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 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<i 
 
 them. Let him study the reports. He will, 
 after a while, become capable of analyzing cases 
 for himself.
 
 •JO CONDUCT OF LITIGATION. 
 
 CHAPTER V. 
 
 PRINCIPLES OF PREPARATION. PREPARATION OF 
 
 THE EVIDENCE. 
 
 We shall, in this and the chapters immediately 
 following, treat of preparation of the case on the ev- 
 idence and preparation on the law, and we shall, 
 after a while, debate the proper plan of an attack or 
 defense. 
 
 It will also be necessary to discuss other matters 
 belonging to our general division of Conduct out of 
 Court, most of which head its different chapters. 
 
 It is important to say now, however, that there is 
 no such serial progress in the real preparation of a 
 case. The parts of anything, though they may all be 
 co-existent, must be looked at separately, to be well 
 understood. And we only look at these different 
 parts of preparation serially, in order to present the 
 whole, which they constitute, more intelligibly. 
 
 When a case is presented, there comes, almost at 
 once, some dim conception of the proper plan of 
 conduct ; there is some immature analysis of the 
 questions both of law and evidence, arising, and all 
 these conceptions, vague though they may be at
 
 PREPARATION. 71 
 
 first, are either succeeded by others, or developed 
 into greater clearness and distinctness. And though 
 these elements in their growth keep an even pace 
 with each other, still we must, as already said, look 
 at each one separately, and in some sort, inde- 
 pendently. 
 
 The lawyer having decided on a resort to litiga- 
 tion for his client, has analyzed the case clearly, and 
 decided upon his forum and his remedy. If he has 
 not yet discovered all the material questions, of law 
 or fact that he can discover by looking from his 
 standpoint, and by anticipating, as much as he can, 
 the strength and intentions of the adversary, he has 
 divined, at least enough of the grounds of contro- 
 versy to begin preparing for the encounter. 
 
 The first aim of an intelligent preparation is to 
 assure those advantages which are palpable when the 
 case is taken. Thus the client, or some one else, tells 
 you that a witness will testify so and so, and you see 
 that the testimony as represented, is material. You 
 should never rest till the witness is brought to you, 
 and you have made, either by yourself or your associ- 
 ate, a copious memorandum of the narrative to which 
 he agrees. This will be of great profit to you in more 
 than one respect. It will guard you against all sur- 
 prise. In the privacy and command of time that 
 you have in your conference, you will sift him well
 
 72 CONDUCT OF LITIGATION. 
 
 His freedom from embarrassment will be favorable 
 You will often, to your own advantage, correct his 
 errors. Should he make a mistaken statement in 
 public, he will hardly take it back ; but in your office 
 you can, by reasoning with him, nearly always make 
 him retract an erroneous assertion, provided he has 
 not already made it publicly. And you may ob- 
 tain from him clues to other material evidence. 
 Besides instructing yourself accurately, you will 
 find it a great advantage to commit and fasten 
 him to his narrative. A witness often is waver- 
 ing. Just after the occurrence witnessed, he is full 
 of nothing but the truth of the fact, though revolving 
 it over and over in his mind subsequently, may lead, 
 at last, to a material modification of his first nar- 
 rative. All of us have noticed how the testimony 
 of good men is shaped and colored, unawares to 
 themselves, by their associate witnesses. You will 
 sometimes find that a large body of witnesses who 
 testify to the same facts, repeat many of the particu- 
 lar expressions of the first witness, although they 
 may have been excluded from court during his ex- 
 amination. This is because they have talked with 
 each other over the matter, and each one nervously 
 dreads a contradiction by the other. You have, 
 therefore, many reasons to be in haste to confirm 
 and make sure and steadfast your slipperv witness.
 
 PREPARATION. 73 
 
 Get from him the whole truth and nothincf else; 
 and see that he agrees to your memorandum. It is 
 often well, where the witness is of infirm qharacter, 
 to make him sign the minute that you have taken 
 of his narrative. 
 
 We subjoin a passage from Mr. Warren, differ- 
 ing much from the advice that we have just given. 
 We can not help believing that had the author, in- 
 stead of being a counsel who never examines wit- 
 nesses out of court, been an attorney daily sifting 
 them in private, he never would have written so 
 wide of the mark. The reader is reminded that 
 Mr. Sharpe is an attorney : 
 
 " At one time I made it a habit to take out ink 
 and paper, and reduce at once to writing all that 
 my witnesses stated, while they were still with 
 me ; sometimes I do it still ; and where it can be 
 effected without exciting alarm, it is a useful prac- 
 tice ; but I was cured of it as a habit by more than 
 one instance of the following kind : 
 
 "'Bless me, Mr. Sharpe, what are you doing 
 there ? ' 
 
 " ' Only making a minute of your evidence for 
 counsel.' 
 
 " ' Minute of my evidence ! I won't agree to that* 
 
 " ' Why not 1 you can't think that I can remem- 
 ber all we have been saying ? '
 
 74 CONDUCT OF LITIGATION. 
 
 " ' I can't help that ; I am not going to swear in 
 black and white ; I have told you the truth, but 
 I'm not going to be taken down.' 
 
 " ' Will you write it yourself? ' 
 
 "'No, indeed! I may have made a thousand 
 mistakes. I'll do no such thing.' 
 
 " * Come now, be reasonable ; what is the use of 
 your telling me all this if it is to go no further? 
 and how can I make use of it if I am not at liberty 
 to take notes of it ? ' 
 
 " ' That's your affair, not mine ; I have nothing 
 to do with it. Give me that paper or I'll not say 
 another word.' 
 
 " And I have been obliged to surrender my mem- 
 orandums as a peace-offering, to secure further com- 
 munication ! All this is prodigiously absurd ; but it 
 is our lot to deal with the absurdities, not less than 
 with the passions of mankind." ' 
 
 We will say further, in contradiction of the 
 above passage, that we have reduced to writing 
 the statements of many witnesses, in their presence, 
 and we never had one make any objection. Nor 
 have we ever had a witness to object to signing 
 the abstract of his testimony ; save now and then 
 one who would stipulate as the condition of his 
 
 ' Adventures of an Attorney, 294 ei seq. (New York, 1874.)
 
 PREPARA TION. 75 
 
 signing, that he be furnished at once with a copy. 
 Perhaps some attorney giving Mr. Warren a brief 
 in a case which he had not got up on the evidence 
 with proper precision, in paUiation of his laziness, 
 furnished the eminent counsel with the fiction above 
 quoted. 
 
 We suppose that every careful lawyer can recol- 
 lect some instance in his own practice, when he 
 took time by the forelock, and obtained from an 
 anticipated witness a letter stating what he would 
 testify, before any warping influence had begun to 
 work on him, and aftei-wards saw that the witness 
 regretted writing that in which he poured out the 
 truth so unrestrainedly. 
 
 We will give some other illustrations of assuring 
 existing advantages. For instance, there may be 
 obtained a preponderance of testimony supporting a 
 material point of the case, provided a witness who 
 resides beyond the jurisdiction of ordinary process 
 be examined by commission. As the commission 
 will not issue of itself, the party desiring it must 
 conform to whatever the local law prescribes, in 
 order to procure the testimony. He may, in 
 his supineness, neglect to sue out the commission 
 and have it executed, and thus he will throw away 
 one of his advantages, and the subsequent trial may 
 show that he lost the verdict because of this neglect.
 
 ^6 CONDUCT OF LI TIG A r ION. 
 
 The attendance of important witnesses, who 
 are accessible, is often not compelled. The court 
 will not give time, when at the trial term the case is 
 reached, to do that which should have been done 
 before ; and the party thus unprovided, must suffer 
 the consequences of his or his lawyer's remissness. 
 
 Again, as an instance of assuring existing ad- 
 vantages, a material witness of high character, and, 
 it may be, the only one as to the turning point of 
 the case, may be afflicted with a dangerous disease, 
 and the process of the court runs not into the other 
 world, to which he may have gone when you would 
 have his testimony. It is the duty of the lawyer, so 
 soon as he discovers the materiality of the witness 
 and his ill health, to perpetuate his testimony, and 
 thus save its benefit for the client. It may protect 
 the family of the client after he and the witness, and 
 the lawyer who procured the perpetuation, are all in 
 their graves. We might swell this illustration by in- 
 stances collected from every detail of preparation. 
 But we have given enough to make our meaning 
 plain. We insist, as we leave this part of the sub- 
 ject, that blunders here are more unpardonable than 
 anywhere else in the preparation of the case. For 
 the duty is so plain that it needs must be seen. In 
 the subsequent investigation additional advantages 
 may escape discovery, in spite of great industry ; but
 
 PREPARATION. 77 
 
 if the lawyer neglect to assure, by using the cheap 
 and easy process of the law and other means in his 
 powder, the advantages palpable to a practitioner of 
 average ability so soon as the case is presented, the 
 damage resulting to his client will be fairly charge- 
 able to his negligence. 
 
 The second object of an intelligent preparation is 
 to obtain, if possible, other advantages. Those 
 discovered at the first should, as we have urged, 
 \)e at once made sure of, and then, if possible, 
 cidditional advantages should be discovered and like- 
 wise assured. Preparation as it goes on often reveals 
 sources of information not before suspected ; and an 
 examination may discover important testimony, and 
 whether that testimony be oral or documentary it 
 must at once be secured. Thus you may discover 
 some bias warping the witnesses against you, which, 
 if you show it clearly to the juiy, may unload their 
 formidable testimony of all its weight. Likewise 
 vou may discover that a grant on which the adver- 
 sary relies is a forgery, or that a deed supporting his 
 case is void, or that a very hostile witness has given, 
 in the hearing of credible persons, an account of the 
 transaction contradicting his now expected narrative 
 Time does not serve to enumerate instances of the 
 advantages that may be discovered and added to 
 your case after its preparation begins. The trial
 
 78 CONDUCT OF LITIGATION. 
 
 itself — when you have exhausted and drained dry, 
 with indefatigable industry, as you believe, every 
 fountain of relevant evidence — will often give you 
 hints from which you may profit, even at that late 
 hour, to the strengthening of your case. 
 
 The client and his lawyer should always be on 
 the lookout for these additional advantages. A 
 wary old lawyer told us that he had once great need 
 to ascertain what counsel drew an instrument which 
 was then the subject-matter of much litigation, the 
 instrument being attacked. He had used all the in- 
 formation of his client, and had searched and in- 
 quired wherever he thought it at all probable that he 
 could learn anything about the instrument ; but fail- 
 ing so often, and thinking of no other possible chance, 
 he had given up in despair. Soon afterwards, being 
 engaged as counsel in the trial of a case in a distant 
 county which he had never before visited, while 
 listening to a witness under examination by the 
 other side, he heard some one behind him mention 
 the instrument. He pricked up his ears, and the 
 talker went on to say that the first money he had 
 
 ever made was by copying it for , an 
 
 eminent counsel of whom our friend had heard 
 much, but whom he did not know. The secret was 
 thus casually discovered ; and upon corresponding 
 with the draughtsman his testimony was found, as
 
 PREP A RA TION. 79 
 
 anticipated, most material. Our friend confessed 
 that after he had thus found out what he had so 
 long desired, nothing seemed more natural than that 
 the instrument should have been drawn by this very 
 counsel ; and that had he rightly reasoned from his 
 information, there would never have been any need 
 for his long search. 
 
 A mine of facts often prove inexhaustible for a 
 great while. Note some contested question in 
 history — how centuries will pass away before it is 
 settled. Many of the details therewith connected 
 are hidden, and it takes a long time to discover all 
 of them. Some of them, too, though known in a 
 measure, have never been rightly understood. 
 So often with the facts of a case. Your vigilance 
 should never end. Strive to learn more and more. 
 Scour every possible nook and corner where evidence 
 may be lying concealed, and often you will make 
 favorable developments which will astound your 
 client. 
 
 The third object of preparation is (anticipating 
 his case, as will be fully explained hereafter) to crip- 
 ple your adversary and abridge his advantages as 
 much as possible. Thus, there may be strong popu- 
 lar feeling prevalent against a client, charged with 
 some great crime, and if you can procure a contin- 
 uance, the passionate prejudice giving the common-
 
 8o CONDUCr OF LITIGATION. 
 
 wealth the superiority may subside before the trial. 
 Ag?in, you may be aware of overwhelming evidence 
 against you but the adversary has not discovered it. 
 You may, by management, conceal it effectually, or 
 you may force a trial at once, and he may in neither 
 case ever discover it. A dexterous use of some un- 
 expected remedy is often very embarrassing to an 
 adversary. Procuring an injunction or the appoint- 
 ment of a receiver, or taking a sudden aggressive 
 when your opponent thinks that he has you on the 
 defensive — all these and more such stratagems, serve 
 the lawyer who is the master of practice under the 
 local law. 
 
 The following is an example of neglecting an 
 opportunity to cripple the adversary: A statute per- 
 mitting parties to testify, made an exception where 
 one of the parties to the contract was dead, and this 
 was held to exclude the living one only when the 
 estate of the dead party could be affected directly by 
 the judgment In an action of ejectment, where the 
 plaintiff was re-entering for condition broken, he 
 could only prove the breach by himself. The de- 
 fendant had purchased from one deriving title from 
 the plaintiff. The party to whom the plaintiff had 
 conveyed on condition was dead, and had his repre- 
 sentative been vouched by the defendant as a co- 
 warrantor, and made a party, the plaintiff would not
 
 PRE PARA TION. 8i 
 
 have been a competent witness under the local ad- 
 judications to prove the breach, as the judgment 
 would then affect the estate of the dead party. Ne- 
 glecting to vouch the representative of this warrant- 
 or lost the defendant his case. 
 
 We have now enumerated and briefly treated the 
 three general objects of preparation. The reader, 
 from his own experience or ingenuity, will supply 
 many more instances than those which we have 
 given illustrating each one of the three divisions. 
 
 The lawyer preparing a case has three questions 
 to ask himself: (i) What advantages now appear 
 to belong to my case ; and how can I secure them 
 at once } (2) what other advantages can I discover 
 and gain ? (3) how can I cripple my adversary by 
 cutting him off" from some or all of his apparent ad- 
 vantages 1 
 
 There is a caution to be given appropriately here. 
 The lawyer, if he is careless in his preparation, will 
 often, by his blunders, seriously injure his case. His 
 own evidence will be turned against him v/ith dam- 
 aging effect. He must avoid conflicts and contra- 
 dictions and support of the adversary in his own 
 positions or evidence. 
 
 The author will give two instances where a party 
 injured his case by his own evidence more than he 
 did that of his adversary.
 
 82 CONDUCT OF LITIGATION. 
 
 The first was on a caveat to a will propounded 
 for probate, where the issue was whetl r the wit- 
 nesses signed in the presence of the testator. There 
 was no doubt that he and all oi the witnesses were 
 present when the execution of the paper com- 
 menced, but the caveators contended that he had 
 left the room before the attestation by the witnesses. 
 The recollection of the subscribing witnesses was 
 not clear, and the court held, that by reason of their 
 testimony there was a prima facie presumption of 
 due execution. To rebut this presumption the cav- 
 eators read the testimony of two other witnesses, 
 which had been taken by commission. These two 
 women were in the room at some time during the 
 execution of the paper, and both of them testified 
 positively that the testator went out of the room 
 with themselves before the witnesses had signed. 
 This testimony seemed to overwhelm the propound- 
 e^s ; but when it was criticised, it was shown that in 
 every other particular save that they carried the tes- 
 tator away before the witnesses had signed, these 
 two were in irreconcilable conflict with each other 
 They conflicted first as to the order of entering the 
 room. One said that the testator accompanied her 
 and the other witness to the room. The other said 
 that the testator was in the room when they came, 
 and that she did not know whence he came. Next
 
 PRE PARA TION. 83 
 
 th--y disagreed as to the order of leaving. One said 
 that the testator went out with both, and at her 
 side ; the other said that he came behind them. 
 Then th.c) disagreed again. According to one of 
 them the two went out into the hall and passed up 
 to the door of the sitting-room, where they stopped ; 
 th( other carried the whole party into the sitting- 
 room. Again : each one of the witnesses was at 
 variance with the weight of the testimony ; in many 
 instances trivial variations, to be sure, but of great 
 importance as testing the accuracy of the witnesses' 
 memories. The paper, at the time of its execution, 
 was not known by the subscribing witnesses nor 
 these women to be a will, and none of them pre- 
 tended to have observed the details closdy. Many 
 years had elapsed since its execution. The jury 
 could not trust the memories of the women as to 
 the particular facts where they agreed, as they found 
 their memories 'in conflict in so many other particu- 
 lars. They found a verdict setting up the will. 
 
 Now, had the counsel for the caveators done his 
 duty, in carefully sifting both of these women before 
 taking their testimony, he would have discovered 
 these conflicts. His course then was plain. He 
 would have got a commission for and examined only 
 one — selecting that particular one of the two who 
 had no seeming interest in the result.
 
 84 CONDUCT OF LITIGATION. 
 
 The other illustration occurred in the trial of an 
 action which a local statute permitted to be brought 
 by the heirs- at law against the administrators of the 
 intestate and the sureties of the administrators, at 
 once, without any preyious establishment of waste. 
 The defense was the general issue, denying every 
 part and parcel of the large waste alleged by the 
 plaintiff. An able counsel for the defense, who 
 specially represented the sureties, put in a volumin- 
 ous transcript of documentary evidence by which he 
 seemed to set great store. The reading of this tran- 
 script in evidence was waived by consent. We shall 
 never forget his discomposure when the opposing 
 counsel, in his argument, showed that this transcript, 
 among other things, contained proceedings taken 
 some years before by these very sureties against 
 these same administrators, and the appointment of 
 a receiver thereupon, "to take possession of the assets 
 of the intestate's estate, by the present counsel of the 
 sureties, who was at that time a judge. The sureties 
 obtained the appointment of this receiver by com- 
 plaining of the same waste which they now denied. 
 Of course this evidence should have been omitted, as 
 there was nothing else in the entire transcript to com- 
 pensate for its damaging effect with the jury. It 
 gave the counsel for the plaintiff a great moral ad- 
 vantage which perceptibly cowed his able adversary.
 
 PREPARATION. 8?; 
 
 The only sure preventive of such self-caused in 
 juries is a careful contemplation and study of all the 
 details of the case during its preparation. Not only 
 should every parcel of the evidence be studied and 
 construed as if detached from the rest, but its effect 
 on the whole of the other evidence must be mas- 
 tered. And this must be done before the evidence 
 is made accessible to the other party. It is disgrace- 
 ful stupidity or criminal negligence to arm your ad- 
 versary with your own preparation. 
 
