\J UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY CONDUCT OF LAWSUITS. CONDUCT OF LAWSUITS OUT OF AND IX COURT: PRACTICALLY TEACHING, AND COPIOUSLY ILLUSTRATING, TIIK PREPARATION AND FORENSIC MANAGEMENT OF LITIGATED CASES OF ALL KINDS BEING A NEW EDITION OF "PRACTICAL SUGGESTIONS" REVISED AND REWRITTEN BY JOHN C. REED AUTHOR OF "AMERICAN LAW STUDIES" SECOND EDITION WITH AN INTRODUCTION BY JOHN H. WIGMORE BOSTON LITTLE, BROWN, AND COMPANY 1912 Copyright, 1885, By John C. Reed. Copyrirjht, 1912, By Little, Brown, and Compant •o ^ o ^ PUBLISHER'S NOTE. When an author has readied such a point of excellence that his work is beyond criticism and is accorded universal praise, it would seem eminently wise to leave his book unmarred by further effort to improve it. In '' Reed's Conduct of Lawsuits " the scope is such that the book is not dependent upon citations for its usefulness, even in a remote degree. The publishers have therefore deemed it unnecessary to attempt to improve by revision the admirable text of Mr. Reed's book, but present herewith their author's work exactly as he left it, confident that it will need a greater age to pro- duce a better work or one that may be studied with a greater degree of moral and mental benefit by those who seek a safe guide to legal ethics and the unwritten code of practice of the law. INTEODUCTION TO THE SECOND EDITION. By JOHN H. WIGMORE. I HAVE long admired this book, and am glad to see it going into another edition. It is for several reasons most admirable in its kind. For one thing, its standards of conduct are high and conscientious, without being either chivalrously unpractical or conventionally unreal. In the next place, its treat- ment of these everyday problems is based upon a thoughtfulness, a large philosophy, and a shrewd perception of human nature which links it to the truths of life in general, and makes the lawyer as a practitioner fit into the lawyer as a man. Fur- thermore, it takes up the subject solely as a field for unwritten experience in tact and conduct, not min- gling the transitory and local rules of legal pro- cedure; and this unwritten experience it covers systematically from beginning to end. Finally, it views the profession of the advocate as a perma- nent institution in the world's justice, coming down through the ages, and garnering traditions and wis- dom from past generations for the edification of present and future ones. Client and counsellor, Viii INTRODUCTION TO THK SECOND EDITION. advocate, jury, and judge — their ways and their needs and their notions were known and studied in Athens, Rome, England, and America. Tlie world's business and its laws may change, but human nature's motives and foibles have formed a constant element. The psychology of a lawsuit is still the great practical problem for the lawyer; and Quintilian, Scarlett, and Choate here come together on common ground. All these four important aspects of the subject are united in Mr. Reed's pages, in a satisfying way not to be seen in any other book known to me. This is the kind of book whose substance every young lawyer should commit to memory. I mean that statement literally. On leaving the law school, he should live with this book until he knows its precepts from cover to cover. A rule of law can be searched for when needed ; but not so these principles of tact and judgment in per- sonal conduct. To be useful they must be so firmly appropriated that they become part of one's own experience and belief, ready at an instant's call. In the presence of client, witness, judge, or jury, there is no opportunity, often not even a warning, to seek the kind of help that lies treasured here. If it is not already mastered and become a part of one's self, its help will come too late. And when a book is as good as this is on every page, the pains are worth bestowing. If to the equipment of legal knowledge and honest unskilled ambition which thousands of beginners among us to-day possess, INTRODUCTION TO THE SIX'OND EDITION. ix could be added in each one the intelligent use of the mature wisdom here purveyed, the profession and the community in the coming generation would be notably the better for it. To the memory of Mr. Reed (whom I never had the honor of knowing personally) I am glad to offer this public homage of gratitude. PEEFACE. Contrasted with Practice, — in the main an aggregate of forms and small details variously prescribed by many Legislatures, and which is more and more abandoned by American law au- thors to the statutes of the State where the case in question finds its tribunal, — our subject, the Conduct of Lawsuits, is a system which is alike in all the States, and in all the courts, whether State or Federal. Li the great bulk of cases the end of litigation is to procure or avoid an adjudication that so much money be paid, or certain property be surrendered, or a contract be specifically per- formed, or such and such punishment be suffered ; each cause of action suggested being founded on an act of more than hourly occurrence in every society. The means by which the end is sought are comparison of the rights claimed and the pro- cedure chosen with the directions of the law; and if this do not prove decisive, as most often happens, a further comparison of the proofs of one side with those of the other. While the Code differs from the common law, and some of our xu PREFACE. States adopt the former and others hold to the latter, and while procedure in its constituents of forms of declarations and pleas, service, process to produce evidence, and all the remaining items, is settled by every State without apparent regard to the anterior English law or that of other Ameri- can jurisdictions ; on the other hand, the end and the means just described are common to the race, and consequently parties, in all places, strive after similar objects in essentially similar ways. And so the conduct of lawsuits in Maine and in Cali- fornia is really identical. The law of one may differ widely from that of the other in many pro- visions of great concern to the local practitioner ; but this no more requires in each State a different science of managing cases, than the great diver- sity in the face of the earth, in climate, and in the language and character of the inhabitants, requires a new manual of strategy and tactics for military operations in every new seat of war. There are but three turning-points in litigation. A party wins by showing a legal, evidential, or emotional superiority to the other. Appeal to the judgment in making effective the first two, and excitement of the feelings in the third, — what are more common than these to man the world over ! In their preparation. Eastern and Western, English and American lawyers, all seek to provide the superiorities mentioned, and they strive to present and maintain them in their con- duct in court. The principles of preparation and PREFACE. xiii of trial and argument remain unchanged amid all local differences, whether of substantive or reme- dial law. Like the principles of Evidence, Plead- ing, and Statutory Construction, and like those of the practical arts, they partake of the universality of logical processes and the laws of human action. Thus it appears that Conduct of Lawsuits belongs to the realm of the general law author, a province which every year becomes more clearly defined in America.^ And it is my conviction, after long contemplation, that there is no other division, not even excepting the highly developed ones of Pleading, Evidence, and Statutory Construction, in which the general law so completely coincides with that of the State. It is true that a large part of what we call Conduct of Lawsuits more nearly tallies with theory and art, as we com- monly use those words, than with the law which we constantly look for in text^books. But as the usual course of things in the courts is held of it- self to be authority, we see that even this part belongs to the law. And there can be no hesita- tion as to the rest, illustrated as it has been by judicial decisions, though with very imperfect de- velopment, as we shall soon show. 1 See American Law Studies, §§ 196, 197, 200, 810-820, distinguish- ing the general law from State and Federal law, presenting its leading importance in education, and telling how it is the concern of the text- writer ; and contrast with Ibid., §§ 1002-1011, which show the smaller place occupied by the general law in actual practice. In these passages I have taken great pains to develop the subject adequately from every important point of view. XIV PREFACE. Our subject is of the greatest moment to the lawyer. Its mastery is the most important part of his professional education. If he does not know the right methods of preparing and trying his case, any success of his will be accidental only, and he must soon give way in the arena of prac- tice to those of his brethren who do know them. An old author defines art, in its sense of theory, to be a pre-instruction which shows the true way and reason of doing something.^ I would impart fully the rationale of both the preparatory and forensic management of cases, and I hope that in my effort I have conformed to the definition quoted. And further, I have throughout clung so closely to actual and familiar facts that I also hope my brethren will feel, — to paraphrase the language of Shakespeare, which has long seemed to me to show the essence of sound teaching — that the business and practical needs of litigation prompt all that I say.^ This book was conceived, and it has been written, while the author was laboriously engaged in a general practice. I do not pretend to have established anything new. I only claim that I have been the first ^ "Ars est praeceptio, quae dat certain viam rationemqiie faciendi ali- quid." Auct. ad Her., 1. 1. * The Archbishop having lauded the wisdom with which Henrj' V. dis- courses of affairs of church and state, of war and of policy, and then the unquestioning acceptance of the King's views by all hearers, gives his con- clusion in these words alluded to in the text : — " So that the art and practic part of life Must be the mistress to this theoric." PREFACE. XV. exhaustively to analj'ze and systematically to present and illustrate the all-important principles which every good lawyer follows, or ought to fol- low, in managing litigation. My business from first to last is with those old principles which cannot be commenced with too early, and to which the best endowed member of the profession yields increasino; obedience while he is maintainino: and extending his leadership. It is high time that they be properly elucidated as a whole ; and that the young lawyer, instead of being left to pick them up at random and haphazard in a long mis- spent novitiate of practice, be furnished with a manual explaining to him how understandingly to take, ably prepare, and skilfully try his cases. The author trusts that he has in the following pages given his younger brethren this needed book. The reader is referred to the General Introduc- tion for a fuller and more precise statement of the scope and purpose of the work. J. C. R. Atlanta, Ga., May, 1885. TABLE OF CONTENTS. GENERAL INTRODUCTION. Purpose of the chapter, § 1. — Conduct of Lawsuits distinguished from Practice; separately treated because of its high develop- meut and its indispensableness to. all practitioners, § 2. — Contrasted with the method of judges, § 3. — The words Lawsuits and Litigation used in their widest sense, § 4. — Preparation of cases glanced at, § 5. — The judge is disinter- ested and the lawyer not, § 6. — Process of nature that every great interest receive devoted protection, § 7. — How the right is secured by impartial judges and juries, and free prepara- tion and speech of counsel, § 8. — Average practitioners and average cases our special subject, § 9. — Law and fact as elements of litigation, and their several tribunals, § 10. — Ubiquity in practice of law and fact contrasted, § IL — Mixed questions of law and fact, § 12. — The two present iu every case, § 13. — A third element of litigation, that is, the emotional, § 14. — Two cases illustrating this third element, §§ 15, 16. — Importance to the practitioner of knowing com- mon views, prejudices, likes, and dislikes, § 17. — The law as administered moi'e affected by feeling than that of the books, § 18. — Lifluence of feeling and passion in litigation, though much less than that of the other two elements, too much over- looked, § 19. — Legal, evidential, and emotional, the three elements of litigation, § 20. — Object of right management of litigation is to have a superiority on some or all of the three elements, § 21. — Litigation contrasted with various games and with war; how good generals, players, and lawyers win, § 22. — The contrast with war stated at greater length, §§ 23- 27. — Conduct out of Court, or Preparation, corresponds to Strategy; Conduct in Court, to Tactics; superior importance xviu TABLE OF CONTENTS. of Strategy and Preparation to Tactics and Conduct in Court, §§ 24, 25. — Consideration of a case offered, § 26. — How far litigation can be illustrated from warfare, § 27. — Prepara- tion of cases, the first half of litigation ; its greater impor- tance enforced by a contrast of two eminent lawyers, § 28. — Conduct in Court, the second half, important, but not so im- portant as the first, § 29. — Changes of standpoint from con- sidering the case when offered to its argument, § 30. — Chapter on Character of Successful Lawyer, §31. — Cox's Advocate, § 32. — Harris's Hints on Advocacy, and Illustrations in Advo- cacy, § 33. — Warren's Duties of Attorneys and Solicitors, § 34. — Gleanings from other books, § 35. — Student's need for a treatment of Preparation and Foi'ensic Conduct as a whole, § 36. — Necessity that all practitioners understand both divis- ions, § 37. — The Reports furnish us but little of our mate- rials, § 38. — Weeks's Attorneys at Law noticed in order to show the small use we can make of Reports, §§ 39, 40. — The •writings of authors and experience in practice mainly supply our materials, § 41. — The use to be made of these two sources, § 42. — Origin and writing of this book, § 43. — What the author believes will be its especial benefits to students and young lawyers, § 44. — Professional methods in common use to be learned by student and exercised in imtil each one will be done automatically, § 45. BOOK I. CONDUCT OUT OF COURT. CHAPTER I. A CASE OFFERED. Cases where clients can be wisely advised to yield or to litigate, our subject, § 46. — An examination preliminary to advising to be made, § 47. — Such examination for difficult rather than for easy cases, § 48. — How the client's knowledge is to be drawn out of him, § 49. — Quintilian's directions, §§ 50-52. — TABLE OF CONTENTS. xix Comment upon them, § 53. — Necessary patience and careful- ness with client, § 5-4. — Witnesses to be sifted well, § 55. — Importance of close attention to documents, § 56. — Illustra- tions from trials where party lost by offering evidence which he had not studied, §§ 57, 58. — Enforcing duty of cautious examination of accessible evidence before counsel advises action, § 59. — Two excerpts from Mr. Warren, modernizing the quotation from Quintilian, §§ 60-62. — Duties of Eng- lish attorneys good lessons to American lawyers meditating a case offered, § 63. — Hinted that the adverse case is to be conjectured as far as possible, § Qi. — Case where Judge Cooley supposes an abstract of title submitted for an opinion, § 65. — The lawyer consulted must examine and decide without procrastination, §§ 66, 67. — Facts to be weighed and law to be considered, § 68. — Points of controversy and probable issues, § 69. — Advice to be according to the apparent chances of litigation, § 70. — Plan of Conduct hinted at, § 71. — The lawyer, like the general, acts on probabilities, § 72. — He should resort to the courts only when he seems to have a legal, evidential, or emotional advantage, § 73. — He cannot be sure of success, § 74. — He should be accurate in his under- standing, and exempt from undue excitement, § 75. — The lawyer who is never dangerous until he has lost, § 76. — The thoroughly cautious lawyer is the most dangerous, § 77. — A famous lawyer who carefully considered every case offered him, § 78. — Timidity, doubt, and over-caution reprehended, §§ 80, 81. — Ethics of accepting and declining cases, §§ 82-89. You take ten cases you ought not, to one that you mistakenly refuse, § 90. — The trial counsel often has to rely on a junior, § 91. — Unpopular cases of merit, §§ 92-95. — Classified sum- mary of duties of lawyer before advice, § 96. — The minu- tiai belong to our chapters on Preparation, § 97. — The young lawyer must for a while observe and imitate, and confer with his wiser friends, § 98. CHAPTER II. PRINCIPLES OF PREPARATION. — PREPARATION OF THE EVIDENCE. What is non-serial must be treated serially, § 99. — Much remains to be done which was not foreseen when case was accepted, XX TABLE OF CONTENTS. § 100. — The first aim of Preparation is to secure apparent advantages; — party's witnesses, § 101. — Sir George Stephen as to opposition of witnesses to a minute of their statements being made, §§ 102, 103. — How to commit doubtful witnesses to their statements, §§ 101, 105. — Protection of written evi- dence, § 106. — Process for witnesses and documents, and when you shall resort to it or not, §§ 107, 108. — Perpetuation of testimony of certain witnesses, § 109. — To obtain addi- tional advantages the second object of preparation; further study of the evidence, § 110. — Examples of procuring addi- tional evidence, §§ 111-113. — Third object of preparation to abridge advantages of adversary; illustrations, §§ 114-116. — Preparation should not injure the client; illustrations, §§ 118, 119. — Cautiqn necessary to avoid injuring yourself, § 121. — You must learn the secrets of the other side, and how, §§ 121- 124. — How you should meet the preparation of the adversary, § 125. — Concealment of your purposes and evidence, §§ 126, 127. — Stratagems, § 128. — Necessity of understanding the law of evidence, § 129. — Summary of essentials of prepara- tion of the facts, § 130. — The whole evidence to be collected; Mr. Warren's advice to ocer-prove rather than under-iprove, § 131. — The decisive points only to be attended to, § 132. CHAPTER III. PREPARATION OF THE LAW OF THE CASE. Preparation of the facts naturally precedent to that of the law, § 133. — Some previous observation of practice necessary to the student, § 134. — Facts more often disputed than law, §§ 135, 136. — Great and unexpected successes occasionally won on law points, §§ 137, 138. — The applicable law to be at- tended to in preparation with care, §§ 139, 140. — The three departments of American law, § 141. — Law seldom ascer- tained by theorizing; it is to be had from the sources, § 142. — Usually three classes of law questions in cases, — the first be- ing as to the substantive right of the client; illustrations of the first, §§ 144, 145. — The law giving the right to be scruti- nized, § 146. — Where the law is difficult, § 147. — Questions as to proper remedy in the second class, § 148. — Various reme- dies, and how they are to be resorted to, § 149. — Illustrations, TABLE OF CONTENTS. xxi §§ 150-154. — Summary as to remedy, § 155. — Questions aa to evidence belong to third class; how they should be treated, § 156. — Law certainly against the practitioner, that certainly for him, and that which is doubtful, encountered through the entire course of preparation, § 157. — His duty as to each one of the three kinds, § 158. — The few cases without precedent, § 159. — Delicacy of asking for a ruling which is au innova- tion, § 160. — Effort of born lawyer always to plant himself on sound law, § 161. — Over-refinement in selection of law points to be avoided, § 162. — The authorities settling the different points which you see will be mooted to be weighed and noted, § 163. — Over-logical views to be eschewed, and the average professional mind sounded as to doubtful subjects, § 164. — The pleadings, § 166. — Demurrers, § 167. CHAPTER IV. OTHER PARTICULARS OF PREPARATIOX. The emotional element, § 168. — The modern does not, like the ancient advocate, aim consciously to stir the passions, § 169. — Where a decided leaning of the community must be recog- nized in the preparation, § 170. — The case which at first appeared too old, § 171. — The emotional resources both of yourself and your adversary never to be overlooked, § 172. — Filing of your pleadings, proper service, notices, § 174. — Agreements of counsel, § 175. — Things to be done, such as the removal of encumbrances, § 176. — The ablest of the coun- sel should investigate the case and classify its details; inferior- ity of English system, where counsel are never brought in contact with party or witnesses, § 177. — David Paul Brown's comparison of the English and American systems, §§ 178, 179. — Great need that the leading counsel confer with party and witnesses, § 180. — Choate's seeing the impressive be- havior of a client, §§ 181, 182. — Inferiority of English coun- sel in the private examination of witnesses, § 183. — The division of labor in England between attorney and counsel unnatural and irrational, § 184. — Our young lawyers should aspire to make both good attorneys and good counsel, § 185. — Plurality of counsel, § 186. — The associates should be prop- erly placed; the tact of Burr, § 187. — Lord Bacon's threefold xxu TABLE OF CONTENTS. division of business, § 188. — Consultations between associates should be frequent, and tlieir disclosures frank, § 189. — Duty of associates to one newly employed, § 190. — How to treat your a.ssociate, § 191. — Local counsel, § 192. — Conclusion as to plurality of counsel, § 193. — Practitioner should have a definite purpose in everything, § 194. — Premeditation not to be too prolonged; rapid action necessary, §§ 195, 196. — Burr's " Never do to-day what you can as well do to-morrow," good, § 198. — How forethought and promptness to be reconciled, § 199. — The lawyer preparing should not be flurried or vision- ary, § 200. — Patient and never remitted attention a potent virtue, § 201. — The lawyer should carry his cases with him everywhere, and be always able to stand a Socratic cross-exam- ination upon them, § 202. — Accurate and well-in-hand knowl- edge of the case the grand result of thorough preparation, § 203. — The talents of perversion on the other side of no avail, § 204. — Choate's habitual preparation, §§ 205-210. — Burr's, § 211. — Bad against good preparation, § 212. — But everything cannot be foreseen and provided for, § 213. — He who believes that Providence sends him only good cases, con- trasted with the true lawyer, § 214. CHAPTER V. PLAN OF CONDUCT. Great importance of subject; it is the highest point of view in the preparation, § 215. — The plan keeps even pace with the preparation, but its final construction is the last work, § 216. — Use of word as contrasted with "line" and "theory " justi- fied, § 217. — The right plan assures most and risks least, § 218. — Napoleon's saying, that the whole art of war consists in being the stronger on a certain point, illustrated by battle of Marathon, where Miltiades evaded the onset of the enemy's choice troops, §§ 219, 220. — The strength of the enemy di- rectly engaged by Epaminondas at Leuctra with success, § 221. — The circumstances vindicate each plan, § 222. — Choate always had a plan, § 223. — An example from his practice, § 224. — A simple plan which prevailed against an adversary seeming as strong as the Spartans at Leuctra, § 225. — Mag- nificent results often follow simple plans ; — looking and seeing TABLE OP CONTENTS. xxiii for one's self the basis of the general's and lawyer's genius, § 226. — Simple and complex plans contrasted, § 227. — A complex plan which involved different points of law and fact, §§ 228-231. — The first sort of simple plan being where the issue tendered is accepted, § 232. — The second is where the issue tendered is evaded by presenting another on which you think you are the stronger; instance from Burr's practice, § 233. — Evasion of an issue of law tendered, § 234. — The complex plan glanced at again, § 235. — The plan should al- ways be as simple as it can be made without judging too severely against client, § 236. — Covering weak points ; exam- ples of successful concealment, § 237. — Where the weakness cannot be concealed; Choate's plan for defence of Prof. Web- ster, §§ 238, 239. — Where a mistrial rescued a party from a great difficulty, § 240. — Weakness often to be concealed by reticence, bluff, feints, or other ruses; and a good case is some- times to be saved by wiles and stratagems, § 241. — The emo- tional element of litigation ; persons and acts distinguished as causes of favor or disfavor, § 242. — Emotional advantages to be supported by apparent merit in law or fact, and not to be urged immoderately, § 243. — Effectiveness of moderation where the facts showed that a lady had fraudulently altered a paper, § 244. — Danger of appearing to persecute, § 245. — Guarding the parts of your case which are exposed to the cen- sure of the feelings, § 246. — Always scheme to have the feel- ings excited by the case help your side, § 247. — When secrecy is right or not, §§ 248, 249. — Provision in plan for new trial in case you lose; examples, §§250-252. — The lawyer who is expert in setting aside verdicts, § 253. — Whether conduct shall be bold or not, § 251. — Difference in the spirit of offence and defence, § 255. — Essentials of good defence, § 256. — The aggressive defence, § 257. — Advantages of the aggressive and of holding the initiative, § 258. — Summary as to aggressive and defensive, § 259. — The line of defence in cases exciting much public feeling should sometimes be disclosed, §§ 260,261. — A mistake in not using the privilege of suppressing inves- tigation, § 262. — Where your case is hard to defend but your client is influential, do not give the adverse witnesses early opportunity to testify, § 263. — Subject of continuances commenced, § 264. — If you defended the workman charged with stealing from the cash-drawer, you should wait on devel- xxiv TABLE OF CONTENTS. opments, § 265. — Other cases in which you should wait, § 2G6. — Provision to be made against contemplated continu- ance of adversary, § 267. — Slowness to try cases not to be cul- tivated, § 268. — Remedies as connected with subject of this chapter, § 269. — Groups of connected cases, where a special one should be tried first if possible, § 270. — Examples, §§ 271 -273. — Such cases require careful attention, and the subject is too much neglected, § 27-i. — All possible alliances for your client to be secuied, § 275. — • Marshalling the proofs; the coun- sel for the State who blundered when he secured the conclusion for himself by holding back some of his evidence, §§ 276, 277. — When you are to put in more and when less evidence before you rest, § 278. — Comparative value of the right to the last word and of the first impression with good evidence, § 279. — The plan, especially in complicated cases, should be drafted; which can be largely done in arranging the proofs, § 280. — The essence of the lawyer is in his fashioning, anticipating, and contriving as to cardinal points, § 281. — Procui'ement of special legislation, § 283. — Arbitrations and references, § 284. — Amicable settlements recommended, and how the lawyer should act in them, §§ 285, 288. CHAPTER VI. Why the subject receives a chapter, § 287. — Too restricted sense of " brief," as the word is used in America, § 288. — Contents of an English brief according to Sellon and Tidd, § 289. — Such a brief sets forth the whole preparation, § 290. — Policy of such a brief advocated; — exceptional memories, §291. — Your memoranda to be digested, § 292. — Great ability neces- sary to make a good brief as set forth by Mr. Warren, § 293. — A brief is gradually made up, § 294. — Advice of Mr. Bishop as to notes of authorities, § 295. — Whether the pleadings should be copied or abridged, § 296. — The statement of each party's case to be accurate, §§ 297, 298. — The proofs to be marshalled and a list of witnesses to be made, § 299. — Copies and abstracts of documentary proofs, § 300. — One who habitu- ally pre-arranges his proofs on paper rarely stops shoi't of making out his case at the trial, § 301. — Questions which you TABLE OF CONTENTS. xxv anticipate may arise collaterally, to be provided for, § 302. — Cautions against apprehended danger; advice of Mr. Warren, § 303. — All omissions io be supplied ; when a brief is perfect, § 304. — Draft of plan of conduct, § 305. — Voluminous brief to be indexed, § 30G. — Detailed directions of Mr. Warren, §§ 308-314. — As to law points, § 315. — American neglect of briefs earnestly deprecated, § 310. — Your brief can be easily made by keeping your accumulating papers and memoi'anda together and in right order, the final statement of case and last draft of plan being intercalated at the close of the prepara- tion; there is no Procrustean model of briefs, §317. — You are not to be slavishly dependent on your brief, § 318. BOOK II. CONDUCT IN COURT. CHAPTER VII. INTRODUCTORY. Correspondence of subject of this Book to Tactics, § 319. — Object of Conduct in Court ; talents for managing a trial contrasted with those of preparation, § 320. — Greatest ability for trying rarely united with the greatest for preparing, §321. — Un- anticipated occurrences of the trial, and the faculty of extem- poraneous action necessary for dealing with them, § 322. — Importance of precedent preparation ; restatement of its essen- tial parts, § 323. — The subjects of oiu- two Books run into each other in the plan of conduct; preparation is to be made no more than the fulcrum of attack or defence, § 324. — Spirit of proper conduct of a trial, § 325. — Leading objects of con- duct in court classified, § 326. — Consultation of counsel on the eve of trial, §§ 327, 328. — Selecting the jury; several illustrations, §§ 329-334. XXVI TABLE OF CONTENTS. CHAPTER Vni. OPENING THE PLEADINGS AND OPENING THE CASE. In England the junior counsel for plaintifE opens the pleadings and the leader opens the case; in America both openings are usu- ally by the same counsel, and often by the junior, § 335. — Mr. Cox's directions as to opening the pleadings, §§ 336, 337. — His directions as to opening the plaintiff 's case, §§ 338-345. — Teachings of Mr. Harris, § 346. — Opening of facts more important in England than here; but it is very important here, § 347. — The opening of the pleadings shows the issues; how it prepares for the defendant's cross-examination, § 348. — The reading of voluminous pleadings should be preceded by an oral synopsis, § 349. — Requisite carefulness with the judge on novel law points, § 350. — Treatment of the proofs; Cock- burn's opening speech in trial of Palmer, § 351. — State your propositions, and then outline your proofs of each, § 352. — Scai-- lett's opening; excellent short openings, § 353. — Defendant's opening of the facts in America, § 354. — How a progressive development of the evidence aids an opening, § 355. — Prin- ciples of opening stated by Gains in a few words, § 356. CHAPTER IX. BEGINNING OF CONDUCT OF THE EVIDENCE. — THE EXAMINA- TION OF THE party's WITNESSES. Affirmant to make out 2)ri7na facie case; defendant avoids its effect; plaintiff's rej)ly, defendant's rejoinder, and so on; evidence both oral and written, § 357, — Examination of plaintiff's witnesses in England, the junior usually taking the first wit- ness ; but our subject is the direct examination on both sides, § 358. — In America, who shall examine is settled by agree- ment, or by direction of the leader; the counsel most familiar with narrative of a particular witness should usually examine; sometimes that one who is to make the principal argument should not examine at all, § 359. — Material allegations of plaintiff's pleadings to be proved; while, as a rule, the unfa- vorable is to be avoided, yet adverse facts known to the other TABLE OF CONTENTS. xxvii side had better be drawn out, § 360. — Tlie average witness is our first concern ; question him in every-day language ; properly start him, and then let him tell his story in his own way; if not self-possessed, reassure him by beginning with small details, § 361. — Leading questions generally to be avoided; a remind- ing instead of leading question, § 362. — Mr. Cox as to leading questions, §§ 363, 361. — Mr. Cox exaggerates the difficulty; example of a reminding question which does not lead; avoid- ance of leading questions to your witnesses in your chambers, § 36.5. — Questions should be short and easily intelligible; Mr. Harris's examples of bad questions, § 366. — Mr. Harris's ad- vice as to avoiding interruptions, watching to keep the story free from extraneous matter, and adopting commonplace questions, § 367. — Never cross-examine your friendly witness; instance; how to keep the witness from unfavorable statements, § 368. — Heedfulness and deliberation; redundant questions; main cur- rent of transaction to be followed; important facts often to be brought out independently; omissions to be supplied ; witness to be sifted, and what he says made impressive and kept from hurting you and helping the adversary, § 369. — Exhaust the witness's knowledge so as to avoid recalling him before you rest, § 370. — Timid and confused witnesses, § 371. — They should be prepared out of court; rehearsals and cross-exam- inations in your office, § 372. — Extra-curial preparation by Daniel Webster of a shrinking and sensitive witness, § 373. — Mr. Cox as to the stupid witness, § 374. — Examiner should not question from a region above comprehension of dull wit- ness, § 37.5. — "Witnesses whom you must restrain, §§ 376, 377. — David Paul Brown as to hostile witness, § 378. — How you can arm yourself against treachery, § 379. — Mr. Cox as to the hostile witness, § 380. — Premeditated sifting of hostile witness; example; you really cross-examine him, § 381.— Keep your composure when answers are adverse, § 382. — Hos- tile witness to be called only when he is indispensable, § 383. — Conflicts in your testimony to be avoided, both by attention to examination and by preparation, § 385. — Example of a dam- aging conflict which could have been avoided, § 386. — In direct examination, the plaintiff charges the defendant, who next discharges himself; when plaintiff charges and the de- fendant discharges again, over and over in various alternations, — the real end of direct examination being that the party is to xxviu TABLE OF CONTENTS. make out his charge or discharge before he rests, § 387. — Quintilian and Englisli writers ignore character of average witnesses and overrate cross-examination; the decisive facts are generally proved in direct examination, § 388. — Bring out these facts completely and impressively, § 389. CHAPTER X. CROSS-EXAMINATION. Whether you should cross-examine at all ; cross-examination over- prized by the inexperienced, § 390. — Also by many writers, § 391. — Scarlett usually cross-examined but little, and only to enforce the facts on which he relied, § 392. — Average wit- nesses and common methods to be first treated, 393. — Charac- ter of the witness always to be attended to, § 394. — Importance of pi'evious acquaintance with narrative of adverse witness; many other things to be learned beforehand, § 395. — You cross-examine three kinds of witnesses : one kind whose ver- sion you accept; another, whose testimony you avoid without attacking his veracity; and the third, whose testimony you show cannot be credited ; there are really but two kinds of cross- examination, — one intended to elicit friendly evidence, and the other to attack the witness, § 396. — Your objects with the witness whose version you accept are to have him finish his incomplete presentation, and to make him re-enforce your proofs, § 397. — Privilege of direct examiner to put what ques- tions he pleases and confine the witness to answers, and his con- sequent omission to prove that which favors you, § 398. — You will be prompted by previous information, the natural proba- bilities of the transaction, the friendship of the witness to your client, and his manner, § 399. — When your case is very weak you may be reckless in extorting a full statement ; examples, §§ 400, 401. — Where you weaken the force of what was proved in the direct, or prepare for your own evidence, or show the witness to be mistaken; examples, §§ 402-404. — Requisite talent for fashioning the narrative so that it may be overborne by your testimony, § 405. — Relationship, friendship, and other causes that bias, § 406. — Where you essay to show that the truthful witness is mistaken, according to Mr. Cox, § 407. — Comments on the passage, § 408. — Instances of having wit- TABLE OF CONTENTS. xxix nesses to demonstrate mistakes, §§ 409, 410. — Where you have the witness to prove facts in your favor, — the most effective of all cross-examination, § 411. — This sort most in use by good practitioners; its scope wider than appears at first, § 412. — Cross-examining the witness as to whom you are uninformed, § 413. — Wiien you have cause to suspect his veracity, test him by a comparison with the other testimony, § 414. — Conclusion as to witness you do not attack ; you really make an ally of him, § 415. — The witness whom you intend to discredit; wliere you prepare for proving contradictory statement, § 41 G. This attack ought to be in a material matter; it should be pro- vided for; how the resources of contradiction multiply when trial is delayed, § 417. — Opportunity afforded by witness having testified before on same subject, § 418. — "Where you draw out statements to be disproved by the other testimony ; this sort of impeachment not as fully attended to as it ought to be, § 419. — Developing conflicts in the adverse testimony, § 420. Ordering the witnesses out of court; when it is to be done and when not, §§ 421, 422. — How a witness was commit- ted to statements which he unwittingly had his own family to contradict, § 423. — Where you try to entrap into such self-contradiction or oppugnancy to known facts as will dis- credit, according to Mr. Cox, §§ 424-430. — A still wider range of sifting counselled; illustration from Brougham's cross-examination of Majocchi, §431. — Williams's cross-ex- amination of Demont, § 432. — Rareness of such feats; use of the examples, § 433. — Where perjury is palpably, not infer- entially, detected; two examples, §§ 434-436. — Such blunders of witnesses sometimes overlooked, § 437. — Two instances of perjury palpably detected by Daniel Webster, §§ 438, 439. — Untruthfulness of witness seldom shown except by leading him to manifest partisanship, or to tell gross improbabilities, § 440. — Summary of objects of cross-examination, § 441. — Proper manner and self-restraint of cross-examiner, §442. — When and how the cross-examiner's object should be con- cealed, § 443. — When you must take pains to be intelligible, according to Quintilian, § 444. — Do not prove the adverse case, §445. — Unfavorable answers to be avoided, § 446. — Refrain from opening new matter that may hurt, § 447. — Do not press a reluctant witness too hard, § 448. — Repartees of witnesses ; one elicited by Choate, § 449. — Behavior of XXX TABLE OP CONTENTS. examiner on such occasions advised by Mr. Cox, § 450. — Excellence of Brown's Golden Rules, § 451. — Those for cross- examination quoted, §§ 451, 452. CHAPTER XI. RE-EXAMINATION. — CONCLUSION OF THE CONDUCT OP EVIDENCE. In England the leader, here the examiner in chief, usually re-exam- ines the witness ; the counsel best acquainted beforehand with his testimony should, as a rule, perform the duty, § 453. — Ac- coi'ding to Mr. Cox, the object is to obtain an explanation of what has been said in cross-examination, § 454. — One purpose is to prevent the adversary's distorting your witness's testimony by garbling questions and questions to which he can only answer yes or no, § 455. — • In his bewilderment, heedlessness, or fright under cross-examination the witness may have made state- ments requiring correction, § 456. — Importance of previously acquired familiarity with the narrative, § 457. — Mr. Cox on the mode and scope of re-examination, § 458. — Mr. Harris like Mr. Cox, exaggerates the usual effects of cross-examina- tion, § 459. — The real effects of cross-examination and what . of repair and restoration you can do, § 460. — Mr. Cox advises when to attempt explanation and when not, §461. — As to new matter introduced by the cross-examination, § 462. — Mr. Cox, as to eliciting repetitions of the more important parts of the evidence in chief, § 463. — Excellent summary by Mr. Harris; close of systematic presentation of examination of wit- nesses, § 464. — Many writers erroneously pronounce him to be the best examiner who most successfully hides unfavorable truth, § 465. — Objections to questions, when to be repressed and when urged, § 466. — Pleasantness of manner in examiner inculcated, § 467. — Providing new evidence during a trial, § 468. — Where Choate reopened the evidence with advan- tage, § 469. — What you are to do when surprised by unex- pected testimony, § 470. — Whether or not you shall introduce certain topics into which your adversary otherwise cannot go, § 471. — Example of a defendant's going too far with his evi- dence, § 472. — All counter proof demanded to be made if pos- sible, § 473. — Preparation not to be servilely relied on, § 474. TABLE OF CONTENTS. xxxi — Importance of patience and self-possession, §§475,470. — David Paul Brown, as to importance of examination, § 477. — The examination is tlie best which produces the greatest weight of supporting and defending proof, and presents it most im- pressively and intelligibly, § 478. CHAPTER XII. NOTE-TAKING. English superiority in the matter of note-taking during the trial; directions of Mr. Cox, § 479. — The substance of the evidence to be taken down; the efficient long-hand reporter, §480. — You cannot I'eport the answers to your questions; generally the notes should be taken by a counsel who does not examine, § 481. — Points of yourself and adversary, his authorities, and the action of the court to be noted, § 482. — Great superiority of correct notes as compared with memory, § 483. — The infe- rior of two lawyers had the quicker apprehension, § 484. — Habit of Choate, § 485. — Indispensableness of note-taking to the lawyer who must master every detail, § 486. — Reviewing and digesting the notes during the trial, § 487. — You should take notes even if you can have a copy of the official report; growing importance of stenography ; great things can be done in long-hand, § 488. CHAPTER Xm. ARGUMENT. We begin with argument of fact, the character of all cases being given by the facts, § 490. — Usually your effort with the jury is to convince them by a dissection of the evidence that your case is better than the adversary's, § 491. — The items sug- gested by the evidence as what you can probably hold, and the grounds on which you will claim them, now your business, and not the issues in the record, § 492. — You are to sustain the theory of your side and oppugn the adversary's ; your skeleton should duly order what you are to say ; begin with central posi- tions and place the more important ones first, § 493. — The 5CXX11 TABLE OF CONTENTS. best verdict to be expected is your proper object, § 494. — Your progress is through affirmative and negative propositions; how circumstances suggest where you shall begin, § 495. — Alter- nation of affirmative and negative propositions soundly taken, § 496. — All not pl.ansibly favored by the evidence to be es- chewed, §497. — The maintaining proofs to be stated in the skeleton under eacli proposition; the adversary's strong points to receive special attention, § 498. — Exhaust the evidence of both sides, noting everything material for or against you, § 499. — Your legal positions and authorities, § 500. — Your notes should be merely mnemonic, § 501. — Better to write it out than to stop with the mental construction of the skeleton of your speech, § 502. — The skeleton being finished, the proper beginning of the speech is to display the real questions, § 503. — When the next step will be the consideration of your case or of the opposite, § 504. — How best to use the first at- tention of the jury, § 505. — The immaterial to be noticed only wlien you see it has hurt; what practically helps you to the verdict is your only concern ; how to handle your different positions, § 506. — Commencement and general arrangement being settled, the first thing as to the facts is to suggest all the evidence pertinent to the particular topic; your statement always to be accurate ; how to treat the adversary's misstate- ment, § 507. — In supporting a proposition you gather the proper proof from all quarters, and you must truly present and criticise the counter evidence, § 508. — The usual attacks on evidence are that it does not prove the point, is improbable, or is outweighed; which you are to fend off from your side and make against the other; when the first attack is overstrained or too logical, § 509. — Too much heedless challenge of testimony on the ground of improbability, § 510. — That it is outweighed, the most generally successful criticism of testimony, § 511. — Show, if you can, that the conflict with your evidence is appar- ent only ; your difficulty where honest witnesses or strong facts oppose you, § 512. — Three illustrations of the decisive char- acter of special facts in conflicting evidence, §§ 513-515. — At nearly every turning-point of a case there is a decisive fact for the advocate to show in its full force; and there is nearly always the right view which reconciles a mass of details, § 516; Importance of obtaining favorable instructions from the court; how to discover his leaning, § 517. — When the leaning is ad- TABLE OF CONTENTS. xxxiii verse, what you are to do, § 518. — Requests for instructions; •when your question is novel or abstruse; wliere the court gives no intimation, § 519. — The range of a law argument from Binney's, of deep learning and research, in Vidal v. Girard's Executors, to Webster's triumphant appeal to reason alone, in Gibbons v. Ogden, § 520. — Help of favorable intimations during argument; also of favorable instructions afterwards; the lawyer who invoked tlie jury to decide his law, § 5'21. — Presenting the best reasons from the evidence and law for ver- dict claimed, the staple of the happiest speaking; illustrations, § 522, — Moderation recommended; vanquish the strength of the adversary overstated by yours understated ; Scarlett's tact in leaving by his understatement the jury to make discoveries of stronger reasons for his case than he had suggested, § 523. — You are to be fair to both sides, and your propositions and arguments ought to be such as will natux'ally find favor with the multitude, § 524^. — The strong men who are over positive and intolerant of difference, § 525. — AVhat adverse points are to be ignored, § 52G. — ^Illustration from Choate's practice; Lord Bacon as to dissimulation, § 527. — Fine speaking to be avoided, lively but not heated discussion to be cultivated, and your reasoning should not be over refined or too deep, § 528. — Acrimony usually impolitic, § 529. — When ridicule and irony in place, and their potency, § 530. — Effectiveness of wit and humor; illustrations, §§ 531-533. — Harm of irrelevant wit and humor, § 534. — Value of preserving composure and alertness of the faculties; examples of escape from exigent straits, §§'536-538. — Favorable and unfavorable prejudices, § 539. — Reliance on the lower passions and feelings not to be cultivated, § 540. — The emotions; example of exciting one prompted by the circumstances of the case, § 511. — The great- est exploits of the advocate are but the revelation of the real facts to both understanding and heart, § 512. — Several duties of associates, § 543. — Long or short speaking, § 544. — Unan- swerableness is the greatest triumph of a speech; how it is won, § 545. — When better to forego argument, § 546. — Power and influence of forensic speaking not to be overrated, § 547. — Difference of modern from ancient orators, § 548. — Secret of good speaking in due attention to duties of preparation and of conduct of trial; narrowing province of eloquence, § 549. — The advocate should not gain a bad or lose a good case ; Lord xxxiv TABLE OF CONTENTS. Campbell's picture of the King's Bench in time of Chief Jus- tice Abbott, § 550. — Resistless influence of accuracy and per- fect honesty, § 551. CHAPTER XIV. NEW TRIAL AND APPEAL. Instructions of court to be noted; motion in arrest; motion for new trial to be made advisedly; preparation of grounds during trial, § 552. — Your notes; prayer for specific instructions; the charge of the court ; behavior of jury ; — all to be considered, § 553. — Most of your surest opportunities will occur suddenly, and you must have the wit to know them; example, § 554. — Having certain grounds in the motion to be of such wide impli- cation that you can bring out of them much that did not strike you at first; illustrations, § 555. — The motion to be completed as soon as possible, § 556. — No parallel to new trial iu war- fare, § 557. — Admirable sjiirit of the lawyer who will not sub- mit to the loss of a good case, § 558. — Bills of Exception; always give if possible your judge opportunity to correct his errors, § 559. — Summary ; if your verdict has been set aside, when you should make and when forego exception, § 560. — Cases should be followed to the appellate court, § 561. — Law- yers should not submit to bad rulings and verdicts; proper control of yourself and of a judge favoring to be exercised during trial; all good points to be taken in your motion, § 562. — A young lawyer generally makes his mark by procuring a reversal, § 563. CHAPTER XV. VICTORY AND DEFEAT. Whatever remains to be done after victory should be done energeti- cally; where plaintiff's lawyer delayed to collect a judgment, § 564. — Counsel submission if you are on the side of inevita- ble loss, § 565. — Summary, § 566. TABLE OF CONTENTS. xxxv FINAL CHAPTER. CHARACTER OF THE SUCCESSFUL LAWYER. The successful lawyer compared with tlie law author, as the good farmer with the agricultural chemist; also with the judge; the command which the lawyer and judge have of common legal rules, §§ 567, 568. — A talent for facts more important than even a talent for law, § 569. — Further as to the relative importance of the two talents, § 570. — Insight, or vision of the truth, the staple of each, § 571. — An apparently hopeless case which was won by the appHcation of a hackneyed legal principle; acumen that can be manifested in matters of evidence, §§ 572, 573. — A layman shows the point which had been overlooked by coun- sel and court, § 574. — Transcendent importance of seeing things right, § 575. — Marmont's analysis of the general, in whom firmness overbalances intelligence, § 576. — Hamlet de- ficient in firmness, and therefore deficient in action, § 577. — Macbeth and Hamlet contVasted, §§ 578, 579. — Themistocles perfect in the combination of insight and promptness, § 580. — The necessary courage is but self-possession, § 581. — The law- yer's avoidance of questions which he has not time to investi- gate; he does not attempt impossibilities; contrasted with the pettifogger, § 582. — Summary of hard things which the law- yer must constantly do; our miniature not overcolored, §§ 583, 584. — L'envoi, § 585. CONDUCT OF LAWSUITS. GENERAL INTRODUCTION. CONDUCT OF LAWSUITS. GENERAL INTRODUCTION. § 1. This chapter is intended to be more than a prefix for form's sake, of not very relevant matter, as an Intro- duction often is. Tliose parts of it which sketch the ways and province of the lawyer ; the object of society in encouraging him ; law, fact, and passion as the resources of each party ; the art of finding and using decisive advan- tages brought out prominently by a comparison with the methods of games and warfare, — have been meditated with great care. Reinforced by the remaining passages, — such as those which review the applicable literature and display the purpose of our present work, — they will be, we think, of great help in clarifying and fixing the concep- tion with which it is proper that the study of the princi- ples of practice should be commenced. Although this conception can be no more than provisional, yet the young lawyer is interested to have it the very best possible. After this call to attention we begin. § 2. Practice includes much more than the manage- ment of lawsuits. Besides considering proposed actions and defences and pronouncing for or against them, the practitioner in his chambers, as we suggest more fully else- where,^ is full of other occupations, — such as answering 1 American Law Studies, §§ 100, 101, 1017. 