the corporations are not only the most satisfactory, but the mostdesirable clients. 

The client, although he is the originator of the drama is in realityonly a listener. The client in court has so little to say and thelawyers have so much, that it seems unexplainable. The reason is thatthe lawyers are the fighters, the champions, the knights in thetournament. A legal battle is only enacted because the lawyers areexpert fighters. The client having hired them, has little to do butwatch. When men first went to law they had no champions; they foughtand took what they could, but as civilization advanced men became toobusy to engage in legal or actual battles and there grew up aspecialized class of fighting men. The lawyers are the hiredmercenaries of the commercial structure; and the clients are theordinary business men. True, some of the lawyers are free lancers, butthe majority have the sentiments and standards of their class. Thereis a natural class antagonism between the client and the lawyer. Theclient is afraid and mistrusts the lawyer; and the lawyer feels thathe must act for an unintelligent client who is ignorant and inexpert. So long as the courts continue to exist on their present plan thedifference between client and lawyer will be marked. 

An example of a return to formalism and a reactionary development hasbeen the change in what is known as the Poor Man's Court of New YorkCity. It was originally planned as a court where the client or manunlearned in the law could come in to sue in a simple way. They weresimple justice courts. The limit for which he could sue was $100, then$250, then $500, now $1000. Formerly the judges need not be lawyers. Atrial was an informal affair. The judge would line up both the partiesat the rail. One side would tell their story, the other side wouldinterrupt and finally get a chance to tell theirs. The judge wouldfiguratively pat them on the head, decide the case, and tell them togo home and be good. 

The New York Legislature recently passed a law making the court acourt of record, and making all the provisions of the Code of CivilProcedure applicable. The code with its half million words istherefore a part of the procedure. So that the client now before hegoes into court without a lawyer ought to familiarize himself with thecode. Formerly these courts may not have been dignified. Pandemoniumwould break loose and the litigants begin screaming at and abusingeach other. Often the judge was obliged to apply a somewhat arbitraryand paternal rule. Now the courts are more dignified and formal, butthe clients are disappearing from view. They are in fact afraid tocome into court without a lawyer. 

While the dignity and efficiency of the court have been increased, ithas almost ceased to be a court for the poor man; indeed the procedureis so technical that, although possible, it is rather unusual for aman to come without a lawyer. Of course, the attorneys who make theirliving by appearing in small suits where the fee is often a contingentpart of the small amount recovered, or a fixed charge of $5 or lessfor trying a case, do not present examples of the best legal ability. 

The point of view of the client is that he is loath to spend the moneyto hire a lawyer for defense. One litigant stated in court, when askedif he had not admitted the debt: "Well, " he said, "I just went aroundto see the plaintiff to find out if I could not save a few dollarsinstead of hiring a lawyer. " It is an open question which brand isthe best for the client, the rough and ready justice or the formaland orderly kind. 

While the jury are being examined and during the opening of thecounsel, the client sits quietly, but a trifle self-consciously, atthe counsels' table. The talk is about him and frequent references aremade to him and what he has been doing. He tries to look as though hedid not care and was accustomed to the surroundings, and when thetaking of testimony and the wrangles over objections and motionsbegin, he falls quietly into the background. 

If it is a criminal action he is not on the stand during the People'scase. When his side is presented his lawyer does the best he can tokeep him from the stand, whether he be innocent or guilty. Thewell-known expression is that the defendant hangs himself by takingthe stand. In civil trials the client may be a corporation or theowner of the injured automobile or wagon, but not a witness to theaccident. He sits silent by his lawyer if he is wise, realizing thathis lawyer can fight better without being annoyed. If he is nervous, he keeps plucking at his sleeve and whispering advice. It is difficultfor him to restrain himself. There have been months of preparation. The drama is being produced; to him it is vital. He knows more aboutthe case than the lawyer. He wants to advise, suggest, and instruct. Why doesn't the lawyer ask the witness that question about what hetold Smith or what he told his wife?

The client might be surprised if he knew what the lawyer was thinkingof him. If asked, the lawyer would moisten his lips, draw a longbreath, and then pause, not for lack of thoughts however. The bestclient in court for the lawyer is the silent client. One of thegreatest calamities from the lawyer's point of view is when the clientis on the witness stand and begins to get confidential with the judgeand to tell him exactly how he feels about the whole matter. 

"Why, " said a lawyer, "I had a perfect case and then the judge askeda question and spoiled the whole thing. I think it was outrageous, thejudge had no right to interfere. "

The attorney's feeling toward his client is contained in the wish thathe wasn't there. The legal aspect of the case, the real point atissue, is probably something very different to what the client has inmind. The lawyer has an uneasy feeling that, in the client's eyes, hewill not do the case justice. 

"How outrageous, " thinks the defendant, "that I should be sued whenI've been over-generous for years. And the jury ought to know exactlywhat these people are who said they'd call off the suit if I'd paythem a hundred dollars. " The lawyer is aware of these views, becausehe has been told them more than once; he also knows that he cannot trythe case in that way. 

The counteraction of emotions and feelings between the lawyer and theclient, the judge and the jury, the undercurrents that are constantlymoving from one to another, make up the drama of the court. Thecharacters are laid, the theme is selected, the actors are chosen, andit remains for the play to be prepared. 

VII

PROGRAMS AND PLEADINGS

Pleadings are the programs of the performance. They are printedbeforehand and everybody gets a copy. Preparation consists in therehearsal and the carpentry of setting the scene. Any lawyer knows howimportant the pleadings are, but nobody else does. The judge does notpay any more attention to them than he has to. Juries hardly ever seethem; if they did, they could not understand them. The witnesses neverhear of them, the clients have sworn they have read them and havesworn that they are true. Yet not one client in a thousand could givean explanation of them other than, "My lawyer told me to sign it, so Idid. "

Whenever anyone gets anxious to understand a pleading, there are somany volumes about the subject and so many bookcases of decisions theywould furnish a house. All this may appear flippant, but the subjectis so absurd, abstruse, and abnormal to a man of business, that it isalmost impossible to make it understandable. A partial list ofauthorities on the subject sounds like a chapter from _Alice inWonderland_: Pepper on Pleading; Perry on Pleading; Pollock onPleading; Pound on Pleading; Puterbaugh on Pleading; Phillips onPleading; Pomeroy on Pleading. The number of court decisions in whichthis branch of the proceeding has been reverently and gravely dealtwith reads like a metaphysical discussion in the dark ages. The namesformerly used were superb. Complaint, demurrer, confession andavoidance, traverse, replication, dilatory pleas, peremptory pleas, rejoinder, rebutter, and sur-rebutter. 

On the other hand the clear, concise technical statement of a case isnot a matter to be laughed at; no clear thinking is possible withoutit. No plain understanding of what the drama is about, nor what theissues of the battle are, can be grasped. Good lawyers are goodthinkers and usually plain talkers. The present-day revolt against theconfused pleadings may go to the opposite extreme and abolish themall, leaving the case to be presented as formless and loose. The vexedquestion of the proper form of a pleading may delay justice until itis determined on appeal from the City Court to the Supreme Court, thento the Appellate Division, then to the Court of Appeals. In themeanwhile the clients may die, the money in suit may be lost, whilethe audience is waiting merely for the programs to be printed. 

In Perry on _Common Law Pleading_, reprinted in 1897, chapter thirteenis devoted to rules which tend to prevent obscurity and confusion inpleading. 

 RULE I. Pleadings must not be insensible or repugnant. RULE II. Pleadings must not be ambiguous or doubtful. RULE III. Pleadings must not be argumentative. RULE IV. Pleadings must not be hypothetical or in the alternative. RULE V. Pleadings must not be by way of recital, but must be positive. RULE VI. Things are to be pleaded according to their legal effect. RULE VII. Pleadings should observe the known forms of expression as contained in approved precedents. RULE VIII. Pleadings should have their proper formal commencements and conclusions. RULE IX. A pleading which is bad in part is bad altogether. 

These are pleasant rules for a layman to understand, and any time hehas a day off or a holiday he should study them. 

"Shocking, " cries the old-fashioned reactionary lawyer, "What! Do awaywith pleadings, you might as well do away with the whole case. Pleadings are like the rails for a train. No one on the train seesthem, but take away the rails and the train would not go very far. Pleadings are the groundwork of the trial. "

He grows more and more indignant. 

"The trouble with the modern courts is that they do not know what theyare about. If this business of loosening the forms of pleadings hadnot taken place, lawyers would be better prepared when they came intocourt and there would not be this floundering about. The good oldcommon law pleadings were the thing. It was a great mistake when theywere abandoned. Then everyone knew where they were. If there was amistake in the pleading then the whole case was thrown out of court. That was as it should be. Men had to be good and careful lawyers inthose days. The slipshod methods of the present time are abominable. "

"You seem to be a little hard, " says the modern lawyer. "Justice oughtnot to depend on forms. "

"You can never have justice without formalizing and shaping thedispute, " says the lawyer. 

"Quite true, " says the modern, "but there has been too much attentionpaid to the form of justice. Pleadings are the mere mechanics likeprinting the program or laying the rail. "

However, this is all a question that does not come up in thecourt-room at a trial. Once or twice some reference is made to thepleadings. Perhaps there is some such dispute as this. The defendantattempts to swear that he "paid for the goods then and there. " Theother lawyer jumps up and says, "I object, your Honor. In his answerhe does not plead payment. He only pleads a general denial. " The judgeputs on his spectacles. The lawyers gather, business stops whileeveryone looks at the pleadings. 

Or again the plaintiff tries to show that when he was thrown from thewagon he bruised his right elbow. The counsel objects there is nothingabout injuries to his right elbow in the Bill of Particulars, therefore he can not prove it. The Bill of Particulars says that hehurt his hand, scratched the forearm, and injured the right shoulder, but says nothing about the elbow. Grave consultation by the learnedlawyers and the judge ensues. The defendant's lawyer is right, thereis nothing in the pleadings about the elbow. 

The case can not go on until that important question is settled. Thereis argument on both sides. The client looks anxious. The jury sit andwonder what that phrase of "the delay of the law" may mean. Finally abright idea occurs to the lawyer. 

"I move to amend, your Honor, so as to include the elbow. " The otherside looks shocked and disgusted. "What, move to amend in such acasual way as that. The pleading is a serious thing. It has been swornto, you may not amend a sworn statement in that offhand way. " Thejudge says that he will allow the amendment but if the other side issurprised he will grant an adjournment of the trial to another day. The other side says, "Pardon me a moment until I consult with myclient. " The judge smiles. The lawyer goes over to his client and theclient says, "For goodness' sake don't adjourn. I've broken up mybusiness for a week to come here now; what's all this fuss aboutpleadings; let's get on with the case. " The lawyer returns to the bar. "We have decided to proceed. "

"Amendment allowed, " says the judge. The witness now tells abouthurting his elbow. 

The preparation of a case goes on behind the scenes and before thedrama begins. The attempts to rehearse are piece-meal. First onewitness is seen, then another, their stories are told, theirstatements are taken, and they are drilled in their parts. They aretold as to what facts they must testify. In one large company that hasa quantity of damage suits, there is said to be a school for witnesseswhere there are dress rehearsals and they are taught how to behave incourt. 

The greatest farce that occurs in the court-room is the part ofpreparation that is involved in getting a case on for trial. Therebeing no limit to the time to examine witnesses, to hear arguments, tolisten to objections, it is said to be impossible to tell how long acase is going to take. Consequently the calendar having been called, the cases following are answered ready, by office-boys with noexpectation of their being immediately reached. 

The grave and reverend judge looks over his desk and calls the case ofBowring _vs. _ Bowring. "Ready for the plaintiff, " answers arosy-cheeked boy. "Ready for the defendant, " answers another. Theylook rather young to be trying a case. It is marked ready and theoffice-boys sit about the court and telephone to the lawyers when theythink there is a chance of being nearly reached. This often takesseveral days. In the meanwhile the cases ahead of the Bowring casehave been dragging out their slow and weary performance on the courtstage. Matters of fact that should have taken five minutes to bringout by the present usual laborious system of proof, have taken twohours. Argument of counsel on abstruse questions of law have worn andconfused the jury and the clients, who have become exhausted andimpatient. 

The clients and witnesses may have been sitting, trying to understandand becoming more and more mystified. 

The dealings of open-handed Justice ought to be plain, prompt, andunderstandable; instead to the spectator she seems a mysterious jadewith no understanding of everyday life. She keeps them waiting therewithout reason. If the case is marked ready it ought to be ready. Thebusiness man feels that Justice is extremely tardy in keeping herappointments. 

His natural reverence for abstract Justice prevents him formulatingthese thoughts, but he continues to wonder. Not understanding thecause he becomes dissatisfied and his experience in court leaves aprofound contempt for the system of jurisprudence. He thinks that ifany man conducted his own business on the method and plans on whichthe courts are being run he would soon be bankrupt. 

"Why, " he says, "does not the court get in an efficiency expert onthis calendar evil and have it arranged on a business basis?"

During the days the case has been on the calendar the lawyer has hadto hold himself in readiness to try the case. The managing clerk hasbeen sending out for his witnesses. They have been served withsubpoenas and paid their fees to come to court on the day the casewas first marked ready. They arrive and are told to come again thenext day. They also have a respect for the court and are glad to cometo do their duty and tell the truth. The truth is mighty and willprevail; but in court she can only speak through witnesses. Unless thewitness be treated with consideration it would seem that she will notspeak very willingly. 

In place of having them return and return again, some system soon willbe devised of giving them timely notice when the case is to bereached. Exhausting the patience of the men who are the props andmainstays of truth does not seem reasonable, and after a few visits tocourt they are not anxious to come again. If possible they will escapethe process server. 