 We have before said that the case of the other 
 side is, if possible, to be divined and prepared 
 against. You must, if you can, make your adversary 
 disclose his hand, using, however, no discreditable 
 artifices or tricks. A lawyer is not to stand eaves- 
 dropping or listening at key-holes ; but there are 
 many ways of acquiring a knowledge, more or less 
 accurate, of the doings and designs of your opponent. 
 Other testimony, both oral and written, is disclosed 
 in investigating the case, and seen that it will prob- 
 ably be used by him. It is not women only who 
 are unsecret. Generally, men engaged in any 
 controversy which involves much feeling, as litiga- 
 tion usually does, are tempted to predict success for 
 themselves, and in their vanity will seek to demon- 
 strate to their hearers by what evidence and by 
 what legal principles they expect to win. Lawvers
 
 86 CONDUCT OF LITIGATION. 
 
 themselves as a class are too communicative of their 
 cases. Cases that turn on disputed facts usually 
 divide witnesses into parties who talk and argue 
 with each other. To profit by this, you should 
 take your coolest-headed witness and procure him 
 to give an accurate report of what the opposite wit- 
 nesses say that they will swear. We have known 
 this stratagem succeed more than once. Witnesses 
 become partisans. It does really seem that many of 
 them feel bound to give their good wishes wholly 
 to that party who has subpoenaed them. They will 
 oiten go great lengths to serve their friends. Amid 
 a considerable number, there will always be one of 
 fitness for this service of giving you a faithful report 
 of the testimony that you may expect from the 
 other side. And you will often find that, when you 
 have had time to reflect over it, much of its formid- 
 able character can be removed by a cross-examina- 
 tion, which you can judiciously plan at your leisure, 
 or that you can easily provide counter-testimony to 
 overwhelm it. 
 
 The pleadings of the other side — his movements 
 in his case, such as applying for subpoenas, commis- 
 sions to examine witnesses, orders, &c., should be 
 carefully observed and thought over. They will 
 often lead you into secrets which the adversary 
 would have gladly kept entirely to himself.
 
 PREPARA TION. 87 
 
 And you should always be meditating if there 
 is any remedy or move open to you by which you 
 can force a disclosure of the other side. There are 
 correspondences in litigation to the armed recon- 
 noisance in warfare. Thus, by a motion to dissolve 
 an injunction, upon an answer that swears off the 
 equity of the bill, you may drive the complainant 
 into supporting by affidavits, which will accurately 
 inform you of much of his expected testimony. 
 
 Again : you may be defending one charged with 
 a crime and arrested on a warrant before indictment 
 found, and by refusing to give bail at once and 
 waive a preliminary hearing, as the local law 
 often allows, you may, by a stout contest before the 
 magistrates, draw out the whole case of the state, 
 holding your own back if you choose. 
 
 This is not the place to write a treatise on the 
 law of procedure. We will only say, that the local 
 law everywhere gives to the practitioner remedies 
 which he v\iill often use wisely, for no other purpose 
 than to reconnoiter or feel of his adversary. 
 
 We must not forget to say that no professional 
 man in America has so many warm personal friends 
 as the lawyer. They do themselves a pleasure in 
 giving their favorite all the information possible in 
 his cases, often doing for him what they would not 
 do for the client.
 
 88 - CONDUCT OF LITIGATION. 
 
 And thus the secrets of almost every case come 
 out before the trial. At least they are revealed to 
 those who know how to listen for them. And as 
 they come out part by part, dispersed here and 
 there in different places, it may be over a large 
 neighborhood, it is the duty of the lawyer on the 
 other side to collect these scattered fragments, and 
 putting them properly together, learn what mischief 
 IS plotting against him. 
 
 This is the place to caution you against talking 
 to your client too freely. You need not tell him 
 your plan and anticipations, even when you have 
 him executing the one and providing against the 
 other. He is often leaky and unsecret. In litigation 
 secrecy is of as much avail as it is in the project 
 and movements of a campaign. Let your knowl- 
 edge of human nature and what you deem the true 
 interests of the case govern you as to making a full 
 confidant of the client. 
 
 The wary lawyer will guard as much as possible 
 against the escape of his own secrets. When he 
 wishes to conceal his strength he needs to be very 
 ingenious to succeed. His witnesses he had better 
 talk with separately, and out of the hearing of his 
 client, if the latter be imprudent. If he discovers 
 that the adversary has laid a trap to catch some of 
 his secrets, he should dupe him. The laws of
 
 PREPARATION 89 
 
 civilized warfare, though demanding- of both com- 
 batants the strictest regard for all the requirements 
 of sound morality, permit to both the use of honor- 
 able stratagem. No faith must be violated. A 
 stratagem succeeding must not have shocked the 
 moral sense — it should only deceive the head of the 
 enemy. Where the trust of the adversary is in- 
 vited, as, for instance, where a composition or all 
 accord is proposed, the utmost truthfulness must 
 characterize all communications. Bat when he 
 chooses to scrutinize your actions with a view to 
 divine your purposes, you are under no moral 
 obligation to help him discover what it is your 
 interest, right, and often duty, to conceal ; and he 
 can not complain justly if you by actions mislead 
 him. He can not force his credulity into your 
 keeping as his trustee. One of the objects of strat- 
 agem is to mask your purpose, whether it - be 
 attack or defense. The pleadings, even when most 
 accurately and technically drawn, hardly ever ad- 
 vertise the other party of more than the general 
 nature of the defense or attack preparing. The 
 plan of either side must be looked for elsewhere. 
 Your adversary, if vigilant, will have both scouts 
 and spies in his pay, and you are at liberty, as 
 we have said, to befool him by any ruse which 
 is not a breach of honor. You can conceal fron?
 
 90 CONDUCT OF LITIGATION. 
 
 the witnesses whom you sift in your office the 
 points to which you are really examining them, by 
 questioning with apparent interest about many 
 other things. You can conceal your real plan from 
 your client, and if then your adversary chooses 
 to entrap these people into detailing to his spies 
 what they suppose to be your purpose, and then to 
 shape his course against what he has mistakenly 
 conceived to be your case, he can ascribe his con- 
 sequent disaster only to himself. He trusted his 
 own judgment and it deceived him. Stratagems are 
 double-edged tools, and are to be handled carefully. 
 Beware that you are not caught by those of the 
 opposite side, and that you do not yourself fall into 
 the pits that you dig for others. 
 
 In leaving this part of the subject we must 
 remind " our jurisprudent " that the law is the great 
 guide to the lawyer in the preparation of his cases, 
 even in the matter of evidence. He finds it neces- 
 sary, it may be, to prove the death of some particular 
 man — he has no witness to testify to the fact 
 desired, but the law permits him to raise the pre- 
 sumption of death, by showing an absence of the 
 person in question for a certain number of years. 
 The law also prescribes rules for weighing evidence ; 
 thus positive, other things being equal, will over- 
 come negative ; a disinterested witness is more
 
 PREPARATION. 91 
 
 credible than another to the same fact who evinces 
 an evident leaning to one of the parties. It is not 
 our object, as we have said, to write a lawbook. 
 We must necessarily take it for granted that the 
 lawyer whom we address knows much of the law ; 
 and it is earnestly insisted that even in seeking after 
 superiorities of evidence, his Phillips and his 
 Greenleaf, reinforced by the reports in his library, 
 must be constantly looked to for guidance. It is 
 true that the law of evidence grows more and more 
 liberal, and assimilates itself year by year to that 
 logic which, according to the title-page of John 
 Stuart Mill, contains "the principles of evidence 
 and the methods of scientific investigation." Disabil- 
 ities and incapacities are removed which the centu- 
 riest before us worshiped, deluded into believing 
 such suppressors to be the guardians of truth. We 
 have in our own day seen millions of blacks made 
 competent witnesses in all kinds of ca;;es. Still 
 the law is not yet ready to surrender her authority 
 over evidence, and, unfortunately, a legal argument 
 can often yet be made from facts perverted and 
 garbled by the law, which is not a logical argument. 
 So much for the particular subject of this chap- 
 ter. The lawyer should prepare with u.ifl'^gging 
 industry. As we have already suggested, \{ ofLei? 
 requires, after the case appears prima facie to b(*
 
 92 • CONDUCT OF LITIGATION. 
 
 maintainable, great labor to find out all of the tes- 
 timony. You will be led to more and more of it by 
 probing- the witnesses, your elient, the documents, 
 and all sources of information. All of us have 
 noted the shrewdness with which veteran lawyers 
 guess at the existence of testimony. Spare no pains 
 nor toil to be master of all of it. Nothing mate- 
 terial-, whether apparent at the first, or discovered 
 afterwards, should be thrown away. An advantage, 
 light and trivial in itself, may turn the scale. Re- 
 member the maxim of Napoleon : " When you 
 have resolved to fight a battle collect your whole 
 force. Dispense with nothing. A single battalion 
 sometimes decides the day." Mr. Warren gives 
 advice similar: "Always <?z/<?r-prove rather than 
 undcr-'i^xoNt your case. By this I mean that when 
 you have got so far in a cause as to the point 
 of trial, you should not peril all that you have 
 already expended, and damage your client's interests 
 and your own reputation by niggard considerations 
 of expense in providing proofs of your case. Five 
 or six pounds may, as it were, insure you against 
 defeat, by excluding all fair chance of deficient 
 proof. It is much better to have secured a verdict, 
 burdened with the cost of a superfluous witness, but 
 whose testimony might, in some turn of the cause, 
 Lave been indispensable, than to have lost a verdict
 
 PREPARATION. 93 
 
 which you would have infallibly gained if you had 
 not chosen to run so near the wind and neglected to 
 come provided with proof which might not have 
 increased your costs a couple of pounds — those 
 even having to be paid by your opponent. There 
 have been very many cases in which a party has 
 struck at the trial, especially at the assizes, on 
 seeing his adversary come pre^'^ared with such super- 
 abundant proof as excluded all chance of a break- 
 down." ' 
 
 ' Duties of Attorneys, 181, et seq.
 
 9^ CONDUCT OF LITIGATION. 
 
 CHAPTER VI. 
 
 PREPARATION ON THE LAW OF THE CASE. 
 
 We can not make ourselves clear to the wholly 
 uninitiated. A young man must have observed the 
 business of the courts for a while before he can un- 
 derstand us at all. And it is by observation and 
 then imitation that we begin to learn at the first, 
 and afterwards we learn much in the same way. 
 Manners, etiquette, command of inferiors, and 
 many other things, are mysteries that can only be 
 htlly learned after a season of observation and trials 
 at their attainment. 
 
 And almost the first remark of the novice who 
 has frequented the courts for some months as an 
 assiduous student, is that the lawyers in the court- 
 room differ far more greatly as to facts than they do 
 as to the law. And he next sebs that when they 
 dispute as to the law, it is more often as to the 
 proper application of some legal rule than as to the 
 existence of any such rule. The :aw slowly be- 
 comes more and more certain. The great digests 
 and commentaries, the repeated revisions and codifi-
 
 PRE PAR A TION. 9^ 
 
 cutions.and tbe growth and widening sway of a true 
 science of juris] udencc, are all systematizing the 
 law into a harmonious whole. Much remains yet to 
 be done. But no careful thi.iker and OL/server can 
 compare the present law of many of the states with 
 that' which existed half a century ago, without seeing 
 \} 't nearly ilie whole body of tl ; laws usually ad- 
 ministered in the every-day business of society, is 
 now become both easier to find, easier to understand, 
 and easier to apply. The tyro, from the codes and the 
 revised statutes, will answer unerringly many a query 
 which, years ago, would have puzzled the ablest and 
 wisest lawyers. The long arguments of these days 
 are in the discussion of facts and details of the case. 
 The treatment of purely law questions is usually 
 short — shorter now than it was formerly. To the 
 uninitiated, it would appear that to a lawyer, the law 
 of the case is by far the more important part of the 
 preparation. But experience teaches that, Vv^hile the 
 lawyer must well know that law, which is of famil- 
 iar application, his great business in his cases is gen- 
 erally with the facts and not with the law. He is 
 every day becoming older in the law, but every case 
 presents a novelty of its own. A legal question will 
 be decided by old law, with which he becomes better 
 and better acquainted, while every question of fact 
 arising is to be settled by proof ever new, and which
 
 96 CONDUCT OF LITIGATION. 
 
 he must always study as he meets with it, to under- 
 stand. It may serve to bring out more clearly the 
 contrast of law growing older year by year to the 
 lawyer, and facts forever springing up freshly around 
 him, to state that he is to satisfy the court as to the 
 former by the use, day after day, of the same books 
 and principles which at last become a lesson learned 
 by heart, but to decide the latter, he has witnesses 
 and documents in every case to deal with, that he 
 never heard of before, each one of which must always 
 be investigated for and by itself. 
 
 What we have said in the last paragraph is true 
 m the main and average of cases. But every now 
 and then some lawyer gains an unexpected victory 
 by showing that some generally received notion is 
 not law. One of the most famous of such exploits 
 was the success of Scott (afterwards Lord Eldon) in 
 Akroyd v. Smithson. We will copy from Lord 
 Campbell what he himself copies from Twiss. Lord 
 Eldon tells the story to Mr. Farrer. 
 
 " Come, help yourself to a glass of Newcastle 
 port, and give me a little. You must know that the 
 testator in that cause had directed his real estates to 
 be sold, and, after paying his debts and funeral and 
 testamentary expenses, the residue of the money to 
 be divided into fifteen parts — which he gave to fif- 
 teen persons v^bom he named in his will. One of
 
 PREP A RA TION. 97 
 
 those persons died in the testator's lifetime. A bill 
 was filed by the next of kin claiming, amongst other 
 things, the lapsed share. A brief was given me to 
 consent for the heir-at-law upon the hearing of the 
 cause. I had nothing to do but to pore over this 
 brief. I went through all the cases in the books and 
 satisfied myself that the lapsed share was to be con- 
 sidered as real estate, and belonged to my client (the 
 heir-at-iav/). The cause came on at the Rolls, before 
 Sir Thomas Sewell. I told the solicitor who sent 
 rae the brief that I should consent for the heir-at-law 
 so far as regarded the due execution of the will, but 
 that I must support the title of the heir to the one- 
 fifteenth which had lapsed. Accordingly, I did argue 
 it, and went through all the authorities. When Sir 
 Thomas Sewell went out of court, he asked the 
 Register who that young man was ? The Register 
 told him it was Mr. Scott. ' He has argued very well, 
 said Sir Thomas Sewell, ' but I can not agree with 
 him.' This the Register told me. He decreed 
 against my client. The cause having been carried, 
 by appeal, to the Lord Chancellor Thurlow, a 
 guinea brief was again brought to me to consent, I 
 told my client if he meant by ' consent ' to give up 
 the claim of the heir to the lapsed share, he must 
 take his brief elsewhere, for I would not hold it with- 
 out arguing that point. He said something about 
 7
 
 98 CONDUCT OF LITIGATION. 
 
 young men being obstinate, but that I must do as \ 
 thought right. You see the lucky thing wcs there 
 being two other parties, and the disappointed one not 
 being content, there was an appeal to Lord Thur- 
 LOW. In the meanwhile, they had written to Mr 
 Johnston, recorder of York, guardian to the young 
 iicir-at-law, and a clever man, but his answer was 
 Do not send good money after bad ; let Mr. Scott 
 have a guinea to give consent ; and if he will argue, 
 why let him do so, but give him no more.' So I went 
 into court, and when Lord Thurlow asked who was 
 to appear for the heir-at-law, I rose and said mod- 
 estly ' that I was ; and as I could not but think (with 
 much deference to the Master of the Rolls, for I 
 might be wrong) that my client had the right to the 
 property, if his Lordship would give me leave, I 
 would argue it' It was rather arduous for me to 
 rise against all the eminent counsel. I do not say 
 that their opifiions were against me, but that they 
 were employed against me. However, I argued that 
 the testator had ordered this fifteenth share of the 
 property to be converted into personal property for 
 the benefit of one particular individual, and that 
 therefore he never contemplated its coming into pos- 
 session of either the next of kin or the residuary 
 legatee : but being land at the death of the individual 
 it came to the heir-at-law. Well, Thurlow took
 
 PREPARATION. eg 
 
 three days to consider, and then dcHvercd his judg- 
 ini^nt in accordance with my speech ; and that 
 speech is in print, and has decided all similar ques- 
 tions ever since. As I left the Hall, a respectable 
 solicitor of the name of Forster came up and 
 touched me on the shoulder and said, ' Young man, 
 your bread and butter is cut for life,' or, ' You have 
 cut your bread and butter.' But the story of A /^roj'd 
 M.Smithson, does not stop there. . In the Chancellor's 
 Court of Lancaster, where Dunning (Lord Ash- 
 B'jrton) was Chancellor, a brief was given me in a 
 cause in which the interest of my client would oblige 
 me to support by argument the reverse of that which 
 had been decided by the decree \w Akroyd n. Smith' 
 son. When I had stated to the court the point I 
 was going to argue, Dunning said, ' Sit down, young 
 man.' As I did not immediately comply, he re- 
 peated, ' Sit down, sir ; I won't hear you.' I then sat 
 down. Dunning said, ' I believe your name is Scott, 
 sr,' I said it was. Upon which, Dunning went 
 on : — ' Mr. Scott, did not )^ou argue that case of 
 Akroyd v. Smithsoji}' I said that I did argue it 
 Dunning then said, ' Mr. Scott, I have read your ar- 
 gument in that case of Akroyd v. Sviithso7t, diWd I 
 defy you or any man in England to answer it. I 
 won't hear you.' " 
 
 As this case made the fortune of Scott, so did
 
 lOO CONDUCT OF LITIGATION. 
 
 Erskine likewise make his fortune in his first effort, 
 by a brilHant speech on a question argued bef(jre the 
 court. But, as we have said, such cases are rare. 
 
 Still the law must be attended to in the prepara- 
 tion of the case. If for the plaintiff you draw a 
 declaration which the defendant may admit to be 
 wholly true, and yet he can demonstrate that these 
 admitted facts make no good cause of c.ction, his 
 demurrer will overwhelm you. And so if for a de- 
 fendant you draw a plea, which the plaintiff may ad- 
 mit to be true, and he yet can show that the allegadons 
 admitted make no defense, he will not be obstructed. 
 
 But we may turn from pleading, and look at each 
 detail of the evidence to be introduced. Every part 
 and parcel of that has to run the gauntlet of Phil- 
 lips and Greenleaf. The law not only says v/hat 
 shall be a cause of action, and what shall be a good 
 defense, but it likewise settles what evidence sliall 
 be admitted and what excluded. Every separate 
 sentence of a witness can raise a question under the 
 law of evidence. 
 
 In all legal preparation you commence with some 
 assumed rule of law and proceed to another, and ro 
 on, it may be, step by step, through many more be- 
 fore you reach the verdict or judgment desired. And 
 the aim, therefore, of preparation as to the law will 
 be that you make no misstep in the whole progress,
 
 PREPARA TION. loi 
 
 ahd that you plant your pleadings and evidence, both 
 as a whole and in detail, immovably upon a rock of 
 the law. It will also, as part and parcel of this task, 
 be your purpose to show that your adversary has in 
 his })leadings and evidence, in one or in both, failed 
 to nioet your case. 
 
