,^1-I.IBR =c. THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF School of Law Library Diike University m^ONVSl ^(f/ojiw: ^t-LlBRARYY?/ ^^^l•LIBRARY■(9/ ^S^J' '*-^'-' ^^-'^^V/ V.-WL I I'd V Liid//^ PRACTICAL SUGGESTIONS FOR THE Management of Law-Suits AND CONDUCT OF LITIGATION BOTH IN AND OUT OF COURT BY JOHN C. REED COUNSELLOR AT I^W NEW YORK JAMES COCKCROFT & COMPANY I 876 T COrVRIGHT, 1875, BY JOHN C. RKBD. PREFACE. Mr. Bishop, commenting on the subject of practice, uses the following striking words : " Our own country is so cut up into States, each having its own peculiar practice, that we have not had a general book of American law practice, and it is impossible any such book should be written. There are some general principles which run, and must run, through eveiy system of legal practice ; and an author, sufficiently skillful, might do an excellent service by culling out these, and presenting them, detached from local rules and local usages, for use everywhere. But until this is done, we can not expect to have a more useful work, of a general sort, relating to this subject, than this old book by Mr. Tidd [his Practice]. It can hardly be said to be a scientific book ; yet, on the other hand, it is not exactly a digest. There is a science in law practice, but it has not yet been developed by any writer." ^ The author's theme, in this work, is not what is technically called Practice : it is the closely-related subject of the proper management, in litigation, of the plaintiff's case, or of the defense. This proper management is according to leading principles, few First Book, § 59S. ^^ TV PREFACE. and easily discovered, and so general, that they arc as much applied, in forensic controversy, on the Pa- cific coast as on the Atlantic, around the Lakes as beside the Gulf. The lawyer in Maine wins his case by observing the same rules of conduct as his pro- fessional brother in California. The lav/ of the two States may differ widely in many particulars, and the practitioner must know all the peculiarities of the local law ; but this no more requires in each State a different science of managing cases, than the great di- versity in the face of the earth, and in the language and character of the inhabitants, requires that a new manual of the art of war be compiled for military operations in every new country. The Eastern and the Western lawyer alike seek to provide certain superiorities to the other side in their preparation ; and they essay, too, such a conduct of the trial, when it shall come, as will clearly present and maintain the prepared superiorities. This suggestion shows, at once, that the principles of right preparation of a case, and those of the proper conduct of its trial, are so comprehensive, that all local differences, whether of substantive or remedial law, are ab- sorbed and disappear in them. These general prin- ciples are of the very first importance to the prac- titioner. If he is not the master of the true art of getting up and of trying his case, any success that he may have will be only accidental, and he must soon give way in the arena of practice to his more practical brethren. PREFACE. V In compiling, for the first time, the manual of forensic controversy, the author docs not pretend to have established anything new : he only claims that he has presented and illustrated the all-important prin- ciples which every good lawyer uses in conducting litigation. His business is throughout with those old principles, which no young lawyer can com- mence studying too soon, and to which the greatest more and more conforms while he is maintaining and extending his leadership. It is time that these principles be properly elucidated ; and that the young lawyer, instead of being left to pick them up, unsystematically and at haphazard, in a long mis- spent novitiate of practice, be furnished with a guide-book, clearly explaining to him how to under- standingly take, ably prepare, and skillfully try" his cases. The author believes that he has, in the following pages, given to his younger brethren this needed book. The reader is referred to the first chapter follow- mg, entitled General Divisions, for a fuller and more precise statement of the scope of the work. J. C. R April, 1875. TABLE OF CONTENTS. GENERAL DIVISIONS. pAGa Litigation defined. Why the work is named as it is. Lit- igation compared with warfare, and with certain games. How good generals, players, and lawyers generally win. How litigation more resembles war- fare than it does a game. Art of preparing a case parelleled with strategy, art of trying with tactics. Superior importance of strategy and preparation. Conduct of the case out of court. Conduct of the case in court. Litigation not to be too closely compared to Avarfarc. Contents of Conduct out of Court, or Book L Contents of Conduct in Court, or Book H. The Successful Lawyer to be drawn in the Final Chapter BOOK L CONDUCT OUT OF COURT. CHAPTER L INTRODUCTORY. Practitioner distinguished from judge, and law-author. Description of lawyer by Mr. Bishop. The lawyer must be master of the art of conducting litigation. vjii CONTENTS. rARS He is the partial deputy of his client. Parallels of husband, parent, general, and army. Adversaries of equal zeal and fidelity matched. Object of the legal profession and courts. Knowledge and quali- fications assumed for the reader. Great importance of talent for understanding facts. Litigation is cither disputed facts, or disputed law, or both dis- puted. Distinction and union of law and fact in litigation. Both elements always present in every case. Aim of preparation of the ease to secure legal and evidential advantages. Instances of prep- aration of superior advantages. Human nature must be understood by the lawyer. Force of com- bined reason and conscience of mankind. Com- mon views, sentiments, creeds, and prejudices. Personal influence. The law of the books not that administered at Jiisi prius. Sway of the feelings. All these things to be considered by the lawyer, when he weighs the chances of litigation, . . 9 CHAPTER II. A CASE OFFERED. Details of an offered case to be mastered as soon as pos- sible. Unintricale cases. Quintilian's advice to the advocate. Increasing carefulness of modern in- quiry. Further search after sifting the client. Documents and witnesses to be closely examined. Instance of witnesses attacking the character they had been called to support. A plaintiff nonsuited because his only witness knew nothing. A grant bearing date before the organization of county pur- porting to have issued. Exhaustiveness of investi- gation necessary before the lawyer can advise. Mr. Warren's advice. The lawyer who only seeks to CONTENTS. ix. rACi pocket fees. Anticipation of advcrsarj'i case hinted at. Example from Judge Coolcy, of an elaborate investigation of a title, . . . • ^7 CHAPTER III. A CASE OTY'EV.^'D— {continued). Restatement of duty of lawyer advising. Evil of pro- crastination. Necessary celerity of his decision. The lawyer consulted is to see what case is made. Two pertinent excerpts from Professor Amos. Client to be advised according to the probabilities. The event can not be predicted nor assured. Parallel of the general attacking or defending. Multiplicity of legal and evidential superiorities. When the offered case should be taken. Character of good lawyer. The lawyer who is never danger- ous till he has lost. A theory of the case neces- sary. The lawyer who learns at once ever3-thing that he can. Burr's avoidance of bad cases. Ex- ample of a successful lawyer of the author's ac- quaintance 44 CHAPTER IV. A CASE OFFERED {concluded). Timidity and overcaution in the lawyer reprehended. Early overfastidiousness of Hall in seeking after good cases. Good cases not to be sviffocated. David Paul Brown as to the ethics of taking and refusing cases. The client can command the lawyer to prosecute all of his legal rights. Declining cases. Lawyers too busy to counsel the beginning of liti- gation. Unpopular and desperate cases. Self- education of the young lawyer, . . . • 57 CONTENTS. CHAPTER V. THE PRINCIPLES OF PREPARATION; AND PREPARA- TION OF THE EVIDENCE. Elements of preparation looked at serially. Begin- ning of preparation. First duty of preparation is to assure apparent existing advantages. Sifting witnesses, and taking minutes. Inducing witness to write a statement of his testimony. Other exam- ples of assuring apparent existing advantages. Neglect of this duty, so plain, is unpardonable. Second object of preparation is to obtain other ad- vantages. Examples. A mine of facts often long inexhaustible. The third object of preparation is to abridge the advantages of your adversary. Ex- amples. Instance of neglecting opportunity to cripple an adversary. Objects of preparation re- stated. Injury to self by one's preparation to be guarded against. Examples where a party hurt himself by his evidence. Preventive of these self- caused injuries. Anticipation of adversary's case. Secrets of the case not to be always confided to the client. Providing against escape of one's secrets. The law the great guide in the preparation of the evidence. Thorough preparation enjoined. Napo- leon's advice to order up every battalion before the fight, and Mr. Warren's to ^zrrprove rather than under]^YO\e, ........ CHAPTER VI. PREPARATION ON THE LAW OF THE CASE. The student must first observe the courts a while. Fo- rensic dispute more over facts than law. AVhy law PACH CONTl^NfS. xi PA as less discussed than facts. Occasional uncxpccled trinr.:phs on law questions. Lord Eldon's victory, wiien a ^oung man, in Akroyd v. Smithson. Ers- kine's first effort. Importance of attending to the law in every part of the case. Process and aim of legal preparation. Adverse, favorable, and doubt- ful law. The law a great armory of remedies. Suing the surety in his own county, when he could have been sued elsewhere. Example of cross- prosecutions. Retreat nearly always possible to the good lawyer. A particular line, when chosen, not to be too stubbornly adhered to. Legal supe- riorities, like evidential, discovered by careful ex- amination. Growing tendency of lawyer to found his combinations on sound law\ Tendency to sliun doubtful legal questions. Search for principles sometimes necessary. Example, from Mr. Bisliop's practice, of establishing a new principle. Averse- ness of judges to making avowedly new rulings. How a new law-point is to be managed. Over- refinement deprecated. The legal judgment, as described by Mr. Bishop; as described by Lord Coke. Brief consideration of preparing the plead- ings, 94 CHAPTER VII. OTHER PARTICULARS OF PREPARATION. Eminent counsel often devolve preparation too entirely on inferior associates. Preparation by English at- torneys and solicitors. Inherent superiority of the American system. Views of David Paul Brown. Leading counsel should confer with witnesses. In- stance from Choate's practice. The English division xil CONTENTS. PAOS of labor between counsel and attorney not a natural one. Lawyers will become better counsel by being good attorneys. Plurality of counsel advisable. Burr's " placing " of his associates. Conferences. Number, character, and "placing" of assistant counsel the business of the leader. Proper spirit and behavior of associates towards each other. Local counsel. The lawyer must have an intelli- gent purpose in everything. Hesitation, however, to be avoided. Quickness of Kenyon. Necessity of quickness. Circumspection required. Self-com- posure necessary. The lawyer who ever imagines llie scene of trial while preparing. Diligence and industry. Excellence of patient attention. Rare- ness of undestanding accurately. You should always be able to stand a Socratic examination on your case. Advantage of this mastery in intricate cases. Transcendent superiority of a thorough knowledge of one's case. Choate's preparation. Burr's preparation. Non-preparation against thorough preparation. But everything can not be anticipated and provided for. He, who believes that Providence only sends him good cases, con- trasted with the good lawyer, . . . .116 CHAPTER VIII. PLAN OF CONDUCT, The subject separated from the other elements of prep- aration to be understood. The general's plan of the campaign. Use of the word line in the same sense as plan. The right plan assures most and risks least. It includes the results of preparation, properly marshaled for the litigation. Plan of bat- CONTENTS. xiii PAGX tie at Marathon ; an opposite plan successful at Leuctra. Plans of battles only remote analogies. Example from Choate's practice of a simple plan. Anotlicr instance of a simple plan. Great results often follow the execution of a very simple plan. Basis of the genius of the general aii.d the lawyer. Complex cases require complex plans. Example of a complex plan involving questions both of la\r and fact. Two kinds of simple plans for palpable issues. Essentials of complex plan. The plan should generally be as simple as possible. The client not to be too severely judged against, . . 145 CHAPTER I X. PLAN OF CONDUCT — {fontiiiued). When secrecy is necessary, and its importance. When you can show your hand. Whether an attack or defense shall be bold or not. Provision in plan for new trial in case of defeat. Examples. Difference of the aggressive and the defensive. A defense may be aggressive. The non-aggressive defense. Ad- vantage of commanding the initiative. Superiority of the aggressive defense. The plan should be neatly drafted. Procurement of special legislation. Arbitrations and references. Amicable settlements by the counsel of the parties recommended, . 165 CHAPTER X. BRIEFS. Why a chapter is given to the subject. Restricted sense of the word, " brief," in America. Contcntsof an xiv CONTENTS. English brief according to Sellon and Tidd. A brief should contain the whole preparation. Policy of such a brief advocated. Exceptional memories. Digest of memoranda. Advice of Mr. Warren. A brief is made up gradually. Advice of Mr. Bishop. Whether the pleadings should be copied or abridged. Abstracts must be accurate. Rareness of the talent of accurate abridgment. Statement of the client's case. Caution against a too favorable statement. The proofs to be marshaled, and a list of the wit- nesses to be given. Copies and abstracts of docu- mentary proof. There is no Procrustean model for the brief. Anticipation of and preparation for col- lateral issues to be stated in the brief. Cautions against any dangers apprehended; advice of Mr. Warren. A perfect brief. Draft of plan of con- duct. Voluminous brief should be indexed. Co- pious directions of Mr. Warren given. American neglect of preparing elaborate briefs earnestly re- prehended. These is not to be a slavish dependence upon the brief, . . . . . . . iSa BOOK II. CONDUCT IN COURT. CHAPTER I. INTRODUCTORY, Correspondence of the subject of this book to Tactics. Object of conduct in court. Talents for manag- CONTENTS. , XV rxr.z ing a trial. Greatest ability for trying- rarely united with the greatest for preparing. Unantici- pated occurrences of a trial. Importance of pre- cedent preparation. What counsel shall lead in the conduct of a trial. Restatement of the essential parts of preparation. The subjects of our two Books especially run into each other in the plan of conduct. Spirit of proper conduct of the trial. Objects of conduct of a trial summarized. Consultation of counsel on the eve of trial. Easy cases. Con- tinuances. You should, if possible, have a con- tinuance for yourself, and be able to defeat that meditated by your adversary. Selection of the jury, 207 CHAPTER II. OPENINGS. In England, the junior counsel for plaintiff opens the pleadings, and the leader opens the case. Here, both openings are usually by the same counsel. American tendency to concede the opening to the junior counsel. Opening of facts not so important here as in England. Mr. Cox's satisfactory direc- tions as to opening the pleadings. The pleadings opened to possess couit and jury of the issue. Mr. Cox as to opening the plaintiff's case. Importance of opening in difficult cases. No need of the formal division of opening the pleadings and opening the case. Essentials of a good opening. The duty too often neglected, or perfunctorily performed. Facts should not be too crowded in a statement. Opening of the defense. Opening a record. Unfairness and overstatement reprehended. Misstatements in the Attorney General's opening of the case against xvi CONTENTS. PACK Queen Caroline severely handled by Brougham, in her defense. Counsel should talk beforehand with the witnesses. Destructive recoil of an unsupported opening, ......... 219 CHAPTER III. BEGINNING OF CONDUCT OF THE EVIDENCE. THEEXAMINATlON- IN-CHIEF. Affirmant to make out a prima facie case. Reservation by plaintiff of evidence to reply to defendant's. Plaintiff will rest his case w^hen the proof entitles him to the verdict. Defendant will also pause in his evidence, when he has avoided or disproved the plaintiff's case. Plaintiff's reply, defendant's rejoin- der, and so on. Evidence both oral and written. Main purpose of this and the three following chap- ters to discuss the examination of witnesses. Ex- amination of witnesses discussed under three heads, viz., direct, cross, and the re-examination. Reason for discussing David Paul Brown and Mr. Cox separately. Every question should have an intel- ligent purpose. In England, the junior coimsel for plaintiff examines the first witness. No such Ameri- can rule. Generally the counsel most familiar with the expected proof should examine. Sometimes, the counsel who is to make the principal argument, should not examine at all. The material allega- tions of the plaintiff's pleading to be proven. Ma- terial facts to be drawn out. Adverse facts, known to the other side, had better be brought out at once. Importance of knowing the narrative of the witness well. First Golden Rule of David Paul Brown, and comment, insisting that the lawyer acquaint himself CONTENTS. xvii PAG3 ■with tlic testimony of his witnesses, before calling them. Second Golden Rule, and comment, insist- ing that the examiner should anticipate the mood of his witnf^ss. 'Jliird and Fourth Golden Rule; in- sisted, that prudent preparation will provide against the hostility of your witness. Fifth, advising never to call a witness whom your adversary must call, unexceptionable. The Seventh and Eighth, as to proper questions and objections, also vmexception- abte. The Ninth Golden Rule, enforcing liveliness of examination. Mr. Cox's suggestions as to lead- ing questions. His caution as to avoiding conflicts among your own witnesses. Sounding the witness beforehand will show how to avoid the evil. In- stance of party disproving his own case. Mr. Cox's cautions against witnesses who say too little or too much. lie differs wdth David Pavil Brown, as to treatment of your hostile witness. Mr. Cox's good counsel for dealing with timid and stupid witnesses. Questioning from a region above the comprehension of a stupid witness. Mr. Cox's advice to observe, in an examination, the order of time, llis good advice as to deliberateness and carefulness in the examina- tion. Mr. Cox as to permitting, or not, the witness to tell his story in his own way. Importance of sometimes having rehearsals from the witnesses be- fore the trial. Unnecessary questions, . . 236 CHAPTER IV. CROSS-EXAMINATION. Whether you snould cross-examine at all. Cross-ex- amination overrated by the inexperienced. Also xviii CONTENTS. PACK overrated by Mr. Cox. One sort is for the witness whom you \i\\\ not attack, the other for him whom you will attack. You keep the adversary from gar- bling the testimony by his partial questions. Where you make the adverse witnesses testify for you and instances. Where you reason them out of their errors, and an example. Putting one of the adverse witnesses in conflict Avith the others. Importance in practice of cross-examination of witness whose tes- timony you make your own. Of the witness whose narrative you do not accept. Intended to make the witness discredit himself, or testify to what will be contradicted. Contrast between young and old lawyer, cross-examining. Previous preparation for cross-examining. Illustrations showing importance of premeditation and antici'pation. Two instances where witnesses were detected in palpable perjury. An associate, quietly listening, will often detect what escapes the questioner. The famous cross-ex- aminations of Majocchi and Demont. Reckless witnesses, occasionally pushed forward by popular- ity of the wrong side, to be thoroughly sifted. Rar- ity of such triumphant cross-examinations as those of Majocchi and Demont, ..... 259 CHAPTER V. CROSS-EXAMINATION — {continued). The three leading principles of cross-examination re- stated. Mr. Cox as to the savage and sniili/ig style, of cross-examining. The first object of cross-ex- amining is to weaken or destroy the force of the witness's testimony for the other side; how it is to be a'.tained (Mr. Cox). — Cross-examiner going too CONTENTS. xix PAGH far, and instan:e from Choate's practice. Second object of cross-examination is to elicit somethinij in your favor, and liow (Mr. Cox). — Third object is to discredit the witness, and liow (Mr. Cox). — Excel- lent example of witness detected in perjury (Mr. Cox). — This author gives too great prominence to the cross-examination, intended to involve in self- contradiction. The known character of the witness all-important to the cross-examiner. Mr. Cox does not mention it. David Paul Brown's Golden Rules for cross-examination given in full. Excellence of all the Golden Rules. Importance of cross-examin- ing always according to the true principle. Pro- tection due from you to your witness imder cross- examination. Instance from the Adventures of an Attorney &c., where a witness protected himself by an objection, sustained by the court, . . 280 CHAPTER VI. RE-EXAMINATION. — CONCLUSION OF THE CONDUCT OF THE EVIDENCE. In England, the leader usually re-examines. He who is best acquainted with the narrative of the witness should generally re-examine. The object of examina- tion, according to Mr. Cox. One purpose is, to pre- vent the adversary's distorting the testimony of your witness by garbling qviestions. Illustrations. Wit- ness permitted by the re-examination to explain. Importance of previously acquired familiarity with ' the narrative of the witness. Instance of Web- ster's strengthening his witness. jNIr. Cox docs not comment on the importance of this previously ac- quired knowledge. Mr. Cox on the mude and scope XX CONTENTS. P*GH of re-cxamia;ilk)a. Eliciting important repetitions from the witness. Delicacy of re-examination, ac- cording to Mr. Cox. His mistaken statement of the object of re-examination. His assumption that the examiner should always suppress unfavorable truth. Ordering witnesses out of court. Good ad- vice of Mr. Cox as to objections to questions. The examiner should not busy himself too much Avith looking for objections. When and how an objec- tion should be iirged. Pleasantness of manner in examiner inculcated. Protection due from the court to witnesses under examination. Brave appeal to the English judges, by the author of Adventures of an Attorney &c., to protect witnesses. The judge who helps a favorite outrage a witness. Providing new evidence during a trial. Examination by com- mission. David Paul Brown as to importance of examination. Review of the objects of adducing evi- dence. Patience and good-humor. Excitement of a trial, and necessary coolness of the lawyer en- gaged. Pre-apprehension of the case not to be too slavishly relied on, ...... 309 CHAPTER VII. NOTE-TAKING. English superiority in the matter of note-taking during the trial. Advice of Mr. Cox. The notes should be taken by a counsel who does not examine. Notes to be taken of the evidence, and of everything else , important. Great aid of careful notes. Mastery of details called for in everything. Defects of mem- ory. The inferior of two lawyers had the ([uicker apprehension. Habit of Choate, as detailed b/ CONTENTS. xxi PACK Mr. Parker. Notes of tlie evidence most important. Choatc's custoni of reviewing and digesting his notes, every night of the trial. Growing importance of phonography. Great things can, however, be done in long liand, ...... 328 CHAPTER VIII. THE ARGUMENT. When argument had better be dispensed with, and when it should be made. Forensic argument not to be overrated. Sway of the ancient orators. Growing dominance of law. The excellence of tlie common law in its encouragement to contend for the right. Mr. Cox's advice as to introducing flights of oratory, and being practical. True idea of a fit argument You should yield, where the right is palpabh against you. The great majority of cases seem doubtful and should be argued. Right to begin and close the argument. Blunder of sacrificing evi- dence for the last word. Making the argument after the evidence better than making it before. Law and fact again. English custom of colloquy be- tween the judges and counsel argviing commended. You should sound the judge. Arguing to the court. Growing importance of attending to facts and de- tails. Burr's oratory. Shortness of Phocion's speeches. The juiy to be made to see the effect of the whf le of the evidence. Purpose of the speech is to sho\s that the other side has failed to make out a case, or that yours outweighs. Mr. Cox's advice against nice distinctions and refined arguments. You should strike the balance between tlie two sides. Argument should be exliaustivc, witlioul being xxii CONTENTS. wearisome. Sometimes necessarily lonj^. Subject of elocution foreign to this work. Reference of the student to Whateley and Bautain. Great modern lawyers convince the understanding. Good speak- ing comes of due attention to the case. Occasional calls for great eloquence. No good case should be lost. Picture of the reign of justice and law in the King's Bench. Honesty required in the advocate. Accurate insight coupled with perfect honesty a power irresistible, 337 CHAPTER IX. NEW TRIAL AND APPEAL. Instructions of the court to be noted. Motion in arrest almost disappearing from the civil practice! New trial to be moved for advisedly. Sometimes when trying, your greatest concern is to secure a sure ground of new trial. Your notes contain the grovmds. Praying certain instructions, or requiring written charge. Not intended to digest the various grounds of new trial. Reference to one of the chap- ters on Plan. The authentication of the grounds should be secured as soon as possible. No parallel to new trial in warfare. Admirable spirit of the lawyer who will not submit to the loss of a good case. Bill of exceptions. Summary. Lawyers should not submit to bad rulings and verdicts. Proper control of yourself during trial, and of a iudge favoring your case to be exercised. All good points to be taken. A young lawyer first makes his mark by liavi ng a judge reversed, . . . 354 CONTENTS. xxlli PACK CHAPTER X. VICTORY AND DEFEAT. Whatever remains after victory to be done, should be done energclically. Instance where a plaintifl's lawyer neglected to collect a judgment. Counsel submission, if you are on the side of inevitable loss, 360 FINAL CHAPTER. Character of the successful lawyer compared with the law-author, as the successful farmer with the agricultural chemist. The lawyer has points of like- ness to the general. Marmont's analysis of the general, in which firmness predominates over intel- ligence. Genius of the lawyer and general practical or active, while that of the law-author is contempla- tive. The lawyer's and judge's command of legal principles of common application. Practical wis- dom in the law a necessary element of the lawyer'3 composition. A head for facts and details still more important. Recapitulation of the two intellectual elements. Insight, or vision of the truth, the root of these two intellectual elements. Example given by Mr, Bishop, where a case, apparently hopeless, was won, by the application of a hackne)'ed legal prin- ciple. Acumen exhibited as much in evidence, as in law. Singular instance, where the point was shown by a layman, after it had been overlooked by the counsel and the court. Transcendent importance of seeing things right. Great acumen with a pre- ponderant force of will exalts spontaneously to command. The moral element. Hamlet deficient in the moral element, and therefore deficient in ac- xxiv CONTENTS. tion. The law}cr is, pre-eminently, a man of action. Macbeth and Hamlet contrasted. Themistocles per- fect in the proper union of insight with force of will. The necessary courage is but self-possession. Neither resolve nor anger can serve for self-posses- sion. The lawyer's avoidance of questions that he has not vime to investigate. He does not attempt impossibilities. Contrasted with the petifogger. Summary of the hard things the lawyer must do. Conclusion, ,. . . 363 CONDUCT OF LITIGATION. GENERAL DIVISIONS. In this book the word Litigation is used in its widest sense. Whether civil rights be in question upon an issue of fact, or a bill in equity is heard to settle intricate accounts or delicate questions of law, or whether the State be proceeding on an accusation of crime, such and every other conceivable forensic controversy are classed herein under this word Litigation. And as there is an art of skillfully choosing and carrying on these controversies, this book, which essays to teach that art by setting forth and illustrat- ing the principles of the right selection, preparation and management of law-cases, is called Conduct of Litigation. Litigation is akin to warfare and games of skill wherein general success is the result of obedience to certain fixed and easily discovered principles. It can not be claimed that the event of any given case can be 2 CONDUCT OF LI TIG A TION. calculated with exactness, for litigation even when best understood is not a science any more than warfare ; but like warfare it is an art wherein accident and fortune are often of much avail. Litigation has in it no such certainty as the game of chess. It the rather resembles the game of whist, in which some- times the luck of the tryo will, on a particular hand, vanquish the skill of the veteran. So in war, the elements of nature, and occurrences and contin- gencies which can not be anticipated by the wisest, often fight for the untrained soldier, and smite with ruin the confidence and superiority of military^ genius. Still there are superior whist-players and able generals who are accustomed to conquer all adversaries. There are, too, good lawyers, succeed- ing so frequently, and often so surprisingly, that the undiscerning multitude almost believe them capable at will either of creating resistless combinations or of changing the laws of belief to save bad cases. The good player makes every play according to the proper lule of the game ; the good general directs every movement by the true manual of the art of war; and so the successful lawyer chooses his cases by principle, and prepares and manages them by principle. If we contemplate litigation closely, we see that it is more like warfare than it is like a game. When you sit down to play at whist, chance and not fore- GENERAL DIVISIONS. 3 cast ordains your hand for you, while in chess and other games of skill and no hazard, both players usually start with equal chances save that one has the first move. There can be no plan of playing made before the game begins, no marshalling nor combination of forces and asfencies before the en- counter. On the contrary, a battle or a trial can not occur so suddenly but that there has been something and very often much foreseen and provided for, and, if ability is matched against mediocrity and supine- ness, generally the strategy in war and the prepara- tion in litigation of the former have decided the event before even the battle or trial begins. The conduct of a trial or hearing does resemble the playing of a game, but there is no parallel in the game to that foreseeing preparation which the lawyer, moving or defending, may give his case. In this particular of intelligent provision for the en- counter, litigation resembles warfare more than it does any other contest and controversy. The operations of war ending with a battle are of two sorts : hrst, those which precede and antici- pate the battle ; second, the management of the battle itself. The art teaching the combinations and opeiations preparatoiy for battle is called Strategy, and the art which fights a battle aright is named Tactics. The verbal definition of strategy is manoeu- 4 CONDUCT OF LITIGATION. vering in the absence of the enemy, and the verbal definition of tactics is manoeuvering in his presence. Strategy marshals the forces and directs the move- ments to a certain point where it seeks to surprise and ovenvheim the enemy. It is conceded by military writers, that if all other things between two opposing armies are equal, that one will generally win which is led by the superior strategy. A battle is more often decided by that which has been done or left undone beforehand, than by what is done or left undone on the field. If good strategy has stolen a march upon bad strategy and massed on the decisive point superior numbers, even faultless tactics come too late to rescue the lagging general from preordained defeat. Our corresponding word in the vocabulary of litigation to strategy is Prepara- tion, but we have none that corresponds to tactics. And the word preparation is rather of colloquial than technical use. To understand the art of conducting litigation we need both distinctions. There must be prepara- tion proper of the case before the trial, and then the trial itself must be rightly conducted from tlic open- ing to the last attention needed to the instructions of the court. Our subject then admits of two easy and natural divisions, analogous to those two of warfare just GENERAL DIVISIONS. 5 explained. The first we call Conduct out oi' Court, or Preparation, and this will be the sub- ject of Book I, The other we term Conduct IN Court, and we are half inclined to name it Tactics, from the nomenclature of warfare ; and this latter will be the subject of Book 11. Wc will here remark that the chapter on New Trial, and that on Victory and Defeat do not in the strictest logical classification belong where they now are, but as they are so short and contain nothing but what immediately grows out of the conduct of a case in court, we have, we think, rightly included them in Book II. There is a natural division of the subject of this treatise, preceding in the true order the two divi- sions that we have made ; and this omitted and prior one we might entitle Consideration of an Offered Case. And it has a correspondence in warfare, lor the commander must sit in judgment upon a pro- jected campaign. But as there is so little to say on this division, we have treated it as belonging to Book I. And the counterpart of warfare, whic!] we have just mentioned, is treated by military writers under Strategy. Litigation must not be too closely compared to warfare. Our subject can only be illustrated at times fi'om that art. But as both warfare ar 6 CONDUCT OF LITIGATION. litigation concur in the particulars already mentioned, to wit : that there should be preparation of superior combinations before the decisive encounter, and that such encounter should be skillfully conducted, and further, that the first is of more importance and influence than the second, the attention of the student is directed to those works of military writers wliich set forth the principles of warfare scientifically and compendiously. Jomini's " Art of War," and Marmont's " Spirit of Military Institutions," will be found readable in the American translations, well distinguishing strategy and tactics, and accurately explaining the essential principles of each. Under the head of Conduct out of Court, — the subject of Book I. — will be told every thing necessary to be done by the lawyer in his case before trial. And it is our anxious desire to reveal clearly the transcendent importance of this proper preparation. Here is the great field and province for the peculiar genius and the superhuman toil of the lawyer. It is hardly exaggeration to say that ninety-five per cent, of average success in the practice of the law is in the right preparation of cases. Under the other head, — Conduct in Court, the subject of Book IL, — will be reviewed every thing necessary during the trial or hearing. This is far simpler and less difficult than the other out of which GENERAL DIVISIONS. 7 it grows, and from which it is mostly directed and shaped. The man who ascribes a controlling influ- ence in the conduct of litigation to mere gifts of utterance and eloquence has never attentively ob- served and studied forensic controversy. Sometimes they do, as a sudden flood sweep away all op- position, but, in the main, superior combinations will carry court or juiy, though opposed with the eloquence of Demosthenes. As the subject is properly independent, we have added after the end of Book II. a chapter on the Character of the Successful Lawyer. BOOK I. CONDUCT OUT OF COURT. CHAPTER I. INTRODUCTORY. The report of a case adjudged by a court of error only shows what were the questions made bv the record and how those questions were disposed of; and the same may be asserted in the main as to the reports of cases tried at nisi prius. But it is our object to go behind trials and arguments and discuss that which rarely appears in the reports touching any case : that is, how the parties come to the issues reported. The standard authors draw from the reports certain materials which they discuss, arrange, and digest, and from which they present the law with more or less of ability. The subject of judges and law authors is the law itself Our subject is the practice of the law. Neither the ablest judge nor the most renowned law-writer has always been a good lawyer, that is, a successful practitioner. All of us have noticed at the bar that superior learning 10 CONDUCT OF LIT! CATION. and understanding of the law are sometimes over- matched by superior ability to practice law. Now this address in practice, which often wins against greater knowledge of the statutes, reports, and books, is our subject. There can be, it is true, no able conduct of an intricate case without a compre- hensive and sound knowledge of the law, but this knowledge, it is seen, is not of itself sufficient. The able practitioner, unlike the judge and law writer who debate legal questions already presented, spends his time in investigating the particulars of his case, so as to select, as it were, what issues and questions he will present. If not incessantly watched by an adversary as waiy and industrious as himself, he w^ill often add to his own side a strength which it did not have at first, and cut off the other side from many of its advantages. He will dexterously lead the other party away from un assailable positions, fortified with the authority of all of the judges and authors, to stand on others which they as unanimously condemn, or he will maneuver his adversary out of superiority of evidence, or he ^vill win by using some other lawful move. The following passage from Mr. Bishop is per- tinent here, and well describes the lawyer : " There is a certain degree of versatility of talent necessary to constitute the consummate lawyer. INTRODUCTORY. ii When one is approached by a client asking for advice, he should be able to cast aside all private interests, both his own and those of his client, and sit upon the question as would an impartial judge. But, when this work is accomplished, and the case is made up for trial, then the true lawyer ceases to be impartial ; he feels, he acts, he does everything in the place of his client, whose cause is his cause, and whose interests are his interests. Not, indeed, does he do what is dishonest or dishonorable, for such a thing the client ought not himself to do. But, be- yond this, and within the proper and recognized limits, his interests and his client's being merged, he, like the client, ceases to be impartial." ' The lawyer is neither judge nor law-author, though he owes much to their labors. He must know the law ; but to be a successful lawyer he must know something else. He must be master of the art of conducting litigation. He passes his life in following objects different from those of the judge or author. The judge is constantly asking himself: Of these two contending parties which has the right .? and he generally decides according to some rule of lav\'' which he finds applicable. The task of the author is similar. He, also, seeks after the law. Out of the many points decided by the judges he ' Bishop, First Book, § 476. 