1 2 CONDUCT OF LAWSUITS. consulting clients, examining titles and making abstracts, drawing conveyances and collecting money, or lending it out on apj)roved security. In view of the importance of the business last suggested, and the fact that, as a general rule, it gives the young lawyer his principal employment in the opening of his career when he is in most need of instruction, for a long time while contemplating this new edition we purposed to present all the several branches of professional employment, having selected for a motto to declare our enlarged scope on the titlepage, — " Seu linguam causis acuis, seu civica jura Respondere paras." But the longer we thought the matter over, it appeared to us the more clearly that the Conduct of Lawsuits calls for separate treatment.^ It is more a complete whole than Statutory Construction, Pleading, or Evidence, every one of which has long had its special treatises. It is also of such fundamental character and all-embracing reach, that the mastery of its essential principles is the chief education for the other branches of practice ; for nearly all right effort in these is fashioned after the example of counsel in the conduct of litigation. To pronounce upon a title, to draw a contract, to advise a client, — to do these things as they ought to be done demands a con- sideration of the details of evidence, which is like the preparation necessary in issues of fact ; and every one of these often necessitates a search for the governing au- thority which finds its pattern in the investigation of counsel meditating how they will attack the adversary or ^ Those familiar with Roman law will remeniher the distinction be- tween jarisdictio contcntiosa and jurisdictio volitntaria. GENERAL INTRODUCTION. 3 fortify against him on the lav.'. When these processes of deaHng with the particulars of controverted cases and the pertinent law have been firmly acquired, the rest of pro- fessional training will come spontaneously and in the best way. That they receive emphatic attention in the con- duct of litigation, and arc therein more completely set forth and exemplified than anywhere else, is an impera- tive argument for having the student begin his study of the rationale of practice with the department which is, as it were, the lawgiver to the rest. § 3. In a late work we noted how the concern of the practitioner always to find such positions as will secure the approval of the courts leads him to imitate judicial reasoning.^ And to represent the method of judges as the typical one of legal investigation is not inconsistent with maintaining that the method of counsel in preparing and conducting litigated cases is the typical one of practice. The sphere of counsel is wider than that of the judge, the former investigating facts as well as law ;_ and he aims at a different object. The judge's sole business is with concrete questions of law, not found by himself, but submitted by others. The lawyer has to do with such questions. He examines perhaps a great many suggested by a particular group of facts, choosing but a few to be made by his pleadings and proofs ; and in con- sidering, and at last arguing these, he follows in the main the course of judicial inquiry. But the facts, and not the law, are his first care. He must learn his client's evidence, and conjecture that of his adversary. And his peculiarizing aim is to forecast and execute such meas- ures as will confine the main issues at the trial presided 1 American Law Studies, § 766. 4 CONDUCT OF LAWSUITS. over by the judge to points of fact or law in which he is stronger than his antagonist. This widely differences the conductor from the umpire of lawsuits. The latter is without initiative and interest, and his entire office is impartially to decide questions of law as they are finally presented by the skill and art of the biased disputants. The process by which the lawyer in litigation ascertains proofs and counter proofs, and puts forth the strength of his side while he weakens that of the other, is what we have just claimed to be typical. One or both of its ele- ments are dominant in all the non-contentious affairs hinted at above. Even in advising clients seeking an opinion — where the lawyer perhaps most closely ap- proaches the judge — there must be industrious inquiry after facts. In nearly all the rest, the counsel begins by contemplating an interest in jeopardy, and becomes un- consciously more and more affected by the leaning of his client, and he generally ends by attempting protection. The foregoing outlines, sufficiently for this place, the essentials of the conduct of litigation, and vindicates the propriety of devoting the work exclusively to them. We now proceed to give such a presentation as suffices for the purposes of an Introduction. § 4. We use the word Lawsuits, and its equivalent, Litigation, in the widest sense. Whether legal rights be involved in an issue of fact on the law side, or a bill in equity is exhibited to settle intricate accounts or difficult questions of law, or whether the State be proceeding on an accusation of crime, — such and all other conceivable cases, if they are defended, are classed under the words just emphasized. These controversies when offered to the lawyer can be wisely declined, or they can be wisely GENERAL INTRODUCTION. 5 taken and skilfully carried on; and we may now indicate our purpose in general by saying that it is to give the principles of what we may term the Right Conduct of Lawsuits or Litigation. § 5. To mark off our special field with accuracy, we must show the sphere and objects of the profession in greater detail. We do not find the lawyer's activity fully told in the books which are the daily employment of judge, law author, and lawyer. The report of a case adjudged by a court of errors states only what were the questions made by the record and how they were dis- posed of; and the same, in the main, is true as to nisi 2)rius reports. Our beginning lies far behind trials and arguments, and we are to discuss that which is rarely reported, — that is, how the parties were brought to the issues tried at last. This department is one of such great extent that we give it all of the first one of our two Books. While he is in it, the lawyer is almost at an- tipodes to the judge. Here he spends most of his time in the particulars of his case, his aim being to secure a battle-ground of his choice, and to have for his side an overweight of force. If not incessantly watched by an alert and industrious adversary, he will often acquire a strength wliich he did not have at first and cut off the other side from many of its advantages; and he will dexterously lead his antagonist away from positions inexpugnably guarded by judges and authors agreeing, and induce him to stand on others which they unani- mously condemn, or he will manoeuvre him out of c\H[den- tial superiority, or win by making some other legitimate move. The ablest judge and the most renowned law writer have not always been good practitioners. All 6 CONDUCT OF LAWSUITS, of us have observed at the bar tliat greater learning and understanding of the law are sometimes outdone by greater ability to manage cases. This address in practice, which is often victorious over larger knowledge of the law sources, is our special subject. § (3. We have hinted the difference between the disin- terested judge and the lawyer who is always seeking the interest of his client, and wc are now to work it out more fully. The former is constantly asking himself, Of these two contending parties, which has the right ? And he de- cides according to some applicable rule of law. But the latter is partialized to one side, and his perpetual question is. How can I, conforming to the law and the principles which govern human action, procure the judge to I'ule, or the jury to find, for my client ? His industry in his chambers, poring over records and documents and sifting witnesses, his long strain of attention concentrated upon everything in the trial, and his zeal and sometimes eloquence in argument, are all for another and not for himself. The client can prepare his case and conduct it in court. This is his constitutional right. But as it requires much train- ing to become qualified for managing causes, the litigant engages the services of one who makes the law his profes- sion. This has often been said before, but it is repeated to attract special attention at this place to the representative character of the lawyer. He stands in the shoes of his principal. His education has bred him to avoid the little and sordid selfishness seen in many a client, yet he cannot rise to the serene impartiality of the judge. His cases, that is, his side of his cases, are his idols. His way of life has stimulated his partisanship, and he is often found to be far more earnest and aroused than the party actually interested. GENERAL INTRODUCTION. 7 § 7. And this is the process of nature, that every pre- cious cause be confichnl for deveh)pnient, protection, or defence to a partial and loving devotee. The wife is intrusted to the self-sacrificing husband,* children to the fondness of parents, and the existence of the country is sometimes placed in the hands of the general and army, every one of whom is expected, if need be, to die cheer- fully in the cause. All of these guardians are spurred ou by the whole woild to do their utmost. Tlic parent, hus- band, general, and lawyer will often achieve for their several charges that which rightfully belongs to others. Yet our hearts approve the faithful deputy, and if he has kept his honor unstained we cannot blame him for suc- ceeding on the wrong side. § 8. But society wishes the right, and not a particular lawyer, to triumph, and so she strives to mate against him equal fidelity and strenuousness for the opposing cause. And to decide the contest she selects educated and prac- tised judges and impartial juries, who are to hear whatever the concern and passion of the disputants can say. Every lawyer is free to take any case ; he is unconstrained in its preparation and conduct ; and he is allowed free speech and discussion. The assumption of the law is, that in the main the right will prevail where truth and error combat on equal terms; and the assumption is justified by experience. The law will have all engaged in the struggle unhampered. Those who show themselves to be right are given the palm of victory, and those who fail are commended for their hearty striving. § 9. This train of thought clears up our subject. We thereby see that the law turns even selfishness, partiality, and passion into social benefactors. The resort ad libitum 8 CONDUCT OF LAWSUITS. to the courts and tlie uncurbed preparation and discussion are part and parcel of tlie liberty which our forefathers brought hither, and the office of the judge and the sacred- ness of his judgment belong to that majesty of the law which they put above even their liberty in their love. The profession, that is, a ubiquitous body of men making the law their study and its practice their livelihood, and the tried and unbiased judge, are devised to hold the scales of justice even. An inferior practitioner with the law or evidence on his side before an ordinary court is usually an overmatch for a leader doing his best on the other side. In this work we are to deal with common affairs, with av- erage men. We may now and then say a word of great causes, or glance a look of admiration upwards on the few occupying the pinnacles of forensic and judicial fame, such as Cicero, Erskine, Marshall, and Mansfield. But it shall always be our chief concern to keep within the beaten paths of litigation as it is generally managed, it being our leading purpose to show how the average lawyer ought to deal with an average case. § 10. It is next in order to present the elements of liti- gation. Differences as to the law are referred to the judge for decision. In giving judgment, he is guided by the proper authorities, and where they fail to furnish a rule, he is guided by that which appears to be just and reasonable.^ Disputed facts are usually tried by a jury. In the main, juries exercise the same faculties in passing upon testimony that other people do, whether lay or professional. Were the present system abolished, as it probably will be after a few years, whatever successor tried facts would try them 1 This snVijeot is explained at length in our chapter on Legal Investiga- tion, American Law Studies, § 765 d seq. GENERAL INTRODUCTION. 9 as juries do now, and the science of practice would be the same in its leading elements. Often, bv commandment or permission, a judge hears the facts, and then he weiglis them as a juror would. In the Roman law the judex, that is, the lay judge who tried the case, disposed of all the issues, there not being in his province a trace of the dis- tinction of jury and court that obtains with ns ; and yet the remains of the classical jurisprudence contain full rec- ognition of the difference between law and fact.^ § 11. The antithesis of law and fact lies at the threshold of practice. Every case is lost or won either by the de- cision of the court or by the finding of the jury, or by both together. As law and fact diverge so widely, and the prov- inces of judge and jury are so far apart, and yet both judge and jury are to co-operate, neither the distinction nor the union of the two must ever be lost sight of. An adversary may say to another, " I do not admit that the facts are as you contend them to be, which difference of ours must be submitted to the jury. And, if the jury hold with you, I shall dispute the proposition of laAV on which you rely, — * De juris etfadi ignorantia,, is the title of Dig. 22. 6. Here occurs the dictum of Neratius, "In oinni parte, eiTor in jure, non eodem loco quo facti ignorantia haheri debebit ; cum jus finituui et possit esse ct debeat. Facti interpretatio etiam prudentissimos fallit " ; — which is thus translated by Mr. Phillimore : " In no part of law should ignorance of law and fact be place pose that, with his high dramatic talent, he had brought forth Cicero, breaking from the pent-up walks of English attorney and junior and like an American counsel superin- tending in person the gathering of evidence against Yerres, which he makes so complete that the rich and powerful accused abandons his defence and flies before the exami- nation of the witnesses for the prosecution is half through. This would have furnished the missing companion-piece to the chapter on the defence of Roscius,^ fitly representing Cicero's activity in the great region of preparation, — the most important of all, — which somehow the author keeps his eyes away from. When we reach the Examination of Witnesses, we will make a further criticism of Mr. Cox and Mr. Harris. § 34. Mr. W^arren's Duties of Attorneys and Solicitors ^ 1 Illustrations in Advocacy, 183-239. 2 ih'nl^ iqq et scq. 3 Am. ed., Albany, 1870. 26 CONDUCT OF LAWSUITS. is given to that part of" the subject wliicli is omitted by Mr. Cox and Mr. Harris. He goes over the whole of preparation of eases, so far as it is the business in England of attorneys and solicitors, ' § 35. There is also something to be found in the trea- tises on Evidence pertinent to (jur chapters upon the exam- ination of witnesses, and there are books which we have not mentioned which touch special parts of our subject. As the last head in this statement, wc must remind the reader that many good hints are to be found in the current works on legal study,^ and in the various Lives of Eng- lish and American lawyers. Our acknowledgments will always disclose the use we make of any author. § 36. The s-tudent and beginning practitioner need something different from what they will find in the helpful books just noticed. Their real desideratum is that all the details of litigation be fitly ordered as parts of a connected whole. This cannot be done satisfactorily in any other way than by carefully describing Preparation, its founda- tion, commencement, and leading division, at the outset, and then developing the forensic part as the natural contin- uation and sequel. To give the first alone, as Mr. Warren does in his Duties of Attorneys and Solicitors, is to break off in the middle ; while to handle only the particulars of the second part, as Mr. Cox and Mr. Harris do, is to overleap the right beginning and give the last half of the subject inadequate treatment, for effective advocacy is in the main but the exhibition of the results of proper preparation. § 37. The special jurisdictions of superior courts and the consequent division of the bar into members of dif- ^ See our American Law Studies, §§ 17-70, for a notice of sucli. GENERAL INTRODUCTION. 27 fcrcnt functions, are passing away in England, while in Anieriea it has long been common for the average prac- titioner to be occupied daily with both preparation and forensic conduct of cases on every side of the court. The course of things shows that, amid the details of the two, there is a unity which is so real and near the surface as to be discerned and practically appropriated in the first years of practice. The natural division of contentious members of the profession is not into pleaders and chancery and common lawyers, nor into attorneys and solicitors prepar- ing cases on the one hand and counsel managing them in court on the other hand ; but it is dictated by individual aptitudes for certain grades of legal employment, for office or forensic work, for discovering and marshalling proofs, for ai'guing law or fact. And every member of these nat- ural classes, to whatever specialties he may confine himself, will necessarily be engaged in gathering and considering facts for actions, or defences and arguments, and in look- ing up the law applicable ; and he must therefore have a practical mastery of the leading principles discussed in both of our following Books. It thus appears that complete skill in any kind of litigated business postulates an assimi- lation of the essentials of what we may term the whole art of practice. At the end of this Introduction we shall fur- ther enforce the advantage of such a work as this aspires to be. § 38. AVc must now say a word as to the materials at our command. The reports are the staple from which the general law treatises are made. But while we deal with that particular subject which calls the reports into being and which supplies them with the details upon which their opinions and judgments are founded, we can hardly ever 28 CONDUCT OF LAWSUITS. support our propositions by reference to judicial rulings. The above-noticed works of Warren, Cox, and Harris do not cite the adjudged cases upon any principle of prepara- tion or advocacy. Likewise the authors who discuss par- ticular details of our subject, as Proffiitt, Best, Greenleaf, and David Paul Brown, — the first briefly handling the opening of the case, and he and the others treating the examination of witnesses, — hardly ever fortify any of their propositions by the authority of the judges. § 39. But we will bring out more clearly the small use we can make of adjudications, by now noticing the late work of Mr. Wecks,^ which treats practising lawyers as a subject of the general law. As he says in his Preface, he cites " some five thousand cases." These are collected from the English and American reports. In addition to the introductory and historical matter, such topics as these fill the chapters : — The Vocation of the La\\7er, and General Nature of his Office. — Admission to Practice. — Summary Jurisdiction of Courts over Lawyers, Striking them from the Rolls, Suspension from Practice, etc. — Privileges of Attorneys as Officers of the Court. — Disability of the Attorney by reason of his Profession. — His Liability to Third Par- ties. — Privilege of Confidential Communications. — Re- tainer, Authority to Appear, and Appearance. — His Authority and Powers by virtue of his Retainer. — Lia- 1 Attorneys at Law. A Treatise on Attorneys and Counsellors at Law, comprising the Rules and Legal Piineiples applicable to the Vocation of the Lawyer and those governing the Relation of Attorney and Client. By Edward P. Weeks. San Francisco, 1878. Our student is reminded that Mr. Weeks uses the word Attorney in its extensive American sense, wherein it is synonymous with practitioner, or practising lawyer, and not in its technical English meaning. GENERAL INTRODUCTION. 29 bility of Client to Attorney, Attorney's Compensation, and his Remedy by Action or Lien to receive or secure Com- pensation. § 40. Comparing the foregoing enumeration with the table of contents prefixed to this work, it will be seen that our peculiar subject, both in essence and details, departs widely from that of Mr. Weeks, although the two are closely related. We omitted above the titles of his elev- enth and twelfth chapters in order to give them emphasis by particular comment here. The pertinent parts of these titles are : Duties of Attorneys towards Clients. — Liability of Attorneys to their Clients ; Negligence. There is much in these chapters with which we are not concerned, but there occur in them such subheads as these, which either touch or fall within our particular field : — Legal Duties towards Client. — Duties of Preparing for Trial. — Liability for Mistakes ; for Blunders in Process and Formal Proceedings ; for Ignorance of the Law. — Attorney is not expected to guaranty Success. — Care re- quired. — Diligence required. — Negligence in Conduct of a Cause. — Liability for disclosing Secrets. — Liability for Abandonment of Suit. These last-mentioned topics are some of the special ones which concern us now. We must note that Mr. Weeks's treatment of them, confined as he is to educing the law from the cases, — which at this place are few and far be- tween, — is extremely general and brief. § 41. This notice of the authors who have preceded us as to parts of our chosen theme, and especially the review of Mr. Weeks's treatise, which practically exhausts the cases, show that we must resort somewhere else than to the reports. And we may say, in general, that our 80 CONDUCT OF LAWSUITS. materials can be found nowlierc else than in these two places : — 1. The writings of those who have discussed any divis- ion of our subject. (The character of these works need not be further described.) 2. The great source always open to correct the errors of writers or to supply their deficiencies ; that is, experience and observation in practice. § 42. We must say spmething as to the proj^er use of these sources. We have indicated above certain defects of the leading authors. But for all of these, as their pages contain large store of discussion and illustration of our topics, they must receive careful examination. And the other works, especially those belonging to the department of legal biography, deserve attention. But the second source requires a little more notice here than the other. There are certain current methods of do- ing legal business. They are acquired, in the main, from the traditions of the bar and by the training in professional customs and modes given by practice. To make a full collection of them demands that one have combined with a considerable experience in a multifarious business a long and attentive search. They do not always lie on the sur- face. There are many principles of preparation, of advo- cacy, or of other branches of our subject, which — to apply the language of Lord Bacon — " the wisest and deepest sort of lawyers have in judgment and in use, though they be not able many times to express and set them down." ^ And after these details are brought into distinct con- 1 Preface to the Maxims of the Law. See our American Law Studies, §§ 457, 460, for another use of this striking passage. GENERAL INTRODUCTION. 31 sciousiiess and the collection indicated is complete, there must be proper co-ordination of the whole and the parts. In doing this important work care must be taken to under- stand the exact use which every particular naturally serves, so that it be assigned to its proper place. § 43. Some years ago, when the author had become busy in a general practice, he often found himself trying, in his unemployed moments, to grasp and arrange the cardinal principles of the right management of lawsuits. He began to devote his leisure to the literature and study of the sub- ject, and in due time he wrote the book which appeared in 187 o.^ That book has been in mind ever since. I hope that by this edition, which gives tlie results of much addi- tional research and thought, I have bettered it throughout. § 44. If I have realized the purpose of my long and studious effort, this result will prove of especial benefit to students and those beginning practice in these two respects : — 1. It will impressively teach that a very large, and the leading, part of the lawyer's peculiar equipment is to be sought in other places than the constitutions, statutes, and reports. While these must receive lifelong attention, it must be remembered, as Lord Bacon says of Studies, that " they teach not their own use." Without this proper use, the profoundest master of the law sources is of no service except to those of his wiser brethren who manage to turn him into a book of reference. 2. Advancement in an art is usually an improvement of its methods ; and this improvement is generally because a clearer comprehension of the end and purpose of the art 1 Practical Suggestions for the Management of Lawsuits and Conduct of Litigation both in and out of Court. 32 CONDUCT OF LAWSUITS. has led to the discovery of easier, more direct and certain ways. The stage in which absorption and imitation are the only teachers cannot hist long. In spite of the antip- athy which all practical and earnest workers entertain towards much drill in principles, they note that the super- eminent masters of every art have often taught clearer views of its real theory. The contributions of Cicero in his rhetorical works to advocacy ; the conversations of Na- poleon upon the conduct of war, embodied by Marmont in his book mentioned above ; the rich legacy to the profes- sion of Scarlett's Autobiography, which reflects the light of the sun on the true modes of management in court ; Choate's toil upon his cases, and what we are told of the ob- jects at which he aimed in his study and practice ; — these are ample proofs of our proposition last advanced. There must ever come the conscious and rational study by all its members of the principles of the chosen occupation, as a part of education for it. And that day has come in the law, as every lawyer may convince himself by recalling the fruit- less searches of his first years at the bar, or by observing the eagerness with which his young brethren read everything which promises to reveal the precious secret. I will alter a passage of the Advancement of Learning, in which Lord Bacon regrets that " the wisdom touching Negotiation or Business hath not been hitherto collected into writing, to the great derogation of learning, and the professors of learning," in order to particularize and show in a striking light the value of the manual which I would make : — " But for the wisdom [that is, the rationale] of [legal] business . . . there be no books of it, except some few scattered advertisements that have no proportion to the magnitude of this subject. — For if books were written of GENERAL INTRODUCTION. 33 this ... I doubt not but learned men, with mean expe- rience, would far excel men of long experience without learning, and outshoot them in their own bow." § 45. The methods which must be applied day by day in every sort of practice sliould be fully tauglit and the student should exercise in them until every one will come automatically as it is needed. It is the mastery of these methods which the author seeks to give his students. And that this mastery is the real efficiency of the practitioner, is the great justification of his undertaking. BOOK I. CONDUCT OUT OP COURT. BOOK I. CONDUCT OUT OF COURT. CHAPTER I. A CASE OFFERED. § 46. Nearly all of the principles of preparation both on law and fact are necessarily involved in the proper con- sideration of a contemplated action or defence by the coun- sel to whom they are submitted for advice. But we are now to discuss those principles only in such a general out- line as suffices for the smaller scope of this chapter, leaving the fuller details to be worked out further on. Where persons are charged with serious offences, or hard demands are resolutely urged against them, the la^\7er sees that nothing is to be thought of but resistance to the bitter end. These are exceptional instances, and we have noth- ing to do with them here but to mention them. It is our business to treat the cases in which tlie party has a choice and he can be wisely counselled either to yield to his adver- sary or to cross swords with him. § 47. When a lawyer is consulted as to one of these last- mentioned cases — whether the client meditates the bring- ing of a suit, or the contest of one menaced or already brought against himself — it is first in order to make such an examination as will qualify him to give liis voice for or 38 CONDUCT OUT OF COURT. against litigation. This examination may disclose that the case is hopeless. If so, it is better that tlie client be made to understand it at once and submit himself to the inevitable command of fortune, than that he be fed with delusive hopes for a while and at the last be taxed with heavy fees and costs, which he cannot avoid feeling to be most oppressive and unjust when he loses the matter in controversy. § 48. This preliminary examination suggested in the last section is now to engage our attention. We remark in the beginning that there are many cases which give hardly any trouble. They may turn upon a single issue of fact or law, and the true decision is manifest. Two con- structions of a statute may be urged one of which is palpa- bly right, or there may be a conflict between two witnesses. Infinite study will often add no difficulty nor abstruseness to these easy cases. Here the lawyer consulted can promptly tell what is to be done. But cases of intricacy, multifa- riousness, and perplexity, of doubt and difficulty, impose great labor upon the lawyer ; and we will now set forth how he is to look into them before he is ready to give an opinion. § 49. He is to master the details. Ordinarily his first instruction is to be had from the client. The latter should be encouraged to tell all of importance that he knows. And we may here make a special application of a passage from Lord Bacon's essay. Of Despatch : — " Give good hearing to those that give the first informa- tion in business ; and rather direct them in the beginning than interrupt them in the continuance of their speeches : for he that is put out of his own order will go forward and backward, and be more tedious while he waits upon his A CASE OFFERED. 39 memory than he could have been if he liad gone on in his own course. But sonietinics it is seen that the moderator is more troublesome than the actor." After you have directed in the beginning, according to Lord Bacon, do not snub the client. His flow cannot be perpetual. He will go through with his communication, giving something like a complete outline. When he makes a pause is the time to question. § 50. We now add a quotation from Quintilian, which is more detailed in its directions, and which reads as if it were written by an experienced counsel of our time : — " Let us allow plenty of time . . . and a place of inter- view free from interruption to those who shall have occa- sion to consult us, and let us earnestly exhort them to state every particular off-hand, however verbosely or however far they may wish to go back ; for it is p less inconvenience to listen to what is superfluous than to be left ignorant of what is essential. Frequently, too, the orator will find both the evil and the remedy in particulars which to the client appeared to have no weight on cither side of the question. Nor should a pleader have so nuich confidence in his memory as to think it too great trouble to write down what he hears. § 5L "Nor should he be content with hearing only once : the client should be required to repeat the same things again and again ; not only because some things might have escaped his memory at the first recital, espe- cially if he be, as is often the case, an illiterate person ; but also that we may see whether he tells exactly the same story ; for many state what is false, and, as if they were not stating their case, but pleading it, address themselves not as to an advocate, but as to a judge. We must never 40 CONDUCT OUT OF COURT. therefore place too much reliance on a client ; but he must be sifted and cross-examined, and obliged to tell the truth ; for as by physicians not only apparent ailments are to be cured, but even such as are latent are to be discovered, even though the persons who require to be healed conceal them, so an advocate must look for more than is laid be- fore him. . , . The client must be questioned sharply, and pressed hard ; for by searching into every particular we sometimes discover truth where we least expected to find it. § 52. " In a word, the best advocate for learning the merits of a cause is he that is least credulous ; for a client is often ready to promise everything, offering a cloud of witnesses and sealed documents quite ready, and averring that the adversary himself will not even offer opposition on certain points. If it is therefore necessary to examine all the writings relating to a case, it is not sufficient to inspect them ; they must be read through ; for very frequently they are either not at all such as they were asserted to be, or they contain less than was stated, or they are mixed with matters that may injure the client's cause, or they say too much and lose all credit from appearing to be exaggerated. We may often, too, find a thread broken, or wax disturbed, or signatures without attestation ; all which points, unless we settle them at home, will embarrass us unexpectedly in the forum ; and e\adence which we are obliged to give up will damage a cause more than it would have suffered from none having been offered." ^ § 53. This passage, both in its exhortation to look with a sceptical spirit into every part of the case and its warnings against the biased representations of the 1 Institutes, 12. 8. 7-13 (Watson's Translation). A CASE OFFERED. 41 party, deserves the meditation of every lawyer. If the advice of the celebrated author was wise in his day, it is more valuable now. The present time gives a greater attention to particulars, and it is logical rather than rhe- torical as the past was. Everything debated is looked at more closely. Preparation becomes more laborious, and trials, arguments, and instructions of the court slowly in- crease in length, year by year. The investigations in chambers and of the forum, in common with those of science, grow more careful and accurate. And conse- quently much must be added to the suggestive and profitable monitions of Quintilian. § 54. There cannot be excessive patience with the cli- ent, provided the counsel keep him from wandering.^ Even his complaints and scoldings, when a few interviews have emboldened him, should be attended to, for they are often the throes of difficult expression of an important fact or view. Do not tire of his repetitions. And follow the ex- ample of the old lawyer, who always said to his consulter, " Be at pains to tell me all the bad, for I will myself find out all the good." After eliciting his own knowledge from the client, he should be questioned exhaustively as to every quarter where other material facts may exist. He can usually mention persons who witnessed important parts of the transaction in hand ; he may have an inkling of rele- vant writings and of their whereabouts ; or he may be able to tell of circumstances which have a bearing upon the case. § 55. The lavvyer must resort at once to the accessible sources of information other than the client. These sources are usually witnesses and documents. And it is to be here 1 Cf. our American Law Studies, § 1184. 42 CONDUCT OUT OF COURT. suggested, that by reason of his cxperieiici) and training much valuable evidence of different kinds will occur to him which lias not been thought of by the client. The witnesses should be examined in person if possible, and not by proxy. They can be brought to some quiet place, and the lawyer must exhaust their knowledge both of the favorable and unfavorable. The client is often seriously mistaken as to their testimony. Besides his inability to grasp and communicate their meaning, he is warped by in- terest and passion, and he therefore exaggerates their testi- mony. Very often, too, his ignorance will blind him to great advantages existing where he shrinks from fancied peril. He may be unbiased and unexcited in a high degree, yet he is not trained to sift and probe evidence and he does not know the law. There may be facts incontestably sup- porting his case, Avhich, from the lack of professional talent, he will fail to find ; or understanding some of the testimony well, but misunderstanding other parts of it, he may build upon a seemingly firm foundation, which will sink away as soon as the whole is properly collated. § 56. If there are relevant documents, the lawyer should be satisfied with nothing but the originals, or, if these cannot be had, with copies carefully made and properly executed. I add an example of a number of examiners of an impor- tant paper falling into the same error. A testator had thus limited certain property : " To be used only for the sup- port and maintenance of each of them [his daughters], and the education and maintenance of the children of each of them." Some three or four copyists, each acting indepen- dently of the others, gave the item just quoted as follows : " To be used only for the support of the children of each A CASE OFFERED. 43 of them." Several certified copies had been made, and but one liad the words as first quoted. A controversy occurred between the counsel on different sides of a case involving the construction of this will as to the true contents of the item mentioned. To settle it, one of them, interested to increase the estate of tiie testator's grandchildren, wrote to the surrogate of another county who had the custody of the paper, stating the contention without disclosing his side, and asking for the truth. The surrogate, thus put upon the alert, inspected both the record and the original will with particular pains and certified the same mistake. Of course our lawyer felt that his case was sure. But as he could not get his adversaries to admit the words to be as he contended, he examined for himself and to his great surprise found that the solitary copy was right and all the others wrong. A writing often refers to another or adopts it in whole or in part. Frequently there are several writings, made contemporaneously or at different times, which must be compared before the precise effect of any one of them can be ascertained. A document may contain a power or an authority to which another must conform strictly in order to be of force. There are often special requirements of form or execution for a particular writing. There are sufticicnt hints in this place of the great care and pains which the counsel must now and then bestow upon doc- umentary evidence before he is qualified to estimate it accurately. § 57. We Avill enforce our counsels by gi^^ng a few ex- amples of miscarriages resulting from neglecting to make a proper examination of tlie testimony before it was offered. An inspection of the paper has disclosed it to be of less 44 CONDUCT OUT OF COURT. age than the docuineiit purported on its face to be. I have seen more than once a writing put in evidence, recit- ing that it was executed anterior to 1861, but which was disproved because tlie paper was the inferior and unmis- takable kind manufactured by the Southern mills during the last years of the late civil war. On a trial of an ejectment, the counsel making the gen- eral reply for the plaintiff pointed out that the grant which the defendant claimed to have received from a county under a law of the State authorizing it purported on its face to be some years older than the act of the legislature organiz- ing the county, and thus convinced the jury that the grant was a clumsy forgery. I remember seeing a trial suspended late in the after- noon, the defendant closing his evidence with a strong at- tack upon the character of the plaintiff, who had made a witness of himself to prove some material facts. His law- yer charged him to come the next morning provided with witnesses to support his character. He came with a cloud. The first, after showing under examination that he was well acquainted with the character in question, answered that it was very bad ; the next made it worse ; and a third, put up in desperation, could find no sufficient language to describe the vileness of the plaintiff and his unhesitating disbelief of him when under oath. Here the support of the plaintiff was abruptly stopped. It was difficult for the lookers on to decide which was the more amusing, — the chagrin of the plaintiffs counsel, or the disappointment of the witnesses not examined, whose countenances mani- fested great eagerness to finish properly what had been so well begun. The damaging effect of a surprise like the last is not to A CASE OFFERED. 45 be calculated. It always strengthens the adversary, it dis- concerts the counsel encountering it, causes the jury to laugh at him and his case, and excites them to complete the joke by finding against him even when his evidence may preponderate. § 58. We give another illustration of the importance of sifting witnesses before it is decided to act upon their tes- timony. It is told by INIr. Warren. " Not long ago ... an action of trespass was tried before INIr. Justice Coleridge, in which a nonsuit ensued almost immediately after the first and only witness had got into the box ; for it turned out that he had not witnessed the assault, and that all he knew was from the plaintiff, who had told him what had happened. The judge was convulsed with laughter, as also were the whole court, — every. one, in short, except the plaintiff and his attorney. How could this case have been got up ? It is evident that the attorney must have contented himself with a hasty in- quiry from his client what was the name of his ^vitness, and what it was that he could prove." ^ § 59. The blunders of relying on documents written upon paper manufactured after their alleged execution, of resting a defence upon a grant which was a palpable forgery, of damning one's character by his ovn\ ^vitnesses, and of bringing an action upon the expected testimony of a person who could only repeat what he had heard from the plaintiff, would have been avoided if the lawyers when first consulted had kept their eyes open, and industriously looked into the facts. There occur in ordinary practice but few parallels of the great carelessness just exemplified. Yet there are not many lawyers who study the case enough 1 Duties of Attorneys, Am. ed., 169. 