A man who has witnessed an accident to a woman by a street car, inspite of his humanitarian instincts will run around the corner forfear of being called as a witness. The man who hears at night the callof "Police! Police!" in the street, jumps out of bed and begins to puton his clothes, but thinks better of it for the same reason. If a manis in a taxicab that is run into by an express wagon, and theresulting suit is brought by the taxicab company for $110 damages, hemay have to attend court five separate days as a witness and the casemay not be called. He has to leave the State to avoid being annoyed bythe subpoena server, who dogs him at his club and at his home. Thewitnesses have lost their time and their patience. 

Each lawyer knows this and a petty game of playing for delays andadjournments sometimes goes on. Suppose there is a good claim whichnevertheless the defendant denies, knowing how lengthy and wearisomeis the game of reaching a case, he often succeeds for years inpreventing its collection. The game is simply to tire out theopponents, clients, and witnesses. A clever and unscrupulous lawyercan throw so many obstacles in the way of a plaintiff that, unless hehave a strongly developed streak of obstinacy, he will give up indisgust or be glad to compromise. 

Unless both sides are anxious to be reached it is practically certaina case will be adjourned two or three times. A sworn affidavit ispresented with the doctor's certificate that the client or witness issick, or the sworn statement that a witness can not be found, or thatthe lawyer is engaged in the trial of another case. The excuse may bevalid and the reasons may be sound, but the adjournment of the day fortrial occurs again and again. This is one of the causes for thecomplaint as to the law's delay. Naturally calendars have to be madeand called. Cases have to be tried and others have to be reached inorder, but at least there should be sufficient and intelligentplanning of the order. 

It seems rather a weak answer to say that no one can tell how muchtime will be occupied in the trial of a case. If any systematic orscientific method of regulating the calendar were devised, one of theevils would be avoided. 

The very call of the calendar in some courts occupies to anunreasonable extent the time of the judge who might as readily beengaged in the real work of the court. The aggregate value of the timeof the judge, the lawyers, the witnesses, and the jurymen who have allbeen sitting about waiting, for the call of the calendar is, for onehour's delay a large sum. The waste might be saved by an intelligentbureau for the administration of court business which would haveabsolute control over all calendar practice. 

That the judge should delay a whole court-room full of people by beinglate in opening court should not only be a matter of apology, but isreprehensible to the extent of being multiplied by the number ofpeople he has kept waiting. On the other hand, the usual course ofproceeding being apparently with the object of dragging out thebusiness of the court, makes the tardiness of the judge seem only anincident. 

Fortunately there are few attorneys who make appearances in courtmerely for the sake of adding another item on their bill to theclient, and the real delay in reaching a case is due more to theconfusion of administrative methods; until some more practical systemis devised it will continue. Then witnesses and clients will not beloath to go to court. 

The weary work is finished, all the tiresome facts have been gathered, and the rehearsals have been had. The play is written, the parts arecast. The disappointments and delays have been forgotten, the monthsof preparation have passed. At last the bell for the performance ringsand the case is finally to be tried. 

VIII

PICKING THE JURY

The clerk calls the case again for trial, not this time to inquirewhether both sides are ready but to announce that it is about tobegin. The lawyers, their assistants on both sides and their clientsmove forward to within the rail. There is a certain amount ofcommotion as they arrange their papers, their portfolios, law books, hats, and coats, and take their places at the counsellors' tableopposite the jury-box. In the dignified courts in this country thisrather uncomfortable disposition of overcoats and hats is arranged inan adjacent room. The opposing parties in the battle to be enacted arenow facing each other. Matters become at once more serious andformal. What was once avoidable is now inevitable. 

The stage has still in a measure to be set. Twelve important actorsare to be selected. The jury have not yet been chosen. The jury forthe sake of comparison take the part of a Greek Chorus, a silent oneit is true, until the final word is to be said. They nevertheless areas important and essential a part of the drama as the Chorus, withoutwhich in the background no tragedy or comedy was complete. 

No curtain divides the theater and the arrangement of the stage goeson before the eyes of the spectators. The choice of the juryconstitutes an interesting part of the performance. In thispreliminary play the lawyers having important parts, their manner, bearing, tones of voice, their courtesy or discourtesy, repose ornervousness, are watched and unconsciously noted by the jurors. As thejury-box gradually fills, even the slightest idiosyncracy may havesome effect on the outcome of the case. 

Trial lawyers are careful of their actions even before the case iscalled to trial. It may be that among the spectators who have beensitting beside the lawyers in the back of the room, waiting for thecase to be called, are those who may afterwards be called as jurors. Any affectation of manner or pomposity is quickly detected. 

Experienced lawyers immediately they are observed by their tribunal, fall into the parts they are to play during the trial. One lawyer maybe jovial and radiate a cheerful confidence. Another has a superior, detached, and academic air which promises a sarcastic cross-examination. Yet another takes on a blustering, brow-beating, intimidating manner, akind of overmastering virility. Each kind has its own particularadvantages, according to the nature of the parts to be played. The mostefficient is the manner of the lawyer who is direct, business-like, andconsistent with his own personality. 

As on the modern stage, there is a return to simplicity of acting. Naturalness and a constant regard for actuality is the only saferule. Simplicity and naturalness, even if studiously affected, usuallyprove convincing. The aim is toward consistency and a non-elaboratemanner. 

Above all the lawyer remembers that the jury admire the good fighter, and it is with a certain obvious subtlety that one successful advocatein New York lets his assistant carry his coat, books, and papers, buthe himself always carries his hat--a derby, by the way, for a high hatwould be over important. The great man knows that the jurors are awareof the importance of the occasion and that their eyes will follow hisevery movement. As he walks up to the counsel table and deposits hisderby it may well become a gage of battle. 

The clerk at the side of the judge's desk begins turning a largehollow wooden wheel; within it are cards on each of which is writtenthe name of a juror who has been served by the sheriff to attend onthe panel for the trial term of the court. The number summonednaturally is larger than the twelve needed for any one case. Oftenthose who have to attend at a term of court sit about with nothing todo until they are actually drawn on a case, although they receivetheir fees for attendance. There is the story of the ignorant workmanwho was serving his first time on a panel. 

"Why, " he said, "I was sitting around all day worryin' about my lostworking day. If I'd known I was getting two dollars for doing nothingI might have been enjoying myself. "

The clerk puts his hand into the wooden wheel after the names havebeen well mixed and draws out one card after another, calling thenames aloud until twelve jurors have been called to the box. 

To the entirely new spectator there is a certain mystification aboutthis drawing of the jury from the wooden drum with the handle forturning. To the initiated it may seem rather humorous, like theshuffling of the cards of justice, the drawing from a hat, or theturning of a roulette wheel. It is, however, significant of one of thegreat principles of Anglo-Saxon law, and that is a trial by a court ofaverage men selected from among the ordinary citizens and drawn on theparticular case by chance. 

As each juror's name is called he comes forward and his appearance isnot lost by counsel. He takes his seat in the box, the juror beingfirst called is known as Juror No. 1, and by this chance, if he remainin the box, he ordinarily becomes the foreman of the jury. In cases ofspecial juries, as of the Grand Jury, the foreman is chosen byselection. The successive jurors are respectively numbered accordingto their seats beginning from right to left facing them. Here it maybe noted that some lawyers in addressing questions to the individualjurors are careful to remember to call them by name, realizing that noone likes to be known by a number. Instead of referring to him asJuror No. 7 or No. 9, he addresses him as Mr. Sullivan or Mr. Schmittberger. 

The twelve men being in the box the counsellors begin to examine themas to their qualifications. On a small board bound lengthwise byrubber bands, or stuck in grooves are the cards drawn from the wheeland arranged according to the number of the seats, and containing thenames, addresses, and occupations of the gentlemen seated in the box. There are two means of removing a juryman. One is by challenge forcause, _i. E. _, that he is shown to be unfit or prejudiced, and theother is what is known as a peremptory challenge which is practicallythe same as saying one side or the other does not like the man'slooks. There are connotations about the word challenge which areessentially dramatic. It implies a battle, a duel, a tournament. 

It is difficult to ascertain exactly what principles govern thesuccessful examination and selection of a jury. In Massachusetts andin certain important cases in New York, the whole panel of jurorssummoned for the term of court have been investigated by detectivesin order that the lawyer might have information about who was to berejected or accepted as a juror to decide the case. The propriety ofdoing this may be questioned and the ordinary case could not bear suchan expense. 

Nevertheless there is a possibly sound reason for obtaining suchinformation. Given a man's condition in life, his habits, hisoccupation, his church, his associations, his politics, and given onthe other hand a certain state of facts, it is nearly ascertainablehow he is going to decide those facts. If a man has always been a rentpayer and has probably had continued trouble with his landlord aboutrepairs and a feeling of resentment at the regular recurrence of rentday, is it not natural that he is going to be somewhat prejudicedagainst a landlord in a dispute between landlord and tenant? or on theother hand can a man who is one of the unfortunate owners of realestate, and who having paid taxes, interest, insurance, repairs forremoval of tenement house violations, and with frequent vacancies, really be absolutely just? If a juryman is a Jew, a Catholic, or aBaptist, there will probably be an innate sympathy for hisco-religionist. The law does not recognize this unless the juryman ishonest enough to confess a prejudice. The soundness of the Anglo-Saxonjury system is based on the theory that there is not one juryman butthat there are twelve and that among twelve there will be an averagebetween the landlord and the rent payer, between the Baptist and theCatholic. 

The counsel ordinarily selects the jury with observation and commonsense as his sole guide. The customary question asked jurymen, whether, given such and such a state of facts, "Do you think you couldrender a fair and impartial verdict?" is manifestly absurd to thejuryman. Every man believes himself to be perfectly honest and just. It takes a strong character to say, "I couldn't be fair. " As a matterof fact such a man ought to be kept on the jury rather than let go. Asa juryman once said to a lawyer after the case: "Why did you excuseme when I said I knew the other lawyer? You wasted your challenge; hewouldn't have let me stay. I knew him too well. "

The extent to which the examination of the fitness of jurors may go isin the discretion of the court. The two extremes are represented bythe methods in the English courts where the judge exercises closesupervision over every question in the selection of the jury in whatwould be considered in America an arbitrary and unjustifiable manner, and the extreme liberality at criminal trials in this country. Thedifference in time is often between that of a few minutes and a fewweeks. 

Naturally the challenge for cause may or may not be allowed by thejudge--the form being, "Your Honor, I ask you to excuse Mr. Smith, "--because the lawyers are more careful in attempting them; forif they are not allowed the juror challenged may be small-mindedenough to retain a grudge against the counsel. The sure challengesare the peremptory ones without any cause stated or reason given. Thenumber of peremptory challenges for each side is usually six. As soonas a juror is challenged he steps out of the box and the clerk draws anew name from the wheel. 

It is very much as if a player were dealt a hand of twelve cards, andunder the rules of the game each side can discard and draw six timesfrom the pack six single cards to improve his holding. The hand, however, is not only his but his opponent's, who may likewise discardand draw six cards when the first player is satisfied. When the secondplayer is through the first may again discard any of the new cards thesecond has substituted, provided, of course, that six drawings havenot been exhausted. This game of chance is always played with an eyeto creating a favorable impression on the jury and may be politelyfinessed to the extreme. 

"Mr. Merriweather, do you know the defendant in this case, Mr. Jacobs, or his attorney, Mr. Jenkins, or his assistant, Mr. --er--the younggentleman on his left?" is the usual form, delivered with the utmosturbanity. It means very little, but perhaps helps the lawyer toidentify an antagonistic juryman and to obtain their answers, whichare almost uniformly in the negative. It is obviously desirable thatthe juryman, as a judge, should not be a friend of the opposite side. From the manner of the man in the box, as he answers, may possibly beinferred his general disposition, and all further questions have thispurpose in view. So the attorney for the plaintiff proceeds throughoutthe twelve before him, and he may say at any time, "Your Honor, Iexcuse juror number so and so. "

Usually he examines the whole twelve before "excusing" any of them, and when doing so many lawyers turn from the box to the judge as theysay, "I will excuse numbers four, five, and eleven. " Frequently thoseremaining do not realize why their brethren have been dismissed. Aslight bewilderment may pass across the faces of all, as a man hereand there, under the beckoning finger of the clerk, rises to give uphis seat. 

Opinion differs as to the extent to which challenges should beexercised. Some trial lawyers are chary in using them, being anxiousto appear frank, trusting and willing to accept the judgment of anydecent citizen. Others are meticulously insistent and exhaust alltheir challenges. The first attitude is the one of saying:

"I have such a fine case, so honest and just, that it is impossiblethat any fair-minded man should decade against me. Therefore, I shallnot insist on these minor points of interest or prejudice. You are allopen-minded. I will leave it to anyone. " The second attitude wasexplained by one lawyer who always put his hand to his chin, lookeddeeply and inquiringly at the jury, and said in an important voice:

"I challenge jurors numbers 6, 8, 9, and 11, or, 4, 5, and 12. " Whenprivately asked on what theory he proceeded in his earnest selectionwhich seemed to imply so wonderful an insight, confessed to no theoryat all except the plainly human one that he believed in using up allhis challenges simply because it made the other jurors, who remainedin the box, feel better and more selected. But the main purpose ofselection is to secure a fair and intelligent jury. 

Not infrequently one side or the other really wishes to get rid of thebest men and willing to take the risk that this will not be apparent. In a real estate case, counsel for the plaintiff not having a strongcase succeeded in eliminating every man who had ever owned or who hadever had the slightest experience in houses or property. It was a boldconfession that no one who understood the case would decide for him. In railway accident cases, the plaintiff, who asks damages against thecompany, will often excuse so far as he can, every juror who appearswell-to-do or a man of property. 