12 CONDUCT OF LITIGATION. seeks to educe the law as a system. But the lawyer is in search of something else. Fie is partialized to one side, and is continually asking himself: How can I, conforming to the law and those principles which govern human action procure the judge to decide, as the jury to fmd, for my client } He will need, therefore, for his training, a very different book from that which will be a good manual for the judge or author. Here let us contemplate a little the office of a lawyer. And the first thing that strikes us is, that he is always the deputy of another. Flis industry in his chambers, poring over records and documents, and sifting witnesses, his long strain of attention, con- centrated on the opening of the case and the exam- ination of the witnesses in court, and his zeal and sometimes eloquence in argument, are all for some one else and not for himself He labors and argues for his client. The client can manage his own cause, he can prepare it, conduct it in court and argue it if he choose. This is a right which can not be taken away from him, and it is guarantied to him by con- stitutions. But as it requires much study and prepa- ration to fit a man for managing causes, the litigant usually engages the services of one who has made the law his profession. This has often been said be- fore, but it is repeated to draw special attention to the INTRODUCTORY. 13 representative character of the lawyer. He is to stand in the shoes of the cHent, and he is, therefore, as Mr. Bishop has just said, not impartial. He is under the biasing influence of his desire to win. His education has taught him to avoid the sordid and little selfishness that will be seen in many a client, yet he can not stand erect and impartial as the judge. The law-author is under no influence attracting him to take some particular side of every question which he encounters. But the lawyer is identified with his case. Flis cases, that is, his side of his cases, are his idols. His profession has stimu- lated his zeal and his love for his side, and he will often be found far more earnest and aroused than the man whose agent he is. And this is the process of nature, that every precious interest of the world be confided for de- velopment, protection, or defense, to a loving, par- tial and devoted agency. The wife is intrusted to the self-sacrificing care of the husband, children t ) the devoted w^atchfulncss of parents, and the very life of the country is sometimes confided in the hands of the general and the army, all of whom are expected, if need be, to die cheerfully in the cause. No labor can be well done unless it be a labor of love, and the heart of the worker must be in his work: All of these guardians are spurred on by the 14 CONDUCT OF LITIGATION. approval of the world, to do their best for thcii various charges. The affection of the parent and wife will often gain for their loved ones that which they should not have. The general will often achieve for his country that which rightfully belongs to another nation, and thus the client will often obtain for himself the rights of others, or what is the same thing, his lawyer will do it for him. Good and evil are thus mixea together, but the good far exceeds the evil. Our hearts love the faithful guardian, and we can not blame him for succeeding where he should not. Who expects the parent to turn against the child, for all of the many iterations of that Roman father who sat in judgment on his son } The lawyer is expected to stand up as man- fully for his client as the general does for his country, and though failure may overtake both, the harder they strive the more they are applauded. Sometimes a stubbornly contested defeat becomes almost as famous as a victory. This is only the beginning of the matter. There must be love, identity in interest, self-sun ender to the cause, in the parent, the general, the advocate. But society wishes the right, and not a particular lawyer, to triumph, and she mates against him the same zeal, fidelity and love for the opposing cause. And she selects to sit as spectators of the INTRODUCTORY. 15 contest, educated and trained judges, and impartial juries, who are to hear all that the interest and passion of each disputant can say. There is to be free speech and discussion. More than this, the lawyer is free to take any case ; he is free in the preparation and conduct. And the law is as con- fident as ever Thomas Jefferson was, that the right will prevail where reason is left free to combat error. The parties, or their counsel representing them, are the favored agents of the law for this end. The law will have them all unhampered in their search after the right. Those who find are rewarded, and those who do not, are applauded for their search. These considerations elevate our subject. Like the origin and subsequent power of juries, the free resort to the courts, and the unrestrained preparation and untrammeled discussion are all but part and parcel of that freedom which our forefathers brought from England ; and the office of the judge and the sacredness of his judgment belong to that majesty of the law which our same forefathers put above even their liberties in their love. The profession, that is, the existence of a large body of men, who make the law their study and its practice their livelihood, with the experience of the judge, are devised to hold the sca^-^s of justice even. An inferior lawyer with the law for him, before a i6 CONDUCT OF LITIGATION good judge, is an overmatch for the leader of the circuit doing his best on the other side. We have now surveyed with some attention the constitution of courts of justice, and the duties and end of lawyers. To sum up all in one word, as to the lawyer, whatever the jury may fmd or the judge rule, he is to do all and say all that he can rightfully for his client. And, having explained that the subject which we have chosen can not properly have that treatment, which is given by authors to legal themes, we must now, as we begin, presuppose something for our reader. In the first place, we must suppose that he has with labor and attentive care familiarized himself with the most of that law which decides cither questions of right or practice arising in the average daily run of business. We do not drive him away by telling him that he must have the knowledge of a Kent, or a Story, or a Bishop. We only mean that we suppose him to have spent an industrious novitiate of a few years in legal studies, and that, if he does not know the law on any ordinary question presented to him, he is beginning to know where to look to fmd it, and to know it when he docs fmd it. And we must also suppose for him a tolerable aptitude for studying and understanding facts INTRODUCTORY. 17 coupled with powers of logic and- communication sufficient to impart and enforce his views. For most of the controversies in courts are over the question, What is the truth of the facts here ? When that is brought out by the analysis and presentation of the lawyer, there is little more left for either court or jury. What does this instrument, or what do these many documents read together, mean ? What do all these witnesses taken together say 7 Such questions are interminably the problems of the lawyer. They begin when the case is first offered him ; they, 01 many shifting successors of like nature, travel with him to the end. This analysis is precedent to any discussion at all, and it presents at last the contro- versy. What the details mean must first be found out before the grounds of difference can be dis- covered. This faculty of acquiring the facts is that which we often hear lauded under the name of common sense. Anybody who understands v/hat he sees, hears and reads, who understands the people with whom he deals, and sees the springs and motives of ordinary human action and conduct, has the faculty. Having premised, as above set forth, for our reader, we \y\\\ now proceed to the exposition of the more special subject of this chapter. We must brief!}'' show the elements of litigation, and give 1 8 CONDUCT OF LITIGATION. some faint idea too, of how the lawyer deals with them in his cases. All litigation, when attentively considered, will be found to be controversy over either (i) facts dis- puted, or (2) law disputed, or both. And our system erects separate tribunals to try each kind of dispute. The judge decides all disputes as to law, and in giving judgment he is guided by the statute book and authority, and when they fail, as they often do, by the analogy of the law, or, in the words of Lord Coke, " The artificial reason and judgment of law, which law is an art which requires long study and experience before that a man can attain to the cog- nizance of it." Where the statute-book and accepted authority fail, is the arena for law arguments. Many cases, involving great and precious interests, turn on questions which must be decided according to this artificial reason." Disputed facts are usually tried by a jury of lay- men, and their guide is experience and logic, which will be found the great contributors to the law of evidence. These laymen are not left to their own unaided faculties. The manual of evidence is full of counsel for them, out of which the court will often so abundantly instruct them that he will seem to direct their finding. Juries exercise the same faculties in passing upon testimony that other people INTRODUCTORY. 19 do, whether lay or professional. Were. the system of jury trial swept away, whatever successor tried facts, would try them just as juries do now ; the law of evidence would remain, and the science of practice would be the same. A judge often by command- ment or permission of law tries facts, and he then weighs them as a juror would. We must begin now with the distinction between law and fact. And the reader is supposed to under- stand it. It lies at the threshold of practice, and can not be ignored. Every case is lost or won either by the decision of the court or the finding of the jury, or sometimes by both together. And as law is so different from fact, the province of the judge so different from that of the jury, and yet both judge and jury are to work together, neither the distinction of the two nor the union of the two must ever be lost sight of. An adversary may say to another : " I do not agree that the facts are as you contend them to be, and this difference of ours must be decided by the jury. If the jury believe as you do, then I dis- pute the law on which you rely ; that is, I will admit your facts, but I say, that conceded to the fullest they do not in law make out your case' Here, if the jury hold with him, that is enough, for there is no ground on which the legal question can be made, and the case alleged against him is found not true. 20 CONDUCT OF LITIGATION: If the ju;y do not believe with him, and yet the judge holds that the facts they find make no case, then that decision is enous^h for him. The books also speak of mixed questions of law and fact. These are left to the jury with instructions from the court, but it will be seen that they present nothing new. It is enough for our purpose here to show the two elements. Each will be amply con- sidered hereafter. Both elements exist in every case. That which presents no controversy but a legal question takes the facts for granted. The facts are not disputed, and are understood by both parties alike ; and the case, which presents no issue but one of fact, takes the law for granted — that is, both parties understand the law applicable alike. In litigation you either take the initiative oj '^ou stand on the defensive, and your attack 05, defense must be supported upon one or both ol these two elements. The aim of an intelligent preparation is to secure for your client a superior advantage over his adversar)'' on the law, or on the facts, or on both. If by prudent provision you can be stronger on the facts under the law, you will win, or if your case be in the proper construction of the law, which you can show, it may be by great research and exhaustiveness of presentation to be for you, again you have the preponderance. But if you can IN TROD UCTOR V. 21 present superior combinations, both of law and fact, then you arc doubly safe. The right preparation of a case is scientific, and its object is to present for the client at the trial, on those points of controversy, which are cardinal or controlling, the ascendency as already explained. A little observance of trials and arguments will give the reader a clearer insight inLo the subject than many more pages, however plainly written and filled it might be to overflowing, with illustrations. As the student observes the argument after the evidence is all in, he will often detect for himself, the preponderance of the prevailing party, and he will likewise, while hearing discussion of legal questions, begin to see before the judge delivers his opinion, who will win it and how. Napoleon's saying, that the art of war consisted all in being the stronger on a certain point, is accepted as a maxim. So in litigation, there are turning points, either of law or fact, where superiority will win for the party who has it. We care not to go very much into detail here, for the law of evidence and attentiveness to the proceedings of the courts, will amply instruct. But there is something more to say, which we think pertinent. A verdict, like a victory, has resulted from the party's strength in one or more cardinal particulars The victorious party it may be, has, with gre; 22 CONDUCT OF LITIGATION. secrecy and completeness of preparation, provided for iiimself a preponderance of proof on a material point which the other side did not expect combated. Our heavy ships in our last war with England were disguised superiors to their seeming equals of the British navy, in strength. These are instances where secrecy and masking overcome. But oftentimes preparation may be as open and resistless as a game of chess against the loser doomed to a mate in a certain number of moves. Thus, in a doubtful case, when one sees that he can procure the verdict, he may, if he can, make a person related to one of the court of errors composed of three judges, a party, and thus, if but one judge of the two qual- ified presiding favor the verdict, it can not be set aside. It must never be forgotten by him who seeks an ascendency that will give him the victory, that the law does not at all change the nature of man. Mr. Bishop, after reviewing the different sources from which we derive the criminal law, concludes with great vigor : " Besides these authorities, there is another au- thority sometimes apparently disregarded, but never disregarded, in fact — derided it may be, but as certainly bowed before, as the forest tree bows before the whirlwind — namely, the force of the com- INTRO D UCTOR Y. 23 bincd reason and conscience of mankind. No judge ever did or ever could stand long in direct opposition to this power. Before it bend the pre- cedents, are bent the statutes, bends the judicial judgment, as well as the private opinion of the incumbent of the bench."' And the lawyer finds juries too, feeble to resist the same great power. The letter of the law, when against right and justice, often becomes so odious that the jury conspire with the judge to deny it, under some pretext apparently legal. And the lawyer must know well the average views, sentiments, and creeds of mankind. And he must know, too, even their erroneous prejudices, to be used as allies, or to be avoided if need be, and sometimes, though rarely and with desperate risk, to be met and vanquished. Man is governed rather by his feelings than his reason. The frowning judge on the seat of judg- ment has his weak likes and dislikes. Lord Camp- bell narrates of Lord Tenterden : " The bias which chiefly carried Abbott's mind astray, when it missed the object to which it was directed, was a suspicion of fraud. He had a very indifferent opinion of human nature, and at times seemed to believe all mankind to be rascals. He delighted in ' I Crim Law, § 42, a (4th Ed.). 24 CONDUCT OF LITIGATION. discovering what he considered a fraudulent con- trivance on the part of the plaintiff or of the defend- ant, and in unraveling it. I have heard Scarlett jocularly boast that he got many a verdict by hu- moring this propensity, just giving the hint very remotely to the Chief Justice, and allowing his Lordship all the pleasure and the eclat of exposing and reprobating the cheat." Oftentimes an honest judge is too much un- der the influence of a particular lawyer. Mr. YoRKE, afterwards Lord Hardwicke, was a favorite of the Chancellor, Lord Macclesfield. — " Equity business soon flowed in upon him, partly from his own merit and partly from the favor of his patron, testified in a manner which gave mortal offense to the seniors at the bar. Sergeant Pexgelly in par- ticular was so disgusted at frequently hearing the Chancellor observe, 'what Mr. Yorke said has not been answered,' that he one day threw up his brief, saying, in a loud voice : ' I will no more attend a court where I find Mr. Yorke is not to be answered.' Again, a lawyer may have a bewitching popularity with juries, or a party, or a material wit- ness may be under a cloud, and every one be opposed to him in feeling. There might be thus instances infinite given of such things that influence juries, which they are sworn not to be influenced by, and INTRODUCTORY. 25 making judges to stumble who try to keep from slipping as they walk. The law as written in the text books, and as re- vealed by the reports, is not the same as that admin- istered by judges and juries. The reports, over which we pore, day and night, have no presentations of the faces, character, voices, dress, deportment, and evident bias one way or the other, of the parties and witnesses. The glance of intelligence of a juror not knowing that he is watched, the frown of another, and the smile of still another — all these are missed. But they are signs by which the lawyer has been guided, almost unconsciously to himself. There is no place in the world where the feelings have more unconstrained play than in a crowded court-room during an important and exciting trial. The great crowd goes along with everything, as well as the audience follows the play in the theater, and though the sheriff and bailiffs keep the best of order, that whole throng of listeners perceptibly manifest their approval or disapproval of everything that is said or done. The bar feel this influence — they have brothers and fathers in that company. The judge feels it, too, and he has an almost fraternal feeling for those people out there ; and the jury, why, they came from that multitude ; and all of them, judge, counsel, wit- nesses, parties, jury, and audience are men and 26 CONDUCT OF LITIGATION. women, and like other men and women, have their weaknesses and infirmities, their loves and hatreds, their vices and their many virtues, too. All of them live in their feelings, and these impulsive heady feelings are ever running away with their reasons in unguarded moments. And thus is there a different law administered at nisi prius, from that which is found in Blackstone and Story. And this law must be learned by him who would be a successful lawyer. He must study these fountains of human action and conduct. Especially, when he is weighing the chances of litigation, must he take them all into account, anticipating and estimating as well as he can. So much have we set down in this, our introduc- tory chapter, to our first book. In its follov/ing chapters we will discuss in detail the different ele- ments of litigation, and the duties of rejecting offered cases or of accepting and preparing them A CASE OFFERED. 27 CHAPTER II. A CASE OFFERED. When a client, meditating a resort to the courts or the defense of a suit menaced or ah'eady brought against himself, consults a lawyer, it is the business of the latter to investigate the whole matter thoroughly. Every particular of the case must be carefully looked into, with the object, at first, of merely mastering the details fully. Then, after the counsel feels that he is possessed of all the facts, he will analyze them to discover what is the nature of the case, and what points of controversy, if any, are presented. Surely this is the moral, if not the legal duty, of a lawyer when consulted. The necessary investigation may disclose that the case offered is hopeless. If so, it is better that the client be made to understand it at once, and submit himself will- ingly to the inevitable command of the law, than that he be fed with delusive hopes, and at the last be taxed with an enormous amount of fees and costs, most oppressive and unjust as he cannot avoid feel- ing when he loses the matter, whatever it is, in controversy. 28 CONDUCT OF LITIGATION. We must not forget, however, that there are many cases of most ready analysis. They may turn upon a single issue of fact or of law, plain and manifest to every lawyer. The words of a statute may be ambiguous, and the parties may differ as to their meaning; or the issue may be between two wit- nesses contradicting each other. All the investiga- tion in the world will often add no further difficulty nor abstruseness to these easy cases. The duty of the lawyer, when consulted as to these, is, of course, easy, and he can decide at once according to the rules set forth in this and the next two chapters. But we will consider those cases of intricacy and perplexity of details somewhat at length, and to such we now, after this brief digression, return. We will besfin with the advice of Ouintilian: ' Let us allow plenty of time then, and a place of mterview, free from interruption, to those who shall have occasion to consult us, and let us earnestly ex- hort them to state every particular off-hand, however verbosely or however far they may wish to go back ; for it is a less inconvenience to listen to what is superfluous than to be left ignorant of what is essen- tial. Frequently, too, the orator will fnid both the evil and the remedy in particulars which to the client appeared to have no weight on either side of the question. Nor should a pleader have so much A CASE OFFERED. iq confidence in his memory as to think it too great trouble to write clown what he hears. " 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, especially, 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 ad- vocate, but as to a judge. We must never, there- fore, 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 ap- parent 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 advo- cate must look for more than is laid before him. , . . . The client must be questioned sharply and pressed hard ; for by searching into every particular wo sometimes discover truth wdiere we least ex- pected to find it. "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 30 CONDUCT OF LITIGATION. 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 re- lating 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 ap- pearing to .be exaggerated. We may often, too, find a thread broken, or wax disturbed, or signatures with- out attestation ; all which points, unless we settle them at home, will embarrass us unexpectedly in the forum : and evidence which we are obliged to give up will damage a cause more than it would have suffered from none having been offered." ' This passage, both in its exhortation to look with a sceptical spirit into every detail of the case, and its warnings against the biased representations of the client, deserves the meditation of every lawyer. If the advice of the celebrated author was wise in his day, it is more important now. For as the world moves and society advances, there is an increasing attention given to particulars. Everything debated is looked at more closely. Trials, and arguments, and instructions of the court increase slowly, year by 'Institutes, xii. 8. 7-13. {Watsons Trans). A CASE QFFERllD. 31 year, in lcn_a^th. The investigations of the forum, in common with those of science, grow more accurate and careful. And so the directions given in the passage cited, though valuable and suggestive, must be greatly added to now. After hearing the client state his case, and hav- ing elicited from him in the manner pointed out by QuiNTiLiAN, all his knowledge, both as to the facts, and as to other accessible sources of information not yet examined, the lawyer should not rest until he has searched diligently after this missing informa- tion. From his experience and training, important witnesses, documents, and facts wnll occur to him, not thought of by the client. If it is necessary to refer to documents, the lawyer should be satisfied with nothing but the originals, or copies properly authenticated. Witnesses should never be examined by an agent if they can be sifted in person. The client should be required to bring them to some ap- pointed place — if possible, the lawyer should confer with every witness before advising action. The client will often be found wofully mistaken as to their testimony. Besides the inability to grasp and communicate their meaning, he has the bias of his interest and passion to distort his conceptions, and he will generally be inclined to overstate the testi- mony for himself. Very often, too, his ignorance 32 CONDUC'I OF LITIGATION. will blind him to great advantages existing where he shrinks from fancied peril. Granting the client unusual immunity from bias, and coolness and intel- ligence in a high degree, yet he has not been trained to sift and probe testimony, nor does he know the law. Facts immovably supporting his case may exist, and he fail from the lack of professional talent to find them — or understanding some of the testi- mony well, he may build upon a seemingly firm foundation which will sink away so soon as tested by the law, which he does not understand. The lawyer has reasons most cogent for inspect- ing documents for himself and conferring with the witnesses in person. If he neglect this duty he will never know when some witness of his ov/n, or some of his written evidence " mixed with matters that may injure the client's cause," may subvert his case. The author remembers seeing a trial suspended late in the afternoon, the defendant closing with a strong attack by several respectable witnesses upon the character of the plaintiff, who had made a witness of himself to prove some material matters. The plaintiff's lawyer instructed him to come the next morning provided with witnesses to support his character. He came with a cloud. The first, after showing clearly under his examination that he was well acquainted with the charactei in quesrion, A CASE OFFERED. 33 answered it was very bad ; the next made it worse ; and a third, examined in desperation, could find no sufficient lang'uao'e to describe the vileness of the plaintiff and his delight in disbelieving him when under oath. Flere the support of the plaintiff was abruptly stopped. It was difficult for the looker-on to decide which was most amusing — the surprise of the plaintiff's counsel or the disappointment of the witnesses not examined, who manifested in their countenances great eagerness to finish worthily what had been so well begun. The damaging effect of a surprise of this sort is not to be calculated. It strengthens the adversary, it disconcerts the advocate so surprised, and it excites the jury to laugh at him and his case, and to complete the joke by finding against him even when his evidence may preponderate. Mr. WaIiren tells the following, which we give as another illustration of the importance of sifting the witness before placing him on the stand : " Not long ago, on the Northern Circuit, an ac- tion of trespass was tried before Mr. lustier Cole- ridge, in which a nonsuit ensued alnio t immedi- ately 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 plaintiiT himself, who had told him what had happened. The 34 CONDUCT OF LITIGATION. Judge was convulsed with laughter, as also was 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 inquiry from his client what was the name of his witness and what it was that he could prove." ^' A similar carelessness with documents is likewise blamable. Forgeries have been detected by an examination of the paper, disclosing it of less age than the writing purported on its face to be. On a trial of an ejectment, a grant which one of the parties claimed to have received from a county under a state law authorizing it, and which he had put in evidence, purported on its face to be some years older than the Act organizing the county, and was at once seen to be a careless forgery. The blunders — of the party's own witnesses damn- ing his character, of offering a witness who knew nothing but what the plaintiff had told him, and the reliance of a party on a palpably forged grant — would have been avoided if their lawyers had kept their eyes open, and industriously sought, when the cases were offered, to gain all information attainable. These three instances of unusual carelessness are given. In ordinary practice but few parallels of such * Warren's Duties of Attorneys, 169. A CASE OFFERED. 35 supineness will be found. But there are not many k'vvyers who before advising the action of a client study the case enough. The passion and confidence of the client should be disregarded. He should be only used as an index to information, and all infor- mation accessible should be collected, every per- tinent document carefully scrutinized, every possible witness exhaustively sifted and examined, before the lawyer should feel competent to advise to litigate or not. We have o-iven the advice of Ouintilian and enforced it by much suggestion. We will now give the views of an eminent Englishman on the duties of an attorney, which we deem pertinent to this chapter, and we will copy his very words : "Your clients are entitled to your best /er so ?i a/ exertions on their behalf. You are bound to look yourself, and that patiently and thoroughly, into the affairs on which they consult you — however trouble- some and comparatively thankless the task : thank- less I mean, because of your trouble being, as it frequently is, and must be, inadequately recom- pensed. You have undertaken the duty and you must 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 36 CONDUCT OF LIJIGATION. and alarming liabilities. Apply therefore your minds closely to the transaction as though your owti interests were concerned. Do not precipitately act upon your client's statemeuts as to such and such being facts, but ascertain for yourselves if they be facts. It is your bounden duty to do so — and it will not afterward avail you as a defense, when your professional conduct is challenged by a disap- pointed 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 this person, wrote to that, and were duly in attendance at the proper time and place. How intolerably mortifying for you to have your duties delineated with cruel precision by he judge siunining 7tp against yo2i in an action for negligence brought by your client, or by yourself against him for your bill — but unsuccessfully ! See in Wilson v. Tucker, 3 Stark. iV. P., 154, the conse- quence of an attorney's acting on his own client's representation concerning a fact. That client had furnished him with an official extract from a will at Doctors' Commons for the purpose of the client's advancino^ a sum of moncv on the securitv of a legacy bequeathed in the will to the borrower. The attorney relying on the extract with which his client A CASE OFFERED. 37 hticl furnished him, completed the transaction ; counsel preparing the requisite instrument. But it turned out that in the original will there was a clause which did not appear in the extract brought to the attorney by his client, such clause rendering the security utterly 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 Tenterden told the jury : " The complaint is that the attorney did not go to Doctor's Commons and examine the will itself. I am of opinion that by law, it is the duty of an attorney not to content himself with a partial extract from a will tinlcss something pass between himself and his client which shows that it is unnecessary to consult the original.' There w^as contradictory evi- dence given here ; the plaintiff's witnesses saying that the client had requested his attorney to take all pains and examine the will ; the defendant's witnesses, on the other hand, stating that the client had told his attorney that the former had made all requisite inquiries as to the sufficiency of the security, and requested his attorney merely to prepare tlie deed and complete the transaction. The plaintiil's wi nesses, however, were believed — and he succeede Is not this an instructive case .^ Would that attr 38 CONDUCT OF LITIGATION. ney ever again be guilty of this slip-shod mode of doing business ? Assuredly not ; and take care yourselves never to be so. " 1 repeat then, as a general rule, never rest satis- fied with 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 superficial and slovenly habits of busi- ness : 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." * We will transcribe another passage from the same author. " Nothing is easier than to issue a writ ; but if improvidently issued it will by and by come back to you with an awful tail of vexatious and mortifying consequences ! Inquire in every direction into facts; see your client himself ; ask for and look at his doc- uments, and consider them well ; go to the witnesses, or send for them, and hear iox yourself \N\\^\\i^x they can and will really say what your client tells you they can and will ; and if you entertain serious doubts take an opinion on a case, candidly drawn, not slurring over or concealing features which you do * Warren's duties of attorneys, 238 et seq A CASH OFFERED. 39 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." ' Mr. Warren is so great an authority, and he enforces so conscientiously the duty of cautious ex- amination before advising the client, that we ven- ture, in addition to the above quotations, a long passage from another of his works. We believe that its sound matter and entertaining manner will justify us with every reader. Besides, we are in earnest to cut up, root and branch, the conviction too prevalent in America, that a lawyer should accept almost every case offered. In his Adventures of an Attorney in Search of Practice occurs the following : " " I have already hinted that the statements of an angry client are never to be received for gospel. It was long before I discovered this, and yet longer be- fore I also found that his witnesses are rarely to be trusted at all ! The mistake is natural : in the first place one feels strangely predisposed to place ' Warren's Duties of Attorneys, t68. ' Pp. 252-254 (New York, 1874). 40 CONDUCT OF LITIGATION. implicit faith in an honest fellow who gives the best possible proof of sound judgment in choosing you as his adviser; and then one's pocket sympathies are wonderfully excited in his behalf (especially if the case is a heavy one) and after all he must know his own affairs better than we can do ! Moreover, when it does happen that ex siipcrabu7idanti cautela we ask him for his proofs, there never is any lack of evidence. ' Mr. Johnson is a witness ! he heard every syllable ! and Mr. Atkins managed the whole business and can vouch for everything ! ' The next day he brings Mr. Johnson and Mr. Atkins, and they do vouch for everything, and in the state of excite- ment under which they see their employers labor would willingly vouch for ten times more, if neces- sary, and find twenty other witnesses to back them. No wonder if the attorney is deeply impressed with the conviction that all is true and accurate ! especi- ally when the bare intimation of a doubt will be interpreted into the lie direct and resented as a serious insult by the client who came good-naturedly to employ him ! Hence the writ is issued, retainers are given, and it is not till the eve of trial, when costs to a large amount have been incurred on both sides, that the attorney begins to think it strange that so clear a case should be so resolutely defended ; he again catechizes his client, who by this time has A CASE OFFERED. 41 become calm, the clerks become doubtful, where- upon the ' very clear case ' becomes as hazy as the city in November, and the only obvious point re- maining is that the notice of trial should be counter- manded and the costs taxed and paid ! Mtitatis mutandis the same result still oftcner happens on the defendant's side. When, however, the excite- ment has subsided, and the sober certainty of costs only occupies the mind, it is rare indeed to find a client possessed of that amiable disposition that he will admit having had ' value received ' in the sym- pathizing credulity with which his attorney listened in the first instance to the tale of his supposed wrongs ; on the contrary, he blames you behind your back and reproaches you to your face for ' not having set him right ; ' forgetting that had you even attempted it at a moment when he would not believe the possibility of his being wrong, he would have made a quarrel of it, and gone elsewhere for advice." The American reader w^ill recollect that Mr. Warren is in all of the foregoing passages speaking of the duties of attorneys and solicitors The English custom, preventing all intercourse between the counsel and the parties and witnesses, seems in- tended to keep the former immaculate and impartial, just as the Orientals seclude their women < ) keep them chaste. But as every practicing lawyc V-^re is 42 CONDUCT OF LITIGATION. both attorney and counsel, these excerpts describe his duties and demand his attention. If a lawyer only wishes to pocket as many fees as he can, caring nothing for the future, he will turn off no case. The law authorizes him to enlist in almost any kind. He can attack the most meritor ious conduct or defend the most flagitious, provided only that he use legal weapons. But if he be desirous of being a sound and worthy member of the mighty brotherhood w^hich has always ruled this great country, he will only advise a client consulting to bring or defend an action after the fullest examin- ation possible justifies such advice. After surveying his client's evidence most care- fully, there is another important duty to be done. The probable case of the adversary must be antici- pated as precisely as* possible. We shall treat of this anticipation fully in Chapter IV. of this Book. And we will only say now, that before he advises the client to resist or surrender, the lawyer consulted must be satisfied that he has learned as much as he can, at this particular point of time, of the secrets of the adversary. Here is another great similarity of our subject to warfare. No campaign should be resolved upon until the strength and resources of the enemy arc ascertained as well as can be ; scouts and spies arc A CASE OFFERED. 43 used, and all available information is collected from every other source. As we conclude this chapter we refer the reader, in a citation given below, to a passage in Judge Cooley's Suggestions for the Study of the Law prefixed to his edition of Blackstoncs Covivicn- tariesl The author supposes an abstract of title to be brought to a lawyer by a client for his opinion. Nothing appears plainer and easier at first sight than this abstract which is given. But the great lawyer consumes many pages in a most elaborate investigation every part of which is seen to be necessary, before all doubts as to the title can be cleared up, and it can be decided with certainty to be good or bad. The edition is so common that we need not even abridge the passage. It is by far the best instance that we can find, illustrating the pains- taking circumspection with which a lawyer must sometimes collect and weigh the facts of a case before he can feel that he is competent to give advice. ' Pp. xvii-xxi. {iiote u). 44 CONDUCT OF LITIGATION. CHAPTER III. A CASE OFFERED. {JZoiitimted^ The author, if he could by any means in his power, would enforce more impressively the import- ance of the careful investigation insisted upon in the preceding chapter before advising a client decisively, lie asserts most earnestly that : a lawyer should never advise the bringing of an action or the making of a defense until he has good reason to believe he has collected all possible information, and has digested and understands this information. This is no counsel to procrastinate the day of hnal advice. All of this investigation, though made ever so thoroughly, should be made promptly and accurately. A lawyer in practice is one of the busiest of men, and if he have any inclination to sloth, he should correct it as earnestly as he should check himself did he find that he was acquirmg habits of dissipation. lie must learn promptness and quickness. He will often be confronted with emergencies requiring decisive action instantly, and while he should never be in a flurry he should habit- uate himself to rapid and earnest work. A CASE OFFERED. 