46 CONDUCT OUT OF COURT. before they advise action. The positiveness and confidence of the client shonld be disregarded. He sliould be used mainly as an index and guide to the evidence ; and all ac- cessible information should be collected, every pertinent document scrutinized, and every possible witness exhaust- ively questioned, before the lawyer confidently advises to litigate or not. § GO. We will strengthen our counsels with two perti- nent excerpts from Mr. Warren, which modernize, as it were, the quotation from Quintilian made above. " Your clients are entitled to your best personal exertions on their behalf. You are bound to look yourselves, and that pa- tiently and thoroughly, into the affairs on which they con- sult you, however troublesome and comparatively thankless the task ; thankless, I mean, because of your trouble being, as it frequently is and must be, inadequately recompensed. You have undertaken the duty, and you nmst go through with it heartily, never devolving on subordinates or others that which the law exacts from yourselves. An indolent, capricious humor may easily betray you into inextricable difficulties and alarming liabilities. Apply therefore your minds closely to the transaction, as though your own inter- ests were concerned. Do not precipitately act upon your client's statements as to such and such being facts, but as- certain for yourselves if they be facts. It is your bounden duty to do so ; and it will not afterward avail you as a defence, when your professional conduct is challenged by a disappointed client, that you had relied on his statements, if you had the means of ascertaining the correctness of them, but neglected to do so. It will, when challenged, be for you to prove your searches, — your inquiries, — that you went to tliis jierson, wrote to tliat, and were duly in A CASE OFFERED. 47 attendance at the proper time and place. How intolerably mortifying for you to have your duties delineated with cruel precision by the judge sununiiig up aydiui^t you in an action for negligence brought by your client, or by yourself against him for your bill [sic], — but unsuccessfully. See in Wil- son V. Tucker, 3 Stark. N. P. 154, the consequence of an attorney's acting on his client's representation concerning a fact. That client had furnished him with an official ex- tract from a will at Doctors' Commons for the purpose of the client's advancing a sum of money on the security of a legacy bequeathed in the will to the borrower. The at- torney, relying on the extract with which his client had furnished him, completed the transaction, counsel prepar- ing the requisite instrument. But it turned out that in the original will there was a clause which did not appear in the extract, . . . such clause rendering the security ut- terly worthless ! On this the client turned round on his attorney, sued him for negligence, and recovered from him every farthing of the money (£210) which the client had advanced on the faulty security ! Hear what Lord Ten- terden told the jury : ' The complaint is that the attorney did not go to Doctors' Connnons and examine the will it- self. I am of opinion that by law it is the duty of an at- torney not to content himself with a partial extract from a will, unless something pass between himself and his client which shows that it is unnecessary to consult the original.' There was contradictory evidence given here; the plain- tiff's witnesses saying that the client had requested his attorney to take all pains and examine the will ; the de- fendant's witnesses, on the other hand, stating that the client had told the attorney that the former had made all requisite inquu-ies as to the sufficiency of the security, and 48 CONDUCT OUT OF COURT. requested liis attorney merely to prepare the deed and com- plete the transaction. The plaintiff's witnesses, however, were believed, and he succeeded. Would that attorney ever again be guilty of this slipshod mode of doing busi- ness ? Assuredly not ; and take care yourselves never to be so."i § 61. Though the case cited above by Mr. Warren was one of neglect of what we term office business, the princi- ple announced therein by Lord Tenterden is also the re- quirement by the law of the attorney who is collecting the facts upon which litigation should be discouraged or rec- ommended. Mr. Warren proceeds as follows, and what he says is fully in place here : — " I repeat then, as a general rule, never rest satisfied w^ith nor act upon the mere representations of clients where you have the means of ascertaining how the facts really stand. And above all eschew a tendency to super- ficial and slovenly habits of business ; ever remembering that you have not only your own client to call in question your conduct and your motives, but also an opponent to deal with, whose duty and interest it is rigorously to scan the propriety of your acts." ^ § 62. The second quotation, which we now give, is still more to the point. " Nothing is easier than to issue a writ ; but if improvi- dently issued, it will by and by come back to you with an awful tale of vexatious and mortifying consequences. In- quire in every direction into facts ; see your client himself; ask for and look at his documents, and consider them well ; go to the witnesses, or send for them and hear for yourself whether they can and will really say what your client tells 1 Warren, Duties of Attorne}'s, Am. ed., 238 et seq. ^ Ibid. A CASE OFFERED. 49 you tliey can and will ; and if you entertain serious doubts, take an opinion on a case, candidly drawn, not slurring over or concealing features whicii you do not like ; and let all this be done before the writ issues. Generally speaking, you ought to have under your eye the expected proof of the witnesses before you issue your writ, or declare or deliver your pleas, and this in almost as exact detail as though the period had arrived for setting such matters forth in your brief, or for an opinion on evidence." ^ The concluding sentence of the last-quoted passage is specially to be meditated. § C3. The American reader is to recollect that Mr. War- ren, in all of the -foregoing excerpts, is speaking of the duties of attorneys and solicitors. These classes only in England have direct communication with the client. As they ascertain the facts of cases when they are offered, and as the ordinary American lawyer does the same, these pas- sages should receive careful study from our students and young licentiates. It is to be further remembered that a practitioner here, after learning the facts, also performs the part of counsel to whom the statement of the case is sub- mitted by the English attorney or solicitor, that is, he rec- ommends whether the client will surrender, or seek the judgment of the court. § 64. It is implied in the foregoing, that the probable case of the other side is to be conjectured as precisely as may be, and we but mention the matter in order to give it emphasis here. It will be fully treated further on. We ^ Warren, Duties of Attorneys, Am. ed., 168. Compare what is said in the American edition of Adventures of an Attorney in Search of Practice, 252-254, as to the over-colored statements of an "angry client." The work is by Sir George Stephen, although in the edition mentioned its authorship is ascribed to Mr. Warren. 4 60 CONDUCT OUT OF COURT. only say now that tlie lawyer whom we have in mind in this chapter ought also to learn as many of the secrets of the adversary as he can at this particular point of time, before he gives decisive advice. Here is another similarity of our subject to warfare. No campaign is resolved upon by a good general until the resources, dispositions, and designs of the enemy arc ascer- tained as accurately as possible. Careful inferences from un- disputed facts are made, scouts and spies arc kept busy, and all available information is gathered fi'om every source. § 65. Concluding this part of the chapter, we refer the reader, in a citation given below, to a passage from Judge Cooley's Suggestions for the Study of the Law.^ It is supposed that an abstract of title is brought to a lawyer for his opinion. Nothing can appear plainer and easier at first sight than this abstract, which is given. But the great lawyer consumes many pages in a most elaborate in- vestigation, every part of which is seen to be indispensable, before all doubts as to the title can be cleared up and it can be settled with certainty to be good or bad. The edi- tion is so common that we need not even abridge the pas- sage. If it be supposed that litigation as to the title there in question is contemplated, it becomes an example fully illustrating the painstaking circumspection with w^hich the lawyer must search after the facts and determine their force and effect before he can be sure that he is competent to counsel the client. § 66. The day of final advice is not to be procrastinated. The thorough examination necessary should be made promptly. A lawyer in good practice is one of the busiest of men, and he should resolvedly correct any propensity ' Prefixed to his edition of Bl. Comm., pp. xvii.-xxi., note u. A CASE OFFERED. 61 to sloth. lie will often be confronted with emergencies rcqniring decisive action at once, and while he shonld never be in a flurry, he should habituate himself to rapid and earnest work. Suppose that the mail is laid on your table. There are a dozen letters. Forget everything else ; break open a letter, — a business letter is usually short ; concentrate your attention upon its contents, and in a few seconds you have read it and decided the fit reply. Then answer at once. Go through the rest of the batch in like manner, never permitting your mind to wander, and writing your answer as soon as you have decided what it is to be, and often in a half-hour the letters are all disposed of, and the answers are more neatly and carefully done than if you had wasted a whole morning over them. § 67. This is to illustrate the despatch which the law- yer must use. The constant cry to him from many urgent clients is, " What will you do ? What must I do ? " If he had his whole life for the study of one case, he might as long defer his advice as Lord Eldon did his decisions. But the press of business, the disadvantage of losing a term of the court, the uncertainty of the lives of witnesses, par- ties, and their helping friends, and the interest and urgency of clients, will not let him rest. In a moment, as it were, he is to resolve upon bringing the meditated suit or making the defence proposed, or counselling against them ; and as he is driven speedily to determine such important ques- tions, he should have facility in mastering the information which must be had beforehand. § 68. Another important point is now to be treated. Supposing that the details of the client's case have been mastered, and the case of the adversary has been conjee- 52 CONDUCT OUT OF COURT. turcd as well as may be, what is the next thing for the lawyer consulted to do ? He is to consider these details in order, in the first place, to ascertain what is the probable truth of the facts. He may have to correct the prima facie import of his testi- mony from the nature and character of the things testified to, or the commonly accepted laws of probability ; and he may have to reconcile conflicts, or, in case that cannot be done, to find which side preponderates, — often a problem requiring great insight and ripe judgment for its solution. The operation of pertinent rules of law upon facts is also to be noticed. There are presumptions, some of them dis- putable and others incontrovertible. A particular group of facts may be a sure claim to some favor, while the law may stigmatize another by refusing it any remedy. Thus it appears that the natural and logical truth of facts is not always their legal truth, and it is the latter which is the sj)ecial concern of the lawyer. § 69. After the facts are grouped and shaped under the law, it is in order to determine what are the points of con- troversy presented by the parties at variance, and what issues will be probably raised in the event of litigation. These issues may be of law and fact, or the case may dis- close an emotional turning point ; and it ^vill suffice for our purposes here to have our reader recall what is said of these things in the last chapter. § 70. We have now arrived at the final stage in the con- sideration of an offered case. All the probable evidence being anticipated as far as possible, and the issues being discerned, what shall the lawyer now do ? He is to ask himself if the chances of litigation are for or against suc- cess. Has his client cardinal superiorities? If he can A CASE OFFERED. 63 conscientiously answer yes to these questions, he is to ad- vise litigation under that remedy and in that court which seem to him the most promising. If he cannot so an- swer, he should decidedly recommend his client to avoid invoking a judgment. § 71. It is important to say a word here of the plan of conduct, the subject of a later chapter of ours. The law- yer ought to have decided how he will litigate before he resolved to litigate. He ought to have a theory of the case. Brutus argued that ^lilo, charged with killing Clo- dius, was to be applauded for killing a pernicious citizen, while Cicero maintained that Clodius had been justifiably killed by Milo as a lier in wait, but with no deliberate de- sign to kill on Milo's part. Cicero or Brutus was right according to the evidence. Or both theories might have been presented under the usual dilemma of contradictory defences, when to make good either one woidd result in an acquittal. The theory, whether of offence or defence, can only be rightly chosen after all the particulars are understood. The true theory is the sine qua non of in- telligent advice, preparation, and subsequent management of the case, and the la\A7er should have settled it at least provisionally before he decided for his client to attack or defend. § 72. The lawyer can neither predict nor assure the event ; he can at best but expect and hope. He is to be governed by probabilities, not certainties. So the general is justified or not, in action involving the lives of his sol- diers and the safety of his country, by the fact that the probabilities favored him or were adverse when he decided and commenced his advance or defence. § 73. The lavvyer should carry his client to the courts 54 CONDUCT OUT OF COURT. only wlien he feels reasonably sure that he has one or more of the legal, evidential, and emotional advantages explained above, and wliich we will further illustrate here. You may safely advise a defence against a criminal charge upon a measure of evidence that would not be sufficient in a civil case, as the Commonwealth and government are held to stricter proof tiian a plaintiff. Or you may find that you have to encounter an a'ccomplice, whom the law re- quires to be corroborated before there can be a conviction upon his testimony, and you can by adroit preparation overwhelm the corroboration, which was fully disclosed in the examination before the magistrate. These two in- stances are from the criminal law. Or you may be dealing with an issue turning upon a particular to which there are many witnesses divided by bias and interest, and you can effect a preponderance by calling the larger number, by impeaching some of the adverse, and demonstrating that all of them are opposed by palpable probabilities. Or again, your adversary may found his attack or resistance upon an assumption of the law which you can show to be v/rong. And lastly, your side may be of invincible popu- larity with court or jury. § 74. We have thus illustrated advantages which are ordinarily decisive for the party possessing them. And the caution must be repeated, that they can only be believed, not known, to exist. The coolest-headed man may make mistakes, and often decide that he has a superiority where on the trial he will be shown the weaker. But when he thinks with good reason that he has a superiority he will do right to advise acting as it suggests. We sum up by saying that a lawyer — to use a colloquial phrase — should take a case submitted to him when, after the examination A CASE OFFERED. 55 and consideration described in this chapter, he has prob- able cause for believing that he has for his client superior chances to those of the adversary, either on the law or tiie evidence, or on both. § 75. The character of the good lawyer will be more fully discussed hereafter, but it must be said now that he should be neither a timid, despondent, nor an over san- guine man. Napoleon's maxim as to the general can be applied to the lawyer : " The first qualification of a gen- eral-in-chief is a cool head, — that is, a head which receives just impressions and estimates things and objects at their real value. He must not allow himself to be elated by^ good news or depressed by bad. . . . Some men are so physically and morally constituted as to see everything through a highly colored medium. They raise up a picture in the mind, on every slight occasion, and give to every trivial occurrence a dramatic interest." The maxim further asserts that such men are not fitted for the command of armies. It could be said with truth that they w^ould not be good scouts, nor could they make a true reconnoissance nor rightly report the progress of a battle, nor do well any other act, whether important or trivial, which demands coolness and a well-balanced judg- ment. , And the important point for us is that such men cannot be good attorneys, solicitors, and counsel. § 70. We have spoken of men of deficient parts. There is a common fault of born lawyers now to be noticed. It is often said of some bright and inventive advocate, that he is never dangerous until he has lost his case. The com- mendation generally means that in losing he has learned how to win the case afterwards. If before he loses he has paid tlie fullest attention necessary to everything, and 5G CONDUCT OUT OF COURT. he discovers in the trial resources whicli lie could not have discovered otherwise, and it is meant that lie is thus dan- gerous, then the commendation would be just. And if by careful study and prudent acceptance of the case when it is offered, he generally wins at the first trial, all would agree that he is indeed dangerous. Many lawyers permit their case to float at will, and never gain any definite knowledge of it until an encounter in court coerces them to a study which should have been made when it was brought to them. This encounter often demonstrates that these careless counsel should have then advised an aban- donment of the case. § 11. Other things being equal, he is the most danger- ous adversary who learns when the client first comes every- thing possible concerning the case, and who declines to take, or takes, prepares, and tries it, according to that which he has so learned. Says his biographer : " Burr began practice upon the principle of never undertaking a cause ^vhich he did not feel sure of gaining. And I am assured by another venerable lawyer of this city, who was frequently engaged with Burr, that he never in his life lost a cause which he personally conducted." The biographer is right in ranking his subject, as he conceives him, below the first class of lawyers ; but the qualities of Burr, as set forth by Mr. Parton, which should be dwelt upon and con- templated, are the coolness with which he looked into the facts of his cases, the indefatigable diligence of his study of these facts, and his resolve not to enlist in a desperate cause. Such qualities in one far inferior in parts to Burr would still make him an eminent lawyer. The danger of ha\ing him as an adversary would be that he would hardly ever fail to win. A CASE OFFERED. 57 § 78. I can never forget a famous lawyer of my old circuit who was known all over the country when I came to the bar. He hud an air of winning because he could not help it. So great had become his reputation as a sound lawyer, that when he deliberately took a position there sprang up with the court and profession, and often with his adversaries, the conviction that he was right and invin- cible. He was as strong on the facts as on the law. At nisi prius his management was an adaptive flexibility, parrying every avoidable attack, achieving every inch of vantage ground, and preparing for the final and \ictorious assault. In the court of errors he would show that there had been no material fault on his side. His verdict stood, and it was usually seen to be right. He was constantly in my thoughts. INIy first note was that he had always a plan of conduct fully premeditated, which he kept fast hold of amid all the wavings to and fro of the trial. Then I observed that occasionally some unexpected turn would develop the case to be totally diffbrent from what his plead- ings, his opening, and his examination of witnesses had shown to be his understanding of it, when he would delib- erate for a moment and with composure. If he decided to go on, he moved with confidence ; but if he saw no road to success, he surrendered. After a while it struck me that he had, by reason of his activity in politics and his great business, but little time for preparation. I found that he joined with an unusually accurate and rapid insight into the law controlling facts a still more wonderful faculty for discovering at once the whole truth of the case. He seemed to guess unerringly at everything on both sides. He took no bad cases. His independence was complete. No importunities, not even those of charming women, 58 CONDUCT OUT OF COURT. could enlist his advocacy wlicn lie bad considered a cause and found it unnuiiutainablo. He somewhat vaunted his firmness in turning oft' bad cases, lie had not the idle ambition of the vain advocate who boasts that he can always w4n. But he did feel, and witli reason, that he could not lose a good case ; and he never seemed to desire winning a bad one. His industry was as marvel- lous as the rapidity of his work. Its only pause was the completion of the task. He used to say that ninety-five per cent of average success at the bar was mere drudgery done in time. 1 would improve upon his saying, and urge that the most considerable part of success in the law is the drudgery of practice done faithfully and intelligently. But his example is given here for the special purpose of enforcing the importance of well understanding a case before taking it. He once told me that his vic- torious career was mainly due to the judicious selection of his cases. § 79. In the foregoing sections of this chapter, we have developed the essential parts of its subject. We will now add a few desultory reflections which we think worthy of attention in this place. § 80. We commence by saying that while insisting as much as we do upon the closest attention possible to all the details of a case presented before advising the client, we do not wish to be understood as recommending a timid, doubting, and over-cautious spirit. We cojiy from Lord Campbell's Life of Hale a quoted passage which we approve : — " He [Hale] began with the specious but unpractica- ble rule of never pleading except on the right side, which would make the counsel to decide without knowing either A CASE OFFERED. 59 facts or law, and would put an end to tlic administration of justice. If lie saw a cause was unjust, lie for a great while would not meddle further in it but to give his ad- vice that it was so. If the parties after that would go on, they were to seek another counsellor, for he would assist none in acts of injustice. Yet afterwards he abated much of the scrupulosity he had about causes that appeared at first view unjust. ' § 81. The lawyer must recollect that the more conscien- tious he has been in his past practice, the n^ore will his clients be disposed to acquiesce in his decisions. There are many of our profession in America whose word is law to almost nine tenths of their following of clients. While we are commendably anxious to avoid encouraging foolish litigation, we should also avoid suffocating a good case by a premature opinion. We are neither judges nor arbitra- tors. We can only decline a retainer when it clearly ap- pears that the client has no case. We should be as sure of his having no case as the law requires the jury to be of the guilt of the prisoner before they convict him. It is far more difficult for the lawyer to reach the needed degree of certainty than tlie jury, for he hears only one side and often he cannot accurately test that. If the case offered is 2^1' 'una facie maintainable, we are not to turn it off. If it is doubtful, we must consider of it until we come to a defi- nite conclusion. Lord Eldon, the hesitating and doubting Chancellor, felicitated himself that his reprehended dilatori- ness and looking over of the original instruments had saved many a landed estate to the true owner. We should per- mit neither our needed promptness in deciding, nor our firmness for what we deem the right, to deprive a client who trusts us without limit of some right which better 60 CONDUCT OUT OF COURT. attention might have ascertained before we influenced him to decline controversy. And we must say, as we have ah'cady said, that this full knowledge comes rather from industry and an energetic addressing of all the fac- ulties to the case at the first, than from long delay and lazy contemplation. § 82. We will now briefly consider the often urged right of a party to force any case upon a lawyer, and what moral principles should guide the latter in his conduct after em- ployment. This is a branch of what is frequently called legal or professional ethics. It has received much good dis- cussion,^ but some confusion yet prevailing may be removed by bringing forward a few distinctions which have been too much overlooked. We set out with persons charged with crime. As it is the rule that the evidence must prove guilt beyond a reasonable doubt and that a conviction is to be had in due conformity to far more strict requirements than obtain on the civil side, the reflecting people of the world are almost at one in embrace of the proposition that such persons can command for their defence the services of those members of the bar who engage in criminal practice. The prisoner who is too poor to pay a fee has counsel as- signed him by the court. The professional effort which can be exacted is, that the prosecution be held to due process of law. If a flaw can be detected in the proceedings or m the evidence, if a doubt, not of guilt, but of the proper proof of the same, can be fairly raised, the counsel is bound to press these advantages with all achievable effect, and cause if possible the acquittal of a man whom he may 1 See the views of David Paul Brown, 2 Forum, 25 et scq. But the hest consideration of the subject known to us is Mr. "Warren's Law Studies, 3d ed., 374-444 q, of which note what we say, American I;aw Studies, § 50. A CASE OFFERED. 61 know to be in fact guilty as charged. If he halt or recoil in this duty, he may receive the plaudits of a few shallow sentimentalists, but he draws upon himself execration of his treachery and desertion from all the better part of the profession. § 83. But now let us look at another sort of cases. A practitioner, known as " the divorce shyster," contracts with a party who seeks without legal reason to dissolve his marriage. A flying visit is made to the locality of a distant State where it is purposed to bring suit, which is treated as a change of domicile, while the client is back pui*suing his business at home ; then sham service of the defendant is effected and returned as legal, though she has never heard of it ; and at the last there is a judgment re- leasing the plaintiff from the bonds of matrimony. Every step was taken, not simply with the fiill knowledge, but by the adNice and active procurement of his counsel. Surely it is palpable that such a case should be declined when offered, and, further, what is done by the lawyer after accepting the case merits disbarment and a long term of hard labor. § 84. To return for a moment to our first subject of illustration. There is a wide-spread opinion that many criminal practitioners abet the procurement of false evi- dence, and become adepts in obtaining for their side all the benefits of embracery without suffering its pains and penalties ; and these acts are condemned as severely within the profession as by the most censorious without. This introduces an important distinction, which is, that, while there may be a case the offer of which a la\\7^cr is not warranted in refusing, yet he cannot be coerced to conduct it in any other way than is legitimate and honorable. 62 CONDUCT OUT OF COURT. § 85. We have mentioned the divuree eaisc wliich no reputable lawyer would be asked to take. There are others whieh, tliough not obviously as bad, yet ought to be scrutinized to see if they are honest. Bankruptcies and failures in which the debtor keeps his estate and gets rid of his liabilities ; claims to property against creditors of the late owner by his near relatives ; — these fall far short of complete enumeration of the instances in which a party is consciously trying to cheat and rob. If his lawyer is aware of his motive and of facts showing the prosecution of the case to be corrupt, and he still helps the client on, he becomes as bad as the client, or even worse, A stranger came into the chambers of a leading lawyer, told his case, and tendered a heavy retainer to have suit made for the projierty he claimed. The IaAV}'er, who was unwontedly perspicacious, suspected from the narrative that the claim- ant had received virtual compensation. So he questioned hard, and drew out an admission of the fact. The com- pensation — it is unnecessary to explain here — had been informal, and the claimant still held the naked title. " Why should you sue for property for which you have been paid ? " was asked. " 0," was the reply, " I choose to insist upon all my legal rights." The lawyer broke into a rage, and he ordered his would be client off, with the remark that he must find somebody else to aid him in his d d villany. This exemplifies the promptness with which you should always fling away a knavish case. § 86. So much for causes and practices that morality commands you to avoid. Next comes the case which is not dishonest, but which you see is hopeless. What arc you to do here ? Suppose that it is a declaration or plea palpably open to a demurrer sustained by the phiin letter A CASE OFFERED. 63 of the statute or the plainer doctrine of the decisions. Of course you ought to be round with tlie client, telling him emphatically that it will be foolish for him to go on. What if he still insist ? as I have known wrong-headed people to do. I am clear that you should decline to make a fool of yourself. § 87. But this does not apply to any but cases surely desperate. David Paul Brown tells the following : " A young member of the bar, who has since reached some eminence, when applied to in a first case, which was somewhat complicated and doubtful, waited on the late ]Mr. Rawle, stated the case, and remarked at the same time that he thought it a bad one. ' You are,' said INIr. Rawle, * a presumptuous young man, thus to venture in the outset to determine what a court and jury only can decide after hearing all the testimony.' " And INlr, Brown quotes approvingly the well-known suggestion of Judge Shars- wood, that cases are to be decided according to the fixed and unbending rules of law and not according to any mere notions of justice held by courts and juries. § 88. Legal rights, not moral rights, are the due of every client from the courts, and of course from the law- yers, who are but their officers and cannot put themselves above the judges. The most just debt will be barred by the statute of limitations. Many an instrument for which money has been paid, or for the setting up of which there exist other high claims of honesty, is avoided every day because of the lack of some formality. The client can exact of yt)u the benefit to him of all such points. But you are not to help him by fraud, nor arc you, by con- cealing or feigning facts, to make out such a case as will bring him a fi\lse verdict. 64 CONDUCT OUT OF COURT. To sum up, if the facts give him or seem to give him prima facie a case recognized by the law, whatever mo- rality may say of it, you cannot rightfully disobey the order of the client to do your utmost to win it for him. § 89. Sometimes the application of these principles will not be clear. Now and then you will have offers which must be decided rather by your feelings than your under- standing, where the question is akin to those others of sound discretion and enlightened conscience, such as the requisite reasonable doubt in criminal cases, or the right amount of punitive damages in some kinds of toi't, or whether a judge shall grant a new trial because of the alleged contrariety of the verdict to the weight of the evi- dence when it has some manifest support. We may note that if you show unalterable convictions against the case, or the particular way of management on which the party has set his heart, he will hardly ever insist upon employing you. Choate did not actually de- cline to defend Professor Webster, but he dissented so vigorously from the proposal of the defendant and his counsel to make the main struggle upon the identity of the remains found in the furnace with those of Dr. Park- man, that, to use his own phrase, they did not want him.^ § 90. I advise that, whenever you decline a case because you deem it unmaintainable, you disclose your reasons fully to the client and advise him, should you be in any doubt, to sound other counsel. You can remind him that prob- ably you have unwittingly become prejudiced against his case and you are therefore a bad lawyer for him. Keep a record of the cases you discourage after full investigation, and of their final results, and you will find that in the long 1 Neilson, Memories, 18. A CASE OFFERED. 65 run you take ten cases which you should not to one that you turn off mistakenly. § 91. There are many laM^ers who are too much in court to originate any business. They are generally re- tained after the issue has been joined. The responsibility of bringing the action or of making a defence has been previously undertaken by a junior. The senior should, at his earliest opportunity, pry carefully into the case in order to learn if it can be upheld. If it cannot be, he should advise a settlement or abandonment. Often, however, the ability of the junior is a sufficient guaranty of a good case. § 92. We will now notice some cases which give much trouble to the profession. Wlien they are offered, we see that they are supported by the law, the evidence, and right, and yet we know that they cannot be gained in the courts, where witnesses, jurors, and the judge will irresistibly band against us whenever we dare to risk a trial. The client may be a corporation which the whole community think is too rich and powerful to have anything more even of its own. He may belong to a class of society almost pro- scribed by that class which furnishes jurors, as in some parts of the South for several years after the late ciWl war it was folly for a native white to submit his case to a negro jury, and in other parts a negro could not get justice from a white jury. In certain places workingmen may be in the ascendant, and deny right verdicts to merchants and professional men contending with one of their class. It will now and then be sheer rashness to carry the just cause of the client into court. § 93. Here the lawyer is not to be blamed for being unable to cure society of its e\41s. He must look about 5 m CONDUCT OUT OF COURT. him and do the best possible. Often a high-toned bar is of great avail against these inexorable prejudices and a composition approximating the right can be secured by its intervention. Sometimes a reference or arbitration can be had, and thus the client acquire something, far short of his due, it may be, yet as far exceeding what he could obtain from the courts. If you can see no help of this kind for him, you should advise him against litigation. But you cannot refuse him your best effort if he decides against your advice. Your conscience dictates that you should do all you can to set up down-fallen right, and it almost reproaches you because you believe your fellow creatures cannot be influenced to help you. § 94. We have had an instructive experience upon this subject. When the courts of Middle Georgia in which we practised were reopened after the late war, it was useless to submit the case of a negro to a jury of the Avhitcs. We witnessed such an unbroken series of adverse verdicts against colored litigants that, as Jefferson said of slavery, we trembled for our people when we thought that God is just and that his justice cannot sleep forever. But the profession stood by their clients faithfully. Even the counsel assigned by the court to defend the negro pauper did his duty fearlessly and went down bravely under the unrighteous conviction. The leading members of the bar spoke out unanimously on all fit occasions advising a better course. At last this persistence began to tell. The tide turned perceptibly in 18/0, and after a while it was no wonder to see a negro obtain his due from a jury of his former masters. § 95. In Avar the post of danger is the post of honor ; in the practice of the law the post of unpopularity is often A CASE OFFERED. 67 the post of lionor. The weak, the defenceless, and tlie oppressed are clients that you must stand by to the death. Whether they are high or low, rich or poor, — for unpopu- lar clients come from every rank of society, — they are a sacred charge. You are to strive harder for them than for those who can help themselves. If, after failing to ob- tain any such amicable adjustment as we have mentioned, you must conscientiously advise tliem to abandon their rights because of your conviction that the probable event will never repay the cost of the controversy, make every- thing clear to them. If they still insist upon their guar- anteed right of appeal to the courts, you have no choice. Prepare and try their cases. Fear not to be called Quix- otic. You work not alone for them. The brave soldiers who fall in the forlorn hope do not throw away their lives. You struggle for the most precious interests of societ^ Grudge not the toil and defeat, rewarded as it seems witli only present obloquy. It is the sure earnest of the ever- lasting amelioration of our race that men will take fire and imitate actions brave and good. Your example inspires others. The better ones begin to organize. And when their organization is complete, no power of injustice can stand against them, § 96. We contend that the principles which we have laid down should govern every one to whom a case is of- fered, whether he be some hard-working junior first con- sulted, or a more eminent lawyer retained after forensic controversy has been commenced. And we here summa- rize the leading divisions of the examination which we have treated in this chapter : — 1. The facts are to be found out. All belonging docu- ments are to be considered with a sharp eye to their rele- 08 CONDUCT OUT OF COURT. vant contents, the validity of their form and execution, and the means of proof. The entire array of witnesses who can possibly testify to important matters are to be questioned exhaustively, in order fully to disclose both their favorable and unfavorable knowledge. Those that cannot be seen in person must be written to, or be sifted by an efficient agent. The expected proof of the other party, whether docu- mentary or oral, — this is an indispensable part of the facts to be learned as well as can be. And the whole body of the evidence, so far as it can be collected now, is to be weighed according to probabilities and applicable rules of law and made to tell its true tale. 2. When a definite narrative, as it were, is fashioned from the facts on both sides, the test of the law is to be applied. Do these facts constitute a claim to a substan- tive legal right, or do they not? and is there an avail- able remedy to obtain or defend the right ? 3. When the course we recommend has been rightly followed, the experienced counsel can predict the result of litigating the given case with some degree of confidence. If he keep the mean between an over-sanguine expectation on the one hand and a seeking for more than a strong probability on the other, and he divines clearly that the chances of success overcount those of failure, he should advise litigation ; but if the chances of failure appear the greater, it is his duty to dissuade the client from appealing to the courts. § 97. This summary is but a condensed statement of the more general principles. All the minutiae of the proper consideration of an offered case will be learned, both in A CASE OFFERED. 69 their separate importance and proper co-ordination, when the subject of Preparation is fully developed. § 98. But, says the young lawyer, How can I ever find out, at the first, all about a case as you direct nie to do ? and if I do find out all of the facts and details, how shall I ever learn what to do with them ? how can I understand what case they make ? He must observe and imitate for a while. His old pre- ceptor will always rejoice to give him instruction. Some young brother of the bar, a little older in the law, will be glad to play teacher. And our jurisprudent, if he be a born gentleman, will find friends among lawyers who will help him with good counsel and prevent him from disgrace- ful blunders. Let him attend trials, noting everything most carefully, and reflecting to see how it was brought about. Let him put cases to his companions and argue with them. And especially let him give some industrious hours every day to his exercises on the reports^ ^ After a while he will become capable of analyzing cases for himself and discerning whether they are maintainable of not. 1 Note our American Law Studies, §§ 239 et scq., 272-2-'"9- 481, 727, 779. 70 CONDUCT OUT OF COURT. CHAPTER II. PRINCIPLES OF PREPARATION. — PREPARATION OF THE EVIDENCE. § 99. In this chapter and the two whicli succeed, we treat of the preparation of the case on the evidence and its preparation on the law. Afterwards we notice the proper plan of an attack or defence. It is necessary to discuss other matters belonging to our general division of Prepara- tion, most of which head different chapters. We wish to impress it upon our student here, however, that there is actually no such serial progress. The parts of a thing, even when they are coexistent, must be looked at sepa- rately to be understood. When the case is presented there is almost at once some immature conception of the cardi- nal questions of law and fact, and of the proper plan of conduct, and they are steadily developed into greater clear- ness and distinctness. And though the various items of preparation in their growth keep an even pace with one another, still we must consider them successively in order to present more intelligibly the whole which they constitute. § 100. The lawyer deciding upon litigation has analyzed the case and made choice of his forum and remedy. He has discovered all the material points of controversy which can be discovered at the standpoint of the last chapter, and he can commence making rational provision for the PRINCIPLES OF PEEPAKATION. 71 decisive encounter. We must, liowever, emphasize the fact, that the most careful consideration of a case offered often amounts to no more than a bird's-eye view of the prominent particuLars, many smaller ones being left unas- certained. And further investigation, the manojuvres of the adversary, sudden and surprising developments of many kinds, — all these may contribute new facts and points of leading importance. Of course these new facts and points ought to be studied as carefully as those which the law- yer passed in review before he advised the action of the client. We say this to hint the Avide scope of our present sub- ject, and to remind the student that in many cases much is to be done which cannot be foreseen at the first. And we must now proceed to discuss the different aims of in- telligent preparation. In the rest of the chapter we shall confine ourselves to the evidence. § 101. The first of the aims just mentioned is to assure those advantages which appear when the case is taken. We Avill begin Avith the witnesses. What we are now going to advise is often properly done while the lawyer is considering the offered case, but it is also such a material particular of preparation that it must receive a place here. The client, or another, tells you that somebody will tes- tify so and so, and you see that the testimony as repre- sented is material. This witness should be brought to you without delay, and you must make yourself or have your associate or clerk to make a copious memorandum of his statements. You will remember that Quintilian gives simi- lar advice.^ The careful examination of the witness will 1 A7itc, § 50. 72 CONDUCT OUT OF COURT. be of great profit to you in more tliau one respect. In the privacy and command of time which you have in your con- ference you will sift him thoroughly. Ilis freedom from embarrassment will be favorable. You can correct his mis- takes. Should he make an erroneous statement in public he will hardly take it back ; but in your office you can lead him to retract an untrue assertion. Y»u may obtain from him clues to other helping evidence. It is also an advan- tage that you commit and fasten him to his narrative. For sometimes a witness is wavering. When the transaction is fresh he is full of nothing but its actual details, but frequently he is disposed afterwards to alter his first report. He may begin to recoil from the effect of his testimony uj)on the interest or feelings of the opposite party and his relatives and friends, and he is usually influenced by their appeals and solicitations. All of us have observed that the testimony of good men is shaped and colored by their associates. You will sometimes find that the others, while testifying to the same fticts, repeat many particulars of the first witness, although they may have been excluded from court during his examination. This is because they have talked over the matter together, each desiring to avoid being contradicted by the rest. Many times the others labor to reproduce the narrative of the one of most intelli- gence and standing ; and he may be strongly biased, for all of his seeming frankness. You have a multitude of reasons for being in haste to make your slippery witness sure and steadfast. Get from him the whole truth and nothing else, and see that he agrees to your notes. It is often well to have him sign the minute which you have made. § 102. We subjoin a passage from Sir George Stephen which differs decidedly from the advice just given. The PEEPARATION OF THE EVIDENCE. 