 In this preparation the lawyer will find that there 
 are to him practically three kinds of law\ 
 
 The first kind of law is that which is surely 
 against or counter to him. This he must avoid, and 
 steer around. 
 
 The second kind of law is that which he may 
 build upon with unerring certainty. It may be the 
 command of the statute, or a harmonious current of 
 decisions and authorities. 
 
 And the third kind is a considerable domain 
 slowly lessening in size every year, but which will 
 never all disappear, and that is where the law is 
 really doubtful. 
 
 No prudent lavvyer will impugn law of the first 
 sort. He w411 handsomely yield to necessity insu- 
 perable. And he will sacrifice no advantages of his 
 client on the law which surely favors him. 
 
 But so different are the minds of men that we 
 often find jarring and conflicting decisions. A 
 judge wnll sometimes reverse himself. A court will 
 now and then overset some previous ruling. And
 
 I02 CONDUCT OF LITIGATION. 
 
 there are many unceitainties inherent in the law it- 
 self. Language, either on the statute book or from 
 the mouths of judges delivering opinions or judg- 
 ments, is obscure and ambiguous, and there is then 
 ground for controversy as to its meaning. Now, 
 upon all doubtful law the counsel preparing his case 
 should take chances with judgment. Let him give 
 his client opportunity of winning. He will, how- 
 ever, avoid trusting too much, if he can, to this un- 
 certainty. He should, to use a colloquial expression, 
 have another string to his bow. But we will dis- 
 cuss this more fully when we come to our chapter 
 on Plan of Conduct. 
 
 But there is much else properly belonging to this 
 chapter. The law is a great armory. No one who 
 begins an action can ever anticipate precisely what 
 cross-action, lying in wait for him somewhere, he may 
 provoke. It is not germane to our purpose, in 
 search, as we are, of only the most general principles, 
 to discuss in detail the whole series of injunctions, 
 cross-suits, set-offs, procuring the appointment of a re- 
 ceiver, and such other remedies, which often turn a 
 confident attack into a hard pressed defense, or drive 
 a party into other straits. This belongs rather to 
 the subject of local practice than the conduct of liti- 
 gation We can only say to our reader that, premis 
 ing for him, as we have, a knowledge of the law em-
 
 PRE PARA TION. 105 
 
 bracing all these remedies, that he must ever be 
 asking himself the question, Can I better my self witlj 
 a change of forum, or a new remedy, or some other 
 addition to my attack or defense ? Often the case 
 can be removed from a court where you may have 
 good reason to shrink from a trial, into another 
 where you would have no fear. 
 
 Thus, a suit was brought upon a guardian's bond 
 in the county where the surety resided. The princi- 
 pal, who resided in another county, was utterly insol- 
 vent. On the trial, the plaintiff appeared to have 
 made out his case satisfactorily, and to have over- 
 come w'th his evidence, that supporting rather a 
 flimsy defense. But there was a verdict for the de- 
 fendant, and it could not be set aside, for it was held 
 pot to be so strongly and decidedly against the 
 v/eight of the evidence as to require the granting of a 
 new trial. Now, the action should have been brought 
 in the county of the residence of the guardian, the 
 principal in the bond, as it could have been under the 
 local law. For the plaintiff would then have had the 
 surety away from home, and where his popularity in 
 the vicinage could do him no good, and where, too, 
 he would have been burdened with the odium of the 
 faithless guardian. Besides, the plaintiff would in 
 that county have had the privilege of examining the 
 guardian in open court, which would have been
 
 104 CONDUCT OF LITIGATION. 
 
 worth much to him. As it was, the guardian's tes- 
 timony was taken by commission for the surety, be- 
 cause, under the local law, a witness could not be 
 made to attend in a civil case out of his county. 
 This testimony was all that supported the plea of the 
 surety. A rigid cross-examination, viva voce, would 
 have emptied it of all its seeming force. But the 
 law of that state only permitted a list of set cross- 
 interrogataries to be addressed to witnesses testifying 
 before a commission. The plaintiff threw away tx-^o 
 great advantages by suing in the wrong county, and 
 thus lost the verdict which he would otherwise have 
 probably won. When the surety's hand was dis- 
 closed by the service of his interrogatories on the 
 plaintiff, the suit should have been dismissed, and 
 another action brought in the county of the guardian. 
 Again : a party suing or prosecuting may have 
 given cause of action or prosecution to his adversary. 
 Thus, where A, who was a member of a most popu- 
 lar and influential family, was pressing hard a prose- 
 cution of B, who was almost unknown in the 
 county, for an assault and battery, B, by the advice 
 of his counsel, prosecuted A for shooting at him with 
 a fire-arm, an offense much more serious, under a 
 local statute, than the other. Both bills were found 
 true by the grand jury. The shooting and the bat- 
 tery were only parts of the same fight, unjustifiable
 
 PREPARATION. 105 
 
 on both sides. A plea of guilty was promptly 
 entered to the indictment for the lesser offense, and 
 B's counsel appearing for the prosecution and con- 
 tending with vigor, A was convicted. The counsel 
 then proposed to A and his friends, that it was now 
 their policy to join with him in an application to the 
 court to lighten the punishment of both, which pro- 
 posal was perforce accepted; and the court duly con- 
 sidering the weighty representations procured from 
 the grand jury and other persons of standing and rep- 
 utation by the influence of A's family, and also the 
 more potent appeal of both prosecutors, visited each 
 defendant with the lightest penalty that under the law 
 T.e could inflict. This was substantial victory to B. 
 
 The prudent commander, however hard pressed, 
 will save his colors and his baggage. And so in 
 forensic warfare, if but the beginning be judicious 
 and the ground well studied, there will be found 
 almost always at least honorable retreat. You will 
 but seldom give an able and wary practitioner a 
 Waterloo. 
 
 These hints are thrown out in order that the 
 young counsel be impressed that he should not too 
 hastily decide upon any particular action or defense, 
 nor that he confine himself after such decision, at all 
 events, to the same. We have already said that no 
 case can exhibit as numerous diversifications as -in
 
 To6 CONDUCT OF LiriGATION. 
 
 extensive campaign. But it is only known to the 
 careful and diligent lawyer how many different 
 presentations of a case, apparently simple, may often 
 under the law be made. 
 
 Superiorities of law, like those of evidence, are 
 discovered after minute examination of the case. 
 The whole facts must be understood fully before any 
 accurate generalization may be made. A winning 
 superiority of law or evidence is a generalization of 
 the particulars of the case. For instance, if, after 
 close scrutiny, you find that on a turning-point of 
 the case, you have a preponderance of testimony, it 
 is shown by a generalization of the testimony of 
 both sides. And again, grouping the facts to give 
 you an ascendency on some particular rule of law, !s 
 another instance of the same process. There are 
 but these two superiorities — law and fact — and 
 neither can be demonstrated save from a careful re- 
 view and analysis. And the generalizations can 
 never be surely reached save by a detailed contem- 
 plation of all the particulars. 
 
 The born lawyer in his preparation exhibits a 
 growing tendency to found his aggressive or defen- 
 sive combinations the more circumspectly on sound 
 legal principles. The wary veteran of forensic bat- 
 tles is all the while suspicious that his assumptions 
 will be shown to contravene the law, and this sus-
 
 PREPARATION. 107 
 
 picion keeps him from sleeping in a false security. 
 After a while he begins to know the law almost 
 instinctively. 
 
 Next he shows another growing tendency. He 
 is too busy for much laborious thought. He is a 
 man of action. Often he can not give legal ques- 
 tions in his case a thorough examination before he 
 must argue them before the court of last resort 
 This constraint begets in him a wonderful faculty of 
 steering his cases around doubtful encounters on law 
 questions. He never engages with his adversary foi 
 the mere love of controversy. He must see either 
 that controversy is inevitable or that he can antici- 
 pate with much probability some justifying advan- 
 tage from it. For legal questions, though easy when 
 argued for us by able lawyers, learned judges, and 
 gifted text-writers, are not always easy to decide 
 before such argument. Easy law questions are not 
 seriously mooted. When able lawyers divide on 
 questions of law, and decide to argue them in ear- 
 nest, there is generally difficulty. The necessary 
 analysis, in order to present the cardinal points, is 
 often a Herculean labor. And the wary lawyer 
 avoiding gins and snares, will, if he can with safety, 
 at once evade a question which he has not time to 
 investigate, and press his adversary into ground bet- 
 ter knov/n.
 
 loS CONDUCT OF LITIGAriON. 
 
 But in the preparation of the law of the case, 
 when the local statutes and decisions and the stand- 
 ard text-books fail of giving the desired counsel to 
 the lawyer consulting, " the search for principles 
 must be made. These principles, it should be re- 
 membered, do not severally belong to particular 
 corresponding subjects or branches of the law ; but 
 like the warp to the woof in cloth, extend through 
 all subjects. For example, there may be found in 
 connection v/ith the law of insurance a principle 
 which runs not only through this branch, but 
 through that of bills and notes, agency, partnership 
 and many other branches, and governs a question 
 arising on a libel for smuggling goods. So that, 
 althouirh under the head of smuo-p-lino^ there is no 
 doctrine or decision either in digest or treatise, tc 
 meet the exigency, yet, under other titles may be 
 found the principles which are to determine the case 
 of smuggling. How a principle is to bear upon a 
 case, in what form and order the one and the other 
 are to be resolved in the mind of the investigator, 
 and many other like practical matters, are better 
 learned by experience and general study than by any 
 directions which, without occupying too much space, 
 can be given here." ' 
 
 The same author gives an instance, from his own 
 ' Bishop, First Book, § 444.
 
 PREPARATION. 109 
 
 practice, of establishing a new principle : It is the 
 case of Mellen v. Whipple, i Gray (Mass.). "The 
 facts were that Whipple had bought a piece of land, 
 subject to a mortgage ; taking, as is customary in 
 Massachusetts, a deed poll (which is deed in one part 
 signed only by the grantor) ; and in the deed the 
 mortgage was mentioned, adding, ' which mortgage, 
 with the note for which it was given, the said Whip- 
 ple is to assume and cancel' By previous decisions, 
 such a recitation in a deed creates a promise in law 
 fi-om the grantee to his grantor to take up the note 
 and mortgage. But in this case, Whipple having 
 failed to pay the mortgage-note, the holder of it, 
 who had nothing to do with the original transaction, 
 brought against him this suit. And the question 
 v/as, Y.'hether there was any such privity between 
 the parties as would enable the plaintiff to maintain 
 the action. 
 
 "The Massachusetts decisions going further, 
 perhaps, than the English, appeared on the face of 
 them to contain the broad doctrine without excep- 
 tion, that in every case, if a promise is made to A, 
 on any good consideration moving from A to pay 
 money to B, the latter can sue the promisor on this 
 promise and recover. Of course, if this was really a 
 rule, to which there was no exception, there was no 
 resisting the present demand. The counsel for the
 
 no CONDUCT OF LITIGATION. 
 
 defendant found that by traveling out of Massachu- 
 setts he could find a plenty of decisions denying the 
 right of the third party to recover, and plenty of 
 others in which the right was maintained. But none 
 of the books, whether books of reports or text-books, 
 contained any statement of an intelligent principle 
 distinguishing the one class of cases from the other. 
 At length a principle did occur to the mind of the 
 defendant's counsel, apparently reasonable and just 
 in itself, reconciling most of the cases ; and while it 
 tallied with the theory that all the previous Massa- 
 chusetts cases wherein such a plaintiff was permitted 
 to recover were correctly decided, brought the 
 present case on the other side of the line. It was as 
 stated in the abstract of his argument, given in the 
 book of reports, as follows : ' The principle on 
 which a third person is permitted to recover on a 
 promise made by the defendant for his benefit in 
 cases where, like the present, no part of the consid- 
 eration proceeded from him, is, that there is some 
 property or thing in the hands of the defendant^ 
 which is the consideration of the promise, held by 
 the defendant as a trust, or a fund, upon whicli the 
 plaintiff has an equitable claim. Unless there is 
 something to which such equitable claim can attach, 
 he can not recover, though the promise is made 
 on Some other good consideration as between the
 
 PREPARATION. in 
 
 immediate parties to it.' And he showed that in 
 the present case there was no fund except the land ; 
 and under the mortgage the plaintiff had all this 
 land b}' a claim prior to the deed under which the 
 defendant afterward became the owner of the mere 
 right to have it if he chose to take up the mortgage. 
 Therefore there was absolutely no such fund. 
 
 " The consequence was that this view of the case 
 carried the court and prevented what otherwise 
 would quite likely have occurred, a decision in favor 
 of the plaintiff." ' 
 
 We must, however, remind the reader that he 
 will find judges extremely averse to making avozv- 
 cdlv new rulino-s. He must remember that the al- 
 most humorous description of Sir H Maine is but 
 the truth. He says :' 
 
 " With respect to that great portion of our legal 
 system which is enshrined in cases and recorded in 
 law reports, we habitually employ a double language 
 and entertain, as it would appear, a double and 
 inconsistent set of ideas. When a group of facts 
 come before an English court for adjudication, the 
 whole course of the discussion between the judge 
 and the advocate assumes that no question is, oi 
 can be, raised which will call for the application of 
 
 * Bishop, First Book, §§ 467-469. 
 ' Ancient Law, 31 (London, 1870).
 
 112 CONDUCT OF LITIGzlTION. 
 
 any principles but old ones, or of any distinctions 
 but such as have long since been allowed. It is 
 taken absolutely for granted that there is somewhere 
 a rule of known law which will cover the facts of 
 the dispute now litigated, and that if such a rule be 
 not discovered, it is only that the necessary patience, 
 knowledge, or acumen is not forthcoming to detect 
 it. Yet, the moment the judgment has been ren- 
 dered and reported, we slide unconsciously or 
 unavowedly into a new language and a new train 
 of thought. We now admit that the new decision 
 has modified the law." 
 
 You must not, therefore, if you can avoid it 
 shock the sensitiv^e conservatism of a judge by ask- 
 ing avowedly for an innovation. If it is necessai}' 
 for your case, it should be solicited as an old princi- 
 ple. But sometimes all pretense must perforce be 
 thrown aside ; for the novelty of the demand is too 
 striking to be concealed. Here the lawyer, if he 
 would succeed, must come before the court fully 
 furnished with resistless demonstration. He must 
 have, besides, an infallible presentiment and know 
 that the judicial mind is ready to advance courage- 
 ously before he can safely rest his case upon the 
 chance of such a decision as he nov/ seeks. Let 
 him have other points if he can. 
 
 The lawyer, in the selection ol his points on
 
 PRE PA RA TION, 1 1 3 
 
 which he will stand, must needs show good sense 
 and judgment. As he grows older he carefully re- 
 frains from what may be termed overrefining. The 
 law is not of the family of the exact sciences. It 
 has a favorite maxim, that it cares not for small 
 things. The plain men in the jury box are struck 
 with prominences and appreciable superiorities in 
 the evidence. They measure roughly, and care not 
 to be finically precise. And the judge on the 
 bench is practical, too. His knowledge of the law 
 is scientific, and not empirical, it is true. But his 
 science teaches him, that he can not find the ex- 
 actitudes of mathematics. He will often decide 
 right, and be as unable to give a good reason as a 
 woman for her right decision. Fie will give you 
 correct judgments, not " laboriously, but luckily." 
 Mr. Bishop has well described this necessary fac- 
 ulty of the good judge and good lawyer : 
 
 " There is, moreover, besides this comparison 
 [of many cases with one another and the principle], 
 a legal judgment, not quite definable in its nature, 
 whereby a lawyer, well educated in his profession, 
 and i)ossessing a truly legal mind, is able to pass 
 with great accuracy on principles, even before they 
 are thoroughly tested, by comparison with the ad- 
 judications. This legal judgment, if it can not be 
 defined, can be described by instituting comparison 
 
 8
 
 114 CONDUCT OF LITIGATION. 
 
 between it and some other things. Thus, if on,e 
 presents a literary work which he claims is able to 
 charm the masses of men who read books, there is 
 no way by which the correctness of this claim can 
 be absolutely tested except by trial. Yet there are 
 those who, like physicians, accustomed to feel the 
 pulse of patients until they can tell, without the 
 watch, how fast the beat is, are constantly feeling 
 the public pulse in such matters ; and if the literary 
 work is of a common sort, such as has been tested 
 over and over again, they can judge with great 
 accuracy what its success will be. It is so, also, with 
 judgments, passed by experienced persons, on pro- 
 ductions in the fine arts. The practiced judgment 
 operates with great precision ; and, in most in- 
 stances, its operation is as quick as it is sure." ' 
 
 The legal judgment is the result of long 
 familiarity with the law, as Lord Coke told King 
 James : " I crave leave to remind your majesty 
 that causes which concern the life, or inheritance, or 
 goods, or fortunes of your subjects, are not to be 
 decided by natural reason, but by 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 cognizance of it." 
 
 ' Bishop. First Rook, g 472.
 
 PREPARATION. 115 
 
 The pleadings do not require the attention that 
 they once did. They beeome less and less artificial 
 in England and all over America. But, as we have 
 said, it is not our design to intrude on the province 
 of the author of law treatises. We have only to 
 remind our reader that, while the privilege of 
 amendment saves nearly all bad pleading, still, that 
 the addition of any important allegations, by the 
 exercise of the privilege, will generally surprise the 
 adversary, and he must be allowed sufficient time to 
 answer the new matter. You will then hardly ever 
 be able to force him to a trial before the next term. 
 It is often of the utmost consequence to a lawyer to 
 coerce a trial, and he who pleads badly may throw 
 away a golden opportunity which he shall never see 
 return. Let your pleadings be neat, brief, lucid, 
 but for all this, full ; that is, making such a case 
 that you shall not be driven an into amendment, or 
 deprived of a triumph by an arrest of judgment.
 
 Ii6 CONDUCT OF LITIL MION. 
 
 CHAPTER VII. 
 
 OTHER PARTICULARS OF PREPARATION. 
 
 We hope that we have now made our re?('crs 
 understand clearly our conception of a right prepar- 
 ation of a case. Still we will enforce the lessons we 
 have been teaching, by presenting a few reflections 
 of a somewhat general character. 
 