A prominent New York lawyer, when a young man, had defended a casebrought against a corporation. The plaintiff and his attorneys wereJews, and the jury-box when first filled was seven-twelfths Hebraic. Counsel for the plaintiff immediately excused the five Gentiles andwhen the corporation's lawyer stood up, not a man in the jury-box wasof his own race. He accepted them. The trial went on, and it appearedthat the plaintiff's claim was very weak indeed. At last counsel forthe defendant had to sum up and he concluded in this way:

"Gentlemen of the Jury: The plaintiff hopes to win this case not onthe law, nor on his evidence, nor on any consideration of justice. Hehopes to succeed because of the simple fact that he is a Jew, hislawyer is a Jew, and every one of you men are Jews. " With anexpression of faith in the sense of justice inherent in the Jewishrace and of confidence in the verdict, the attorney for the defendantsat down. The jury decided in his favor. 

Such boldness, when successful, is often rewarded, but it is ofcourse inherently dangerous. 

Skilful counsel will succeed in ingratiating themselves from the verybeginning, but they will endeavor to do so only with the jury as awhole. Nothing is more unfortunate than to bestow attention upon aparticular juryman: that is to flirt with a juror. If he has not yetbeen sworn in with the rest and the opponent sees it, he willcertainly get rid of him. If he remained, he would very probably beregarded with suspicion by his chosen associates. Should the counselthink that one man in the box is favorably disposed toward him, hewisely leaves him alone and hoping that the other side will not noticeit, devotes himself the more earnestly to the others. 

The jury is at last selected. The challenges have been exhausted. Bothlawyers look as though they were pleased. The judge is informed thatthe jury is satisfactory, which is, of course, an euphemistic term. Nojury is ever entirely satisfactory to both sides, but it is a politeway of saying it is the best they can get under the circumstances. Thejudge stops trying to balance his check book and looks up at the jury. The attendant motions them to their feet. They hold up their hands. The judge also rises. 

"Gentlemen, " he says, "Do you each and all of you solemnly swear towell and truly try the case of John Smith against Thomas Gregory and ajust verdict render according to the evidence? So help you God. " Theydo not answer, but they sit down. 

IX

OPENING THE CASE

The jury is chosen, sworn, and sitting in the jury-box. The judgebegins unfolding the papers of the case so that he may read thepleadings. The actual trial of issues is about to begin. The courtattendant has taken the jurymen's hats and coats, another attendanthas shown spectators to their seats and politely as possiblesuppressed the young law clerk who does not see why he could not go upto the judge and ask him what became of the case of Jones againstAllen that was on the calendar last Thursday and should have been onto-day, or ask if "His Honor decided that motion in the case of Meyeragainst Cohen. " The doors of the court-room are closed. Theattendants go about looking for whisperers and saying, "Cease allconversation. " The lady client is interrupted in telling her lawyerthat she thinks the judge has a kind face, but that she does not likethe looks of the man in uniform standing next to him, or vice versa. Gradually the court-room quiets and a spirit of expectancy prevails. 

But the actual taking of evidence and the hearing of testimony is notyet. Now comes what is known as the opening. So in the tournament, thearmored knights entered with a blast of trumpets, their names andtitles having been called, and it was customary for them to ride onceor twice around the lists to let the judges see their armor, theirweapons, their mounts, their trappings and accoutrements, or theymight even try a tilt or two at one another. The introductory speechof counsel is somewhat in the nature of a parade or a preliminaryskirmish. It may also be compared to the prologue spoken before thebeginning of a drama. The speech with the vivid brevity, so common inlegal terminology, is called the opening. 

The object is to show to the judge and jury what the drama is about. The secondary object is to arouse interest. Immediately after theopening comes the evidence, which is usually bald, fragmentary, anddisconnected. It might be impossible for the jury to understand therelation of one bit of testimony to another. Take a simple case suchas a suit for the failure to pay a bill at a dry-goods store. Onewitness testifies to the sale, another to the packing of the goods, another to the delivery; a receipt is introduced in evidence. Each onewould not tell a connected story. The opening outlines the facts andmakes the evidence understandable. It also has the function of anappetizer. This may seem a trifle unnecessary. But let us take anillustration. A whole case may depend upon a deed. If the paper itselfwere put in and read to the jury without explanation they would bebored. One witness is to tell this part of the story, another that, and the missing link of the chain may be supplied by the deed. Thejury are not to be mystified before their interest is aroused. Are notthe lives, property, or reputations of particular men at stake? Theordinary man and even more the average juryman has far too strong asense of responsibility to be bored if truly he can understand what itis all about. The function of the opening is to tell him. 

As the counsel begins opening every juryman leans forward and watcheshim intently. They feel their responsibility as officers of justiceand there have been few complaints of their falling asleep during thetrial. The jurymen have come to know the names of the opposing lawyersand the faces of the clients, if they have been pointed out during theexamination of the jurors, but nothing more. Are the jury to hear astory of bitter resentment or of passion and crime, or a calm demandfor the payment of a debt? The opening will show. 

Did the plaintiff during years of effort build up a business and takethe defendant in as a partner only to be defrauded by him? Plaintiff'sattorney will indicate the years of effort briefly, but impressively, before sketching the manner in which the defendant stole from him byfraud the fruits of his labor. When the plaintiff then testifies thatin 1890 he opened a small store in Fourteenth Street, moved in 1896 toTwenty-third Street and thence in 1916 to an up-town street off theAvenue, the dates will sink into the jurors' minds and they willportray for themselves the twenty-six years of painstaking effort. Noeloquence then could rival the effect of the witness's slow, barerecital of his progress. Yet without counsel's prologue what could bemore dull than the naming of street numbers and dates?

The matter of the testimony may be interesting, but unless the witnesshas a rare gift of expression and a sense of the picturesque, the wayin which it will be given may be dull and plain. But at this point thelittle keen-faced lawyer for the other side jumps up and interrupts:"I object, your Honor; what difference does it make where he lived in1890, whether on Fifth Avenue or Mulberry Bend? What we want to knowis what he is suing for now. " And the court will probably rule withhim and keep the plaintiff down to more relevant facts. 

Some of the important answers may be yes or no. Counsel in such a casesupplies the color and gives an appearance of life to what is actuallyalive enough, but which alone would seem dry. Even if so famous acharacter of fiction as "Becky Sharp" came into court and only lookedher part with what intense interest would we not hang on hertestimony, though it consisted of no more than "Yes, I did"; "I neversaw him before. " We should be fascinated by this bald statementbecause Thackeray had interested us so enormously in the lady. The airwould be electrified by the force of her personality. Without aprevious introduction, however, we might be so lacking in discernmentas to find her, in appearance and voice, no more unusual than theaverage witness who goes on the stand. 

Thackeray not only created Becky Sharp; he also created our interestin her. Similarly the lawyer may create an interest in his witnesses, some of whom may be personally every bit as extraordinary as anycharacter in a novel. If a witness be actually commonplace, there isall the more need for making him vividly human; if he be so colorlessthat nothing could be made of him personally, he may acquire interestthrough the class to which he belongs, for classes have a personablecolor more deep than the almost colorless individual. 

To induce the jury to visualize the story and the characters, thehighest literary gift may be brought into play. The lawyer is limitedas to time and the description he may employ. He has, however, hisvoice and expression: an actor's tools. But again the rule ofsimplicity and naturalness should apply. 

The opening speech is a prologue and it does not argue. Counsel willnot be permitted to argue his case in his opening, for his opponentwill object and the Court will often say, warningly, "Counselor, youare summing up. " This limitation, however, is in reality an advantage, not merely because it applies to both sides, but for the reason thatno lawyer with any sense of dramatic values would anticipate his_dénouement_. Argument is apt to be chilling unless the decisionsought for can be discerned, however dimly, without it. And how arethe jury to frame their decision before the evidence has beenpresented? The jury should be interested in Miss Becky Sharp andprepared to understand her testimony, but, before they have heard herstory from witnesses who know, they will not be favorably impressed byurgings 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 connectedstory, or tell it well. From the old French story of the lawyer whobegan _avant le création du monde_, and the judge who asked him topass on _áu deluge_, down to the usual modern method of nagging thelawyer into stating only the skeleton of the action, there are variousdegrees of eloquence, varying naturally according to the importance ofthe case. 

A wonderful thing the prologue may be in its restraint and picturesquevividness, and, not least, in its clarity. Confused business dealingsmay be described so that important sums, figures, and dates will beremembered and recognized when they appear again in the evidence. Counsel, for the time, occupies the center of the stage; his course isin 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 counseland asks him whether he wishes to state his defense. There is adifferent practice in this regard in different courts. Some insistthat the defendant ought to tell at once what his side is about, others that the defendant should wait until the plaintiff is throughall his evidence and has rested; then at the beginning of thedefendant's case the defendant's lawyer opens and makes hisintroduction. 

The difference between these two manners of proceeding is so essentialthat it may be explained. On the one hand the lawyer feels that heshould not be compelled to give away what he is going to do, how heproposes to meet the attack, whether he will lie in ambush and snipethe plaintiff as he comes on or intrench behind a rampart and meet himwith the full force of his battery of evidence. He may be planning tomake a sudden sally after the plaintiff has shot his arrows andexhausted all his ammunition. The lawyer feels if he tells his plan ofcampaign he loses the advantage of generalship. 

Suppose a simple case: The plaintiff is suing on a long account for abill of goods which will take a long time to prove. The defendant hasa receipt in full showing payment. On the theory that the defendantneed not disclose his evidence in the opening, he may sit still withthe receipt up his sleeve, let the plaintiff open and call hiswitness, the evidence may drag itself along with the usual motions andobjections, and after the plaintiff rests the defendant opens to thejury. 

"Gentlemen, " he says, "this is a simple case. The plaintiff claims hesold the goods and the defendant did not pay for them. I propose toshow you that the plaintiff was not telling the truth. I made himprove to you that he sold every item in the bill because I wanted toshow you how untruthful he is. My client, the defendant, not only paidfor the goods but I can show the receipt in full signed by theplaintiff. "

To the layman this is absurd. The defendant should have shown thereceipt in the first place and all the waste time of the trial wouldhave been saved. "No, " says the technical lawyer, "if I had disclosedmy evidence before, the plaintiff would have framed his evidence tomeet the situation. " The modern view is otherwise. In France, forinstance, no paper can be offered in evidence on a trial unless it hasbeen shown to the attorney for the other side beforehand and everyonehas had a chance to examine it. Indeed, this exhibition of originaldocuments is conducted in so open and honest a fashion that it iscustomary to send all the original papers to the other side withouteven taking a receipt or retaining a copy and in the whole history ofthe French bar the loss of such a paper has never been known. 

It seems more practical and sensible that the lawyers for thedefendant should be required to state the nature and detail the factsof his defense. It is the difference between the old idea of trial andthe new. The first was an imitation battle, the new idea is not thatit is so much a struggle as an investigation of the facts. If theplaintiff wants to meet the receipt he can make a counter-attack orexplanation in the rebuttal and explain how he came to sign thereceipt in full. The judge and the jury feel the necessary element ofthe trial is to arrive at the facts and that the planning and methodsof charge and counter-charge are not so significant. The oldconception of the trial as a battle is disappearing. 

The opening by the defendant at the beginning directly after theplaintiff has finished his opening and before a witness is called, makes the trial simpler to the minds of the jurymen who are to decidethe facts. The pleadings are supposed to define and state the issuesbut as they are usually technical they have become not sufficientlypliable. The defendant by his answer denies merely the facts stated inthe plaintiff's complaint in the paragraphs numbered six, eight, andten. The defendant on his opening should be compelled to make plain tothe minds of the jury what he intends to show. He should take theposition of a plain business man who says, These foolish peopleimagine they have a claim against me. They have nothing of the kind. 

The plaintiff says that he understood the contract to be so and soand that acting on that assumption both parties did certain things andknow the defendant with evil intent and wrongfully forgetting the dutyhe owes to keep his word refuses to live up to his agreement, therefore, "Gentlemen, we have been compelled to come to court andbring this action and we shall show you gentlemen facts from which youmust 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 thetwo counsels down to the facts which he thinks may be proved and fromwandering too far afield. As quickly as they are both through he says, "Call your first witness, " and with trepidation the witness takes thestand. 

X

THE CONFUSED WITNESS

The whole question as to witnesses is whether they shall be allowed totell what they want or what the lawyers want. As they are both in thecourt-room they must abide by the rules of the court. That is thetrouble: the rules are against the witness. 

When the witness goes on the stand for the first time the courtattendant asks her to raise her right hand. She does so and tries tosit down in the witness chair so that she may feel a little more atease. "Stand up, " says the officer. The judge looks at herinquisitorially over his spectacles. She tries to smile and regainsher feet. "Raise your hand, " says the judge. The delightful andsanitary custom of kissing the Bible has been done away with. Eventhe habit of resting the hand on the Book is disappearing and in manycourts a Bible is hard to find. 

The lady, in the confusion of appearing on a stage for the first timeand standing on a raised platform before an audience, holds up herleft hand. The court attendant jumps at her. The judge has seen thesame performance many times before and hardly notices the_contretemps_. By this time she is confused and ruffled and afterhearing something murmured about the truth, the whole truth, andnothing but the truth, she sinks into the chair and begins in a veryuncomfortable frame of mind the ordeal of giving testimony. 

What she wants to say, what she ought to say, what she was told to sayis all gone. The jury and the judge understand and feel sympatheticbut the rules of the court do not permit them to be polite, and to askher to take a more comfortable chair, to have some tea, whether thechildren have had any after-effects of the measles, or to take offher hat and stay a while. She knows she has to stay and that she isnot going to enjoy it. 