45 Suppose that your mail is laid on your tabic. There are twenty letters which you are to answer. Now forget everything else — break open a letter — a business letter is usually short — concentrate your mind on its contents — in a few seconds you have not only read it, but also decided the reply necessary. Then answer at once. Go through with all this quickly — never, however, taking up your pen until you have decided exactly what you arc to answer, and never permitting your mind to wander off to any other matter, and in, often, less than a half hour the letters are all answered, and fully answered. And the work is more neatly and carefully done than if you had wasted a whole morning over the task. This instance is given to illustrate the despatch with which a lawver m.ust look into a case. The constant cry to him from all. of his clients is " what will you do 1 " " what must I do ? " He must, there- fore, not only cultivate quickness in doing this work of preliminary investigation, but he must also spur himself into a promptness of deciding. If he had his whole life to study one case he might long defer his advice as Lord Eldox did his decisions. But the press of business, the uncertainty of the lives of witnesses, statutes of limitations, and the interest and passion of clients will not permit him to rest long. 46 CONDUCT OF LITIGATION. In a moment, as it were, he must decide to bring the meditated action or make the proposed defense ; and by as much as he must in the average speedily decide such important questions, by so much must he strive to acquire rapid facihty in mastering all available information before deciding. Supposing that the consulted lawyer has mas- tered the facts of the client's case, and also antici pated as well as he can the case of the adversary— what is his next duty ? lie is next to meditate all these facts to see what is their legal character — or to use the colloquial language of professional life, to see what case they make. What points of controversy are presented, and what will be the nature of the issues raised if litigation is resorted to } Will the issue be one of law or one of fact, or will it be composed of both } I will give two extracts from a late work of Prof. Amos, which will set forth what is to be done for the client. " It seems universally confessed that the whole proceedings [the author is speaking of civil proce- dure] necessarily resolve themselves into two distinct parts — the one concerned with ascertaining the real point or points in dispute between the parties ; and the other with determining the reality of essential facts alleged on either side, and the existence or ap- A CASE OFFERED. A7 plicability of cited rules of law. The first part of the process is a necessary interlude or transitional stage between the vague and indefinite controversy which a sense of injury produces and which passion fans into a (lame and the cold and emotionless inquiry which is conducted within the walls of a court of justice." ' Again, the same author adds : " A litigant needs the assistance of a properly qualified adviser and representative for a variety of purposes quite distinct from one another. Such purposes are (i) information as to the procedure of the court and as to the formal mode of pressing his claim or of resisting the claim or charge of another ; (2) aid in eliciting relevant evidence from witnesses in his favor, and in exposing the irrelevancy, incon- sistency, or general incredibility of the evidence pro- d iced on the other side ; (3) aid in arranging in the most concise and manageable form the facts of his own case as well as those of his adversary's, so as to lay the foundation of a simply reasoned argument in his own favor ; (4) aid in availing himself of the rules of law which are in his favor, and in exposing the inapplicability of those which are or may be quoted against him " ' ' The Science of Law, 295 • Ibid. sii. 48 CONDUCT OF LITIGATION. I might have cited these excerpts later on to illustrate the aim and duties of preparation of the case. But the proper advice to the client, whether he shall resort to the courts or not must be preceded by such an analysis, testing, grouping, and sifting of both sides as are inculcated in the language given of Prof. Amos. After the facts have been carefully meditated, and the lawyer sees all that we have told him that he should see — knowing now both sides — shall he advise abandonment or controversy ? And he is to ask himself if, on this state of facts under the law as I believe it will be administered, are the probabil- ities in favor of success for the case made by the facts 1 If he can answer yes, conscientiously, to this question, then he shall advise litigation under that remedy and in that court which seem to him best. Some cases, when analyzed, present but a single issue — it may be of fact or it may be of law. These are easily handled. The books will decide the one, and a review of the testimony, both of the client as collected, and of the adversary as anticipated, will quickly decide the other. But whether the case be complex or simple, the same test must be applied. Before he advises action the lawyer must be satislied that the probabilities of recovery for the plaintiff, or of successful defense A CASE OFFERED. 49 for the defendant, outweigh those of the opposite result. The lawyer can neither predict nor assure the event — he can, at best, but hope and expect. He is to be governed by probabilities and not certainties and exactitudes. So the general is justified or not in action involving the lives of his soldiers and the safety of his country by the fact that the probabili- ties appeared with reason to favor him or to be against him when he decided and commenced his advance or defense. It would be fruitless to attempt an enumeration of all the superiorities of law and evidence for liti- gants. They are different in different states, in dil"- ferent courts, and on different sides of the same court. The studious lawyer is led to them by his knowledge of the law. He might safely advise a defense for a client against a criminal charge upon a measure of proof that would not avail for him on the civil side of the court, as the commonwealth and government are held to stricter proof than a plain- tiff. Again : in looking into an offered defense to a criminal charge you may fmd that you have to en- counter an accomplice, whom the law requires to be corroborated before there can be a conviction on his testimony, and that you. may by secret preparation and standing ready, overwhelm the corroboration 50 CONDUCT OF LITIGATION. which \v:is fully disclosed at the examination before the magistrate. These two instances are from the criminal law. Again : you may be introduced to a transaction resting upon some cardinal particular, to which there are many witnesses divided by bias and interest, and you can effect a preponderance by call- ing the larger number or by impeaching. Tie of the opposite. Again : you may find that your ad- versary conceives an attack or resistance, holding the lavv other than you can demonstrate *' to be. Here 3'Ou have invincible superioritif^:;. By these instances we have illustrated superiori- ties V'^inning for that party in whose favor they ex- ist. And the caution must be repeated 1 t thi^^y can onl)'- be believed, not knov n, to oxist. Thr- coolest lieaded man may make mistakes, and often decide that he has an advantage wherr^ on the trial he will be shown weakest. But he will do right when he thinks, with good reason, that he has such advantages, to advise acting as they suggest. And a lawyer, to use a colloquial phrase, should tal a case offered when, after such an examination as has been described in the last and this chapter, and after as much anticipation as there may be of the strength of the adversary, he has probable cause for believing that he has for his client superiority either on the law or the evidence, or on both. A CASE OFFERED, Si The character of the good lawyer will be more discussed hereafter, but it must be said now, that he should be neither a timid, despondent, nor an over- sanguine man. Napoleon's maxim as to the gen- eral, can be applied to the lawyer : " The first qualification of a general-in-chief is a cool licad — that is, a head which receives just im- pressions, 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 a -I morally constituted as to see everything through a highly colored medium. They raise up a picture in the rnind, on every slight occasion, and give to every trivial oc- currence a dramatic interest." The maxim further asserts, that such men are not fitted for the commr.nd of armies. It could be said, with truth, that they would not make good scouts, nor make a good reconnoissance, nor could they report the progress of a battle, nor do well any other act, whether important or trivial, which re quires coolness and a well-balanced judgment. Of equal value with this needed coolness, is the qualification of patience. The prolixity of the client and the dullness of the many details which we have urged as necessary to be thoroughly examined should never tease the lawyer. He should amiably 52 CONDUCT OF LITIGATION. stand any strain of his patience, until he is assured that he at last thoroughly understands the case offered. These two qualities of coolness and patience are indispensable. Without coolness the facts will never be accurately understood, and without patience, they will never be all collected. It is often said of some bright and shining law"- yer, that he is never dangerous until he loses his case. The commendation means, that by losing, he has learned to win the case afterwards. If, before he loses, he has paid the fullest attention necessary to his case, and he discovers in the trial resources which he could not have discovered before, and it is thus that he is dangerous, then the commendation is justly given. But, if by proper attention to all of the particulars of the case when it is offered, he gen- erally wins at the first trial, all will agree that he is still more dangerous. Some lawyers permit their case to float at will, and never have any defmite knowledge of it, until an encounter with the adver- sary in court coerces them to an attention and study which should have been given when it w\ts first offered. This encounter often demonstrates that these careless counsel should have then advised an abandonment of the case. We shall soon discuss the plan of conduct. The A CASE OFFERED. 53 lawyer having advised litigation, must decide hov/ he will litigate. He must adopt a theory of the case. Brutus argued that Milo, charged with killing Clo- dius, was to be commended for killing a pernicious citizen, while Cicero maintained that Clodius had been justifiably killed as a lier-in-wait, but with no intention to kill, on the part of Milo. Now Cicero or Brutus was right, as the facts dictated. Or, again, both theories might have been used, and pre- sented under the usual dilemma of contradictory defenses. But the theory, whether of offense or de- fense, can only be satisfactorily chosen, after the fullest study of all the particulars. And we have only time to say here, that the true theory is the sine qua 71011 of all intelligent advice, preparation and subsequent management of the case. And this true theory the lawyer must have before he decides for his client to attack or defend. Other things being equal, that lawyer is the most dangerous adversary who learns, at once, everything possible concerning a case when it is offered, and who declines to take, or takes, prepares and tries the case according to that which he has so learned. Says his biographer : " Burr began practice upon the principle of never undertaking a cause which he ddi not feel sure of gaining. And I am assured by another venerable lawyer of this city, who was fre- 54 CONDUCT OF LITIGATION. quently 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 contemplated, 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 to enlist in no apparently doubtful cause. Such extraordinary coolness and industry, united with the same resolve, in a man far inferior to Burr in mental vigor, would still make him an eminent lawyer. The danger of having him as an adversary would be that he would so seldom lose at all. I shall never forget a famous lawyer of my circuit who was known all over the country when I was called to the bar. He seldom lost a case. He had an air of winning because he could not help it. So great had become his fame as a lawyer, that when he deliberately took a position, there sprung up with the court and the bar, and often with his ad- versaries, the conviction that he was right, and must prevail. He was as strong on the facts before the jury, as he was before the court, on the law. At nisi prizes his conduct was an adaptive flexibility which won every inch of vantage ground, and par- A CASE OFFERED. 55 ried every avoidable attack, until his columns ad- vanced and swept the field. And afterwards, on re- view in the court of errors, he would show that there had been no fault on his side. He had, in his eagerness offered no incompetent evidence, and he had obtained no improper instruction from the judge. The verdict he had won would stand, and evejrybody would see that it was right. He was, all the while that I observed him, busy with politics. This wonder struck me, and I began to study him. My first observation was, that he always seemed to have a plan of conduct fully premeditated, which he would follow amid all the waverings to and fro of the trial. Then, again, I noticed that occasionally some uaexpected turn would develop the case to be totally different from what his pleadings, his opening and his examination of witnesses had shown to be his understanding of it, when he would hesitate a moment in thought. Sometimes he would go on and win ; if he went on at all, it was with confidence ; but if he saw no road to success he would surren4er. Again : I noted how little time he had for preparation. I contemplated and studied him for many years. I found that he joined with an unusually accurate and rapid insight into the law controlling facts pre- sented, a still more wonderful faculty for getting at 56 CONDUCT OF LITIGATION. once to the whole truth of the case. He seemed to guess unerringly at everything on both sides. Next, he took no bad cases. His independence was complete. No importunities, not even those of charming women, could procure his exertions when he had looked into the case and found it un- maintainable. He somewhat vaunted his firmness in turninsf off bad cases. He had not the idle am- bition of the vain advocate who boasted that he could win any cause. But he did feel, with reason, that he could lose no good case ; and he never seemed to desire winning a bad one. His industry was as marvelous as the rapidity of his work. Its only pause was the completion of his task. He used to say that ninety-five per cent, of success at the bar was mere drudgery done at the proper time. I would improve upon his saying, and urge that the most considerable part of success in the law is the drudgery of practice faithfully and in- telligently done. But his example is given here to enforce the im- portance of well understanding a case before taking it. He said, once, that his success had been in the judicious selection of his cases. A CASE OFFERED. 5? CHAPTER IV. A CASE OFFERED {Coriclitdcd^f Having discussed the subject of these chapters fully in the main particulars, we will add a few desultory reflections which we think worthy of at- tention. In the first place, while insirlf'ng so much as we do upon the closest attention possible to all the de- tails of a case presented, before advising the client to prosecute or abandon, we do not wish to be un- derstood as recommending a timid, doubting, or over-cautious spirit We copy from Lord Camp- bell's Life of Chief Justice Hale, a quoted passage which we approve : "He [Hale] began with the sp*x:ious but im- practicable rule of never pleading except on the right side, which would make the counsel to decide without knowing either facts or law, and would put an end to the administration of justice. If he saw a cause was unjust, he, for a great while, would not meddle further in it but to give his advii e that it was so. If the parties, after that, would go on, they were to seek another counsellor, for h" would «;8 CONDUCT OF LITIGATION. assist none in acts of injustice. Yet, afterwards, he abated much of the scrupulosity he had about causes that appeared at first view unjust." The lawyer must recollect that the more con- scientious he has been in his past practice, the more will his clients be disposed to acquiesce in his de cisions. There are many of our profession in Amer- ica whose word is law almost to nine-tenths of their neighbors. And, therefore, while we are so anxious, as we should be, to avoid encouraging foolish litiga- tion, we should be careful, likewise, to avoid, by a premature decision, suffocating a good case. We are neither judges nor arbitrators. We can only decline an offered retainer when it clearly appears that the client has no case. We must be as certain of his having no case as the law requires the jury to be of the guilt of the defendant, before they can convict him. If the case i-^ prima facie respectable, we can not turn it off. If it is even doubtful, we \.x^Ji con- sider of it. Before we can turn it off we must be certain, beyond a reasonable doubt, that it is bad. Lord Eldon, the doubting and hesitating chancellor, felicitated himself that his reprehended dilatoriness and looking at the original instruments, had saved many a landed estate to the true owner which might, but for the wise delay, have gone to the ad- versary. We should permit neither our needed A CASE OFFERED. 59 promptness, and firmness for what we deem the good cause, to deprive a cHent, trusting and confiding all in us, of some right, which better attention might have discovered before we advised him to avoid con- troversy. And yet we must say, that this full knowledge of the case comes rather from industry and a resolute taking hold of it at the very first, than from any long delay and lazy contemplation. We will next treat of ethics, and especially of the often-urged right of the client to command the services of his lawyer, and to hold him to the final prosecution of the case, and control his conscience. After much search, we find no authority so satisfac- tory as David Paul Brown. We wish that we had space to p^ive all his chapter on forensic ethics and etiquette." We will take a few pages from that chapter, accompanying them with such comments as we deem necessary. After setting forth the usual oath of tlie lawyer on his ndmissio'i, reprehending the s Tong language of Bro'jgham and Erskine, as to the duty of the counsel to stand by his client to the last, he commends the doctrine of Lord Hale, who would not have anything made by the advocate to look better or worse than it deserves, and, still more, approves the following language of Chief Jus- tice Gibson : * 2 Forum, 25, cf seq. 6o CONDUCT OF LITIGATION. " It is a popular but gross mistake to suppose that a lawyer owes no fidelity to any one except his client, and that the latter is the keeper of his profes- sional conscience." . . . " He violates his official oath when he con- sciously presses for an unjust judgment, much more so when he presses for the conviction of an innocent man. . . . The high and honorable office of a counsel would be degraded to that of a mercenary, were he compelled to do the biddings of his client, against the dictates of his own conscience." And the author of the Forum continues : " A lawyer is not morally responsible for the act or mo- tive of a party in maintaining an unjust cause, but is morally responsible if he does it knowingly, how- ever he may * plate sin with gold.' We do not speak now of the mere impression or opinion of counsel, but actual hwzuledge. Suppose an action brought to recover from a widow or an orphan all they have in the world, and the counsel is informed that only half the money is due by the husbana or father of defendant, as copartner with plaintiff", and these facts could not be shown by the defendant, what lawyer would claim to recover in such a case } We repeat it, a lawyer is bound to refuse a case that he believes to be dishonest, or to retire from it the moment he believes it to be so. And he is also bound to avoid A CASE OFFERED. 61 litigation unless it is necessary ; and, when necessary or unavoidable, always to adopt the least offensive means for bringing it to a satisfactory result." . . . " A lawyer has a right to take all the advantage his learning and talents afford him, in order to sus- tain a good cause or defeat a corrupt one ; but he has no privilege to substitute his talents or learning for the honesty of a case and thereby render iniquity triumphant. When he has doubts as to the correct- ness of his positions, he may fairly incline in favor of the party he represents, and sustain his views by every authority and fact that the law or evidence may supply, leaving it, of course, to the court or jury to ratify or reject them. He is not to decide the case, nor is he morally answerable for the cor- rectness of the motives by vrhich he is influenced." . . . . " A client called suddenly upon counsel and laid a heavy fee upon the table. ' I am,' said he, ' the defendant in a case v.hich is now going on, and I wish to engage you ; and I hope you will treat the party with some severity, as he has practiced great severity upon me.' ' Before I take your fee,' said the lawyer, ' let us understand each other ; do you wish me to treat the plaintiff with severity whether I may think he desei-ves it or not 1 If I think he de- serves it, I shall do it without your stipulation ; and if I think he does not deserve it, I shall not do it for 62 CONDUCT OF LITIGATION. any fee you can pay.' Of crurse the client saw his folly, and the case proceeded upon the fair and honor- able terms of the counsel. " A lawyer, we assert, is not bound to take every cause that is tendered to him — he is no man's man. He is the adviser, but not the slave or serf of his client. H' . not o; Jy not boi to take a case which he clearly perceives to be unconscieniious, but he is bound to discoit-rao;e its institution." And the same auti . ^Iso fully concedes .'■i'^ righl of ;he client to hav ,; lis dc.tbtf ' cause t/rjd. He narrates : " A young member of the bar, who has since reached some ' ^^mence • n n applied to in a first case, w'v^ch was somewhaL complicdoCd and dcubtful, waitcv' • the late Mr. RawlE; stated the case, and remari.^J at the same time, that he thought 't a bad one. 'You are,' said Mr. 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 Mr Brown pro., ds to quote approvin '7 the well- known views of Judge Sharswood, that cases are to be decided according to the fixed and unbend- ing rules of law, and not according to any mere notions of justice held by courts and juries. This matter can not be made plain in words^ Legal rights are the due of every client from the A LA Si: OFFIiRED. 63 courts, and, of course, from the lawyers, who are but officers of the cc rt, and can not put themselves above the judges. Tlie most just debt will be barred by the statute of limitations. Many an in- strument for which loney has been paid, or for the setting up of which there exist other claims of the strongest moral nature, are avoided every day by the courts. The client can command of you that you give him the benefit of all such points. But you are not to ii-ip him by fraud, nor, by either the suggestion of falsehood or the sup- pression of the tnth, make out such a case of nets as will entitle him to -: "ilse verdict. Or, to state it in other words, if the facts, that is, the whole facts, give Jiim a case \ .lich the law of the land recognizes as a case, the client may command your services to vvin it for him — but you are not to alter the facts to nelp make a case which is not the tr th. But, as we have already said, this matter is not always clear. You will often meet with cases which must be decided r "her b)^ your intuition and con- science than your understanding. The question often is akin to those others of sound discretion like the reasonable doubt or exemplary damages, or the power of a judge to grant a new trial on the con- ceived contrariety of the verdict to the evidence. 64 CONDUCT OF LITIGATION. I advise that whenever you declme a case, be- cause you do not deem it maintainable, that, after disclosing fully your reasons, you advise the client to sound other counsel. You can, with truth, remind him that probably you have become preju- diced against his case, and are, therefore, a bad law- yer for him. And keep a record of the cases you decline after full investigation, and their final results, and you will find that in the long run you take ten cases which you should not, to one that you turn off mistakenly. There is, however, a class of lawyers who are too busy and too much in the court-room to orig- inate any business. They are engaged, generally, after the issue has been made up. The responsibility of bringing the action or making a defense has been undertaken by a junior associate. The senior should, at his earliest opportunity, look carefully into the case, and satisfy himself that it is main- tainable. If it is not maintainable, he should decline it. Often, however, the ability of the junior is more than a sufficient guaranty of a good case to the senior. Before closing this chapter we will briefly notice a class of cases that often give us much trouble. A client will now and then offer a case, which the law, the evidence, and right all support, and yet A CASE OFFERED. 65 we see that it can not be gained in the courts. Juries, judges and witnesses, will band against us irresistibly, we know, whenever we dare risk a trial. Sometimes our client is a corporation which the whole community thinks is too rich and powerful already, to have anything more even of its own. Again, the client may belong to a class of society almost proscribed by that class which furnishes jurors, as in some parts of the South it is foolishness for a white to send his case to a negro jury, and in others a negro can not have justice from a white jury. And in other states workingmen may be in the ascendant, and incline to deny fair verdicts to merchants and professional men contending with one of their class. It will now and then be sheer folly to advise a client to carry his just cause into court. Here the lawyer can not blame himself for not being able to cure society of its evils. He must look about him, and do what he can in advising his unfortunate client. Often a high-toned bar is of great avail against these unjust prejudices, and a composition approximating the right of the case can be secured by their intervention. And some- times a reference will be submitted to, and thus the client acquire some measure of justice ; far short, it may be, of his due, yet as far exceeding 66 CONDUCT OF LITIGATION. what he could expect to obtain in court. If you can see no help of this kind for him, you should advise him to decline controversy. But he can command your services. You can not, in con- science nor in law, refuse them to him. The law orders you to render to him cheerfully your ad- vocacy of his just cause. Your conscience dictates that you should, if called, struggle to set up down- fallen right, and almost reproaches you because you believe your fellow creatures incurably worse than yourself And society demands that you protect her, and heal all of her wounds. We chance to have lived a rich experience in this matter. When the courts wherein we are practicing were re-opened in middle Georgia, after the war, it was idle to carry any case of a negro before a jury of the whites. We witnessed such an unbroken succession of adverse verdicts against colored litigants, that, as Jefferson did over slavery, we trembled for our people when we reflected that God was just, and that his justice could not sleep forever. But the bar stood faithfully by their colored clients. Even the lawyer assigned by the court to defend the negro pauper did his duty fearlessly, and went down bravely under the unjust conviction. The leading members of the bar spoke out, unan- imously, on all occasions permitting, advising the A CASE OFFERED. 67 people to a better course. At last this persistence began to tell. The tide turned perceptibly in 1870, and after a while it was no wonder to see a negro get full justice from a juiy of the whites. In war the post of danger is the post of honor — in the practice of the law often the post of unpopu- larity is the post of honor. The weak, the defense- less, and the oppressed, are clients that you must stand by to the death. Whether they are high or low, rich or poor (for unpopular clients come from every rank of society), they are to you a sacred charge: You are to effect for them the very best possible. If you must conscientiously advise them — after failing to obtain any amicable adjustment such as we have mentioned — to abandon their rights, by reason of your conviction that the probable event will never repay the cost of the controversy, make everything clear to them. And if they still insist upon their guarantied right of appeal to the courts of justice, you have no choice. Go forward ! You struggle not alone for them. Fear not to be called Quixotic. The brave soldiers who fall in the forlorn hope, have not thrown away their lives. You fight for the most precious interests of society. Grudge not the toil, labor and failure, rewarded as it seems with only present obloquy. It is the sure earnest of the everlasting amelioration of our race, 68 CONDUCT OF LITIGATION. that men will take fire and imitate actions brave and good. Your example inspires others. The true and good begin to organize. When their organiza- tion is complete, no power of injustice opposed can stand against them. We contend that the principles which we have laid down in this chapter should govern every lawyer to whom a case is offered, whether he be some hard- working junior first consulted, or a more eminent counsel retained after forensic controversy has beo'un. But, says the young lawyer, how can I ever find out all about a case as you direct me 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 under- stand what case they make ? We say to him, that he must observe and imitate, for a while. His old preceptor 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 will, also, if he be a born gentleman, make many friends of older lawyers, who will help him with good counsel, and prevent him from making a fool of himself. 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 PREPARA riON. 6 PREPARATION. 137 his own ]:nowledge, he can not be made to contra- dict himself. And thus a lawyer must know his case, so that he may be able, at once, to meet any attack of his adversary, though he may not have , anticipated it. He will be able, though, as soon as he understands the attack, to show that it is incon- sistent with his knowledge of the case. The grand result of all thorough preparation, where the lawyer has been patient, attentive, indus- trious, and free from passion, is this ready and accurate knowledge. We see many of our brethren groping about, as it were, in the dark, in search of something, they know not wiiat. It is this which they are almost unconsciously looking for. That lawyer, w^ho has such a knowledge of his case, can only be put down by equal knowledge, and the right opposed. Then he should not complain. He should only rejoice. But, in intricate cases, he who has got by heart the details, so that he is able to present them all from points of view innumerable, is an overmatch for an adversary who only has a smattering of the case, though the right is strongly with him. How does this victorious knowledge come ? It is almost character. The self-collected thorough-bred lawyer, exempt from all vanity, who saves all of his passion for the jury, who hardily looks any unpleasant anticipation full in the face 138 CONDUCT OF LI FIG AT ION. and is all the while testing in cold blood the san- guine representations of clients and their partisans and his associates, will acquire this mastery in a time, often incredibly short. If a man wishes to win by trick and perversion, he will study trick and perver- sion, — if he is one of those over-sanguine, who can not believe that any disaster can overtake, he will build perilously on hasty assumptions, — but, if he really understands that a trial is a thorough discus- sion of the questions made therein by the law and the evidence, he will seek to have the requisite knowledge for that discussion. And this knowledge begets the " vigorous verdict-getting counsel." ' How empty and vain are the talents of perver- sion, arrayed in a respectable court, against this knowledge. The great lawyer whom I sketched at the end of Chapter III. of this Book, was so little solicitous for the last word, that he would never manoeuver nor wrangle for the conclusion of the argument. He often made a gift of it to his adver- sary. But it was a world's wonder when he lost a good case. His knowledge was so accurate, thor- ough, and ready, of any case that he was trjang, that no misrepresentation or perversion could escape him. * Campbell's Life of Lord Brougham, 256 (I-ondon, 1869). 'I'he words quoted were the panegyric of Mr. Clarke, leader of the Midland Circuit, PREPARATION. 139 The preparation that the great Rufus Choate habitually gave his cases, should be ever held up before the young lawyer. The following is extracted from Mr. Parker's Reminiscences : " And yet, what laborious; and careful, and plod- ding preparation, he made in the plainest of cases ! " When occasion demanded, he was the readiest of men : and he undoubtedly did enter upon cases without much preparation. " But, ordinarily, his preparation was elaborate. He loved to exhaust the subject. His respect for the Bench led him to make thorough preparation of the law of his case, and when his case was for the jury, he remembered the twelve who were to pass upon the facts, — for he always, as he said, went in for the verdict. " Hence, his preparation of a case was generally thorough. " I have known him hold two consultations with his junior, preparatory to a hearing in the probate court on some motion for a new bond ; and I have known him equally elaborate on a motion to amend some interlocutory decree in the superior court! " Those who have been his juniors in the prep- aration and trial of cases, will remember how he made them work." ' * Reminiscences, iii. 140 CONDUCT OF LlTIGAriON. The great advocate's biographer quotes Mr. Bell's account, which we transcribe : " Mr. Choate's method of preparing his cases for trial and argument, depended so much upon the varying circumstances of the cases, that it is very difiicult to say, that he had any particular plan. But this always was his practice v/hen he had time for it. " If for the plaintiff, a strict examination of all the pleadings, if the case had been commenced by others, was immediately made, and so far as practica- ble, personal examination of the principal witnesses, — accurate study of the exact questions raised by the pleadings, and a thorough and exhaustive prep- aration of all the law upon these questions. This preparation completed, the papers were laid aside until the day of trial approached. At that time a thorough re-examination of the facts, law, and plead- ings, had to be made. He was never content, until everything which might, by possibility, bear upon the case, had been carefully investigated, and this investigation had been brought down to the last moment before the trial. "If for the defence, the pleadings w^ere first examined and reconstructed if in his judgment necessary, and as careful an examination of the law made as in the other case. PREPARATION. 141 "In his preparation for the argument of a ques- tion of law. he could never be said to have finished it, until the judgment had been entered by the court. It commenced with the knowledge, that the argument was to be made ; and from that time to the entr}' of the judgment, the case never seemed to be out of his mind; and whenever a thought appropriate to the case occurred to him, it was noted for use. It Vv^ould often happen, that the case was ncarl}^ reached for argument at one term of the court, every possible preparation having been made, and the brief printed; yet the term v/ould end, and the case not come on. The former preparation then m.ade but a starting-point for him. At the next term a fuller brief appeared ; and this might happen several times. The finished brief of the evening had to be altered and added to in the morn- ing ; and it frequently went into the hands of the court with the undried ink of his last citations. If, after argument, a case, uncited then, Vv'as discovered, or if a new view of it occurred to him, the court was instantly informed of it. " And so in the trial of a case at nisi priiis. Every intermission called for a full examination of every law-book which could possibly bear upon questions already before the court, or which he pro- posed to bring before it. No difficulLy in procur- 142 CONDUCT OF LITIGATION. ing- a book which treated upon the questions before him, ever hindered him ; it was a mere question of possibility." ' Again his biographer says of Choate : " In the preparation of a case, he left nothing to chance, and his juniors sometimes found themselves urged to a fidelity and constancy of labor, to which they had not been accustomed." Of Aaron Burr, one of the most successful of all lawyers, Mr. Parton, in his entertaining (and almost romantic) life, says: " In preparing his cases for trial, he was simply indefatigable. While there was an authority to be examined, w^hile there was evidence to be procured, while there was an expe- dient to be devised, his efforts were never relaxed. And he gave no rest to his adversary, pursuing him. with notices, motions, and appeals, improving every advantage and exhausting all means of annoyance ; until, from very weariness and despair, sometimes, the enemy has capitulated. Colonel Burr not only labored himself to the uttermost of the pow- ers of man, but he had the art of exacting from his assistants an equal diligence. There was no resist- ing his requirements. Assistant counsel would receive notes from him at midnight, when they were asleep, demanding instant replies, wdiich Brown's Life, 394, et stq. PRE PARA TJON. 143 obliged the drowsy men of law to refer to author- ities and examine papers. On the day cf trial, he had his evidence, arguments, and authorities, mar- shaled in impenetrable array. Every possibility had been provided for. No man at the bar could ever boast of discovering a fiaw in his preparation, or of carrrying a point against him by surprise." ' Non-preparation, or hasty preparation, against thorough preparation, is the mob against regular troops, and another example of empirical knowl- edge matched v/ith scientific and rational. Good luck and fortune will som.etimes lead the unprepared to success, but in the average and main he will be beaten, and hardly understand why he has been beaten. We must guard the reader, however, against conceiving us to advise him, that all things can be anticipated and provided for. We mean no such thing. The lawyer approaches the trial just as the general goes to the field, stored with knowledge of as many particulars appertaining to the business in hand as can be acquired, in order to act, and be ready out of this knowledge to meet with new movements of his own, any of his adversary's. Before closing, we have one thing more to say. No adversary is so weak as he who fumes with ' Parton's Life, 147. 144 CONDUCT OF LITIGATION. impatience at any opposition or hint of danger Some lawyers seem to believe that Providence sends them nothing but good cases, and resistance infuriates them as though the adversary were attack- ing the foundations of all justice. But the good law- yer, the veteran of a thousand fights, the cool- headed champion, who has time and again won against odds, stands on his knowledge of the case as he sees it from his side, and he never feels sure of victory till he has conquered. His preparation nor watchfulness never cease till the finale of the case. His own ingenuity teaches him that the resources of . the other side may have never been rightly estimated, and it will be the last thing that he will do in the world to underrate the case of his adver- sary. And he leans not on providence nor good luck, nor the manifest justice of his case. He stands on the law and the evidence, as he believes they will affect judge and jury. He essays to 'have combinations superior to those of the other side. PLAN OF CONDUCT. 