73 reader is reminded that Mr. Sharpe is an attorney, not a counsel. "At one time I made- it a habit to take out ink and paper and reduce at once to writing all that my witnesses stated, while they were still with me ; sometimes I do it still ; and where it can be effected without exciting alarm it is a useful practice ; but I was cured of it as a habit by more than one instance of the following kind : — " * Bless me, Mr. Sharpe, what are you doing there ? ' " ' Only making a minute of your evidence for counsel.' " ' Minute of my evidence ! I won't agree to that.' " ' Why not ? You can't think that I can remember all we have been saying ? ' " * I can't help that ; I 'm not going to swear in black and white ; I have told you the truth, but I 'm not going to be taken dowii.' " * Will you write it yourself? ' " ' No indeed ! I may have made a thousand mistakes. I '11 do no such thing.' " ' Come now, be reasonable ; what is the use of your telling me all this if it is to go no further ? and how can I make use of it if I am not at liberty to take notes of it ? ' " ' That 's your affair, not mine ; I have nothing to do with it. Give me that paper or I '11 not say another word.' " And I have been obliged to surrender my memoran- dums as a peace-offering to secure further communication ! All this is prodigiously absurd ; but it is our lot to deal with the absurdities not less than with the passions of mankind." ^ § 103. I say, in contradiction of the above passage, that I have taken down the statements of many witnesses with- 1 Adventures of an Attorney, Am. ed., 294 et seq. 74 CONDUCT OUT OF COURT. out having a single one to object. Nor have I ever known one to decline to sign the abstract of his testimony. Some- times a witness has reqnired as the condition of his signing that he be furnished at once with a copy. § 104. In the following excerpt jMr. Warren tells how a witness was effectually committed against his bias. "An action was pending upon a promissory jiotc for a large amount, which had been given to the lender by the principal debtor, and the defendant (his aunt) as his surety. The former became insolvent, and the payee . . . immedi- ately sued the surety, who was a responsible person. The plaintiff however found himself suddenly encount red by a serious difficulty in showing the signature to be that of the defendant, whose niece, it seemed, had signed it, in her aunt's name and by her exj)ress direction. The former was now disposed to deny having had authority for doing so ; and no one else had been present at the time of the signature but the insolvent principal debtor, whose evidence was expected to be also hostile. It suddenly occurred to the plaintiffs attorney, in this dilennna, to go to the Insol- vent Court and oppose the insolvent's discharge, in order to have the opportunity of examining him quietly upon the matter, without his being aware of the true object. This was done ; and there was adroitly extracted from the un- suspecting insolvent, upon oath, a clear acknowledgment that he had heard the defendant authorize her niece to affix her aunt's signature to the note, and he had seen the signature affixed accordingly. A day or two afterwards the astounded insolvent was sei-ved with a subpoena to prove this fact on the trial of the cause ; and the instant that the defendant's advisers heard of that circumstance, they suc- cumbed, on the very day of the trial, when the cause was PREPARATION OF THE EVIDENCE. 75 on the eve of being called on : the defendant unexpectedly submitting to a verdict by consent for the full amount, which was duly paid. But for this ingenious manoeuvre the plaintiff would in all probability have been unjustly defeated." ^ § 105. Probably the most common mode of securing doubtful testimony is to have the \vitness repeat it in the presence of persons of good character. The fear of be- ing contradicted by them will generally keep him to this narrative. And we suppose that every careful lawyer can recall some instance in his practice when he took time by the forelock and obtained from an anticipated witness a letter stating what he would testify, before any warping influence had begun to work on him, and he afterwards saw that the ^ntncss regretted writing that in which the truth was poured out so unrestrainedly. You will now and then have an opportunity of taking an affidavit to support the allegations of a bill in equity, or an answer thereto, by which you have the affiant put him- self down in black and white. A person once professed himself ready to support certain statements in a bill for injunction which I had every reason to know were true ; but he was sent off" in order to consult a memorandum and refresh his memory of other facts which it was desirable to prove. During his absence he fell under hostile influences, and when he returned he could recollect nothing at all. Had such an affidavit as he could then give been promptly taken at first, a most material preponderance would have been gained for the complainant. 1 Law Studies, 3d ed., 462, 463. 76 CONDUCT OUT OF COURT. § lOG. The written c\i(lcncc requires a word. In some places, wliere the court and registry offices liavc insufficient protection against fire or thieves, it is often prudent to get as soon as you can a duly authenticated copy of whatever document or record in these offices is of importance to you. And there are many relevant private writings of which you cannot acquire the custody, such as unrecorded conveyances and agreements, letters, accounts current, en- tries in books, etc. You should at the earliest opportunity have accurate copies made of these and provide yourself with sufficient proof of their accuracy, this proof to be used in case the originals become inaccessible. § 107. Having set forth the general modes of ascertain- ing the narratives of witnesses and confirming them in the same, and of collecting the written jiroof and placing it beyond the chance of concealment or destruction, we will now consider the next stage. This is to obtain the proper process for compelling the attendance of the witnesses and the production of the documentary e\4dence. Subpoena, duces, notice to produce documents, — these suggest the means most commonly used. And it must not be forgotten that there are many witnesses, such as females, and males residing out of the county or district, whose testimony can only be coerced, in civil cases, by suing out a commission. The law of the State, or the federal law-books if the case is in a court of the United States, usually contain full and precise directions, which should be conformed to in all these matters. § 108. It is often a question of policy whether you shall avoid the disclosure which will necessarily be made to the adversary by your resort to some of the means just enumer- ated. It may be better now and then to rely only upon PREPARATION OF THE EVIDENCE. 77 the promise of a witness to attend, or that of a possessor of a document to produce it. The subject of keeping one's important secrets will be specially considered after a while. But ordinarily there is no good reason to fear such a dis- closure and it is but i)roper diHgence to sue out the process and have it executed at once. § 109. We must say a word of your duty when you have but a single witness to a material point, or some of your important witnesses are of infirm health, — a subject whicli really belongs as much to the first division of this stage of preparation treated above as to that now in hand. The process of the court does not run into the other world, whither they may have gone when you would swear them. In all the instances just supposed, it is the right course to have the testimony perpetuated in the most expeditious way allowed by the law. The family of the client may then be protected after lie, his witness, and his lawyer are in their graves. We suggest that you should have all the important witnesses for the defence of a client charged with a crime who are not likely to live long to testify in full at the examination of your client by the magistrate, as he is required to make a minute of the evidence, which minute can be used afterwards if the witness cannot be had. Likewise, when a witness has been examined in a civil case, if there is another trial of substantially the same issue between the same parties, his testimony can be proved, he being then dead or inaccessible. § 110. The second object of an intelligent preparation is to obtain if possible additional advantages. A mine of facts is often inexhaustible for a great while. Note some contested question in history, — how centuries ^vill pass away before it is settled. Many of the pertinent particu- 78 CONDUCT OUT OF COURT. lars are dispersed or concealed, and it requires time to collect or discover tlieiu all. Some of them, though known in a measure, have never been fully understood. So with the facts of a case. Your vigilance and search should never end. Strive to learn more and more. Scour every possible nook and corner where evidence may be hidden, and you will often make favorable developments which will astound your client. As preparation goes on, it re- veals sources of information not even suspected before. Thus you may detect a bias warping the adverse witnesses, which, if it can be proved, may unload their testimony of all its weight. You may find out that a grant on which the adversary relies is a forgery, or that a deed supporting his title is void, or that a very formidable witness has given in the hearing of credible persons an account of the trans- action contradicting that he is now expected to make. Time does not serve to enumerate instances of the advan- tages which may be acquired after you have begun to pre- pare your case. The trial itself — when, as you believe, you have exhausted and drained dry every fountain of rele- vant evidence — will often give you hints from which you may profit, even before it is concluded, to the strengthening of your case. § 111. We will enforce our counsels with a few ex- amples. An experienced practitioner, as he told me, once had great need to ascertain who had drawn an instrument which was then the subject matter of important litigation. He had used the information of his client, who was the executor of the person for whom the instrument had been drawn, and he had inquired wherever he thought it at all probable that he could learn anything of the matter, but PREPARATION OF THE EVIDENCE. 79 failing everywhere and thinking of no other possible chance he had given up in despair. Soon afterwards, being en- gaged in the trial of a cause in a distant county which he had never visited before, while listening to the examination of a witness by the other side, he heard some one behind him whisper of the instrument to another. He pricked up his ears, and the talker said that the first money he had ever nuide was by copying it for , an eminent counsel known to our lawyer only by reputation. The secret was thus casually discovered. Upon corresponding with the draftsman his testimony was found to be most material, as anticipated. Our friend confessed that, aftir he had thus obtained what he had so long desired, nothing could seem more natural than that the instrument should have been dra\\Ti by this very counsel, and that had he rightly rea- soned from his information he would have discovered the fact months before he did. § 112. The collateral heirs of an intestate who had left a large estate had brought a bill against the administrator. To the great surprise of the complainants, the answer of the administrator set up a claim against the intestate larger than the estate. There was no mention of this claim in his returns, as there ought to have been under the circum- stances had it been genuine ; and the counsel for the heirs had other reasons for belie\ing it an invention. But as the defendant was a popular man and had always borne a good reputation, it was plainly necessary to add, if possi- ble, new support to the bill. There had been several full consultations with one of the heirs after the filing of the answer, and she at last declared emphatically that she had disclosed all of importance that she knew. The adminis- trator was her brother, and the two had long lived in dif- 80 CONDUCT OUT OF COURT. ferent counties. Reflecting upon this, and upon the fact that the administrator had been suable for several years before the bill was brought, the leading counsel for the heirs inferred that the sister must have received some let- ters from the brotlicr of which good use could now be made, and he had his junior to visit her again. She could recollect no letter, and she could hardly be induced to make a search. But she was at last made to find a letter. It had been written soon after the qualification of the ad- ministrator, and it was a lengthy summing up of reasons why the sister could get nothing from the estate. There was not the slightest hint in it of the claim mentioned above ; but on the contrary it contained certain expressions which negatived its existence. Of course this letter proved of great service to the heirs. § 113. The last instance which we give here shows that sometimes the progress of the trial afibrds good oppor- tunity to get new and important e\Tidence. On the trial of an indictment for burglary, a witness tes- tified that, having been delegated by his employer to watch the premises, he had concealed himself under a house, and while there he saw the defendant standing at that door of the neighboring building which had been broken about the time the ofi'ence must have been committed. Under the cross-examination the witness was made to locate himself precisely at a certain pillar supporting the house. A repu- table man was slyly procured to put himself in the place, and he returned in tiipe to prove for the defendant that one in such a position could not possibly see the door in question. This testimony destroyed the credit of the State's witness. § 114. The third object of preparation is — anticipating PREPARATION OF THE EVIDENCE. 81 your adversary's case, as will be explained hereafter — to cripple him and abridge his advantages. For instance, there may be strong popular feeling prevailing against a client charged with a great crime, and if you can procure a continuance the passionate prejudice giving the Common- wealth the superiority may subside before the trial. Here you must stand ready with a proper showing, if possible. Again, you may be aware of overwhelming evidence against you, while the adversary has not discovered it. By adroit management you may conceal it effectually, or you may force a trial immediately ; and he may in neither case ever discover it. § 115. The foUo^ving is an example of neglecting an opportunity to cripple the adversary. A statute permitting parties to testify made an excep- tion where one of the parties to the contract or cause of action was dead. This was held to exclude the livins one only when the estate of the dead party would be directly affected by the judgment in the particular case. In an ejectment where the plaintiff was re-entering for condition broken, he could prove the breach only by himself. The defendant had purchased from one deriving title from the plaintiff. The man to whom the latter had conveyed on condition was dead, and had his representative been vouched by the defendant as a co-warrantor and made a party, the plaintiff would not have been competent under the local adjudications to prove the breach, as the judgment would then have affected the estate of the dead party. Omitting to vouch the representative of this warrantor lost the defendant the case. § 116. One of the most common instances in practice of embarrassing your adversary, is to make out a prima 6 82 CONDUCT OUT OF COURT. facie case if you can without examining a person who can testify strongly for you and who must be; called by the other party. The latter by calling him makes him his own witness, whom he cannot discredit, and on the cross-exami- nation you will elicit all of his favorable knowledge. There is often opportunity to draw away from the ad- versary some of his strong supporters. It may be that a joint party, or the relative or employer or friend of a party, may be brought to form an alliance with you, in which case you may have an accession of testimony. The longer you practise, the smaller will be the proportion of witnesses you meet whose testimony is not colored by their interest and affections. § 117. We have enumerated and briefly treated the three general objects of preparation. The student, from his own observation or invention, will supply many more instances than those which we have given illustrating each one of the three divisions. And he must leave it to fur- ther study and the teachings of practice to give him a firm hold of the important parts of the subject we have just had in hand. We go on to treat some of its other parts for which we could not find a proper place heretofore. § 118. Your preparation should not be allowed to hurt the client. If the lawyer is careless he will often produce evidence which will be turned against him with damaging effect. He should seek to avoid conflicts, contradictions, and aid of the adversary in his own positions and evi- dence. We will give two instances of a party's injuring himself rather than his adversary by his own evidence. The first was on a caveat to a will propounded for pro- bate, the issue being whether the witnesses signed in the PKEPARATION OF THE EVIDENCE. 83 presence of the testator. Tlierc was no doubt that he and all of the witnesses were present when the execution coin- menced, but the caveators contended tliat he left the room, before the witnesses signed. The recollection of the sub- scribing witnesses was not clear, and the court held that by reason of this testimony there was a prima facie pre- sumption of due execution. To rebut this presumption the caveators read the testimony of two women which had been taken by commission. These two were in the room during the execution of the paper, and both of them testi- fied positively that the testator went out in company with themselves before the subscribing witnesses had signed. This testimony seemed to overwhelm the propounders ; but when it was criticised it was shown that in every other respect save that they carried the testator off before the subscription by the mtnesses these two were in irreconcil- able conflict with each other. One said that the testator accompanied her and her companion to the room, while the other said that tlie testator was already in the room when they came and she did not know whence he came. They disagreed as to the order of leaving. One said that the testator went out with the two and at her side, the other said that he came behind them. According to one of them the two went out into the hall and passed up to the door of the sitting-room, where they stopped; the other carried the whole party at once into the sitting-room. Again, each one of them was at variance in other particu- lars with tlie weight of tlie evidence ; in many instances the variations being tri\4al, to be sure, but yet of great im- portance for testing the accuracy of their memories. The l>aper, at the time of its execution, was primarily intended as a settlement, and it was not known by the subscribing 84 CONDUCT OUT OF COURT. witnesses nor the women to be also a will, and none of them pretended to have closely observed the details of its execution. Many years had elapsed since the occurrence under investigation. One of the women was interested with the caveators and the other strongly biased in their favor. The jury could not trust their memories in the solitary particular where they agreed, and they found a verdict setting up the will. Now had the counsel who prepared the evidence for the caveators done his duty in carefully sifting the two women before they testified, he would have discovered these con- flicts. His course would then have been plain. He would have got a commission for and examined only one, selecting that one who had no interest in the event of the case.^ § 119. The other illustration occurred in the trial of an action which a local statute permitted to be brought by the heirs at law against the administrators of the intestate and their sureties. The defence was the general issue, denying every part and parcel of the large waste alleged by the plaintiffs. An experienced lawyer, who specially represented the sureties, offered a voluminous transcript of documentary evidence, by which he apparently set great store. It was received without objection, the reading being waived. His discomposure was very great when the o-p- posing counsel, in his argument, showed that this transcript, among other things, contained proceedings taken some years before by these very sureties against these same ad- ministrators, wherein a receiver of the assets of the intes- tate's estate was appointed by the present counsel of the sureties, who was at that time a judge. The sureties had 1 Had the witnesses been examined together, as might have been done, perhaps there would have been less contrariety in their testimony. PREPARATION OF THE EVIDENCE. 85 obtained the appointment of the receiver bj complaining of the same waste which they now denied. Of course this evidence sliould have been omitted, as there was nothing in the whole of it to compensate for the damaging effect of the appointment mentioned. It gave the counsel for the plaintiffs a great moral advantage which perceptibly cowed his able adversary. § 120. The one sure preventive of such self-caused inju- ries is a careful contemi)lation and study of all the details of a case during its preparation. Not only should every parcel of the evidence be studied and construed as if de- tached from the rest, but its effect on the whole must be understood. And this should be done before the evidence is made accessible to the other party. It is disgraceful stupidity for you yourself to arm your adversary. § 121. You nmst stand on your guard against the efforts of the adversary, divining his purpose and preparing against it. You must make him disclose his hand, using however no discreditable artifices or tricks. A lawyer is not to eavesdrop or listen at keyholes. There are honorable ways of acquiring a knowledge, more or less accurate, of the de- signs and doings of the other side. Further testimony, both oral and written, comes to light during the investiga- tion, and you see that it will probably be used by him. And it is not women only who are unsecret. Generally, men engaged in any controversy which involves much feel- ing, as is usually the case in litigation, are prone to predict success for themselves and explain to their hearers by what evidence and legal principles they expect to win. Lawyers as a class are communicative. And cases that turn upon disputed facts usually divide witnesses into parties who talk and argue with one another. To profit by this, you 86 CONDUCT OUT OF COURT. should depute your coolesUieaded witness to get an accu- rate report of what the opposite witnesses say that they will swear. We have known this stratagem to succeed more than once. Witnesses in general become partisans. It does really seem that many of them feel bound to give their good wishes wholly to the party who has subpoenaed them. They will often go great lengths to serve their friends. Amid a considerable number, there will nearly always be one qualified for making the report just men- tioned ; and you will often find that, when you have reflected over what is reported, much of its formidable character can be removed by a cross-examination judiciously planned, or that you can easily provide counter testimony to overwhelm it. § 12-2. The unadvised talk of the adversary, his lawyers, witnesses, and friends, is not all that you must attend to. His pleadings, and the amendments thereof from time to time, his resort to new remedies, his application for subpoenas, commissions to examine witnesses, orders, etc., the proposals which he submits and the waivers he solicits, and all 'his movements, should be carefully ob- served and thought over. They will often throw a bright light upon designs and operations which he believes are known only to himself. § 123. And you should consider if there be any remedy or move open to you by which a disclosure can be forced. There are correspondences in litigation to the armed re- connoissances of warfare. Thus, by a motion to dissolve an injunction when the answer swears off the equity of the bill, you may drive the complainant to a support by affidavits which .will accurately inform you of much of his testimony. - PREPARATION OP THE EVIDENX'E. 87 Again, you may be defending one charged Avith a crime and arrested on a warrant before indictment found, and by refusing to waive an examination and give bail, as the local law often allows, and making a stout contest before the magistrates, you may draw out the whole case of the State, keeping your own back if you choose. One of the advantages of holding the initiative is, that when you prove a prima facie case on the trial, the adver- sary must offer overcoming evidence in order to avoid an adverse verdict, while you can dismiss if you arc afraid to risk the jury ; and [)crh:ips you learn from this observation of his proofs how to be the stronger after your renewal. It is not needed to exhaust the illustrations which the law of procedure affords. It suffices to say that it gives everywhere to the practitioner remedies Avhich he will often use wisely for no other purpose than to reconnoitre or feel of his adversary. § 124. We must not forget to say that no professional man in America has so many warm personal friends as the lawyer. They take a pleasure in giving their f^ivorite all the information possible in his cases, often doing for him what they would not for the client. § 125. By reason of the different means enumerated above, the secrets of almost every case arc revealed be- fore the trial. At least they are told to those who know how to listen for them. As they come out, part by part, scattered here and there in different places, it may be over a large neighborhood, it is the duty of the lawyer to col- lect these fragments, put them together properly, and learn what mischief is plotting against him. And he nmst disprove as far as possible every material particular of evidence wliich he anticipates will be advanced by the 88 CONDUCT OUT OF COURT. other side. Care, on tliis point is indispensable to the proper eondnct of a trial. § 120. It is often politic, as we have hinted, that you conceal your purposes and proof. This is not always so, for it is now and then the more successful course, as is usually the case when you are opposed to great frauds or heinous crimes, to play with an open hand and make the sympathy of all good people active for your cause by dis- closing your strongest evidence. But as to proper conceal- ment we begin by cautioning you not to talk to your client too freely. You need not tell him your plan and anticipa- tions, even when, you have him executing the one and providing against the other. He is often leaky and over- talkative. In litigation, secrecy is sometimes of as much avail as it is in the project and movements of a campaign. Let your knowledge of human nature and what you deem the true interests of the case settle for you whether to make a full confidant of the client or not. § 127. When it is the true policy the prudent practi- tioner will guard against the escape of his secrets, uot trusting client, friends, witnesses, or his imprudent asso- ciates overmuch. Sometimes he needs to be very ingeni- ous to succeed. He had better talk with his witnesses separately, and out of the hearing of his client if the latter cannot exercise reticence. If he discovers that the adver- sary has set a trap to catch some of his secrets, he should make a dupe of him. The laws of civilized warfare, though demanding of the combatants the strictest observation of all the requirements of a sound morality, permit to both the use of honorable stratagem. No faith is to be violated. What you do should not shock the conscience, it should only deceive the head of the enemy. If the trust of the PREPAKATION OF THE EVIDENX'E. 89 adversary is invited, as where a composition or an accord is proposed, the utmost triithfuhiess should characterize all comnmnications. But when he chooses to scrutinize your actions Avith a view to divine your purposes, you are under no obligation to help him discover what it is your interest, right, and often duty to keep dark, and he cannot com- plain if by your actions you mislead him. He is not to force his credulity into your keeping as his trustee. One of the objects of stratagem is to mask your purpose, whether it be attack or defence. The pleadings, even when most accurately and technically drawn, hardly ever advise the other party of more than the general nature of the defence or attack preparing. The plan of either side is to be looked for elsewhere. Your adversary will have both scouts and spies in his pay, and you are at liberty to befool them by any ruse which is not a breach of honor. You can keep from the witnesses whom you sift in your office the points to which you are really examining them, by questioning with apparent interest about many other things. You can hide your real plan from your client, and if his confidants are entrapped into reporting what they suppose to be your designs and line of operations and thereupon the adver- sary shapes his course against what he has mistakenly conceived to be your case, he can ascribe his consequent disaster only to himself. He trusted his own judgment and it deceived him. § 128. We have considered the stratagem which foils the adversary prying into your secrets. There is another by which you seek to create a false impression of your ob- ject. The most common instance is where you subpoena one whom you know to be an adverse witness, intending to excuse his attendance when it is too late or impossible 90 CONDUCT OUT OF COURT. for tlio adversary to have liiin. There is an infinite variety of ways to disguise your true aim under tiie pretext of a different one. The circumstances of the particular case dictate the proper stratagem. It must be remembered that stratagem is a game whicli two can pUiy at. Beware that you are not caught by those of the opposite side and that yoU do not yourself fall iuto the pits that you dig for others. It is also to be said that it is more and more demanded of parties and their counsel that there be no suppression of the truth and no deceit. Wliere the other party is un- scrupulous and he possesses large resources of testimony in a numerous following, or where popular prejudice is un- justly against you, and perhaps in other instances, you will generally find it necessary to keep your plan closely, to hide the decisive evidence upon wliich you rely, and to mislead the adversary as to both. But we strongly believe that there is an increase in average litigation of controver- sies between honest litigants, who desire only that the full merits of each side be Compared, and that the one prevail which is found to be in the right. § 129. Returning to the general subject of the chapter we remind " our jurisprudent " that the law is the great guide to the lawyer in the preparation of his cases, even in the matter of evidence. He finds it necessary, it may be, to prove the death of some particular man ; he has no witness to testify to the fact desired, but the law permits him to raise the presumption of its existence by showing an absence of the person in question for a certain number of years without having been heard from. The books contain minute directio/is as to the proofs required to sup- port particular actions and pleas. There are also rules for PREPARATION OF THE EVIDENCE. 91 weighing evidence : thus positive, other things being equal, will overcome negative ; an unbiased witness is more cred- ible than another to the same fact who evinces an evident leaning towards one of the parties. It is not our object to compile the law. We must take it for granted that our student knows its general principles. And we earnestly in- sist that even in seeking after superiorities of evidence his Stephen, Greenleaf, Wharton, and Abbott be reinforced by the digests both general and special, and especially that the reports of his State be constantly looked to for guidance. It is true that the law of evidence grows more and more liberal, assimilating itself year by year to that logic which, according to the title-page of John Stuart Mill, contains " the principles of evidence and the methods of scientific investigation." Disabilities and incapacities have been re- moved which the centuries before us worshipped, deluded into believing such suppressors to be the guardians of truth. In our own day we have seen millions of blacks made competent witnesses in all kinds of cases. Still the law is not ready to surrender her supremacy, and unfortu- nately an argument decisive in the courts can often yet be made from facts perverted and garbled by legal rules which is not a logical argument. § 130. We now summarize the more important items which we have been considering. First. The evidence found to exist when litigation is decided upon is to be put under command. The oral tes- timony is to be ascertained precisely, and the proper steps taken to fix the fickle or those under an adverse bias or interest by having them authenticate their statements with their signatures or make them in the presence of others. All documents are to be guarded against the peril of removal or spoliation. 92 CONDUCT OUT OF COURT. As the second stage of securing existing advantages of evidence, the process for coercing the appearance of the witnesses and the forthcoming of the documents must be used. It is also pointed out wlicn testimony shoukl be perpetuated. Bhmders here arc more unpardonable than anywhere else in the preparation. The duty is plain from the very first. In the subsequent investigation other ad- vantages may escape discovery, in spite of great industry ; but if you do not, by using the cheap and easy process of the law, assure those advantages palpable to an average practitioner as soon as the case is presented, the damage resulting to the client is fau'ly chargeable to your gross negligence. Second. The practitioner must, if possible, develop a greater force in his proofs than they appeared to have, or he must acquire others. The patient study of the facts in order to get their full meaning is hinted, and detailed di- rections for discovering and collecting remaining evidence are given. Third. It is shown to be an object to hem hi the ad- versary and curtail his available supports, and examples are given to emphasize the importance of attending to this duty. These three are exhibited as the leading constituents of a rational preparation. Then come the following addenda: — 1. Warning is given against hurting your client and helping the other side. It is insisted that the issue be so well understood, and the witness or document be so accu- rately examined beforehand, that no adverse testimony be unwittingly produced. 2. Then the modes of finding out the opposite case and the proper counter measures to be taken by you are reviewed. PREPARATION OF THE EVIDENCE. 93 3. Next, you are told when to conceal your hand and how to thwart the curiosity of your adversary. 4. Lastly, you are impressively reminded that even the principles of preparation of the facts are derived in great part from the law, the importance of its department of evidence being particularly suggested. § 131. So nmch for the subject of this chapter. The lawyer should prepare upon the facts with unflagging in- dustry. As we have tried to impress upon the student, often after the case appears prima facie to be maintainable it requires great labor to detect all of the supj)orting testi- mony. You ^^dll be led to more and more of it by probing the witnesses, your client, the documents, and the entire sources of information. All of us have noted the shrewd- ness with which veteran lawyers guess at the existence of testimony. Spare no pains to get the whole. Nothing material, whether apparent at the first or afterwards found, should be thrown away. An item light and trivial of itself may turn the scale. Remember the maxim of Xapoleon : " When you have resolved to fight a battle, collect your whole force. Dispense with nothing. A single battalion sometimes decides the day." Mr. Warren gives advice similar : " Always orer-prove rather than under-yroxQ your case. By this I mean that, when you have got so far in a cause as to the point of trial, you should not peril all that you have already ex- pended and damage your client's interests and your orni reputation by niggard considerations of expense in provid- ing proofs of your case. Five or six pounds may, as it were, insure you against defeat, by excluding all fair chance of deficient proof. It is much better to have secured a verdict burdened with the cost of a superfluous ^\itness. 94 CONDUCT OUT OF COURT. but whose testimony might, in some turn of the cause, have been indispensable, than to have lost a verdict which you would have infallibly gained if you had not chosen to run so near the wind and neglected to come provided with proof which might not have increased your costs a couple of pounds, — those even having to be paid by your oppo- nent. There have been very many cases in which a party has struck at the trial, especially at the assizes, on seeing his adversary come prepared with such superabundant proof as excluded all chance of a breakdown." ^ § 132. We add a word of caution. Beware of divert- ing yourself and the jury from the turning points by attend- ing to unimportant matters. One who has made a brilliant and solid fame as a lawyer and judge ^ often tells me that the greatest trouble in practice and on the bench is to get rid of tlie immaterial, to disentangle the merits from the mass of irrelevancies with which they are mixed up by the testimony and argument. We say plainly what Mr. War- ren really means : over-prove, if you can, the important and decisive points, and leave all the others to the care of your adversary. 1 Duties of Attorneys, Am. ed., 181 et seq. 2 Judge L. E. Bleckley. PREPAEATION OF THE LAW OF THE CASE. 9a CHAPTER III. PREPARATION OF THE LAW OP THE CASE. § 133. In a great number of cases the preparation of the evidence occupies but little time, while there are also many in which it requires great effort. But be the case a transaction intelligible at the first view to the practised lawyer, or an affiiir of multifiirious details, complicated, scattered, and where many of them cannot be found ex- cept by a wise and persevering search ; the facts — their complete collection, their proper assortment and classifica- tion, and their thorough mastery — are in order prior to any legal inquiry. This is the justification of the place of the last chapter, for it naturally comes just before this which treats of the preparation of the law. The student should learn at once that to be in haste to take up the legal investigation of a case is generally to miss the real points and commit himself to a theory inconsistent with the facts. And when the theory is formed too soon, the facts acquired afterwards will be distorted to suit it. But the si)ecial lesson to be taught here is that this premature beginning at the wrong end causes a consideration of irrel- evant law questions which is nearly always misleading and therefore worse than useless. § 134. The foregoing being premised as to the impor- tance of studying the evidence before determining the law 96 CONDUCT OUT OF COURT. of the case, we proceed to tlie special subject of tlie present clia})ter. Here the education is properly connnenced by a brief contemplation of practice. A young man without this cannot understand us at all. It is by observation and then initiation that we begin to learn at the first, and the same process goes on in many places to the last. Manners, etiquette, command of inferiors, and various other things, are mysteries which can be fully learned only after a season of observation and trials at their attainment. § 135. Almost the first remark of the novice who has frequented the courts for a while is that the lawyers wrangle far moi'e as to facts than they do as to law. He notes next that when they dispute as to the law it is more frequently as to the proper application of some legal rule than as to the existence of such a rule. The law slowly becomes more and more certain. The great digests, the repeated revisions and codifications, the multiplication of text-books, and the growth and widening sway of a true science of jurisprudence, are all systematizing it into an harmonious whole. ]\Iuch yet remains to be done. But no careful observer can compare the present law of many of the States with that of half a century ago without seeing that nearly the whole body of the rules usually administered in the every-day business of society has be- come easier to find, easier to understand, and easier to apply. The tyro, from the codes and revised statutes, will answer unerringly many a query which years ago would have puzzled the ablest and wisest lawyers. The long arguments of these days are generally in the discussion of the particulars of the case in hand. The treatment of pure law questions is usually short, — shorter now than it was formerly. The tendency is to smaller text-books upon the PREPARATION OF THE LAW OF THE CASE. 97 older subjects, and to digests such as those of Sir James Stephen. A concise statement of the true law, without discussion, is more and more demanded. § 136. To the uninitiated it would appear that the law of the case is by far the more important part of the prepa- ration. But experience teaches that, while the practitioner must know well the law which is of familiar application, his principal business in his cases is generally with the facts. A legal question will be decided by rules with which he becomes better and better acquainted, while every question of fact arising is to be settled by new proofs. It may serve to bring out more clearly the contrast of law growing more certain year by year to the lawyer and facts forever springing up freshly around him, to state that he is to satisfy the court as to the former by the use, day after day, of the same books and texts, which at last become a lesson learned by heart ; but to decide the latter, he has witnesses and documents in every case to deal with that he never heard of before, every one of which must always be investigated for and by itself. § 137. What we have said in the last sections is true in the average of cases. But occasionally a lawyer gains an unexpected victory by showing that some generally received notion is not law. One of the most famous of such exploits was the success of Scott (afterwards Lord Eldon) in Akroyd V. Smithson, while he was young and waiting for business. A testator had directed his real estate to- be sold, and the residue of the proceeds after payment of debts and expenses he bequeathed to certain persons. One of these had died before the testator, and in a bill filed, among other things, the lapsed share was claimed by the next of kin. A brief was given Scott for him to consent for the heir at law on 7 98 CONDUCT OUT OF COURT. the licaring. But he turned through the books and pored over the question until he became convinced that the share in (question was to be regarded as real estate, and therefore belonged to his client. The case came on at the Rolls bofore Sir Thomas Sewell. The solicitor who had delivered the brief was told by the young lawyer that he should con- sent that the will had been duly executed, but that he must support his client's chiim to the share. He made an ear- nest effort, which shook but did not convince Sir Thomas, but he learned of a compliment paid by the latter to the argument after his adverse decision. As good luck would have it, there was an appeal by another discontented party, and Scott receiving a guinea brief to consent as before, he insisted on arguing the point again. In spite of the re- monstrance of the solicitor, the refusal of the gutirdian of the client to increase the fee, and the concurrence of the bar in the ruling of Sir Thomas Sewell, he did argue it ; and Lord Thurlow after considering for three days decreed in his favor. The argument was published, and, as an old solicitor remarked to him just after it was made, the young lawyer had cut his bread and butter for life. Some time later Scott appeared in the Chancellor's Court of Lanca- shire to argue the other side of the question. Dunning (Lord Ashburton) told him that he would not hear him ; he had read the argument just mentioned and he defied him or any other man in England to answer it. Surely such a failure would delight a lawyer more than ordinarily to win a case. § 138. As this case made the fortune of Scott, so did Erskine likewise make his fortune in his first effort by a brilliant speech upon a question of law. But we nmst re- mind our pupil that cases of importance which turn upon PREPARATION OF THE LAW OF THE CASE. 99 a contested rule of law as compared with those involving issues of fact are of rare occurrence. § 139. And yet the applicable law must be carefully attended to in average preparation. If you draw a decla- ration which the defendant may admit to be true and yet can demonstrate that its allegations make no good cause of action, his demurrer will upset you. And if you rely on a plea which the plaintiff's dcnmrrer shows to be bad as a legal defence, he will win. Turn from the pleadings and consider the evidence. Every part and parcel of that has to run the gantlet of Greenleaf, Stephen, and Whar- ton. The law not only prescribes what is a good cause of action or ground of defence, but it also settles what evidence is to be admitted and what excluded. Every separate sentence in the answers of a witness under ex- amination can raise a question under the law of evidence. § 140. In legal preparation you commence with an as- sumed rule of law, proceed from that to another, and so on, it may be step by step, through many more before you can make good your claim to the desired judgment or ver- dict. Therefore the aim of preparation as to the law will be that you make no misstep in the whole progress ; that you plant your pleadings and evidence, both as a whole and in detail, immovably upon a rock of the law. It is also your purpose, as part and parcel of this task, to show that your adversary has in his pleadings and evidence — either in one or in both — failed to meet your case. § 141. To the American practitioner the law exists in three great departments. Enumerated in the order of the frequency of their occurrence in practice, they are State law, general law, and Federal law. The State and Federal Constitutions, statutes, rules of court, and reports are the 100 CONDUCT OUT OF COURT. authorities which decide questions of State and Federal hiw, wliilc the general law authorities are Enghsli text- writers, statutes, and records anterior to our independence, and the entire reports of all English-speaking lands. In another work to which tliis is a sequel, we have taken pains to show the relation of these different divisions to one another, to point out how they are to be mastered and what part is played by each in practice.^ We need only say here that a law question of doubt must be first referred to its proper department, and when that reference is made it is next in order to search the law-books of that depart- n)ent for the desired answer. It is a conmion experience that a case presents a law question under each one of the three departments. We must also suggest that, when no rule of decision can be found in the books mentioned, the question is generally decided by the reason of the general law, — a subject likewise treated by us at length.