She is the important witness who was riding in the car at the time itcrashed into the grocery wagon. She is honest, of averageintelligence, and wants to tell the truth. She is asked:

"At the time of the accident, where were you?" She says that she wasin the car going up-town to see her married daughter whose childrenwere sick with the measles and she was in a hurry. The lawyer moves tostrike out the latter part of the answer. The fact that she was goingto see her daughter, that the children had the measles, and that shewas 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 wasgoing very slowly and the children would be asleep before she gotthere. It is immaterial that she was thinking about her grandchildrenor 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 toknow not what she thought, but what she actually saw. She will not beallowed to tell what she thought or what she told her daughter afterthe accident. The daughter can not be called to the stand to testifywhat her mother told her, when she reached her house, about what hadhappened. Newspaper accounts of the accident may not be allowed inevidence, nor what the policemen reported on the accident, because hearrived afterward. Anglo-Saxon law holds the proof down to what wasactually perceived by the five senses. The court makes up its own mindfrom these perceptions and the facts themselves. It does not want tohear 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. Abroader method to the lawyer seems shockingly loose and slipshod. Therules of evidence to the bystander seem an inhuman farce. The firstallows an atmosphere to be created from which the whole truth may bereached. Would not an ordinary person, if he wanted to find out aboutthe accident, read the newspapers, find out the police reports, askwhat a witness thought, what that witness told someone else about theaccident afterward? Is she not now giving someone an account of theaccident?

Psychologists agree that no one can accurately narrate theirperceptions and what happens before their eyes. Moreover, the testsperformed on school and college graduates in regard to their powers ofobservation have shown the fallibility of human perception. Thefailure to perceive, plus the failure to remember, plus inadequacy oflanguage, makes all testimony unsatisfactory. People of littleeducation are still less able to either see or explain. The only safeway is to obtain a composite photograph of the witness's mind and ofthe thoughts that arise from the original perception, a continuationof impressions. 

Judges or juries never determine cases by first deciding which witnessis telling the truth or at least the exact truth. They take it forgranted that both sides are lying somewhat; that no matter how wellthey mean and how hard they try, all witnesses are incapable oftelling the exact truth. The unfortunate part of the law is that thisis not officially recognized. There is a hypocrisy in not recognizingthe inadequacy of human eyes and ears to grasp even simple concretefacts. A timidity exists that will not allow the admission of humanimperfection. 

The proof of this is that when three witnesses go on the stand anddescribe a thing as having happened in the same way, immediately thereis 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 thedefense tries to prove an alibi by showing the defendant was in asaloon at that time. There may have been three witnesses who reallysaw him at the same time. One witness comes on the stand and says3:10, the next witness says he saw him at 3:10, and third says thesame. 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 saloonsometime that day, but he is not sure whether it was in the morning orthe afternoon, and the third witness says that he saw him during theweek, but that he does not remember the day, whether a Thursday or aFriday--it is probable that the defendant will have a much betterchance of succeeding with his alibi. 

The lady in the car could not remember the time of the day, exceptthat it was near the children's bed time. She had heard the crash andseen the wagon turn on to the car tracks. With a great manyobjections 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 hemay be correct, but if the judge has common sense he overrules theobjection. 

The proper question would be: "What happened next?" The witness, however, might remember the paper bag of oranges she was carrying toher grandchildren and instead of telling about the accident begin todescribe how she dropped them on the floor. Leading questions arenecessary in nearly every case. The reason that they are objectionableand ruled out is, that the judge and the jury ought to hear not thelawyer's narrative of the facts, but what the witness actuallyremembers. 

A witness on the stand appears at his worst. If any one from real lifewere suddenly thrust unprepared and unlearned in theatrical art upon astage the incongruity of the situation would be appalling. Yet thewitness is thrown into new and strange surroundings. It is a portionof the reality of life shown vividly against a conventionalizedbackground. The judge and jury in a vague manner understand this. Thelawyer producing the witness feels this and elicits the testimony in asoothing manner. 

The objects of cross-examination are as follows. The first is to provethat the story of the witness is not true, and the other is to bringout something new. The opposing counsel often forgets the purpose ofhis cross-examination and by attempting to bully and frighten thewitness, usually either by sarcasm or a doubting manner, accomplishesvery little. Not one cross-examination out of five hundred amounts toanything. The judge has heard many and he has little hope of theirbeing of much interest. The jury make so much allowance for thewitness being frightened on the stand and for the fact that she is inthe hands of a clever lawyer, that they are not much impressed evenif she contradicts herself or is proved mistaken. At best it is only amistake, not a deliberate lie. The lawyer thinks he owes a moralobligation to his client and to himself to cross-examine. He iscompelled to go on. There is a musty tradition of the law that a trialwithout cross-examination is not a proper trial. It is a legal fetishand one of the things that is done. The judge expects it, the juryexpect it, the client expects it and the public. 

The client pays his money and he ought not to be disappointed. If itwere omitted altogether, the judge and jury might not feel the loss sobitterly. Perhaps they might prefer it and the question for the lawyeris whether it is better to satisfy the client or the jury. In thisquandary the lawyer may forget that the main point is to win thebattle. When the case is lost the client does not care at all howbrilliantly 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 isnot telling the truth, have I much chance of getting him to confessthe fact?" The witness knows something about perjury. He is afraid andhe has heard about those pitfalls of cross-examination. Does thelawyer remember his own hopeful son and how only yesterday he couldnot get him to admit stealing the cake even with the prospect ofimmediately impending punishment? Only that little rim of chocolateabout the ears was the proof. Even the deaf little child, who is notas 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 whenthe investigator of the railroad came to see her, and in which shesaid she was sitting on the sixth seat, there is not such a great dealto be proud of. 

"Ha, Ha, " thinks the lawyer "at last, " "didn't you just now say youwere sitting on the fourth seat?" "I don't remember, " says thewitness. "What, " thunders the lawyer, "you don't remember; then yourmemory is poor. I will read you what you said on your directexamination, " and he does. "Now which was it, the sixth or the fourthseat. "

The other object of cross-examination is to elicit new facts. This isa 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 tellthe facts than to bring them out through an unwilling witness who ison his guard and thinking the opposing lawyer is trying to trap him. 

The mistake that most lawyers make in cross-examination is to ask thewitness to repeat what he said in his direct testimony. Telling thesame story over again merely accents the facts in the minds of thejury. The lawyer asks:

"You say that you saw the driver whip up his horses when the car was ablock away. " The lawyer may doubt the truth of the statement but themere repetition of the words affects the memory of the jury. Unlesshe has a distinct object in going over the testimony, either to showthe direct contrary strongly, or the fact that the witness has learnedthe testimony by rote and that the repetition is in exactly the samewords, the lawyer would do better to desist. 

Strange as it may seem the rules of evidence are actually based uponcommon sense. The ordinary experience of mankind gave rise to therules of evidence, but the difficulty is that the further experienceof civilization is giving rise to new rules which are not consistentwith the old. Nevertheless the present rules when reasonably appliedare fairly good. The question really is whether there should be any atall. 

Accepting the fact that there should be rules they are based on twoprinciples; the first is that only something which has to do with acase can be proved and second that it can be proved only in a safe andreasonable way. It may seem impossible to the lawyer and equally tothe laymen to state the rules of evidence in simple language. But theprinciples of common sense will govern in the end, as they have in thepast, 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 bethe very best that can be obtained and must be brought out in thesafest, clearest, and most authentic manner. 

Take, for instance, the rule that conclusions of the witness are notallowed. If the court considered as evidence that the testimony "thedefendant brought the goods and they were delivered, " and thedefendant came on the stand and said, "I did not buy the goods andthey were not delivered, " the court would have before it merely twocontrary beliefs or conclusions. It would be a case of "Katy did, Katydidn't. "

The rule of evidence is plain that makes it necessary for theplaintiff to show where he saw the defendant, what was done, and whatwas said or written by the two parties. If the question is as to thedelivery, it is not enough for the plaintiff to say "I delivered thegoods. " The court must have proof of the history of the goods. Thedriver 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 thehouse. 

The whole subject of expert witnesses is not so complicated after all. They are merely persons of exceptional experience who are allowed totestify as to something of which they know nothing. They may havenever seen nor heard the facts in dispute but because they have had somuch experience on similar facts they are allowed to say what theythink of facts produced by eye witnesses before the court. Asconclusions and opinions may be various, there is at times a greatvariety in experts, and because the very name of experts impliestechnicality, there is a feeling in the minds of the jury and thepublic, that the testimony of experts will befog by a mass ofnon-understandable terms. 

The doctor who testified in a case in which the plaintiff suffered asore back and had seventy-five dollars damages from the jury is anexample. He said:

"The plaintiff was suffering from traumatic sacro-illiac disease, traumatic sinovitis of the knee and wrist and from traumatic myositisof the muscles of the back. "

In reality the testimony of expert witnesses is very good evidence. Ifit is given in plain and understandable English and the jury think theexpert a clean-cut, sensible man, it is just what the jury want tolearn. An expert's method of reasoning about the facts in evidence isthe same as that employed by the jury in the jury-room. It is merelyan opinion; for on the opinion of the jury, based on the evidencedepends their verdict. 

While the witnesses are being examined, called to the stand, sworn, being excused, and being cross-examined, there occur numberlessincidents of the trial known as the objections, exceptions, andmotions. 

XI

THOSE TECHNICAL OBJECTIONS

These are the stage tricks and little incidents that give variety tothe performance. No drama would be complete without a few diversions. So far as the drama itself goes, they are of no great importanceexcept to give pungency and interest to the action. 

The lawyer asks an apparently good question. "I object, " says theother lawyer, "on the ground that it is incompetent, irrelevant, andimmaterial. " The judge has to rule. He may not exactly have heard thequestion. The stenographer reads it again. The other lawyer leansforward in a frenzy of fear lest the question be ruled out. He beginsto argue. 

"The question is perfectly proper; the witness ought to be permittedto answer it. " "No, " says the other lawyer, "it is improper in form, calls for a conclusion, and should not be allowed. " The judge lookspuzzled. "Read that again, " he says. The question is, "What kind of acow was it you saw in the plaintiff's garden?" "I still object, " saysthe lawyer. "The witness has not been shown to be an expert. If mylearned friend is going to attempt to qualify him as an expert, Idesire an opportunity to cross-examine him concerning his experiencein cows. " "Not at all, " answers the lawyer. "The question is entirelyproper and I stand on my legal rights. " The judge hesitates; if hedoes not rule correctly the lawyer will take an exception and theAppellate Court may not like it. So he says, turning to the witness, "You may answer, but I will reserve the question and decide it lateron a motion to strike out. " "I except, " says the lawyer. The jury lookrelieved. The witness straightens up, the opposing lawyer sits backin 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 argumentbegins all over again. 

Throughout the trial the client and the jury are waiting for theseobjections and exceptions. The nature of an exception is a noticeserved on the judge that his rulings are wrong. The theory is that ifhe wants to change them he had better do so before the case goes toappeal. It is a covert threat to the judge. There is a principle insome courts that no ruling that is not excepted to can be consideredon appeal; consequently a lawyer is careful to preserve his rights byexceptions. 

A young lawyer once had this principle so firmly fixed in his mindthat when he went to court he began taking exceptions to everything, even rulings in his favor. He would make an objection; the judgewould sustain it. "I except, " said the lawyer. He would make amotion; the judge would grant it. "I except, " said the young lawyer. The other side would make an objection; the judge would rule againstthem and in favor of the lawyer, "I except, " said the lawyer. Finallythe situation grew so strained that the judge called the young man tothe bench and spoke to him confidentially. His explanation was: "Thisis my first case and the head of my firm told me to be sure and takeexceptions to all rulings. "

Some lawyers are so in the habit of excepting, it sounds as thoughthey were hiccoughing. "Overruled"; "I except"; "Allowed"; "I except";"Denied"; "I except"; "Granted"; "I except. " It becomes a custom asconstant as the refrain in a comic opera. 

Theoretically it may have a sound basis under the law, but so littlepractical value has it that it seems ludicrous. The lawyers and thejudges consider it a matter of course. If the judge after all theargument finally decides to let the testimony as to the red cow stand, he will not be inclined to change his mind because the lawyerinterjects that threatening exception. The sound of the word isspiteful and seems to express the resentment of the lawyer at theruling of the judge. 

No example could be found in the thousand volumes of law reports wherethe judge changes his mind on account of an exception. The object inthis particular direction is vain. 

With regard to appeal; the Appellate Court that attempts to decide acase on the exceptions taken at the trial would have a difficult time. They would have to disentangle the mesh of evidence and find outwhether that important piece of testimony on page 204 was excepted toor not, then whether there was a proper ruling; refer to thestenographer's minutes and look at the important exception on page 59and again on page 106. Unless the question decided was excepted to, the Appellate Court can not decide it. It is hard to imagine that anycourt could be so rigorous and narrow-minded that they could hangjustice on such little pegs of exceptions, which the stenographer inthe hurry of the moment may have forgotten to insert. 

In the criminal courts there are no exceptions on the part of thepeople, because there are no appeals on behalf of the State. Thedefendant continues to repeat "I respectfully except. " "I must insiston my exception. " Think of a man being jailed for seventeen yearsbecause 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 cannot understand the evidence as a whole. 

Exceptions are the tacks and pin pricks of a trial. They are of solittle value in the main structure of the drama that if they areforgotten by either side, the court should provide them with a bushelbasketful which could be distributed by the handful wherever thelawyers thought they would be useful or pleasant. 