145 CHAPTER VIII. PLAN OF CONDUCT. We have again to remind the reader who has noticed the heading of this chapter, how awkward it is to be turning that into a series which is non- serial in its nature. The plan of conducting the attack or defense has been gradually shaping itself in the mind of the lawyer, through the whole investigation of the case. He has caught, at different times, glimpses of all of its several features, and his conception of the whole and its parts has grown more and more definite as he has gone along. Yet it is but right to put off its consideration to the last. Its v/hole details should never be defin- itely determined, until the lawyer has assuredly sat- fied himself, that his mastery of the case is thorough, and that he well grasps every point of controversy. Then, and not till then, will he put the last touches to that which has been nearly finished, it may be long ago. The general, before he takes the field, makefi his plan of the campaign ; and so, by a metaphor which will not, we hope, be deemed too bold, we 146 CONDUCT OF LITIGATION. can speak of the plan of a lawyer's attack or defense. In the talk of the bar, we have another word. Says one of his adversary, " I do not yet see what is his line." Thus Ciioate is reported by Mr. Parker, as saying of Prof Webster's counsel, that they " should settle on their certain line of defense, etc." The word however, which we use is by far the best that now occurs to us, and is very supetior to the more commonly used word, "line," which is a metaphor almost unintelligible. In common with all other business, litigation should be conducted on the plan that promises the most and risks the least. The prudent speculator divides his risks ;so with the Insurance Companies; so with the general ; and it is the same with the the farmer, who diversifies his crops and thus multi- plies the sources of income and diminishes the chances of loss. The essential of a good plan of conduct of a case, is that it embrace all the materials of your side, whether they be law points or combinations of facts, — such materials being logically arranged in their true natural order to support your own intended ag- gressive or defense, and to anticipate the operations of the adversary, in order to overwhelm or to beat him back. Or wc may define more shortly, that the plan of conduct is your intended method of using PLAN OF CONDUCT. 147 the results of your preparation to vanquish your adversary. Napoleon said that the whole of the art of war was in being the stronger on a certain point. The whole of the art of conducting litigation is like- wise in being the stronger on a certain point. The plan of conduct marshals for this. At Marathon the Persian army, compared with the Greeks, v/as as the sands of the sea-shore. The Greek commander, with his handful of free-born and his handful of slaves, came out confidently from behind the walls and offered battle in the open field. He did not dis- pose, as a mediocre general would have done, his best troops, but he posted his slaves against the formida- ble Persians and Sacians in the center who vv^cre the chief reliance of his enemy, w^hile he arrayed on each wing those free-born volunteers who, we are told, were aflame with an incredible ardor of fight- ing. There they faced countless hosts of undis- ciplined savages, who had been put where they now were by the enemy — not anticipating the novel dis- positions of Miltiades — to only be out of the way. The Greeks came forward on the run, and the two armies closed. The massive body of Persians and Sacians, with resistless momentum, broke the en- countering line, and at once was chasing fugitives everywhere in its front. But the free-born Greeks, counting the numbers before them only as so many 148 CONDUCT OF LITIGATION. tokens of vxtoiy, were likewise advancing, spreading panic and flight before them. The Persian center found that it had spent its force in destroying a few of its feeble opponents, and in trying to catch the rest. Out of breath, it now saw two victorious Greek armies in its rear, and all of its supports going tx) pieces. The world knows the great battle by heart. The Persians and Sacians also fled, and the immense horde of invaders paused not in their camp, but were beaten to their ships. Many generations have meditated over the battle, and they discover no better dispositions that could have been made of the Greeks. Had Miltiades ranged his choice men against the center, he would have been crushed at once. But, with a genius to which all subsequent civilization should do reverence, he evaded the threatened destruction, and indirectly overthrew what he dared not directly meet. His plan was perfect — that is, it contained all of his strength rightly marshaled to sustain itself and meet the formation and plan of the enemy. His rapid charge to engage was a divine part of his plan. It was a mask that concealed his prudent dispositions, and left no time to the enemy to con- form his own to meet them. We will give the plan of another battle — that of Epaminondas at Leuctra. Instead of evading the PLAN OF CONDUCT. 149 strength of the enemy, he met it with a superior force in front. His army appears to have been smaller in numbers than that of the Spartans and their allies, opposing. The Spartans had been the terror of Greek and barbarian, and Epaminondas, rightly judging that the main battle would be offered by these redoubted veterans, held back the rest of his line, and resistlessly bore down the charging Spartan phalanx by a counter charge of the Sacred Band, backed and propelled by a column of fifty shields from behind — a formation as superior to that of his enemy as an iron-clad is superior to a wooden ship of equal guns. The circumstances of each general show each plan to have been proper. Miltiades w^as right to dodge the first attack of the massive center, in or- der to have it at more advantage afterwards, and Epaminondas was right to engage at once the chosen force of his enemy in direct conflict. But the reader must not consider these grand instances as more than distant analogies. The variety of warfare far exceeds that of litigation. To say nothing of anything else, the very ground of the battle-field is in itself always a new study, while the lawyer generally meets the same human nature in the jury-box and on the bench. As we have already said, cases vary greatly in ISO CONDUCT OF LITIGATION. the number of points of controversy which they present. After the maturest study, some will be found to consist of but a single unavoidable issue Here the plan needs no study, for it is apparent that the contest is to be only one of strength and not of skill. But in the great majority of cases a bundle of controversies, as it were, will often be found. If you observe the average of trials, you will seldom see one involving much property or important rights turn on a single question. You will generally find both the plaintiff and defendant instinctively seeking to increase each his favorable chances by presenting more than one point to be decided, and by making a skillful arrangement of these points. To make our meaning plainer, we will now give instances. And we will begin with some of the less complex plans. The first is Mr. Bell's narrative quoted by Prof Brown, the entertaining biograoher of Choate : " He had a plan for the trial of every case to which he clung from the start, and to which every- thing bent. That plan often appeared late in the case, perhaps upon filing his prayer to the court for special rulings to the jury, . . . "In an insurance case wc were for the plaintiff. A vessel had been insured for a year, with a war- ranty that she should not go north of the Okhotsk PLAN OF CONDUCT. 151 Sea. Within the year she was burned north of the limits of the Okhotsk Sea proper, but south of the extreme limits of some of that sea's adjacent gulfs. The defendant set up that there was no loss within the limits of the policy ; and numerous witnesses had been summoned by both parties — on our side, to show that by merchants the Okhotsk Sea was con- sidered to include the bays ; on the other side, to prove the contrary. A protracted trial was expected, and everything had been prepared. As we were walking to the court-house, he said, ' Why should we prove that we were not north of that sea ? Why not let them prove that we were ? What do you think of it .? ' ' It seems to be the right way, cer- tainly,' said I. ' Let us do it ; open the case on that idea.' I did so, and put on the mate to prove the burning at a certain time within the year. No cross-examination followed, and we rested our case. The other side were dumbfounded. They had ex- pected that we should be at least two days putting in our case on the other theory, and had no wit- nesses at hand. They fought our plan stoutly, but the court was with us, and they were obliged to submit to a verdict in our favor. The case lasted one hour." We give another instance of a most simple plan : 152 CONDUCT OF LITIGATION. A local statute allowed a certain number of years of adverse possession of land under a bona Jide claim of right to give the occupier a prescriptive title, and the defendant had occupied for three times the length of the statutory term. The plaintiff, who was without doubt the true owner, if this formidable prescription set up could be overcome, brought his action of ejectment against the occupier, and after making out, as he easily could, "2^ prima facie case of title, closed his evidence. The defendant then proved his long occupation by many witnesses, him- self among the number ; but by cross-examination knowledge by the defendant of the plaintiffs title, and his recognition of the same, was clearly shown, at a time not long preceding the commencement of the occupation, and many other facts were brought out, which, taken together with the knowledge and recognition, completely disproved the alleged bona fides of the adverse possession. The defendant's counsel seemed to anticipate that the point of the plaintiff would be to show that he had been under a certain disability, and thus avoid the prescription, and to meet this the defendant was well prepared — but the plaintiff's counsel had, by closely attending to his business, found out that he could make the proof already mentioned by the witnesses of his adver- .■>ary. PLAN OF CONDUCT. 153 These are simple plans, but such are not there- f(jre to be despised. The greatest results and the most unexpected successes often follow the execu- tion of a plan so simple, that then all the world wonders how there could ever have been any doubt The plan of battle at Leuctra was no more in- tellectual exertion than that last narrated. The twenty-one years' adverse occupation looked as formidable to every one as the Spartan prowess seemed to all Greece — and yet when we coolly con- template what was done to both, we see that the unexpected victories were no great cause of boast- ing. An over-confident adversary was merely shown in each case that what he thought was his resistless strength, was but a shell, imposing its appearance for substance upon people who did not choose to look closely. The grand element of all true courage — that greatness of mind which has led safely out of what seem the most complicated involvements of peril — is simply daring to look at things coolly for yourself, and with your own eyes. When this hardy inspec- tion and undaunted gaze are coupled with the nature which never acts save with an intelligent purpose, there is formed at once the basis of the genius which leads to success on the held and in the forum Nine-tenths of what appeared difficulty ins'iipfirablc r54 CONDUCT OF LITIGATION. or a maze of complications, turn out to be mere shadows, portentous only to the imagination, as * black vesper's pageants " are to children. But the circumstances of some cases are com- plex, and coerce the adoption of a plan correspond- ingly complex. We will give an instance : An old man, some years before his death, made a voluntary conveyance of a parcel of land to one of his sons. After the death of the father, intestate, the land was sold in bankruptcy as the property of this son, and was bought by A. At this sale notice was given by an agent of the creditors of the de- ceased father, that they claimed that the conveyance to the son was void as against them, because made with intent by the father to evade the payment of his debts, and also because of his mental incapacity to make the deed at the time. The bankrupt was then a party defendant to a bill brought by the creditors of the intestate, and he had answered the same, insisting on the validity of the deed of his father. This sale in bankruptcy, and the purchase by A, was before the final decree in the bill men- tioned. A was put into possession, and the repre- sentative of the intestate, who claimed to be a receiver, recognized his right to the land. Some weeks afterwards a decree was had in the bill, authorizing a sale of all the property of the in- PLAN OF CONDUCT. 155 testate, including the parcel sold in bankruptcy at private sale by this so-called receiver. The receiver, who had been pretending to hold the land since the sale in bankruptcy under A, as A's agent, sold it without A's knowledge, and put B, who purchased, into possession, thereby ousting A. The receiver pretended to be acting under the decree. A brought ejectment against B, and his proof is ar- ranged to show his plan of attack. 1. Pie proved his possession under his purchase in bankruptcy. 2. He then showed title in the intestate, and his voluntary conveyance of the same to the son, after- wards bankrupt : when he rested. But after the defendant had put in his evidence, the plaintiff re- plied. 3. He met the attack on the voluntary deed with much evidence of mental capacity, and many circumstances rebutting fraud, and also he showed that all of the heirs-at-law had, in writing — which he claimed to have the effect of a deed — conveyed this land to the son mentioned— so that if the deed of the father were void, still the son had the title of the heirs-at-law, on whom the title of land devolves on the death of the ancestor. 4. Pie then put in a pertinent record, which he contended showed that the alleged receiver was 156 CONDUCT OF LITIGATION. never validly appointed, certain requisites of a statute not having been complied with. When this record was carefully examined, there was little doubt of the correctness of his position. This plan exhausted every resource of his evi- dence. If A could maintain the validity of the voluntary conveyance, — that is, that it was not fraudulent, and that the father had capacity to make it, — his purchase was undoubtedly good. The evi- dence on this point was very contradictory. Then, if defeated here, if he could maintain his position that he had the title of the heirs-at-law, he was again on his feet, and on firm ground for the encounter. The jury might believe the voluntary conveyance fraudulent or void, by reason of the mental incapacity of the father — yet if they were told from the bench that the writing, claimed to be a deed from the heirs-at-law, was a valid deed, then the position of the defendant, standing on the invali- dity of the voluntary conveyance, was turned. The character of the writing, claimed to be the deed of the heirs-at-law, was debatable. But if the plaintiff failed to support the deed of the father, and what he claimed to be the deed of the heirs, though he could no longer show title to the premises in dispute, he could still recover on his prior possession, provided he established the inval- PLAN OF CONDUCT. 157 idity of the receiver's appointment. Here the plain- tiff appeared impregnable. The statute had not been complied with. The appointment was invalid. The purchaser, therefore, who had ousted A, was a mere tresspasser. And A could recover of him upon proof alone of his possession, such possession being, as it \^?iS, prima facie legal. The I St and 3d parts of the plan were added last in the preparation, and the 4th itself was not thought of until long after the action had been brought. It was only made to appear by a careful perusal of a voluminous and almost illegible record. When the suit was brought, A relied entirely on the validity of the voluntary deed, and his purchase before the decree, which has been mentioned. I have been particular to set forth this plan in detail, for it is worth much to illustrate the different matters already treated ol In the first place, it is well to observe that the plaintiff's case involved questions of law as well as of fact. The character of the writing, claimed to be a conveyance of the title of the heirs, was purely a question of law ; and so was the question of the validity of the appoint- ment of the receiver. The other questions were for the jury, though under the direction of the court as to law. Thus the court would tell the jury that if the father's conveyance was found by them to be 158 CONDUCT OF LITIGATION. ip'/alid, then it was for them to find if the plaintiff had made out his case of prior possession by credible evidence. So, too, the court would direct the juiy to find the voluntary conveyance valid or not, as the evidence dictated. If the plaintiff's positions were all right, he had two grounds of recovery, to wit, his prior legal possession and the title of the intestate conveyed to his son. If the defendant overcame the voluntary deed, then the plaintiff might again have two grounds of recovery, to wit, the possession already mentioned, and the writing claimed to be a convey- ance of the heirs-at-law to the son. But if he failed to maintain the validity of the conveyance of the father and that alleged of the heirs, yet when he demonstrated the invalidity of the appointment of the receiver, he was sure to re- cover, as his prior legal possession was scarcely dis- puted. So, then, his attack on the validity of the appoint- ment of the receiver was his strongest ground. If he made this good, there was no possible chance left to the adversary ; if he failed, the controversy was at least doubtful. Perhaps it should be said that the probabilities would then be against him. In military language, then, this question of the vali- dity of the appointment of the receiver could be FLAX OF CONDUCT. 159 called the key to the field. The plaintiff's counsel was right, therefore, in more carefully meditating this attack than any other part of his preparation. It was the real turning-point of the case, and many parts of a long record had to be put rightly to- gether to show the invalidity. Pie demonstrated this invalidity, and then won without further effort. His adversary had taken the validity for granted, and had carefully essayed to get the preponderance of evidence on the issues as to the deed of the in- testate. He was struck with astonishment when the plaintiff's plan was disclosed, and was manifestly taken by surprise. It is further to be remarked that this plan not only combined every point of the plaintiff's claim, but it had the further merit of completely anticipa- ting and providing against the defendant's case. We are now ready for an analysis of different plans. And they will be found, on reflection, fewer than the reader supposes. There are, I believe, but two sorts of simple plans, that is, of plans for single issues. The first is where a plain and apparent issue of fact or of law is presented by one side and accepted by the other. Thus the plaintiff may say that the defendant owes him the money claimed on a contract declared upon. The defendant, if he deny such contract, accepts the j6o conduct of litigation. issue of fact tendered, and that party having the pre- ponderance of evidence is entitled to the verdict. Or the defendant may admit the contract as set out in the plaintiff's pleadings, but may urge that it ap- pears to be illegal on its face. Here, then, an issue of law is presented, which will be settled from the statute-book or other pertinent authority. These instances are evidently similar in nature — for neither side is surprised ; and the contest is a fair and pre- meditated trial of strength. But the second sort of simple plan is where the issue presented is refused, and another presented, on which you are superior to the adversary. There may nearly always in this be somewhat of surprise, if due secrecy is observed. Mr. Parton tells of Aaron Burr an instance which will illustrate both the evasion and susprise spoken of: "He delighted to surprise his adversary, to lay an ambuscade for him, and carry a case by an ingenious stroke, before the other side could recover their self-possession. It is related that in an ejectment suit to recover a valua- ble house in New York, the opposing counsel had expended their whole strength in proving the gen- uiness of a will, supposing of course that that was the only point susceptible of dispute. What was their surprise to find that Burr's main attack was against the authenticity of an ancient deed, one of PLAN OF CONDUCT. i6i the links of the title, which, having never before been disputed, had been provided with merely for- mal proof. The jury pronounced the deed a forgery, and Burr's client lived and died in possession of the property. Two courts have since pronounced the deed authentic." This kind of plan resembles the turning manoeuvres of warfare, by v/hich an offered battle-ground is declined, and an engag<"ment forced on other. And it may apply to issues of law as well as to issues of fact. I witnessed once the trial of a case brought by some shippers against a railway to recover back an alleged overcharge by the railway. The suit was brought in the county where the produce had been shipped, but the charges had been paid in a distant county by the factor of the shippers. The counsel for the railway demurred on the ground that it ap- peared that the court had no jurisdiction, the statute saying that suits should be brought against railways in the county where the contract was mad<^ He argued that if the railway was liable for the over- charge to the shippers, it was upon the contract im- plied by the law to refund the illegal exaction, and that as this overcharge was paid in the other county, the contract was implied or made therein. The plaintiff's counsel conceded in reply that he might have sued in the distant county on the implied con- i62 CONDUCT OF LITIGATION. tract, but he averred that the law had implied an- other contract for his benefit, which was that the railway would not charge above the chartered rates, and that this contract was implied — that is, made — in the county where the produce was received, and that the gist of his action was for a breach of this contract. Now, however the reader may think the law to be, this dodge, as it were, of the plaintiff's counsel will illustrate that what I have said, viz., that issues of law presented may be evaded and others presented. The second sort of plans I cannot better describe than to say that they embrace more than one issue or point of controversy. They may present both ques- tions of fact and questions of law, and they may directly meet the issues raised by the other side, or dodge them, as we have suggested. The same plan may directly meet the issue on some of the points of controversy, and evade it on others. The instance we have already given in this chapter of the eject- ment brought by A against B, illustrates this. We can only say that these plans are of infinite variety, and only become familiar to the practitioner after long experience. If you will observe veteran lawyers, you will see that generally their plans are less complex than those of their younger brethren. And the simpler PLAN OF CONDUCT. 163 the plan can be made, the better, provided nothing important be sacrificed. The lawyer must weigh everything presented, and reject from inclusion in his plan everything trivial and slight. Here is required the peculiar judgment and acumen of the lawyer. His judgment must dictate to him what to throw away and what to preserve. He should use every point which seems likely to win. There cannot be too many such used. For instance, if defending a surety, he could support by evidence the illegality of the consideration of the contract declared on ; that the debt had been paid ; that the principal had been indulged by the plaintiff to the detriment of the surety ; and that the right of action is barred — the counsel should plead all, and prepare on all. He is wrong to throw away a single chance of success. But if he can only support one or two of these, let him stand upon them alone. The simplest plan, that is exhaustive, is the best. It is easier under- stood and retained in mental grasp, and therefore more easily executed. Nothing so enfeebles a law- yer as to cultivate a tendency to make every possi- ble point. Practice and observation, together with reflection and study, w^ill teach him the difference between cardinal points and those which are not. But we would not have him hypercritical and over-nice. While he must reject everything from i64 CONDUCT CF LITIGATION. his plan of conduct which is unimportant and not controlling, he must not be too severe a judge against his client. He must give him the benefit of all reasonable doubts, to use the language of the law of criminal evidence. ' CHAPTER IX FLAN OF CONDUCT. {Continued^ There are some other matters which we mast discuss before leaving the subject of Plan of Con- duct Though our reflections will be somewhat desultory, we think that they will be found of use. We have before this hinted at the importance of secrecy. No prudent general will disclose to the enemy, in ordinary circumstances, by anj unguarded act, his plan of operations. Secrecy is not of ne?ir so much importance in the conduct of litigation. There are many controversies, everything relating to either side of which a piactical lawyer will see at the first glance. There are many cases where the issues are so simple, that the pleadings can contain no secrets. It is idle, then, to talk of secrecy here. But where there is any intricacy, where there is un- certainty in the law, where there evidently appear great resources of evidence at the command of the adversary, you are blind and foolish to disclose your plan. Your client is entitled to all advantage that you can lawfully win for him. You are not to forge precedents to dupe the judges, or suborn witnesses 1 66 CONDUCT OF LITIGATION. to make fools of the jury. But your client having entrusted his business to you, can demand rightfully of you that you procure for him the most favorable judgment possible under the law as the judges hold it, and the evidence as the jury see it. You may procure by honest argument a decision from even a respectable court of errors, which another will be in haste with good reason to reverse. You may get a verdict, which, though sustained by the evidence adduced, is yet strongly and decidedly against the weight of that which could be adduced. You should get this decision and this verdict, provided you do neither dishonestly. If you win by superior skill, by superior vigilance, you have done right, though the real right of the case be against you. You are not the counsel for the other side. Now these advantages you can hardly win if you disclose your plan beforehand. You will find in nine times out of ten that you had better be reticent of your counsels in the extreme. But there are some cases where you had better boldly disclose your plan. We have in the last chapter quoted the opinion of Choate given before the trial of Frof Webster, that his counsel should put forth some theory of defense to allay the rising popular excitement. This is an instance where weakness and infirmity might possibly have been PLAN OF CONDUCT. 167 helped by the disclosure of the plan of its defense. Sometimes you will find your hand so strong that it will appall your adversary to show it to him. This is often the case in fighting fraud. The judg- ment of the practitioner must tell him when to dis- close his plan. But he will generally find it safer to keep it to himself. There is another question which often puzzles the lawyer. He must decide whether his attack or defense shall be bold or not. Sometimes he is on the unpopular side, and too much violence will repel instead of attracting sympathy. Again he will be often conducting cases where timidity will ruin him. Here all the counsel that I can give him, is, that he must be guided by the circumstances, and his own knowledge of human nature. But generally an attack or defense made fortiter in re, siiaviter in tnodo is the best. Stand up to your adversary firmly, but with no boasting, or show of violence or over-confidence. This is the best demeanor ijen- erally. The prudent general provides beforehand his way of retreat to be used in case of disaster. Every contrivance possible to diminish risk and uncer- tainty must be resorted to in the conduct of litiga- tion, and the preparation should look beyond the trial, and provide, if it can be done, the means of i68 CONDUCT OF LITIGATION. obtaining a new trial in case of defeat. As the lawyer becomes more and more familiar with the case, he will find suggested to him along its whole track, how his adversary, or even the judge, may be surprised into some action which will render a new trial probable, if the verdict should result against him Perhaps he is aware of certain peculiar views entertained by the judge, of law, which he is confi- dent the court of errors will not sustain, which he may turn to account ; and he may often use what he believes to be the mistaken views of his adversary to advantage. The author thinks from his own ob- servation, that the most of his brethren, even when conducting important cases, trust rather to their own ingenuity during the trial to provide for another trial, than to any premeditation and plan made be- fore. But surely it will be better by far to piece out the ingenuity, however great, exercised during the short time that the court is engaged with the case, with the usually greater results of deliberation made quietly beforehand, for a much longer time. Besides, during the trial the mind is too intensely occupied with the principal issue then before the court, to well attend to anything else. We will give two in- stances of preparation beforehand of grounds for a new trial : While A was preparing an ejectment for the PLAN OF CONDUCT. 169 plaintiff, he apprehended that it would be attempted to examine himself as a witness against his client. He anticipated this because of the defendant's counsel's connection with a case not long before tried, and reported, in which this counsel had won a great triumph by examining the plaintiff's lawyer, who without objection had testified that he had no authority, nor had his client, to use the lessor's name in that suit. A had two demises in his declaration, and it is unnecessary to narrate the facts which made it appear desirable to him that the defendant should offer to make a witness of him as already stated. Suffice it now to say, that A felt sure that such testimony could not put him in worse plight, and that he could provide no better ground for a new trial in the event he lost the verdict on the merits of the case, than by using this opportunity, and he carefully premeditated his action. He re- solved to make a frivolous objection to his own competency, Vvdiich he believed the judge would overrule. On the trial, after the plaintiff made cut his prima facie case by evidence, supporting only one of the demises made, and had closed, the dt fendant's counsel offered to examine A as a witness to prove that the suit was brought for the exclusive benefit of the other particular lessor, whom he knew to be the reai plaintiff, although the demise laid I/O CONDUCT OF LITIGATION. from him had not been supported by proof, and against whom he conceived that he had a good de- fense, and the offered witness objected, urging " that as title had been shown in the other lessor, this was an attempt to prove it out by the mere opinion of a lawyer." The objection being un- meaning, was overruled with some warmth, and A was forced to tell who was his real client. There was a hard fight on the evidence. The defendant did not connect the lessor for whose sole benefit he had proved by the lawyer, as recited, that the suit was proceeding, with his defense by any other evidence, and he got a verdict. But the court did not hesitate to grant the plaintiff a new trial, when it was urged that this action of the judge violated the rule of law protecting the confidential communications between client and attorney. Had A objected on the true ground, the excellent judge would have at once sustained the objection, and another person present at the trial who would have been a competent witness, would certainly have been thought of by the defendant, had matters come to extremity. This witness at the next trial was in a distant state. The judge was led into this error, by unconsciously supposing that the court of errors had also decided in the case mentioned on which the defendant relied, that the counsel wiio PLAN OF CONDUCT. 171 testified below was compellable to testify. Had the true objection been stated, this delusion would at once have been broken up. A, when he drew his motion for a new trial, only complained generally that the judge had overruled his objection. The court, fmding no valid reason to support the judg- ment forcing the counsel to testify, as the error was material, and, had it not been committed, the verdict under the remaining evidence ought to have been for A, as the other demise had been supported, could do nothing else than grant a new trial. The next instance that I will give is more mgenious still, and must have been premeditated with great care. I gathered it from an argument which I once heard in a court of errors between two of the ablest and cunningest lawyers I ever knew. The local statute permitted a complainant in a bill in equity to waive discovery, and after such waiver the defendant's answer v/as not evidence. The com- plainant in the case which I heard argued, who was a remainder-man, had exhibited his bill in equity against the tenant-for-life, alleging a forfeiture of the life estate by reason of the waste of the tenant. The bill stated that the complainant could prove particular allegations without the oath of the defen- dant. The case had boen tried by a jury, as is the custom in that state, and the counsel for the tenant- 172 CONDUCT OF LITIGATION. for-life had contended below, as his adveisary stitcd above, that discovery being waived as to the particu- lar allegations that could be proved without it, and some of these allegations being material, and not having been proven, the complainant had not made out his case. But the jury, under the inslractions of the court, found for the complainant. The defen- dant moved for a new trial ; and it was the judg- ment refusing this motion, assigned as error, which I heard argued. There were several points made and discussed with zeal and ability ; but a new trial was granted the tenant-for-life, on the ground urged more strongly than any other, that his discovery had not been w^aived expressly, as the judges held such waiver must under the statute be made, and that therefore his answer was evidence, and had not been overcome by two witnesses. There was an apparent but not a real waiver of discovery in the complain- ant's bill. This formidable attack on the defen- dant-in-error was masked under the ground in the motion, that the verdict was against the evidence. The counsel for the life-tenant, though wonderfully quick-sighted, had never anticipated the real design of his adversary, who had the ingenuity to exactly reverse his position and still hold on triumphantly to his case. Another point which we must discuss, is the PLAN OF CONDUCT. 173 difference between aggression and defense. Acci- dent sends his retainer to the lawyer. He must attack to-day and defend to-morrow. In the* main, though there is some difference, the principles of a good conduct of either are the same. If you will observe a large number of the profession, you will find that you may divide them into two classes, and in one of them you place lawyers who attack better than they defend, and in the other you will place those who defend better than they attack. Occa- sionally you will see a member of the profession who will nearly always be found of counsel for the defen- dant, and you will also see another who is so prone to action that he seems to get all of the sides which demand taking the initiative. Mr. Parker tells us : *' Not a great many years ago, a leading lawyer at the Suffolk bar retired from the active practice of the- court-room, and among other reasons for that retirement he gave this : ' What's the use going on term after term fighting cases for corporations with Choate to close on me for the plaintiff. If I have fifty cases, I shan't gain one of them." 1 often wonder that if the process of differentia- tion for which so much is claimed will not in time assign some of the bar to plaintiffs, and the rest to defendants. There are many cases where the ques- > Reminiscences, 53. 174 CONDUCT OF LITIGATION. tion of taking the initiative or replying to it depends entirely upon what side you have. You are restricted and must play the part given you and do nothing else. But in those cases where there is variety and possibility of many combinations, you will observe in those who manage them, a difference in the de- fensiv^e character. There is a defense which in its nature is really aggressive. The initiative is as- sumed at a certain point, often realizing the saying of Napoleon, that " a strong attack is the best de- fense." When you marshal the proofs to overwhelm the main witness of the plaintiff, you are acting on the offensive just as much as was the plaintiff when he opened. Then there is a more cautious defense. As you observe it, you seem to satisfy yourself that its pur- pose is merely to draw the game. He who con- ducts it never drops the defensive. He only meets and tries to hold his own on the cardinal points. Now, as you should do nothing without a purpose, and as you should add to whatever can be vv^on in the heat of conflict all the advantages of premeditation, a plan is better than no plan. And this is why generally the advantage is with the attacking column in warfare. That has something definite and premeditated to do. The other side PLAN OF CONDUCT. 175 only seconds the initiative of the attack, and will scarcely ever anticipate it exactly and precisely. In games, in campaigns, and in litigation, to have the move is worth something. And, therefore, when a defense can be made aggressive, other things being equal, it is preferable to the unaggressive. If chances are equal, and we give the adversary the move, if he makes no misplay he will beat. But if the defense can be turned into a real attack, as where the defendant has good cause of a cross- action, the opportunity should never be lost, even if the action be nothing more than slightly ancillary to the defense. The plaintiff controls his action. He can dismiss and renew, or shift to some other remedy or forum, and avoid trials ; but the defend- ant who is nothing but a defendant, only avoids his adversary pushmg for trial by showing some provi- dential cause. So, then, we advise that, other things being equal, an adversary should get the initiative if he can. If he is plaintiff, let him hold to the initiative if possible, and keep the move through the whole conduct. The defendant, other things being equal, should make an aggressive defense if he can. The minute his aggression begins he has the move, and if planned judiciously and executed skillfully, his offensive may lead to victory. An unaggressive 176 CONDUCT OF LITIGATION. defense requires more vigilance, and far more sudden promptness of decision and action, than an attack. It is only to be adopted when there is no chance of avoiding it. Still as it must be made now and then, it should be carefully meditated by the lawyer. Fancy yourself assailed by a boxer, and you merely parry his blows. This is the unaggressive defense. Let him, however, attack you, and if you defend until you catch him off his guard and knock him down, this is aggressive defense, and much safer for you than the other. Before we close, we must insist that the plan should be most clearly understood. Nothing con- duces so much to the clear understanding as that it be neatly drafted. We have heard ov'^er and over Bacon's saying that " writing makes an exact man." The careful and painstaking lawyer will often before a trial have drafted his plan again and again. But we will return to this subject when we treat of briefs. We will now treat somewhat at random of some other topics which we are in doubt whether to place under the head of this and the last chapter, or under those preceding, more especially belonging to prep- aration of the case. Sometimes you can help your case by procuring special legislation for it in matters not hampered by PLAN OF CONDUCT. 