 In the first place, let us note, as a fauh, too com- 
 mon with many eminent counsel, that tL^ey leave 
 the investigation of the case and the classification of 
 its details to inferior workmen. Many asiumc no 
 part in the management of the case befoiC ^rial. 
 They seem by their conduct anxious to inculcate 
 the belief that their great abilities are only for tiie 
 court-room ; that the conduct there is the more im- 
 portant ; that there is as little precedent preparation 
 of a case necessary as there is of a game of chess. 
 And it will be seen that the people at large believe 
 that this is true. They seek a strong speaker to 
 argue their causes. They seem to care little for the 
 talents or training of the humble lawyer on whom 
 they shall devolve the burden of preparation. His 
 labors appear to them ministerial and clerical.
 
 PREPARATION. 117 
 
 They rate the preparation of a case as the easy ac- 
 complishment of average abiHty. Now, we have 
 striven and written in vain for our reader, if we have 
 not convinced him that the m-eat need of the hi2:h- 
 est talents of a lawyer is in shaping the conduct o 
 the case before trial. Can the topography of a field 
 be learned as well after the battle begins, as it can 
 be in days of exclusive attention before-hand ? 
 And can a lawyer who has never looked into an in- 
 tricate case, when the night before the trial has 
 come, master the pleadings, the long array of docu- 
 ments, and the other proofs, and make the analysis 
 of the whole necessary for its proper management, 
 as well as if he had taken months to do all these 
 things, with no disturbing and spurring prcssiN*j 
 upon him ? Our young lawyers will do well to 
 master thoroughly the duties of English attorneys 
 and solicitors. They first make a full statement of 
 the case. This is then submitted to counsel,, who 
 gives an opinion. And so onwards every step of 
 the preparation is, as it were, in careful writing. 
 Finally, on the eve of trial, the brief made up by the 
 attorneys would, to any intelligent lawyer, tell the 
 whole of the client's case. The evidence is mar- 
 shaled and the whole case is analyzed, the issues 
 presented, and the line of conduct accurately indi- 
 cated. I am convinced that our system here is the
 
 ii8 CONDUCT OF LITIGATION. 
 
 better, uniting, as it does, attorney and counsel in 
 one. Its faults are not inherent, while its superior- 
 ity to the English is inherent. Under the English 
 system, the counsel is never brought in contact with 
 the witness until he faces him on the stand. To use 
 a metaphor from the military, the general never 
 reconnoiters in person. I add with hearty approval 
 the language of the celebrated lawyer, David Paul 
 Brown : 
 
 " Both of these systems [the Roman and the 
 English] were undoubtedly less onerous and more 
 agreeable than ours, but neither of them was as 
 beneficial or so economical as that which is almost 
 invariably adopted in the American courts, and 
 especially in Pennsylvania. Here the attorney is 
 the counsel and the counsel the attorney ; he man- 
 ages and controls the entire progress of the suit ; his 
 intercourse with his client is not intermediate but 
 direct ; he conducts all the pleadings, prepares his 
 own brief, examines the witnesses in his office or in 
 court, digests and arranges his own authorities, and 
 finally argues the cause. The labor incident to 
 these duties is very great, but its advantages are 
 commensurate. A man can never perform any 
 work so satisfactorily as when he is acting upon his 
 own knowledge, nor can any facts procured by an 
 attorney be as satisfactory to counsel as those which
 
 PREPARATION. 119 
 
 he himself might obtain by personal examination. 
 Every man has his own views in regard to the 
 points of a case and the natme of the evidence 
 required to elicit them, and he can therefore ' best 
 minister to himself.' This course secures counsel 
 against confusion and surprise ; it furnishes him 
 with a knowledge of the weakness as vv^ell as the 
 strength of his case and that of his adversary ; it 
 brings him into timely contact with his witnesses, he 
 becomes acquainted with their manner, their temper, 
 their bias ; all of which enter largely into the esti- 
 mate of their testimony. It has been suggested 
 that this would be impracticable in England. It 
 might be inexpedient to make any radical change in 
 their deeply-rooted system, but it certainly would 
 not be impracticable, nor perhaps injudicious. It is 
 true we can not^ argue against a system merely be- 
 cause it is subject, in some respects, to casualties or 
 exceptions, but those who have attended legal pro- 
 ceedings at Westminster Hall or Lincoln's Inn 
 could not fail to have perceived, and not unfre- 
 quently, great embarrassment of the counsel from a 
 want of that familiarity with facts and their applica- 
 tion to the legal points of a case, which' would have 
 been avoided or lessened by pursuing the system 
 adopted in this country. No lawyer can examine a 
 witness satisfactorily from the notes or brief pre-
 
 120 CONDUCT OF LITIGATION. 
 
 pared by any other hand than his own ; he is often 
 rather benighted than enlightened. And of all 
 briefs, the brief of an attorney would be the most 
 objectionable or least available. They save time to 
 counsel, but they place him in a state of dependence 
 from which it in some cases happens no genius or 
 talent can relieve him. A man who always depends 
 upon another, naturally and necessarily impairs his 
 own powers. 
 
 " We remember a rather amusing instance of this 
 in the argument of an injunction in the case of The 
 Queen v. Strange, before Sir Knight Bruce, in 
 1848. The attorney or solicitor having of course 
 prepared the [brief of (?)] the pleadings, which 
 were voluminous, bill, answer, &c., the learned 
 judge during the argument inquired of Mr. Tal- 
 FOURD as to the averment of ascertain fact which 
 was deemed vital to the proceeding. The learned 
 Sergeant (who had probably never read anything 
 more than an abstract of the bill) could not lind it 
 — none of the attorneys could find it. The crown 
 affirmed its existence, the defendant denied it, and 
 after an hour's confusion it turned out that, although 
 contained in the original bill, it had been omitted 
 from the transcript.'" 
 
 As the preparation of a case becomes more im- 
 ' 2 Forum, 255, rt sea.
 
 PREPARATION. 121 
 
 portant than the trial, as the facts and details of the 
 case increase in number and intricacy, so does this 
 more important part of the preparation require the 
 closest attention from the ablest professional talent 
 at the command of the client. And never should 
 the loftiest counsel forego an opportunity of talking 
 with the witnesses and parties in person. Mr. 
 Parker narrates the following, which will enforce 
 what we are saying: 
 
 " Fie [one Captain Ashton] claimed to have 
 loaned several thousand dollars to a trader upon a 
 mort2:aQ:e of his stock. The trader failed, and his 
 creditors contested the mortgage. They urged that 
 the captain had no visible means, no property, and 
 coi;ld not have had the money to lend on mortgage ; 
 and, moreover, that the trader's stock of goods was 
 so small, and his assets so deficient, that he could 
 not have had the money. 
 
 " Captain Ashton contended that his money 
 came to him from England in sovereigns, and that 
 he lent this gold to the trader. 
 
 "It looked rather dubious for Ashton. 
 
 " i^lr. CiiOATE prepared to try the case for the 
 plaintiff, Ashton. It was to come on at Lowell. 
 
 "The plaintiff's witnesses were summoned to 
 meet Mr. Choate in a room of the hotel. Ashton 
 had not met his debtor for some time. Mr. Ashton
 
 122 CONDUCT OF LITIGATION. 
 
 and his counsel with witnesses, were in the private 
 room when the mortgagor, who had been notified to 
 attend, came in. Ashton sprang at him hke a tiger. 
 ' You scoundrel,' said he, ' you have cheated me ; 
 you have robbed me of my gold.' 
 
 " Mr. Cpioate remarked to the writer, years 
 aft erwards, in speaking of this case, ' That incident 
 satisfied me my client was right. I knew it and felt 
 it, and knew that was the case for me. I care not 
 how hard the case is — it may bristle with difficulties 
 — if I feel that I am on the right side, that cause I 
 win.' 
 
 " Mr. Choate got a verdict, but it was set aside 
 for some cause ; and before the second trial Ashton 
 had disappeared. But sufficient facts were subse- 
 quently developed to leave no doubt that Ashton's 
 story was true." ' 
 
 Now, had Choate been an English counsel, 
 engaged in this case in England, he would not have 
 entered the trial encouraged by having v/itnessed 
 this impressive spectacle. Some attorney might 
 have seen it and tried to narrate it to Choate, 
 but he could not have represented the expression 
 and the action of Ashton. 
 
 We will fortify ourselves again, with the testi- 
 mony of Mr. Warren. He is advising the English 
 ' Reminiscences, 115.
 
 PRE PA RA TION. 1 2 3 
 
 attorney in getting up a case to sift the witness 
 well, and he admits that counsel are unskillful. 
 He says: 
 
 " I have dwelt at considerable length on the 
 examination of the evidence, because it is the most 
 important of all duties that fall to the lot of the 
 attorney, and it is the only one in which he can 
 derive no assistance from the superior information 
 of counsel ; indeed, I have generally found counsel 
 more unskillful in the private examination of wit- 
 nesses than ourselves"' — (that is, than attorneys). 
 
 The inferiority of the English counsel is due to 
 their little practice in such " private examination." 
 
 There is a natural consolidation as well as a 
 natural division of labor, and so there is simplifica- 
 tion going on in the w^orld as well as multiplication. 
 The division of labor between the English attorneys 
 and counsel is as unnatural as if the master never 
 took his scholar in hand until the moment of final 
 examination, and had turned over his training to an 
 ignorant subordinate. A delicate trust, requiring 
 skill and tact for its performance, if delegated by the 
 trustee, should only be delegated to an agent pos- 
 sessing the requisite qualificaLions. What would be 
 thought of a historian — a Mommsen or a Nicbubr 
 
 * Warren's Adventures of an x\ttorney &c., 306. (New 
 York, 1S74.)
 
 124 CONDUCT OF LITIGATION. 
 
 — who employed clerks to get up the facts for him, 
 from which he drew his conclusions? How far 
 short of his present able and exhaustive treatment 
 would Mr. Bishop come, if he never consulted the 
 reports and authorities for himself, but took them at 
 second hand from the digests of law students ? If 
 we found in any country such a system of writing 
 history or law-books prevailing, we would know 
 that this division of labor was unnatural and per- 
 nicious. And so it seems to me that the English 
 system, dividing, as it does, the preparation of cases 
 between attorney and counsel, and never permitting 
 the counsel to sift the witnesses and the parties for 
 himself, is a false system. And I have no hesitation 
 in saying, that I believe if the duties were inter- 
 changed, if the superior man were to play the 
 attorney, sift the witnesses, marshal the proofs, and 
 leave to the less learned and able the drafting of 
 the pleadings and the conduct at the trial, that in 
 the iinal issue of litigation, those parties who had 
 the best causes would, in the average, fare better 
 than they do now. The disease of the system is, 
 that it assij^ns the feeblest and most unskilled men 
 to the post which requires the most strength and 
 skill, and it artificially divides that which in its 
 nature is indivisible and integral. 
 
 Let our young lawyers of America aspire to
 
 PREPARATION. 125 
 
 make of themselves both good attorneys, and also 
 good counsel. They will be the better counscJ for 
 being good attorneys. 
 
 But it is advisable for a client in an importnnt 
 cause to have more than one counsel. Occasionally 
 we see a single lawyer get up an important and 
 difficult case well, and conduct it faultlessly from 
 beginning to end. But a lawyer is so subject to 
 interruptions of all kinds that he will seldom, 
 though ever so careful and painstaking, be will- 
 ing to undertake the entire management and 
 preparation of a case by himself. Besides, the 
 old adage that two heads are better than one 
 is applicable. Labor merely manual or clerical, or 
 any other kind of unskilled, needs not much look- 
 ing after if the laborer is honest. But where there 
 must be , thought and reflection at every step, 
 the wisest and most capable man should piece 
 out his own ability with the assistance of others. 
 You have seen the bystander point out the best 
 move in the game which had been overlooked 
 by the pla;fcrs. He appears vastly superior. But 
 possibly, there have been many good moves 
 made which he had not anticipated. Yet as to 
 the particular move which he has suggested, he 
 has seen better than the players. I inquired, the 
 character as a lawyer of a new made judge, of
 
 126 CONDUCT OF LITIGATION. 
 
 one of the shrewdest and quickest lawyers I ever 
 knew. " Oh ! " he repHed, " he is a splendid fellow 
 to sit by you during a trial and give you sugges- 
 tions." There is hardly any lawyer who will not, 
 if he is conducting a case alone, sometimes com- 
 mit a blunder which will chagrin him, because 
 after it is committed it is so palpable. But he 
 will seldom be permitted to commit such a 
 blunder by an associate of even humble capacity. 
 The ablest lawyer will generally be the busiest, 
 and he will, therefore, in his hours and moments 
 of fatigue and exhaustion, or when he is too 
 pressed with a multiplicity of engagements to 
 look into any one thing with the care that he 
 should, need the calm insight of an unruffled 
 associate. But an associate should divide the 
 burden of preparation. Each should be chosen 
 for his peculiar ability, and then be made to 
 exert it. The following passage from the Life 
 of Burr is pertinent : 
 
 " He [Burr] showed unequaled tact in placing 
 his men. Before selecting his assistants in a 
 cause, he would ascertain and carefully calculate 
 all the opposing influences — prejudices, interest, 
 indifference, ignorance, political, local, and family 
 feeling — and choose the man likeliest to combat 
 ^hem with effect. If there was a crank in the
 
 PREPARATION. 127 
 
 mind of the judge, he would find the hand that 
 could turn it to his advantage. If there was a 
 prejudice in the mind of a juror, he would con- 
 trive by some means to bring it to bear in favor 
 of his client. If learning and eloquence were 
 essential he would enlist their aid also."' 
 
 The leading counsel should place all of his 
 associates with judgment. There should be fre- 
 quent consultations of them all, and the whole 
 preparation passed in review. Every one of them 
 should at any moment not only know what had been 
 done by all, but also w^hat each was then doing, 
 and vras to do. This unity will secure from each 
 his utmost achievement. Faults will be corrected, 
 blunders avoided, surprises anticipated. The client 
 should never be permitted to encumber the case 
 with useless counsel. He should be made to un- 
 derstand that he is but inviting failure according 
 to the old saying that what is everybody's business 
 is nobody's, if he has a throng of counsel and he 
 can not say which one should lead. There must 
 be a leader, and he should select the associate 
 counsel. His own experience v/ill dictate to him 
 both the kind of associates and the number 
 that he desires. When selected and placed, there 
 should be between all, as to the secrets of the case, 
 * Parton's Life, 150.
 
 128 CONDUCT OF LITIGATION. 
 
 the utmost freedom and unreserve. Every contribu- 
 tion that any one can make should be made to the 
 common interest without stint. Nursing a darling 
 point in reticence, and keeping it from his associates 
 to display suddenly in the court-room, is unworthy 
 of a lawyer. Rather when the preparation has 
 been difficult and laborious, and a faultless conduct 
 has achieved a great victory, let it be as hard to 
 find who did any particular part of the perfect work 
 as it is to discover the authorship of an editorial 
 in the Times. Bickerings between associates, and 
 manifestations of jealousy of each other, are horrible. 
 They are dishonoring to all who indulge in them. 
 
 Treat your associate always with respect. Hear 
 his suggestions with attention. Though he may be 
 as far from you as night is from day, still show no 
 impatience. If you differ, avoid all heat. A calm 
 and placid statement of a difference, if you are in 
 the right, will nearly always convince. If you are 
 not in the right and you keep cool, and your ad- 
 viser without excitement states his vievv'S, and they 
 are right, you v/ill yield. For truth presented to 
 the mind, not passionate, is, as a general thing, em- 
 braced as soon as seen. 
 
 Local counsel, as we Americans are in the habit 
 of terming lawyers who reside in the county where 
 the case is to be tried, arr, nearly ahvays indispen-
 
 PREPARATION. 129 
 
 sable. The movements of the adversary and the 
 opposing influences at work, can only be properly 
 watched by counsel on the spot, and most of the 
 preparation of the case must be made there too. 
 Nor is the influence of local counsel to be despised. 
 We have noted before the great popularity of law- 
 yers and their numerous troops of friends. The 
 personal influence of a lawyer alone is often worth 
 a great fee. 
 
 What I have said has been intended to be sug- 
 gestive rather than exhaustive of the subject of 
 associate counsel. The principles determining their 
 proper selection arc* well understood by the pro- 
 fession, but they are too often disregarded. And I 
 leave the subject now with the observation, that I 
 have more often seen too many counsel than too 
 few associated. 
 
 We have time and again insisted that the lawyer 
 always have a purpose. The subject is so surpass- 
 ingly important that we shall say something in ad- 
 dition to that which we have already said concern- 
 ing it. The 6th of David Paul Brown's Golden 
 Rules for the examination of witnesses is, " Never 
 ask a question without an object, nor without being 
 able to connect that object with the case, if objected 
 to as irrelative." And it is the Golden Rule of all 
 preparation that everything, from beginning to end 
 9
 
 130 CONDUCT OF LITIGATION. 
 
 be done with intelligent purpose. Merc action for 
 the sake of action, as a woman often insists on 
 dosing a sick patient with the first medicine that 
 comes to hand, merely because something must be 
 done, is sheer foolishness. It is not enough that 
 everything be done with an object — it should be 
 done in accordance with the well-understood pur- 
 pose of the right preparation. The lawyer acting, 
 whether he is leading or not leading counsel, should 
 have an intelligent conception of the necessary 
 preparation well grasped before he commences to 
 act. If not he will disarrange its unity, and will 
 be often detected and exposed by a skillful adver- 
 sary as warring against his own side. 
 
 But this is no advice to stand shivering forever 
 on the bank. As we have said, a lawyer must de- 
 cide, and deciding, he must then act promptly, and 
 keep acting vigorously. Fie is not the hesitating 
 Hamlet, who stops to probe and sound to its infinite 
 depths every proposed measure. He can not even 
 meditate long over his law books. He must be as 
 quick as Kenyon if he can, of whom Lord Camp- 
 bell tells us : 
 
 " DuNNiNCz, instead of continuing to dine on 
 
 cowheel, shortly after being called to the bar was 
 
 making thousands a year, and had obtained a seat m 
 
 • Parliament. He had many more briefs than ne
 
 PRE PARA TION. 131 
 
 could read, and many more cases than he could 
 answer. Ken yon became his fag, or in legal lan- 
 guage his ' devil/ and then began the career which 
 led to the Chief Justiceship. With most wonderful 
 celerity he picked out the important facts and points 
 of law which lay buried in immense masses of 
 papers, and enabled the popular leader to conduct a 
 cause almost without trouble as well as if he had 
 been studying it for days together." 
 
 This quickness introduced Kenyon to Lord 
 Thurlow. The same biographer says : " But his 
 fortune was made by the elevation of Thurlow to 
 the woolsack. This man of extraordinary capacity, 
 and extraordinary idleness, when called to sit in the 
 Court of Chancery earnestly desired to decide prop- 
 erly, and even coveted the reputation of a great 
 judge, but would by no means submit to the 
 drudgery necessary for gaining his object, and as 
 soon as he threw off his great wig, he mixed in 
 convivial society or read a magazine. To look into 
 the authorities cited before him in argument and to 
 prepare notes for his judgments, Hargrave, the 
 learned editor of Coke upon Littleto7i, was employed, 
 but he was so slow and dilatory that the lion in a 
 rage was sometimes inclined to devour his jackal. 
 Kenyon, sitting in court with a very moderate share 
 of employment, having once or twice as amicus
 
 132 CONDUCT OF LITIGATION. 
 
 curiae very opportunely referred him to a statute or 
 a decision was called in to assist him in private, and 
 now the delighted Chancellor had in his service the 
 quickest instead of the most languid of journeymen." 
 