^ § 142. We think it important to impress upon the young practitioner at the outset that it is only in exceptional instances that the law is discovered by theorizing and rea- soning. He should abjure the conceit that he can forego enactments and reports and guess at a rule of law when- ever he needs to know what it is. Let him always exam- ine the sources, and ordinarily he will there find counsel which commands with almost axiomatic force either to reject or accept the particular proposition under considera- tion. He should take a lesson from the editor of a classic, to whom conjectural emendation is not permitted until a comparison of all the different manuscripts has shown that there is, as to the particular passage, no real text extant„ 1 American Law Studies, xxxvii. d seq., §§ 823-827, 1002-1011. 2 Ibid., §§ 789, 790, 801 et seq. PllEPARATIOX OF THE LAW OF THE CASE. 101 Nearly every reader will impatiently exclaim in rei)ly to what is said above in this section, " Of course, everybody does that which you advise. " But it is our conviction that no other duty is more neglected in practice than the one which we are now trying to enforce. Before the magistrates and commissioners, in trials in all the smaller courts, in those in the higher ones — even in arguments in courts of error — you rarely have to wait long without hearing a point properly decided against a counsel upon some relevant constitutional or statutory provision or rule of the general law, which seems when nt is cited to have been known to everybody else. " How did it escape him ? " the looker on says to himself. The answer is, that a large proportion of both young and old lawyers never bestir themselves over the real questions until after their cases are called on. § 143. Having hinted the great influence of the law from the first to the last of litigation ; having glanced at the American trinity, that is, State law. Federal law, and gen- eral law, and the fact that every legal question arises under one or the other and is to be decided by its peculiar pro- visions ; and having emphasized the duty of always settling a legal proposition by consulting the books for yourself instead of waiting for them to be shown you by your ad- versary or the court, — we now take up the consideration of the ordinarily occurring legal questions. § 1 44. There are generally three classes of these in eases of the common type. We begin with that one which is logically, and nearly always practically, the first in impor- tance. We may state it in general terms to be. What is the substantive right of my client ? We will illustrate. A firm of merchants have delivered goods to a servant for 102 CONDUCT OUT OF COURT. his master, and tlie latter refuses to pay for the goods upon tlic ground tliat lie has not received them and that his ser- vant did not have authority to pledge his credit. If you find tliat the merchants can prove certain acts of the master noted in the books from which the connnunity may reasonably infer that the servant had the authority in ques- tion, it is the same thing in law as if the servant actually had it, altliough it may be true that the master expressly forbade the servant from making the particular purchase ; and you will recover against the master. Again, suppose, there being no lineal heirs, that an estate is to be distributed among the collateral heirs, and among the claimants there are children of a deceased brother or sister of the intestate. Under the law of Georgia you would have a good case for these children, for they rep- resent their parent. In the first of the supposed cases the substantive right of the merchant is to have the fair price of the goods from the master, and in the second it is that of the children mentioned to divide between themselves such a part of the estate as their father or mother would receive if living. § 145. We have had you to be counsel for the plaintiffs in the two cases put. We will now place you on the other side of cases which are similar except in a few particulars. We will suppose, in the first case put, that the master has given notice to the merchants that he has withdrawn the authority possessed by the servant, or that some acts have been done by him within the knowledge of the merchants from which acts the law implies a revocation of the author- ity ; and in the second case, that the children of collateral heirs other than brother and sister are claiming to repre- sent their deceased parent in the distribution of an intes- PREPARATION OF THE LAW OF THE CASE. 103 tate's estate under the law of Georgia, which provides that there shall be no such representation. In both these you show that the plaintiffs are not entitled in law to the sub- stantive rights which they claim. § 14G. By contemplation you see that each ease in which you are for the defendant has in it a fact of importance, which was not in the corresponding case where we sup- posed you to be for the plaintiff. These illustrations suffi- ciently explain to you that every substantive right which a party may claim from another is founded upon the concur- rence of certain facts and the non-existence of others. They also sliow from a new point of view the commanding necessity of the practitioner's beginning the investigation of the case by ascertaining the facts, — at least those ma- terial ones conferring or denying a legal right asserted by action. But the special lesson which we would have these illus- trations now teach is, that there are certain rules of law which give the substantive rights pointed out and that a particuhir rule is to be well studied and thoroughly under- stood whenever a right is claimed under it. The real test here is, Will the material facts relied upon, well and truly pleaded, prevail against the adversary's demurrer ? § 147. We have feigned cases where the applicable law is easily found. But to the practitioner it is often a matter of great difficulty to determine with certainty whether a right set up is allowed or not by the law. The relevant legal provisions may be of ambiguous meaning, or there may be none at all. Whether the right or its non-existence be plain or doubtful, it is necessary for the lawyer to have a clear conception of the governing rules of law and to be able to present decisive authority or to give satisfactory 104 CONDUCT OUT OF COURT. reasons establisliing the rules and justifying tlie applieation lie would make of them. When he can support the right of his client by such citations and arguments as will con- ^^nee an average judge his preparation upon this part of the case is in a measure complete. § 148. After settling that the right of the plaintiff or the defence is maintainable in law, the proper remedy is next to be considered. Often there is but one. But many times there is a choice. Thus in Georgia it is ordi- narily better to use the fictitious action of ejectment than the statutory short form, which has no substitute for sev- eral demises. The measure of damages may be larger in one action than in another, as for instance the highest value of personal property at any time between its tortious conversion and the trial is recoverable in trover,^ while the plaintiff's verdict would be smaller if he resorted to an action ex contractu, as is often permitted to him. Some cases can be brought in, and others cati be removed to, a Federal court, where you can have the benefit of more fa- vorable rules of decision on some subject of general juris- prudence involved than those which prevail in the courts of the State. If you can appeal to equity, you may there find a peculiar procedure helping you and a relief which you cannot have at law. § 149. The law is a well-stored armory. No one who begins a suit can ever anticipate precisely what action lying in wait for him somewhere he may provoke. It is not germane to our purpose, in search as we are of only the most general principles, to discuss in detail the whole series of injunctions, cross suits, counter claims, procuring the appointment of a receiver, and other remedies, which 1 Code of Georgia, § 3077. PREPARATION OB' THE LAW OF THE CASE. 105 often turn a confident attack into a hard-pressed defence, or drive a party into other straits. This belongs rather to the subject of local practice tiiau to the proper treatment of the leading principles of conduct of litigation. We can only say to our readers that, premising for him, as we have, a knowledge of the law of procedure, he must ever be asking himself the question. Can I better myself with a change of forum, or a new remedy, or some other addition to my attack or defence ? § 150. We will now illustrate the doctrine of the last sections by a series of examples. I once noted the conduct of an action by the heirs at law of an intestate which involved the actings and doings of the administrator for a long while. It had been brought under the statute upon the bond, without the establish- ment of a devastavit in equity. The items were multifa- rious ; and the fact that the administration was active during the war had added to the complication of the ac- counts, because of the large displacement of the assets by conversions into Confederate currency, the course of which was not narrated in the annual returns ; this currency having been treated as good money by the administrator, as was usually the case in most of the transactions of the time. The plaintiffs made good their claims to ten or twelve thousand dollars, but they recovered a very much smaller amount. It w^as always clear to me that, had they obtained the appointment of a suitable person as auditor under the local statute, he would have reported for them the full amount to which they were entitled and the de- fendants would have found it difficult in the extreme to overcome such a report. As it was, the jury could not see their way through the complexity of the proofs, and 106 CONDUCT OUT OF COURT. tliey found a vcnlict wliicli was not so strongly against the Avciglit of the evidence as to command a new trial. The great poi)uIarity of some of the administrator's sureties, who were the only solvent defendants, should have sug- gested to the plaintiffs the good policy of leaving a jury in tlie case the least discretion possible. § 151. Under the Code of Georgia, — which went into operation January 1, 1863, — if the complainant in a bill in equity waives discovery, the answer of the defendant is not evidence for him. Now and then, when you hold a good hand of invincible evidence, it is the better policy to call for discovery, calculating upon the crushing effect of overcoming the answer in case it is adverse. But I have observed that the defendant sometimes prevails because of the omission by the complainant to insert the waiver ; and as the courts have established the rule that the waiver cannot be made by amendment after the answer is in, it is great supineness in the defendant to delay its filing and thereby give his adversary opportunity to make the amend- ment in time. § 152. It is often a delicate question whether you shall stand on the defensive or resort to a possible aggressive. Thus you may obtain an injunction of the plaintiff and force him to try the case in equity, where he is turned into a defendant. An instinctive perception of the common feelings must be your guide in deciding the question. I can only say, with much diffidence, that judges and juries generally sympathize with a well-considered and bold as- sault upon fraud and all intended injuries of a serious kind, while in many cases they prefer to see the possessor merely defend his claim without invasion. To neglect taking the initiative where it will help you, and to assume it when it PREPARATION OF THE LAW OF THE CASE. 107 appears to be more than tlic proprieties of your case de- mand, are both blunders which shoukl be avoided. We will note at another place the usual advantages of holding the initiative. § 15:3. The following will show the use which a cross prosecution may sometimes be made to serve. A, who was a member of a popular and influential family, was pressing hard against B, a man almost unknown in the county, a charge of assault and battery. By the advice of his counsel, B obtained from the grand jury, which had returned an indictment for the charge mentioned, another indictment charging A with shooting at him, — an offVnicc under the local statute much more serious than the other. The shooting and the battery were parts of the same fight, which was without justification on either side. A plea of guilty was promptly entered to the indictment for the lesser offence, and, B's counsel appearing for the State and con- tending with vigor, A was convicted. The counsel then proposed to A and his friends that it was now their policy to join with him in an application to the court to lighten the punishment of both ; which proposal was perforce ac- cepted. The court, duly considering the weighty represen- tations procured from the grand jury and other persons of standing and reputation by the influence of A's relatives, and also the more potent appeals of the two prosecutors, visited each defendant with the smallest penalty which he could inflict under the law. This was substantial vic- tory for B. § 154. Our last example here enforces the importance of rightly choosing your forum when you have a choice. A suit was brought upon a guardian's bond in the county where the surety resided. The principal, who lived in 108 CONDUCT OUT OF COURT. another county, was utterly insolvent. On the trial, the plaintiff appeared to have made out his ease and to have overcome with liis evidence that supporting rather a flimsy defence. But there was a verdict for the defendant, which could not be set aside, as it was held not to be so decidedly counter to the evidence as to require a new trial. The action should have been brought in the county of the guardian, as it could have been under the local law. The plaintiff would then have had the surety away from home and where his popularity in the vicinage could do him no good, and where too he would have been burdened with the odium of the faithless guardian. Besides, in that county the guardian, who was the main M'itness for the defence, would have testified from the stand. As it was, his testimony had been taken by commission, which the statute authorized in the case of those not residing in the county of the suit. A rigid cross-examination viva voce would have destroyed the credit of the witness. But the law of the State permitted only a list of set cross-interi-og- atories to be addressed to those who testified before a com- mission. The plaintiff threw away two great advantages by suing in the WTong county, and thus lost the verdict which he would otherwise have probably won. When the surety's hand was disclosed by the service of his interrogatories on the plaintiff, the action should have been dismissed and another brought in the county of the guardian. We hint that there are many considerations other than those mentioned above which guide you to the selection of your forum. The leaning of a judge in cases of special character, or his known convictions as to certain legal questions ; the advantage of having your timid and shaky PREPARATION OF THE LAW OF THE CASE. 109 witnesses examined by commission and of having your others who will bear themselves well under oral examina- tion to testify from the stand, and the further advantage of dispensing with the presence of the more effective of the adversary's witnesses or of forcing into court those whom you can demolish or turn into allies by a cross- examination ; avoiding or making use of the prejudices of the community or of its ftimiliarity with the transac- tion in question ; — these are not all the reasons for pre- ferring a particular court which practice will teach you after a while. § 155. As we close this division we sum up briefly, and say to our student, that, after he has satisfied himself that the right asserted, or the defence set up by his client, is maintainable in law upon the probable facts, he should take the remedy which combines all or as many as may be of the following qualities : — 1. It should stand against demurrer or legal objection of every kind. 2. It should make available all of the client's material points. 3. It should be so managed as not to contribute any help to the other side. These three may be termed the strictly legal essentials. 4. The remedy must also, as far as it can be made to do it, include all of what we may call the non-legal resources of the case ; such as the most favorable forum and vicinity, the alliance of influential parties, and many other particu- lars which will suggest themselves to the trained practi- tioner wherever they exist. All of good according to the foregoing euumeration which is certain or achievable must be considered, and no CONDUCT OUT OF COUllT. then the praetitioiier must follow the maxim, " Prout ergo expedit, ita quisquo vel hauc actionem vel illam eligore debet." 1 § 15G. The substantive right demanded, or its denial by him of whom the demand is made, is to be first attended to; then the remedy ; and next comes, as the last and third division of the more prominent essentials of legal preparor tion, the competency of the expected evidence. Of course, where it is voluminous the whole cannot be anticipated, and therefore there cannot be anticipated all of the legal questions which may arise upon it. But you will know that on which you rely to make out a prima facie support of your main points, and also much that will be jjroduced against them. The important details of arranging the proofs so that they will sustain your pleadings and impugn those of the adversary, do not concern us here. It is only proper to treat legal points. You should carefully guard yourself against relying upon a proof which can be shown to be incompetent, and also stand prepared promptly to challenge every illegal one of the other side that you can- not disarm or turn into a reinforcement ; and divining as well as you can the objections which may be urged to your testimony and those which it will be your interest to make, you should be furnished with the right authorities and arguments. The duty mentioned in this section, though it is palpa- ble to even the younger bar, is too much neglected by tried and experienced practitioners. From constant use in all sorts of business and upon every side of the court, we as- similate the general principles of evidence so thoroughly ^ lust. 4. 7. 5: "The actiou wliich is tlie more advantageous should always be chosen." PREPARATION OF THE LAW OF THE CASE. Ill that we fancy wc can satisfactorily liaiullu any question under this branch of the hiw at a moment's notice. This often leads us to buikl upon an inadmissible proof, to overlook sucli of the adversary, and to make unmaintain- able objections. The counsel should frequently turn over the proofs in his mind — both his own and those which he has reason to think will be offered on the other side — in order to foresee clearly what need he may have for the rules of evidence in defending his positions or assailing the opposite. § 157. We have thus run over the entire course of legal preparation. There remain, however, some general reflections to be made which belong alike to all the three divisions which we have marked off. We begin with the three kinds of law which the la'W'yer encounters at every stage. The first is that which is certainly against or counter to him. The second is that upon which he may take position with unerring certainty. It may be the unmistakable command of an enactment or an harmonious current of decisions and authorities. And the tliird kind is a considerable domain, lessen- ing slowly in size every year, but which will never wholly disappear ; and that is where the law is really doubtful. § 158. No prudent lawyer will throw himself against law of the first kind. He will avoid it and steer around it. And of course he will throw away no advantages under the second kind. Law of the third kind occurs less frequently than either of the other two, but it does meet the practitioner so often that he should be educated in the proper modes of dealing with it. 112 CONDUCT OUT OF COUilT. The minds of incu are so different that as a consequence we have jar and conflict in opinions of the profession and in judicial decisions. A judge sometimes reverses himself. The rulings of previous courts are now and tlien overset by those of tlieir successors. Tnere are many uncertainties inherent in the law. Language, eitlier in enactments or from tlie mouths of judges, is obscure or of double mean- ing. Tiie subject may bo new, and we see that it must be left to the future for further development. Some particu- lar doctrine assumed by courts and text-writers, and which is beyond the sure application of stare decisis, appears to be so unreasonable that we may expect its modification when sharply questioned. Upon all doubtful law which is relevant to the case the counsel should take chances with judgment. He should give his client opportunity of winning. But he must avoid risking too much on uncer- tainty. If he can, he should have — to use a colloquial- ism — another string to his bow. § 159. As a continuation of the last section we must note the cases which are without precedent. We need not repeat what we have said elsewhere upon the appeal that must sometimes be made to principle.^ But we must remind the student that he will find judges extremely averse to making avoiredly new rulings. He must bear in mind that this almost humorous description of Sir H. Maine is but the truth : — " With respect to that great portion of our legal system which is enshrined in cases and recorded in law reports, we habitually employ a double language, and entertain as it would appear a double and inconsistent set of ideas. When a group of facts comes before an English court for 1 American Law Studies, §§ 801-809. riiEPARATlON UK THE LAW OF THE CASE. 113 adjudication, the whole course of the discussion between the judge and the ad\\)cate assumes that no question is or can be raised which will call for the application of any principles but old ones, or of any distinctions but such as have long since been allowed, it is taken absolutely for granted tiuit there is somewhere a rule of known law which will cyver the facts of the dispute now litigated, and that if such a rule be not discovered it is oidy that the necessary patience, knowledge, or acumen is not forthcom- ing to detect it. Yet the moment the judgment has been rendered and reported, w^e slide unconsciously or unavow- edly into a new language and a new train of thought. We now admit that the new decision has modified the law. 1 § 160. You must not, therefore, if you can avoid it, shock the sensitive conservatism of a judge by asking for an innovation as such. It should if possible be demanded as an old principle. Such a demand is generally permis- sible, as even the latest doctrines and measures are to be justified by long-obtaining maxims of expediency and right. But sometimes all pretence must perforce be throwni aside, for the novelty of your position is too conspicuous for con- cealment. Here the lav/yer, if he would succeed, must be able to show that a great interest is at stake, and come beforp the court fully furnislied with resistless demonstrar tion. He must have besides an infallible presentiment that the judicial mind, prepared by previous reflection or discussion and the calls of the community, is ready to ad- vance courageously, before he can safely rest his case upon the chance of such a decision as he now seeks. Let him have other and more certain positions if he can. 1 Ancient Law, 31 (London, 1S70). 8 114 CONDUCT OUT OF COURT. § 1()1. The bum lawyer exhibits in liis preparation a growing tendency to found his aggressive or defensive com- binations the njore circumspectly on sound legal ground. The wary veteran of forensic battles is all the while sus- picious that his assumptions will be sliown to contravene governing authority, and this suspicion keeps him from sleeping in a false security. Ilis avoidance^ of bad law becomes instinctive. And he shows another growing ten- dency. He is too busy for nmch laborious thought. He is a man of action. Often he cannot give legal questions in his case a thorough examination before he must prepare to argue them in the court of last resort. This constraint begets in him a wonderful facility of turning his cases around struggles upon uncertain law questions. He never engages with his adversary for the mere love of controversy. He must first see either that controversy is inevitable, or that he can anticipate with much probability some justify- ing advantage. Legal questions, though easy Avhcn argued for us by able lawyers, learned judges, and gifted text- writerc, are not always easy to decide before such argu- ment. The really easy questions are not seriously mooted. When good lawyers divide on law points and resolve to argue them in earnest, there is generally difficulty. The sifting and analysis necessary to detect the cardinal propo- sitions is often an Herculean labor. The wary practitioner fearing gins and snares, will, if he can do it with safety, at once shun a question which he has not time to settle, and press his adversary upon ground better known. § 1G2. In the selection of the points upon which he is to stand or fall, he must use good sense and judgment. As ho becomes older he refrains more and more from what may be termed over-refining. The law is not of the family PREPARATION OF THE LAW OF THE CASE. 115 of the exact scieuces. It lias a favorite maxim, that it cares not for small things. The plain men in the jury-box are struck with prominences and appreciable superiorities in the evidence. They measure roughly and seek not to be finically precise. The judge is also practical. His knowledge of the law is in some sort scientific ; but his peculiar science teaches him that he must not be over- logical and he nmst not regard infinitesimals and exacti- tudes. He will often decide right and be as unable to give a good reason as a woman is for her right decision. He gives correct judgments, not " laboriously, but luckily.'' § 163. We have thus outlined nearly the whole tract of legal preparation. Many disputes will arise collaterally during the trial or hearing, Avithout warning, and which therefore cannot.be prepared for. To manage these rightly you must needs rely upon your mastery of common princi- ples and the training of experience in analysis, decision, and argument ; and especially upon your familiarity with the facts and the needs of your case. The legitimate objects are what you can anticipate, — the maintenance of your case as pleaded, the support or attack of the remedy and also of the expected evidence. The authorities settling these different points are to be collated and considered well. The duty just noted is much slighted. You will see every day that even lawyers of fair standing lose cases which are counter to the State statutes and decisions, to say nothing of those where they blunder as to the general or Federal law. You will also find that many where they win have overlooked the really decisive authority. A better preparation would have avoi10 CONDUCT OUT OF COl'liT. When the (h)cuinent is of unusual cliaracter, as for in- stance a deed containing a condition, and wlien the issue is on the condition, the abstract siiouhl be followed by a note of your conception of its legal force and effect. This will let your associate into your views at once, and he may give you valuable corrections or additions. § :301, You often see the plaintiff nonsuited or a ver- dict returned against the defendant because of a neglect to bring in evidence the existence of which is apparent. The lawyer who is in the habit of putting on paper the proofs necessary to uphold the allegations of his pleadings rarely makes the mistakes just mentioned. He can in no other way so surely come to the trial with complete proofs. § 302. There are some other matters to be thought of. You may anticipate collateral questions. Thus you may be met with serious objection to some of your offered evi- dence. Whenever you can anticipate such objection your answer to it should be noted at the proper place in your brief. And you should prepare objections to what you anticipate will be the proof of the other side. § 303. Cautions to yourself and associate are sometimes proper. Thus Mr. W^arren, in the work from which we take so much in this chapter, advises the attorney when the fact authorizes it to make some such memorandum in his brief opposite to the proof as the following : " This witness is exceedingly eager and zealous, and will be required to be held with a tight rein." Addressino; the attornev in an- other passage, he says : " Be sure to apprise counsel in your briefs of every blot which you think it probable that your opponent may be able to detect in the character of your wit- nesses. This is a matter of great consequence." § 304. These hasty words are only suggestive. The BRIEFS. 211 fawyer can add to them in any particular case by asking himself and answering the question, " What material par- ticular of my knowledge of the facts, or my preparation, does the brief fail to show ? " When a brief, thoroughly and in a right arrangement, contains every item of such knowledge and preparation, it is perfect. § 305. As we have hinted above, there should be a neat draft of the plan of conduct. Coinciding so nearly as it does with the statement of the case which we have ex- plained in this chapter, it is the key to all the rest. § 306. Lastly, if the brief is voluminous, it should be indexed. The use and economy of the index are so appar- ent that we will say nothing more of the matter. § 307. I now subjoin a passage of considerable length from Mr. ^Varren. My own differences from his positions have been already intimated. The reader is reminded that he is addressing attorneys and solicitors, who in England never act as counsel. § 308. " Give the pleadings at length ; not contenting yourself with merely indicating their substance and eifect. A sheet or two spared by these means is no compensation for the serious inconvenience and dangers often attending it. Counsel may be much misled by your so doing. The cause often depends upon the very words in which the pleadings are couched, and on which critical issues have been taken. I saw not long ago, for instance, a plaintiff's counsel about to submit to his adversary, owing to the attorney of the former having misled him as to the real nature of the pleadings. He had said as to the only spe- cial plea, ' The replication denies the agreement,' w^hich was proved as alleged in the plea ; but the judge pointed 212 CONDUCT OUT OF COURT. out tliat the plaintiff stood mucli more favorably on the record, — his replication being de injuria, — which put in issue every traversable fact alleged in the plea. Now, why could not the replication have been set forth fully and correctly in the brief? § 309. " Never let a brief go into counsel's hands with blanks on it for names, dates, or sums of money. It not only has a very slovenly, unbusincss-like appearance, but often greatly embarrasses counsel, who may not have you at their elbow to supply them with the necessary informa- tion. No brief should be regarded by you as complete till you shall have carefully gone over it and filled up every blank ; or if that be for any sufficient reason impracticable before delivering the brief, take care to say as much on the margin. § 310. "When there are two or more briefs, and espe- cially if they be of length, or intricate in detail, or refer to many documents, use your utmost efforts to have the pages of all the briefs numbered alllie, so that any one counsel, having found what is required during the progress of the cause, may in an instant place his companions in the same situation. Your law stationer is surely bound to obey your orders in this respect. I have heard a neglect of this matter often loudly complained of, and with justice, as both inconvenient and irritating on sudden exigencies.^ § 311. "In cases of a little more difficulty or impor- tance than usual, you may greatly facilitate the labors of 1 If the briefs are printed, or if the copies are made by the multiplying mechanical processes lately come into vogue, such as by the use of pads or manifold paper, the pages of all will be alike. But if each copy is to be made by hand, it is well to divide the original into short sections and number them consecutively, for if the copies are accurate the sections of all will correspond tliough the pages differ. BRIEFS. 213 counsel and enable them readily to do their duty by prefix- ing to the brief a neat analysis of the case, of both plead- ings and facts, referring to the different pages in the brief where they will be found ; and above all giving an alpha- betical index of the names of the witnesses and the pages where their proofs are placed. § 312. "If you have obtained what you may deem an able opinion upon the case, or even upon the evidence ne- cessary to support it, copy that opinion in your brief for the guidance of counsel at the trial : whom it may quickly put in possession of the true bearings of the cause and apprise them of its difficulties, timely enabling them better to deal with them. The most eminent leading counsel by no means regard such assistance as superfluous, but on the contrary welcome it. More than once have I seen them, when a cause was ■ called on before they had had time to read their briefs, as it were devour the ' opinion ' written by some able and experienced junior, and rise soon after- wards wonderfully possessed of the case, especially when engaged for the defendant. § 313. " Whenever your case involves localities let me entreat you to take the trouble of giving a faithful sketch of the locus in quo on one of the pages of your brief or on a separate paper. A single glance at a spirited and faithful sketch of the scene of action will be worth half a dozen consultations. It will fix the matter firmly in your counsel's mind and prevent him from either being confused himself or suffering the witnesses, judge, or jury to be con- fused. Take care also to have several copies in readiness (being able to prove their accuracy) to lay before the jury while counsel is addressing them, — a matter that of no slight importance to your client's interests. A good model 2H CONDUCT OUT OF COURT. of premises or machinery is of incalculable service in giving counsel, and enabling them to give others, a clear view of the case which it illustrates. Durin;^ last Easter Term the Court of Common Pleas was occupied for an entire day with a troublesome motion for a new trial in a patent case. There was no model to illustrate the statements of counsel or the endence of witnesses. The judges found it almost impossible to deal satisfactorily with the case ; and at the close of the day, one of them (Mr. Justice Maule), as the court rose, observed : ' In the absence of a model the evi- dence might really all have been read the ivrong ivay.' § 314. " Take special care, however, that your plan or model be fair, — perfectly faithful, — made by a disinter- ested person, with no instructions whatever but to prepare an impartial and accurate representation of the reality ; one which will be acquiesced in by the opposite side and by the witnesses. This will obtain for you credit, with both the judge and jury, for the fair and candid spirit in which you have brought forward your case ; and that credit may serve to turn the scale in your favor in a question of doubt and difficulty. An opposite course of conduct is almost certain to prejudice you in professional and public estimation, and throw discredit on your client and his case, seriously endangering one otherwise characterized by bona fides." ^ § 315. Of course if there are important questions of law in the case, a part of the brief should be devoted to them. For matters easily disposed of, a mere note of a statute, or a late State or Federal decision, or some reliable text-book, may suffice. But where a lengthy examination of statutory clauses and decisions is necessary in order to educe the law 1 Duties of Attorneys, etc., 178 et scq. BRIEFS. 215 with accuracy, you should briefly indicate the substance of the clauses, and the pith of the rulings, and the facts to which they were applied. You will rejoice that you took this extra pains when you come to try your case a long while after the brief was made. If you have contented yourself ^\^th mere citations it may require more effort to revive the argument than you can well spare in your limited time. § 316. One only needs to consult the rules of practice in the ditierent States, and hear the almost universal American use of the word "brief" in the restricted sense of a skele- ton of legal positions with relevant authorities, mentioned above, in order to see how widely we differ in the estimate of briefs from the English. The- grade of attorneys and solicitors never was separate here from that of counsel. Every practitioner perhaps was ambitious, and arrogated to himself the superior rank. In the mother country it was the duty of attorneys to prepare briefs, but as he was no attoincy he would not do the degrading work. Thus briefs seem never to have been introduced into general use in America. That counsel here have direct contact with witnesses and party, and are all the while personally cognizant of every detail of their cases, not learning them at second hand, is to my mind an almost incalculable su- periority of the American over the English system. But we have not improved our system into what it should be. Our counsel should not alone get up a case better than the English attorneys, but they should also draw better briefs. The practice of law without briefs is as slovenly and primi- tive as the score kept with chalk-marks. Do but note one of our brethren who goes on in this slipshod manner. He becomes a nuisance by keeping in his possession original 21 G CONDUCT OUT OF COURT. papers which should never leave the clerk's office. lie never recollects exactly the contents of documentary evi- dence, and he often forgets the very authorities on wiiich his case depends. Tins is all wrong. It is wasteful of time. It is criminal negligence of the client's cause in- trusted. Tlie practitioner should always be able in his office, without any assistance except his brief or the mem- oranda which he has taken, each at its appropriate step in the preparation, to give a clear statement of the case. One who has never tried this careful preparation cannot understand how the making of a sufficient brief facilitates the conquest of the case. This advantage alone is more than compensation for the labor. No attack or defence can be too well meditated or understood, nor can the op- erations of the other side be too well conjectured. And it is just as hard accurately to shape the conduct of an in- tricate case and hold its preparation in your head without a brief or memoranda answering to it, as it is to compose and get by heart a long speech without writing any of it. The feat has been accomplished. But we know that to write the speech and afterwards learn it is the quicker and better way. § .317. All the papers belonging to a particular case sliould always be kept together. It is no task to keep them in proper order. First the pleadings, — copies or ab- stracts. Next, the memoranda of the expected testimony, oral or written, of your side and of the other. These to be accompanied by copies of documents, depositions, and all such matters. Then your notes of agenda. Your authori- ties may find place afterwards. Towards the close of the preparation you can intercalate the final statement of the case and add the last draft of the plan of conduct. And BRIEFS. 217 so your brief is complete. You have not missed the time spent in its making. If the cause is difficult and involved, when you recollect the many times you have referred to this collection, and that it has easily kept you up with all the necessities of preparation, you wonder how you could have done without it. It may look cumbrous and un- wieldy, but to you it is systematic and lucid. You had better not attach the papers together, for if you do not they can be added to or replaced ad libitum in your office, or a particular one, say the citations or the list of witnesses, can be used separately in court and with more convenience. There is no Procrustean model of briefs. They vary with the cases. A particular one should be the accurate miniature of its case. If the case is simple, the brief will be simple ; if it is complex, all its elements appearing in the brief will make it complex too. § 318. I have to add a last caution, and then I have done with the subject of this chapter. You are not to cultivate a slavish dependence on your brief as the reposi- tory of your preparation and the record of your anticipa- tions and premeditated plan of conduct. You anticipate and provide for as much as you can in order to have larger supplies out of which to meet on the sudden every exi- gency. The ground and possibly the dispositions of his enemy are known to the general before the battle begins. But he does not essay to fight a set battle any more than the lawyer, for all of his forecast, anticipates a set trial. Neither will be surprised by any action of the other side, however unexpected. The plan of contest of each is not rigid, but is pliant and responsive to even unforeseen needs. The most happy extemporaneous efforts of speech or action are made by men who have the whole business as it were by heart. Observe an old lawyer who comes to argue a 218 CONDUCT OUT OF COURT. law point. Possibly he lias the scheme of what he would say upon paper. A question from the judge presents a new view. The lawyer abandons his prepared argument and speaks only to the suggestions that fall from the bench. And he often triumphantly sustains his case. Why can he do this ? Because he is thorough master of the sub- ject, and being that he can eftectivcly handle it from any standpoint. And so the practitioner should always be on the eve of trial. His brief, containing a year's assiduous preparation, it may be, will often be abandoned when he is in the midst of the exciting encounter. There have been developments which he did not anticipate, and the entire phase of the case seems changed. But with his skilful preparation he has come not only armed to meet what is anticipated, but armed too for that which is not. If you have never looked into the case till the night before the trial, and you then win it by an unexpected feat after a scaring menace of disaster, you are proud. Your ingenu- ity enraptures you, and you feel that you are a great man. Out of what was that stroke made which laid the adver- sary low ? It was aimed from a knowledge that you had acquired in only a few hours. Perhaps had you come carefully prepared there never would have been that dark hour which threatened you. You might have foreseen and provided against it, or perhaps you might have planned and achieved a much more brilliant ^^ctory. It stands to reason that you should be more full of resources in a case which you have studied long and well, than in one to which you have given only a few hours' attention. Your preparation and your brief are not for a pre-estab- lished conduct of the case only. They are a training to do your utmost and best wherever and whenever fortune may dictate that you make trial of the adversary. BOOK II. CONDUCT IN COUET. BOOK II. COXDUCT IN COUET. CHAPTER VII. IXTRODUCTORY. § 319. We have fi-equently illustrated our subject from the correspondences of the military art, and, as we have said, we arc half inclined to entitle this Book '' The Tac- tics of Litigation." In war, after the campaign has been planned and the army gathered upon the decisive point according to the manual of strategy, the engagement itself must be fought according to another manual. The former concentrates the greatest possible force on the field, while the latter obtains from the force its greatest possible achievement in battle. And thus in litigation, after a care- ful preparation has brought the parties to prove the for- tunes of a trial, the trial is to be conducted according to other principles than those of preparation. § 320. Conduct in Court, as we name the subject of this book, is generally called Advocacy. It is the art of having all of your resources to count their greatest in the forensic contention, and of impairing as much as you can those of the adversary. To authors and to the multitude it has long displaced the more important division of prepa- ration, and they deem it the only essential. Excellence in 222 CONDUCT IN COURT. advocacy is conspicuous and the crown of success brilliant, for the effort is in i)ul)lic, where many usually see and com- prehend, while on the other hand the most superb prepara- tion M'ill be understood by only the lawyers engaged. A showy counsel who is the attraction of all eyes and cai-s in the court-room is often but the mouth-piece, and an ineffi- cient one at that, of some hard-working and cool-headed associate who has industriously collected and skilfully grouped the materials of his side and has with the divina- tion of genius foreseen the adversary's line of operations and provided against it. And yet to manage a trial ably from beginning to end often requires a high degree of spe- cial talent. In the office and consultation-room there is opportunity of procrastination and review, but in court the counsel leading must in many straits reach his conclu- sions by a flash and then act upon them as confidently and surely as if he had been thinking them over for weeks. To open in the beginning the ear of the court and jury to yourself and to close it to your antagonist ; to know when you have done with your witness ; to detect at once the hidden inconsistency of the hostile witness with stronger evidence, or his self-contradiction, and decide well whether to leave him as he is for the argument or take the risk of his escape from the toils if he is pressed further in cross- examination ; to grasp thoroughly at all times the entire case made by the other side ; to feel surely, as it were, the leaning of the judge, and to lead him if it is adverse upon other ground or to confirm him if it is favorable ; to read every meaning look of counsel, party, witness, juror, or court ; to remember and forget wisely through the entire course of the evidence and argument ; — these are the daily achievements of the ready lawyer. INTRODUCTORY. 223 § 321. And it is rare tliat tlie talent to prepare a case and the talent to manage it in court are united eacli in its highest form. Often both talents are possessed by the same man, though one is generally in decided excess of the other. Thus Napoleon was not deemed the match of Moreau, one of his marshals, in tactics, while he was in- finitely superior in strategy and general military ability. There are commanders and lawyers who always have every- thing important cut and dried, and they thereby win a large proportion of battles and cases. Yet many of them are not perfect in their art, for tliey are unduly disconcerted by unexpected occurrences. In contrast, there are generals who never evince any force of character until they are sur- prised by the appearance of the foe, when they triumph by seducing fortune ; and there is a class of ready and shrewd advocates who defer all serious exertion until the critical moment, and yet their general success is wonderful. § 322. When the average of cases is considered, it is found that each party approaches the trial with considera- ble knowledge — to borrow a term from card-playing — of the other's hand. There will be, however, a portion of each side unknown or not rightly understood, and many times the event will turn on the nature or the management of these unknown particulars. The prominent material points will hardly ever be overlooked, and they will be rightly attended to ; but the occurrences which cannot be predicted, such as the miscarriage of an important witness, a case made by the adversary utterly unanticipated in a cardinal particular, and which is the more perplexing be- cause a different one has been prepared against, an amaz- ing decision by the court, — these are the matters which peculiarly call for the tact of the efficient nisi prius lawyer. 