177 the Federal or the State constitution. Thus the Legislature may remit a forfeiture to the State, or a fine. There are many controversies which you had better dispose of, if you can, by an arbitration or reference. It is generally a prudent rule to arbitrate bad cases if possible, and decline to arbitrate good ones. Arbitrators, both professional and lay, are ever disposed to compromise ; and if all of the right of the case is manifestly against you, still you will nearly always be awarded something in an arbitra- tion. You should by all means encourage amicable settlements between litigants, provided they can be made without too much sacrifice. But it has been my experience that the weak, the infirm, the poor, the widow, and the orphan, succeed better in their cases when the whole country can note the trial from beginning to end. To refer the case of an in- experienced man of submissive disposition, who is matched wnth a shrewd adversary, to the arbitration of laymen, is generally to make the strong man stronger, and the weak man weaker. But there are some cases, involving the most delicate matters, which should never be brought to a public trial if it can be avoided. The whole community would be scandalized at the exposures. When the honor, the reputation, the happiness, or domestic peace of your 178 CONDUCT OF LITIGATION. client is at stake, you must govern him with a high hand. His property or the amount of your fee should be postponed to the interests which are so much more important. Here is possibly the best place for recommend- ing amicable settlement between parties. Let it be your always-kept rule never to bring an action or file a defense until you have been refused a settle- ment that you regard reasonable and right. Ask the other side to confer with you, solicit an offer of set- tlement, be ready to offer terms yourself Always get from your client as large discretion as possible. The disease of the judiciary in England and America is slowness. The parties grow old before obtaining their rights. Witnesses die, and the death of parties often throws everything into inextricable confusion, and there is still more confusion when a counsel who is the sole repositary of the secrets of a long preparation falls in the harness. It is better for the court always crowded with business, it is better for the parties, better for the lawyers, better for society that there be as speedy settlement as possible of all cases that can be settled. Note often, the almost unconscionable sacrifices that a shrewd business man will make to avoid litigation. I feel strongly inclined to discourage arbitration. References to the lawyers of the parties I like PLAN OF CONDUCT. 179 better, but there is even in them too much com- promise of certain rights. A settlement with your adversary's lawyer, when it can be obtained, is better. If you can meet each other as gentlemen, and not as sharpers, intending to effect a settlement which shall be on the whole just and fair, you will often be astonished to find how you can satisfy yourselves and rejoice your clients. The celebrated lawyer whom I have so commended at the conclu- sion of Chapter II. of this Book, made more effort habitually to settle cases than any other lawyer whom I ever knew. If you were on the other side, and known to be favorably inclined to such adjust- ment, he would sound you as soon as he fell in with you, and if he found the way clear he would with great frankness disclose his hand. Then he v/ould consider what you had to say. After brief reflection he would always begin : " Well, this is the right of the case," and he would go on to state what he thought the law demanded. He would always con- cede you something " for peace sake," as he would say. With this frankness and earnest desire to end at once all strife that he could, he amicably disposed of an amazing amount of litigation. He made a large fortune at the practice, and I have often thought that most of it was the accumulation of fees that he had received in such cases. Nothing could I So CONDUCT OF LITIGATION. exceed his candor both to his adversary and to his own client. To the latter, he would say when can- vassing a proposed settlement, " Possibly I might be able to recover a better verdict for you — but then there are the chances of a verdict worse than this. Your time and your peace are worth more than this probable concession. I advise you to settle as proposed, but I tell you that you command me, while I can only advise you." The client generally heard this little harangue with weariness, and before he was half done had given him full powers. The lawyer who rejected his advances, had nearly always reason afterwards to repent. It w^as but seldom that he ever after one of his proposed settlements was refused, failed to recover more than he had offered to be content with. The lawyer should always be vigilant to discover chances of compromising controversies. Let him guard himself against a disposition to concede too much, nor should he make of himself a stickler for small things. And confer only with the lawyer of the other side. Never take any advantage of a layman. Seek foeman worthy of your steel in his lawyer. It ought to be made a penal offense to procure an inadequate settlement of a matter litiga- ted from a party, without the knowledge of his lawyer. When seeking to effect a settlement, you PLAN OF CONDUCT. iSi must be prudent and watehful. You are to disclose no secrets which may hurt you. And that which is of the greatest importance to you, is that you well understand the character of your adversary. If he is tricky, or unreasonably contentious, you had better do nothing more than to make him an offer But if he is one of those gentlemen who fill the bar of America everywhere, you can often, when you see that he can not meet it, tell him the strength of your case, and thus more speedily effect your end. I do not know what has been the experience of my other brethren of this great republic, but it has been mine to find in the amicable settlements (not references) of lawyers, less diplomacy and less strife to outwit, than in any other attempted adjustments. So much on the subject of Plan of Conduct CHAPTER X. BRIEFS. After some hesitation, I have decided to de- vote a chapter to the subject of Briefs. Were I writing for an English public, I would have given only a paragraph to the matter, inserting it in some fit digression somewhere in the chapters on Prepara- tion. The passage from Sellon which will be cited hereafter, would have been the bulk of what I felt it necessary to say. But the importance of a brief for the trial of cases at nisi prius is so little under- stood in this country, that I feel justified in treating the subject at length. The word brief, in America, is hardly ever used in the comprehensive sense that prevails in Eng- land. Here a lawyer generally calls the skeleton of his law argument his brief. The different proposi- tions and arguments therein contained are accom- panied with citations of pertinent authorities. In many parts of our country you will never see a lawyer provided with any written preparation, ex- cept when he argues a purely legal question, and you will seldom see him then furnished with what BRIEFS. 183 he calls a brief, unless he is before the court of last resort. You are led Lo believe that did not the rules require him to furnish the court with his points and authorities, that he would there trust entirely to his unaided memory in making his argument. But in England the brief is prepared by the attorney for the use of the counsel who conduct the trial. Sellon gives the following advice to attor- neys as to their briefs : " The briefs should contain an abstract of the pleadings, a clear statement of the client's case, and a proper arrangement of the proofs, with the names of the witnesses. The grand rule to be observed in the drawing of briefs, is con- ciseness with perspicuity." ' Another author of high authority, citing and approving the passage we have given, says : " Previously to the trial, a brief should be prepared by the attorney for each party, and de- livered to counsel, containing a copy or full abstract of the pleadings, a clear statement of the facts of the case, with such observations as occur thereoni and a proper arrangement of the proofs, with the names of the witnesses. The great rule to be ob- served in drawing briefs, as it is well expressed in a late useful publication, consists in concisencis with perspicuity.'"" The reader will see that a brief prepared by an '2 Sel. Pr. 459. ''Tidd Pr. 799. t84 conduct of LITIGATION. English attorney for the counsel, is much more than a mere list of law-points supported by authori- ties cited. It may not contain a single authority, and still be voluminous. It is such a statement of the case, as that the case may be understood there- from and conducted. It resembles more the state- ments of facts made out by a reporter of a decision for publication with the opinion, than anything else that I can think of now. But the reporter's state- ment contains the case of each side. To define shortly, the brief should set forth in an orderly ar- rangement the whole results of the preparation of the case. Surely we should not be made to pause here, and demonstrate the good policy of making a brief. The merchant enters all his transactions as they occur in his day-book, and at last these transactions appear digested, and accessibly arranged in the ledger. The lawyer himself keeps his books from which he can, whenever necessary, make out a lucid statement of any matter between himself and his client or a partner. The wisest, and even the most ready advocates, always premeditate their speeches, and if they do not speak holding their notes before them, they have the plan of their speech well conned, and by heart. Shall the lawyer who is a licensed irregular, who has no appointed times of his BRIEFS. 185 own, who is in his office at his hasty preparation to-day, and a hundred miles away attending a dis- tant court to-morrow ; shall he, who as fast as he loads his memory afresh, has the burden at once thrust out by another, trust to that battered and ill-treated memory, to carry the pleadings, the evi- dence, the anticipations of the adversary's case, and the plan of conduct ? Had he the marvellous memory of Niebuhr, he might dispense with a brief. Lieber, in his reminiscences of the historian, who, be it understood, had never visited Greece, says : "When I had just returned from Greece, and described certain spots to him, he would ask for by- ways, remains of wells, paths over high ridges or other minute details, as if he had been there. As many of the objects for which he asked exist still, and I had seen them, I was amazed at his accurate knowledge. ' Oh,' said he, * I never forget anything I have once seen, read, or heard.' " Is there to-day an American lawyer accred- ited with such a memory } If he has such, he can manage his cases as well without as with a brief. The lawyer, if he has done as we wish him to do in his preparation, has kept memoranda, lucid and containing everything, however concise. Fie has 1 86 CONDUCT OF LITIGATION. noted down pertinent authorities, and the legal posi- tions which seem to him controlling. He has kept notes of the evidence both of his own and what he anticipates will be that of the adversary. As he sees that he approaches the close of his preparations, he should make up his brief We have already- illustrated the making of a brief from the posting of the ledger. The brief contains the labors of the lawyer in his case digested. After being made up, another, if of equal ability, could take it and try the case almost as well as himself To do this work well, requires much mental ability. Mr. Warren, in a late work, addressing attorneys and solicitors, expresses himself thus : " I can not quit this part of the subject, without suggesting the propriety of making logic one of the early studies of those preparing for your branch of the profession. Only consider how necessary it is to have some acquaintance with it in order to be able to deal successfully with such cases as I have iust been speaking of ^[Patent and Copy-right cases], — nay, to deal with any^ — with all — cases requiring clear and methodical treatment by you in order to set them in proper order, and in a right direction for legal adjudication. How charming is it to the finest intellect to have to deal with a brief, however ponderous and dishearting in bulk and BRIEFS. 187 appearance, which on being opened displays the possession on the part of the attorney or solicitor who drew it up, of those qualifications which I am now urging on you : the language elegant, simple, and nervous ; disfigured by no senseless repetitions, no vulgar colloquialisms, by nothing impertinent or intemperate : and lucidus ordo shining in every page. How much of the triumph achieved by the most eminent counsel, is not really shared by the the framer of such a brief as I am speaking of ? and who could not have been surpassed even if that very counsel had sat down himself to draw up the brief from which he was to speak." ' A brief is to be made up gradually. The mate- rials may be long collecting and arranging. It is best to keep all these memoranda on loose sheets of paper. Never write on but one side of the paper. Your paper-knife and paste-bottle will save you a world of tiresome transcription, if only your notes are on one side of the paper. Your can tear out and insert to your heart's content in any partic- ular page without destroying anything on another, if only one side of the paper is written on. We will copy two pertinent passages from Mr. Bishop : " But, as just suggested, there are things wdiich * Warren's Duties of Attorneys and Solicitors, 66, i88 CONDUCT OF LITIGATION. must be taken down for future use. They do not so much occur when one is eno;aged in the study of the law, as when afterwards he enters upon its practice. If, for example, a brief is to be made out in a cause which is to be argued on a question of law before the court, the person making the brief needs to note down the authorities as he finds them. Then he collects his points, and writes them down, points and authorities, together. In like manner, if a lawyer is looking up a question on which to advise a client, he should make such references as will enable him, if litigation is afterward carried on, to go on with the case without a fresh search into the books for what is already found. This is a labor-saving expedient." ' The next passage is a vigorous objection to com- monplacing in a bound book : " But if one is taking notes which he intends afterwards to use about any literary performance, or a law argument, it is certainly worse than a waste of time to transfer them into any form of bound book. Let him take them on slips : the matter on no one slip extending beyond some minute division of the larger general subject. Let him put in the left-hand margin of each slip, a word indicating the particular topic to which the slip relates. Then ' Bishop's First Book, § 423. BRIEFS. 189 when he comes to use his slips, he can distribute them according to these topics, as a printer distrib- utes his type according to the letters. He can next re-distribute the matter of the several topics, and arrange and re-arrange it, and work as much order out of what was chaos as he chooses." ' It is worthy of note that the distinguished author falls in both of these passages into the Amer- ican habit of restricting a brief in meaning to the skeleton of a law argument. But now let us go somewhat into detail. All the English authorities wiiich we cite in this chap- ter agree that, first, the brief should contain a copy of the pleadings, or to use the words of Tidd, " a full abstract." Some contend that the brief should contain merely copies. This will undoubtedly be the rule preferred in England, where the briefs arc not prepared by counsel. The attorneys are of in- ferior grade, and, of course, their superiors would be jealous of any exercise by the inferiors of the power of selecting for them in matters so important as the pleadings. Thus Choate is represented as insisting that a person who was to report the testimony taken in a certain case, should set down every- thing just as it fell from the lips of the witness. Of course Choate would put his own meaning on 'Bishop's First Book, § 426 190 CONDUCT OF LITIGATION. the evidence, and that meaning, when educed, may have been very small as compared with the volume of the report. An English counsel would likewise prefer to abridge the pleadings for himself. But I am talkinof to Americans, to counsel who make their own briefs. What is best for them ? I insist that as the form of pleading becomes year by year here of less importance, and the privilege of amendment is almost unlimited, that it is, in the first place, a useless waste of time to give more than enough of the substance of the pleadings to understand the issue. Suppose that there is an action to recover a pro.Tiissory note, and the defendant pleads iion est factum. A brief abstract of the note as the cause of a:tion, followed by the statement that there is a plea of 710/1 est factuvi, is the substance of the v/hole pi adings, and states the issue with precision. It is neater and more saving of time to yourself, or your associate who may consult your brief, to state the pleadin .s as briefly as I have done. But there are other cases where the issue made by the pleadings can not be stated so briefly. Of course the counsel making up his brief must have it lucid and intelli- gible. Let him read the pleadings carefully, medi- tating them for himsilf, and then let him abridge ihem as much as he can, so that he still present their substance fully. This neat abridgment of the BKlEfS. ^g\ pleadings he should not regret, when afterwards it has made him able to assist the court to a more speedy understanding of the case. But of course we must insist that this work of abridging be done accurately. The lawyer can never dispense with accuracy. All of his success, his most wonder- ful feats of eloquence, his brilliant achievements of professional skill, are founded upon the utmost accuracy of knowledge of details. These particu- lars of a case must all be thoroughly known before there can be any sound generalization. And the pleadings are as important as everything else, and must be mastered with the same application and correctness as the evidence. So let the lawyer re- view his abridgment of the pleadings, till he can answer with confidence to himself that it presents the whole issue. To give the substance of volumin- ous and illy-arranged matter is a great gift. How often do we find that a head-note misrepresents the decision. A copyist does not much exercise his brains, but one who can accurately compress a dif- fused and disjointed statement into its smallest intelligible substance, has one of the greatest talents of the lawyer. Next, the brief must contain a statement of the client's case. The most ordinary fault here is that the feelings of the advocate unconsciously color and 192 CONDUCT OF LITIGATION. warp the statement. A real lawyer soons learns to suspect that all narratives of clients are misrepre- sentations. He will rarely accept any of them as wholly true, till he has applied his infallible tests. Self-interest excites the client with desire to paint his case better than the reality. Many clients often seem to believe that by doing this they improve their cases. Many lawyers are similarly affected. Even when consulting his brethren in the freedom of intercourse which has always characterized the bar, it is only now and then that you will hear one put his case precisely right. Some detail, slight it may be, or some coloring, is added or omitted. A lawyer had better by far learn to overstate the case of his adversary, and tax himself with the additional inventiveness necessary to meet the imaginary rein- forcement, than cultivate a disposition to sleep in a false security. So, then, the first essential of a good statement of the ease, is that it be fair. Of course the statement must also be full and lucid. The English authorities also insist that the brief contain the proofs marshalled, and a list of the wit- nesses. The author agrees most heartily with this, and further insists that there should be added a list of the witnesses, and a marshalling of the proofs anticipated by the other side. We have urged BRIEFS. 193 before that a brief should contain the whole results of a good preparation. The list of the witnesses is important. How often have all of us been fatigued and wearied in court, waiting for some counsel to find out who are his witnesses, before he can have them called. But besides this convenience and the true economy of preserving the names, there results to the lawyer a still greater advantage from keeping these lists. Whenever he opens his papers to add somewhat, be it ever so little and slight, to his preparation, his eyes catch these names — both those of his own and the witnesses of the other side — they are imprinted on his memory, he carries them in his mind, and as he goes about following up the many and diversified calls which disperse him through a large society, there is no estimating the additional testimony that he will get for his client, and the crippling and the checking that he will work to the adversary. A lawyer must always carry his cases in mind, and especially should his recollection be full and ready of the testimony. There must also be attention paid to the docu- mentary proof. If the lawyer has not time to take abstracts, he should have copies. The same argu- ments already made in favor of his abstracting pleadings apply here. Even if he hires copies taken he had better train himself to the habit of 13 194 CONDUCT OF LITIGATION. adding an abstract, as condensed as he can make it consistently with clearness. In the press of business and the " law's delay," when his case is at last reached some years after, it may be, with his head full of a multiplicity of other cases, he will not regret that he has condensed the volume of the testimony, so that he can gather it all up at once for the trial. When the document is important, as, for instance, a deed containing a condition, and the issue is on the condition, the abstract should be followed by a brief statement of your conception of its legal force and effect. This you will often find yourself altering, enlarging, or restricting. Besides, your associate will see at a glance your views, and he may give you valuable corrections or additions. There is no Procrustean model of the brief They vary as much as cases. It is but the accurate miniature of a case. If the case is simple, the brief will be simple ; if it is complex, all the elements appearing in the brief will make it complex too. There are some other matters to be thought of. You may anticipate, with reason, collateral issues of both law and fact. Thus you may be met with serious objection to some of your offered evidence. Whenever you can anticipate such objection, you should prepare to answer it, and your prepara- tion should be noted at the proper place in your JJRIhfS. 195 brief. So, too, 3^011 may prepare objections to what you anticipate will be the proof of the other side. Cautions to yourself and associate are not out of place. Thus Mr. Warren, in the work from which we have taken so much in this chapter, advises the attorney who has found a witness to be too eager and zealous, to make some such memorandum in his brief opposite to the proof as — " This witness is exceedingly eager and zealous, and will be required to be held with a tight rein." Addressing the attor- ney in another passage, he says again — " 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 witnesses. This is a matter of great consequence." These hasty words are only suggestive. The lawyer can add to them in any particular case by asking himself, and answering the question, " In what does my brief fail to show my preparation } " When a brief, thoroughly and in a right arrange- ment, presents a thorough preparation, it is perfect. As we have already hinted, the brief should con tain a neat draft of the plan of conduct. We have been sufficiently full on the subject in the last chap- ter. This plan is the key to unlock the whole. The entire preparation is condensed in it, and with- out it the brief would be imperfect. 19Q CONDUCT OF LITIGATION. Lastly, if the brief is voluminous, it should be indexed. The use and economy of this index is so apparent that I will say no more concerning it. I now subjoin a passage of considerable length from the celebrated Mr. Warren. My own differ- ences from his positions have already been inti- mated. The reader will remember that he is ad- dressing attorneys and solicitors, who in England can never act as counsel : " Draw your briefs with care, avoiding intemper- ate language, and making your statements and proofs as clear and terse as possible ; remembering that briefs are often necessarily read hastily by counsel, whom a confused and prolix statement may prevent from readily acquiring a correct impression of the case, or make them even take a wrong one, which it may be too late to correct. " Give the pleadings at length ; not contenting yourself with merely indicating their substance and effect. A sheet or two spared by these means is no compensation for the serious inconvenience and dangers often attending it. Counsel may be much mislead by your so doing. The cause often depends on 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 BRIEFS. 197 the attorney of the former having misled him as to the real nature of the pleadings. He had said as to the only special plea, ' The replication denies the agreement,' which was proved as alleged in the plea ; but the judge pointed out that the plaintiff stood much more favorably on the record — his repli- cation being dc injuria — which put in issue evejy traversable fact alleged in the plea. Now, why could not the replication have been set forth fully and correctly in the brief } " Never let a brief go into counsel's hands with blanks in it for names, dates, or sums of money. It not only has a very slovenly, unbusiness-like appear- ance, but often greatly embarrasses counsel, who may not have you at their elbow to supply them with the necessary information. 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. " When there are two or more briefs, and especially 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 alike, 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 198 CONDUCT OF LITIGATION. 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 incon- venient and irritating in sudden exigencies. " In cases of a little more difficulty or importance than usual, you may greatly facilitate the labors of counsel and enable them readily to do their duty, by prefixing to the brief a neat analysis of the case of both pleadings, and facts referring to the different pages in the brief where they will be found ; and above all giving an alphabetical index of the names of the witnesses and the pages where their proofs are placed. " If you have obtained what you may deem an able opinion upon the case, or even upon the evi- dence necessary 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 difficul- ties, 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 time to read their briefs, as it were devour the " opinion " written by some able and experienced junior, and rise soon afterwards wonderfully possessed BRIEFS. 199 Dflhe case, especially when engaged for the defen- lant. " Whenever your case involves localities, let mc entreat of you to take the trouble of giving a faith ful sketch of the loctis in quo.m. one of the pages of your brief, or on a separate paper. A single glance at a spirited and faitJifiU 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 of premises or machinery is of incalculable service in giving coun- sel, and enabling them to give others, a clear view of the case which it illustrates. During 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 and arguments of counsel, or the evidence of the 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 200 CONDUCT OF LITIGATION. absence of a *modcl, the evidence might really all have been read the wrong way'. " Take special care, however, that your plan or model h^ fair — perfectly faithful — made by a disin- terested 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 con- duct is almost certain to prejudice you in profes- sional and public estimation, and throw discredit on your client and his case, seriously endangering one otherwise characterized by bonajidcsy'' One need only consult the rules of practice In the different states, and hear the almost universal use of briefs in America, in the sense of a string of legal positions, with supporting authorities cited, to see how widely we differ in the estimate of briefs from our English brethren. The grade of attorneys never was separate here from counsel. Every law- yer, I suppose, w^as ambitious, and a rogated to him- self the rank of the superior. In the mother ' Warren's Duties of Attorneys etc., 178, ' • * " In the same manner this witness knew nothing of Mr. Hughes ; he never knew a banker's clerk ; he knew nothing of the name ; he had never known any of that name, or any banker's clerk. But when he saw that he [Mr. Brougham] had a letter in his hand, and before he had in anything refreshed the witness's memory, he clearly showed that he had never forgotten either the name or the place. "He [Mr. Lrougham] must also remind their lordships of the incredible story told by Majocchi, when he would have them believe that the Queen, having free access to Bergami's room through rooms where no person slept, chose rather to pass through an occupied room. The witness would at first have 284 CONDUCT OF LITIGATION. represented that there was no other access, but after much equivocation and perjury he admitted that there was another access ; yet having admitted that the Queen had easy, safe, and ready access to the place of guilt, he represented that she preferred to pass through another room, where Majocchi slept— ;-where he slept in a bed without curtains ; that she preferred to pass through a room so small, that she must have touched the bed — through a room where a fire was burning ; and what was most monstrous of all, they were to be- lieve that, to make detection sure, she stopped in her passage through the room, and looked in the face of Majocchi to ascertain whether he was asleep. " He [Majocchi] denied that he had been dis- missed by her Royal Highness ; but said he had left her service because of the bad people that were about hen This he said with the double purpose of raisins: his own character and debasino^ the Queens But he [Mr. Brougham] would show this to be false from his own mouth. When asked whether he had not made application to get back, his answer was, * I don't recollect.' " ' Did you apply to Count Schiavini to be taken back }' 'I did.' "The moment he mentioned that, his assertion that he did not recollect failed ; therefore to save CROSS-EX A MIN A TION. 285 himself he told them all — and very material it was for their lordships' consideration — ' Yes, yes (cosi, cosi), I did apply to Schiavini, but it was in joke.' " Now their lordships would mark that. The former answers were probable, if this was in joke ; if not, they were positive perjury. If, then, this was in joke, what followed he would have at once ans- wered by 'No.' " ' Did you apply to several persons .'* Did you apply to Flieronimus } ' ' Noii mi rccordol " This last answer was gross and willful perjury, or the first answer was gross and willful perjury. . . The joke, in fact, was an invention to protect the other invention, or the story was perfectly incredible that he applied in a joke to Schiavini, and that he did not recollect whether he applied to others. Their lordships recollected the manner, too, of this witness. He showed some flourishing and figure : ' I would rather eat grass than go again into the service of the Princess.' Was it true, and vv^as it the language of an honest man, that he v/ould rather eat grass than go back ; that he applied in joke to be taken back ; and that he could not afterwards swear that he had not applied to others to be taken back .? " Our limited space will allow us to give no more of this famous witness. Our readers will all aeree 286 CONDUCT OF LITIGATION. with Lord Campbell, who in his " Life of Lord Brougham," says : " The first witness was Tcodoro Majocchi, postil- ion to General Peno. If his evidence-in-chicf was believed, he proved abmidantly enough to establish the guilt of the Queen, but he entirely broke down when cross-examined by Mr. Brougham ; and to a long succession of questions respecting matters of which he must have had a lively recollection, the only answer to be obtained from him was — ' Non vii recordol which passed into, and still continue, household words ' in Eno-land for denotins: men- dacityr The cross-examination by Willirins of Louise Demont in the same trial, is likewise a model. She was more ingenious and ready than Majocchi, and her demolition was not so apparent. Still her sift- ing seems to me more lawyer-like, systematic, and exhaustive, than that of the other. Now and then a tremendous tide of favoring feeling or great partisan influence is at work for the wrong side of the case, and fast and reckless wit- nesses, prompted by the popularity and strength of the preferred party, come into the box with helping fictions. As the people who hear wish that side to succeed, they are unable to see, at first, the utter un- reliableness of the testimony. The cross-examiner CROSS-IiXAAnyA TION. 287 here must be cool, and he must leave no stone un- turned. Let him make clean work. To do this he must be self-composed and exhaustive in his exam- ation ; aiming to so clearly demonstrate the falsity of the adverse evidence, that if he do not get the verdict, no right-minded court will refuse him a new trial. There are no better examples for his education and training for this brilliant feat to be found in the whole range of judic* V" proceedings, than these two cross-examinations : the one of Majocchi, and the other of Demont. I rtgrvit that I have not the space to give them fully. The stu- dent, however, should carefully con what Denman has call i " two great masterpieces of , jrcnsic skill," familiarizing himself with all of the questions and answers in the full and admirable report lately made accessible to American readers.' Again, however, we must remind our reader that such super-eminent triumphs are but seldom achieved. They occur far less frequently than great speeches. All of us who attend the courts are now and then delighted with a burst of eloquence, but we may haunt them for years, and never hear a cross-examination approach even faintly to either that of Majocchi or Demont. 'Trial of Queen Caroline (New York, 1874). CHAPTER V. CROSS-EXAMINATION. {Co7ttinued^ I HAVE now discussed cross-examination at length, and I have called attention to what I deem the leading principles of good cross-examination, (i) The lawyer is to anticipate as much as he can of the evidence of his adversary, and meditate for it the proper sifting. (2) He is to recollect that he is by no means to attack all the adverse witnesses. He will succeed by turning the witness into one of his own, nine times to where he will once involve him in self-convicted perjury. (3) And when he does attack the witness he will do it more often by leading him into statements which will be disproved, than by making him contradict himself. Word- catching, and harping on trivial inconsistencies, are of but little avail. Cross-examination, to be ef- fective, must be as we have described and exemplified. I will now, however, for all of the length of the preA'ioiis chapter, run through with Mr. Cox's sug- CROS'S-EXAMINA HON. 289 gcstions, ' and also present David Paul Brown's " Golden Rules," before I take up the re-examination. Says Mr. Cox : " There are two styles of cross- examination, both of which you may see exempli- fied in any court where you may chance to spend a day, and which we may term the savage style, and the smiling style. The aim of the savage style is to terrify the witness into telling the truth ; the aim of the smiling style is to zvin him to confession. The former is by far the most frequently in use, especially by young advocates who probably imag- ine that a frown and a fierce voice are proofs of power. Great is their mistake. The passions rouse the passions. Anger, real or assumed, kindles anger. An attack stimulates to defiance." The author then proceeds to well demonstrate the superiority of " the smiling style." He lays down that there are three objects of cross-examination. "It is designed either to destroy or weaken the force of the evidence the witness has already given against you, or to elicit something in \> our favor which he has not stated, or to discredit him by showing to the jury from his past history or present demeanor that he is unworthy of belief. Never should you enter upon the cross-examination without having a clear purpose to pursue one or all 19 ' Adv. 375-434. 290 CONDUCT OF LITIGATION. of these objects. If you have not such, keep your seat." Our author then considers the three objects of cross-examination : " \sf. To desti^oy or weaken the force of his tes- timony in favor of the other side. If this be your design, you can attain it only by one of two pro- cesses. You must show from the witness's own lips either that what he has stated is false, or that it is capable of explanation. If your opinion be that he is honest but prejudiced ; that he is mistaken ; that he has formed a too hasty judgment, and so forth, your bearing toward him can not be too gentle, kind, and conciliatory. Approach him with a smile, encourage him with a cheering word, assure him that you are satisfied that he intends to tell the truth, and the whole truth, and having thus won his good-will and confidence, proceed s'owly, quietly, and in a tone as conversational as possible, to your object. Do not approach it too suddenly, or you will chance to frighten him with that which forms the great impediment to the discovery of t':e truth from witnesses, the dread of appearing to contradict themselves. If once this alarm be kin led, it is extremely difficult to procure plain, unequivocal answers. The witness f rthwith places himself on the defensive, and deeming yo i an eneny, fenc ;s CROSS-RXAMIA'A TION. 291 with you, with more or less of skill, certainly, but always to the weakening" of whatever may drop from him in your favor. With such a witness of whose candor you are seeking to avail yourself, the better course is to begin with the beginning of the story he has told, and conduct him through it again in the same order, only introducing at the right places the questions which are intended to explain or qualify what he has stated in his examination-in- chief The advantage of this course consists in its avoidance of any appearance of a surprise upon him. You take him into his former track, you even make him repeat a portion of what he has said, before you recall his mind from the court and from yourself to the subject with which it is familiar. The scene is again before him, occupying his thoughts. Then it is easy to try him upon the de- tails (but still gently), to suggest whether it may not have differed by so and so from that which he has described, or if so and so (which gives to the trans- action another complexion), did not occur also ; and thus at more or less length, according to the circum- stances of the case." The next passage deprecates, with justice, any exhibition of emotion in the examiner at any of the answers, after which the author proceeds : " In the same manner you may carry him to the 292 CONDUCT OF LITIGATION. conclusion of his story, and what with an explana- tion of one fact, an addition to another, and a toning down of the color of the whole, the evidence will ?jsually appear in a very different aspect after a JLiaicious cross-examination, from that which it wore at the close of the examination-in-chief." " If you suspect that some of the statements of the witness are false in fact, although not ivillfully mis- stated — errors of the senses, of the imagination, of the memory, so much more frequent than they might suppose, whose occupation it had not been to sift and weigh the worth of evidence — your task becomes a very difficult one : for without in any manner charg- ing him with perjury, or desiring to have it under- stood that you do otherwise than believe him to be an honest witness, you have to prevail upon him to confess that which will wear the aspect of falsehood. Now there is nothing upon which witnesses of every grade of rank and intellect are so sensitive as sclf- contradictioji. They suspect your purpose instantly, and the dread of being made to appear as lying, while often producing contradictions and evasions, more often arms the resolution of the witness to adhere to his original statement without qualification or expla- nation. When, therefore, it is your purpose to show from the witness's own lips that he was mistaken. CROSS-EXAMINA TION. 293 the cxtrcmest caution is required in approaching him. . . •. . Be careful not to frighten him by point-blank questions that go at once to involve him in contradictions, or he will see your design and thwart it b} a resolute adhesion to his first assertion. You must approach the object under cover, open- ing with some questions that relate to another matter, and then gradually coming round to the desired point. And even when you have neared it, you must endeavor by every device your ingenuity can suggest to avoi 1 the direct question, the answer to which necessarily and obviously involves the contradiction. The safer and surer course is to bring out the discrepancy by inference, — that is, instead of seeking to make the witness unsay what he has said, it should be your aim to elicit a state- ment which may be shown by argument to be mcon- sistent with the former statement." " An exphntation of the statement of a witness is not so difficult to be procured from him as is a contradiction ; because there is not the same formi- dable fear of being presented to the court in the aspect of one who is perjured. A witness who is conscious that he has been induced by the encour- aging examination of his own counsel, to say too much, is often ready to seize the opportunity af 294 CONDUCT OF LITIGATION. forded by the cross-examination to modify his asscr tions by qualifications and explanations.". Here the witness is to be encouraged. " Having obtained enough for your purpose, pass on. You may obtain too much. There is no more useful faculty in the practice of an advocate than to know when he has done enough. Many more causes arc lost by saying too much than by not saying sufficient. A chapter may not uselessly be devoted hereafter, to the inquiry, ' When to sit dozun ? ' " This last caution is -vise. The cross-examiner sometimes draws great discomfiture on himself. The following is told of the late Mr. Ciioate occurring " in the trial of a question of salvage. It was the case of The Missou7'i, an American vessel stranded on the coast of Sumatra, with specie on board. The master of the stranded vessel, one Dixey, and Pitman, the master of the vessel that came to her aid, agreed together to embezzle the greater part of the specie, and pretend that they had been robbed of it by the Malays. Mr. Ciioate was cross-examining Dixey very closely, to get out of him the exact time and nature of the agreement. The witness said that Pitman proposed the scheme, and that he objected to it, among other reasons, as dangerous. To which he said Pitman made a sug- gestion intended to satisfy him. Mr. Choate in- CROSS-EXAMINA TION. 29'; sistcd on knowing what that suggestion was. The witness objected to giving it. Mr. Choate was peremptory, and the scene became interesting. ' Well; said Dixey, at last, ' if you must know, he said that if any trouble came of it, we could have RuFus Choate to defend us, and he would get us off if we were caught with the money in our boots. It was several minutes before the court could go on with the business." ' But we will return to Mr. Cox : " The second object of cross-examination is to elicit something in yoicr favor. The method of doing this will depend upon the character of the witness. If you believe him to be honest and truthful, you may proceed directly to the subject- matter of your inquiry with plain, point-blank questions. If you suspect that he will not readily state what he is aware will operate in your favor and against his own friends, you must approach him with some of the precautions requisite for the cross- examination of a witness who is not altogether trustworthy. " It may be remarked here that good general- ship may be often shown in skillfully availing your- self of the silence of a witness. A refusal to 'Brown's Life, 421. 