 This faculty of rapid and accurate work is indis- 
 pensable to the good lawyer. For all the won- 
 derful correctness of his judgments, Lord Eldon's 
 fame would now be greater had he been less slow to 
 decide and then act. Samuel Smiles in his charm- 
 ing work, entitled Self-Help, thus illustrates this sub- 
 ject : " Sir Walter Scott, writing to a youth who 
 had obtained a situation and asked for his advice, 
 gave him in reply this sound counsel, * Beware of 
 stumbling over a propensity which easily besets you 
 from not having your time fully employed, I mean 
 what the women call dawdling. Your motto must 
 be Hoc age. Do instantly whatever is to be done.'" 
 
 Of course there must be the precedent reflection, 
 and rapid and quick as the action must be, the law- 
 yer must feel, when it is over, that it has been done 
 with complete circumspection. The words of Burr 
 who was as prompt to decide as he was indefati- 
 gable in executing his decision, are w^isdom. I 
 transcribe from Mr. Barton's Life. " There is a 
 maxim," said he, " Never put off till to-morrow what 
 70U can do to-day. This is a maxim for sluggards. 
 /\. better reading of it is, Ncvc7' do to-day zvhat yon
 
 PREPARATION. 133 
 
 can as zucll do to-7norrow, because something may 
 occur to make you regret your premature action." 
 David Paul Brown/ in his reprehension, did not 
 do justice to this saying of Burr. 
 
 To sum up all in a few w^ords, there must be 
 prompt action, but there must be well weighed ac- 
 tion ; it must be as prompt as it can be to be well 
 weighed, and it must be as well considered as it can 
 be to be prompt. 
 
 This necessary promptness and accurate fore- 
 thought can only be had by the preservation of cool- 
 ness. Coolness is but another word for courage. 
 These are wise words of David Paul Brov/n : 
 
 " By all means in all circumstances maintain 
 your composure ; if you lose that, you lose all. 1 1 
 asked what is the most desirable attainment of a 
 lawyer, we should say com.posure. A wealthy and 
 venerable gentleman of this city, whose only son 
 kad recently been admitted to practice, called upon 
 us, and with a perfectly natural interest in the future 
 advancement of his son, inquired what course wc 
 would recommend in order to his success at the 
 bar. ' Your son,' was the reply, * has had an excel- 
 lent education in literature and in law. All that he 
 will require, in order to render his faculties and 
 learning available, is composure.' 
 
 ' The Forum, 2 vol. 69.
 
 134' ' CONDUCT OF LITIGATION. 
 
 " ' Aye,' said the anxious parent, * but how is that 
 to be acquired.' * That,' we replied, * must depend 
 upon himself, and upon time and circumstances. 
 He must learn it as Peter the Great learned to con- 
 quer, by being flogged and defeated over and over 
 again, deriving instruction from every overthrow. 
 In short, he must let no man be master of his 
 temper but himself.'" 
 
 If you will note some lawyers in their prepara- 
 tion, they seem always to be fancying the scene of 
 the trial. This poisons all of their labors. They 
 almost remind you of children talking to them- 
 selves while building air castles in the near future. 
 A trial, anticipated and prepared for in this spirit, 
 will most generally prove, when it comes, to be an 
 air castle. The lawyer must, in the preparation of 
 his cases, avoid all passion, and resolutely turn away 
 from the visionary. A judge impartial, or a jury not 
 at all partaking, it may be, of his client's passion or 
 his own, must be satisfied. 
 
 The manly virtues of diligence and industry are 
 of as much avail in the law as in any other walk of 
 life. If you are for the plaintiff, you must indus- 
 triously master his case ; if for the defense, you must 
 get it ready. You will often note that a lawyer 
 does not fully understand the pleadings. This is a 
 most inexcusable fault. They are accessible to
 
 PREPARATION. 135 
 
 everybody, and ean always be learned with more 
 facility than anything else in the case. 
 
 And patient attention, as we have said before, 
 is a potent virtue • in a lawyer. In this day and 
 generation everything seems to have grown more 
 definite. Accuracy and definiteness are more sought 
 after everywhere. The untrained mind can not 
 attain them. But the lawyer must always show 
 that he thoroughly understands his case, and that he 
 can with exactness apply to it the law, which he 
 must likewise accurately know. I suppose that 
 every lawyer of some practice has noted how rare a 
 talent it is in men to report the substance of any- 
 thing accurately. When you are trying a case, and 
 the evidence has developed that some one not 
 thought of before must have important knowledge, 
 and you send your client, or even your associate, to 
 sound this person who may be a good witness for 
 or against you, you will still do well, if you can, to 
 hold a brief colloquy with him before you swear 
 him. Some listeners hear only what they wish to 
 hear ; and this is a large class ; and still a larger 
 class misapprehend what they do hear. The flying 
 nmiors that go around in society are exaggerated 
 instances. They, at last, in their most grotesque 
 form and in the widest difference from the truth, are 
 but the result of many misapprehensions concen-
 
 1-36 CONDUCT OF LITIGATION. 
 
 trated. Patient attention to your client will make 
 you understand him at last, — by patient attention 
 you will understand the version of a witness, the 
 pleadings, a pile of documents, the case of your 
 adversary, and, by the same power, you will time 
 and again extricate your case from decisions and 
 apparent constructions of statutes when it had long 
 appeared hopeless. With your mind concentrated 
 on your case, you will always be the first to note a 
 blunder of your adversary. Your client pays you 
 to take advantage of all that he makes. And so, 
 too, by this unremitting looking and watching you 
 will always foresee what will be done, and what is 
 necessary to be done. 
 
 Then let the lawyer carry his cases in his head. 
 On any particular one he should be able to undergo 
 a Socratic cross-examination at any time. Socrates 
 thought no man master of a subject until he could 
 discuss it from every point of view. This knowl- 
 edge was not to be communicated by a set discourse. 
 Every man must acquire it for himself. It exists 
 only in the head. We see this illustrated in the 
 case of an honest and intelligent witness under a 
 searching cross-examination. He will be asked 
 many questions he has never anticipated, but he will, 
 if he keep his coolness, answer right, and his whole 
 answers will be consistent. So long as he relies oi>
 
 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, <?/i-^^.
 
 BRIEFS. 201 
 
 country, it was the duty of attorneys to prepare 
 briefs, but as he was no attorney, he would not do 
 the de£"radinsf work. Thus briefs seem to have 
 decHned in America, or rather for these reasons they 
 never seem to have been introduced into general 
 use here. That counsel here have direct contact 
 with the witnesses and party, and are all the w^hile 
 personally cognizant of all the details of the case, 
 not learning them at second-hand, is, to my mind, an 
 almost incalculable superiority of the American 
 over the English system. Napoleon always recon- 
 noitered his battle-fields in person, except Water- 
 loo. But we have not improved our system into 
 what it should be. Our counsel should not only 
 get up a case better than the English attorneys, but 
 they should also draw better briefs. The practice 
 of law without briefs is as slovenly and primitive 
 as the score kept with chalk-marks. Rather, a law- 
 yer in full practice should feel it as much out of the 
 bounds of safety to have no briefs, as it would be 
 for a large mercantile house to keep no books. Do 
 but note one of our brethren who practices in this 
 slipshod way. He soon becomes a nuisance, by 
 keeping in his possession original papers which 
 should never leave the office of the clerk of the 
 court. He never recollects exactly the contents 
 of documentary evidence, and he often forgets the
 
 202 CONDUCT OF LITIGATION. 
 
 very authorities on which he chiefly relies for sup- 
 port. This is all wrong. It is wasteful of time. It 
 is criminal negligence of the client's cause entrusted 
 Every lawyer should be able at any time, shut up in 
 his office, without any assistance except his brief or 
 the memoranda which he has taken, each at it 
 appropriate step in the preparation, to give a clear 
 statement of the case. And a lawyer who has never 
 tried this careful preparation of briefs, can not un- 
 derstand how their very making facilitates the 
 conquest of the case. This advantage alone is more 
 than compensation for all the labor. There can be 
 no attack or defense too well meditated or under- 
 stood, nor can the other side be too well anticipated, 
 nor can there be too careful preparation. And it is 
 just as hard to accurately shape the conduct of an 
 intricate case, and hold such conduct in your head 
 without a brief, or some writing answering to it, as 
 it would be to compose and get by heart a long set 
 speech without writing any of it. This last feat can 
 be accomplished. But we know that to write the 
 speech, and afterwards learn it, is the quickest and 
 best way. 
 
 I have to add a last caution, and then I have 
 done with the subject of this chapter. 
 
 You are not to cultivate a slavish dependence on 
 j^our brief, as the repository of your preparation
 
 BRIEFS. 203 
 
 and the record of your anticipations and premedi- 
 tated plan of conduct. You anticipate and provide 
 for as much as you can, in order to have larger 
 supplies out of which to meet, on the sudden, all 
 exigencies. The ground, and possibly the disposi- 
 tions of his enemy, are known to the general before 
 the battle begins. But he does not seek to fight a 
 set battle any more than the lawyer anticipates a set 
 trial. Neither will be surprised by any action of the 
 other side, however sudden or unexpected. The 
 plan of contest of each is flexible, and readily meets 
 everything unforeseen at the time it was made. 
 The most happy extemporaneous efforts of speech 
 or action are m^ade by men who have the whole 
 business, as it were, by heart. Note an old lawyer 
 who comes to argue a law-point. Possibly he has 
 the scheme of his argument on paper. A question 
 from the judge indicates a new view. The lawyer is 
 seen to abandon his premeditated argument, and he 
 speaks now only to the suggestions that fall from 
 the bench. Why can he do this } Because he is 
 thorough master of the subject, and being that, he 
 can present it from any standpoint. And so the 
 lawyer must be when ready for trial. His brief, 
 containing the result of a year's assiduous prepara- 
 tion, it may be, will often be abandoned when he 
 is in the midst of the exciting scene. There b ■
 
 204 CONDUCT OF LITIGATION. 
 
 been dc:velopments that he did not anticipate. The 
 whole phase of the case seems changed. But out of 
 his skillful preparation he has come not only armed 
 to meet what is anticipated, but armed, too, to 
 meet that which is not. If you have never looked 
 into the case till the night before the trial, and you 
 then win it by some unexpected stroke after a great 
 menace of defeat, you rejoice. Your ingenuity 
 pleases you, and you feel that you are a great man. 
 Out of what was that stroke of yours made wb"ch 
 laid your adversary low 1 It was from a knowledge 
 that you had acquired in only a few hours. Perhaps 
 had you come with a careful preparation, there never 
 would have been that dark moment which threat 
 ened you. You might have foreseen and provided 
 against it, or perhaps, too, you might have planned 
 and executed a much more brilliant stroke than you 
 did. Does it not stand to reason that you should 
 be more ingenious with a case which you have long 
 and well studied, than with one to v/hich you have 
 only given a few hours' attention } Of course the 
 supplies are more abundant from a larger than from 
 a smaller field. 
 
 Your preparation and your brief are not for only 
 a set conduct of the case. They are a training for 
 grappling with your combatant, wherever and when- 
 ever fortune may dictate that you engage.
 
 BOOK II.
 
 CHAPTER I. 
 
 INTRODUCTORY. 
 
 We have already often illustrated our subject 
 from the correspondences of the military art, and we 
 have said that we are half inclined to entitle this 
 book " The Tactics of Litigation." In warfare, after 
 the campaign has been planned, and strategy in its 
 execution of the plan has gathered the army on the 
 decisive point, the battle must be fought according 
 to another manual of different principles. Strategy 
 concentrates the greatest possible force on the de- 
 sired point, while tactics gets out of the masses so 
 concentrated the greatest possible fighting achieve- 
 ment. And thus in litigation a careful preparation 
 has brought the parties to prove the fortunes of a 
 trial, which trial is to be conducted according to 
 principles other than those of preparation. March- 
 ing the army is a different thing from fighting the 
 army, and so preparing the case is different from try- 
 ing the case. 
 
 The proper Conduct in Court, as we choose to 
 
 name the subject of this book, is the art of making 
 
 in the forensic controversy all of your advantages 
 
 count, and of crippling as much as you can those o. 
 
 207
 
 2o8 INTR OD UC TOR Y. 
 
 your adversary. You are to make your case as 
 strong as possible, and weaken his as much as possi- 
 ble. 
 
 Different qualities are needed now in the lawyer. 
 Excellence and the crown of success are much more 
 brilliant, for the effort is generally public, and many 
 see and comprehend, while the most superb prepara- 
 tion will only be understood by the lawyers engaged. 
 The showy counsel, who is the attraction of all eyes 
 and ears in the court -room, is often but the mouth- 
 piece, and inefficient at that, of some hard-working 
 and cool-headed associate, who has industriously 
 collected, skillfully arranged and grouped the mate- 
 rials of his own side, and has with the divination of 
 genius anticipated and provided against much of 
 the other side. But to manage a trial ably from 
 beginning to end, requires a high degree of peculiar 
 talent. In the office and consultation-room there is 
 an opportunity of procrastination and re-examina- 
 tion, but in court, the counsel conducting must in 
 many straits reach his conclusions by a flash, and act 
 upon them when reached as confidently as if he had 
 been thinking over them for weeks. To know just 
 when you have done with your own witness, to de- 
 tect at once the hidden inconsistency or self-contra- 
 diction of a hostile witness, and to decide well at once, 
 whether to leave it as it is for the argument, or take
 
 CONDUCT OF LITIGATION. 209 
 
 the risk of having it explained while pushing it into 
 further and clearer development, to grasp thoroughly 
 at once the entire case at any time made for the 
 other side, to perceive at once the leaning of the 
 court, and to lead him if adverse on other ground, 
 or to confirm him if favorable, to read every meaning 
 look of counsel, party witness, juror, or judge — these 
 are the daily achievements of the ready lawyer. 
 
 It is rarely that a man has the greatest talent to 
 prepare a case well, conjoined with the greatest 
 talent of conducting it well. But generally the 
 talents in some degree co-exist. Napoleon was not 
 considered the match of his Marshal, Moreau, in 
 tactics, though infinitely superior in strategy and 
 general militaiy ability. History is full of generals 
 and officers who never evince any force of character 
 until surprised into battle where fortune seems to 
 fight for them ; and so there is a class of ready and 
 shrewd advocates who defer preparation to the last 
 moment, and yet their general success is wonderful. 
 
 When the average of cases tried is carefully con- 
 sidered, it will be found that each party approaches 
 the trial with considerable knowledge, to borrow a 
 term from card playing, of the others hand. There 
 will be, however, a portion of each side unknown or 
 not properly understood, and generally the event 
 will turn on the management and nature of these
 
 2IO INTRODUCTORY. 
 
 unknown particulars. The striking material points 
 of the case will be forgotten by nobody, and they 
 will be rightly attended to, but these unforeseen 
 matters, such as the sudden desertion or self-contra- 
 diction of an important witness, an unexpected 
 attack or some astonishing ruling of the court, an 
 unanticipated case made by the adversary — these are 
 the matters which require the peculiar tact of the 
 lawyer who can well conduct a trial. This is not 
 the talent for advocacy, nor is it that which properly 
 directs preparation. Advocacy is only a part of it. 
 
 Now, our first remark is to repeat what we have 
 roundly asserted before, that the best conduct in 
 court lias been generally preceded by the bestpre- 
 paration. It does not require argument to show the 
 great superiority of that adversary who has before- 
 hand the most extensive knowledge of the case 
 which is to be tried. Out of his better information 
 he will, other things being equal, often worst and 
 discomfit his opponent. Sometimes a party will be 
 vanquished where he is the stronger, just because he 
 has made no careful investigation to teach him his 
 strength. 
 
 But we do not say that the same man who has 
 well prepared must conduct the trial. That counsel 
 v/ho can best lead should lead. And he that leads 
 should have thoroughly in his head and by heart
 
 IN TROD UC rOR V. 2 r i 
 
 the preparation of the case by whomsoever that has 
 been made. The brief, if well digested and exhaus- 
 tive, will nearly always give the necessary informa- 
 tion. It should be studied and mastered. T!ic 
 antecedent preparation, the importance of which can 
 never be overrated, it is well now, as we are about 
 to test and use its results, to analyze again, in order 
 to have it once more impressively contemplated. 
 So we remind the reader that this preparation for 
 the trial consists: (i) of a most industriously 
 gathered and complete collection of all the particu- 
 lars of the lawyer's own side ; (2) of the same col- 
 lection, as far as has been possible, of all the particu- 
 lars of the other side ; (3) of the proper classification 
 of all these particulars ; (4) of a plan of conduct 
 which is the proper combination of the o'l.cr three, 
 a plan which in its beginning is firmly set and 
 planted on the known and material facts and law, 
 but in the rest is flexible and pliant, and turns with 
 elastic readiness to meet every unanticipated occur- 
 rence at the trial. 
 
 Our subjects run into each other, or rather the 
 demarcation of conduct otU of coti7't from conduct m 
 cou7^t, is only for the purpose of making the student 
 understand the whole of Conduct of Litio:ation. It is 
 in this plan that the two parts cohere so closely that 
 one is but the spontaneous continuation of the other,
 
 212 CONDUCT OF LITIGATION. 
 
 The carefully collected and accurately geneialized 
 knowledge of preparation, as above set forth, is the 
 fulcrum of attack or defense at the trial. But it 
 must be nothing more than a fulcrum. The good 
 tactician is not slavishly dependent on his prepara- 
 tion, which he makes only the beginning, — the plant- 
 ing and fixing immovably the fulcrum if he can, — 
 but which others inferior often show by their acts 
 that they conceive to be the end of the work. 
 These drudges are never able to get beyond their 
 brief, which they seem to regard as a premeditated 
 report of the trial. They will make out the case 
 only pro forma. 
 
 But after the deal, the game is to be played ; after 
 strategy has dictated the combinations, and the dis- 
 positions have been made, the battle is to be fought ; 
 and to fight the battle of a case well, the lawyer 
 must be master of the case. We say an author is 
 master of his subject when he maintains his ground 
 against all opposers, each attacking it, may be, in a 
 new and unexpected place. So, likewise, when a 
 lawyer trying his case puts in every particle of his 
 own evidence, clips off every particle that he can of 
 the adversary's that would damage, who from begin- 
 ning; to end overlooks no advantage, who objects 
 and excepts in the right place, and who when the 
 jury retires can be said to have overlooked nothing.
 