224 CONDUCT IN COURT. The faculty now in contemplation is one of extemporaneous action, and it ditFcrs widely from that of a leisurely and wcll-prcmcditated preparation. The part played by this faculty in gaining success is greatly exaggerated. Still there is a considerable proportion of cases in which the result will nearly always be determined by the better court conduct. These are where the proofs of each side are pretty evenly balanced, or where the true law to be applied is doubtful, or where right on one side is matched with prejudice and a strong semblance of a claim on the other, or where the facts are novel and the true solution requires more thought and time tium can be spared. This catalogue is not com- plete, but it serves to indicate sufficiently the general char- acter of the litigation which specially demands all of the skill of the trial practitioner. § 323. The best management in court has been gen- erally preceded by a particularly painstaking preparation. And such preparation is more important in the cases last enumerated than in all others. Argument is not necessary to prove the great superiority of the adversary who has acquired beforehand the more profound and accurate knowledge of the case to be tried. By reason of his better knowledge alone, other things being equal, he will often discomfit his opponent. Sometimes one will be vanquished where he is the stronger because he has not made the investigation which would have taught him his strength. But we do not say that the same man who has well done the precedent labor is surely the best man to direct the trial. The associate who has the highest degree of the extemporaneous faculty described should lead. And he should have thoroughly in his head and by heart the preparation of the case, by wdiomsoever that has been INTRODUCTORY. 225 made. The brief, if well digested and exhaustive, and if it is conseicntiously studied, will qualify him for the deli- cate task. This antecedent preparation, the importance of which can never be overrated, as we are now about to use its results, it is well to analyze again in order to have it once more impressively contemplated. It consists in the main (1.) of a most industriously gathered and complete collection of all the materials of your own side ; (2.) of such a collection, as far as has been possible, of those of the other side ; (3.) of a proper classification of all these particulars so as to educe the issues and disclose the right modes of dealing with them ; (4.) of a plan of conduct which has come out of the other three, — a plan Avhich is firmly set upon incontrovertible facts and law, but which turns with elastic self-adjustability, to meet every unex- pected move of the adversary. § 324. The subjects of the two Books run into one another, or rather the demarcation of conduct out of court from conduct in court is mainly made for the purpose of having the student to understand the whole of Conduct of Litigation. It is in the formation and the execution of the plan that the two cohere so closely that one is but the spontaneous continuation of the other. But the one is not the same as the other. Preparation is the fulcrum of attack or defence. But it must be nothing more. The good tactician is not tied to his preparation ; which with him is only the right beginning, — the planting and fixing of the fulcrum immovably if he can, and the arraying of his columns in their best order, — but which others in- ferior often shoAv by their acts that they conceive to be the end of their work. These drudges are never able to get beyond the brief, which they treat as a report of the trial 15 226 CONDUCT IN COURT. made bcforcliaiul. Tlicy will make out the case only pro forma. § .32.J. After tlie deal the game is to be played ; after tlie dispositions have been made, the battle is to be fought. To fight the battle of a case well, one must be master of the case. We say that an author is master of his subject when he maintains his ground against all opposers, each, it may be, attacking in a new and unexpected i^lace. So like- wise of a lawyer who, in trying his case, puts in the whole of his own material evidence and clips off every particle that he can of his adversary's which would damage, who from beginning to end foregoes no advantage, who objects and excepts in the right place and in the right way, and who when the jury retire cannot be said to have over- looked any fair opportunity of offence and protection, we may say that he has achieved a triumph ; for it is a triumph even if the adversary wins. In one of his maxims Napoleon says : " A general-in-chief should ask himself frequently in the day, ' \yhat should I do if the enemy's army appeared now in my front, or on my right, or my left ? ' If he have any difficulty in answering these questions, his position is bad, and he should seek to rem- edy it." And thus the intelligent la^vyer has prepared for trial. He has not anticipated everything, — all the de- tails, — for that is impossille; but he has by repeated self- questionings at last so shaped and mobilized his case that he is ready for any turn during the trial. § 326. We may classify the leading objects of conduct in court as follows : — 1. Your own carefully prepared combinations are to be placed before the court in their best form. 2. You are to see t'lat the adversary gets no advantage of law and evidence which he is not fairly entitled to. INTRODUCTORY. 227 3. You are to use efficiently, as the trial progresses, what further conibinations you may be able to make ex tempore out of materials coming to hand. It will serve to give a clearer idea of the distinction between the nature of preparation and that of the duties here in contemplation, to compare the work of the English attorneys and juniors of which the brief is the repository, and what the leader does with the case at nisi priiis. The latter will concern himself with the preparation in order to reject useless parts and rectify mistakes in others so far as he can, but his principal business will be to encounter the adversary on the evidence and law, striving to attain the objects mentioned at the beginning of this section. § '3-27. There ouglit to be a consultation just before the trial, in which the line of conduct should be agreed upon, and who is to lead should be understood. The best coun- sel for each particular place should be assigned to it. One lawyer will examine the witnesses better than his associates : if so, the post should be given him, though he is not the leader. Sometimes an important legal argu- ment at some point of the proceedings is foreseen : let it be settled who shall make it. Nothing is more irritating to the thorough lawyer than to see several counsel con- ducting a trial in no concert with one another, where no leadership is acknowledged and each one is trying to show off his superiority to all the rest. In England the estab- lished usage of the profession settles the question of leadei'ship. Here the client can determine it ; but it is generally decided by the spontaneous and tacit consent of the associates. The lawyer set up to lead should not be over-anxious to exhibit his authority and superior famil- iarity with and understanding of the case. 228 CONDUCT IN COURT. § 328. At this consultation the witnesses and the party slioukl be present if possible. Every important detail in the brief should be verified if true, or corrected if not. Especially should the witnesses be attended to. As they have been examined and re-examined before, they can soon be disposed of now. They should be searchingly probed on all material points. The legal positions ought to be scanned with close scru- tiny, and the pertinent authorities tested. In fact the entire case must be contemplated. There often occur changes and new developments to the very last. Let all such be looked at calmly and boldly, and the right remedy be found and applied. It will be decided whether there shall be contention on the merits, or whether lighter legal force shall be resorted to. Often a well-taken exception will relieve you when you have reason to desire a continuance, but you have no good showing for it. As we have said above, there arc many simple issues which are easily come at and which do not require cir- cumstance and .parade. They will almost take care of themselves. Laborious examination before and careful preparation after acceptance, well-planned conduct and anxious consultations, are for those of intricacy and diffi- culty. While on the subject of consultations we may say that the associate counsel in all cases which need them, ought to confer with one another at every good opportu- nity during the trial. § 329. We will now say something of selecting the juiy, a topic which brings us to the subject of the next chapter. We begin by giving a few cases. A young man was charged with assault with intent to INTRODUCTORY. 229 murder. The prosecutor had been the tenant of his father ; and when the former was vacating, the son discovered that he was mahciously defacing the walls of one of the rooms. High words ensued, and then a fight. The prosecutor attacking with a heavy club Avas disabled by a well-aimed pistol-shot. All of the eyewitnesses were related to the prosecutor, and their testimony was expected to be very hostile to the defendant. His counsel had but a moment to study the panel, but he so managed his challenges that there were eleven landlords on the jury. According to the theory of the State the defendant was clearly guilty ; but the witnesses, having been ordered out of court, con- tradicted one another, and the defacement mentioned was shown by his admissions to have been the act of the tenant, although he had denied it on the stand. The predominant class upon the jury turned the scale in this doubtful case, and the defendant was acquitted. It was ascertained after the trial that the sons of several of the jury had had quar- rels with their tenants for injuries done to the premises during their tenancies. § 330. A laAA'yer had spent several months of every year until after he had been called to the bar at the house of a relative, who lived in a distant part of the county, and he had thereby made many acquaintances among the neigh- bors. This lawyer, who had long resided elsewhere, was suddenly brought to this county to defend a stranger ac- cused of nmrder upon what seemed to be convincing proof. He noted that those who lived in and near the county seat were strongly inclined against his client, while those be- yond were neutral in opinion. The prosecution were not aware of the facts mentioned at the beginning of this sec- tion, and this gave the prisoner's counsel opportunity to 230 CONDUCT IN COURT. select seven of his old playmates for jurors. By an unex» pected turn, a fact never disclosed before came out in the State's evidence which demonstrated the prisoner's inno- cence. But had not this occurred, the prisoner would still have had much advantage of the State because of the friends of his counsel on the jury. § 331. I once observed the trial of an action for libel against four defendants who had lately been excluded from the Baptist church on charges connected with the publica- tion complained of. A large majority of the public sym- pathized with the plaintiff, who had a strong case. But the counsel for the defendants seemed to know his busi- ness, as he got none but active members of other denomi- nations upon the jury, trusting that they would try to make proselytes of his clients. The verdict was for the defendants, and it could not be set aside. § 332. The last instance which we will cite is one of careful preparation beforehand. A father and son were in- dicted for nmrder, and the father had been acquitted. There was so much public feeling against the son, who was the actual slayer, that his counsel was very apprehensive that his strong defence might be overborne. iNIany of the citizens of the county had become disqualified as jurors because of having heard the evidence at the examination and at the trial of the father ; and the counsel had good reason to fear the consequences of a change of venue. There had re- cently occurred a dissension in the Baptist church, to which the father belonged, and it arose out of an affair in which he was personally concerned. A, a preacher, had stood by the father, and B, another preacher, had taken the other side. Both of the preachers were popular, the influence of the former prevailing in one part of the county and that INTRODUCTORY. 231 of tlic latter in the opposite part. A entertained deep sympathy for the defendants, whom he honestly believed to be justified ; but he made no public demonstration. He was a man of unobtrusive manners, but of such transpar- ent purpose, moderate views, and deep insight that his decided convictions were quietly adopted by all who had intercourse with him. It was especially fortunate for the defendant, that in the region where A's influence was the greater there was a larger number of persons not disquali- fied from being jurors. Somehow the prosecution over- looked the dissension mentioned, and did not see that it had silently and unconsciously even to the members passed into a division as to the case of the defendant. But his counsel detected it. He went through the names of all the citizens capable of jury service, marking every friend of the rival preachers. On the trial many panels Avere exhausted, and eleven jurors had been selected. Though a few names yet remained on the list, there was but one of a man qualified, as the defendant's counsel knew, and had the prosecution been aware of this they would have challenged him and effected a change of venue. The State put this man on the prisoner. He was of the following of B, but not of inveterate prejudice, and anyhow he had to be accepted. The defendant's challenges had been made so discreetly that this last-taken juror was the only representative of his faction on the jury, while several others of good standing were devoted friends of A. The contest on the evidence and in the argument was close and severe. There was an acquittal, and I always thought that the State failed be- cause the leading counsel for the prosecution — a resident of the county, a member of the Baptist church, and a follower of B — had never discovered the significance for 232 CONDUCT IN COURT. him of the cliurch agitation in which lie had taken a prom- inent part. § 333. The foregoing examples have opened up the sub- ject. There are various suggestions of your proper cue. Sometimes you need men of great intelligence or of great ignorance, or of great firnmcss or the opposite. The char- acter of every one offered — whether he leans to mercy or severity or has other defined traits — must often be consid- ered before you can choose or reject aright. You should keep an eye to religious denominations, political parties, clubs, Free Masons, Odd Fellows, and other societies, the different trades, occupations, and professions ; for in all these one member is generally in sympathy with another. The common prejudices of the poor and debtor class against the rich and creditors, of residents in the country against those in the city, of the people generally against corporations, and others to which we have not time to allude, must be held in mind, to be used or avoided as is advised by your side of the case. And the friends of your client and of yourself, — his and your enemies, the parti- sans of the adversary and the claqueurs of his counsel, — the former are good, and the latter bad jurors for you. You must often exhaust the city directory and laboriously inquire of many people in order to be informed fully. § 334. No honorable member of the profession will tol- erate canvassing and solicitations among those from whom the jury may come, or any effort to corrupt them after they are in the box. But you are to learn at the outset of your practice, that, if you neglect the study of your panel and the selection of your jurors according to the principles set forth above, a mistrial or an adverse verdict will often befall you when you ought to win. OPENING THE PLEADINGS AND THE CASE. 233 CHAPTER VIII. OPENING THE PLEADINGS AND OPENING THE CASE. § 335. The case not having been continued or post- poned and being called on, the jury selected and sworn, the plaintiff — the few cases in which the defendant takes the initiative excepted ^ — is to open the pleadings and his case. Our practice differs from the English. In Eng- land the junior counsel opens the pleadings, and then the leader states in detail the proofs of his side, which state- ment is called the opening of the case. The plaintiff's evidence is then put in, and if the defendant introduces no evidence the counsel of the former will not be heard again. After the plaintiff's evidence is finished the defendant's counsel makes the defence. If he has no evidence, all that ho says will be a discussion of the proofs in order to show if he can that they do not entitle the plaintiff to re- cover. But if he has evidence, besides commenting on that of the other party, he will also make an opening of that which he intends to introduce. ^Yhen his evidence is closed the leader for the plaintiff has the last word to the jury, called the reply. In America the pleadings and the case are usually opened by the same counsel, and the argument of both sides is 1 See Proffatt, Jury Trial, §§ 212, 214, 215, for the rule which settles wheu the defendant shall begin. 234 CONDUCT IN couirr. made to tlic jury after all the evidence is in. And it is evident that a discussion of the evidence made before it is adduced and sifted by examination is premature. There is no uniform rule settling which one of the coun- sel shall make the opening for either the plaintiff or the defendant. I have noted a tendency to cede it to the junior; and I have never seen one counsel open the plead- ings and another on the same side open the case. § 336. We will set out by giving what Mr. Cox says in presenting the English division of opening the pleadings and opening the evidence.^ "The junior opews the pleadings; that is to say, he states to the jury the proceedings through which the issue or issues have been arrived at which they have to try. This should be done in the shortest and most simple manner. Nothing can be more absurd than to hear, as one often does, a long string of technicalities read to a jury, to whom every second word must be unintelligible and the effect of which must be to perplex them at the very beginning of their task and thus to some extent prevent them from approaching it with such clear intelligence as if it had been introduced to them in plain English. . . . " Make your statement intelligible to the jury by putting it in an intelligible shape and in language which they can understand. As thus : ' Gentlemen of the Jury, — In this case John Doe is the plaintiff and Richard Roc is the de- fendant. The action is brought to recover the sum of £21 and interest, being the amount of a bill of exchange drawn 1 The first volume of Mr. Cox's Advocate appeared in 1852. It never reached a second edition, and he never published his contemplated second volume. As the book is scarce, we shall quote largely in this and succeed- ing chapters from parts of it which have long seemed to us very valuable. OPENING THE PLEADINGS AND THE CASE. 235 by the plaintiff upon, and accepted by, the defendant. In answer to this chiiiu the defendant has pleaded, l!-t, that he did not accept the bill ; 2d, that he has paid it ; 3d, that it was obtained by fraud ; 4th, that no consideration was given for it. Upon these j^leas issue has been joined, and these are the questions you have to try.' § 337. " But it will be said, perhaps, that however prac- ticable this may be w4th so simple a case as an action on a bill of exchange, it could not be done where the plead- ings are more technical, as in an action of trespass quare clausum /regit, for instance. This, however, will not be found incapable of interpretation into intelligible Eng- lish. . . . Let us make the attempt : ' Gentlemen of the Jury, — In this case John Doe is the plaintiff and Richard Roe is the defendant. The action is brought to recover damages for a trespass by the defendant upon certain premises of the plaintiff, in Ide, in the county of Devon. The defendant has pleaded, first, that he is not guilty of the said trespass ; second, that he entered the premises in question by the leave and license of one James Brown, who was the tenant in possession of the said premises. To the second plea the plaintiff has replied that the said James Brown was not in lawful possession of the premises, nor entitled to give such leave and license ; and these are the questions you have to try.' " A statement somewhat in this form might be made with equal ease, however various, complicated, or techni- cal the pleadings, and indeed some such sketch must have been drawn in the pleader's mind or set down upon his notes before he put it into technical form." ^ § 338. Mr. Cox next treats the opening of the case : — 1 Advocate, 335-338. 236 CONDUCT IN COURT. " The pleadings opened by the junior, the leader proceeds to open the case to the jury ; and should you chance to fill this honorable post, you may glean some hints for your task from the following remarks. " As a general rule, the statement of the case for the plaintiff should be calm, temperate, and dignitied, orderly in arrangement, lucid in language, and as brief as the facts to be told will permit. . . . You cannot more effectually awaken in the court and the jury a sympathy for your wronged client and indignation against the wrong-doer, than by a simple description of the injury and a careful abstinence from angry comments, personal abuse, and other indications that revenge rather than redress is the object of the plaintiff. . . . § 339. " You will begin, of course, with an account of the parties, who and what they are, and the circumstances that led to the present dispute ; then you will state with precision the nature of the dispute itself, and whether it is upon a question of law or of fact, or both, witli tlie very points at issue ; the one for the information of the court, and the other for the information of the jury, that atten- tion may be directed more readily and surely to your evi- dence as it bears upon these points. Of so much impor- tance is this that you should take some pains by previous preparation to put tliem into the most distinct shape, and you should repeat each one totidem verbis whenever you introduce your statement and when you close the evidence that bears upon it. Then, taking each of these questions in turn, state in the form of a narrative the proofs you pro- pose to produce in order to its establishment, and in so doing be very careful to show no misgiving about it by anticipating objections, apologizing for defects, or making OPENING THE PLEADINGS AND THE CASE. 237 an effort to give weiglit to certain witnesses, for you must assume that they are uninipeacliable until they arc sliakcn by your opponents, and their testimony to be conclusive until it is shown to be otherwise. . . . You should resci've your energies and your eloquence for the reply. § 340. " Strange as it may aj^pear, there is nothing more difficult in the art of advocacy than effectively to open a case to a jury. The proof of this is the rarity of the ex- hibition. How few of our advocates accomplish it to the entire satisfaction of a critical listener ! How few possess the faculty of marshalling facts in their natural order, and taking up and so interweaving distinct threads of a story as to form a clear, continuous, intelligible narrative." ^ § 341. The same author thus advises the counsel who is to open the plaintiff 's case : — " It is your object to convey to them [the jury] and to the court a history of the case, so that they may tlioroughly understand what is the subject matter of the contention, upon what grounds of claim or complaint you come into court, and the evidence by which you purpose to establish them. . . . You will commence of course with a descrip- tion of the parties, who and what they are, with the addi- tion of any circumstances in the position of either of them which may affect the case by explaining subsequent trans- actions or aggravating the damages. If locality is any way concerned describe the locus in quo, and, if it be possible to procure it, in all cases use a map for this purpose. The rudest dra^ving of a place is more intelligible than any verbal description, and it has the still more important use of at once arousing and fixing upon the story the attention of the jury. . . . 1 Advocate, 335-341. 238 CONDUCT IN COUKT. " Having described the persons and the place, take up your narrative at sucli period preceding the ininiediate matter of controversy as may be necessary to exphiin the causes of it, — to use a legal i)hrase, begin with the induce- ment. Show how it was that the conflict arose. Then describe minutely, with careful reference to the plan, if there be one, the subject matter of the dispute and the precise questions which the jury will have to determine in relation to it. This done, you will proceed to state your case, the facts and arguments upon which you rest your claim to the verdict. . . . § 342. " Perhaps the test whether you have done all that you should do previously to describing your testimony may be thus put : Have you made out such a case by your facts and arguments that, if you prove those facts and they be unanswered, the jury would be convinced that your claim or complaint was justly founded and would give you their verdict ? " This accomplished, and not before, you should proceed to state the particular evidence by which you propose to establish the facts you have detailed. . . . § 343. " Nothing is gained, but on the contrary a great deal is lost, by stating to the jury anything you cannot 2)rove. They are not convinced by your speech, but by the evidence by which you substantiate your statement. You cannot hope to achieve more with the most impressible juryman than to bring him to this : ' Well, if you prove ivhat you say, you will have my verdict.' " ' § 344. Mr. Cox considers how doubtful or adverse witnesses shall be treated, — advising that the former be opened as such, and that as to the latter you " point out 1 Advocate, 3i2-347. OPENING THE PLEADINGS AND THE CASE. 239 in the strongest colors the interests tliat operate upon them, as likely to warp their testimony, not only for the purpose of warning the jury against placing confidence in any evidence injurious to you which they may give, but also to make doubly influential whatever they may say in your favor." ^ § 345. Our author says at the last : " In concluding your opening it is rarely prudent to do more than briefly to repeat [to the jury] the outline of your case, and espe- cially so much of it as goes to aggravate damages, winding up by a calm assertion of your confidence that, if you estab- lish the case you have stated, you will be entitled to their verdict. Anything in the shape of a formal peroration, and especially any display of eloquence at the close of an opening, is out of place and in bad taste, and only permis- sible in a few exceptional cases, of which it must be left to your discretion at the moment to determine." ^ § 346. Having given so much space to Mr. Cox, we must allude to Mr. Harris. The leading points emphasized by him are as follows. The opener is to manifest by his manner his foith in his cause ; he is to refrain from constantly anticipating the other side ; he is not to say such things as " I cannot conceive what defence my learned friend can have," or, " It 's really, gentlemen, an undefended case," — such remarks, as the author has observed, being very often followed with a " verdict for the learned friend who has no case or no defence " ; " the principal thing in an open- ing speech is arrangement and order''; irrelevant matter is to be excluded ; the statement of the issue and the con- trolling evidence is to be clear ; time is not to be wasted on undisputed matters ; moderation is more forcible than 1 Advocate, 318, 319, 2 jbid., 319, 350. 240 CONDUCT IN COURT. exaggeration ; no material point is to be omitted ; the speaker is not to be too rapid ; and tliat " Slow, sure, and short, is a good motto for young advocates." ^ § 347. The rule in England, that, if the defendant has no evidence, the plaintiff's counsel will not be heard again, renders the opening far more important there than it is here ; for peradventure it may be the only opportunity of the latter to comment on the evidence. With us the plaintiff's counsel can always make an argument after tlie defendant's counsel has decided to introduce no evidence, although the latter will in that case have the last word. In England, argument and appeal may often with propriety enter into the opening, while here they would be out of keeping. Our juries only expect a long speech after the evidence is closed. And the strengthening tendency to reserve all discussion and explanation for the argument proper has unduly lowered the common opinion of the purposes of an opening. Time and again do I hear the counsel for the plaintiff, after reading rapidly, and seeming not to care whether he is understood or not, the substan- tial parts of the pleadings, only add that he expects to support the allegations of the declaration by evidence, which he will not now take up their time to narrate. Both the court and the jury need a guide to the issues and the expected proof. You often note that the latter rouse up to learn the facts from the speeches. To the honor of our institutions of self-government and our gen- eral education, our juries are in the main intelligent, honest, and very desirous to find and do the right between contending parties. How can they fitly perform this high duty unless all the preliminary instruction w hich they need 1 Hints on Advocacy, 6tli English ed., Chap. I. OPENING TUE PLEADINGS AND THE CASE. 241 is furnished them? How can they understandingly go ah)iig witli the shiftings of a voluminous evidence, often paralleling the play of a turning kaleidoscope, without some general notion given them beforehand both of this evidence and the issues. Even veteran judges are fre- quently found not to have detected the real question until they hear nuich of the argument. If they who are trained to listen and whose apprehensions have been artificially quickened are the better for a prefatory outline, much more do the laity in the jury-box require a patient and careful unfolding of the general features of the case at the beginning of the trial. In quoting extensively from Mr. Cox, and by summarizing the views of ]\Ir. Harris, we essay a correction of the fiiult mentioned above as too common in America. We hope that a contemplation by the young la^v^er of the importance attached to the open- ing in England — an importance which, as we have pointed out, it does not have here — would Serve to counteract its undue depreciation in our country. And this explanation being made, we will now proceed to dis- cuss the essentials of a proper opening in our courts. § 348. The pleadings are opened in order to suggest what are the issues. I have noted that often the plain- tiff's counsel leaves it to the adversary to open the pleas. But the cross-examination is frequently directed to elicit facts favorable to the pica, and then there is a re-examina- tion considering these facts again. Such a cross-examina- tion and re-examination are only rightly prepared for by an opening of the pleas as well as the declaration. So it must be insisted that, after you tell the jury the claim of the plaintiff, you also state the allegations of the defend- ant denying or avoiding the claim. What we have quoted 16 242 CONDUCT IN COURT. from Mr. Cox in reference to the treatment of the plead- ings leaves us but little to say upon the subject. § 349. If they arc voluminous and intricate they should always be read, tliough there be an offer to waive the reading. But a lucid synopsis of them should first be made orally. No long document should ever be read without a clear though ever so brief statement of the points which it is expected to support. We are talkers by nature and readers by art. The judge and jury both prefer being talked to rather than being read to. After the oral statement recommended when the pleadings are read, the jury will understand even the technical terms, the judge will easily discern the questions of law, and both will receive a complete and vivid presentation of the issues made by the record. § 350. When the rule of law which you assume is novel or may appear to be repugnant to the current of decisions or the afecepted construction of a pertinent statute or sec- tion of the code, it is well to be fuller to the judge tlian is ordinarily required. As soon as you have proceeded far enough with the record to make it appear that the rule as you assert it to be is material, you should indicate the authorities and reasons wliich you wall handle in extenso in the argument. I have observed that, if the judge in the outset takes position against you on the law, he will often not attend as closely to the other particulars of your case as you would have him. You should always try to win the leaning of the judge at the earliest possible moment in the trial. § 351. We must now consider the treatment of the proofs. Mr. Harris's analysis of Sir Alexander Cockburn's opening speech in the trial of Palmer, charged with poi- OPENING THE PLEADINGS AND THE CASE. 243 soning Cook, is an instructive chapter to the young lawyer.^ The prosecution had to build on many subtle circumstances. It was a complication that, while Cook had been prepared by antimony, he was killed by strychnine, and this necessi- tated careful explanation of the diverse operations of the two substances and much scientific detail in educating the jury for the peculiar proofs. The speech, for all of its length, is in the main a genuine opening. It is made up of what we may call an introductory historical outline, a painstaking development of the turning questions of fact, and a narrative in little of the evidence. The case was one ^^'hich in an American court would have demanded a far more detailed opening than usual ; and it deserves study in order to fit the lawyer for such exceptional in- stances. But we are chiefly concerned to note what is proper in commonly occurring cases. § 352. The exact issues having been shown by giving the substance of the pleadings, the first thing to do with the facts is to give the propositions of each side. These are what Sir James Stephen calls the facts in issue as dis- tinguished from relevant facts, the latter meaning the proofs of the former. Your own propositions should be arranged in the true natural order ; and as a particular one is finished, the counter proposition of the adversary should be given. After this statement is finished it is in order for you to sketch, in as brief an outline as is easily intelligible, the e^^dence which you propose to ofi'er in support of your prima facie case. It would be an impro- priety to anticipate the adverse evidence and tell what will be yours in rebuttal ; for the defendant can always decline to put in CAidence, and Avhether he w^ill do this and what 1 Hints on Advocac}-, 6tli ed., 265-294. 244 CONDUCT IN COURT. range his proofs will take are secrets of his own. Remem- ber that, even if the defendant has no evidence, you will have opportunity to comment upon the facts drawn out by his cross-examination and his positions when you make your argument. § 353. When Scarlett had reason to expect no evidence fi*om the defendant he made a fuller opening than usual. But he ordinarily employed the conciseness which we rec- ommend. He sjiys : — " It was my habit ... to state, in the simplest form that the truth and the case would admit, the proposition of which I maintained the affirmative and the defendant's counsel the negative, and then, without reasoning upon them, the leading facts in support of my assertion. Thus it has often happened to me to open in five minutes a cause which would have occupied a speaker at the bar of the present day from half an hour to three quarters of an hour or more." ^ In most cases the jury can be put in condition for in- telligently following your proofs by a very short introduc- tion, provided it plainly unfolds the grounds occupied by both parties and also gives a lucid narrative of your " lead- ing facts." It is well to hint the favorable character of important witnesses, and especially should you prepare the jury for those adverse to you in interest or feeling whom you must call. And as . practice sharpens your insight you will learn what other topics nmst now and then be suggested in an opening. § 354. It is customary in America for the defendant to open his evidence. The pleadings have already been dis- posed of, and you have nothing to do with them except it 1 See the fuller citation, American Law Studies, § 1082. OPENING THE PLEADINGS AND THE CASE. 245 may be to set the plaintiff's counsel right in some misstate- ment. You are not expected at this stage to comment on the evitlence of tlie adveraary. Your business is to suggest that which you expect to produce. The ojDening of the plaintiff, his direct and your cross examination, have dis- closed much of your case, and there is therefore more reason for conciseness in yours than in the opening of the plaintiff. As to most other matters, what we have shown to be essentials in the latter may be repeated liere.^ § 355. The last thing which we have to say on the sub- ject of opening the facts is that it should be subsequently aided by a progressive development of your evidence. The late Mr. B. H. Hill, of Georgia, kept his witnesses well in hand by proper questions and a restraint from ex- cursion almost imperceptible, and he observed due order so closely through his examination that the jury had as little need for an opening as the spectators have for a pro- logue to a well-managed pantomime. § 356. The principle of an opening is fully stated by the great Roman institutional writer in a short sentence. He says : — "When the parties came before the judex they used to preface the argument by setting forth the case to him concisely and in an abridgment ; which was called causae conjectio, that is, a compression of the case into a brief outline." ^ Our lawyers of to-day can find in this the soul of the ' The reader may compare Cox, Advocate, 442-448; and the chapter entitled "As to Opening the Defendant's Case," Harris, Hints, 6th ed., 161-170, where the subject is more widely distinguished from the opening of the plaintiff than is necessary in America. ^ "Cum ad judicem venerant, antequam apud eum causam perorarent, solehant breviter ei et quasi per indicera rem exponere : quae dicebatur causae conjectio, quasi causae siiae in breve coactio." — Gai. 4. 15. 246 CONDUCT IN COURT. subject, — a summary of all that wc have said. The real use of the opening is to prepare for hearing witnesses and doeuments, no one of which tells the whole story of the case, and to suggest the issues which would otherwise have to be found by a generalization too burdensome for common judges and jurors. CONDUCT OF THE EVIDENCE. 247 CHAPTER IX. BEGINNING OF CONDUCT OF THE EVIDENCE. THE EXAMINATION OF THE PARTY's WITNESSES. § 357. At the first we make a short sketch of the course of evidence in a trial, and the general principles of its conduct, and after this we devote the remainder of the chapter to the examination of one's own witnesses. We start with the familiar rule that the party who holds the affirmative of the issue begins the evidence. He is only to make out a prima facie case, — a subject to be treated more fully hereinafter, — and he can usually re- serve much of his testimony to reply to tliat of the adver- sary. The plaintiff having rested, if the defendant does not make a motion for a nonsuit and prevail, and if he does not choose to stand on the case already made, he puts in such evidence as he has to avoid the effect of his adversary's ; when he rests. The plaintiff can then sup- port his own proof where it has been attacked, and also attack the attacking evidence by other evidence. He can now prove no additional facts in issue ; h.e can only fend off the aggression of the other side or contradict its testi- mony. AMien the plaintiff has re-established his case he ^^^ll pause again. The defendant can in turn re-enforce his impugned evidence and disprove the testimony last introduced by the plaintiff. And so the parties may go on 248 CONDUCT IN COURT. iuul ruu a parallel to the old course of pleading, to wit, declaration, plea, replication, rejoinder, surrejoinder, re- butter, and surrebutter. The plaintiff's first evidence cor- responds to the declaration ; the defendant's first, to the plea ; the plaintiff's second, to the replication ; the defend- ant's second, to the rejoinder; the plaintiff's third, to the surrejoinder; the defendant's third, to the rebutter; and the plaintiff's fourth, to the surrebutter. A standard au- thor says : " After the surrebutter the pleadings have no distinctive names ; for beyond that stage they are very seldom found to extend." ^ The evidence may be documentary as well as oral. Sometimes it will be all documentary, thougii this will occur but seldom. § 358. We now take up the examination of witnesses. And while we here quote a passage in reference to those of the plaintiff, we remind the reader that our subject in this chapter is the direct examination of the witnesses on both sides. INIr. Cox says : — ''The plaintiff's case being stated by the leader, the examination of the plaintiff's witnesses proceeds. The general rule is for the counsel on that side to conduct the examination of the witnesses in turn, the junior taking the first witness, probably because it was supposed that the leader would require rest after his speech. But this order is somewhat departed from under special circum- stances, as where the witness is peculiarly important or his examination demands peculiar skill, in which case the leader will propose to take him ; — a suggestion to which you should always readily and cheerfully assent; and indeed when such a ^vitness chances to fall to your lot it would 1 Steph. PL 59. EXAMINATION OF THE PARTY'S WITNESSES. 249 be becoming in you to propose to your leader that lie should call him, and thus to anticipate the delicacy that often prevents a leader from doing that which may look like a want of confidence in you." ^ § 359. The author is not aware of any American rule which settles what counsel shall examine. This is one of the discretionary matters which is generally disposed of by agreement at the consultation before the trial. If there has been no such agreement, tlie counsel whose leadership is conceded either examines or directs an associate to per- form the duty. Other things being equal, that counsel should examine who is best acquainted with the expected proof, if it be at all difficult to elicit. Generally different parts of the case have been got up by different counsel, and possibly but one of them has had an interview with a particular witness. It is plain that this counsel, if he has the ordinary qualifications, should examine the witness whose narrative he knows. And the author has noted that where the facts are many and intricate and the case so doubtful as to require elabo- rate discussion, it is better for the counsel who is to make the main argument not to examine any of the witnesses. He will then be free to take careful notes, and at every pause he can be casting the balance of the testimony in- stead of puzzling in anticipation over the next witness, or the cross or the re-examination. And while thus playing the part of auditor he can be of great assistance to his associate examining, to whom he will only make sugges- tions of important questions which would otherwise be omitted. § 360. It being decided what counsel shall act, and the ^ Advocate, 351. 250 CONDUCT IN COURT. witness being on the stand, the examination of the latter begins. The pleadings of the plaintitt*, liis declaration, or his bill in equity, or the bill of indictment, contain certain propositions of fact wliich must be proved, and the pur- pose of the direct examination of the plaintiff's or the State's witnesses is to prove them, as it is tiie purpose of the defendant's direct examination to prove the material propositions of fact in his plea or answer. We take for granted that our examiner is lawyer enough to distinguish what is good evidence and what is not. Knowing the ex- pected narrative of the witness either from having talked with him or from having digested full instructions of a reliable associate, he will so shape his questions as to elicit the material parts. He is to draw out every bit of that wliich is favorable to his client, and nothing unfavor- able or as little as possible. But if there is something adverse apparent on the surface, the examiner in chief had better draw it out himself. Thus the witness may be a near relative of the party, or a warm friend, or jointly in- terested witli your client, and these focts may be as well known to the adversary as to yourself. It is idle to try to suppress them ; and the one calling the witness will gain credit if he proves them, while it might be used to his dis- advantage if he does not. § 361. But we must not go too fast. It seems, better to give an outline of what the counsel should do in com- mon cases. Your ordinary witness is self-possessed if you do not snub or chill him, is honest, and not at all stupid if your questions are put in every-day language. Our first business is with him, and when that is finished we shall deal with the exceptional classes. We premise that you have made a proper arrangement of your proofs, as we EXAMINATION OF THE PARTY'S WITNESSES. 