296 CONDUCT OF LITIGATION. answer, or an evasion of your question, will fre- quently be more serviceable to you than his words." We have now followed Mr. Cox to the last object of cross-examination, which is to discredit the witness, and, in most cases, to convict him of a mistake instead of perjury. " Now, the way to do this, is by closely inquiring into the so2trccs of his knowledge^ "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 particu- lars, and that the inferences 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 accessories. You then ask the witness to repeat his story, — you note its congruity, or otherwise, with the circumstances that accompanied it ; you detect improbabilities 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 seLui were by the imagination transformed into other things in his memory. " How erring the senses are, and how much ll.cii CROSS-EXAMINA TION. 297 impressions 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 has happened, and from half-a-dozen actual spectators of it, you will receive so many different accounts of its details, and yet each one positive as to the truth of his own narrative, and the error of his neighbor's. " But it is not enough to ascertain that the wit- ness is mistakeii ; to satisfy the jury when you come to comment upon his evidence, you must learn also whence the mistake arose, and you should not leave him until you have attained your object." Next our author treats of the cross-examination of a witness whom you have good reason to believe is lying, and whom you would convict out of his own mouth, and he says : " The question has often occurred to us, whether It is more prudent to show such a witness that you suspect him, or to conceal your doubts of his hon- esty. Either course has its advantages and disad- vantages. By displaying your doubts, you incur the risk of putting him upon his guard, and leading 1 im to be more positive in his assertions, and more circumspect in his answers ; but, on the other hand 298 CONDUCT OF LITIGATION a conscious liar is almost always a moral coward ; when he sees that he is detected, he can rarelv muster courage to do more than reiterate his asser- tion ; he has not presence of mind to carry out the story by ingenious invention of details, and a con- sistent narrative of accidental circumstances con- nected with it. . . . Perhaps either course might be adopted, according to the character of the witness. If he is a cool, clever fellow^ it may be more prudent to conceal from him your doubts of his veracity until he has furnished you with proofs. If he is one of that numerous class who merely get up a story to which they doggedly adhere, it may be wise to awe him at once by notice that you do not believe him, and that you do not intend to spare him. We have often seen such a witness surrender at discretion on the first intimation of such an ordeal. This is one of the arts of advocacy which can not be taught by anything but experience. It is to be learned only by the language of the eye, the countenance, the tones of the voice that betray to the practiced observer what is passing through the mind within." We extract the following excellent example of a witness subverted by patient approach : " In a case of affiliation of a bastard child, the mother had sworn distinctly and positively to the CROSS-EXAMINA TION. 299 person of the father, and to the time and phice of their acquaintance, fixed as usual at precisely the proper period before the birth of the child. In this case the time sworn to was the piiddle of May, and the place the putative father's garden. For an hour she endured the strictest cross-examination that ingenuity could suggest ; she was not to be shaken in any material part of her story ; she had learned it well, and with the persistence that makes women such difficult witnesses to defeat, she adhered to it. It suddenly occurred to us that she might be thrown off her guard by a question for which she was not likely to be prepared, and the examination proceeded thus : ' You say you walked in the garden with Mr. M .? ' ' Yes.' ' Before your connection with him } ' * Yes.' * More than once } ' ' Yes ; several times.' ' Did you do so afterwards.?' 'No.' 'Never once.?' 'No.' 'Is there fruit in the garden .?' ' Yes.' ' I suppose you were not allowed to pick any.?' ' Oh, yes, he used to give me some.' ' What fruit .? ' ' Currants and raspberries,' 'Ripe.?' 'Yes.' This was enough. She was detected at once. The alleged intercourse was in the middle of May. Currants and raspberries are not ripe till June.'* The rest of Mr. Cox's chapter is instructive and entertaining, but I will not repeat it here, as it gives, 300 CONDUCT OF LITIGATION. in my opinion, too great prominence to that part of the cross-examination which is intended to make the witness contradict himself. Of course the lawyer must master the subject, but he must understand that cross-examination is generally as much overrated as advocacy. I can not agree with the author who concludes his chapter by saying, that " there is never a cause contested, the result of which is not mainly dependent npon the skill zvith zvhich the advocate conducts his cross-examination^ No man can tell a long story with complete consistency. A skillful cross-examiner can detect in the most credible testimony, trivial conflicts which do not weigh much. Witnesses stand at last on their characters. The man who is reckless or care- less of the truth, or of bad character, is known as such. This man, if not telling the truth, can be put down when he is turned over to the opposite counsel. But the jury will only be irritated at a persistent attack on the testimony of a witness of good standing. Let the cross-examiner, therefore, attend mostly to one thing, not at all mentioned by Mr. Cox— the character of every witness. Having exhausted Mr. Cox, I will now give the " Golden Rules " of David Paul Brown for cross- examination : ''First. — Except in indifferent matters never * Forum, Ixxvii. ct scq. CR0SS-EXA3f!NA TION. 301 take your eye from that of the witness. This is a channel of communication from mind to mind, the loss of which nothing can compensate. * Truth, falsehood, hatred, anger, scorn, despair, And all the passions — all the soul is there.' " Second. — Be not regardless, either, of the voice of the witness ; next to the eye, this is perhaps the best interpreter of his mind. The very design to screen conscience from crime, the mental reservation of the witness, is often manifested in the tone 01 accent, or emphasis of the voice. For instance, it becoming important to know that the witness was at the corner of Sixth and Chestnut streets at a certain time, the question is asked, ' Were you at the corner of Sixth and Chestnut streets at six o'clock ? ' A frank w^itness would answer, perhaps, ' I was near there.' But a witness who is desirous to conceal the fact, and defeat your object (speaking to the letter rather than to the spirit of the inquiry), answers. ' No ;' although he may have been within a stone's- throw of the place, or at the very place within ten minutes of the time. The common answer of such a Vv^itness would be, ' I was not at the cor?zer at six o'clock.' Emphasis upon both words plainly implies a mental evasion or equivocation, and gives rise with a skillful examiner to the question, ' At what hour were you at the corner } or at what place 302 CONDUCT OF LITIGATION. where you at six o'clock ? ' And in nine instances out of ten, it will appear that the witness was at the place about the time, or at the time about the place. There is no scope for further illustrations ; but be watchful, I say, of the voice, and the princij le may be easily applied. •" Third. — Be mild with the mild — shrewd with the crafty — confiding with the honest — merciful to the young, the frail, or the fearful — rough to the ruffian — and a thunderbolt to the liar. But in all this never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph and your cause may prosper. " Fourth. — In a criminal, especially in a capital case, so long as your cause stands well, ask but few questions, and be certain never to ask any the an- swers to which (if against you) may destroy your client, unless you know the witness perfectly well, and know that his answer will be favorable equally well ; or unless you be prepared with testimony to destroy him, if he play traitor to the truth and your expectations. " Fifth. — An equivocal question is almost as much to be avoided and condemned as an equivocal answer. Singleness of purpose, clearly expressed, is the best trait in the examination of witnesses, whether CROSSEXAIillNA ffCN. 303 they be honest or the reverse. Falsehood is not detected by cunning, but by the Hght of truth, or ii by cunning it is the cunning of the witness, and not of the counsel. ''Sixth. — If the witness determine to be witty or refractory with you, you had better settle that account with him at first, or its items will increase with the examination. Let him have an opportu- nity of satisfying himself either that he has mis- taken your power or his own. But in any result be careful that you do not lose your temper. Anger is always the precursor or evidence of assured defeat in any intellectual conflict. " Seventh. — Like a skillful chess-player, in every move fix your mind upon the combinations and relations of the game ; partial and temporary success may otherwise end in total and remediless defeat. " Eighth. — Never undervalue your adversary, but stand steadily upon your guard. A random blow may be just as fatal as though it was directed by the most consummate skill — the negligence of one often cures, and sometimes renders effective, the blunders of another. ''Ninth. — Be respectful to the court and the jury ; kind to your colleague ; civil to your antag- onist ; but never sacrifice the slightest principle of duty to an overweening deference toward either." 304 CONDUCT OF LITIGATION. The Rules which we have just quoted arc not as striking as those of the same author for the examin- ation-in-chief. Still they deserve attention as the production of a very able Nisi Prius law)''er of great experience. Besides the wisdom of nearly all of the " Golden Rules," both for direct and cross- examination, their epigrammatic polish, energy, and freshness, are a most grateful contrast with the or- dinary dullness of law-writing. We will add a few counsels, and then we shall close the subject of Cross-Examination, which we have not, however, discussed at too great length. And we will say first that no part of procedure demands such constant application of true principle as cross-examination. The good cross-examiner is made. He may be born with an adapted talent, but he can not attain excellence without much train- ing and experience. The lawyer who does not understand the subject is seen perpetually arguing, or expostulating, or quarreling, with the adverse witness, or catching at inconsistencies merely verbal, or otherwise too trivial to be considered, thus irrita- ting court and juiy into opposition to his case. We must remind the lawyer that he should prevent his witness from making improper disclos- ures while under cross-examination. The court will generally protect the witness, but it is your duty CROSS-EXAMINA TION. 305 not to wait for the court. And you should also see that he is treated with proper consideration, and especially that words which he did not say in the direct examination are not put in his mouth. We sometimes hear a counsel cross-examining say to a witness, " Well, Mr. , you have testified so and so," when, in fact, the witness has not so testified. This is as discreditable as the trick of suggesting under some pretext of objection or correction to your witness, when pused in a cross-examination, a desired answer. I subjoin a passage from an entertaining book which shows how a witness protected himself where counsel would not interfere against an improper cross-examination. That it may be all fiction, makes it none the less instructive. The reader will recol- lect that the author speaks in the character of an English attorney : " I was under the fire of a cross-examination by Scarlett — no very enviable position even for the most honest witness, it must be owned. An important letter had been lost in my office ; lost by that excess of precaution which one sometimes takes with very important documents. I had locked it up in some drawer for security, and on the eve of trial could not discover where I had placed it; but when engaged in consulting counsel on the case before I com- 20 3o6 CONDUCT OF LITIGATION. menced the action, nearly three years before the case was tried, I had introduced a copy of this letter into the statement, and had read the letter to my clerk while he transcribed it. I tendered the copy in evidence : of course Scarlett opposed its admis- sion, for nearly the whole question of damages turned upon it. " ' Do you commonly read letters for your clerks to copy, Mr. Sharpe } ' " ' No, sir.' '" It would be rather an inconvenient practice .r** "'Certainly.' '" Did you examine this copy after he had made it.?' " ' Not that I remember ; certainly not to check its accuracy.' " ' Then you can not swear to its accuracy } ' " ' I can not ; but I believe it to be accurate.' "'Why.?' " * Because it consists of but five lines, so there is not much room for error ; and I had every induce- ment to be accurate in consulting counsel on the merits of my client's case.' " ' Did you show the original letter to your counsel .? ' " ' Most likely I did. I can not be certam at this distance of time, but I have no doubt I did.' CROSS-EX A miN A TION. 307 "'Then you did not at that time rely sufficiently on your belief in its accuracy, to trust to the topy only ? ' " I saw the drift of the question and hesitated of course. I received the usual rough salute. "'No hesitation, sir; did you then believe the copy to be accurate } ' " I still demurred repeating the question, but not ansv/ering. " ' Come sir ! no fencing with me ; as an attor- ney, you ought to know better.' " I remained silent, pondering over the question. " ' I zuill have an answer, sir. Did you the?i be- lieve the copy to be faithful' " ' To what time do you refer ? ' " ' When you consulted counsel.' " ' Three years ago } ' " * Yes, sir ; three years ago.' "'Then I will not answer your question, unless his lordship decides against me.' " My own counsel ought to have made the ob- jection, but from discretion sometimes they are too tardy in protecting a witness. Lord Denman, how- ever (who knew me well, and from whom I never but once received a harsh word, and even then I believed he designed it kindly, though it was unjust) came to my aid. 3o8 CONDUCT OF LIT IG AT I ON. " ' What is your objection, Mr. Sharpe ?' " ''Your lordship will perceive that the question does not refer to present belief, nor to a past fact, but to the impression resting on my mind three years ago ; how is it possible for any man to state with certainty the precise limits of his belief, not as to what were the occurrences of to-day, or yesterday, but as to what he believed at a period so remote ? ' " His lordship reflected for a moment, and over- ruled the question. " ' It is not a fair one, Mr. Scarlett. Go on.' " But Scarlett had had enough of it, and left me to gain a verdict without further interruption, though he looked as if he could have eaten me, however accustomed to fare so tough," ' ' Adventures of an Attorney in Search of Practice, 245- '?48. (New York, 1874.) I have just learned that there is now serious controversy over the authorship of this book, many claiming it for Sir George Stephen, while many others contend that it should be given to Mr. Warren, as it is on the title-page of the edi- tion cited. I regret that the foregoing pages, in which I have asserted the Adventures to be Mr. Warren's, are beyond my power to correct. I recall that assertion. I can not settle the controversy. The name of either one of the alleged authors, and its owr merit, are enough to entitle the produc- tion to attention. CHAPTER VI. RE-EXAMINATION. CONCLUSION OF THE CONDUCT OF THE EVIDENCE. Having stayed so long with Cross-Examination we will now proceed to discuss Re-Examination. Mr. Cox opens his chapter' with a passage interest- ing to the American lawyer : "The cross-examination being closed, the duty of Re-Examination devolves upon the counsel on the other side. It is usually undertaken by the leadci'-, even although the examination-in-chief had been conducted by the junior, probably because it is supposed to require the skill and caution which only experience can teach. You will remember that cross-examination is in like manner and for the same reason conducted by the leader as a matter of course, unless, as sometimes is the case when the witness is unimportant, or he has great confidence in his junior's ability and prudence, he requests you to undeitake the task. Then, and only then, have you an opportunity of practicing the lessons you may have learned." ' I Adv. 435 310 CONDUCT OF LITIGATION. The general rule in our practice is that the counsel who examined-in-chief conducts the re- examination. Other things being equal, that coun- sel should conduct the examination who is best ac- quainted beforehand with the testimony of the witness. The object of re-examination, according to Mr. Cox, " is simply to obtain from the witness an ex^ planation of that which he had said in cross- examination. The necessity for giving to a witness such an opportunity, proceeds from the system adopted in our courts of eliciting evidence by means of questions. A witness does not tell his story without interruption, as is the practice in most of the law courts on the continent, but is required to answer the questions of counsel, and seldom permitted to do more, or to accompany his answer with an explanation. A skillful advocate in his cross-examination avails him.self of this to obtain such answers only as suit his purpose, excluding the explanations that might give them another mean- ing. It is the duty of the advocate on the other side to note such replies, and on re-examination, to give to his witness the opportunity for explanation denied to him before." We have said that one purpose of a cross- examination was to avoid the garbling of the testi- mony that could always be ingeniously done on the RE-EX A AIINA TION. 3 1 1 examination-in-chief. And the great reason of the re-examination is to prevent a Hke garbhng by the cross-examining counsel. The cross-examination can not only deeply probe the witness as to his feelings, his bias, his means of knowledge, but it can also elicit from him independent facts favorable to the examiner. And by reason of the right of the counsel to confine the witness to answer the ques- tions, and permit him to give nothing else, only a portion of the truth may be so presented as to impart falsehood. Thus a witness who has testified on the direct examination to an occurrence, may be asked on the cross if it were not night, and answer- ing affirmatively, he may stand somewhat discred- ited until the re-examination draws out that there was a good light, by which he could see clearly. Again, to apply differently an example already given, an item of indebtedness of the plaintiff to the defendant, pleaded as a set-off, may be proven by the witness testifying under cross-examination to an admission of such indebtedness by the plain- tiff, but the re-examination may relieve, by making the witness testify that the plaintiff at the time of the admission asserted the debt to be a gaming one, or one otherwise illegal. The privilege of re-examination is all the more necessary, because of the right of the cross-examiner 312 CONDUCT OF LITIGATION. to frame his questions, so that the witness can reply only yes or no. But the re-examination guards against other abuses. The witness from bewilderment or heed- lessness may have under the cross-examination made inaccurate statements which, as they damage your cause, you must correct. And the great prompter and fountain of a judicious re-examination is that which rightly in- forms the direct and the cross — familiarity with the narrative of the witness. If he is important, — if life or Uberty, or reputation, or fortune hang on his tes- timony, — how can you excuse yourself to your client if you have not heard him over and over, until you have so mastered his evidence, that even the shrewdest cross-examiner can neither garble nor discredit, provided that the witness be honest. The following, narrated of a great lawyer, is aptly illustrative : " It was in taking this timid and reluctant witness into his own hands, and bringing him to feel that he was testifying, under the shelter of the great * Defender ' himself, that Mr. Webster, figured more conspicuously than in any other part of the case. Thus borne up and through a long direct examination, he braved the cross-examination with perfect composure." ' The great Defender ^ Brown's Life of Choate, 173. RE-EX A MINA TION. 3 1 3 understood his witness, and understood this witness's testimony. It is not told us, but we may safely take it for granted, that Mr. Webster had heard him in the consultation-room with patience, from begin- ninc: to end. Know the witness — know his evi- dence, and you can deliver him, if honest, from any toils of cross-examination, and even strengthen him for the ordeal before he undergoes it. We have in the preceding Book insisted on this previously ac- quired knowledge, this fit preparation. Mr. Cox does not speak of it. It is true, that his book shows that the attorney (not the counsel) is ex- pected to come to the trial familiarized with his testimony by conference with the witness — but the counsel has no previous knowledge, save the state- ments in the brief, which are but the report of the attorney. But we will return now to what Mr. Cox says of re-examination : " Your notes of the cross-examination before you, the work commences. It is a rule that you shall strictly confine yourself to matters that have been mooted in the cross-examination. You are not per- mitted to go into new matter. This is the only restriction, for if the subject has been touched upon, however slightly, by your adversary, yon are entitled to go fully into it, and hence it is that a skillful advocate is commonly enabled to make such good 314 CONDUCT OF LITIGATION. use of the opportunity, for a cross-examination rarely omits to deal more or less with all the most impor- tant portions of a witness's testimony. . . " Your caution will rather be required in the way of restraint. Great care must be taken lest you seek explanations where none can be given, for thus you would certainly do yourself an injury by recalling the damaging answer, and making it doubly impressive by reiteration." I would remind the counsel that if he has con- ferred with the witness, and sifted him in private, as he should have done, he can easily avoid asking for explanations which can not be given. Mr. Cox next observes how, without transcend- ing the proper limits, you can " elicit a repetition of the most important parts of the evidence-in-chief." This is often very important. Our author then continues in the following admirable strain : " All this appears easy enough in the descrip- tion ; but it is very difficult in the practice. Before pou have sat in the courts many days, you will dis- cover the vast difference between different advocates in the ability with which they conduct a re-examina- tion. Sometimes you will see a witness who has been apparently destroyed by a cross-examination, triumphantly set up again by the admirable skill RE-EX A MINA TION. 3 1 5 with which he is re-examined — every weak point strengthened, every contradiction explained away, every doubt removed, and his original story repeated with confirmations. On the other hand, when undertaken by an inefficient advocate, you will observe how bad is often made worse by injudicious attempts to mend it, and that which had been left in doubt by his adversary, converted into a defeat. The difference will be found to consist mainly in that discretion which enables the advocate to ad- vance his questions to the precise point at which the answers are innocuous, and avoiding such as are not touched upon in cross-examination, so mould- ing his queries that they shall, while adhering strictly to the rules, necessarily bring out those leading points in his own case which he is desirous of repeating." Mr. Cox falls far short of the object of re- examination when he bids his reader remember that its business is the 7'estoration of the witness to the confidence of himself and jury. I have already cited another passage wherein he says " that the object of re-examination is simply to obtain from the witness an explanation of that which he had said in cross-examination." These passages, taken together, do not express the whole object. I think that I have already set forth the true object. It is 3i6 CONDUCT OF LITIGATION. to bring out the truth, which the art of the cross- examination, or the failure of the witness, has dis- torted or suppressed. The three chapters ' of Mr. Cox, one on Ex- amination-in-Chief, another on Cross-Examination, and the last on R.e-Examination, are valuable. I do not hesitate to say that they are by all odds the most excellent part of his work, which the profes- sion has so much reason to regret has been left unfinished. But the cardinal error of these chap- ters, greater even than the failure, by reason of the absurd custom of the English Bar, which prevents conference of party and witness with counsel — to note the great importance of having heard your witness tell his tale, or of having heard a reliable narrative of that of the hostile witness, — I say that the cardinal error of these chapters is that they everywhere inculcate plainly that he is the best examiner who suppresses what of the unfavorable truth he can. Our times call for a higher morality. While it is not incumbent on the counsel to make out the case of the opposite party, still he is not to be tolerated in so conductinsr an investig"ation of facts as to bring out that which he knows to be a false presentation, or a deliberate suppression of the truth. Let the lawyer be trained to win by truth ; • Adv. 351-441. RE-EX A MINA TION. 3 1 7 let him be taught to fight for, and with nothing else, and he will then no more look to trick and chicane, than a man will try to travel by flying. This will increase the efficiency of the Bar. Amer- ica does not wish a band of lawyers perpetually vigilant to cheat the honest, and found verdicts on falsehood. A lawyer may, I think, honestly demand for his client every advantage which the law gives him ; that is, there may be a bad law which benefits the client, and he must have that advantage, unless he himself surrender it. The people have the undoubted right to make laws which do not pal- pably violate great principles of morality ; but they have no right, and they have never claimed such, to permit falsehood, and encourage the concealment of truth. And the lawyer who trains himself to look for the truth of the facts of his cases, and is not afraid of this truth, will ever have his adver- saries afraid of him. He will only lose cases that he will see with joy that he should have lost. But there are some matters appertaining to the examination of witnesses, which we have reserved for notice now, after having taken such an extensive survey of what we may term the great body of the rubject. It is often the privilege of the party to have the witnesses of his adversary ordered out of court. The 3i8 CONDUCT OF LITIGATION law should allow it in all cases. But it is a privilege which need not be always exercised. Speaking only from my own experience, I will say, that I have noted it advisable nearly always, when you are suddenly called without opportunity of much prepar- ation to defend some exciting charge of crime. The matter should be well considered before the trial, if there be time. It can often be made subservient to the purposes of a cross-examination intended to detect falsehood. I will give one instance. The Sta^e was trying to identify a particular defendant as having committed a deed of violence, by, among other proofs, tracking up a horse alleged to be his riding-horse, from the place where the crime was committed to his dwelling, some miles off. The counsel for the defense acquainted himself well before the trial with the road which the horse was reported to have gone. About a mile from, the place of the violence the passengers had made a new road, leaving the public road, and turning about in the open fields and woods to avoid some dangerous places, and returning to the original road about half a mile from the point of divergence. Two witnesses were to testify to tracking up the horse in company. They were ordered out of court, and afterward, under examination, one tracked the horse along the old road, the other along the new road, and RE-EX A MINA TION. 3 1 g both swore that they were in company with each other at the time. The better the character of the witnesses for tmth and coolness, the less you will make by ordering them out. If they come to the stand, one by one, from his confinement, and tell in the main and sub- stance the same tale, differing only in those usual discrepancies which are but proof of no collusion be- tween them, the effect is very damaging on him who had them ordered out. He is caught in his own trap. Mr. Cox's counsel as to objections is well worth transcribing: " And let us warn you against a fault into which young advocates are especially apt to fall- that of making too frequent and too frivolous objec- tions. Many inexperienced men appear to think, that by continually carping at the questio s put to the witnesses by the other side, they are proving to the audience how quick and clever they are. But this is a mistake. Such an exhibition of captious- ness, v/hether affected or real, is offensive to the court and jury ; it displeases the attorneys wJw see through it, and only deem you an ass for your pains and it can impose only upon the mob in the gallery, whose applause, however desirable in politics, is rather injurious than otherwise to a professional reputation." ' ' Compare with 7th and 8th Golden Rules for Examina- tion, a7tte. 320 CONDUCT OF LITIGATION. The lawyer should train himself to meditate while listening to the examination of his adversary, how he will reply to it by examination. To be on the alert for objections to questions interferes with, and often prevents this attention. You vnll note that the best and most successful lawyers raiely ob- ject to a question. Their minds are occupied with the testimony, the witness, and what they are going to do with both, when they can examine him. Still it is often important to cut oif an illegal examination, and when the objection is made, it should be done quietly, and but seldom with much argument, unless the court is in doubt. I have noticed that some of the best lawyers are very adroit in providing grounds for a new trial, in case of defeat, by judicious objections to testimony, not very strongly argued. The manner of the counsel conducting an ex- amination is of great importance. We too often see even eminent lawyers lose patience with a dull witness of their own, and say things undeservedly sharp. All of us should recollect that in the court- room we are at home, and that parties and witnesses are in some sort our guests, and guests frequently ill at ease. It behooves us that we be not rude and unmannerly in our own house. And the glaring impolicy of anything but the most pleasant treat- RE-EXAMINATION. 321 meat of witnesses should never be forgotten. The jury represent the non-professional public. They naturally sympathize with those who come from their own ranks, and they have and ought to have the keenest sense of any injustice done by lawyers to witnesses. Blustering with witnesses is of no advantage. Convince an honest jury, not by brow- beating and confusion, but by a quiet, gentlemanly show of the truth, that a witness is l>ing, and they will find against him with evident pleasure. But I have fancied, sometimes when looking on, that I have seen good cases lost, because the jury were driven away from them by a too rough hand- ling of the adverse witnesses. If this was so, it was not the fault of the jury — it was the fault of the bullying and hectoring counsel, who blinded them to the truth of his own side. The court should protect witnesses from the un- called-for assaults of counsel. I am glad that I can fortify m/self with the brave words of the author of " Adventures of an Attorney,'' whoever that author may be. The passage is a continuation of that quoted in the last chapter, which narrated the baffled effort of Mr. Scarlett to push his cross-e:x ani- mation of Mr. Sharpe too far: " Many assaults, far more rude than this, are hourly made by counsel at Nisi P7HUS, on attori^eys. 322 CONDUCT OF LITIGATION. and witnesses, and I can not forbear observing that in general the court is far too indulgent to the bar on these occasions. It is possible, that in an idle hour, even these pages may meet a judicial eye ; I have known some of their lordships to amuse them- selves with more unprofitable books ! should such an honor await me, 1 must be excused for remind- ing my most learned lounger that it is the duty of the bench to protect a witness, not less than to compel the truth. I do not say to screen him, but emphatically to protect him : and where a judge, from reluctance to face the sneers of counsel, or to encounter his coarse remonstrance, allows him to practice on the timidity or outrage the just sensi- bility of a defenseless witness, or what is worse to ea.lumniate and stigmatize one who is no party except professionally to the cause, and who has no opportunity of being heard in explanation, that judge is not less guilty of a violation of his oath, than if he sold his opinion or his influence to the highest bidder. I have often been disgusted, not less with the cowardly license assumed by the Bar in their comments on third parties, under the conven- ient plea of forensic liberty of speech, than I have with the apathy of the judge who heard them, and silently permitted the scandalous abuse that he ought to have checked with solemn indignation. RE-EX A MINA TION. 3 2 3 On some rare occasions, when the language of counsel has grossly exceeded the limits of common decency, and the insulted witness has been provoked into keen retort, the bench perchance has interfered ; but how ? by haughty reproof to the unfortunate victim, and expostulation with his vulgar assailant, so mild and so equivocal as to imply sympathy with the offense, rather than stern rebuke to the offender. It is a natural feeling to love and reverence our judges, and long may it continue to be so ; but they little know how they shake that love and reverence to their very foundation, when they thus betray a partiality to their corps, that tends to deter all men of respectability and of nerv^ous tempera- ment from the highest duty of a citizen, bearing his testimony to truth and justice in open court ! Such is the horror of the witness-box, that I have often known a good and honest case abandoned to spare a relative or friend the pain of entering it ; and on one occasion, I have even known a witness to pay the debt and costs, rather than be exposed to the risk of insult that he dared not resent in court, and would not have brooked elsewhere ! " ' Sometimes the judge is seen, even here in free America, where the people are supreme, servilely egged on by a favorite counsel into badgering an 'Adventures of an Attorney, 248, eiseq. 324 CONDUCT OF LITIGATION. outraged witness, who has been driven to bay hy the brutality and coarseness of an illegal examina- tion. And there is another hint to be given. If the trial is long, and there are many details of evidence, often much that is unanticipated will be proven. It v/ill be drawn from your own witnesses by cross- examination, and you will always in such a case be surprised by unexpected proof made by the adver- sary. This new proof, when made, will often point to other witnesses, or other documentary evidence which you should, if possible, investigate in time to get in. This duty must be deputed to some asso- ciate, who must take care to be swift enough, but not too swift. Let every available parcel of evidence be put in. The courts are becoming so liberal that they now often allow re-opening of the evidence during the argument, so that a party may prove something which he had forgotten. And the dis- covery of important evidence during the trial, which can not be had immediately, is surely a good ground of postponement until the party can have it. Many times the witness will be examined by commission. Of course, nearly the same principles will apply that we have already shown to govern viva voce examination, I will note that in many of RE-EXAMINATION. 