Objections are of three main kinds: irrelevant, immaterial, andincompetent. They are like the magic words that open or unlock thedoors of evidence and let it in or keep it out. They have threedistinct meanings which lawyers understand. A thing may be immaterial, but not incompetent, or incompetent and not immaterial, or irrelevantand not immaterial, or irrelevant and not incompetent, or incompetentand not irrelevant, or one or both or not at all. Any student of lawcan fully explain the difference, but the distinction is immaterialand irrelevant, and if the reader is in doubt let him ask any lawyerfriend 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 suggestionswhich may be considered by the judge, such as "the question is leadingand suggestive; grossly improper; calling for a conclusion; objectedto as argumentative or because of its ambiguity. "

Whatever the trouble with objections may be, it is neither the faultof the lawyer, the judge, nor the witness. When certain evidence isnot allowed by law it is proper that it be objected to. Unreasonableand often comical as objections sound, the basis of their existence inlaw is that the court wants the best possible proof. 

Instead of a copy of a letter the judge and the jury ought to see theoriginal. Instead of the copy of a will the paper actually signed bythe testator is wanted. Suppose a question arises as to the payment ofa 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 witnessto whom he came afterward and said that he had been down to the storeand had paid the bill is not so accurate a witness as the man who wasin the store and saw the money paid over. It is to keep out thispoorer proof that objections are made. 

If the objection is good, the judge says "Objection sustained, " or ifhe thinks the evidence the best he allows it and says "Objectionoverruled, " then the witness may proceed and answer the question. Unless the lawyer objecting states the ground or reasons for hisobjection, the objection is not supposed to be valid for the otherside ought to be apprised of the reason so that he may supply theproper 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, andimmaterial might, so far as the average man is concerned, read"incontepent, " "irrevelant, " and "immature. " The words when repeatedtogether seem like that old legal term "incorporeal hereditaments. "They are imposing and add tone to the trial. The solemnity ofrepetition is always a valuable asset. The real value of the wordirrelevant 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 throughsits down. This gives the appearance of constantly jumping up but isonly 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 dueto the dignity of a court and how much form and manners must besacrificed to efficiency of business. The judge who said that he didnot hear the constant objections of the lawyer because he made hisobjections sitting down was not so much an adherent of good form as aprotestor 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 numerousdetails be given to the court? If that is the correct idea, a generalknowledge and atmosphere may be derived from all the surroundingcircumstances and then there would be no objections. If the strictinterpretation of the law be followed limiting evidence to only whatis 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 andthe pendulum is bound to swing far in the opposite direction. A mediummay not easily be reached, and the only test is the common sense ofthe average. 

On the question of time and whether the abolishing objections andletting in all evidence would not be shorter, there is much to besaid. It might take less time for the witness to recount the death-bedscene of his wife's sister's brother-in-law's aunt, than for the courtto hear and pass upon all the objections and arguments as to theadmission of the testimony on the red cow. 

As the jury listen to the objections and exceptions they become moreand more impatient. The restraining influence of the surroundings, thefact that they are impaneled in a box and that they are a part of, thedrama keeps them silent. They cannot break out in revolt at thebadgering of the witness. They can say nothing about the absurdobjections that are interrupting the proceedings or the spitefullittle exceptions that are being thrown in, but can only quietly storeup an increasing mistrust of the whole method. When the lawyer objectsso strenuously the jury thinks he must have something to conceal. Yetwhen the objections are made they have a certain effect which is notat first realized. A question is asked that is to the jurymanperfectly sensible, but which is absolutely inadmissable under therules of evidence. For example, the lawyer asks, "What did you tellyour wife about the accident when you got home?" Any reasonable manknows that what he tells his wife is very important and bears on thequestion of his veracity. The other lawyer very properly objects. Thejury thinks there must be something in it. The lawyer asks again, "Didn't you tell your wife the horses were going very fast?" The otherlawyer is on his feet. "I object, " he says, "and I must ask your Honorto instruct the counsel not to ask questions that are manifestlyimproper. " The Court rules in favor of the objecting lawyer. Headmonishes the lawyer and instructs the jury to disregard thequestion. Yet what is the effect? The jury believes unless the lawyerthought the answer would be most unfavorable to his side he would nothave objected to it so strenuously. The impression remains on theminds of the jury that there was a good deal to that question of whathe told his wife. 

It is for this reason that when the lawyer keeps on askingobjectionable questions, the judge will sometimes declare a mistrialor allow one side to withdraw a juror, which is only a polite way ofsaying 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 acase. 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 atgreat expense and trouble to get his witness and the lawyers' time isvalued at so much per trial day. On the other hand the defendant atthe worst can only have a judgment against him, which may as wellhappen at another time. He is willing to have the case declared amistrial and start anew; he knows it will take a long time for thetrial to come up again. It has been a dull grilling proceeding, but hedoes not care so long as there is a chance of postponing the judgmentagainst 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 fairtrial, that he can not proceed. But suppose the defendant by hislawyer makes the trial unfair. His lawyer keeps asking those improperquestions which imply so much to the minds of the jury. The judge mayspeak severely to the lawyer and caution him not to keep on puttingsuggestive questions. That is all that he can do. It would be plainlyunfair to order the withdrawal of a juror. The trial according to theopinion of the judge may be unfair. The plaintiff's counsel is afraidto ask for a mistrial, first on account of the trouble and expense tohis client, and second, if it be denied, the jury will believe hethinks them unfair and does not want them to try the case. The judgeis in a curious position with regard to objectionable questions andtestimony, he ought not to penalize the plaintiff by punishing thedefendant. The loosening of the laws of evidence might do away withquandaries such as these. 

XII

THE MOVEMENTS IN COURT

Motions imply movement and action especially in a drama, but in acourt motions are the reverse and occupy the place of dramatic pauseswhich delay the real movement of the play. They are of great interestto the lawyers, of some interest to the judge, because he has at onceto pass upon them, of but little interest to the client, who does notunderstand them, and of no interest whatsoever to the jury, exceptwhen they result in the disposal of a trial. 

Before the case begins the defendant makes a motion. When theplaintiff's lawyer has finished his opening, the other side makes amotion to dismiss the case. When he ends his evidence, the otherlawyer moves to dismiss. When both sides are through, each moves. When the jury bring in the verdict either side may move, or both whenneither is satisfied. All through the trial there are quantities oflittle motions. Motions to strike out, motions to instruct, motions tomake the witness answer a question, motions to make the other lawyerbehave. Except for pointing the finger or raising the voice intalking, they are not movements, they are only verbal, the actioncomes in the play of emotions of the parties in court. Motions aremerely saying what either side wants; the formal asking for something. 

The first important motion is on the pleadings themselves or when theplaintiff has opened. If the judge does not believe that the plaintiffhas stated a case in law, he dismisses it on a motion of the defendantand the judgment is "without prejudice. " The trouble is that ajudgment of this kind does not finally dispose of the dispute. Theplaintiff may bring the action over again. 

He may appeal from the decision or judgment and the appellate courtmay rule that the trial judge was wrong and then after an intervalthe case goes to a new trial just the same. By this time the plaintiffor his lawyer may believe he has no case and desists, but the coursedepends upon whether the parties have not died, grown tired, gone intothe hands of a receiver, or moved to Borneo. The jury know little asto this state of affairs and are not interested in the preliminarymotions. The clients do not understand but think the lawyers are goodtalkers. 

The lawyers are interested in the point of law and believe so stronglyin their case that if an adverse ruling comes they are shocked andsurprised. The judge knows that although he grant the motion todismiss, he will probably allow an amendment. He is not greatlyconcerned unless he foresees a possibility of settling the disputedefinitely and going on to the next case. He is anxious to try thepresent action and get down to the meat of the matter but really ifthey are going to insist on all technicalities he feels a littleimpatient. 

He knows that even if the defendant is right and the pleadings aredefective because the stenographer forgot to insert a date, it canstill be put in. Recent legislation has found it necessary to say thatthe courts should allow amendments of pleadings where "SubstantialJustice" will be accomplished thereby. It is a commentary on thesystem of the courts that the people through its legislatures shouldfind it necessary to pass a law that judges should amend paperpleadings in furtherance of justice. If justice and right depend uponpieces of paper to such an extent, the dry formalism of the courts isa matter of regret. 

The next important motion is when the plaintiff has put in hisevidence 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 theground that the plaintiff has not made out a cause of action. He hasnot shown that the cow was owned by the defendant, or he has notshown that the driver of the plaintiff was free from contributorynegligence, or he has not made out any kind of case at all. "

This is an anxious moment for the young attorney. Did he forgetsomething? What was there that he did not remember? Will the case bedismissed because he forgot to tie a shoe lace or put in a pin? If heis more experienced in court work he will not be so worried. The lawis that the plaintiff must be given every chance at this stage of theproceeding. Only when both sides are through does the law begin toweigh the evidence. At the close of the plaintiff's case everything isin his favor. Any particle of testimony is sufficient on a particularpoint. The theory of the law is that both sides must be heard. If themotion to dismiss is made on the ground that something has been leftout, the court will usually give an opportunity to prove to whom thered 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 theorythat the judge may think there is no case and that the plaintiff cannot make out a case. If he so decides, the case is finished, the juryis discharged, and the client has his feelings hurt by being thrownout of court. 

From a decision of this kind there is also a right of appeal which mayresult in a reversal. Then the new jury is impanelled, the witnessesare recalled, and the proceedings are gone over once more. If thedecision or judgment is affirmed, the case does not usually come upagain; the higher court has said the plaintiff has no case on theevidence, and unless new evidence is produced he can never recover. Incertain accident cases the appellate courts have stated they would notgive their reasons for dismissing the complaint after the evidence isall in because, they say, if they did so they were afraid theplaintiff would supply the missing links by manufactured evidence onthe next trial and not quite honestly. This again is a commentary onprocedure. 

Just at this point is where the law of the case comes in soinsistently. Before the case comes to court the lawyer is supposed toknow whether his client has a right of action. Every state of facts ora breach of those rights does not give rise to an action that can bemaintained in a court of law. If you ask a man to dinner and heaccepts, but does not come, you can not recover your damages forproviding the dinner; or if you fall down your own well, you can notsue the man who built it. The lawyer is supposed to have carefullyconsidered what elements of fact make an action. If the factsthemselves 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 isalso dismissed. 

But as was said above, if the train of facts or those in the pleadingis 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 isknown as the theory that every man is entitled to his day in courtand the day being had it is unfair to bring the other side in again onaccount 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 anordeal by battle. The little advantages that are gained by sorties andsurprises and which are usually taken advantage of by motion, areafter all not of great moment. 

An anomalous situation shows the absurdity of these motions, for whenthe plaintiff rests, unless the defendant makes a motion to dismissthe plaintiff's case, he is supposed to admit that the plaintiff hasmade a good _prima facie_ case, and if he does not move he is foreverafter, on appeal or otherwise, prevented from claiming that theplaintiff did not make out a good case. The result is that at theclose of the plaintiff's case the motion is usually made as a matterof form to preserve the defendant's right. 

Usually this motion is denied if there is a possibility of making acase, but suppose the judge either through ignorance or to be obligingshould say, "Well, the plaintiff has made out a good case, but if youask it, the blood be upon your own shoulders, and I will dismiss thecase. " The defendant does not want it dismissed but he has asked forit and he has got what he asked for. The result is an anomaloussituation. The case will undoubtedly be reversed and he will bemulcted in costs for being compelled to ask, because of the formalismof the court procedure, for what he did not want. 

At the end of the defendant's case, when both sides have rested, thedefendant again moves to dismiss. Here again it is a formal motion, which he may not altogether mean, but which the lawyer often makes asa matter of form. If the judge really believes there is not enoughevidence to let the case go to the jury, he ought to say so withoutthe 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 thejudge does not know his business and the fine point of law is notentirely clear to his Honor, and he makes a mistake and the case isdismissed. The result is that although he has granted the motion ofthe defendant to dismiss and given the defendant what he wanted, hehas in reality penalized him, for the appellate court will reverse hisdecision and the defendant have to pay all costs and stand the expenseof a new trial. The judge is in a quandary, which he may get out of intwo ways. One is to let the weak case of the plaintiff go to the jurywith the hope that they will see what a poor showing the plaintiff hasmade and find a verdict for the defendant, in which event he will besafe. But if the jury should make a mistake and find for theplaintiff, then the judge has the intention of setting that verdictaside, nullifying all the work of the jury, the witnesses, theclients, and the lawyers, and ordering a new trial. This is rather aweak-minded proceeding and shows the necessity of having a man in thereferee's chair who knows how to decide. 

The second alternative for the judge is to reserve decision on themotion and to let the jury go into the jury-room and worry about theverdict for an hour or two, while the judge has the hidden intentionof perhaps deciding that they need not spend any time at all about thematter. 

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 andevidence there is not enough on the part of the plaintiff from whichany reasonable man could ever find a verdict for him. The motiondiffers from the one at the close of the plaintiff's case in that thelatter is based on there being no proof at all, while the one afterthe case is entirely in is based on the theory that there is nopossibility of a verdict. 

This sounds again like a metaphysical discussion, but is illustrativeof the futility of formal motions, so that actually the decisiondepends upon the good plain common sense of the judge. The tendency isthat if the case has gone to the length of a full trial and there isany question of fact involved, that the jury should determine thequestion of fact and exercise their functions. It must be a poor weakcase of the plaintiff and evidently unsound, in which the judge or theappellate court interferes. 

Throughout the trial the little motions that occur bear the samerelation 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 whatwere stated in the pleadings. "I move to amend the pleadings toconform 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. Butif the other side wants to find out how he tried to stop the car, lethim ask what was done. "Did he turn on the brake handle? Did he switchon the emergency?" A man does not have to be an expert to say that thecar was going fast; he may be examined as to what he considers to befast. 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 manhas a broken leg or looks sick or acts queerly, that the fish is staleor the cow was red. 

The motion to strike out does not affect the jury, the testimony stillremains on the jurors' minds. The verbal memory stays. Neither doesthe motion to amend the pleadings affect the jury. What have they gotto do with it? If the papers are amended it is not important fromtheir standpoint. Should the plaintiff have written a letter that hewas going to sue for something, to the jury that seems better than anypleading. 