251 couusclled above ; and that you will call your witnesses in corresponding order. The material parts of a transaction are generally testified to with best effect by the witness in his own way, if he be started right. While he is engaged upon these it is usually wx^ll not to divert his attention and stop the flow of his recollection by needless questions. The art necessary is in preparing him for this narrative. If he is a little awkward because of his unfamiliarity ^^ath the court-room, you can reassure him by a manner which is kind and considerate, but not offensively patronizing as we observe it to be too often. There are generally many small details, such as the relation of the witness to the party, the means of his knowledge, etc., which can be made to introduce him to the jury and their credit, and which, as we have just suggested, can be used to give him ease. § 362. When you have brought him to a matter of sub- stance upon which you must interrogate him, you are no longer to lead him. If leading questions are used they discredit the witness, who seems to give prompted testi- mony ; they sometimes ensnare him into incorrect answers ; and should he reply counter to their suggestions, as he will often do, you yourself are disparaged. Mr. Harris truly says of them that if they are allowed by your opponent " it is generally to your disadvantage." ^ He gives the right rule in these words : " A question, without being leading, should be a reminder of events rather than a test of the witness's recollection." ^ § 363. The following passage from Mr. Cox, showing both the proper use of the questions now under consider- ation, and when and how they are to be avoided, is given for consideration and comment : — 1 Hints on Advocacy, 6tli ed., 38, 2 jtid., 33, 252 CONDUCT IN COURT. " The rule against leading questions is properly applica- ble onhj to such questions as relate to the matter at issue. Whatever some priggish opponent may protest, it is per- mitted to you, and the judges will encourage you in the practice, to lead the witness directly up to the point at issue. It saves time and clears the case, and if you nar- rowly observe experienced advocates you will find that they always adopt this course. For instance, instead of putting the introductory questions, ' Where do you live ? ' * What are you ? ' and so forth, you should, unless there be some special reason to the contrary, directly put the lead- ing question, ' Are you a banker carrying on business in Lombard Street ? ' and so on, until you approach the questionable matter, when of course you will proceed to conduct the examination according to the strict rule. § 364. " But that rule is not so easily to be observed as you may suppose. Frequently it will occur that you will have need to call the attention of the witness to some- thing he may have forgotten ; as thus. Suppose that you were examining as to a certain conversation. The witness has narrated the greater portion of it, but he has omitted a passage which is of importance to you. We know that in fact with all of us in our calmest moments it is difficult to repeat perfectly the whole of what was said at a certain interview, and if it had been a long one, probably we might repeat it half a dozen times and each time omit a different portion of it, although in either case the omitted part would be instantly recalled to our memories if we were asked, ' Did he not also say so and so ? ' or, ' Was not something said about so and so ? ' But this sort of reminiscent question you are not permitted to put to a witness because it Avould be a leading question. ... In EXAMINATION OF THE PARTY'S WITNESSES. 253 vain you ask him, ' Did anything more pass between you ? ' * Was nothing more said ? ' ' Have you stated all that oc- curred ? ' . . . It would flash upon him instantly if it were to be repeated or even to be half uttered. But you may not help him so, and then there arises a perplexity which every advocate must often have experienced, — in what manner can this be recalled without leading ? . . . Your endeavor must now be to suggest indirectly the forgotten statement ; and to do so without violating the rule which in this respect is certainly pushed further than justice and fairness to the infirmity of human memory can sanction. As each case must depend upon its circumstances it is im- possible to lay down any rule to help you, or even to hint at forms of suggestion. But one method we may name as having proved efficacious when others had failed, and that is to make the witness repeat his account of the inter- view or whatever it may be ; then it will not unfrequently happen . . . that he will remember and repeat the pas- sage you require, and omit something else which he had previously stated. But this of course matters not ; your object has been gained and your adversary may take what advantage he can of the difference in the statements. If the story is a long one you will avoid inflicting this repeti- tion of it until other expedients have been tried in vain. It may be added that a single word often suffices to sug- gest the whole sentence ; if you have a quick wit you may sometimes bring out the matter you want by so framing a question that it shall contain a part of the forgotten sen- tence, ipsissimis verbis, but otherwise applied." ^ § 365. We remark as to this quotation that it assumes a more stringent rule than now exists ; and fm'ther, that it 1 Advocate, 355-357. 254 CONDUCT IN COURT. exaggerates the difficulty mentioned. You are always permitted to lead the witness to a particular subject. The question, " Was not something said about so and so ? " which jNIr. Cox says is not to be asked, is permissible, pro- vided it is only suggestive of the special thing to which you are trying to direct the witness. That is quite different from the other, " Did he not say so and so ? " which is leading, as it goes beyond mere mention of the subject and suggests the answer desired. The instances given in the last sentence of the passage arc by no means as exceptional as they are there represented. The witness's recollection of even the minutest fact can always be drawn out by un- exceptionable interrogation. When he has made an omis- sion you are not to resort to the questions supposed by Mr. Cox to be vainly put, such as, " Did anything more pass between you ? " " Have you stated all that oc- curred ? " They but burn daylight. You must particular- ize. Suppose your witness is testifying to the confession of a burglary. He states most of the details, but he forgets one that you deem of importance as affording you opportu- nity of corroboration. You may thus make your question a proper " reminder," — to use ]Mr. Harris's phrase quoted above : " If the defendant told the place where he got the crow-bar [which was mentioned in the pre^^ous testimony of the confession] and how he got it, what did he say ? " It will profit the young laA^'yer to train himself, while sifting parties and witnesses in his chambers, to draw out all of their knowledge without ever asking a leading ques- tion. When the habit is onco fixed he will find not only that he prepares them better f )r examination in court, but that he has also acquired an effective faculty for the court- room which is too little cultivated. EXAMINATION OF THE PARTY'S WITNESSES. 255 § 366. It is patent that your questions should be ex- pressed in plain language and should he as short and clear as is compatible with your object. You are to make the witness understand you. But this is not enough. By reason of his previous conference with you, he may under- stand when the jury and the court are in the dark. The following passage from Mr. Harris is in place here. " I will give an instance how not to examine a witness. It is an almost verbatim report of what actually occurred recently at a trial when an experienced junior was exam- ining in chief : — " ' Were you present at the meeting of the trustees when an agreement was entered into between them and the plaintiff?' Answer, * Yes.' " Q. — ' Will you be kind enough to tell us what took place between the parties with reference to the agreement that was entered into between them ? ' This is an instance of verbosity which shows that, in putting questions, long- drawn sentences should be mmded. The more neatly a question is put, the better, as it has to be understood not only by the witness but by the jury. All that was neces- sary to be asked might have been put in the following words : ' Was an agreement entered into between the trus- tees and the plaintiff? ' ' What was it ? ' " It will appear even more strange, perhaps, when I say that, after the answer was given by one witness, which was all that was necessary to prove that part of the case, the question was repeated to another with additional verbiage : ' Will you be good enough to inform us what took place upon that occasion between the parties, as nearly as you can, with reference to the agreement that was then, as you have stated, entered into between them ? Please tell 256 CONDUCT IN COURT. us, not exactly, but as nearly as you can in your own way what his exact words were.' " ^ § 367. The following advice of Mr. Harris finds a place here. It is all excellent, except that the liability of the witness to confusion is much overrated. " The best thing the advocate can do ... is to remem- ber that the witness has something to tell, and that but for him he would probably tell it very well ' in liis own way.' The fewer interruptions therefore the better ; and the fewer questions, the less questions will he needed. Watching should be the chief work ; especially to see that the story be not confused with extraneous and irrelevant matter. The chief error the witness will be likely to fall into will be hearsay evidence : either he says to somebody, or some- body says to him something which is inadmissible and delays the progress of events. But the witness being very tender, you must be careful how you check the progress of his ' he says says he's/ or you may turn off the stream altogether. Pass him over those parts as though you were franking him through a turnstile, and then show him where he is ; or as if you were putting a blind man with his face in the direction he wished to go, and then left him to feel his way alone. " The most useful questions for eliciting facts are the most commonplace, ' What took place next ? ' being infi- nitely better than putting a question from the narrative in your brief which leads the witness to contradict you. The interrogative ' yes,' as it asks nothing and yet everything is better than a rigmarole phrase, such as, ' Do you remem- ber what the defendant did or said upon that ? ' The wit- ness after such a question generally feels puzzled, as if you ^ Hints on Advocacy, 6th ed., 42. EXAMINATION OF THE PARTY'S WITNESSES. 257 were asking liiin a conundrum which is to be passed on to the next person after he has given it up." ^ § 308. Of course as you should ask as few questions as is necessary, it is folly to press and sift the witness too far. Mr. Harris says : — ^^ Never cross-examine your own witness. . . . You will hear an advocate cross-examine his witness over and over again without knowing it, if he have not the restraining hand of his leader to check him. ** Before JMr. Justice Hawkins not long since a junior was conducting a case which seemed pretty clear upon the bare statement of the prosecutor. But he was asked, * Are you sure of so and so ? ' ' Yes,' said the witness. ' Quite ? ' inquired the counsel. ' Quite,' said the witness. * You have no doubt ? ' persisted the counsel, thinking he was making assurance doubly sure. * Well,' said the witness, ' I have n't much doubt, because I asked my wife.' " Mr. Justice Hawkins : ' You asked your wife in order to be sure in your own mind ? ' ' Quite so, my lord.' ' Then you had some doubt before ? ' ' Well, I may have had a little, my lord.' " This ended the case, because the whole question turned upon the absolute certainty of this witness's mind."^ To complete this section, we suggest that you can pre- vent your witness from stating unfavorable facts within his knowledge, either by keeping him well away from them, or in case you must bring him near them by so framing your questions and confining them to particular and minute matters as to allow him no scope for answering what you desire to exclude. These unfavorable facts may be the business of your adversary, which you need not do for him. 1 Hints on Advocacy, 6th ed., 31, 32. 2 ibid., 37, 38. 17 258 CONDUCT IN COURT. Often, however, it is j^ood policy, us we have already urged, for you to prove the adverse. To do so may gain credit for an interested witness in more important parts of his testimony and it may create with the jury an effective opinion of your fairness. It has also the advantage of taking the wind out of the cross-examiner's sails. § 3G9. There is a heedfulness which should never be abandoned. Mr. Cox has a passage on this topic worthy of consideration. " Your questions in examination in chief should be framed carefully and put deliberately. . . . You should weigh every one in your mind before you put it, in order that it may be so framed as to bring out in answer just so much as you desire and no more. . . . The court will soon learn not to be impatient of your seeming slowness when it discovers that you have in fact abbreviated the work by a pause which has enabled you to keep the evidence strictly to the point at issue. They who remember Sir William Follett will at once understand our meaning, for one of his most remarkable and impressive peculiarities was the grave and thoughtful deliberation with which he framed and put his questions to his own witness, and the result of which was that he was seldom annoyed by unex- pected answers, or by additions and explanations which he did not desire." ^ The most ordinary fault which we observe is redundant and ill-considered examination. The counsel believes that in order to exhaust his witness's knowledge he must keep up a long fire of questions, where fewer, properly selected, would be far better. A foolish question is often a snare to your witness. He wishes to oblige you, and he answers 1 Advocate, 364, EXAMINATION OF THE PARTY'S WITNESSES. 259 somctliino; which tlic cross-examination makes i!;oo(l use of. Let it be your aim always to draw out what you desire by the fewest questions and to permit your witness to answer these only. The last hint which we give here is that you should in general follow the prevailing current of the transaction in hand. The chronological order is not to be adopted at all tinies.^ It will often be beneficial to bring out prominent and important facts independently, — to make them con- spicuous by isolation. At the close of a considerable nar- rative frequently you must turn the witness back to matters which he has failed to tell. And it may be well to bring about breaks in a long continuity, to recover the attention of the jury, to rest yourself or the witness. When you understand that he is to be sifted thoroughly, that what he says is to be made intelligible and impressive to those appointed to hear him, and that harm to yourself and help to the other side are to be avoided, you keep hold of the light which shows you the true way. § 3/0. We have nearly finished what we wished to say of the direct examination of the ordinary witness, — the typical American witness, as we may call him. We only add, that his knowledge of facts supi^orting the prima facie case is to be exhausted. When you think that your task is done, run over his testimony rapidly in your mind, or glance through your memoranda, or inquire of your asso- ciates, to see if anything yet remains to be proved by the witness. Supply all omissions by well-directed inquiries before you turn him over to the cross-examiner. Thus you will avoid having to recall your witnesses. One who 1 jMaeaulii}', till! best of all story-tellci-s, says, "Mere chronological order is not the order for a com[dicatod narrative." 260 CONDUCT IN COURT. returns to the box creates often an unfavorable opinion because of a suspicion that be is now testifying what has been suggested to him. Of course, if you liave some com- manding reason you will not fail to recall ; and generally you should take pains to show why you did not question him before as you do now. § 371. Having treated the average witness, we will now devote a few sections to those of exceptional char- acter. " If your witness be timid, it will be your care to restore his self-possession before you take him to the material part of his testimony. This you should effect by assuming a cheerful and friendly manner and tone ; and if you have the art to make him smile, your wit would be better timed than is always the case with forensic jests. Keep him em- ployed on the fringe of the case until you are satisfied that his courage is restored, and then you may proceed with him as with any other witness. But be very careful not to take him to material topics while he is under the influ- ence of fear ; for in this state a witness is apt to become confused and to contradict himself, and so to afford to your adversary a theme for damaging comment." ^ With the last quotation compare the pertinent Golden Rule of David Paul Bro^vn : — " If they [your witnesses] are alarmed or diffident and their thoughts are evidently scattered, commence your ex- amination with matters of a familiar character remotely connected with the subject of their alarm or the matter in issue, as, for instance : Where do you live ? Do you know the parties ? How long have you known them ? etc. And when you have restored them to composure and the ^ Cox, Advocate, 361. EXAMINATION OF THE PARTY'S WITNESSES. 2(31 mind has regained its eqnilibriuni, proceed to tlic more es- sential features of tlie case, being careful to be mild and distinct in your approaches lest you may trouble the foun- tain again from which you arc to drink." ^ § 372. Upon the quotations in the last section we re- mark that it is your business to anticipate the fright or discomposure of the witness by noting his manner and words in the office. Women and diffident men will volu- bly pour out to you their fears of the court-room, if you will but listen ; and listen you ought, to be prepared for theu" examination or to prepare your associate. If you will accept their confidence you will find them leaning on you as a protector and furnished the better therefrom for the day of trial. But sometimes, in spite of the most prudent anticipation, the witness will be discomposed when he is called, and if so the advice given in the quoted passages is admirable. These timid witnesses often need support. We may especially apply to them what the old authority advises as to all : " They should be well exercised before they are brought into court and tried with various interrogatories, such as are likely to be put by an advocate on the other side. By this means they will either be consistent in their statements, or if they stumble at all will be set upon their feet again, as it were, by some opportune question from him by whom they were brought forward," ^ Your more self-possessed witnesses, as well as those now under consideration, will be profited by rehearsals and severe cross-examination from yourself. And the course advised will also better furnish you for the direct examination. 1 Second Golden Rule. ^ Quiutiliau, Institutes, V. 7. 11. 2G2 CONDUCT IN COURT. § ."37.'^. But to return to tlic cxtra-curial treatment of timid witnesses, we give an cxamjile from Webster's prac- tiee. He was for a will impugned on the ground that one of the three witnesses thereto was insane. It was noto- rious that this particular witness, a young man of morbid if not unsound mind and great sensitiveness, had once tried to drown himself. He was in so much mental com- motion at the prospect of cross-examination as to this fact that the associate counsel had pronounced in favor of not calling him. But Webster insisted that he be allowed to decide the true policy after he had talked with the witness. He contrived an interview. He won the young man's con- fidence, and drew from him an account of his life, the at- tempted suicide, the hearty repentance, and the assurance of forgiveness which he felt. The rest we give in the words of the great advocate, as reported by a biographer. " When about leaving him I told him that I wished him the next day, when I would summon him into court, to go there, and consider me as his friend. ... I said : ' You have the sympathy of everybody ; and I wish you to tell, iu answer to my questions, the story of your life as you have told it to me, merely to show to the jury and court the condition of your mind. You may feel absolutely con- fident that nobody shall harm you.' He went into court the next day and told the story so eloquently that there was hardly a dry eye in the court-room. . . . When the young man had left the stand I felt secure in my case ; and it was won upon that single point." ^ § 374. Mr. Cox notices the stupid witness : — " He cannot understand your questions or he answers them so imperfectly that he had better have left them un- 1 Harvey, Reminiscences, 105-110. EXAMINATION OF THE PARTY'S WITNESSES. 263 answered. With such a one the only resource is patience and good temper. If you are cross with him you will be sure to increase his stupidity and to convert evidence that means nothing into evidence that is contradictory and confused. The preservation of imperturbable good temper is a golden rule w4th an advocate. . . . Entire self-com- mand is his greatest virtue, never more in requisition than in dealing ^vith a stupid witness. Instead of rebuking him you should encourage him by a look and expression of ap- proval, and you must frame your question in another shape better suited to his dense faculties. If baffled again do not retreat, but renew the catechism until your object is obtained. In constructing your questions you will often find a clue to his links of thought by observing his an- swers, and your next question might then, with a little ingenuity, be so framed as to fall in with his train of ideas. Thus patiently treated there are few witnesses so dull as not to be made efficient for the purpose of an ex- amination in chief." ^ § 375. I w^ill add that the trouble with a dull or stupid or uneducated witness is often prolonged because the ex- aminer keeps himself in a region elevated above the com- prehension of his answerer. He must learn to lower to his level. One who can make children always understand him will know how to deal w^ith a dunce of a witness. We give in a note below an example from an eminent novelist, illustrating how a superior mind can lock itself up to an. inferior of even a high degree of intelligence.^ 1 Advocate, 361, 362. 2 In the following passage from Bulwer's " My Novel," Dr. Riccabocca begins : — " ' For your sake, young gentleman, I regret that your holidays are so 264 CONDUCT IN COURT. This is the fault of the former. It is easier for the other to understaiul the superior in intellect, if the latter will only learn how to talk to him, than to understand what an equal says to him on subjects out of his accustomed range of thought. § 370. '' There are two kinds of troublesome witnesses whom you will have to encounter in the conduct of a cause, — those who say too much and those who say too little. Of these by far the most difficult to deal with are your over-zealous friends, — your witnesses who prove too much. A very little experience will enable you to detect early ; for mine 1 must rejoice, since I accept the kind invitation you have rendered doubly gratifying by bringing it yourself.' "'Deuce take the fellow and his fine speeches! One don't know which way to look,' thought English Frank. "The Italian smiled again, as if this time he had read the boy's heart without need of those piercing black eyes, and said less ceremoniously than before, 'You don't care much for compliments, young gentleman.' " ' No, I don't, indeed,' said Frank heartily. " ' So much the better for you, since your way in the world is made ; it would be so much the worse if yoxi had to make it.' " Frank looked puzzled: the thought was too deep for him, so he turned to the pictures. " 'These are very funny,' said he : 'they seem capitally done. Who did 'em ? ' " 'Signorino Hazeldean, you are giving me what you refused yourself.' " ' Eh ? ' said Frank, inquiringly. ' ' ' Compliments. ' " ' Oh — I — no ; but they are well done ; are n't they, sir ? ' " ' Not particularly : you speak to the artist.' " ' What ! you painted them ? ' "'Yes.' " ' And the pictures in the hall ? ' "'Those too.' " ' Taken from nature, eh ?' "'Nature,' said the Italian sententiously, perhaps evasively, 'lets nothing be taken from her.' " ' Oh ! ' said Frank, puzzled again. 'Well, I must wish you good EXAMINATION OF THE PARTY'S WITNESSES. 265 these personages almost at a glance, certainly after a few sentences. They usually try to look wonderfully easy and confident ; answer off-hand with extraordinary glibness and give you twice as much information as you have asked for. . . . Keep such witnesses closely to the point for which they are required, and having got from them just what you want dismiss them, right thankful if they have not done you more harm than good." ^ Compare with this the directions of Da\ad Paul Brown : " As to your own witnesses : if they are bold and may injure your cause by pertness or forwardness, observe a gravity and ceremony of manner towards them which may be calculated to repress their assurance." ^ § 377. The counsels of both authors are valuable. I will however suggest that it is the business of counsel to know beforehand what is the inclination of a witness. No gentleman of the bar will ever tell one to say anything but the truth ; but he will be remiss in his duty when he finds him in the considtation-room bold, hasty, pert, forward, or too partisan, not to rebuke and reprove him into a more becoming behavior, and thus rightly prepare him for the witness-box. For all of this precaution the advice of the Golden Rule just quoted must now and then be followed. § 378. " If you perceive that the mind of the witness is imbued with prejudices against your client, hope but little from such a quarter : unless there be some facts which are essential to your client's protection and which that witness alone can prove, either do not call him or get rid of him as soon as possible. If the opposite counsel perceive the bias to which I have referred, he may employ it to your own ruin. In judicial inquiries, of all possible evils the worst 1 Cox, Advocate, 358, 359. ^ First Golden Rule. 26(5 CONDUCT IN COURT. and the least to be resisted is an enemy in the disguise of a friend. You cannot inipeacli him ; you cannot cross-exam- ine him ; you cannot disarm him ; you cannot indirectly even assail him ; and if you exercise the only privilege that is left to you and call other witnesses for the purpose of explanation, you must bear in mind that, instead of carry- ing the war into the enemy's country, the struggle is be- tween sections of your own forces and in the very heart perhaps of your own camp. Avoid this by all means." ^ § 3/9. The rule of David Paul Brown last quoted assumes that a witness often eludes the watchfulness of party, friends, and counsel, proving at last upon the stand to be but a spy. Prudence will guard against such a ca- tastrophe.^ Every witness of doubtful character should be committed to his narrative in the hearing of those who will quickly bear him down if he swerve. The party is not at the mercy of a treacherous witness. The true policy 1 Fouitli Golden Rule of David Paul Brown. 2 Compare this from Quintilian : "In regard to witnesses wlio are con- sistent in their evidence we mnst be on our guard against treachery ; for they are often thrown in our way by the opposite party, and after promis- ing everything favorable give answers of a contrary character, and have the more weight against us when they do not refute what is to our preju- dice but confess the truth of it. We must inquire, therefore, what motives they ap))ear to have for declaring against our adversary; nor is it sufficient to know that they ivere his enemies; we must ascertain whether they have ceased to be so ; whether they may not seek reconciliation with him at our expense ; whether they have been bribed ; or whether they may not have changed their purpose from penitential feelings ; precautions not only ne- cessary in regard to witnesses who know that which they intend to say is true, but far more necessary in respect to those who promise to say what is false. For they are more likely to repent and their promises are more to be suspected ; and even if they keep to their word it is much more easy to refute them." Institutes, V. 7. 12-14. The advanced morality of our day comes out as we see from the conclu- sion of this quotation that tlie author did not reprehend the use of wit- nesses who had promised the client to swear falsely. EXAMINATION OF THE PARTY'S WITNESSES. 267 is by proper means to avoid or to unarm liim. If you are surprised, show that he has entrapped you and then im- peach him by his contradictory statement made to your client or his friends. If you cannot do tliis, a straightfor- ward and manly grappling with the traitor will turn the sympathy powerfully against him. Tiie law and the courts are becoming too wise to allow justice to be cheated under h'rational rules. The most busy and eminent counsel can at least, in the consultation the night before the trial, care- fully probe and search all the witnesses of the client's fol- lomng, and thus be forewarned against any lurking partisan of the adversary. § 380. But the hostile witness must often be well ex- amined, and what ]Mr. Cox says on this subject should be considered here ; wc therefore append it : — " There is no more difficult and delicate task in the con- duct of an examination in chief than so skilfully to manage an adverse witness called by yourself that he shall state just so much as you require and no more. " When the court is satisfied that the witness is really an adverse one, the strict rule that forbids leading questions will be relaxed, and you will be permitted to conduct the examination somewhat more after the manner of a cross- examination. ... As a general rule it may be taken that the less you say to him the better for you. Bring him di- rectly to the point which he is called to prove ; frame your questions so that they shall afford the least possible room for evasion, or, what is still worse, explanation. ... If you are satisfied beyond doubt of his hostility, and he should, as is often seen, assume a frank and friendly mien in the witness-box, instead of accepting his approaches, reject them with indignation ; let him see that you under- 2G8 CONDUCT IN COURT. stand him and arc not to be imposed upon, and endeavor to provoke him to the exliibition of his true fcelino-s. It is the first eare of a skilful advocate in dealing with his own adverse witness not only not to conceal tlie hostility, but to nuike it prominent, — to provoke it to an open dis- play and drmv out the expi'cssion of the feeling, if it docs not sufficiently appear without a stimulus. If he be ad- verse at all, you cannot make him aijpear too adverse, because the more hostile he is, the more will his evidence in your fevor be esteemed, and the less weight will be given to such as he may utter against you." ^ 1 Advocate, 359-361. Quintilian advises the accuser to rein in the willing, and spur the un- willing, witness as follows ; "Of witnesses who are summoned to give evi- dence, some are willing to hurt the accused party and some unwilling. . . . Let us suppose that the accuser knows the inclination. ... If he find the witness disposed to prejudice the accxised, he ought to take the utmost care that his disposition may not show itself; and he should not question him at once on the point for decision, hut proceed to it circuitously, so that what the examiner chiefly wants him to say may appear to be wrung from him. Nor should he j)ress him with too many interrogatories, lest the witness by replying freely to everything should invalidate his own credit ; but he should draw from him only so much as it may seem reasonable to elicit from one witness. But in the case of one who will not speak the truth unless against his will, the great happiness in an examiner is to extort from him what he does not wish to say ; and this cannot be done otherwise than by questions that seem wide of the matter in hand ; for to these he will give such answers as he thinks will not hurt his party ; and then from various jiarticulars which he may confess he will be reduced to the inability of denying what he does not wish to acknowledge. For as, in a set speech, we commonly collect detached arguments which taken singly seem to bear but lightly on the accused, but by the combination of which we succeed in proving the charge, so a witness of this kind must be ques- tioned on many points regarding antecedent and subsequent circumstances, and concerning places, times, persons, and other subjects ; so that he may be brought to give some answer ; after which he nuist either acknowledge what we wish, or contradict what he himself has said. If we do not suc- ceed in that object, it will then be manifest that he is unwilling to speak ; and he must be led on to other matters that he may be caught tripping if EXAMINATION OF THE PARTY'S WITNESSES. 2G9 § 381. The examination of a ^stubborn witness of this kind must often be carefully premeditated. Sometimes persistent and detailed interrogation is your only cue, while again you may haTe to prepare the way by testimony with which he will not dare to collide. A firm of manu- facturers had contracted with an agent to sell for them in a particular territory, reserving the power to discharge him on giving ten days' notice. They were bound to fill all orders for their products at given prices forwarded by the agent. Several months after the connection commenced the agent received an unexpected notice terminating the agency, and, what was more unexpected, his bookkeeper threw up his place and announced that at the expiration of the ten days he would represent the manufacturers in the territory mentioned. The agent had left the business almost wholly to the bookkeeper, and therefore in a suit against the firm he had to prove most of the items in his account by the latter, who had become very hostile to him. In the direct examination this witness was carried through the pertinent entries in the books and letters in the press- book, — all in his handwriting. The letters contained many orders wdiicli the firm denied having received. Of course the originals had been called for properly. The witness was forced to admit that he had duly mailed every letter which he had copied. As to a few items which could not be established in this way, he was made to hear beforehand certain reputable men testify that he had taken their orders, and this induced him to say that these also possible on some point, though it be unconnected with tlie cause ; he may be detained an extraordinaiy time, that by saj'ing everything, and more than the case rec[uires, in favor of the accused, he may make himself sus- pected by tlie judge ; and he will thus do no less damage to the accused than if he had stated the tiuth against him." Institutes, V. 7. 15-19. 270 CONDUCT IN COURT. liad been forwarded. Every answer proving an item came from him like the drawing of an eye-tooth, while he was voluble in insimiations against the honesty of his former employer who had put unwonted trust in him. His con- duet as revealed under examination looked so much like treachery as to turn public sympathy against the defend- ants, who at last succumbed and paid most of the agent's claim. The right treatment of such a witness is like the cross- examination purposed to pull out facts from one who would hold them back. When you must use him, your opening of the evidence should parade his hostility and explain the necessity of your calling him. 'And we will anticipate a part of your duties as cross-examiner which can be appropriately glanced at here, by warning you to stand on your guard against the spurious hostile witnesses of the other side. Be not deceived into relying upon them as allies, and be ingenious enough to make them unmask. § 382. In close connection with the foregoing is the third Golden Rule of David Paul Brown : — " If the evidence of your own witnesses be unfavorable to you (which should always be carefully guarded against) exhibit no want of composure ; for there arc many minds that form opinions of the nature or character of testimony chiefly from the effect which it may appear to produce upon the counsel." It is a still greater reason for maintaining your comj)o- sure that otherwise you will often fail to find the right way around the unexpected answer. § 383. But avoid the hostile witness if you can. David Paul Brown says in the fifth Golden Rule : — " Never call a Avitness whom your adversary will be EXAMINATION OF THE PARTY'S WITNESSES. 271 compelled to call. This will afford jou the privilege of cross-examination, take from yonr opponent the same privilege it thus gives jou, and in addition thereto not only render everything unfavorable said by the witness doubly operative against the party calling him, but also deprive that party of the power of counteracting the effect of the testimony. " § 384. We have reviewed in detail the different leading classes of witnesses from the standpoint of the direct ex- aminer. We have yet something to add before his duties are fully presented. § 385. Mr. Cox says : — " Great caution is required in the examination of all your witnesses after the first to prevent their disagreement in any important particulars. No error of inexperience or unskilfulness is more common than to examine a mtness according to the hn'ef, without reference to the evidence previously given and the requirements of the case as it stands. If you fear that there may be conflicting testi- mony on any point, the first witness having varied from the statement in the brief, it is usually better to leave it as it stands upon that single testimony than to bring out a contradiction ; but upon this you must exercise your sa- gacity at the moment ; it nmst depend upon the particular focts of the case ; w^e only suggest to you that it is one of the difficulties of examination in chief which you should be prepared to encounter." ^ This passage shows the incurable evil of the English dinsion of counsel and attorney. According to their usages counsel would be degraded by any other comnmni- cation with the witnesses than while they are in the box. 1 Advocate, 357, 358. 272 CONDUCT IN COURT. Familiar contact with them is for the attorney alone, wlio is of inferior grade and ability ; and whose nnsapi)rehen- sion of the testimony is often a snare to the examiner, when if the latter could have had a few minutes private intercourse with the witness he could have corrected it and perhaps steered the cause around the breakers. Let the American lawyer avoid this evil by talking with the wit- nesses for himself, and thus come to the trial fully informed. He will thereby find out in time all the material conflicts between them. § 386. This subject of avoiding conflicts in one's testi- mony is so important that we will give an illustrative case. The reader is asked to recall the instance already used by us,^ where the caveator of a will introduced the testimony of two women, who while they agreed as to the main fact yet contradicted each other in so many other particulars of importance as to bring discredit upon themselves. We said it was a blunder in the preparation that their discre- pancies had not been discovered beforehand ; and then only the one disinterested should have been examined. But we are now concerned with another blunder which was committed on the trial. The caveator put in evidence the testimony of both witnesses. This he was not obliged to do. He could have relied on the disinterested witness, and if the propounders had introduced that of the other they would have been held to tlie rule that they could not discredit their own witness, who be it remembered testi- fied positively for the caveator as to the cardinal proposi- tion. And had the propounders left the testimony of this disinterested woman unattacked, — and they had no means of attacking it save by that of the other, — it is diflicult to 1 Ante, § 118. EXAMINATION OF THE PARTY'S WITNESSES. 273 see how they could luive avoided an adverse verdict. As it was, the caveator seemed to believe that, because he had taken the testimony of both women by commission, he must use all of it. And so he not only prepared adverse evidence, but he actually introduced it when there was no need, and thereby broke down his case. § 387. We have run over the usual incidents of direct examination which lie on the surface. We have reserved for this place a consideration of its real purpose and end. It is to be remembered that until the argument all of the evidence as it comes out is treated as true. The object of a party is to make his evidence complete before he rests, either charging the adversary or discharging himself. We will illustrate. Suppose a suit brought on a promissory note and the plea is payment. The plaintiff's first evi- dence will be the note, which when put in charges the defendant. If, however, the latter proves by certain wit- nesses that on a certain day he paid the plaintiff the amount due, which was accepted by him in satisftiction of the note, he may safely rest, for he has discharged himself. Then the plaintiff may call witnesses who impeach those of the adversary, and others who prove an admission by the defendant that the payment mentioned was to be applied to another purpose ; and thus the defendant is charged again. The defendant may next contradict or explain away the admission, and strengthen his proof of the payment of the note, thus discharging himself the second time. And the course of the evidence may go through further alternations of charging and discharging. Each adversary must at every stage make his evidence so strong before he rests that, if it be assumed to be true, he is entitled to the verdict. This is always the leading IS 274 CONDUCT IN COURT. object to the direct examiner, whether lie is counsel for the phiintifF or the defendant, and at wliatever stage or turn of the evidence he may be. And tlie testimony of eveiy one of liis witnesses is to be regarded only as means to attain this object. This is the wise counsel of Da\id Paul Brown, who in one of liis Golden Rules says that counsel should never ask a question without an object, nor without being able to connect that object with the case, if the question is objected to as irrelative ; and in another : " Never begin before you are ready, and always finish when you have done. In other words, do not ques- tion for question's sake, but for an answer." Of course it is clear that these rules apply to all examinations. You should have a rightly intelligent purpose in every question, whether you are dealing with your witnesses or those of the adversary. To return to the examination in chief, the exact understanding of the real end of the introduction of testimony will always show the counsel how to shun the useless, irrelevant, or hurtful, and to avoid pausing too soon. Now and then he must go further than he intended at first, because of surprises by conflicts among his witnesses, or the development of adverse facts in cross-examination. But he will always make out his case before he rests, — that is, if his evidential resources are sufficient. § 388. We hope that we have adequately ojiened the main subject of this cliapter to the young lawyer. In case we have failed, its superior importance will become plain to him after a while, if he has formed his own opinions by observing the courts for himself, instead of accepting the errors of Quintilian and the English writers, who ignore the fact that witnesses are generally truthful, self-possessed, and honest, and who exaggerate the average achievement EXAMINATION OF THE PARTY'S WITNESSES. 275 of cross-examination. lie will then find that in almost every trial the verdict turns on facts which have been dis- closed under the direct examination of either the plaintiff's or defendant's witnesses. § 389. Especially train yourself to see the real bearings of every one of these i)otcnt f^icts and to bring them out completely; and bring them out in a way to strike the attention of the jury. Here comes in appropriately the ninth Golden Rule of David Paul Brown : — " Speak to your witness clearly and distinctly, as if you were awake and engaged in a matter of interest ; and make him also speak distinctly and to your question. How can it be supposed that the court and jury will be inclined to listen, when the only struggle seems to be whether the counsel or the witness shall first go to sleep?" 276 CONDUCT IN CUUllT. CHAPTER X. CROSS-EXAMINATION. § 390. After the party calling the witness, whether he be plaintiff or defendant, has examined in chief, the other can cross-examine. And he should at first consider whether he should examine at all. The witness may be too plain-spoken, honest, and steady, and you may exactly understand his narrative and apprehend nothing but aid to the other side from any question that you may ask. Many times it requires great self-mastery, when the witness is turned over to you, to announce immediately that he may retire. This announcement should always be made, unless you have good reason to expect no damage or some benefit from exercising your right to question. I note that the wary veterans of the courts cross-examine less and less as they grow older in practice. By the multitude cross-ex- amination is as much overrated as advocacy. Sometimes a great speech bears down the adversary, and sometimes a searching cross-examination turns a witness inside out and shows him up to be a perjured villain. But ordinarily cases are not won by either speaking or cross-examining. The tyro's conception of the purpose of the latter is that it is to involve every adverse witness in an inconsistency or self-contradiction. But you ^y\\\ often see a dozen con- secutive cases tried wherein no witness who is game for CROSS-EXAMINATION. 277 the cross-examiner makes his appearance. It is only the profligate who swear falsely ; and if not the profligate, it is the extremely heedless who make such glaring blunders and mistakes as to destroy the credit of their testimony. § 391. These cautions are placed in the forefront of the chapter, to be meditated before the student comes to the places farther on, where copious use is made of the writings of Mr. Cox and Mr. Harris, who, while giving very valuable instructions, yet hurtfully exaggerate what can be effected by cross-examination. Mr. Cox says, " There is never a cause contested, the result of which is not mainly dependent upon the skill with which the advo- cate conducts his cross-examination." ^ In Mr. Harris's Hints it is implied in a few passages that there are wit- nesses who cannot be shaken, yet the bulk of what he says and his chief stress are in dealing with those whose direct testimony is overturned by the questions of the adverse counsel ; and consequently the most careful reader infers that he thinks cross-examination can be made to do won- ders in almost every case. Long ago Quintilian gave the subject a somewhat better treatment,^ which has been highly applauded by different English and American writ- ers. But the doctrine of the current books of the day lags behind the prevailing practice of the best lawyers. This doctrine is that of Mr. Cox and Mr. Harris, as indi- cated above. It is utterly misleading ; for it is generalized from exceptional instances, and takes hardly any account of the kind of witnesses whose testimony wins more than three fourths of the verdicts in our courts. 1 Advocate, 434. 2 In the famous seventh chapter of the Fifth Book of Lis Institutes. It is very readable in Watson's transhition. 