325 oui States, the law as to taking testimony by com- mission needs amendment. A witness should in all cases be examined by viva voce questions asked by the ablest counsel that the parties may see fit to employ. He who answers only a set string of direct and cross-questions, can hardly be sifted as he should be. The length of these chapters on the conduct of the evidence needs no apology ; and there are other matters yet, appertaining to the testimony at the trial, which must await another opportunity of notice. Well did David Paul Brown say, prefac- incf his "Golden Rules": "There is often more eloquence, more mind, more knowledge of human nature displayed in the examination of witnesses, than in the discussion . of the cause to which their testimony relates. Evidence without argument is worth much more than argument without evidence. In their union they are irresistible." The putting in of the evidence has two great objects: (i) To support by your proofs the allega- tions of your pleadings on which you stand. (2) To make the court and jury understand the proofs, and see clearly their relevancy, force, and satisfac- toriness. The mind that arrays the proofs, and sees intuitively, to use the common parlance of the Bar, when the case is made out, is the mind of the law- 326 CONDUCT OF LITIGATION. ycr, and the talent of so ordering these proofs, and bringing out clearly their whole details that they will command attention and understanding, ought to be likewise of the mind and qualifications of every lawyer. And we are now ready to leave the subject of examination, whether direct, cross, or re- examination, in this the last presentation of its true object and greatest merit. We say, then, that that examination, whichever one of the three kinds it is, is the best, which gets out the greatest amount of supporting proof, and which presents this proof most intelligibly to the court and jury. Next in value to the vision of the lawyer,^ — that is, his acumen, which will be fully discussed after a while, — are the qualities of 'patience and good- humor. The case must be got out, the case must be understood. To achieve both will require pa- tience and good-humor. Nothing is so unlawyer- like as an eagerness to close the evidence not fully finished, to enter upon the argument. And nowhere is coolness of more avail than m conducting the trial of a stubbornly-contested case. There is a throng generally attending, representing that great power in America, to wit, public opinion , and this audience, though never so quiet, approve or disapprove. You feel it, although you do not look at them. And then the passion and zeal of your RE-EXAMINA TION. 327 client and all your side, the thrusts of your adver- sary, and often eager contests over points submitted to the court. In short, nothing but the extreme of coolness will prevent you from blundering, and keep you ready to seize upon every advantage offered. Then forget everybody save the witnesses, the court and jury, and the evidence. And we give as another caution, that you do not rely too slavishly upon your premeditation. We often see a lawyer conducting a case upon some preconceived theory, which being too narrow, he is all the while trying to trim down the facts, and fit them to it. As the whole case — that of your own as pared off by your adversary, and the case which he has made — unfolds itself, any mistaken anticipa- tion must be corrected, and your theory must em- brace all the facts. We remind the reader that the evidence, put in as it should be, is almost the consummation of your labors. CHAPTER VII. NOTE-TAKING. During the whole progress of the case, you should keep a iTinning memorandum of everything important. This duty of note-taking is too often neglected. We have confessed in a previous chapter the superiority of the English practice to ours in the matter of Briefs, and we must also admit that the careful note-taking by both their judges and counsel, are well worthy of a more extensive imita- tion here. We will begin with two passages from Mr. Cox, whom we have so often cited : " While the examination-in-chief is proceeding, it will be the duty of the counsel on the other side to give the most attentive ear to every question and every answer, and to take a note of it upon his brief." ^ " Your notes of the evidence as it proceeds should be fully taken, because you can not anticipate at this period of the cause what portions of it may prove to be material, nor where a question may arise as to what was the witness's answer. In taking these notes, you begin with the day and date on which the trial took place, and the name of the ' Cox, Adv. 366. NOTE-TAKING. 329 judge. You then very briefly note the more impor- tant points of the opening speech, especially such as you propose to answer, and you indicate such as will require peculiar attention, by scoring it twice or thrice. Then stating the name of the witness and the counsel by whom he is examined, you set down his evidence, leaving a broad margin for your own observations, if any should occur to you. It is not necessary to give both question and answer, save when the question strikes you as one of special import, or to which you might desire to refer here- after ; it will suffice merely to give the answer in the witness's own words, as nearly as you can observe them, so as to make them intelligible. Thus, if a witness be asked : ' Were you at Exeter on Satur- day,' and answers, ' I was,' — a leading question but probably not worth objecting to, — you set it down thus : ' Was at Exeter on Saturday.' But let it be a rule with you, so far as practicable, always to take the very tvords used by the witness. As you pro- ceed, you will find that the evidence suggests to you matter to be explained on cross-examination, or to be answered in your speech for the defense, or to be contradicted by your own witness. Here it is that you will find the margin useful. When such an idea occurs to you, never suffer it to escape, trusting to recall it when it is wanted, for amid the multiplicitv OJ^ CONDUCT OF LITIGATION. of claims upon your attention, you can not be assured that it will return ; but grasp it instantly, and in the margin against the evidence that is so to be treated, set some mark which may catch your eye, and if the words are not likely to suggest the thought you de- sire to recall, you can in a hurried sentence insert there that of which you wish to be reminded. This plan is especially useful for the purpose of cross-examination, for it is extremely difficult to carry in the mind all of the evidence-in-chief that needs to be explained or deprived of its credit ; but with this scored and noted report of the witness's testimony before you, it is unlikely that anything of amount will escape your attention." ^ This advice is very judicious. A lawyer who has never tried it, will be surprised in a little while after he begins, at the number of notes he can enter in the margin for cross-examination, and yet make besides a good report of the testimony. Generally the notes of the trial should be taken by a counsel who does not examine. I have often fancied it to be the better practice to devolve on the leading counsel the duty of note-taking, from which he can easily prompt whatever examination he may wish made by his junior. The examination of a witness is no such mystery as is often alleged. It consists in asking proper questions, which will * Adv. 371. NOTE-TAKIXG. 331 often be better suggested by a listener than an ex- aminer. But it is not only the evidence of which the lawyer is to take notes. The rulings and action of the court, demeanor and conduct of witnesses, words of the opposite counsel and authorities read requir- ing attention, and all the other important occurrences of the trial are to be briefly recorded. The lawyer will rely on these carefully taken and accurate notes, to prompt him in examining the witnesses, in shap- ing his counter-evidence, in preparing his argument ; and it must not be forgotten in providing himself with sure grounds of a new trial if the verdict is adverse. Some of our lawyers eschew all memoranda, and surprise by their wonderfully-accurate preservation in memory of everything which happened and was said during the trial. But even this highest achievement of the unaided memory is far inferior in efficiency to the careful contemplation of a full report of the trial, spread on paper before the eyes. The counsel, reviewing his notes at night during the trial, will often detect inconsistencies, and other weak points of his adversary's case, which would have escaped him altogether if he had kept no notes. He detects thern because they are before his mind's eye a sufficient time. Two horses, if met 332 CONDUCT OF LITIGATION. apart from each other, may seem to the most obser- vant of the same color; hut when actually compared together, will be seen to be very different. We sometimes mistake one person for another, and we are often effectually cured when we have once met both of them together. This, then, is a certain superiority of note-taking over the best-trained memory alone. The testimony and other important occurrences, can be reviewed over and over to the the last extreme of accuracy. We have already remarked heretofore, how more accurately our day and generation study particulars, than any which has gone before. And we have also noted that trials become more sifting after the truth. The lawyer who masters all the details of his cases is called for on all sides, and no other can have much standing as a practitioner. For this reason, then, he can not dispense with note-taking. It is notorious that the attention is ever napping over details seemingly trivial. But the note-taking must never flag, and it will preserve for future use many things that would have othenvise been lost. The great mass of our profession, even the ablest and most gifted, have not that quickness of appre- hension, and that fixity of first impressions which will enable them to recollect fully. I will give an instance to illustrate my meaning NOTE-TAKING. 333 I once knew a lawyer of good parts and fair stand- ing, who could hear the longest document read in court, and long after the trial, without ever having refreshed his recollection, he could give you the substance of the minutest- particular as he had un- derstood it. He was opposed often by a lawyer 01 greater power, but his inferior in the respect men- tioned. The latter would carefully scrutinize and read and re-read any document put in evidence, and when he came to notice it in his argument, was as vastly superior in his comprehension to the other, as that other was to him in quickness of apprehension. The greater lawyer of the two, one who w^as the monarch of the Bar for almost forty years, owed his wonderful success to his precise and accurate knowl- edge of the details of his cases, and this knowledge he got from something that often seemed to be nothing but poring over them. The following passage describes the custom ot Choate, who has left a reputation as a lawyer more enviable, if possible, than that of the great William PiNKNEY : "He took constant and copious notes in an indescribable and incomprehensible hand. He would write on up to the very last moment before rising to address the jury. 331 CONDUCT OF LITIGATION. " When he came to address the jury, two-thirds of his argument apparently would be written. " Every ni.o;ht during a trial he took home his notes ; collated, digested, and re-arranged them with reference to the final argument. "He was critically careful to have every word down on paper which was uttered in evidence ; and if he was called out of court at any time for a few moments, he would compliment some young member of the Bar or student who happened to be near him, by placing him in his seat, to continue the notes of the evidence while he was gone." ' Of course none of us feel constained to follow exactly the plan of Choate's note-taking. But his desire to make up for his own use a complete report of the trial, as well as a draft of much of his speech, should be attentively meditated by those who disre- gard such helps. In this careful, extensive, and accurate note-taking, Choate seems to me a fore- runner of the coming Bar, who will sift all things too thoroughly to be often caught in blunders. The most important note-taking is that of the testimony. A faithful report of it should be kept If practicable, every word of the witness should be ' Reminiscences of Rufus Choate, 140. NOTR-TAKING. 335 taken cown. But if the trial is too rapid for that, let the substance of everything important be taken down. Often in cases of sufficient magnitude to jus- tify such an expense, a reporter is hired by the par- ties, and each side can use the report. But it is highly necessary that you have notes of your own, that you may overlook at your pleasure. The practice of Choate, in reviewing and re- arranging his notes every night of the trial, deserves attention. All the striking things in the testimony should be carefully gone over at every opportunity, and prepared for the argument or the future conduct of the evidence. The contradictions and conflicts in the evidence, the attacks on some material witness, the preponderances of your adversary, and those of your owai, ought all to be thoroughly digested at every interval of the trial, and put in convenient memoranda for instant use. This digesting your notes is something like the systematizing of the day-book and journal, which is wrought by posting the ledger. All of the young men now coming into the profession should, if possessed of the means and ability, master phonography. Who of us has not desired the faculty of taking down as rapidly a? words can be spoken, the opening of the case, the documents read in evidence and the oral testimony 336 CONDUCT OF TJTIGATION. the speeches, and the instructions of the court ? We do not know yet all of the wonders which the phonographic alphabet will work. It will probably relieve the overworked telegraph, and approximate the intercourse of the deaf and dumb,' in rapidity, to the interchange of speech. And we see what a rev- olution it is going to work in judicial proceedings. But when the courts all have their phonographic reporters, each lawyer will have the same need for his own notes, to examine ad libihiin. But if you are not a phonographer, and you will only be in earnest to report every trial fully, you can do wonders in long hand. Do not be flurried. Use every interval of objections, useless questions and answers, and you will generally be always up. Note everything. Of course you w^ll take down the evidence fully ; but do not stop with that. Note all the points taken, rulings of the court, and authorities read. And let it be your desire, above all things else, to have your notes so accurate that not the most jealous adversary or friend can detect an addition or omission. We will now close this chapter, hoping that if we have not said all that can be said, we have at least so suggested it that it will occur to the reflec- tive reader. CHAPTER VIII. THE ARGUMENT. The evidence all being in, the case is sometimes submitted without argument. The jury will then hear the instructions of the court, which we term here in America, the charge, but which our English brethren call the summing-up. Oftentimes you will feel it better to offer your adversary to dispense with all argument. The case may be one too bad to argue, or it may be too strong to be hurt by argument. Flere you must exercise a sound discretion, and I note among the courts which I have frequented that argument is too often insisted upon, even by that side which has nothing to make from it. One of the first lessons which a lawyer must learn, to make himself a successful practitioner, is not to over-rate the power and influence of forensic speaking. It is but rarely the province of the speaker, either addressing the court or jury, to do anything more than to show that he is already entitled to the judgment or verdict which he seeks. But there is often conduct of cases upon the as- 338 CONDUCT OF LITIGATION. sumption, that an ingenious speech may blind the jury to the facts, and hoodwink the judge. Judges are surprised into deciding against the law, and juries are sometimes duped into mistaken findings, but it is not as often as those may believe who have never carefully averaged results of trials and argu- ments. In the palmy days of Grecian and Roman elo- quence, the sway of the orator was almost infinitely stronger than it is now. A popular advocate was a power that is unknown in the midst of our English and American civilization. And, as a consequence speech-writing or logomachy was a profession. The composer of a speech often gave it to some one else to deliver. Popular assemblies, dicasteries, and judges were expected to be carried away by fine speaking. And we must recollect, to understand the fame of the ancient orators, that in their time judg- ments and findings were rather the habitual result of excited feeling than of sober conviction. A regard for law, a spreading and deepening desire to have the rules of legal right and wrong uniform in their administration, and an increasing attention to and scrutiny of evidence, mark conspic- uously to the student of past history of even free countries, the progress of modern judicial procedure. And we should rejoice at this. For neither is the ARGUMENT. 339 law or the principles of evidence, and of right and wrong-, variable and full of whims, as compared vv^ith those waves of feeling of old which swept the liti- gant on to speedy victory or ruin. Our modern law differs more from the old by far in the persistence with which its remedies seek after securing parties from mistaken judges and juries, than in what we may term its code of sub- stantive rights. The great cardinal principles of right being the same everywhere, and so recognized, the legal principles informing the codes of all civ- ilized nations will be nearly the same. But in the administration of the law, there are found wonderful differences. In my judgment, the excellence of the common law is not that it is at all the perfection of reason, — for it is very far from it, — but it is in the encouragement which it gives to contending parties to fight on after the right. A public trial, a public examination of witnesses, a public argument, a judge deciding and a jury finding in the full eye- shot of the public, and at last, the writ of error, and a published decision to live through all time, — these devices to secure the right are the glory of the common law. The tendency goes on to make judges and juries more independent and impartial, and to see to it that they proceed according to known rules of law. A nd the advocate must recol- 340 CONDUCT OF LITIGATION. Icct this : he docs not wield the power of Pericles, or Demosthenes, or Cicero, when he stands up now. If he persuades a jury into a false verdict, his triumph is empty. If he cultivates his talents for duping and 'deceiving those who are to pass upon his arguments, he will be only causing for himself a reputation which will make his words as little attended to as those of the boy in the fable, who cried "wolf! wolf!" too much. The monitions of Mr. Cox should be weighed by every young lawyer who believes that he can train himself to win cases by mere speaking. At the close of his chapter on " The Reply," ' he says : " Above all, be fastidious as to the introduction of flights of oratory ; be as little poetical as pos- sible, and indulge in no ' fine phrensies.' Courts of justice are places of business where men resort for the despatch of earnest and serious affairs, and not for empty declamation and debating-club talk. The occasions are extremely rare that permit of anything more than a sensible, plain-spoken address to a jury ; enlivened, if you please, by a spice of humor, or a dash or two of wit fairly suggested by some person cr event on which you are required to comment in due course. But let nothing tempt you to be eloquent about mere matters of business ; ' Adv. 472. ARGUMENT. 341 to rhapsodize upon a tradesman's bill, or to scatter the flowers of oratory over a right of way." The province, then, of the advocate is narrowed and that of the sway of the law has much enlarged and seems to be still enlarging. And it seems to be the essence, therefore, of a fit argument that it show, if it can, how the client is under the law, and the evidence entitled to the verdict. If the right is against you, palpably and mani- festly, you should not try to show it to be for you. Here the law does not require of you to speak falsehood If you have done your whole duty, and have brought out all the case of your client, and yet the evidence or the law, or both, are so clearly against him that all hope is gone, you should mag- nanimously surrender. Argument is useless. You should not even desire to succeed here if you could. But the great majority of cases are, to say the least, doubtful to the counsel engaged. They can not be impartial, and if you honestly conceive after hearing all of the evidence that you ought to have the verdict, or that it is debatable who should have it, of course it is your duty to strive for it to the utmost. The party holding the affirmative of the issue, is generally entitled to open and to conclude the argu- ment, if both sides have introduced evidence, but the party holding the negative of the issue will open and 342 CONDUCT OF LITIGATION. conclude if he has put in no evidence. A lawyer is sometimes seen to sacrifice advantages of evidence to gain, under a rule of practice prevailing in many of our states, the opening and conclusion. He will introduce no evidence for the defendant, that he may have the last word in the argument. Of course, if the plaintiff has wholly failed in his evidence, or you are willing to submit the case on it, feeling that you can not strengthen yourself by additional proof, it is wrong for you to decline the advantage of the reply. But I never yet knew a sacrifice of evidential advan- tage by the defendant for the purpose of getting the last word, to be followed by anything but an adverse verdict. We have already, in a prior chapter, adverted to the English usage of making most of the argu- ment before the evidence is all in. Our rule is far better. The other inverts the natural order, and the commentary is to be meditated before the text is read. We do not argue the evidence to the jury, until they have heard all of it. The essential, there- fore, of an address to the jury, is comment upon all the evidence. But the speech will often contain argument for the court, for we have encountered again the distinction of law and fact with which we have so much to do in practice The legal positions of the ARGUMENT. 343 counsel arguing must be stated to the court, and often argued in the midst of his speech to the jury. If, therefore, the law or its application is in dispute, it behooves the counsel to make the court clearly see his positions. Oftentimes the whole controversy will turn on a legal question, and again, both sides will agree as to the law, and yet dispute over the facts. Whatever may be its nature, the counsel must make the court clearly see it. No lawyer should, in arguing his case, fail to command the attention of the judge to the real issue and its nature — whether it is all of fact, or all of law, or mixed. And it is well for him to sound the judge on matters of law. The non-communication between counsel and judges in arguments in America, is far behind the English practice. Judge Redfield says of the English custom : " In consequence of the constant questioning of counsel by the judges, aod the intimation of difficulties, it more commonly happens that legal questions are argued mainly upon that side where the court feels difficulty, and thus much time is saved in the trial." ' If your judge is silent and reticent, draw him out, and let each of you understand the other as soon as possible. You take aim in the dark and shoot at random, if you do not know whether he understands ' Law Almanac (1S70), 74. 344 CONDUCT OF LI TIG ATI ON. you, or whether, if understanding, he agrees oi dissents. I need not stop here to write a treatise on mak- ing law arguments. Such a book is but little needed. It is only my purpose now to deal with such an argument as a matter of ordinary practice. And I have but little more to say, than that it is incumbent upon you after finding the court agrees with you to confirm him if you can, or if finding that he dissents, to convince him if possible that you are right. Your own discretion will tell you better and better, as you grow older in practice, when to yield, and when to persist. As the law is year by year generalized more comprehensively, and digested more thoroughly, and arranged more accessibly, there is less and less necessity for long and abstruse law argument. The great need for the head of the lawyer is in analyzing, and rightly grouping the facts and details of his cases. And having mastered the details, he is to make the court and jury understand them too. His addresses, therefore, to the jury, or what ever tribunal passes upon the facts ,in stead of de- creasing in importance, are slowly becoming more important, while the law is simplifying, the facts and details of cases are becoming more intricate. Such is the natural tendency of civilization. Our ARGUMENT, 345 business transactions, and almost everything else connected with modern life, become more involved and complicated. This, therefore, lengthens trials, and it lengthens arguments to those who must be made to understand these matters, requiring more and more time to be understood. Our civilization having long used juries to preserve liberty, protect our other rights, and educate and elevate the people, may after a while do better to instrust the finding of facts to other deputies. But even then, there will be the same augmenting complexity of human affairs, and the same necessity of their most patient study by those who would discover the right. A head for facts and details is better for the practicing lawyer, and, paradoxical as it may seem, better too for the judge than a head for the law. If carefully contemplated, the surpassing excellence of Lord Eldon's decisions will be found to be in his com- plete mastery of every detail, however trivial, of the case. Of course, then, that counsel would have the most sway of this great chancellor, who could best familiarize him. with these loved particulars, and make him see them in their true analysis and group- ing. This is the effectiveness of all good speaking, whether long or short. It is told of the subject of his entertaining bio- graphy by Mr. Parton, that " Burr valued himself 346 CONDUCT OF LITIGATION. little upon his oratorical powers, and he used to say that he had seldom spoken with pleasure or satisfac- tion to himself. His pleadings at the bar were more in the style of conversation than oratory, it is said ; the conversation, however, of a well-bred, thoroughly- informed man of the world. He never declaimed. He was never diffuse ; a long speech he never de- livered in his life. In concise, precise, and therefore simple language, he contrived to clothe the essential points of his argument, and to lodge them in the mind of judge and jury so firmly, that no bursts of eloquence from the other side could remove them. There was a vein of quiet sarcasm in some of his speeches which, it is said, was exceedingly effective. With a manner always serious, he occasionally rose to be impressive, and produced effects upon the minds of his hearers that were long remembered." The shortness of Phocion's speeches is cele- brated. " Once when about to speak in public, he was observed to be particularly absorbed in thought. ' Vou seem meditative, Phocion,' said a friend. ' Ay, by Zeus,' was the reply, ' I am meditating whether I can not in some way abridge the speech which I am just about to address to the Athenians.' He knew so well, however, on what points to strike, that his telling brevity, strengthened by the weight of char- acter and position, cut through the fine oratory of ARGUMENT. 34; Demosthenes more effectively than any counter- oratory from men like ^schines." ' But this brevity is only telling because it pre- sents the case. And speaking is purposeless and ineffective if it docs not facilitate the understandinof of the subject. The first duty of the counsel addressing the juiy, is to make them see the whole case made by the evidence. Some of it may have escaped their attention. Documents may have been put in evidence and not read. But it is not necessary that he review the whole case at the outset to refresh the jury's recollection. As each group of facts is presented in its natural order, it will generally be right for him to state clearly any testimony belonging to it which he may have cause to believe that the jury does not understand. The purpose of a speech is to show either that vour adversary has failed to prove his case, or that your combinations are more weighty and superior to his.' The results of your long preparation, and all the accumulations of the trial in the notes added to your brief, will crowd your speech. As we have often said, this is no place to treat of the law of evidence. That manual is full of rules for weigh- ing testimony. And besides there is a wisdom ' Grote's History Greece, chap. Ixxxvii. 348 CONDUCT OF LITIGATION. which the lawyer must have which is not learned from books. It is that which we in our usual talk call common sense. This quality teaches him what to believe and what to discredit. The caution of Mr. Cox is excellent : " Remember this also, that juries do not under- stand very nice distinctions and refined arguments ; they usually take broad views of a case, and you should endeavor as much as possible to meet it after their fashion, looking at it broadly, dealing with its most prominent features, attacking obvious defects, and treating it rather as a matter of common sense than of subtlety. If you can thus deal with it by an appeal to their common sense, and it offers material for you to make its insufficiency plain to ordinary minds, be careful not to quit these its broad and ob- vious features for those more refined and delicate dis- tinctions and arguments, which are intelligible only to an intellect as refined and practiced as your own in the discernment of minute resemblances and differ- ences." ' There is little left for me to say in this chapter. The mind that understands a good preparation, and has kept up well with the trial, being able at any time to strike, as it were, the balance between the two sides, will know well what is to be said, for the ' Adv., 448. ARGUMENT. 349 speech at the bottom is but a presentation of these things. And the object of your address will be to explain fully your case, showing that the case of your adversary is but illusory. When you have made the jury and the court see clearly the supe- riority of )''our side, you have done. Argument should be exhaustive, without being wearisome. But in intricate mazes of evidence, where conflict is piled on conflict, you must often draw largely on the patience of your auditors. It is their duty to hear you, and it is your province to make them understand all of your case. The great RuFUs Choate said : " I have been so often disap- pointed in the sudden turn which jurors' minds take, I have proved them false on such trivial points that, as I grow older, I argue every point, even at the risk of tedium." ' The subject of elocution is foreign to this work. I can not, however, refrain from recommending the wise counsel given by Whately in his " Rhetoric," as to the adoption of the natural manner in speak- ing, and the still more scientific views of Bautain, in his " Art of Extempore Speaking." These two authors with great brevity and clearness set forth more of value than I have seen in all other books. They are worth to the modern who would undcr- ' Reminiscences, 502. 350 CONDUCT OF LITIGATION, stand the needs and essentials of extempore speak- ing, a hundred fold more than Cicero, Quintilian, and Aristotle. The tricks, deception, and excitation of the lower passions by speaking, as Shakespeare represents Antony making turncoats of the mob of Rome on the spot, and then triumphing to himself over his achievement, are no longer potent. Our Pinkneys and Websters, by reason of the fullest and most precise and accurate knowledge of their cases, con- vinced the understanding rather than aroused the feelings. And the reader of the far-famed speeches of Erskine, which we rejoice were so carefully cor- rected by himself, sees that his wonderful power was in the mastery of his case. He understood all the facts and details. We have already called attention to the careful note-taking of Choate, and his industrious revision of his notes every night during the trial. The secret of good speaking and even of eloquence, will be found in the due attention to those duties of preparation and conduct of the trial, to which we have already devoted so much space. It is only now and then that a case is won by a speech. Occasionally a jury is deceived into a finding which should be set aside, by the oily tongue of some wily talker. But the narrowing province of eloquence ARGUMENT. 351 at the bar, is in those cases where public feeling and sympathy are against the right. For success in these difficult cases I can give no sure recipe. Courage, persistence, and the most careful prepa- ration, demonstrating the right over and over, if possible, should precede the speech. In the ordinary average of cases, one lawyer of fair speaking ability is about as effective as another. But there are cases such as we have just mentioned, which should be argued by the best speaker accessible. Any sound and cool-headed lawyer will know how to select him. The motto of the advocate should be, to see to It that he lost no good case. That was high praise bestowed on the great lav/yer, when it was said of him that he could not win a bad, nor lose a good one. No advocate should ever throw off his alle- giance to law and justice. He is a lawyer. Even when defeated, if the law is administered, he should rejoice. The following picture by Lord Campbell of the King's Bench, under the auspices of Chief Justice Abbott, should be carefully meditated : " Before such men [Littledale, Bayley, Holroyd, besides the Chief Justice] there was no pretense for being lengthy or importunate. Every point made by counsel was understood in a moment, the appli- cation of every authority was discovered at a glance, <-he counsel saw when h6 might sit down, his case 352 CONDUCT OF LITIGATION. being- safe, and when he might sit down, all chance of success for his chent being at an end. I have practiced at the bar when no case was secure, no case was desperate, and when good points being overruled, for the sake of justice it was necessary that bad points should be taken ; but during that golden age, law and reason prevailed ; the result was confidently anticipated by the knowing before the argument began, and the judgment was approved by all who heard it pronounced, including the vanquished party. Before such a tribunal the advocate becomes dearer to himself by preserving his own esteem, and feels himself to be a minister of justice instead of a declaimer, a trickster, or a bully. I do not believe that so much important business was ever done so rapidly, and so well, before any other court that ever sat in any age or country." Of course zeal for our clients will often pull the most cool-headed away from the apparent right and justice of the case. But the advocate should so bear himself, that he can feel at the close of his career, that in all of his arguments he has been, to use Lord Campbell's words again," a minister of justice, instead of a declaimer, a trickster, or a bully." The law does not expect him to blacken good character, defeat justice, and make the wrong triumph. He should not debase his nature by trying to pervert the ARGUMENT. 353 truth. His influence and power and sway, even in speaking, will grow with his increasing years, if his hearers have found out that when he rises he says only that which he believes. There is nothing which can vanquish, in the average of cases at the bar, accu- rate insight coupled with perfect honesty. He, who from first to last of a long trial, never gets the mi- nutest part of the testimony wrong, and who neither suppresses nor misstates anything, who goes over all of the proof, giving the substance so accurately that no good man of sufficient mind to understand it can dispute with him, is a dangerous advocate at Nisi Prius. He is soon found out where he practices, and if honest, as we have already said, court, jury and bar begin to lean on his superior poweis. The most skillful adversary may have the last word to the jury ; but at the first misstatement of material testimony, the spell and charm of oratory are broken under the inevitable and irresistible correction. We have said all that we care to say on this subject. Of course the speaker will make ample use of his brief and his notes of the trial, of the sugges- tions of his associates, and will thus say all that he should say. The plan of his speech should be sketched on paper, and firmly grasped in his head, and nothing but some overruling justification should make him depart from it 23 CHAPTER IX. NEW TRIAL AND APPEAL. ArTER the argument, you will diligently note the instructions of the court to the jur}'-. You will also, in case of an adverse verdict, see if there is any ground of arrest of judgment. Our pleading, however, is fast becoming so untechnical and inar- tificial, that the motion in arrest has almost dis- appeared save in the criminal practice. If you are satisfied that you have not received justice in the verdict, you will, if you conceive that you have valid grounds, move for a new trial. But you should here exercise the same deliberation which we have advised you to use over a case offered you. The courts lean strongly against new trials, and you must be able to show some valid and material complaint, either against the action of the court or the jury, before you may hope to secure another hearing. Your client will be controlled b)- you, and you will find it to be generally right not to encourage him to strive for a new trial, if you can see that the verdict is the result of no partiality, nor mistake nor misdirection. NEW TRIAL AND APPEAL. 355 But oftentimes you have been unexpectedly pushed into a trial, or there is a strong and partial- izing- prejudice against your client, or the jud^c enlists against you, and life, or liberty, or fortune are at stake, and you see clearly that your case is in great peril Here you have need of all you] coolness, ingenuity, and quickness. And your fight will be not so much for the verdict, almost hopeless, but for a good ground of new trial. You must catch the court napping, or trap your adversary, or so strengthen your case on some cardinal point of fact, that an adverse verdict must be set aside. You have kept notes of the trial, and have, if it was long, revised them every night. In these you have a record of the objections you have taken to testimony, of exceptions to rulings of the court, and of everything else which may now profit you. And you have not neglected the privilege which the local law often gives you, of praying specific in- structions from the court, or of requiring his whole charge to be in writing. And you have time, too, to scan the too favorable instructions which perhaps your over-eager adversary has got from a judge too gracious. Nor will you fail to make scrutiny into the conduct of the jury, and avail yourself of any good cause which you may find there. We have all along reminded the reader that we are not 356 CONDUCT OF LITIGATION. writing a law treatise. So we will not stop to di- gest the various grounds of new trial. We take it for granted that the reader knows them. It is our province to enforce upon him here, as we have everywhere else, the great advantage and wisdom of an intelHgent purpose. We have already, in one of our chapters on Plan of Conduct, noted the duty of the lawyer in preparing his case, to have an eye to securing a new trial should he lose the verdict, just as a prudent general endeavors before the battle to provide himself with a sure way of retreat. But for all of your careful anticipation, most of your best grounds of new trial will occur to you un- expectedly. You must have the wit to know them as they happen. And at the soonest possible moment after the verdict, decide upon what grounds you will move, and then at once procure the necessary au- thentication. Nowhere is procrastination more hurt- ful in the practice of the lav/. Only wait a few v^^eeks after a trial, and the judge has lost his notes, or if he has been too lazy to take any, he has for- gotten everything ; your adversaria's memory is often counter to yours, and you may see with chagrin that a good case has been lost by your sloth I have often fancied, while reading history, how eagerly some defeated general would have caught at -^.r opportunity t;) renew the lost battle, with all N£IV TRIAL AND APPEAL. 