 I NT ROD UCTOR Y. 213 
 
 he has achieved a triumph, for it is a triumph even 
 if he loses. Napoleon in one of his maxims says : 
 " A general-in-chief should ask himself frequently in 
 the day, ' What should I do if the enemy's army ap- 
 peared now in my front, or on my right, or my left' 
 If he have any difficulty in answering these ques- 
 tions his position is bad, and he should seek to rem- 
 edy it." And thus has the intelligent lawyer pre- 
 pared for the day of trial. He has not anticipated 
 everything, — all the details, — for that is impossible, 
 but he has by repeated self-questionings at last 
 shaped and mobilized his ease so that he is ready for 
 any turn, however sudden, during the trial. 
 
 We may classify the objects of conduct in court 
 as follows : 
 
 1. Your own carefully prepared combinations 
 are to be put before the court in the best form and 
 shape. 
 
 2. You are to see that the adversary gets no ad- 
 vantage of law or evidence that his case is not fairly 
 entitled to. 
 
 3. You are to put in, as the trial progresses, what 
 further combinations, formed ex tempore out of ma- 
 terials at hand, that you may be able to make. 
 
 There should be a consultation before the trial, 
 and the whole line of conduct carefully mapped out 
 and agreed upon; who shall lead, too, should be un
 
 214 CONDUCT OF LITIGATION. 
 
 derstood. The best man for each particular place 
 must be put in it. Some lawyer will conduct an ex- 
 amination better than his associates — if so, the post 
 should be given him, though he be not the leader. 
 Sometimes an important legal argument will be 
 anticipated somewhere in the trial : let it be settled 
 who shall make it. Nothing is more irritating to the 
 thorough lawyer than to see several counsel con- 
 ducting a trial in no concert with each other, no 
 leadership acknowledged, and each associate endea- 
 voring to show off his own superiority to all the 
 others. In England the established usages of the 
 profession settles the question of leadership. In our 
 country the client can determine who shall lead, 
 but the question is generally decided by the sponta- 
 neous consent of the lawyers engaged. This lawyer 
 so set up to lead, should not be too anxious to ex- 
 hibit his authority nor superior familiarity with and 
 understanding of the case. 
 
 At the consultation the witnesses and the party 
 should be present if possible, and every detail in the 
 brief should be verified if true, or corrected if false. 
 Especially should the witnesses be attended to. As 
 they have been examined and re-examined before, 
 they can be soon disposed of now. But they should 
 be reviewed and searched on every material point. 
 
 And the legal positions should be scanned with
 
 INTRODUCTORY. 215 
 
 close scrutiny". In fact the whole case must be con- 
 templated. There generally occur changes and new 
 developments to the very last. Let all such be 
 looked at calmly and boldly, and be provided for. 
 
 It will be decided at this meeting whether there 
 shall be demurrer to the pleadings of the other 
 side, whether the fight shall be opened on the merits, 
 or v/hether lighter legal fence shall be resorted to. 
 Often a well-taken exception may relieve you when 
 you have a reason to desire, but none to enforce, a 
 continuance. 
 
 And while on the subject of consultations, we 
 may as well say, that the counsel of the same side 
 should constantly confer with each other at every 
 good opportunity through the trial. 
 
 We must again remind the reader that there are 
 many single issues which are easily come at, and do 
 not require all the circumstance and parade of pre- 
 paration and conduct which we have been discuss- 
 ing. These easy cases will almost take care of them- 
 selves. Laborious examination before and careful 
 preparation after accepting — well-planned conduct 
 and anxious consultations are for those which need, 
 from their difficulty and intricacy, such treatment. 
 
 Before leaving this chapter it is well to say a 
 word as to continuances and selecting the jury. 
 The law explains clearly the different grounds of
 
 2i6 CONDUCT OF LITIGATION. 
 
 continuance, and to enumerate them is not our pur- 
 pose. If some legal cause of continuance exists 
 which materially damages the case, of course there 
 is no discretion, and the case must be continued. 
 But there are many times when you fear a trial, and 
 would prefer waiting. Thus, just after a homicide 
 the feeling against the defendant is often resistless, 
 sweeping on court and jury to his sure conviction. 
 In a few months the public would become impartial 
 Here the lawyer will continue if he can. Again, 
 after even what may appear the maturest study of 
 the case, you feel that you have not mastered it. 
 You sometimes have a presentiment, which is by no 
 means the tempting whisper of procrastination, that 
 you will strengthen your case if you do not try too 
 speedily. I have known cold-blooded lawyers to cal- 
 culate the chances of the death of adverse witnesses 
 whose testimony had not been perpetuated. I knew 
 anothtT shrewd and successful advocate who would 
 try his bad cases and would not try his good cases at 
 the 0(;tober Term in a particular county, where the 
 people always took a more than usual interest in the 
 political campaign just then near closing in a State, 
 Congressional, or Presidential election. It behooves 
 the lawyer to stand always ready, if he can, with a 
 good cause of continuance. He is not to prepare a 
 perjured showing any more than he is to prompt a
 
 INTRO D UCTOR V. 217 
 
 a witness to feign. By always keeping his eyes 
 about him in the case, he will generally ha\e in 
 his power the enviable election of trying or not try- 
 inof. " It is said that when Schombercr was told 
 that the enemy was advancing and was determined 
 to fight, he answered with the composure of a tacti- 
 cian confident in his skill, ' That will be just as we 
 may choose.' " ' It is not always in the power of the 
 lawyer to accept or decline a trial, but he should 
 endeavor to have such a command of a case. 
 
 And it is the business of the lawyer preparing, to 
 anticipate and provide against the meditated contin- 
 uance of the adversary if possible. It is not enough, 
 that you be able to accept or decline an offered trial, 
 but you should be so prepared as to force your adver- 
 sary into a trial if you choose. If you can discover 
 in time his meditated ground of continuance, you 
 may provide against it. The law sometimes allows 
 counter-showings or admissions of the expected proof 
 of absent witnesses. The showing too, when scrutin- 
 ized carefully, may be demonstrated to be only appa- 
 rently good. Or there may be some reply by the par- 
 ty wishing a trial which may avoid the showing. Thus 
 on a bill filed to recover a tract of land, and for an 
 account of the mesne profits, the complainant being 
 very anxious to tiy, feeling that he had a certain case 
 ' Macaulay, Hist. Eng. Chap VIII.
 
 2i8 CONDUCT OF LITIGATION. 
 
 met a strong showing of the absence of witnesses to 
 prove the profits of the land by striking out that part 
 of his bill claiming such. The defendant was insol- 
 vent, and the complainant really made no sacrifice.* 
 
 So much for the subject of continuances : only 
 that we would have no lawyer cultivate a slowness to 
 try his cases. We see lawyers who never wish to 
 try. They appear always afraid to try, and their 
 ingenuity in devising continuances is for a long 
 while exhaustless. As we have already hinted, a 
 lawyer should, if he can, try or not try, according to 
 the dictates of a sound policy. 
 
 We will now add a few words as to the selection 
 of the jury. The panel should be well studied. It 
 is a duty too often neglected. A mis-trial or an ad- 
 verse verdict is often the consequence of such neg- 
 lect. If the lawyer will but use all his opportuni- 
 ties of studying the panel, his proper action is so 
 plain, that we need not dwell longer upon it. We 
 therefore quit the subject, saying to the lawyer, " Al- 
 ways study, as well as you can, the panel from w^hich 
 your j ury will be taken." 
 
 We will now proceed, i-i^r/^/Zw, with what appear 
 to be the natural heads of this Second Book. It 
 may be shorter than the other, and yet we shall try 
 to put down, in a rudimentay way, everything of 
 importance in the conduct of causes in court.
 
 CHAPTER II. 
 
 OPENING THE PLEADINGS AND OPENING THE CASE. 
 
 The case being called on, and not continued or 
 postponed, the jury selected and sworn, the plaintifif 
 is first to open the pleadings and the case. The 
 American practice at Nisi Prius is strikingly differ- 
 ent from the English, and we believe can be shown 
 to the unprejudiced much superior. In England the 
 junior counsel for the plaintiff opens the pleadings : 
 " that is to say, he states to the jury the proceedings 
 through which the issue or issues have been arrived 
 at, which they have to try." ' And after the plead- 
 ings have been opened by the junior, the leader 
 makes a statement of the case for the plaintiff, which 
 gives in detail all of his evidence. This is called 
 opening the case. The plaintiff then goes through 
 with his evidence, and when it is closed the plain- 
 tiff's counsel will be heard no more, if the defendant 
 introduces no evidence. The defendant's counsel 
 then opens his defense. If he has decided to put in 
 no evidence, all that he says will be a discussion oj 
 ' Cox, Adv. 335.
 
 220 CONDUCT OF LIT IG AT ION. 
 
 the plaintiff's evidence, in order to show if he can 
 that it has failed to support the alleged right to re- 
 cover. But if he is going to introduce evidence, he 
 will not only discuss that of the plaintiff, but he will 
 make a detailed narrative of his own proofs. After 
 this address and his evidence is gone through, the 
 leader for the plaintiff has the last word to the jury, 
 called the general reply. 
 
 But in America the pleadings and the case are 
 opened usually by the same counsel — the statement 
 by either the plaintiff's or defendant's counsel 
 is usually very brief, and the argument of both 
 sides is made to the jury after the evidence is all in. 
 In our chapter on the Argument, we shall, we think, 
 briefly show this to be the better practice. 
 
 There is no uniform rule settling which one of 
 the counsel shall open either for the plaintiff or de- 
 fendant. I have noted a tendency to cede it to the 
 junior counsel, and I never knew the opening of the 
 pleadings given to one counsel, and the opening of 
 the case to another. 
 
 It must be remembered, that here in America 
 where it is the ric^ht of each side to discuss the evi- 
 dence fully after it is closed, that opening either the 
 plaintiff's case or the defense is not of the importance 
 which it is in England. Yet an opening should be 
 neatly made, however brief it may be. And in treat-
 
 OPENING. 221 
 
 ing of the subject, we will adopt the English dis- 
 tinction, and treat of opening the pleadings and of 
 opening the case separately, though here they are 
 not at all distinguished in practice. 
 
 As to opening the pleadings, we will begin with 
 a passage from our English guide, which seems to us 
 very full and satisfactory, all of it being entirely ap- 
 plicable here, however much an English trial at N'lsi 
 Prills may differ from one in America in other 
 respects : 
 
 " This should be done in the shor'test and most 
 smiple manner. Nothing can be more absurd, than 
 to hear, as one often does, a long string of techni- 
 calities read to a jury, to whom every second word 
 must be unintelligible, and the effect of which must 
 be to perplex them at the very beginning of their 
 task, and thus to some extent prevent them from ap- 
 proaching it with such clear intelligence as if it had 
 been introduced to them in plain English. If the 
 form of opening the pleadings be requisite at all, it 
 should be so done as to be understood by those to 
 whom it is addressed ; and if it be not requisite it 
 ought to be abolished. But in truth, if done judi- 
 ciously it would be a useful proceeding, for it would 
 give to the jury a bird's-eye view of the case, and en- 
 able them the better to understand the subsequent 
 statements. . .
 
 222 CONDUCT OF LITIGATION. 
 
 " Make your statement intelligible to the jury 
 by putting it in an intelligible shape, and in lan- 
 guage which they can understand, as thus : 
 
 " ' Gentlemen of the jury : — In this case John Doe 
 is the plaintiff, and Richard Roe is the defendant. 
 The action is brought to recover the sum of 21/. 
 and interest, being the amount of a bill of exchange 
 drawn by plaintiff upon, and accepted by defendant. 
 In answer to this claim the defendant has pleaded 
 ist, that he did not accept the bill ; 2d, that he has 
 paid it ; 3d, that it was obtained by fraud ; 4th, that 
 no consideration was given for it. Upon these 
 pleas issue has been joined, and these are the ques- 
 tions you have to try.' " ' 
 
 The pleadings are opened to put both court and 
 jury in possession of the issue to be tried. The jury 
 being laymen, need a plainer and more prolix open- 
 ing than the judge. If the pleadings are long and 
 intricate they should always be read, though there 
 be an offer to waive the reading. And before such 
 reading, a lucid analysis and statement of them 
 should be made orally for the benefit of both judge 
 and jury. No long document should ever be 
 read without a brief statement of the points to 
 which it is read. And the judge needs this prepara- 
 tion as well as the jury. We are talkers by nature 
 
 ' Cox, Adv. 335, e/ scq.
 
 OPENING. 223 
 
 and readers by art. The judge and the jury both 
 would prefer being talked to, to being read to. If 
 the pleadings are short, their reading rnay be 
 omitted, but if they are long and intricate after the 
 statement made as we have suggested, let them be 
 read. The jury now will understand even the 
 technical terms, and the judge will pick out easily 
 the exact issue, and correct any mis-statement of 
 yours, whether of omission or commission. 
 
 The pleadings having been opened, it is next in 
 order in England to open the plaintiff's case in 
 extenso. " As a general rule, the statement of the 
 case for the plaintiff should be calm, temperate, and 
 dignified, orderly in arrangement, lucid in language, 
 and as brief as the facts to be told will permit.'" 
 The same English author also thus counsels the 
 leader : 
 
 " You Vv^ill begin of course with an account of 
 the parties, who and what they are, and the circum- 
 stances that led to the present dispute ; then you 
 will state with precision the nature of the dispute 
 itself, and whether it is upon a question of law, or of 
 fact, or both, with the very points at issue, the one 
 for the information of the court, and the other for 
 the information of the jury, that attention may be 
 directed more readily and surely to your evidence 
 ' Cox, Adv. 338.
 
 224 CONDUCT OF LITIGATION. 
 
 as it bears upon those points. Of so much impor- 
 tance is this, that you should take some pains by 
 previous preparation to put them into the most 
 distinct shape, and you should repeat each one 
 totidefn verbis whenever you introduce your state- 
 ment, and when you close the evidence that bears 
 upon it. Then taking each of these questions in 
 turn, state in the form of a narrative, the proofs you 
 propose to produce in order to its establishment, 
 and in so doing be very careful to show no misgiv- 
 ings about it, by anticipating objections, apologizing 
 for defects, or making an effort to give weight to 
 certain witnesses, for you must assume that they are 
 unimpeachable until they are shaken by your 
 opponents, and their testimony to be conclusive 
 until it is shown to be otherwise." 
 
 " Strange as it may appear, there is nothing more 
 difficult in the art of advocacy, than effectively to 
 open a case to a jury. The proof of this is the 
 rarity of the exhibition. Flow few of our advocates 
 accomplish it to the entire satisfaction of a critical 
 listener ! 
 
 " It is your object to convey to them [the jury] 
 and to the court a history of your case, so that they 
 may thoroughly understand what is the subject-
 
 OPENING. 225 
 
 matter of the contention, upon what grounds of 
 claim or complaint you come into court, and the 
 evidence by which you purpose to establish them. 
 
 ' Perhaps the test, whether you have done all that 
 you should do previously to describing your testi- 
 mony may be thus put : * Have you made out such 
 a case by your facts and arguments, that if you 
 prove these facts and they be unanswered, the jury 
 would be convinced that your claim or complaint 
 was justly founded, and give you their verdict ?' 
 
 " This accomplished, and not before, you should 
 proceed to state the particular evidence by which 
 you propose to establish the facts you have de- 
 tailed." ■ 
 
 These passages show the opening of the case to 
 be more important in England than in America. 
 Still, even here it is one of the advantages of the 
 initiative which should never be lightly tossed away, 
 where there is any difficulty in understanding the 
 case. As already suggested, the counsel opening 
 must make two divisions of his address : one to 
 apprise the court of the questions of law which are 
 made, and the other to explain clearly to the jury 
 the issue ol fact they are to pass upon, together with 
 a compendious anticipation of the evidence, instead 
 
 ' Cox, Adv 339, e*. 'seq.
 
 226 CONDUCT OF LITIGATION. 
 
 of the detailed statement of the proofs which fill the 
 leader's opening in Eng^land. There is no need that 
 these divisions be formal. Often the counsel will be 
 at the same time addressing court and jury both, 
 but still as what he then says is composed of the 
 two elements, law and fact, the one is for the court 
 and the other for the jury. 
 
 This opening is to present only a general idea of 
 the case, and it is not to go into detail. It must give 
 such an outline as will serve the purpose of a well- 
 considered argument prefacing a play, or a book of 
 an epic, to impart to the hearer such a general 
 preconception that he will easily understand the 
 details as they are evolved. Its main essential is a 
 brief lucidness. And the good judgment of the coun- 
 sel must inform him what to say and how to say it; 
 
 It is a great blunder to have the opening 
 alidress too long. The juries here only expect 
 a long speech after they have heard the evidence. 
 The author observes, however, in the courts to 
 which he has access, the opposite fault. He often 
 sees the jury rousing up to learn the facts from the 
 speeches. To the honor of our country and our 
 democratic institutions, juries everywhere are in the 
 main honest, and possessed with great desire to find 
 and do the right between contending parties. But 
 how can they perform this high duty, unless all the
 
 OPENING. 227 
 
 special instruction which they need as to the merits 
 of the case is given them. And how can they 
 inteUigently go along with the shiftings of a volu- 
 minous evidence, often paralleling the play of a 
 turning kaleidoscope, without some general notion 
 given them beforehand of this evidence, in addition 
 to the statement of the issue or issues to be tried, 
 which cannot be made too distinct Even veteran 
 judges will often be found not to have grasped the 
 question, arguing until midway the argument. And 
 if they who are trained to listen, and whose appre- 
 hensions have been artificially quickened, need a 
 prefatoiy outline, much more do the laity in the 
 jury-box need a patient and careful introduction to 
 the general features of the case before the evidence 
 begins. Time and again have I heard the counsel 
 for the plaintiff, after reading rapidly, and seerning 
 not to care whether he is understood or not, the sub- 
 stantial parts of the pleadings, only remind the jury 
 that he expects to support the allegations of the 
 declaration by evidence, which he will not take up 
 their time now to describe. One of the hardest things 
 to do in the world, is to make men attend to details 
 as they should. The reviewer often omits notice of 
 .the most important features of a book ; the historian, 
 intent only upon some distorting theory, writes 
 what it is good-nature in the extreme to call a
 
 228 CONDUCT OF LITIGATION. 
 
 lialf-glimpse of the society whose life he is telhug ; 
 the pubHc disputant and the counsel are perpetuall)/ 
 discomfited because of inattention to some detail of 
 their subject. Note how seldom a witness testifying, 
 however honest and free from bias, can answer fully 
 as to the transaction. Had the reviewer had in mind 
 the different features of the book, had the historian 
 been taught the elements of the life of any and all 
 society, had the speaker been fully informed of his 
 subject, and the witness been instructed what to 
 look at before the transaction which he narrates 
 begun, each one would have been m.ore accurate 
 The counsel opening the pleadings and the case 
 must recollect this. Let him even when he reads 
 to the judge, premise by giving a brief and succinct 
 epitome of the points to which he will read. 
 