These motions are insignificant and examples of a formalism which, however valuable it may be as defining the methods of the legalbattle, are not consistent with the modern spirit of investigationinto facts. It is rather significant that the laws creating PublicService Commissions and Legislative Investigation Committees in someStates go to the length of stating that there shall not be any rulesof evidence such as are employed in the courts of law. 

The other motions, such as to direct a verdict, which is usually thesame as a motion to dismiss, and the motions after a verdict has beenrendered, are also formal statements of a request for the dispositionof the case. 

They may be all very good and useful in their way, but are merely theincidents and measures by which the truth of the matter is reached. The client looks puzzled at the argument and the decision, the jurorshave a not very clear conception of what is going on, the lawyers havea meretricious feeling that perhaps they are cheapening themselves alittle by making so many motions, yet they, nevertheless, have a legalright to do so and they must take advantage of every legal right forthe protection of their clients. 

After all the witnesses have been called, the plaintiff and thedefendant have proved their sides, the plaintiff has contradicted thenew evidence of the defendant, everybody has been examined, theinterruptions of the objections and motions, exceptions have been had, the judge asks if both sides are through and the presentation of thecase is ended. 

The course of justice has been on a rough and rather narrow road. Thepopular revolt at the method of arriving at the truth is, in fact, atthe narrowness of the way. The presentation of a case and the means ofreaching 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 oldtown should give place to the open, smooth, and broad avenues of themodern spirit. 

XIII

ELOCUTION

At last when both sides rest and the judge has passed on the latestmotions, the intense action of the drama begins. For this the clientshave been waiting, the lawyers have been training. It is theopportunity for them to display their attainments, to show theirclients what brilliant lawyers they have retained; to let the judgeknow how well they have understood the case; to move and sway the juryto their side; to unravel the mysteries and by the power of oratory tobring justice where she belongs. When his lawyer is talking, theclient watches him with admiration, but while the opposing lawyerspeaks the client can hardly conceal his contempt. He feels that hiscase is secure and he does not understand how there can be anything tobe said on the other side. Yet he is fearful there may be some courttrick 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 ofcourtesy for the eloquence of the summing up, is meant solely for thejury. The judge is only supposed to listen and restrain the attorneysif they go too far afield in their attempts to influence the jury bytheir efforts. The judge is the time keeper or referee and holds thelawyers to the point. 

The object of the attack is the jury. As the burden of proving a caseis on the plaintiff, he is supposed to have the first and the lastword; therefore, the defendant begins to sum up. After he is through, it is the turn of the plaintiff. The tactical position is in favor ofthe plaintiff. The advantage, as in all verbal disputes, is reputedlywith the man who has the last word. In all debates the proponent hasthe right of opening and closing. The plaintiff began the case withhis 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 thinkstheir case is so plain and convincing that it will not be difficult toexplain. The lawyer girds up his loins, the court-room quiets, thestruggle of conflicting evidence is over, the clients and witnessesretire from the foreground, the other counsel sits down and the lawyersteps close to the jury-box. 

"The jury is yours, " says the judge, as though he were abandoning thejury. Indeed the summing up is an attack, a vivid, keen, masterlystruggle in which wit and brain is pitted against wit and brain: wherefacts and passions are to be marshalled in the most intelligent andplausible way, where imagination and oratory are to be employed intheir finest capacities. It may be bold, manly, energetic, or soft andpersuasive; it may appeal to sympathy or threaten with a battery ofaccumulated facts. Forensic oratory is the highest type of art, themost powerful of human gifts. The only trouble with most court oratoryis that it is only fit for the market-place. The lawyer begins withthe firm impression that he must win the jury. His voice is bland andsoothing, he feels that he must be soft and persuasive. He rubs hishands and remembering the old adage, that laugh and the world laughswith you, attempts a little joke. There is nothing so good as to get asmile for his side. Perhaps the joke does not go very well and thelaugh does not come; the point has missed. He will try what flatterycan do. 

"Men of your intelligence can readily see, " he says. 

"When I was examining you, " he explains in a subtle way. "I knew atonce how unprejudiced and fair-minded you were. "

"You gentlemen are practical men and can understand. " Yet somehow thejury 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 intoa frenzy of feeling. He swings his arms, pounds with his fist, raiseshis voice, and thunders his denunciation. His speech takes on athreatening tone. He shouts and bawls; the jury must be waked up. Theysit stolid and unmoved. He tries to catch their eye, there is no gleamof interest. Perhaps he has rather a hopeless feeling that the art oforatory is not what it is reputed to be. The jury look particularlyunresponsive. Even that one little juror, with the clever, smart face, who is leaning forward with such an expression of enjoyment may not bealtogether trustworthy. The lawyer has seen that kind before and theone juror who seemed the most interested in the last case he arguedwas the very one who held out against him in the jury-room as he foundafterwards. It seems a difficult matter to stir the jury and the menin 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 thetrial they can understand; they have not clearly comprehended whatwent before. When the objections were being made and there were thecross-examination and badgering of witnesses, they could not separatein their minds the functions of the lawyer and the personality of thelawyer. It seemed as though he were doing a good many unfair thingsand not acting quite up to the mark, but now the atmosphere hascleared. They can realize that he is only the paid talker for hisclient, that he is only making all this noise because that is hisbusiness. To the jury he is the pleader employed as an actor. Theposition is simple; if any one would pay them for acting andgesticulating at so much per day or per hour, they would be very gladto earn the money. 

The client watches the lawyer with affectionate admiration. True, hedid not do exactly as he was wanted during the trial. He should haveasked those questions he suggested, but now he is doing grandly. Whenthe lawyer is through the client feels splendidly. He sees but oneside of the case and believes in it absolutely. With such a goodtalker the jury cannot fail of being convinced. 

When the lawyer sits down the client shakes him by the hand and tellshim how well he has done. He might have been willing to settle thecase 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 theamount of the thousand dollars which he was willing to pay, he feelsterribly disappointed. There must have been something very much amissin 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 wasalert. True, the charge is coming afterwards, but he knows fairly wellwhat he is going to say, and it is going to be formal. It is thefunction of the judge to control the address of counsel, but thecounsel are sometimes very hard to control. 

In the criminal trials, reference is made to the emotions of thedefendant's family; the devoted, anxious wife, the poor littlechildren who may bear the stigma of their father's disgrace, shouldthe verdict go against him. Since the domestic life of neither partyto the trial has appeared in evidence, such things being entirely"irrelevant and immaterial, " it does not make a great deal ofdifference whether the picture is accurate or wholly fanciful. Thedefendant may be a drunkard, a burden to his wife, and a horror to hischildren; he may have abandoned his family to their own resources; itis possible that he has never had any family at all. The lawyer has noright to refer in his summing up, or otherwise, to anything that hasnot been properly submitted in evidence. He is guilty of unfairpractice in telling the jury about the defendant's family orcircumstances, unless this has been part of the case, which isimprobable. He knows this well; so does his opponent and the judge. And should the opposing lawyer protest, the judge will say, lookingup, "Be careful, counselor, be careful. " The counselor bowsrespectfully and probably goes on in the same vein. The judge has notheard exactly what was said and feels that the lawyers, if they arenot too blatant and noisy, may say what they please. There must not betoo much talk about the wicked, money-grabbing, soulless corporation, not too much appeal for the down-trodden poor, nor an over indulgencein personalities. The lawyers must not call the other side liars andthieves too openly. That is, they may say they are untruthful, butliar is too strong. The denunciation must be a little restrained. 

The judge throws out a rather mild admonition. "The counsellor mustkeep to the evidence. You may not refer to matters which are notbefore the court. " The lawyer says, "Yes, your Honor. " The judgewithdraws again into a contemplation of the high cost of living andhis diminishing bank balance. The shouting and vociferation growlouder. The jury are long-suffering, but they cannot object. The otherlawyer jumps up, and after an insistent effort makes himself heard. "The witness did not say that; you are stating something that is notso. I ask to have the stenographer read the minutes. " The stenographerbegins turning over the pages of his stenographic book. The exacttestimony of the lady in the car is hard to find. "Heavens, " think thejury, "are we going to have the whole case over again?"

The lawyer who is talking complains, "If my friend is going to keep onwith his objections I shall never get through in my fifteen minutes. "The stenographer has not been able to find the exact spot. It isapparently not in the testimony. Then the lawyer objecting says, "Iask your Honor to instruct the jury to disregard the statement ofcounsel. " The lawyer must have a sarcastic vein of humor. Such aninstruction does not seem necessary. The judge says, "I will coverthat in my charge, but I must ask the counsel to be careful, " and helooks warningly at the clock. 

Finally the hands point to the agreed time. The judge says, "Your timeis up, counselor. " "Just one minute more, " says the lawyer and then hegoes on for three. The judge raps on his desk. The lawyer winds up hisspeech in a hurried peroration. "Therefore, gentlemen, with the utmostconfidence in your ability as men of experience and affairs, with thesure belief in the justness of my defense, I leave the matter in yourhands. "

The plaintiff's lawyer now takes the floor, the jury shift their feetand glance at the clock. "Gentlemen of the jury, " he begins. Heprobably leaves out the judge. The plaintiff now having the attack ismore direct. It is rather significant of the change in all procedurethat the language of all court addresses is becoming more and moresimple. The old days when the lawyers delivered homilies of Latin havedisappeared. No longer does the lawyer refer to _nunc pro tunc_, ormake facetious jokes in a language the layman and probably the courtdoes not understand. If a lawyer makes too many Latin quotations, thecourt thinks him affected. He must be simple, direct, and to the pointat issue. 

His art in presenting his case consists in drawing the picture of thefacts so vividly that they will remain in the jurors' minds. Employinghis imagination in forming the concept, he gets it across the rail tothe jury by the fine gift of selecting words and incidents. No one, itis said, is ever convinced by argument, but any one can realize avisualized 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 notaccomplished by denunciation. The majority of the jury are rathereasy-going, kindly men, who do not care to hear others made too vile. Just as satire is more effective than direct abuse the tolerantjuryman prefers to have the other party laughed at than called names. 

The clients become worked up over their wrongs and excited by theirlawyers' oratory. When the case is over they are extremely surprisedto see the men who have been shaking their fists and ready to springat one another's throats, quietly lock arms and go out to lunchtogether. It is all in the day's work and they must fortify themselvesfor the next trial. The shock is something like that when, after amelodrama, the heroine having jumped over the bridge and died in awhirlpool, comes out quietly and, in spite of her suffering, bowssmilingly before the curtain. 

The judge and the jury know that the lawyers are coming to life againand are not really trying to kill each other. This is one of thepleasantest aspects of the life in court. There is a good fellowshipbetween the two lawyers who have been so keenly struggling. They evenhave a kindly feeling toward the judge when he is off the bench. 

The court attendant calls the attention of the lawyer to the time, whowith a sidelong look at the clock, also "Confidently leaves the casein your hands, gentlemen. "

The two lawyers sit down and the judge puts on his spectacles, gathersup the notes he has been making of the main points of the trial, andturning to the jury begins his charge. 

XIV

THE HEAVY CHARGE

No, madam, the charge of the judge does not mean his bill for expensesor his salary for trying the case. A charge implies something grave, heavy, and aggressive. It is what the judge tells the jury about thecase. It is never light or humorous, but ponderous and hard tounderstand. The court-room doors are locked, no one must come in or goout during the charge. 

The judge looks solemnly at the jury, the jury straighten up from thedesponding attitude they gradually have assumed during the address ofcounsel. 

The end is near and they begin to have hope. They appear interestedand a gleam of awakened intelligence is in their eyes. Now at leastthey are going to hear what they wanted to know about the case. Thejudge will probably tell them something new and clear up the pointsthey did not understand. It may be even he will explain why he madethose strange rulings during the trial and what that mysteriousconference was when he called the lawyers to his desk and they talkedtogether for so long. 

The judge begins: "Gentlemen of the jury, the plaintiff in this caseseeks to recover, " and then he goes on to tell them what the plaintiffwants, which is just what the plaintiff's lawyer has been tellingthem. The judge must have been asleep while he was talking for he issaying the same thing over again, only in a little different language. After that the defendant's case is set forth. There again that is whatthe defendant's lawyer was saying. It does not appear reasonable thatthey are compelled to hear six times what the case is about. Therewere the two openings of counsel at the beginning, the two summing upat the end, and now the two explanations of the judge. There ought tobe an allowance made for the jury possessing a little intelligence. 

The judge then tells again what the witnesses have said, in not quiteso 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 testimonyrather than by what is said by either side in summing up or by theCourt. " If he means that he should have kept still and let them havetheir own recollection. 

Then he goes on: "If you believe any witness has wilfully testifiedfalsely as to a material fact, you may disregard that witness's wholetestimony. " 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 tellingthe truth. They are not quite so stupid as not to know that. Thereseems no need in insulting them by telling them that they need notbelieve a witness unless they want to. Why are they there?

The judge tells them that the function of the jury is to decide thefacts and for him to decide the law. That is fortunate, for they couldnot understand the law, even if they wanted to; it is a silly businessand it is not common sense. What the jury feels is that the judge'scharge is leaving it to them without any trouble about the law. Butwait a moment, the judge is going on to tell them about the law asapplied to the particular facts before them. 

The important principle of law they are being told is what is known asthe preponderance of evidence and the burden of proof. The judge goeson at great length about the weight of evidence. The weight ofevidence, he says, is the preponderance of proof and the preponderanceof evidence is the weight of evidence, and the man who has the burdenof proof must have the weight of evidence and the weight of evidencebeing the preponderance of evidence is also upon the man who has theburden of proof. And the preponderance of evidence does not mean proofbeyond a reasonable doubt, as in criminal actions, but that the proofmust be heavier on one side than the other and the one who has theburden of proof must sustain the preponderance of evidence. That isthe law; the judge has said it. What it means the jury give up. Thelawyers nod their heads wisely. The judge has stated the lawcorrectly. 