357 his wounded healed, and his killed raised from the dead Varro would have doubtless rejoiced to try Cannae over, believing that he could not again lose so tremendously. In the respect of a new trial, litio^ation has an attractive diversification to which warfare has nothing corresponding. Often liberty and right would win, if they could only have a new battle ; but they can not have it. But in forensic contest, triumphant wrong is again and again sub- verted under shameful defeat, by the same force which it had vanquished before. Nothing is more admirable than the spirit of a discerning lawyer, who will not endure in a good case an oppressive ruling or a partial verdict. He seems to know by divination when he can have the one reversed, and the other set aside. After such a defeat, he no more doubts the final success of his case, than the famous refugee farmer of old would take a less price for his farm, because it was then occupied by the army of the victorious enemy. The books will tell you when to dispense with a motion for a new trial, and rely only on a bill of ex- ceptions. I suggest to you that you always, when you can, give a jildge opportunity of correcting his errors. If you are convinced that the error is serious, show it to him clearly in arguing your mo- tion, and if you can, give him time to reflect By 558 CONDUCT OF LITIGATION. pursuing this course, you will often secure a new trial, when if you neglect it, you will not. For Courts of Errors always attach great importance to the action of the judge below. If he is dissatisfiea with the finding and sets it aside, they will rarely disturb his judgment. To sum up, then: (i) Have an eye in your preparation to provide for a new trial. The pecu- liarities of the judge, your adversary, and many other things will be suggestive. (2) During the trial, be always on the alert to secure a good ground, re- membering that Providence helps those who help themselves. (3) So soon as you can, after the ad- verse verdict, if you decide not to succumb, review carefully the whole track of the trial, collect your grounds and the evidence, and have them certified. We now leave the subject of New Trial with a word or two. One of the uses of the remedy is to insure justice not only to parties, but to lawyers, I am strong in the opinion that no lawyer ever loses anything by refusing to submit to a bad verdict or an oppressive ruling, even if he resists at his own cost. We must teach our equals of the Bar, and our superiors of the Bench, and the people, a wholesome respect for our pluck and ability. My next suggestion is that you rein in yourself during the trial, where you feel that you have the NEW TRIAL AND APPEAL. 359 upper hand ; and that you likewise check and hold back the judge who seems to en ist for you, that you may give your watchful adversary no oppor- tunity to undo your victory when you gain it. And my last word is that you take all good points. Of course the small, and the little, and the trivial, you will none of. But throv/ away none of your good chances. The young lawyer generally first makes his mark by showing spirit and capacity to reverse a careless or disrespecting judge. And now wishing you success before the Court of Errors, if your judge refuses you a new trial, and hoping that when you try again you will surprise your adversary with a new presentment and group- ing of your old case, which we sometimes call a new line, I take my leave of you, for there is so little additional to say about Appeal that I shall say nothing. CHAPTER X. VICTORY AND DEFEAT. If anything remains after the verdict, or its affirmance in the Court or Errors, to be done to assure the fruits of the victory, of course it must be energetically done. Negligence and supineness may make triumph empty. I once witnessed a trial of a seduction case, which was conducted admirably, and argued with such zeal and eloquence for the plaintiff, that the jury found large exemplary damages. The success- ful counsel went home, and when he had been there a few weeks, he heard that the defendant had left the state. He hurried down to the county-seat, and went into the office of the defendant's lawyer, and as soon as their salutations were over, the first asked where was the defendant ; the other replied that he had gone to , a city in a distant state. And why had he gone was asked again, when his host in- formed him gravely that the defendant had gone to that city to attend the General Assembly of the Presbyterian Church which was then sitting there and went on to remind his visitor that tlie defend- VICTORY AND DEFEAT. 361 ant's family, his mother and sisters, were zealous Presbyterians. The bird had flown. The plaintiff"'s lawyer made effort to subject some property for- merly owned by the defendant, but he failed utterly. Had he ordered the defendant taken in execution at once after getting the verdict, he would not have lost his fee, as he doubtless did. And when you are on the losing side, it will often require great moral courage to advise submis- sion to the inevitable. We have more than once before this reminded you, that you should discourage all useless strife. Hannibal was as great in influenc- ing his vanquished countrymen to make peace with the R.omans, as he was before at Cannae. When you see inevitable defeat approaching, get the best terms that you can, and control your client. I have seldom known any real disagreement between a law- yer and his client. The trouble is generally in the eagerness of the lawyer to win, and in his moral cowardice to give wholesome but unpalatable advice. But we can no more than other men achieve impos- sibilities. The vain counsel who believes that he can win any case, is fated to meet with disaster after disaster, and can never stand well with the practical men who have the most business and money for a lawyer. We sum up this short chapter, in saying (i) 362 CONDUCT OF LITIGATION. push your victories, and (2) capitulate in your un- maintainable cases on the best terms possible. Be not a party nor an inflamed partisan — but strive to set to all of your clients an example of obedience to law. FINAL CHAPTER. CHARACTER OF THE SUCCESSFUL LAWYER. Our two Books have been devoted to enucleat- ing and exemplifying the principles of right conduct of litigation. We have here and there, in various places, casually let fall many hints as to the different traits and qualifications of the successful lawyer. It is now time that we make, even at the cost of some repetition, a full delineation of him who is to skill- fully and efficiently use our counsels in the practice of the law. The successful practicer differs as much from the author of able and learned legal treatises, as a good farmer differs from a profound agricultural chemist. The principles of law or of chemistry are of the first importance to the legal or scientific author, and he bends all things to their proper presentation. But the lawyer only uses his books to win his case, just as Mr. Mechi.the foremost English farmer, only asks of Baron Liebig how remunerative crops may be made. As we have detected many resemblances of liti- gation to w^arfare, our readers have doubtless al- 364 CONDUCT OF LITIGATION. ready suspected that he who conducts litigation— that is the practicing lawyer — is in many points of character like him who conducts warfare — that is, the general. Here is Marmont's analysis of the general, taken from the celebrated " Spirit of Military Institutions"- " The art of war, considered as to what constitutes the profession, is entirely combination and calculation. "Two things are requisite in a general : intelligence and firmness. The former, because without that there are no combinations ; at the outset the army is defenseless. The latter, because without a strong and tenacious will, the execution of the plans con- ceived can not be assured. But here relative quali- ties govern absolute qualities ; firmness must rule intelligence. In this relation is found the element of success. If we desired to estimate by figures each of these faculties, I should much prefer a general possessing intelligence as 5, and firmness as 10, to one having intelligence as 15, and firmness as 8. When firmness governs intelligence, and mind has a certain rano-e, we move alonsf towards a defined aim and have chances of attaining it. When the reverse is the case, opinions, plans, and direction are changed unceasingly, be cause avast intelligence at every in- stant considers the questions under a new aspect. CHARACTER OF THE LAWYER. 365 If force of will does not secure us from these changes, we float among the different schemes, adopting nore definitely (the worst feature of all), and instead of approaching the goal, a shuffling march often leads us away from it, and we are lost in wanderings. " And. yet the conclusion would be wrong that there is no need of much mind to accomplish great ends. A mediocre mind is not to be found in any of the great generals of antiquity or of modern times — in any of the great historic names which march through the centuries above their fellows. Alexander, Hannibal, Scipio, Caesar, possessed the highest faculties of intellect. It was the same with the great Conde, Luxembourg, the great Eugene, Frederick, and Napoleon, But all these great men to a superior mind added still more strength of ch aracter." ' The celebrated author means that the general is a man more of action than contemplation, and there- fore force of will, which prompts to action, must be in his character in excess of intelligence, or force of intellect, which prompts to contemplation. The genius of the lawyer and of the general is practical, while that of the great law author and eminent military writer is contemplative. The lawyer shows * Coppee's Trans. 252, et seq. (Philadelphia, 1S62.) 366 CONDUCT OF LITIGATION. his genius in preparing and trying cases, and the law- author shows his special gifts, in deciding whether the decision of the case tried is right or wn^ong. And the judge, in that his genius is practical too, is more like the practicer than he is like the author. Both judge and lawyer decide legal questions in the same way, and by the exercise of tne same facul- ties. The lawyer must be the quicker of apprehen- sion, and more inventive. He must not only decide on a case presented, but he is also in its conduct to do something else which never troubles the judge : that is, he must select the questions to present. He selects, presents, and argues, and then the judge de- cides. Both the judge and the successful lawyer are inferior to the great law-author in deep and scientific knowledge of the law, but they have a marvelously ready command of the legal principles that are ordi- narily applied, where the one presides and the other practices. These principles they use as tools, and their expertness with them is often astonishing. No author has ever undertaken to give a complete enumeration and exposition of these legal principles of common application. But we know that their number is not infinite. No man can be said to possess the whole of them. Yet there are members of the Bar who lead in all important causes, by the spontaneous homage of every associate, and judges CHARACTER OF 11111 LAWYER. 367 born to decide aright, who do almost understand thoroiighlv most of them. Note one of these lawyers tr}dng a case. Every exception or point that he takes, even if not well taken, he supports by some principle which you can not controvert, though you may show that he is misapplying. It would frequently puzzle him were you to gravely demand of him authority for some rule which he assumes. Such rides of law — that is, those controlling the average of cases — are allowed as soon as cited, and the superiority of the practitioner is quickness in seeing what rule decides a case presented. He does not learn this as much from books as a great man)'' believe. He learns nearly all of this mastery of law, by practicing law. The books contribute to his professional education, but their contributions are mainly the rules of law which he plays with as his counters ; his easy command of these rules is not learned from books, as the knowledge of the great law-author is acquired. But this dominion and sway of principles, this practical wisdom in the law, come from whatever quarter it may, is a necessary and important element in the composition of the success- ful lawyer. But although tnis element is so important that the lawyer derives his name from it, there is another intellectual element in his composition of still more 368 CONDUCT OF LITIGATION. importance, namely, — a head for facts and details. We can make ourselves plain here without being very profound. Details, when numerous, must be systematized to be understood ; that is, they must be decomposed into their component elements, and then appropriately arranged. The particulars found to be like each other will be thrown together into groups, and the groups will be next collocated in true rational order. Take, as an instance, an author at work digesting a series of law reports. He reads a case, and picking out the points, he puts each one under its proper head in the accepted vocabulary of the law. This illustration is very nearly the same as the work which the lawyer must do with the de- tails put in his possession by his client. The facts, the details, be they the jarring and conflicting testi- mony of many witnesses, or a pile of documents more conflicting still, must be first analy^jed, and then rightly generalized, in order that the lawyer may discover what case they make. And this is the talent of the historian, who reads the times long past aright, piercing the haze and fog of con- temporary writers. And it is the talent, too, of the scientific man, the skill and glory of Newton and Herschel. To analyze aright, and then classify aright, is the particular talent of them all. The lawyer develops it more and more, and he cultivates CHARACTER OF THE LAWYER. 369 it more exclusively. You vvik find him, as he grad- ually shoots up into leadership, studying law less in the books as a daily set exercise, and giving the best hours of his time to familiarizing himself with the particulars of his cases. He will often make an elaborate preparation without looking into any law more recondite than a few of the local statutes, or some of the local decisions which he has found an- notated on them. The older he grows, the less authority he reads, even to the court of last resort. When you contemplate him closely, you will see that his great business is not with law as a science, but with the facts and details of his cases, which, when he has properly grasped and presented, he has many times little need for books. Now, before we move on, we will briefly recapit- ulate. There are two intellectual elements of the lawyer : one a head for the law, and the other a head for facts. His command of law must be a facility in the application of its rules in common use. He must not only be quick to think of the right rule, but he must be able to quickly apply it, and demonstrate the soundness of the application. But the other element is the more important. It is that talent which teaches the lawyer what case the facts make. The lawyer who sees this case often condescends to get his authority from an inferior 24 370 CONDUCT OF LITIGATION. There are many jackals of the law in the profession, who hunt down and capture the needed authority for the lions of facts. But these two intellectual elements a man must have to be a lawyer. Now, the intellectual root, which branches out into both of the talents which we have been describ- ing, is insight. Sometimes we call it acumen. This vision of the truth, either of facts or of the con- trolling legal principle, is the community of the two faculties of the lawyer. And this intuitive percep- tion has been long recognized as a sine qua iion of all genius. Lord Bacon recognized its dominant importance when he said : ''Prudens intcrrogatio quasi di^nidiuvi scientics" which he translated — " A faculty of wise interrogating is half a knowledge " ; and he cited a 2;reat authority when he continued : " For as Plato saith, ' Whosoever seeketh, knoweth that which he seeketh for in a general notion, else how shall he know it when he hath found it.' When Napoleon said that the art of war was all in being the stronger on a certain point, he implied for the successful general ability to see what was the decisive point, and also how he could be stronger on that point. And the lawyer must likewise divine the controlling points of the case, and he must, be- sides, see how he can have the ascendency, if it is possible, on these. This intellectual vision precedes CHARACTER OF THE LAWYER. 371 any action, for it dictates action. How often we hear the phrase used of some blundering arguer in court, ' he does not see the point." Now this well illustrates the perception of which we speak. We will give from Mr. Bishop's " First Book of the Law," an interesting example, to show the im- portance of accurate insight : " Some years ago, a deputy-collector in one of our custom-houses was bribed, and he procured per- mits for the landing of large quantities of foreign goods, on which duties were not in fact paid. The permits bore the genuine signature of the proper officer, they were in all respects coiTcct in form, and all the formalities attending any case of regularly passing goods through the custom-house were gone through with. After the fraud was discovered, some of the goods were seized by the collector ; but on looking into the statutes, he found no one which seemed to meet the case. There was an enactment against landing goods without a permit, and there were various provisions for particular irregularities by the importer, in passing his goods through the custom-house. The collector, there- fore, after getting all the legal advice he could, and finding, as it was supposed, no statute to meet the case, gave back the goods he had seized, and con- cluded nothing could be done. Some of the goods 372 CONDUCT OF LITIGATION. were taken to other collection districts, and elTorts were there madj to hold them ; the various legal advisers of the government, and other lawyers called in, had consultations, and it was determined definitely that nothing could be done. " In this state of thing-s, some dealers in the same kind of goods, finding they were undersold by the holders of goods on which no duties had been paid, went to counsel who had not been in the other consultations. These persons were thereupon advised that if the collector would make a fresh seizure, the goods could be held. This was done When the case came before the court, it was seen that the new counsel had presented it as an ordinary one of smuggling, just as though there had been no permit issued ; in other words, the very existence of the permit was ignored. And when the defendant brought forward the permit for his protection, it was simply shown to have been procured by the fraud of bribing the deputy-collector : rendering it in law a nullity. . . . As soon as this legal principle was suggested, the whole scene was made light. The result was that without further difficulty a decision was obtained from the court, pronoun- cing the goods to be smuggled. The goods in the other districts were also seized and confiscated." ' ' Bishop's First Book, §§ 124-125 CHARACTER OF THE LAWYER. 373 This counsel last consulted, to use the common colloquialism of the Bar, saw the poiJit which the others had not seen. And the case, besides illus- trating the command of the rules of law usually administered in the courts, that the successful prac- titioner must have, also exemplifies the superiority of that insight or acumen, which is the main intellectual ingredient in the composition of every lawyer born to lead. Nothing could be more familiar and hackneyed, than the principle which the triumphant counsel invoked. When he an- nounced it, even the laymen in court doubtless sav/ that he was right. It was another Qg^ of Columbus. And to brightly elucidate that which seems dark and intricate, with some homely legal principle, is what the good lawyer does eveiy day. And his superiority is in seeing that there is really no confusion, and that the veil hiding the truth is rather imaginary than real. And he will show the same acuteness in matters of evidence, and will clearly see therein a meaning and potency which others over- look, until he chooses to show them, and then for a long while they can see nothing else. I once noted in a trial, a singular obscuration of the question at issue to both court and counsel, and both of the counsel were deservedly eminent, and the judge was one of the quickest, and acutest men I 374 CONDUCT OF LITIGATION. ever knew. The issue submitted to the jury, arose under a local law out of a distribution in kind of an intestate's estate between two heirs. One con- ceiving that he had not received his full share, sued the other in order to be equalized. The defen- dant contested solely on the facts, urging that the plaintiff had been fully equalized. There was much testimony on both sides, and the evidence strongly preponderated, that the defendant's portion exceeded in value that of the plaintiff 's, say $i,ooo. Now the counsel for both sides in their openings and arguments, and the quick-sighted judge in his instructions, all assumed that the jury should find for the plaintiff whatever amount the defendant's share exceeded the other's in value. Just as the jury retired, an old layman who had long made a respect- able figure in that court as a grand juror, and who was then permitted a seat inside the bar, approached the judge and laughingly said to him in an under- tone, " You have only put the boot on the other leg." " Bring that jury back," roared the judge to the bailiff, who at once obeyed. " Gentlemen," resumed the court to the jury, " I have made a great mistake. If you find that the defendant's share exceeds the plaintiff's in value, you will then find for the plaintiff one half of such excess." The yxxy ratired again, and soon returned with a verdict .n CHARACTER OF THE LAWYER. 375 accordance with the last instructions. This was a similar defect of vision in the counsel and the judge, to that of the lawyers who laid their heads together over the fraudulent permit, and it was remarkable that what seemed so plain at last, had not been seen from the first. This was another Qg^ which stood up on its broken end. Examples would be multiplied to no good pur- pose. Every lawyer's experience affords multitudes. We are only now calling attention to the tran- scendent importance in the practice of law, as well as in all other human undertakings, of seeing things right. This talent or genius, call it what you may, if coupled with a preponderant force of will, as insisted upon for the general by Marmont, in the passage cited above, spontaneously exalts its possessor to command in any business of life that he may make his own. Themistocles meant to claim this crown for himself, when he erected near his house the private chapel, " in honor of Artemis Aristobule, or Artemis of admirable counsel." But it is to be remembered that the moral element is yet more important. Not only history, but the experience of any observant man, is full of instances of men good in counsel, but deficient in action. And we must again make use of Marmont's distinction, when he says, as we have already quoted 3/6 CONDUCT OF LITIGATION. in this chapter, that the general's force of character must be superior to his mind. It seems that Shake- speare intended his Hamlet to represent that type of characters, whose great minds are joined with feeble wills. Colridge's criticism is accurate : " In Hamlet he seems to have wished to ex- emplify the moral necessity of a due balance between our attention to the objects of our senses, and our meditation on the workings of our minds — an equilibrium between the real and imaginary worlds. In Hamlet, this balance is disturbed : his thoughts and the images of his fancy, are far more vivid than his actual perceptions, and his very preceptions instantly passing through the medium of his contemplations, acquire as they pass a form and a color not naturally their own. Hence we see a great, an almost enormous intellectual activity, and a proportionate aversion to real action consequent upon it, with all its symptoms and accompanying qualities." The ^amlets of the Bar, who sec and understand all your points, and are full of valuable suggestions for you, never work except spasmodically. They seem born for contemplation, instead of action, and their position at last becomes rather that of amuz curicB than that of practitioners. The good lawyer is pre-eminently a man of action. CHARACTER OF THE LAWYER. ^^yy n^ can no more rest if he would, than Napoleon could have done in Italy surrounded by the Austrians. Day after day, adversaries attack him or force him to attack, until when he is in large practice he is inclined to say with Macbeth : "The flighty purpose never is o'ertook, Unless the deed go with it. From this moment, The very firstlings of my lieart shall be The firstlings of mv hand." Shakespeare makes Hamlet, as he sees men ot resolute action marching off to war, exclaim upon his halting self : — " What is man, If his chief good and market of liis time Be but to sleep and feed.' a beast — no more. Sure he that made us with such large discourse, Looking before and after, gave us not That capability and godlike reason To fust in us unused. Now, whether it be Bestial oblivion or some craven scruple Of thinkiag too precisely on th' event — A thought, which, quartered, hath but one part wisdom, And ever three parts coward — 1 do not know Why yet I live to say, ' This thing's to do.' " This passage presents the hesitation of the man of mind, who will not act with profound psychological insight. The character of Themistocles is the opposite of the lagging Hamlet, and he is perfect in both in 378 CONDUCT OF LITIGATION, sight and promptness of action. He sees instantly and he acts instantly. To borrow from Shakespeare again, he does not think too precisely on the event, and the very firstlings of his heart are the iirstlings of his hand. Grote, paraphrasing Thucydides, says : " He [Themistoeles] conceived the complications of a present embarrassment, and divined the chances of a mysterious future, with equal sagacity and equal quickness. The right expedient seemed to flash upon his mind extempore, even in the most perplexing contingencies, without the least necessity for premeditation. He was not less distinguished for daring and resource in action : when engaged on any joint affairs, his superior competence marked him out as the leader for others to follow, and no business, however foreign to his experience, ever took him by surprise, or came wholly amiss to him." ■ We will transcribe a short passage of Thucydides : " For Themistoeles was one who most clearly dis- played the strength of natural genius, and was particularly worthy of admiration in this respect more than any other man ; for by his own talent, and without learning anything towards it before, or in addition to it, he was both the best judge of things present with the least deliberation, and the History of Greece, chap, xxxvi. CHARACTER OF THE LAWYER. 379 best conjccturer of the future to the most remote point of what was likely to happen. Moreover the things which he took in hand he was also able to carry out ; and in those in which he had no expe- rience, he was not at a loss to form a competent judgment. He had, too, the greatest foresight of what was the better course or the worse, in what was as yet unseen. In a word by strength of natural talent and shortness of study, he was the best of all men to do off-hand what was neces- sary." ' Forgetting the corruption of Themistoclcs and his treachery, and looking only at him as a man of action, his character is almost ideally perfect. We may not expect to parallel him in the dull rounds of our little professional lives, but it will surely give us a clearer conception to our great profit of the full- summed man of action, to contemplate his perfection as handed down to us in history. The man of action must have courage, which for the lawyer and general means rather coolness and self-command, than the more common notion of bravery. He who in the most desperate straits, such as the unexpected desertion of a witness on the stand to the adversary, or the development of an entirely misconceived case of the opposite party, 1 Thucyd. I. 13S (Dale's TransJation). 380 CONDUCT OF LITIGATION. never loses his self-possession, but instantly does the best that he can, has the necessary courage. This courage keeps the eyes always open, and things are seen right. To see right, we say again, is the highest achievement of genius. To see danger right is at the same time to see the true escape. " Out of this nettle, danger, we'll pluck this flower, safety," said never-daunted Percy. What appears danger to the common man, is Seen by the good eye to be mere menace. Nor can conscious resolve, nor anger, nor passion, serve for this calm collectedness. Again we must appeal to Shakespeare, v/ho makes Enobarbus say of Antony, rousing himself passionately for a last effort with the conquering Augustus : " Now he'll outstare the lightning. To be furious Is to be frighted out of fear ; and in that mood The dove will peck the estridge : and I see still A diminution in our captain's brain Restores his heart. When valor preys on reason, It eats the sword it fights with." And another character in the same play philo- sophically says, — " never anger Made good guard for itself" How often do we see this exemplified in prac- tice. A suit or a defense counselled in heat, or any passionate conduct, nearly always ends disastrously. CHARACTER OF THE LAWYER. 38 1 Tlie good lawyer counsels neithci in anger nor in haste. And as the lawyer is so practical, he will be observed, as we have said before, avoiding, whenever he can, all questions both of law and fact, which he has not time to settle satisfactorily. He does not regard court as a debating club. His evasion of difficulties is instinctive. While the younger coun- sel are wrangling, he has forgotten the question, and is about to deliver battle from the vantage ground of plain and palpable truth. He avoids attempting impossibilities. There are many things which he knows to be stronger than himself. He husbands his strength and efforts for practicable achievements. He knows only the prin- ciples by which judges, out of a varying and many- sided nature, decide legal questions, and the influ- ences which lead juries, often changeable and mercurial, to their findings. In all of his calculations while he makes the necessary allowance for weakness, infirmity, and even ignorance, he assumes the arbiters of his cases to be honest. The question he proposes to himself, is by what principle shall I win 1 What authority or what reasoning will bring the judge to me here, and what combinations and presentments of my evidence will either convince or persuade the jury to find for me there ? But the pettifogger is 382 CONDUCT OF LITIGATION. known by his reliance on trick. His study is to devise deceits. He plays with loaded dice. He meditates a partial juror, a prompted witness, a distorted exhibition of the case, or some other sham by which falsehood is suggested or the truth sup- pressed. But the true lawyer knows that, like warfare, litigation has, too, its code; and that however hard he hits, he must fight fair, and always obey the well- established laws of honorable combat. It is hard to describe the character of the suc- cessful lawyer. He is to be self-confident without self-conceit ; he is to combine the extremes of bold- ness and caution : for he is to be prompt, even in the most doubtful and delicate matters, to decide on action, and then he must act with celerity and firm- ness ; and yet both his decision and action are to be deliberate. It is almost a misnomer to call him a lawyer. His knowledge of the law is the small- est part of his professional attainments. He must know mankind better than he does the code and reports, and he must understand the infinite play of the feelings, which, far more than their reasons, sway the people with whom he deals- — parties, witnesses, jurors, even the judges themselves. He must be able to tell, almost without premeditation, when the courts will administer the letter, and when CONDUCT OF LiriGAriON. ' l^l the .pirit, of a statute in question. He must at all tii'i'S know the most darling secret of his adversary. He must recognize truth intuitively when he hears it, and falsehood likewise, and be ever capable of mak- ing both plain men and learned judges see with his own eyes. He can not be infallible in every instance ; but when he sees right so often that his few mistakes become wonders and common talk, he is that man af men in society, that development of modern training and culture, of which every one of our states can show instances, the pride and glory of the Amer- ican Bar. So much for this miniature of the good law- ver. The picture is not over-draw^n. Romance and adventure fill his daily life. He is more than a mere frothy speaker to tickle and set agape the populace, and more than the lucky draw^er of great prizes in his fees. He is a patient, laborious, intense worker, living in his cases, and hanging over them as affec- tionately as a mother over hex children. He fights as many battles in a year as a general in a lifetime, and over and over expends on some controversy of trivial moment, that pays him only with the thanks of the poor or the blessings of the widow and orphan, more invention, labor, and skill, than often fill a long campaign, which ends in an ever-memorable defeat of overcountinof thousands. 384 CONDUCT OF LITIGATION. We have tried, conscientiously and laboriously to make a full exposition of the principles according to which the lawyer accepts, prepares, and tries his cases; and in this last chapter, we have done our best to sketch his intellectual and moral features, and combine them into his honest likeness. We hope that the novelty of the subject, and the failure of the books — even the lives of the great law- yers — to treat of it, will excuse our many shortcom- ings. The Conduct of Litigation has been too long without its manual. We do not pretend to have fully supplied the great want. We trust, however, that as an humble and solitary pioneer, we have somewhat smoothed the way for the column of or- ganized workers behind. INDEX. Accuracy — 31, et seq., 382. Adventures of an Attorney, etc. — note as to authorship of, 308. Advocate — what should be his motto, 351. Aggression — and non-aggression, 173. Amicable settlement — of litigation by counsel, 177. Avios, Prof. — as to need of counsel by litigant, 46. Arbitration, 177. Agreement, 337, et seq. Ascendencies — preponderances, and superiorities in litiga- tion, 20, 48, 106. Associates — (counsel), 213. A ttorney — His position in England, 41. In America, 200. Careful written preparation, 117. Attorney and counsel in England an unnatural and pernicious division of labor, 123, 249. Bautain — his Art of Extempore Speaking highly com- mended, 349. Begin — right to, 236, 341. Boldness — when proper in conduct, 167. Briefs, 182, et seq. Brougham, Lord — Severe strictures on Gifford's opening of case against the Queen, 230. Comments on Majocchi, 277. 386 INDEX, Broivn, David Paul— See Golden Rules. As to client's right to command service of his law- yer, 59. As to English system of attorney and counsel, 118 Asto intelligent purposein examining witnesses, 129. As to maintenance of self-composure, 133. As to importance of examination of witnesses, 325 Bulwer — Excerpt from his " My Novel," to illustrate exam- ination of dull witnesses, 253. Burty A. — Took no bad cases, 53. His preparation of cases, 142. Loved to surprise his adversary, i6o, His speaking, 346. Campbell, Lord — His picture of reign of justice in the King's Bench, 351- Cases — Consideration of offered, 5. How to investigate, accept, or decline, 27, et seq. Easy, 28, 48, 214. Of doubtful right, 62, 63, 341. Good, but hard or impossible to gain, 64. Celerity, 132. Choate, Rnfns — His careful preparation, 139. Had a plan always, 150. His note-taking, 333, 335. Argues more elaborately as he grows older, 349. Client — Not to be confided in always, 88. Sqc Ethics ; Lawyer ; Secrecy. INDEX. 387 Common Lazv — Its persistence after the right, 339. Consultation — of counsel, 212. Continuance, 214. Cooky, Judge — Investigation of abstract submitted to lawyer for advice as to title, 42. Counsel. See. Attorney ; Laivyer. Courage, 153. Cox — (author of Advocate) As to examination-in-chief, 248. As to cross-examination, 288, ct seq. As to re-examination, 309, ct scq. Gives too great prominence to cross-examination in- tended to make witness contradict himself, 299. Does not attend to character of witness, 300. As to note-taking, 328. As to addressing juries, 348. Defeat, 360, ct seq. Deliberation — Its importance to lawyer, 132. Demon t, Louise — • Famous cross-examination of, 276, 286. Diligence — Its importance to lawyer, 44, 132. Docutnents — To be carefully inspected, 32, 34. Copies and abstracts of, 193. Eloquence, 6, 116, 340, 350. Its ancient influence, 338. Erskine — Secret of his power, 350. 388 INDEX. Ethics, 59. Evidence — See the chapters on, 236, et seq. Games — Litigation compared to, i. General — How like the lawyer, 364. Golden Rules— {pi David Paul Brown), 238, 243, 300, 304, 325. Hale— Begins practice by being over-fastidious, 57. Hamlet, 376. Initiative, 173. Inqii iry — m o d e r n , Grows more and more careful, 30, 332, 338. Joviinis Art of War, 6. Jury — Selecting, 214, 217. Opening pleadings to, 220. Opening case to, 223. Addresses to, 3480 Kenyan — His quickness, 130. Lazv — Preparation on, 94, et seq. Distinguished as a subject from the practice of it, 9. Of the books, not that administered at nisiprius, 25. Becomes slowly more certain, 94. Occasional professional triumphs on law points, 96, 100. INDEX. 389 Law — Contimicd. The three kinds for practitioner, loi. A great armory of remedies, 102. Search for principles of, 108. Adverseness of judges to ruling avowedly new prin- ciples of, 1 12. And fact, 19. More forensic controversy as to fact than law, 94. Law-suit — Defined, i. Laivyer — Contrasted with judge and law-author, II. His office and representative character, 12, t6. Partiality of, 13. Parallel of with husband, army, etc.^ 13. Privilege to take any case, 15, 41. His necessary legal knowlege, 16, 91. His talent for handling facts, 16. Personal influence of, 24, 87. Duty when consulted, 27. Will think of evidence not in mind of client. 31. Good, character of, 50, 52, 53, 106, 113, 153, 134, 137 138 144, 162, 326, 333, 344, 363. et seq. Instance of successful, 34. Who is not dangerous till he has lost, 52. Too busy to originate business, 64. Young, 68. Legal judgment of, 1 13. The eminent, neglects preparation of case too much, 116. Plurality of counsel, 125. Local counsel, 128. Should be able always to stand a Socratic \ rvv^' examination on any of his cases, 136. 390 INDEX. La wyer — Con t in ucd. Leading counsel, 241, 309, 338. Lcnctra — Battle of, 148. Litigation — Parallel of to warfare, and games, I. Elements of, 18. MajoccJii — Famous cross-examination of, 277, 286. Marathon — Battle of, 147. Marniont — His Spirit of Military Institutions, 6. His character of the general, 364. Memoranda, 185, 187, 331. Nezv trial, 354, ct scq. NiebiiJir — His remarkable memory, 185. Note-taking, 328, et seq., 355. Objections — to testimony, 247, 319. (9/^;z/;/^^— of pleadings, and of evidence, 218, 235. Pengelly, Sergeant — Throws up his brief, 24. Fhocioji — Shortness of his speeches, 346. Phonography, 335. Plan of Conduct — of the case, 52, 195, 145, et seq., 210. Pleadings, 114, 190. See Openings. Preparation — of case, 4, 6, 20, 71, et seq., 244, 245, 246, 312. Probabilities, 48. Procrastination, 44, 130, 356. INDEX. 391 Profession— \.\\t, 15, 65, Promptness, 44. Quintilian — Counsels careful preparation of case, 2S. Report of ease — Rarely shows how case was prepared, 9. Right and Justice — Influence of, 22. Rights, legal — Contrasted with moral, 62. ScJiomberg — • His reply when told that the enemy zvould ^^\t^ 216 Scott's — (Lord Eldon) success ■when a young man ih Akroyd v. Smithson, 96. Secrecy, 165. Secrets of cases, 86, 87, 88. Se/f- rclia nee — Of lawyer to be cultivated,' 202, 3?/, Sentiments — The average, important for lawyer to know, 23, Stratagem, ^6, 89. Strategy., 3, 167. Success in zvar, etc., i. Tactics, 3, 167, 216. Tenter den. Lord — His weakness in suspecting fraud, 23 Themistocles, 2)77- Theory of case, 52. Trial — ^ Importance of conducting right, 4. Impartiality of, intended by the law, 14. Talent for managing, 207, 211. 392 INDEX. Victory, 360, et scq. Views — ordinary, of mankind. Important to lawyer, 23. Warfare — * Litigation compared to, 2, 5, 42. Warren, Mr. — Advice to attorneys meditating case offered, 35. Advice to overt^xovt rather than under^rovQ, 92. As to briefs, 196, et seq. Whately — • Recommends natural manner in speaking, 349. Witnesses — See chapters on evidence, Should be carefully sifted in private by counsel, 31, 32, 33, 121, 123. Taking memoranda of their statements, ^2. Committing, to their narratives, 75. Compelling attendance of, ^6. Examining by commission, 75,^324. Perpetuating testimony of, ']6. Xist of, 192. Yorke, Mr. — (Lord Hardwicke) favored by the Chancellor, Lord Macclesfield, 24. V WLIKKAKTYy/ XLiDrtAtirc'/ ^,f;njn\n._ifA- Q= ALIFO% vAHVHan-# ^^WEUN1VER%, ^mmuitS;^ ^^'l-IB % ^ r7130NVSO^^ ''/.VHiAINO^WV <^tilbKAKY-6^ %)jnv:)jo- 'Tt ,OFCAL1FO% ^OF'CALIFO/?^ AA 000 835 427 6 ALlFOft ,OP'CAl.lFOMf " ■ HVHaii-^' PC? - , ^m\\ms//y .svlOS-AN(I[^;j> .<^\L LID 1 1. '-Ml I L//, %/n-invi jiV '^;/n4nvn -la- f7^' ,V)PiAilK)% 4,V)fCAiiF0/?^