 All the logics say that discussion must begin 
 with a definition of the terms of the proposition. 
 This is the rule which prescribes the duties of coun- 
 sel opening the pleadings. And in opening the 
 evidence, he is to possess the jury with it in minia- 
 ture, as it were. The art of presenting facts in- 
 telligibly is to avoid crowding them together. If I 
 ran on in a jumble : "John Doe, a laborer, of Suffolk 
 County, born July 4th, 1826, died July 15th, 1873, 
 leaving a widow, etc.," scarcely any one can repeat 
 it after me, for he needs more time to contemplate by
 
 OPENING. 229 
 
 and receive each fact asserted. To carry my hearer 
 along with me, I should proceed somewhat as 
 follows : " John Doe was a laborer ; he resided in 
 Suffolk County; he was born July 4th, 1826; he 
 died July 15th, 1873 ; he left a widow, &c." The 
 hearer of ordinary intelligence will pick it all up, 
 and be able to give it substantially. 
 
 To sum up the essentials of an opening, as we 
 term it in America, in a few words, it must make 
 the court and jury, as briefly as possible, understand 
 the. case so that they may try it intelligently, and it 
 must also present an outline of the plaintiff's case 
 so that his evidence may be readily understood as it 
 is introduced 
 
 It is likewise our custom, when the defendant 
 introduces evidence, that he also open his defense. 
 The pleadings having been already opened, he has 
 nothing to do with them. He will present an out- 
 line of his defense and evidence, guided by the 
 principles which we have already set forth. The 
 defendant's counsel in England, at this time, dis- 
 cusses the plaintiff's evidence, as he will -be heard 
 no more. But as we have already said, in America 
 we argue the evidence after we have heard all of it. 
 
 There is also an opening of the record when 
 the question is entirely for the court. The sam.e 
 rules govern it. An oral synopsis of the points to
 
 230 CONDUCT OF LITIGATION. 
 
 which the record will be read, and an oral statement 
 of the case made by the record, shordd precede the 
 reading of the record. 
 
 As we leave this chapter, we urge that unfair- 
 ness and over-statement are more out of place in an 
 opening than anywhere else. A lawyer should 
 always strive to state his own case, and that of his 
 adversary, with fairness. He will hardly ever 
 escape most damaging and irritating criticism 
 should he be so careless as to be false in opening 
 his case. Whether he opens pleadings, or a record, 
 or evidence, he should do so with the strictest re- 
 gard for the truth, adding nor taking away nothing. 
 The following passage of Brougham's defense of 
 his illustrious client must have told fearfully upon 
 Gifford, the Attorney-General, who had in his 
 opening stated the evidence of adultery, which he 
 professed to have against the Queen, much too 
 strongly : 
 
 " He meant to point out the parts of his learned 
 friend, the Attorney-General's, opening statement, 
 which instead of receiving support from the evi- 
 dence, were either not touched upon by it at all, or 
 actually negatived out of the mouths of his own 
 witnesses. His learned friend should speak in his 
 own words the statement of the plan and construc- 
 tion of his own case. It was most material, also.
 
 OPENING. 231 
 
 for them to bear in mind that his learned friend was 
 in his statement directed by the instructions which 
 were put into his hands ; for this speech ought 01 
 course to be considered as the mere transcript or 
 his instructions, the mere outline of the documents 
 submitted to him ; documents prepared, too, in a 
 way which nobody need be at any loss to guess. 
 
 " His learned friend, nearly in his commence- 
 ment, used these words : ' I will most conscien- 
 tiously take care to state nothing which in my 
 conscience I do not think — I do not believe — 
 I shall be able to substantiate by proof.' He need 
 not have so strongly appealed to his conscience, 
 for he (Mr. Brougham) fully believed him when 
 he said he spoke from his instructions ; he 
 readily believed that he spoke from his brief, and 
 said nothing else but what he found in his brief. 
 He believed that at the time his learned friend 
 made his opening statement ; he equally believed 
 it now, when he had failed in substantiating that 
 statement by proof. He knew full well that there 
 was no other way for that statement to have got 
 into his learned friend's brief, but out of the mouths 
 of the witnesses who at first had not hesitated to 
 garnish their stories, though they were not after- 
 wards found hardy enough to adhere to their false- 
 hoods when brought to their lordships' bar. When
 
 232 CONDUCT OF LITIGATION. 
 
 they came to the point, they were scared from their 
 first statements. 
 
 "He would read a few samples of the difference 
 between the Attorney-General's statement and his 
 subsequent evidence, for the purpose of showing the 
 value at which their lordships ought to estimate 
 that evidence. In the first, his learned friend had 
 pledged himself that the evidence of her Majesty's 
 alleged impropriety of conduct would be brought 
 down almost to the present time ; but subsequently 
 he did not attempt so to bring it down during any 
 part of the last three years ; that is to say, during a 
 space of time exactly equal to the other space over 
 which his evidence actually adduced extended. 
 
 " Here he begged leave to revert to the follow- 
 ing passages of the Attorney-General's opening 
 statement, which he took from the short-hand 
 vvriter's notes : 
 
 '"On the arrival of her Majesty's suite at 
 Naples, it was so arranged that her Majesty's 
 sleeping-room was at an opposite side of the house 
 to that of her menial domestics, among whom was 
 her courier. On the first night of her Majesty's 
 arrival at Naples (the 8th of November), to which 
 he had called their lordships' attention, this arrange 
 ment was continued. Bergami slept in that part of 
 the house which had been prepared for the domes
 
 OPENING. 233 
 
 tics, and young Austin slept in her Majesty's 
 apartment. But on the following morning, Nov- 
 ember the 9th, the servants of the establishment 
 learned with some surprise, because no reason ap- 
 peared to them for the change, that Bergami was no 
 longer to sleep in that part of the house where he 
 had slept the night precedmg, but that it was her 
 Majesty's pleasure that he should sleep in a room 
 from which there was a free communication with 
 that of her Majesty by means of a corridor or passage. 
 "'Upon the evening of the 9th of November, 
 -her Majesty went to the opera at Naples, but it was 
 observed that she returned home at a very early 
 hour. The person who waited upon her on her 
 return was the maid-servant, whose duty it v/as par- 
 ticularly to attend to her bedroom.' 
 
 " ' The female servant retired ; but not without 
 those suspicions which the circumstances he had 
 mentioned were calculated to excite in the mind of 
 any individual. She knew at the time that Bergami 
 was in his bedroom, for this was the first night of 
 his having taken advantage of the arrangement 
 which had been previously made. It was quite new 
 on the part of the Princess to dismiss her attendants 
 so abruptly ; and when her conduct and demeanor 
 were considered, suspicions arose which it was 
 impossible to exclude. But if suspicions were ex-
 
 234 CONDUCT OF LITIGATION. 
 
 cited then, how were they confirmed on the follow- 
 ing morning? If I prove (said the Attorney- 
 General), by evidence at your lordships' bar, what I 
 am now going to state, I submit that there will then 
 be before your lordships' evidence on which no juiy 
 would hesitate to decide that adultery had that night 
 been committed between this exalted person and her 
 menial servant ; for upon the following morning, on 
 observing the state of her room, it was evident that 
 her Majesty had not slept in her own bed that night. 
 Her bed remained in the same state as on the pre- 
 ceding evening, while the bed of the other person 
 had, to those who saw it, clear and decisive marks 
 of two persons having slept in it.' 
 
 " Their lordships would perceive that every one 
 of these assertions in his learned friend's speech 
 rose one above the other in successive height, accord- 
 ing to their relative importance, and that even the 
 lowest of them it was of essential importance to sus- 
 tain by evidence for his case. But every one of them 
 he not only failed to prove as he promised to prove 
 by evidence, but he actually negatived some of the 
 most material of them, by the witnesses whom he 
 had produced at the bar, evidently for the purpose 
 of substantiating them. When the witness Demont 
 was at the bar, he repeatedly asked her respecting 
 these parts of her statement ; but she, who was
 
 OPENING. 235 
 
 destined to tell them all, denied any knowledge of 
 where the Queen went to on that particular night 
 alluded to. She denied that she knew where the 
 Queen went after she left her bedroom." ' 
 
 And the report of the evidence sustained all of 
 these serious attacks made by the counsel for the 
 Oueen. 
 
 Again we must insist on the superiority of the 
 American system, which permits the counsel to talk 
 beforehand with the witnesses. Gifford might not 
 have been caught in these mis-statements could he 
 have been instructed by the witnesses in person, 
 instead of at second-hand by attorneys 
 
 An opening may be demolished, and still the 
 party's case made may entitle him to the verdict. 
 But generally to disprove or contradict, or have the 
 adversary to fail to prove the case as opened, assures 
 your victory. 
 
 Let the counsel, then, opening either for the 
 plaintiff or defendant, be ever scrupulous to state 
 nothing but that which he knows he can make good 
 when challenged. 
 
 * Trial of Queen Caroline (2 vol. 9-12). New York, 
 1874.
 
 CONDUCT OF LITIGATION. 
 
 CHAPTER III. 
 
 BEGINNING OF CONDUCT OF THE EVIDENCE. THE 
 EXAMINATION-IN-CHIEF. 
 
 We shall, as our title indicates, discuss in. this 
 chapter, first some of the leading principles of the 
 proper conduct of the evidence. Then we shall treat 
 fully of the examination-in-chief of the witnesses. 
 
 We will begin with the familiar rale, that the party 
 who holds the affirmative of the issue, commences 
 and introduces all of his evidence which he has 
 decided to introduce in making out his case. It will 
 be recollected, that he is only to make out "A. p7nrna 
 facie case, and that he can reserve much of his evi- 
 dence to reply to the case afterwards made by the 
 adversary. Oftentimes he can rest his case safely 
 after having put in but a tithe of his evidence, and 
 the remainder will more properly come when the 
 defendant's evidence has been heard. But if the 
 cross-examination has proved much to support the 
 defense, or has damaged the case of the plaintiff, it 
 ^vill often be necessary to go further than was at first 
 intended. It is not hard, however, for a lawyer to
 
 EXAMINA TION-IN-CHIEF. 237 
 
 know when he should close the evidence for the 
 plaintiff. When he sees that the proof, just as it 
 stands, having due regard to everything in evidence, 
 entitles him to the verdict, he should stop. 
 
 Then the evidence for the defense begins, and 
 the same rule applies. The defendant is to stop 
 when he has put in enough of evidence in his judg- 
 ment to avoid or disprove the plaintiff's case 
 Then he will close. 
 
 The plahitiff can then in turn support by evi- 
 dence his own case where attacked, and attack the 
 attacking evidence by other evidence, and he will 
 close aofain, when he thinks he has re-established his 
 case. He can here prove nothing additional to his 
 first evidence save as I have indicated ; he can only 
 fend off, as it were, the attacks made by the evidence 
 of the adversary, and attack, the proof introduced by 
 the latter. When the plaintiff has rested the second 
 time, the defendant can likewise support his case 
 against the attack, and disprove the new adverse 
 evidence. And so the parties can with their evi- 
 dence run a parallel to the old course of pleading, 
 to vv^it, declaration, plea, replication, rejoinder, surre- 
 joinder, rebutter, and surrebuttal. The plaintiff's 
 tirst evidence answers to the declaration; the defen- 
 dant's first to the plea ; the plaintiff's second evidence 
 to the replication ; the defendant's second to the
 
 238 CONDUCT OF LITIGATION. 
 
 rejoinder; the plaintiff's third to the surrejoinder; 
 the defendant's third to the rebutter; and the plain- 
 tiff's fourth to the surrebutter. A learned author 
 says : " After the surrebutter, the pleadings have no 
 distinctive names ; for beyond that stage they are 
 vei7 seldom found to extend." ' 
 
 This evidence embraces documentary as well as 
 oril. It may take a wide range. The evidence 
 sometimes will be all documentaiy, though this will 
 occur only now and then. 
 
 But it is mainly our object, as that is by far the 
 greater portion of the subject of evidence, con- 
 sidered as a part of the trial, to discuss in this and 
 the chapters immediately following, the examination 
 of witnesses. We shall, however, at the conclusion 
 of Chapter VI. treat of some other matters apper- 
 taining to the proper conduct of the evidence on 
 the trial. 
 
 We shall discuss the examination of the witnesses 
 under three heads in these chapters, to wit, the 
 examination-in-chief (which is often called the direct 
 examination), then the cross-examination, and lastly, 
 the re-examination. 
 
 In what we have to say of the examination of the 
 witnesses, we shall make much use of the " Golden 
 Rules" of David Paul Brown, and that part of Mr, 
 ' Steph. PI. 59.
 
 EXAM IN A TIOX-IX-CHIEF. 239 
 
 Cox's " Advocate " devoted to our subject. After 
 some reflection, we have decided it due to the impor- 
 tance of these well-known authorities, to discuss each 
 of them separately. Our foot-notes will enable the 
 reader to compare one with the other upon any par- 
 ticular of which both of them treat. It chances, how- 
 ever, that they but seldom travel over the same road. 
 
 David Paul Brown in one of his "Golden 
 Rules," advises that counsel never ask a question 
 without an object, nor without being able to con- 
 nect that object with the case, if objected to as 
 irrelative ; and in another he says, " Never begin 
 before you are ready, and always finish when you 
 have done. In other words, do not question for 
 question's sake, but for an answer." These rules are 
 applicable to all examinations. There should be an 
 intelligent purpose in asking every question, whether 
 you are examining your own witnesses or crossing 
 those of your adversary. 
 
 We will take up the examination-in-chief, by 
 citing a passage from our English guide, which will 
 be interesting to an American : 
 
 " The plaintiff's case being thus stated by the 
 leader, the examination of the plaintiff"'s witnesses 
 proceeds. The general rule is for the counsel on 
 that side to conduct the examination of the wit- 
 ^Tesses in turn, the junior taking the first witness,
 
 240 CONDUCT OF LITIGATION. 
 
 probably because it was supposed that the leader 
 would reqmre rest after his speech. But this order 
 is somewhat departed from under special circum- 
 stances, — as where the witness is peculiarly 
 important, or his examination demands peculiar 
 skill, — in which the leader will propose to take him, 
 a suggestion to which you should always readily and 
 cheerfully assent ; and, indeed, when such a witness 
 chances to fall to your lot, it would be becoming in 
 you to propose to your leader that he should call 
 him, and thus to anticipate the delicacy that often 
 prevents a leader from doing that which may look 
 like a want of confidence in you." ' 
 
 The author is not aware of any Amicrican rule 
 which settles what counsel shall examine the wit- 
 nesses. This one of the discretionary matters which 
 is generally disposed of by agreement at the consul- 
 tation before the trial. If it has not thus been 
 settled, the counsel whose leadership in the case is 
 conceded, either examines or directs an associate to 
 do so. Other things being equal, that counsel 
 should examine who is best acquainted with the 
 expected proof of the particular witness, if that 
 proof be at all difficult to elicit. Generally in our 
 country, different parts of the case have been got up 
 by different counsel, and possibly one of them has 
 ' Cox, Adv. 351.
 
 EX A iMINA riON- IN-CHIEF. 241 
 
 had an inten^iew with a particular witness, whom the 
 others have had no oppprtunity of seeing before. 
 It is plain, then, that this counsel, if he has the ordi- 
 nary qualifications, should examine the witness 
 whose narrative he knows better than his associates. 
 
 And the author has noted, that where the facts 
 are many and intricate, and the case so doubtfu 1 as 
 to require careful and elaborate argument, that it is 
 better for that counsel who is to make the main 
 argument not to examine any of the witnesses. He 
 can then be free to take careful notes, and at every 
 interval he can be, as it were, casting the balance of 
 the testimony, instead of puzzling in anticipation 
 over the next witness, or the cross, or the re-exam- 
 ination. And, while thus playing the part of auditor 
 only, he will be of great assistance to his associate 
 examining, to whom he should make only sugges- 
 tions of important questions that he sees would 
 otherwise be omitted. 
 
 But to proceed with the examination-in-chief. 
 The pleadings of the plaintiff which have not been 
 demurred to, his declaration or his bill in equity, or 
 the bill of indictment, contain material allegations 
 which must be proved ; and the object of the direct 
 examination of the plaintiff's witnes-^cs is to prove 
 such allegations ; just as it is also the object of the 
 defendant's direct examination to prove the allega-
 
 242 CONDUCT OF LITIGATION. 
 
 tions of his plea or answer. We take for granted 
 that our examiner is lawyer enough to know what is 
 good evidence, and what is not. The books wil] 
 teach him as to competency of witnesses, and com- 
 petent and relevant evidence. And it is not our 
 desio-n to o;ive herein a treatise on the law of evi- 
 dence ; we turn our readers over to Phillips and 
 Greenleaf. 
 
 The examiner understanding the law of evidence, 
 and having fully learned the narrative of. the witness, 
 either from having conversed with him in person, or 
 from having digested full instructions of a reliable 
 associate, v^rill so shape his questions as to elicit 
 from the witness the material portions of that 
 narrative. And he is to get out of the witness 
 every bit of material testimony favorable to the 
 plaintiff, and, if avoidable, nothing unfavorable. He 
 must prove enough, and not too much 
 
 But if there is something adverse apparent on 
 the surface, the examiner-in-chief had better prove it 
 him.self by the witness. Thus the witness may be a 
 near relation of the party, or a warm friend, or some 
 \m favorable part of his narrative may be well known 
 to the other <5ide. It is idle to tiy to keep back 
 these things, and the party calling the witness will 
 gain credit with the jury by proving them, and it 
 might be used to his disadvantage if he did not.
 
 EX AM/N A TION-IN-CHIEF. 243 
 
 The examiner can do his duty well only by 
 having by heart the narrative of the witness. And 
 the reader will also understand that this applies to 
 the e.xamination by the defendant of his own wit- 
 nesses. 
 
 Having now laid down what we deem the 
 essential principles of an examination-in-chief, we 
 will give some hints and suggestions which we 
 think useful. And here we will draw largely on 
 David Paul Brown's " Golden Rules,"' and " The 
 Advocate " of Mr. Cox. And we will begin by 
 copying the First Golden Rule : 
 
 " As to your own witnesses : If they are bold, 
 and may injure your cause by pertness or forward- 
 ness, observe a gravity and ceremony of manner 
 towards them, which may be calculated to repress 
 their assurance." 
 