The judge may go on a little further and tell them more about theburden of proof and the preponderance of evidence. He may say that theweight of evidence does not mean the number of witnesses. The merefact that one side has six and the other side only two does not meanthat the jury are to believe the side who has six. The jury know thatwhen probably they are all exaggerating somewhat they are going todecide the way the thing happened. Then the judge tells them, havingseen the witnesses, "That they may consider their bearing on the standand their manner of giving testimony. " Surely they are going to dothat. Is not the best way of knowing whether a man is telling thetruth to look at him and watch him while he is talking? There islittle sense in the judge advising them to consider his bearing on thestand. 

Another thing the judge says is that they are not to be governed bysympathy or prejudice in arriving at their verdict. This is a cautionthat the judge thinks necessary. He forgets that when they are in thejury-room, with locked doors and no one to disturb them, they aregoing to do exactly as they are inclined. Prejudice and sympathy arefor unintelligent people who do not know what they are about. Bothlawyers have been telling the jury what intelligent men they were andit seems unnecessary for the judge to say that they are not to begoverned by prejudice and sympathy. Suppose the defendant is a richcorporation, 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 pocketbetter than the poor man anyway. Not that they are going to decide forthat reason. 

As these accumulating evidences of the judge's misunderstanding oftheir attitude of mind pile up, the jury sink back into their seats. After all, the charge of the judge is not more understandable thanmost of the other parts of the trial. The saving point about it isthat the end is drawing near and they can soon get away and have asmoke in the jury-room, and afterwards go home. 

The judge, while he is charging, understands a little of what has beengoing on in the jury's mind. He has seen the gleam of interest whichwas in the jury's eyes at the beginning gradually die out. He noticeshow they fall into resigned attitudes. He has a glimmering that thegood old legal aphorisms which he has been enunciating with such careabout the burden of proof, the weight of evidence, the credibility ofwitnesses and the caution about sympathy and prejudice, are not veryconvincing to the jury. But the conventions require that he must goon. 

"Gentlemen, " he says, "I must instruct you to eliminate from yourminds any discussion of counsel upon questions of law or rulings ofthe court upon the rejections of testimony, or decisions upon motionsto dismiss or direct. They involve matters of law with which you arenot at present concerned. In arriving at your verdict you are toconsider only the evidence. "

Perhaps the judge feels a trifle foolish and therefore he becomes moreemphatic and solemn. He carefully and in a painstaking manner definesthe law of negligence. He tells them the law of negligence involvestwo cardinal principles. "The first is that the plaintiff mustestablish that the defendant by its employees was guilty ofnegligence, that he failed to act as a prudent and careful man;second, that the plaintiff must have shown himself free fromcontributory negligence; that unless the jury find both of these, thatthe plaintiff cannot recover. " Then perhaps he interjects a littlemore about the balance of proof as to these particulars. "If the juryfind the plaintiff was negligent and the defendant was negligent, theymust find a verdict for the defendant. If they find the plaintiff wasnot negligent and the defendant was negligent, then they may find averdict for the plaintiff, provided they find, etc. , etc. Otherwiseshould they find the plaintiff was not negligent and the accidenthappened not through the negligence of the defendant, then again mustthey find for the defendant, or again--" but the jury by this time isexhausted. The alternatives do not interest them. The judge may knowwhat he is talking about, but they do not. The interesting question ishow 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 ofcharges to juries which he has more or less learned by heart. Thereare so many glittering and vague generalities about the law ofnegligence, the law of contracts, the law of evidence, the burden ofproof, or the weight of testimony, that he could go on indefinitely. The jury have ceased to understand and the judge realizing thehopelessness of this situation, winds up by saying--"So, gentlemen, bearing in mind what I have just told you and the evidence in thecase, you will retire and consider your verdict. "

The jury begin to gather their hats and coats, when up jumps one ofthe lawyers and says: "One moment, please. I ask your Honor to chargethat if the jury find the cow that was in the plaintiff's garden was awhite cow and not a red cow, then their verdict must be for thedefendant. " "I so charge, " says the judge. "I except, " says the otherlawyer, "and I ask your Honor to charge the jury that if they believethe cow was the property of the defendant, their verdict must be forthe plaintiff. " "I refuse to charge in those words, " says the judge, "there may not have been any cow or he may not have eaten thecabbages. " Or the lawyer for the railway may ask the judge, "That ifthe jury find that the driver was forty feet away from the tracks andthe car was a hundred feet away from the corner of Seventy-eighthStreet when he first saw the car, and the car was going at a rapidrate and the conductor pulled the bell and the driver was sitting onthe right-hand side of the wagon and might have seen the car had thecar been one hundred feet below the corner, then in that event I askyour Honor to instruct the jury that the plaintiff was guilty ofcontributory 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, theappellate court may say: "Error, judgment reversed, new trialordered. " What happens is that the judge takes a chance. The lawyersays, "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 therefusal to so charge was reversible error. " The judge looks wise andfinally says, "yes. " There is a little playing of politics in this; hehas possibly been thinking how the jury are going to decide andrealizing that what he charges won't make any difference, he playssafe by charging what the losing side wants. 

These requests to charge may go back and forth indefinitely withrulings and exceptions. Either lawyer may except to a portion of thejudge's charge, thus serving notice upon him that unless he hurry upand change it he may be reversed on appeal. That is the reason why thecharge 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 thecase. In other words, the charge must be indefinite. In England andthe Federal courts in this country, the judge may legally express hisopinion as to how the case should be decided, but that is as far as hecan go. The distinction is a relic of the old days of the jury systemwhen the judges would imprison the jury until they found as waswanted. Now the judge may only express a preference and the jury maydo as they please. In some courts the democratic idea of theindependence of the juryman goes to the extent of not allowing thejudge to say anything specific. 

The result is that the jury are confused. They are usually of soindependent a nature that the judge's charge would not greatlyinfluence them. The clients sit by utterly confounded; they hear thejudge wisely say, "I think perhaps yes, but on the whole it may beno, " and when he is through, not understanding as much as the jury, they think the judge's charge is very fair. Having said little ofimport 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. " Thisagain illustrates the difference between the old and the new ideas ofcourts. The old is a battle ground where the issues are defined, thecourts are kept within narrow limits and the rules of the ordealobserved strictly, and the modern, merely an investigation of adispute with the glamor of a contest left out. It is an investigationof facts, which however bitter may be the personal animosity, shouldnever lose sight of the main idea of arriving at the plain truth, in acommon sense way. 

At last the lawyers are silent, the trial is over, the judge patientlyasks are there any more requests to charge, and there being no more, he turns to the jury and says, "Gentlemen, you will retire andconsider your verdict. " Slowly they file out, conducted by the courtattendant, 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 topronounce its sentence. The truth seeks to burst forth and the jurymenhave knocked at the door of the room in which they have been lockedfor so many hours. The court attendant, who has been standing like asentinel outside to prevent the approach of eavesdroppers andlisteners, 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 bein chambers--other people might call it a room with an office desk, but the dignity surrounding a judge invests even the bare office roomwhere he sits. It is named in the plural, even if it is only oneordinary room. He throws away his cigar. The lawyers or theirassistants who have been lounging about the empty court-room, gossiping with one another and trying to evade the importunities oftheir clients, who insist upon speculating with them on the probableresult, have been summoned to the bar. The judge takes his seat on thebench. The jury, marshalled by the court officer, file in. They arelined up in the jury-box. 

"Gentlemen, " says the judge, "have you agreed upon a verdict?" "Wehave, " answers the foreman of the jury. 

When the jury have first been locked in the jury-room they haveprobably immediately relaxed after the long strain of the trial. Theywere entitled to a smoke and to feel at their ease. Besides they knowthat if they finished their deliberations too early, they will becalled on another case. It was nearly two when the judge finished hischarge, so they have plenty of time to waste; for if they came back tothe court-room before three they would be impaneled in another trial. 

They have taken a straw vote to find out how the sentiment stood, notwith the hope of arriving at a decision but by way of trying out thematter. The result stands nine for the plaintiff and three for thedefendant. They light their cigars, for they came well prepared forthe tedious hours in the jury-room. 

The nine men look at the other three in disgust, the three look at thenine with contempt and then they begin to argue. The deliberations ofthe 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 havearrived 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 theother be defeated. The psychology of the jury in reaching the verdictis the great mystery and the most intense interest of the trial. Thejudge does not know, the lawyers are unable to understand. There is acertain respect for the inviolate privacy of a jury-room. If triallawyers could understand the method by which they arrive at theirfinal announcement they would be far better equipped than by a studyof the law for many years. 

It is a question whether or not their actions are different from thoseof ordinary men outside a court-room. They have left the restraininginfluence of an uncomfortable and conspicuous position and haveentered again into the attitude of mind of the everyday world. Thecontrol of the judge has disappeared. The lawyers are only memories. They have become only plain business men with something definite todo. They do not know how to do it and the discussion begins in adesultory 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 mustbe just graduated from the hospital. "

"Did you hear the lawyer say in a case he tried in Brooklyn he hadseventeen 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 atfour 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 sidesgradually assume opposing positions. Each one takes a leader andspokesman; the discussion is probably between those two and anoccasional interjection by the others. By this time the argument hasgrown tense and after half an hour the original arguments of counsel, the evidence, the instructions of the judge have become merged in theminds of the jury with what has been talked of in the jury room. Therecollection of each juror includes the recollection of the discussionthat they are having. The mental picture is now a combination of whateach witness thought, each lawyer conceived it, how the judgedescribed it, what they imagined it during the trial, and added to themental concept is the recent present struggle between twelve points ofview. 

They do not remember what it was the judge told them about theirverdict. Suppose they send out and ask him. No, they do not want toappear like fools. It is plain. Their verdict must be for theplaintiff or the defendant. But in that contract case where the otherside wanted something back from the plaintiff, how are they going tofind a verdict for both? They can't find a verdict both ways. They hadbetter send out and ask the judge. No. Well then they will send forthe pleadings, they will show. 

"What, " says one juryman, "do you think those pleadings would showanything a reasonable man could understand?"

They decide that there was a bill that told the story. They knock onthe door. The court attendant opens it. They explain, he gathers inthe lawyers, and they go to the judge's desk. There is a thrill. Thejury have agreed so quickly it must mean a verdict for the plaintiff. If they had been out longer it would have meant there was adisagreement or a verdict for the defendant. The longer the jury staysout the better for the defendant thinks the lawyer. But the actionsof the jury are uncertain and there may be no rule of arriving attheir decision. 

There is the story of the judge who, after the jury had been out for along time, made a bet with the stenographer as to how the jury weregoing to decide. The judge thought himself an expert in determiningthe probable verdicts of the jury. After they came in and announcedtheir decision and were discharged, the judge having lost lookedcrestfallen. The stenographer smiled. Then the judge recoveredhimself. 

"You win, " he said, "but the next time you and I bet on a decision itis going to be one of our cases without a jury. "

The attendant asks for the bill and returns to the jury-room. Thecourt falls into a lethargy of waiting. The jury, having theirinformation, go on with the discussion, probably on the followinglines. 

"Sure, I told you the silks were worth four hundred dollars. "

"Well, I know those kind of people; they are small people and theynever did that amount of business in all their lives, let alone onemonth. " Or, "Don't you know that neighborhood; all the cars speed up whenever theyget there. "

"Why, yesterday I was getting off a car and the conductor pulls thebell, etc. , etc. "

"No, I ain't prejudiced against the railroad; I ain't got nothingagainst the railroad. "

"Of course, we ain't going to decide this case on sympathy orprejudice. But that boy's Irish and he looks like he come of goodhonest people. "

"Vy, I don't see no difference whether he is Irish--or Yiddish; vot vevant is justice. "

"Now see here, my friend, if you think you're going to make this aracial matter you're mistaken. Just because that boy's Irish youneedn't think he ought not to get nothing. You're prejudiced, that'swhat you are. "

"Oh, let's get down to the evidence anyway; what we want is todecide. "

"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 hisjob with the company?"

The rest of the jury sink back resigned and despondent. They willnever 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 dowhat is right. "

Somewhere, somehow, and by non-understandable methods the verdict isreached. If the jury ask for further instructions, they file back intothe court-room and the judge proceeds to elucidate the hidden mysteryof the law in much the same manner he did in his charge. They returnagain not satisfied, and take up the discussion. 

The most dramatic moment in the trial is when the officer comes in andannounces the jury have agreed. While they slowly file in, theprisoner or the parties watch them with soul-tearing eyes; the lawyerswith anxious expectancy. There is an electric thrill in the air. Insome mysterious manner their verdict becomes known before the foremanspeaks. Call it thought transference, mind reading, or what you will, there is a quick understanding from their faces, their manner ofwalking in, and their final pronouncement is only a confirmation ofwhat was expected. 

The jury has spoken, the lawyer who has lost moves to set aside theverdict. The jury looks startled. Is it possible that after all thattrial and all that deliberation the judge is going to upset it againand have the long trouble gone over. The judge denies the motion ortakes it under advisement. Only on rare occasions does he set theverdict aside then and there. The verdict must have been outrageous, absurd, clearly a compromise, or absolutely and shockingly againstcommon sense. The theory of the law is that the verdict of a jury is afinal judgment on the facts by the best judges of the facts. It willnot lightly or for small reasons be interfered with. 