278 CONDUCT IN COURT. § 392. The practice and judgment of Scarlett, the great Englisli hiwycr who lost fewer cases that he ought to have won and won more that he ought to liave lost than any other hero of legal biography, outweigh the opinions of the authors mentioned. While he avoided the oratory which draws peojile to hear, intent as he was only upon the argument of the governing facts, it was his custom rarely departed from merely to probe his adversary's wit- nesses for further proof of his own case, scorning to waste his time in badgering them by an examination more enter- taining to visitors than effective with the jury. He says in his Autobiography : " I learned by much experience that the most useful duty of an advocate is the examina- tion of witnesses, and that much more mischief than ben- efit generally results from cross-examination. I therefore rarely allowed that duty to l?e performed by my colleagues. I cross-examined in general very little, and more with a view to enforce the facts I meant to rely upon than to affect the witness's credit, — for the most part a vain attempt." ^ § 393. Having premised as above in order to protect the student against prevalent errors and to foresliadow to him the main end of cross-examination, we will noAV pur- sue our subject. And we adopt the plan followed in the 1 Memoir of Lord Abinger, 75. See American Law Studies, §§ 1076- 1096, for a sketch of Lord Abinger. Compare the following, in which an English lawyer of the present day expresses similar views : " The object of cross-examination is not to pro- ■ duce startling effects, but to elicit facts which will support the theory in- tended to be put forward. Sir William Follctt asked the fewest questions of any counsel I ever knew ; and I have heard many cross-examinations from others listened to with rapture from an admiring client, each ques- tion of which has been destruction to his case." Sergeant Ballantine's Experiences, 1st Am. ed., 106. CROSS-EXAMINATION. 279 last chapter ; that is, we begin with average witnesses, and we a\var(l duo prt)niinence to the methods most com- mon in actnal practice. How to handle such witnesses and the mastery of tlie methods just mentioned is the first and most important lesson of all to the cross-examiner. The exceptional and unusual will afterwards have proper treatment as such, instead of being placed in the foreground and given an undue conspicuousness. § 394. Perhaps the most important thing for you to know is the character of the witness. No man can tell a long story with complete consistency. An expert cross- examiner can detect in the most credible testimony trivial conflicts which do not weigh much. Witnesses stand mainly on their characters. He who is reckless or careless of the truth, or otherwise bad, is known as such. Such a man if he is not telling the truth can be easily put do\\Ti when he is given to the opposite counsel. But the jury ■will only be irritated at a persistent attack on a witness of good standing. Let the cross-examiner therefore attend most to one thing not mentioned by ^Ir. Cox, and greatly slighted by Mr. Harris, — the cliaracter of every witness. § 395. Next we must emphasize the importance of pre\ious acquaintance with the narrative of the adverse witnesses. The English writers noticed above in this chapter seem to assume that you start with only the knowledge which the answers to the direct examination have imparted. But, as we have already ad\nsed you, it is your business to have found out, if possible, a great deal more. If others beside your client or his witnesses were present when something occurred which is material to the case, you can easily learn before the trial who are these others, and by prudent inquiry you can also learn what will 280 CONDUCT IN COURT. be their testimony. And thus you will be the better able to cross-examine properly, making the adverse witnesses support your side without supplying the omissions which possibly your hasty opponent has connnittcd. For instance, one who proves an alleged cause of action may know of a valid ex post facto discharge, which, if elicited by you, turns him into a witness of your own. If you are unaware that you can prove this material fact by this particular witness, you may not prove it at all. This is a very incomplete presentation of what you should learn beforehand. Before the chapter is finished it will be apparent to you that you ought to exhaust all possible means in order to be forewarned of every particu- lar by which you may draw helping proof from the oppo- site witnesses, or break them dow^n if need be. There are many effective cross-examinations which are purely extem- poraneous, but they will nearly always be the better for preparation and premeditation. § 396. We will treat the subject of this chapter under the following scheme, which is its natural classification. You cross-examine these three classes : — 1. The witness whose version you accept so far as it goes. 2. The witness whom you show to be mistaken, or the force of whose testimony you take off" by other means, not however attacking his veracity. 3. The witness whom you shoAV to be unworthy of credit. We add that there are really but two kinds of witnesses, the truthful and the untruthful ; and consequently there are at bottom but two kinds of cross-examination, the one intended to elicit friendly evidence, and the other to CROSS-EXAMINATION. 281 show the unreliability of the witness. We wish to impress it upon our student that the first kind is in general use in every sort of case, while the second is only of occasional importance. § 397. We now take up the witness mentioned in the first class of our enumeration, that is, he whose version you accept as far as it goes. Your objects with him are but two, the first to have him complete what the direct examiner has incompletely presented through such partial questions as will be explained in a moment, and the second to make him, if you can, re-enforce your own proofs. § 398. The examiner in chief is privileged to ask such relevant (juestions as he pleases, and to keep the witness from answering anytiiing more. He generally culls from what the latter knows of the matter in controversy such parts only as are favorable. He does not choose to help you by proving facts supporting your side. This suggests what we may term the cue for your beginning. An artful direct examination may pare down the testimony of a by- stander and have him to narrate nothing but that he saw the prisoner deal a fatal blow to the deceased. If the in- vestigation stops here a presumption of the guilt of murder is raised against the prisoner. But if your cross-examina- tion draws out from the witness that there was a justifica^ tion of the blow, or that it was immediately preceded by very great provocation, and other facts rebutting malice, your client may be entitled — even upon the testimony of the State's witness — to an absolute acquittjil, or to a con- viction of an offence less than murder. If you observe the trial of issues of fact, you will note that nearly every wit- ness is made to suppress some important parts of a trans- action while replying to the direct examiner ; and that 282 CONDUCT IN COmiT. often, where lie is given free range bj being told to make his statement in his own way, he omits some details whieh would aid the other side should they be proved. § 391). To make the witness give a complete narrative, if what has been kept back is favorable to your side, may be regarded as the [)oint where cross-examination should generally begin. Of course you do not want to ask ques- tions which will give further advantage to your opponent. If you are discreet and have had some experience you will usually be prompted rightly by one or more of the following particulars. 1. Previous information as to the expected testimony of the witness. We always insist that you should come to the trial with full knowledge, as far as i^ossible, of all the favorable and unfavorable proof that can be made by the adverse witnesses. 2. The natural probabilities of the transaction. We may make our last illustration do service again. Should a witness of whom you know nothing merely say that he saw a mortal stroke given, you may be almost sure that there was at least some provocation for it. And your ad- versary's brevity of interrogation gives you good reason to suspect that he recoils from something which this \vitness can tell. Even a child is often heard to question with accuracy according to probabilities. They now and then give a profitable suggestion to the direct examiner, who has often listened to the witness in the office. To the cross-examiner who has imperfect knowledge or none at all of what the witness will testify they are ftir more important. You can sometimes destroy the credit of a witness by making him testify to something grossly im- probable, but the point we are now urging is that average CROSS-EXAMINATION. 283 witnesses generally answer that wliich is probable. What appears to be very probable you will generally be safe to ask for in the cross-examination of an honest witness. 3. If the witness is friendly to your client, or to his friends and relatives, you may always hope for some com- fort from him. It is however to be noted here that where the opposite witness is a friend to your client everything that he will testify can usually be ascertained in advance. 4. The manner of the witness. While under direct ex- amination he may show a reluctance to testify against your side, or when you begin a bias towards your cause may appear. Here you will nearly always elicit something of advantage if you will but give him opportunity to say it. As a rule you may proceed boldly. But if lie stands evenly balanced and neutral, you will generally do well to ask concerning such details as the strong probabilities sug- gest to be in your favor. Such a witness, after a search- ing direct examination has drawn out of him all that is against you, will often take pains to maintain the appear- ance of impartiality by telling as much more for you if you will lead him over the transaction again and question in support of your theory. Further, as suggested by Mr. Cox, " A witness who is conscious that he has been induced by the encouraging examination of his counsel to say too much is often ready to seize the opportunity afforded by cross-examination to modify his assertions by qualifications and explanations. If you see this tendency, which is usually shown at the beginning, you have only to encourage it by falling in with his mood and carefully avoiding anything calculated to make him fear the use to which you may put his admissions." ^ 1 Advocate, 385. 284 CONDUCT IN COURT. § 400. When your evidence is but slight and tliat of the other side is very strong, you may be reckless in spurring his witnesses to make a complete statement. Your case is so bad that any change in it may be for the better. We add an entertaining and apt illustration. "Some time ago the writer while waiting in court watched the trial of a case where the plaintiff sought to recover damages for a breach of warranty. The defendant had sold him a horse with an express warranty that ho was sound and kind and free from all ' outs.' The next day the plaintiff noticed that a shoe was loose, and he undertook to drive him into a blacksmith's shop to have him shod, when the horse exhibited such violent reluctance that he was obliged to abandon the attempt. Repeated efforts made it evident that he never would be shod willingly, and therefore he was obliged to sell him. The defendant called two witnesses. The first, an honest, clean-looking man, testified that he was a blacksmith, that he knew the horse in question perfectly well, and he had shod him about the time referred to in the plaintiff's tes- timony. ' Did you have any difficulty in shoeing him ? ' asked the defendant's counsel. ' Not the least. He stood perfectly quiet. Never had a horse stand quieter.' The other, a venerable-looking man, with a clear, blue eye, tes- tified that he had owned the horse and that he was per- fectly kind. * Did you ever have any trouble about getting him into a blacksmith's shop ? ' ' Well, sir, I don't remem- ber that I ever had occasion to carry him to a blacksmith's shop while I owned him.' "The plaintiff's counsel evidently thought that cross- examination would only develop this unpleasant testimony more strongly, so he let the witnesses go. The jury found CROSS-EXAMINATION. 285 for the defendant. The next morning, as the writer was sitting in conrt waiting for a verdict, a man behind liim, whom he recognized as the bhicksniith, leaned forward and said, ' You heard that horse case tried yesterday, did n't you ? Well, tliat fellow who tried the case for the plain- tiff (lid n't know how to cross-examine Avorth a cent. I told him that tlie horse stood perfectly quiet while I shod him ; and so he did. I did n't tell him that 1 had to hold him by the nose with a pair of pincers to make him stand. The old man said he never took him to a blacksmith's shop while he had him. No more he did. He had to take him out into an open lot and cast him before he could shoe him.' " ^ Of course the plaintiff's counsel should have been more searching in the examination, where he could not possibly have made his own case worse. § 401. We give another instance. A man driving a buggy collided with a railway train at a crossing, and he brought suit. On the trial a servant of his testified, and told the facts so strongly in his favor that it seemed use- less to cross-examine. But the defendant's counsel, who had no information as to the witness, submitted him to a skilful tentative sifting. At last he fished it out that the mule which the master was driving when he received the injury stated in his declaration had once borne the name of Bill, and the plaintiff had himself changed it to Staver. This revealed to the counsel his true di^fence ; and acting on the hint he got a verdict for the road upon the ground that the plaintiff was driving what he knew to be an un- safe animal. We here leave this part of the subject by urging you to 1 American Law Review, X. 153. 286 CONDUCT IN COURT. be always on the alert to prove in your cross-examination the whole truth of" the matter wliich the select questions of your adversary has garbled to suit his purpose. § 402. Thu second sort of cross-examination is closely allied to the first. It is intended to weaken the force of the testimony drawn out by the direct examination and prepare the way for your own evidence, or it may serve to show that the witness is mistaken. We add some illus- trations. § 403. A master one morning at breakfast suspected that there was poison in his coffee, and he immediately ac- cused his cook. The negro was thought to evince manifest signs of guilt. The whole family showed alarming symp- toms, and the master in his rage made the cook drink all the remaining coffee. She fell into convulsions. Of course it was poison. They all saw in the coffee-grounds frag- ments of the fatal buckeye. The doomed slave was hur- ried through an examination. A lawyer, whose heart went out in yearning love to the poorest and lowliest in distress, inquired into lier case and quietly learned all of the testi- mony against her. Every one who had drunk the coffee had sworn to its unusually bitter taste. It chanced that our lawyer had been lately prescribed by his dentist a decoction of buckeye for toothache, and he knew that its taste was sweet and not bitter. He was too prudent to proclaim his dissent, for, the infuriated family learning, the mob might have balked him. He waited until the trial, when he volunteered to defend the friendless woman. The court of course assigned him to her as counsel. He made all of the witnesses for the State dilate upon the bit- terness which they had testified to at the examination ; he almost made them quarrel with him by appearing to doubt CROSS-EXAMINATION. 287 what tliey said on tliis point : bitter-tasted the coffee was ; tliey had never tasted anything so bitter. His only evi- dence was a ghiss of fluid, proved by the dentist — a man well known to the jury — to be a^ecoction of buckeye. The glass was handed to the judge; he tasted, then to the jury, and each of them took a timid sip; and in a few minutes there was an acquittal. The bitterness had no doubt been the result of negligence with the coffee-pot and frigiit had caused the convulsions of the cook. Witches however have been burnt, and other women both bond and free have been convicted on evidence less satisfactory than that produced against this slave before the magistrate, and, with sadness be it said, executed. This great advo- cate had often delivered prisoners from the dread penalty, and his name was in all men's mouths for his matchless tact and unrivalled eloquence. But to his immortal honor be it told that he ever counted his unfeed and unostenta- tious defence of this helpless slave among the proudest of his victories.^ § 404. The following is related by David Paul Brown. " A young and interesting girl, of respectable position, had trusted and been betrayed. She became a mother. At the age of three weeks the child died somewhat suddenly. A jfost mortem examination took place. The death was said to have been produced by arsenic, and the medical witnesses strengthened that opinion by testimony. The mother was indicted for murder, and was tried before Judge Symser, of INIontgomery County, a humane and industrious and eminent judge. " In addition to the scientific evidence and in strong ' The late Hon. A. H. Stephens, to whom for many years I mentallj applied Horace's " Insigne maestis praesidiuia reis." 288 CONDUCT IN COURT. corroboration of it, it was sliown that a day or two before tlie deatli of her infant tlie mother liad sent for half an ounce of arsenic to a t^rocer s ; that after the death the arsenic was taken to»the grocer's and weighed, and had lost twenty-four grains in weight. This circunistancc to- gether with tlie opinion of the chemist, presented a strong case. Neither was sufficient hi itself, but together they were dangerous. Of course the cross-examination as to the weight was very rigid and severe. Upon this particu- lar point it ran thus ; — " ' When the arsenic was purchased, how did you weigh it?' " ' I weighed it with shot.' " ' How many shot ? ' *' ' Six.' " ' Of what description ? ' " ' No. 8.' " ' When it was returned to you, did you weigh it in the same scales ? ' '' ' Yes.' " ' Did you weigh it with the same shot ? ' " ' I weighed it with shot of the same number, for I had no other numbar.' " ' How much less did it weigh ? ' " ' Twenty-four grains less.' " It was plain that the testimony bore hard upon the prisoner, but at this stage of the case the court adjourned. Immediately my colleague (Mr. Boyd) and myself visited the stores of all the grocers and took from various uncut bags of No. 8 the requisite number of shot, subjected them to weight in the most accurate scales, and found that the same number of tliese different parcels of shot varied more CROSS-EXAMINATION. 289 ill weight than the difference referred to as detected in the arsenic at the time of its return. The shot, the grocers, the apothecary, the scales, \vcre all broug^it before the court. They clearly established the facts stated." ^ § 405, In both the last instances the testimony of the opposite witnesses was fashioned by the adversary into such shape that it was easily overborne by counter ca- dence. This achievement is common only with the able and experienced lawyer. A large proportion of cases calls for it. The student should study and exercise himself in this subdivision of the general subject of cross-examination with great pains. Efficiency in it postulates a quicker and deeper insight, greater art of demonstration, and more practice than arc commonly needed elsewhere. You have to discern that what appears good proof to everybody else is really not so, and you must in addition have full com- mand of the means to develop its unsatisfactoriness so clearly that the jury will cast it aside. § 406. There are some things which so frequently affect testimony unfavorably that they deserve a word here. We may mention bias first. Relatives and intimate fi'iends ; classes in society arrayed against one another in feeling, as whites and negroes in the South, or members of different religious denominations and political parties all over the country ; the employee where his master is touched ; — we need give no more hints of the bias which the cross-exam- iner can often bring forth to his benefit. Of course he will not overlook the warping influence of interest. And there are other influences which lead a ^v^tness into errors. He may have looked in a bad light, or he may in even a good light have confounded one thing or person with another ^ Forum, II. 455. 19 290 CONDUCT IN COURT. similar. The cross-exam iuer ought to make conspicuous all the existent causes which either diminish the weight of even very positive and confident testimony, or show it to be utterly unreliable although those who gave it may be of excellent character. § 407. Our next stage is the cross-examination intended to prove that a truthful witness is mistaken. We begin by giving some pertinent passages from Mr. Cox : — " A sober quietness, an expression of good temper, a certain friendliness of look and manner, which will be understood although it cannot be described, should dis- tinguish you when you rise for the cross-examination of a witness the truth of whose testimony you are going to try, not by the vulgar arts of browbeating, misrepresenting, insulting, and frightening into contradictions, but by the more fair, more honorable, and more successful if more difficult method of showing him to be mistaken. You must begin with conciliation ; you must remove the fear which the most truthful witness feels when about to be subjected to the ordeal of cross-examination. . . . " Perhaps it is unnecessary to inform you that it is use- less to put to a witness directly the question, if he is sure that the fact was as he has stated it. He will only be the more positive. No witness will ever admit that he could have been mistaken. . . . "The witness has detailed an occurrence at a certain time and place, and it is your purpose to show that he was mistaken in some of the particulars, and that the in- ferences he drew from them were incorrect or not justified by the facts. Your first proceeding, to this end, is to realize the scene in your own mind. Your fancy must paint for you a picture of the place, the persons, the as- CROSS-EXAMINATION. 291 sociatcs. You then ask the witness to repeat his story. You note its congruitj or otlicrwise with tlie eircum- stanees that accompanied it ; you detect improbabihties or impossibilities. You see as he saw, and you learn in what particulars he saw imperfectly and how he formed too hasty conclusions ; how prejudice may have influenced him ; how things dimly seen were by the imagination transformed into other things in his memory. " How erring the senses are and how much their im- pressions are afterwards moulded by the mind, how very fallible is information seemingly the most assured, it needs no extensive observation to teach. If you make' inquiry as to an occurrence in the next street ten minutes after it happened, and from half a dozen actual spectators of it, you will receive so many different accounts of its details, and yet each one is positive as to the truth of his own narra- tive and the error of his neighbor's." ^ § 408. The doctrine of the quotation just made is good in the main,. but we must reflect upon it in two or three particulars. In the first place it is not our experience that a witness will never admit that he could have been mis- taken. It is true that many of them are over-positive, but it is also true that many are not, and will frankly con- fess that they may be in error in material points. The extreme of this class disgusts the counsel on both sides by lack of certainty as to any fact. The cross-examiner must turn him to good account if he can. Our next I'emark is that it is generally a blunder for the cross-examiner to begin by having the witness to re- peat his story. He should grasp it as it is first told. He may, if it suits his purpose, pursue its order iu touching 1 Advocate, 396-399. 292 CONDUCT IN COURT. upon omitted details ; but generally, if he is trying to show a mistake, he can only succeed by proceeding from his own standpoint, which is necessarily different from that of your adversary. The last thing we have to say is that the uncertainty of average testimony is made too great. Should a dozen good lawyers selected promiscuously hear the conflicting accounts of " an occurrence in the next street ten minutes after it happened," supposed by Mr. Cox, all or a large majority of them would at once come to the same conclu- sion, unless it was a most unusual affair. And that con- clusion would not necessarily be exactly the version of any particular witness. It would be reached according to cer- tain laws of human belief, and it would generally tally with the greatest probability of the matter. Such a proba- bility is always of importance to the trial counsel, and it is specially of importance when he is cross-examining for the detection of mistakes. § 409. Sometimes you may have the mistake corrected on the stand. A half-dozen witnesses, summoned to prove a lower value of a parcel of land applied for as an exemp- tion, were ordered out of court when the trial commenced at the instance of the creditors, who alleged a higher value. When the first was called in, he answered that the land was worth only eight dollars per acre. On the cross-ex- ination he was asked how did it compare in quality and value with that of A, of B, of C, and so on through a round of many plantations in the vicinity. He made the land in question a little better than the neighboring parcels inquired about. He was then interrogated as to sales of these parcels within the last four or five years, and he had to admit that twelve dollars per acre was the lowest price CROSS-EXAMINATION. 293 that cany one had brought, and that the whole of the hmd sold averaged about fifteen dollars per acre. When he answered on his examination in chief that the land was worth only eight dollars per acre, being a planter, he gave as his reason that he considered no lands in that region worth more for farming purposes. But being asked by the adverse party if it was not worth what it would com- mand in the market he answered affirmatively, and he ad- mitted that it would probably bring eighteen dollars per acre if sold. Every one of the other witnesses was dealt with in the same way, and with a similar result. It was at a time when witnesses and jurors in the South sympathized almost without exception with the debtor whose interest it was to undervalue the property he sought to exempt, each one apprehending that he might soon need a homestead for the shelter and subsistence of himself and his family ; and the success of the cross-examination was due to a careful study of the different sales mentioned. § 410. We give another example from the practice of a celebrated la\w'er. Action for a cargo of goods sold on credit. Plea, that plaintiff had represented the goods to be merchantable, and that defendant, relying on the repre- sentation, had bought and shipped the goods to a foreign market, where he suffered great damage because they proved to be unmerchantable. The main witness for the defence appeared to be reliable. He had been employed in the ship that carried the goods, he explained how they were made of bad material, not fit for use, and he alone testified to the false representation alleged. The counsel who had brought the action and prepared the case said to Choate, whom he had called in at the last moment, that the witness was inventing. " No," replied the leader, " he is 294 CONDUCT IN COURT. truthful, but mistaken." lie begun lii.s cross-examination by establishing a friendly understanding. He made the witness report the appearance of the seller of the goods as to size, dress, complexion, and whiskers. The picture given was so unlike the plaintiff that it became manifest he had a different person in mind. When he was made to name the ship, the plaintiff easily proved that his goods were sold two weeks later and shipped in another vessel ; whereupon the defence collapsed. At the beginning of the trial, Choate, noticing the indig- nation which the defence excited in the plaintiff, said of him to his associate, " He is honest, and we shall find our way out of the scrape." The certainty with which he dis- cerned the honesty of the plaintiff and the witness at the first glance made him see that the only possible explana- tion of their apparent conflict was that the latter had mis- taken a seller of other goods for the former, — a solution which had not occurred to the associate, who had had sole charge of the plaintiff's case until the trial. ^ § 411. We come now to what is practically the most effective and most, widely useful of all the different sorts of cross-examination. In it you have the opposite witness to prove independent facts in your favor. Much of the in- terrogation considered above in this chapter is palpably prompted by the answers to the direct questions and other things occurring in court, but here it is more* necessary that you have learned beforehand how the witness can benefit your client. Of course where you have no special information you will attend to all proper suggestions, such as strong probabilities, hints in his replies to your adver- sary, and disclosures as to the transaction by others. A 1 Neilsoii, Memories of Rufus Clioate, 35-38. CROSS-EXAMINATION. 295 person may have been present when a sum of money was borrowed, and lie may also have seen the money repaid afterwards to one who is claimed to have been the agent of the lender to receive it. If this witness testifies for the plaintiff on the trial of a suit for the money, his counsel will ask nothing about the repayment. He may not even know of it. But you have been told of it by your client, and you therefore will draw it out when you take the wit- ness. Possibly the authority of the person to receive the money may be controverted, and you can prove by this wit- ness either the admission of the plaintiff or such conduct on his part as shows this person to have been his duly au- thorized agent. In this instance your cross-examination really turns the witness hito one of your own, and makes him defeat the plaintiff's case. It is apparent that you would hardly ever suspect the existence of this favorable evidence, had you no information but the answers in the direct examination ; and perhaps this decisive proof for your client can be made only by this particular witness. Thus is indicated the great importance of previously ac- quired knowledge of what Can be proved by the witnesses of your adversary. § 412. Note the usual, cross-examinations by good prac- titioners, and you will find that in a large proportion they ask hardly any questions except such as are now our spe- cial subject. In most cases they see intuitively that there is no very distorted statement to be rectified, and that there are no serious mistakes to be corrected ; and they only make the witness re-enforce their side as to some detail. And this is the very strongest evidence. As it comes from the adversary's witnesses he cannot discredit it, and besides it seems to the jury to have the force of an admis- 29G CONDUCT IN COURT. sion against interest. While tlie kind of cross-examina- tion now in hand is the most important of all, it is also the most easy. It requires no great skill. It will gener- ally be well done if with patience you have had your cli- ent and his following to tell you all that the witnesses for the other side know in his favor, and you then question accordingly. As we leave this branch of the subject, we must ask you not to fall into the error of rating its place in practice by the short notice it has received from us. It is too sim- ple to need much explanation. But if you stay at the bar you will have increasing use for it, -and after a while you will, as a general rule, prepare no other sort of cross-exam- ination for the average witness. It is a larger field for your powers than appears at first. The cross-examiner requires much attention and assiduity to collect from the opposite witnesses all the help possible. It is not only such important facts as we used for illustration in the last section that he must search for. They would be over- looked by only a very dull man. He is to exhaust many details ; such as strengthening one of his own witnesses st(mtly attacked by having the witness under examination to concur with him in even a small matter ; the conduct, expression, or language of the adverse party on some occa- sion which the latter has probably forgotten ; minute cir- cumstances, such as the shapes and positions of marks ; — in short, the details relevant here are as varied and extensive as the entire possibilities of proof. In addition to the gift of common sense, quick insight into persons and affairs, great familiarity with the case, and profound meditation of the testimony, are needed in order to qualify one to bring out from the adverse witnesses all the laro;e and trivial CROSS-EXAMINATION. 297 facts wliicli establish his case without at the same time making the other side stronger. § 413. In the foregoing we have been mainly treating witnesses of whose probable answers to the direct exam- iner and what they can testify in your behalf you have at least some information before the trial. But now and then you are confronted with a witness of whom you have learned nothing except from his testimony in chief. We must give you a word of counsel how to handle him. You must first decide according to all the ex tempore sug- gestions — the character of his statement, hi^ manner, the manifest probabilities, the nature of the evidence on both sides already out or which is still to come, etc. — whether you will have him complete what you deem is a fragmen- tary statement, or examine to take oft' the force of his tes- timony in other respects.^ You should next make trial of him to sec if he can be of other use. If you have attended closely to his answers to the adversary, you may have caught glimpses of favorable facts which you can now draw from him. And you may feel for others. An ex- perienced lawyer shows great artfulness in these matters. He will often elicit nothing of account, and yet the skill with which he fishes for the favorable and avoids the ad- verse gains credit for his cause. § 414. If the unknown witness is found to be frank and honest, you can easily drain him of all support. But sup- pose he is otherwise, and you have cause to believe him unworthy of credit. You can quickly test him. There are witnesses, perhaps on both sides, who have given truth- 1 As to this subject of cross-examination without previous prepara- tion, see ante, §§ 399, 410. It finds much iUustration in the rest of the chapter. 298 CONDUCT IN COURT. ful versions of the same matter vvliich he has not lieard, and lie may tell a difFcrent tale ; or he may be made in advance to contradict strong evidence which you hold in resen'e ; or he may be led into the utterance of gross improbabilities, especially if he manifests a strong adverse bias. You must not too hastily decide that he is lying. If you make a serious blunder, you will have the jury to disagree with you and rally to his defence. In most cases you are guided to the truth by the most palpable revela- tions, by answers of some one present to the inquiries of yourself or a^ociate as to the character of the witness, or by an instinct which becomes almost infallible in practice. When you have properly settled it that he is not veracious, of course he belongs to the next class in order. § 415. We have now gone through with the cross-ex- amination of the witness whose character you do not at- tack. Whether you have him to supply, as to a particular affair inquired about, what your adversary has avoided ; or you blunt the edge of his answers in chief by showing him to be mistaken, or in other ways we have mentioned ; or you lead him to establish some of the material allegations of your pleadings, — it has the same object and really the same quality. You make an ally of the witness, and you make him — to use the phrase of Scarlett quoted above — enforce the facts on which you rely ; and this enforce- ment is, according to the great authority just named, the practitioner's main and most usual business with the opposed witnesses. If he generally succeeds in attaining the objects pointed out in this section, he is really an effi- cient and able cross-examiner, even though he never tries to make a witness contradict himself. § 416. We have reached the point where we must take CROSS-EXAMINATION. 299 up the witness whom you intend to discredit. While this is the most unimportant brancli of the subject, it yet re- quires nmch space for complete treatment. We begin with the questions which prepare for impeachment. Here you ask him if lie has not said so and so at a certain time and place to a particular person whom you name. This state- ment which you ask if he has made is one materially dif- ferent from that in his direct examination. Should he deny making the statement you will contradict him by the person to whom it was made. If the latter is of good standing, the jury will generally disregard the testimony of the witness. But when you cross-examine as to the extra- curial statement the witness may admit that he made it. He thus confesses that he has told one lie concerning the matter under investigation, and the jury ask themselves how can they know that they have not heard him tell others in the rest of his testimony. As a general rule you should question him no further on this particular point after you have elicited his admission. Whatever explana^ tion he can make of the inconsistency, leave to your adver- sary to produce in the re-examination, when it will not usually have one half of the weight with the jury Avhich it would have had if you had given opportunity to make it. The blunder which we have just cautioned against is often committed, especially by inexperienced counsel. § 417. As to the attack mentioned in the last section, we must note that to be effective it should be in a material matter and the difference insisted upon in the two ac- counts must also be material. We must further urge on you that in the preparation of the case you should take pains to find out as well as you can what will be the testi- mony of every adverse witness, and be always on the look- 300 CONDUCT IN COURT. out for contradictory statcincnts made to people of good repute. Even if your preparation has failed to detect any such, by keeping an eye about you during the trial you may at the very last moment catch your prey in the net. I have noted that the longer the final trial of an exciting case is deferred, the more the resources of contradiction multiply. The influence, canvassing, and entreaty of the parties and their friends cause many of the reports given at first to be modified in their interest. It ought to be your concern to make as nmcli as possible for your side out of this tendency. And there should be on your part well-directed efforts to collect the available counter testi- mony, from the beginning of the preparation until the call of the last witness against you. § 418. There are often frequent trials of the same case, or of issues involving substantially the same facts, wherein a particular witness on the other side may have testified several times, or lie may have been examined by commis- sion. Whenever his testimony varies decidedly from that which he has previously given and it is your cue to attack his credibility, you should never ftiil to take advantage of it. For such a contradiction is of more moment because he has sworn to both statements. It is much more easi? to take off the usual effect of an inconsistent statement hastily made than that of one which is deliberately given under oath. I have once or twice heard the latter satis- factorily explained, but such occurrences are very rare. § 419. The next mode of attack is to draw the witness into such statements as will be disproved by the other testimony. You may put him on some important detail in irreconcilable oppugnancy with all the fellows of his own side, as well as with your own evidence. This is a more CROSS-EXAMINATION. 301 subtile task tlian the qvicstioiiing which lays the founda- tiou for proof of counter statements made out of court. You must d;sci[)line yourself to carry in your head, with such distinctness as to make mentally an accurate compari- son, both the direct answers of tlie particular witness and all the other testimony, — that which is already out, and that which may reasonably be expected from both sides. If he is reckless and defiant in his partisanship, you need not be very careful to veil your purpose. But if he is shrewd and vigilant to shun your snares, you must take pains not to wake his caution. I have noted that when you wish to touch on many different details you fare bet- ter if you adopt rapid and disconnected interrogation, — where you will often be seriously disadvantaged if you have to wait upon a long-hand reporter, — and that when you need to expand a particular matter very fully it is generally well to fall in with the witness and seemingly accept his narrative. And whatever course you take, and whether the range permitted you be wide or contracted, do not overlook a single opportunity, and be unwearied in exhausting all possibilities of placing him in opposition to the other testimony. We have noted that the particular subject of this sec- tion is not sufficiently attended to in practice. The counsel show that they have some conception of its impor- tance, but usually they do not thoroughly measure the witness in hand by the other testimony, and consequently their development of his disagreement with it falls far short of what is achievable. § 420. We must in*this place observe upon the duty of the cross-examiner to unfold conflicts in the adverse testi- mony. Quintiliau says : " Fortune sometimes favors us 302 CONDUCT IN COURT. by causing something to be said by a witness that is incon- sistent with tlie rest of his evidence ; and sometimes (as more frequently lia})pens) she makes one witness say what is at variance with the evidence of another ; but an inge- nious mode of interrogation will often lead methodically to that which is so frequently the effect of chance." ^ To throw doubt on the adversary's evidence is often your entire resource ; as where you rely on the general issue for the defence — especially in criminal cases — and also where you are for the plaintiff who has cast the onus incontro- vertibly on the defendant and the latter is trying to shift it. In all of these instances, if you cause the adverse witnesses to collide upon a cardinal point it may prove decisive in your favor. The same accurate understanding and colla- tion of the testimony as we saw to be required when you would have a particular narrative disproved by the other evidence are likewise necessary here. And the discrepancy must be as patiently and satisfactorily made out. § 421. Next to actual information as to Avhat the testimony of the different witnesses will be, the most effect- ive means at your command to make them contradict one another is to have them ordered out of court. It is a privilege which need not be always exercised. I have noted that it is usually well to exercise it when you are suddenly called to defend some exciting charge of crime. The question should be well considered and settled before you announce that you are ready to try. . The following is an instance of an important difference developed by the means just mentioned. The State was striving to identify a particular defendant as one of the perpetrators of a deed of violence by tracking a horse 1 Institutes, V. 7. 29. CROSS-EXAMINATION. 303 alleged to be that which he usually rode from the place where the crime was committed to his dwelling, which was a few miles distant. The counsel for the defence ac- quainted himself well with the road which the horse was reported to have gone. About a mile from the scene of the violence the passengers had made a new road, which turned about in the open fields and woods to avoid some broken places in the highway, and which returned to the latter about half a mile from the point of divergence. Two witnesses were to testify to tracking the horse. They were ordered out of court, and afterwards, on examination, one tracked the horse along the old road, the other along the new road, and both swore that they were together at the time. § 422. The better the character of the witnesses for truth and coolness, the less you will make by ordering them out of court. If they come from their confinement to the stand and one by one tell in the main the same tale, varying only in those common discrepancies which are but proof that there has been no collusion between them, the efiect is very damaging upon your case. You have beeu caught in your o^^^l trap. You may note that generally a false alibi is detected and a true one established by having the supporting witnesses ordered out of court. § 423. You may not be able to lead the witness into a conflict with any other ^vitness, and yet you may commit him to assertions which will finally prove the ruin of his credit. A. lawyer undertook the defence of a negro charged with the murder of a white girl, who had been found dead, the signs on her person indicating that she had beeu ravished. The evidence against the defendant was purely 304 CONDUCT IN COURT. circumstantial, but it was tliought conclusive by the peo- ple. The lawyer had his own reasons for believing his client innocent, and that the guilty man was somewhere in the crowd of witnesses who eagerly pressed forward to danni the cowering prisoner. There had somehow been two examinations of the defendant by a magistrate, and the prosecutor had testified in each to tracing the tracks of a man, discovered near the dead body the day after it had been found, to a place where a sudden rain put them out, in a road about a mile from the house of the prisoner, — this road running on by the house mentioned, — and that he thought it useless to go further, as he then knew who the murderer was, meaning the prisoner of course. This opinion was not legal testimony, but the lawyer decided not to object to it, and to draw it out himself if it did not come out otherwise. We need not tell all of the incidents of the trial. The prosecutor was the principal witness to identify the tracks mentioned as those of the prisoner. The former at the trial, while under direct examination, blurted out the declaration that when the rain came up he was then sure who the murderer was. When turned over for cross- examination, the prisoner's counsel began by repeating his statement that at the time and place mentioned he had be- come convinced of the guilt of the prisoner, to which the wit- ness with some show of insolence assented. He was then calmly reminded that at that particular time the prisoner had not been apprehended wearing boots which the State claimed to fit the tracks, nor had anybody then detected on his clothing what were alleged to be blood-stains ; and the witness was asked to state all of the reasons which he had at the time the rain began for believing the prisoner to be the man who had killed the girl. He gave only three ; to wit. CROSS-EXAMINATION. 305 the course of the tracks from the body towards tlie house of the defendant ; a conversation which he had testified to having had with the prisoner about the girl a few months before her death ; and information which had been given him about tiie same time by her mother of a visit of the prisoner to her house at night. He did not give all of these reasons at once, and readily. He had to be quizzed a long time. It was the purpose of the cross-examiner to have this sifting atten