The question of belief in the jury system is one of the most futile ofall large questions. In the first place, jury trial is so deeplyengraved in the constitutional bill of rights that one might as wellask: "Do you believe in citizenship?" "Do you believe in the UnitedStates of America?" Secondly, trial by jury is so completely involvedin the present system of court trial and procedure, that they areinseparable. The evils of the whole attach to the part and thebeneficent aspect of the courts pertain equally to jury trials. 

Coming down to a concrete case and leaving the abstract principle tothe theorist, there are certain obvious things to be said for andagainst jury trial. The jury represents the opinion of the common orordinary man--the _vox populi_. Twelve men picked at random areprobably neither all capitalists nor all laborers. They are made upof a few of both, but the majority, if not all, are the smalltradesmen or the great middle class. These men are not ignorant, prejudiced, or unintelligent. They have a limited experience, buttheir judgment is the judgment of mediocrity and mediocrity is what iswanted. The professional man, the expert, the specialist is needed forthe special degree of administration, but for the determination of theactual right and justice, what is needed is the instinct of theordinary man, --the plain ordinary common sense. 

When the criminal says: "I stand a better chance with a jury"; whenthe civilian says: "If I had the wrong end of the stick give me ajury, " he is appealing not to the wrong side of the jury system, butto a quality which is not always recognized. 

Law is an exact, definite statement of principles, absolute andapparently immutable. When a man on the street walks up to another andwantonly insults him, the law is, that the insulted party must turnand walk away. If the matter came before a jury they would neverconvict him for knocking the other down at once. The jury system isthe 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 beyondpreserving some record of what may soon be forgotten. 

In the year 1947 it seems almost unbelievable that the universal useby the public of Judicial Corporations should have been a matter ofsuch recent economic growth. It is interesting to trace theirdevelopment and the social causes from which they sprang. 

The efficient administration of these co-operative Corporations beingdemonstrated by their financial success, makes it unnecessary todwell upon the details of their intensely developed organization. Existing as they do upon so broad a comprehension of the wholecommercial and social structures, it is little wonder that they haveproven their value to the community. Their highly specializeddepartments of Issues, Investigation, Statutory Law, Records, Determination and Results correspond in a measure to the former methodof procedure in the extinct courts of law and equity. Times haveindeed changed. 

The analogy between the present methods and the antiquated andconventionalized customs of those cumbersome and inadequateinstitutions is not difficult to find. The department of Issues, forexample, corresponds to what was known as the pleadings in an action. These were formerly bits of paper governed as to form by inflexiblerules, instead of the efficient method by which under the trainedmanagers of able minds the matters in dispute, either of fact or law, are now narrowed down to exact points of difference. Naturally themethods of their managers being untrammelled by outside rules and theybeing men of wide experience and tact, the work of this department isnot as difficult as at the first commencement of Judicial Corporationswas anticipated. 

The departments of Investigation and Experts correspond with theformer division of court trials known as evidence and testimony. Anyexplanation would be futile of this branch of a forgotten formalism. The ancient rules of evidence and court procedure could only beunderstood by contemporaries and an extensive research has failed todisclose very clear concepts even by them. The modern methods of thedepartments governing the ascertainment of facts, either through theexperience of the departmental employees or the efficient work oftrained investigators, have naturally been much aided by the inventionof the Viviphone making all communication adequate and easy. 

The departments of Statutory Law and Records even yet retain certaincharacteristics of a period when judicial officers and clerksrepresented to the public mind the embodiment of what was known as"Red Tape, " a true colloquialism descriptive of the attitude ofofficial conservatism. These departments being governed according tothe latest bibliographical methods are of merely supplemental value asreference. The Simplification and National Unification of Federal andState statutes has, of course, added greatly to the facility of thisbranch of the business. 

The Determination and Result departments at first were thought to beof primary importance. Corresponding as they did in their functions tothe former exclusively judicial qualities of the courts and the finaljudgments thereof, the exaggerated import previously given to thosefunctions pre-supposed an equal necessity in this subdivision of themanagement of the corporation. This proved to be incorrect. It wasfound that after a careful framing and narrowing of the matter indispute by the Issues department, and a thorough and careful siftingof facts by the Expert and Investigation departments, the disputegradually, if not wholly, disappeared. Men of the highest characterand calibre being employed at large salaries as heads of thesedepartments, have given adequate satisfaction, as has been proved bythe prosperity of the Corporations. The recompense of the heads ofthese various departments, requiring as it does men of the greatestcommercial understanding, is said to be in some instances fabulous. 

In the early quarter of the present century and indeed in the latterpart of the nineteenth, the undercurrents of many movements werealready stirring the surface of the placid stream in which for so manycenturies had been flowing the course of justice. Those curious relicsof a medieval, age, the law courts, still at so recent a date, retained many of the forms, characteristics, and usages of a timewhen knights fought in plate armor and indulged in the mimicry ofbattle, urged on by the glamor of chivalry. The very terms and thelegal phraseology of the period implied the jousts, tournaments, andordeal by battle of a romantic and self-deceptive age. 

The universal world war that resulted in such an immense change ofsocial and economic values contributed naturally to the destructionand abandonment of old forms and structures. Yet even before the warand the economic revolution that followed so quickly thereafter, thetendencies toward a more sane treatment of the question had alreadybegun. 

Like the extinct class of so-called physicians and doctors, who havenow been amalgamated by the Public and Private Health Corporations, what was known as the legal profession or men known as lawyers andjudges, had been gradually losing their characteristics as a class andhad been step by step merging into men of business. 

One of the earliest changes was the disappearance of the lawyers knownas the real estate lawyer. Up to about 1890 there still remainedmembers of the legal profession who made a livelihood out of theexamination of the titles to real property. The obvious advantages ofa comprehensive title examination plant by large corporations known asTitle Insurance companies soon eliminated this particular subdivision. 

The next important change arrived in a curious manner under the cryfor what was then known as Social Justice--a vague term which was thenadvocated by many so-called "reformers" and ignorantly opposed by thecapitalist class, without any very clear understanding of what wasmeant. So little was realized of the economic and efficiency values ofinsurance against chance, that the beginning of the movement wasopposed. The movement resulted in certain obvious changes whichlooking back upon them seemed inevitable and natural. This was whatwas known as universal Employers' Liability laws. The principle soonextending itself to all classes of accidents, resulted in the passageof legislation which had been foreshadowed by the tremendous growth ofCasualty and Accident Insurance companies. Beginning at first withlaws holding the employer liable for accident, and afterward resultingin the insurance of labor, it was gradually extended to accidents ofevery nature, including injury from travel on common carriers and theordinary vicissitudes of life. 

The result of State insurance against negligence and injuries of everykind was that all claims for injuries were adjusted by the State andthe lawyers who lived by pursuing the neglect or misfortunes ofothers, gradually became extinct. A certain distinguished andconspicuous type was known by the term "ambulance chasers"--the exactderivation of the term not being now, in 1947, entirely clear butprobably being related to some antiquated legal custom of succoringthe wounded--very soon disappeared. 

The cases that arose from all commercial disputes became less numerousas the more candid and intelligent dealings of the economic worldawoke better and more honest business standards. But long before thedisappearance of what was known as the commercial lawyer, there areevidences that the former courts of law, even before their entireabandonment, had fallen into a partial desuetude. Apparently disputesof large magnitude never reached the courts. And the legal standardsenunciated by the courts were so entirely unrelated to the standardson which the actual commerce of the world was conducted, that resortwas but little had to the arbitrament of the law of procedure incourt. 

The entire change of personal and domestic relations and the greaterfreedom from the institutionalism of semi-civilized communities, _e. G. _, the abandonment of all restriction on divorce, naturally didaway with the class of litigation that appeared in certain courts oflaw dealing with marital or personal grievances. 

In regard to what were known as criminal lawyers and criminal courts, the different attitude which the public formerly had towardunfortunate sufferers makes the existence of such a class or suchinstitutions almost unbelievable. As it is now inconceivable that weshould throw into unsanitary jails men and women who are mentally orsocially diseased, so is it hard to realize that during theunintelligent period of which we are speaking, nay for many centuries, there existed people who lived upon their misfortunes. 

Naturally with the disappearance of litigation and lawyers the publicno longer tolerated the existence of the judges or courts. For a fewyears they retained a hold upon the imagination of a small portion ofcitizens who entertained a sentimental regard for the Stateinstitutions of a civilization founded upon the unsound teachings ofeighteenth-century doctrinaires. 

The period of the abandonment of the old courts corresponded with theextraordinary development for what was called "moving pictures";those pale, lifeless presentations without color, speech, orsubstance, at which the people of a benighted age gathered foramusement or entertainment! It requires imagination to conceive thatpeople were unfamiliar with the ease of communicating with any placeon the globe and reproducing exactly in form, color, and speech byturning on a switch. The observer of that age must have been shockedand surprised to find the solemn courthouses turned into what wasknown as moving-picture palaces or as community centers for dancingand social entertainments. 

The change of class which the lawyers had gradually been undergoing tosimple men of affairs was not so abrupt as that for the judicialofficers, who were far removed from actual life. Various expedientswere attempted by which they could be preserved as a class. Theirformer occupation being gone and the idea of pensioning not beingsatisfactory, as there remained a large number of younger men on thebench who might be of some value to the community, a system of courtcafés was evolved. Even to-day it is fast disappearing and for thebenefit of future generations it may be well to describe the lastremnant of an institution that held its position in the social orderfor so long. 

Human nature being always substantially the same, it was thought thatits demands for the dramatic action and stress of battle should havesome outlet. It was not thought wise to entirely abolish the arenasfor legal disputes, although the present Judicial Corporations withtheir excellently organized departments were already rapidlydestroying all litigation. It was felt that perhaps humanity demandedthe bringing together of the two disputants so that they personallymight oppose their claims to one another. 

It now seems incredible, in view of the absolute simplicity ofcommunication by Viviphone, that this should be thought necessary. Theneed for romantic expression seemed to demand the opportunity forpersonal presentment. The social workers who established these cafécourts, did not realize that with the growth of a more intelligentpublic point of view, the question of abstract justice was little morethan an application of customs and social standards to particularfacts; and that with the fall of the ideas of justice in the abstract, there also fell the appurtenances of justice. 

It may here be noted that the learned treatise of ProfessorHumperdinck upon the recent discovery of certain statutes found amongthe ruins of the Great New York Explosion is mistaken. The figurewhich he described among others of the woman blind-folded and with anarm extended as though holding something, does not represent as hecalls it, "The poor blind girl begging, " but a figure of the Goddessof Justice holding the scales, who was so long worshiped. 

The growth of the court cafés was made possible by the amelioration inthe climate of New England effected through the alteration in thecourse of the Gulf Stream. The inhabitants became accustomed to spendmore time in the open air so that the courts became popular. Existingas places for the display of eccentricities and the airing of personalgrievances, they soon became extremely frequented as places ofamusement. 

Whenever any litigant felt that there was any matter in dispute whichneeded adjustment by some outside agency, he invited the other partyto come to the court. The judges occupied the position of proprietors, _maîtres d'hôtel_, and waiters, whose business it was to make thecourts as attractive as possible. As their salaries depended upon theamount of receipts and the courts were run upon a partnership basis inwhich all shared the profits, the aim of the judges was to draw aslarge amount of custom as possible. 

The surroundings were in every way desirable. In the open air, underspreading trees with the sunlight filtering through the leaves uponthe well-kept lawns, were spread tables covered with delicious fruitsand every delicacy that the human mind could devise in the way ofculinary delights. Rare wines, exotic flowers were constantly suppliedin profuse display. Luxurious divans and reposeful seats wereinterspersed about. The most modern as well as the most famousmusicians furnished exquisite music, while flitting about in neatwhite aprons partially concealed by their gently swishing gowns ofblack, the attentive justices anxiously tried to add to the pleasureand comfort of their customers. 

With such temptations as these there was little wonder that theopposing party accepted the invitation to attend court. Witnesses andspectators crowded about, both on account of the novelty of theinstitution and the opportunity for refreshment and amusement. The aimof the judges was to incite the disputants to continue their disputesinstead of trying to pacify them. 

The more vociferous they grew, the more noisy and passionate theybecame, the better the crowds were held who came to observe theperformance. It was upon this clientele and the sale to them of viandsand comestibles during the dispute that the profits of the judgesdepended. So long as there was a serious and energetic struggle thespectators remained at the adjacent tables and trade was brisk. Whenever, however, the litigants came to a full realization of theabsurdity of their position, either by the continued laughter of thespectators at the public airing of their private wrongs with which thepublic had nothing to do, or becoming tired of mere words and came todiminish the ardor of their combat, the crowd would begin to dwindleaway. The judges quick to understand the loss of trade after vainlytrying to induce the litigants to new efforts, would gently andsuggestively push under their hands a pair of dice boxes or a pack ofcards and the dispute would sometimes end upon the throw of a die orthe turn of a card. 

The reason that these court cafés have not long remained in vogue, wasthat all actual litigants soon became so sophisticated as theyrealized the enormity of the position and how unreasonable theirconduct seemed to the average man. Public sentiment was naturallyagainst such a waste of time and real performers became scarce. Several of the courts were detected in hiring false litigants asactors so as to draw the crowds. The performance not being genuinesoon lost its interest. The patrons left them and many courts becamebankrupt. So like their predecessors, those light-minded courts havepractically ended. 

THE END

 * * * * *

Justice to All

The Story of the Pennsylvania State Police

 By Katharine Mayo

 Introduction by Theodore Roosevelt

 8º. Illustrated. $2. 50

Theodore Roosevelt says: "It is a book so interesting and so valuablethat it should be in every public library and every school library inthe land. " This State Constabulary in its romantic career has hunteddown crime, made raids into "Black Hand" strongholds, protected livesand property from mob violence, and always risen to every emergencywhere nerve and swift action are required. 

G. P. Putnam's Sons

 New York London

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