 This rule is valuable, and deserves meditation. 
 I will, however, suggest that it is the business of 
 counsel to know beforehand whether a witness will 
 be bold, or pert, or fonvard, and caution him against 
 such behavior No gentleman of the bar will ever 
 tell a witness to say anything but the truth ; but he 
 will be remiss in his duty, if he find him :'n the con- 
 sultation-room hasty and forwarJ, not to reprove 
 and rebuke him into a more b:c3ming spirit, and 
 ' I Forum Ixxiv.
 
 344 CONDUCT OF LITIGATION. 
 
 thus rightly prepare him for the witness-box. But 
 if this duty has been omitted, the caution of David 
 Paul Brown is to he acted out to the fullest. He 
 proceeds : 
 
 ''Second. — If they are alarmed or diffident, and 
 their thoughts are evidently scattered, commence 
 your examination with matters of a familiar char- 
 acter, remotely connected with the subject of their 
 alarm, or the matter in issue, as, for instance : 
 Where do you live ? Do you know the parties ? 
 Hovv^ long have you known them ? &c. And when 
 you have restored them to composure, and the mind 
 has regained its equilibrium, proceed to the more 
 essential featuies of the case, being careful to be mild 
 and distinct in youi approaches, lest you may trouble 
 the fountain again fiom which you are to drink." 
 
 Upon this rule we remark that it is also the 
 business of the lawyei lo anticipate the fright or 
 discomposure of his witness. If he will but talk 
 to him before the trial, he will see whether he 
 promises to be composed or not. Women and 
 diffident men will pour Odt their fears of the court- 
 room to you volubly, if you Vv JU but listen ; and 
 listen you should, to be prepared for their examina- 
 tion, or to prepare youi associate. If you will take 
 their confidence, you will find the witnesses leaning 
 on you as a protector, and better furnished there*
 
 EXA MINA TION-IN- CHIEF. 245 
 
 from for the day of trial. But often, in spite of the 
 best anticipation, the witness will be discomposed 
 when he is called, and if so, the advice of the cited 
 rule is admirable, and nothing can be added to it. 
 
 *' Third. — If the evidence of your own witnesses 
 be unfavorable to you (which should always be 
 carefully guarded against), exhibit no want of com- 
 posure ; for there are many minds that form 
 opinions of the nature or character of testimony 
 chiefly from the effect which it may appear to pro- 
 duce upon the counsel." 
 
 We have already touched upon the subject of 
 unfavorable testimony from your own witnesses. A 
 prudent consultation with the witness should guard 
 against surprise. But if, in spite of such forearming, 
 something unfavorable unexpectedl}- comes out, th*" 
 rule advises well. 
 
 " Fourth. — If you perceive that ihe mind of the 
 witness is involved with prejudices against your 
 client, hope but little from such a quarter : unless 
 there be some facts which are essential to your 
 client's protection, and which that witness alone 
 can prove, either do not call him, or get rid of him 
 as soon as possible. If the opposite counsel per- 
 ceive the bias to which I have referred, he may 
 employ it to your own ruin. In judicial in^uiriei:, 
 of all possible evils, the worst and the least to be
 
 246 CONDUCT OF LITIGATION. 
 
 resisted is an enemy in the disguise of a friend. 
 You cannot impeach him — you cannot cross- 
 examine him — ^you cannot disarm him — you cannot 
 indirectly even assail him ; and if you exercise the 
 only privilege that is left to you, and call other 
 witnesses for the purpose of explanation, you must 
 bear in mind that instead of carrying the war into 
 the enemy's country, the struggle is between sec- 
 tions of your own forces, and in the very heart, 
 perhaps, of your own camp. Avoid this by all 
 means." 
 
 This rule seems to assume that a witness often 
 eludes the watchfulness of party, friends, and lawyers, 
 proving at last, when put on the stand, to have been 
 but a spy under the character of a friend. Prudent 
 preparation will guard well against any such catas- 
 trophe. Every witness of doubtful character, should 
 be committed to his narrative in the presence of 
 those who would quickly bear him down should he 
 swerve. The party is not at the mercy of a traitorous 
 witness. The true rule is by careful preparation to 
 avoid or unarm him as much as possible; but if you 
 are surprised, impeach him if you can by proof of 
 his contradictory statement to your client, or if you 
 can not, a straightforward and manly grappling with 
 the traitor, will turn the sympathy powerfully 
 against him. The law and courts are becoming too
 
 EX A MINA TION- IN- CHIEF. 247 
 
 wise to permit justice to be cheated under irrational 
 rules. Tlie most busy and eminent counsel, can at 
 least at the consultation the night before the trial, 
 carefully probe and search among his client's follow- 
 ing for the character of all the witnesses, and thus 
 be prepared against any lurking partisan of the 
 adversary. 
 
 The next rule is unexceptionable : 
 
 ''Fifth. — Never call a witness whom your adver- 
 sary will be compelled to call. This will afford you 
 the privilege of cross-examination, take from your 
 opponent the same privilege it thus gives you, and 
 in addition thereto not only render everything 
 unfavorable said by the witness doubly operative 
 against the party calling him, but also deprive that 
 party of the power of counteracting the effect of the 
 testimony." 
 
 The seventh and eighth rules are likewise unex- 
 ceptionable, and are given entire : 
 
 " Seventh. — Be careful not to put your questions 
 in such a shape that if opposed for informality you 
 can not sustain it, or at all events produce strong 
 reason in its support. Frequent failures in the 
 discussion of points of evidence enfeeble your 
 strength in the estimation of the jury, and greatly 
 impair your hopes in the final result." 
 
 " Eighth. — Never object to a question from your
 
 248 CONDUCT OF LITIGATION. 
 
 adversary without being able and disposed to 
 enforce the objection. Nothing is so monstrous as 
 to be constantly making and withdrawing objec- 
 tions ; it either indicates a want of correct perception 
 in making them, or a deficiency of reason or of 
 moral courage in not making them good." 
 And there is good sense in the following : 
 
 ''Ninth. — Speak to your witness clearly and 
 distinctly, as if you were awake and engaged in a 
 matter of interest ; and make him also speak dis- 
 tinctly and to your question. How can it be 
 supposed that the court and jury will be inclined to 
 listen, when the only struggle seems to be, whether 
 the counsel or the witness shall first go to sleep } " 
 
 We will now present, following the order ol 
 the author, all the suggestions that we deem of value 
 in Mr. Cox's chapter on Examination-in-chief ' 
 
 His advice as to leading questions, need not be 
 repeated. It now seems to be the tendency to 
 permit such questions, unless the court interferes to 
 ])revent abuse. The counsel is generally doing but 
 little if he is only on the watch to object to leading 
 questions : 
 
 Upon the next point we will give some of Mr. 
 Cox's language : 
 
 " Great caution is required in the examination of 
 ' Adv. 351, et seq.
 
 EXAMINA TION-IN-CHIEF. 249 
 
 all your witnesses after the first, to prevent their dis- 
 agreement in any important particulars. No error 
 of inexperience or unskillfulness is more common, 
 than to examine a witness according to the briefs 
 without reference to the evidence previously given, 
 and the requirements of the case as it stands. If 
 you fear that there may be conflicting testimony on 
 any point, the first witness having varied from the 
 statement made in the brief, it is usually better to 
 leave it as it stands upon that single testimony, than 
 to bring out a contradiction ; but upon this you 
 must exercise your sagacity at the rnoment ; it must 
 depend upon the particular facts of the case. We 
 only suggest to you that it is one of the difficulties 
 of examination-in-chief, which you should be pre- 
 pared to encounter. Anticipating it, you will not 
 be taken by surprise when it occurs to you in your 
 practice." ' 
 
 This passage shows the incurable evil of the 
 English division of counsel and attorney. The latter 
 is of inferior grade and ability, and he must consult 
 with the witnesses, and his often incorrect and 
 mistaken apprehension is imposed upon the counsel, 
 who, in a few minutes' talk with the witness, would 
 correct it, and thus perhaps steer his client's c?use 
 around the breakers. Let the American lav ^ or 
 ' Compare with tlie 4th Golden Rule, ante.
 
 250 CONDUCT OF LiriGATION. 
 
 avoid this evil, and always talk with his witnesses 
 and come to the trial fully informed, as wc have 
 before instructed him. And it is his duty to find 
 out beforehand the material conflicts between his 
 own witnesses. 
 
 The reader will recollect the instance that we 
 gave in Chap. V. of Book I., where the caveator 
 introduced the testimony of two women, who, 
 though agreeing as to the main issue of fact, yet 
 contradicted each other in so many different par- 
 ticulars of importance, as to cast discredit upon 
 both. We said that it was a blunder in the prepa- 
 ration that the conflicts between them had not been 
 discovered by a careful sifting, and that then only 
 the disinterested one should have been examined 
 by commission. Another blunder was committed 
 on the trial. The caveator put in evidence the 
 testimony of both the witnesses. This he was not 
 obliged to do, although the testimony had been 
 taken at his instance. He could have relied 
 upon the evidence of that one of the women who 
 had no apparent interest, and then had the pro- 
 pounders put in that of the other, they would have 
 been held to the rule that they could not discredit 
 their own witness. And had the propounders left 
 the testimony of this disinterested woman unat- 
 tacked. — and they had no means of attacking it save
 
 EX A MINA T ION -IN- CHIEF. ^ 5 1 
 
 by that of the other,— it is difficult to see how they 
 could have avoided an adverse verdict. The 
 caveator seemed to believe that as he had taken the 
 testimony of both of the women, he must use all 
 of it. And thus he not only prepared adverse evi- 
 dence, but he actually introduced it when there was 
 no need, and broke down his own case. 
 
 Mr. Cox next advises the counsel to be on his 
 guard against " two kinds of troublesome witnesses, 
 . . . those who say too much, and those who say 
 too little ; your too eager friends, and your secret 
 enemies." I have only to say that it is the duty of 
 the lawyer to discover these characters, and be pro- 
 vided for them before the trial. 
 
 " Our authority recommends a different treatment 
 of a party's adverse witness from that advised in the 
 Fourth " Golden Rule," given above. If the hostil- 
 ity must out, the witness is to be made to show it 
 plainly. " If he be adverse at all, you can 7iot make 
 Jmn appear too adverse, because the more hostile he 
 is, the more will his evidence in your favor be 
 esteemed, and the less weight will be given to such 
 evidence as he may utter against you." This advice 
 should often be remembered. 
 
 Mr. Cox then deals admirably with timid and 
 stupid witnesses. We will give his language : 
 
 "If your witness be timid, it will be your care
 
 ■^\i CONDUCT OF LITIGATION. 
 
 to restore his self-possession before you take him to 
 the material part of his testimony. This you should 
 effect by assuming a cheerful and friendly manner 
 and tone, and if you have the art to make him 
 smile, your wit would be better timed than is always 
 the case with forensic jests. Keep him thus em- 
 ployed upon the fringe of the case until you are 
 satisfied that his courage is restored, and then you 
 may proceed with him as with any other witness. 
 But be very careful not to take him to material 
 topics vv^hile he is under the influence of fear, for in 
 this state a witness is apt to become confused, and 
 to contradict himself, and so to afford to your ad- 
 versary a theme for damaging comment.* 
 
 " A stupid witness is often more troublesome 
 than an adverse one. He can not understand your 
 questions, or answers them so imperfectly that he 
 had better left them unanswered. With such an 
 one the only resource is patience and good-temper. 
 If you are cross Vv^ith him, you will be sure to In- 
 crease his stupidity, and to convert evidence that 
 means nothing, into evidence that is contradictory 
 and confused. The preservation of imperturbable 
 good-temper is a golden rule with an advocate. 
 He should never be moved to anger by anything, 
 however provoking, and however he may appear to 
 
 ' Compare with the Second " Goiden Rule," ante.
 
 EXAMINATION-IN-CHIEF. 253 
 
 be in a passion. Entire self-command is his great- 
 est virtue, never more in requisition than in dealing 
 with a stupid witness. Instead of rebuking him, 
 you should encourage him by a look and expression 
 of approval, and you must frame your question 
 in another shape better suited to his dense facul- 
 ties. If baffled again, do not retreat, but renew 
 the catechism until your object is attained. In 
 constructing your questions, you will often find a 
 clue to his links of thought by observing his 
 answers, and your next question might then with a 
 little ingenuity be so framed as to fall in with his 
 train of ideas. Thus patiently treated, there are 
 few witnesses so dull as not to be made efficient for 
 the purpose of an examination-in-chief." 
 
 I will add that the trouble with a stupid witness 
 is often prolonged because the examiner keeps him- 
 self in a region elevated above the comprehension 
 of his answerer. He must learn to lower to his level. 
 A man that can make children always understand 
 him, will know how to deal with a dunce of a 
 witness. I give in a note below an example from 
 an eminent novelist, illustrating well how a superior 
 mind may lock itself up to an inferior." This is the 
 
 • The passage is from Buhver's "My Novel." Dr. Ricca- 
 bocca begins : 
 
 *' ' For your sake, young gentleman, I regret that your
 
 254 CONDUCT OF LITIGATION. 
 
 fault of the better mind. It is easier for a dull man 
 to understand his superior in intellect, provided the 
 latter only will learn how to talk to him, than 
 
 holidays are so early ; for mine I must rejoice, since I accept 
 the kind invitation you have rendered doubly gratifying, by 
 bringing it yourself.' 
 
 " ' Deuce take the fellow and his fine speeches ! One don't 
 know which way to look,' thought English Frank. 
 
 " The Italian smiled again, as if this time he had read the 
 boy's heart without need of those piercing black eyes, and 
 said less ceremouioasly than before, ' You don't care much 
 for compliments, young gentleman.' 
 
 "* No, I don't, indeed,' said Frank, heartily. 
 
 " ' So mvich the better for you, since your way in the world 
 is made; it would be so much the worse, if you had to 
 make it.' 
 
 " Frank looked puzzled : the thought was too deep for him, 
 so he turned to the pictures. 
 
 " ' These are very funny,' said he ; ' they seem capitally 
 done. Who did 'em .? ' 
 
 " ' Signorino Hazeldean, you are giving me wdiat you re- 
 fused yourself 
 
 " ' Eh ? ' said Frank, inquiringly. 
 
 " * Compliments.' 
 
 " ' Oh — I — no ; but they are well done ; aren't they, sir ? ' 
 
 " ' Not particularly : you speak to the artist.' 
 
 " ' What ! you painted them .? 
 
 " ' Yes.' 
 
 " * And the pictures in the hall 1 ' 
 
 " 'Those too.' 
 
 " ' Taken from nature, eh .'' ' 
 
 *-" Nature,' said theltilian sentcntiously, perhaps evasively, 
 ' lets nothing be taken from her.' 
 
 " ' Oh ! ' said Frank puzzled again. * Well, I must wish 
 you good-morning.' "
 
 EX A MINA TION- IN- CHIEF. 2 5 5 
 
 to understand what another as dull as himself 
 says. 
 
 Mr. Cox advises that the order of time be 
 observed in the examination ; that if this be departed 
 from, for the sake of bringing out facts connected 
 by some other link than that of time, these should 
 be presented in due chronological order, and then 
 the original plan be returned to. " But it Vx^U not 
 do to revert to the precise point where you quitted 
 it ; you should repeat the two or three questions with 
 which you concluded, so as to recall your witness to 
 the point from which you had diverted him." 
 
 The same author says that, " Your questions in 
 examination-in-chief should be framed carefully and 
 put deliberately. . . . You should weigh every 
 question in your mind before you put it, in order 
 that it may be so framed as to bring out in answer 
 just so much as you desire and no more. . . . The 
 court will soon learn not to be impatient of your 
 seeming slowness, when it discovers that you have 
 in fact abbreviated the work by a pause, which has 
 enabled you to keep the evidence strictly to the 
 point at issue. They who remember Sir William 
 Follett, will at once understand our meaning, for one 
 of his most remarkable and impressive peculiarities 
 was the grave and thoughtful deliberation with 
 which he framed and put his questions to his own
 
 25^ CONDUCT OF LITIGATION. 
 
 witnesses, and the result of which was, that he was 
 seldom annoyed by unexpected answers or by addi- 
 tions and explanations which he did not desire." 
 
 I highly commend these instructions. But few 
 things can be done well in a hurry. The court-room 
 is as exciting as the battle-field, and the genius for 
 each is always at the bottom cool-headed, whatever 
 may be its manifestations. But we will go on with 
 our English Guide : 
 
 " Sometimes it demands considerable discretion 
 to determine whether it is better to permit the 
 witness to tell his own story in his own way, or to 
 take him through it by questions. No rule can be 
 laid down for this ; it must depend upon your dis- 
 cernment at the moment. There is a class of minds 
 which can only recall facts by recalling all the 
 associated circumstances, however irrelevant ; they 
 must repeat the wiiole of a long dialogue, and dis- 
 scribe the most trivial occurrences of the time, in 
 order to arrive at any particular part of the trans- 
 action. With such you have no help for it but to 
 let them have their ov/n way. It is the result of a 
 peculiar mental constitution, and endeavors to dis- 
 turb his trains of association will only produce in- 
 extricable confusion in the ideas of the witness, and 
 you will be further than ever from arriving at your 
 object. But if you arc dealing with that other class
 
 EXAMINA TION-IN-CHIEF, 257 
 
 of witnesses who appear to have no trains of 
 thought at all, who can observe no order of events, 
 whose ideas are confused as to time, pl-ace, and per- 
 son, your only chance of extracting anything to*, 
 your purpose, is to begin by requesting that they 
 would simply answer your questions, and falling in, 
 as it were, with their own mental condition, 
 proceed to interrogate them after their own fashion, 
 with disconnected questions, and so endeavoring to 
 draw out of them isolated facts which you will 
 afterwards connect together in your reply, or which 
 mavdovetail with the rest of the evidence so as to 
 form a complete storv." 
 
 The above passage is worth considering. But 
 I must remind the reader again that the careful ex- 
 amination of the witnesses by the counsel in private 
 before the trial, will best prepare for the court-room. 
 You will often do well to have rehearsals from 
 your witnesses preparatoiy to their going into the 
 box. And sometimes you will find it profitable to 
 submit a witness of your own to a most searching 
 cross-examination. As you know him and his nar- 
 rative better than your adversary, you should be 
 able to sift him more closely than he can. Such a 
 testing scrutiny may often prepare both the witness 
 and yourself for the trial. 
 
 As we leave the subject of Examination-in-Chief,
 
 ^58 CONDUCT OF LITIGATION. 
 
 Ave must say that the most ordinary fault that we 
 observe in the courts, is the asking of redundant 
 (juestions to one's v/itness. The examiner believes 
 that to exhaust his testimony he must keep up a 
 long file of questions, where fewer, better considered, 
 would sooner finish the business completely. Your 
 foolish question is often a snare to your witness. 
 He wishes to oblige you, and answers something 
 that the cross-examination develops into contradic- 
 tion, or support of the adversary. Let it be your 
 aim always to draw out what you desire from your 
 witness by as few questions as you can, and to per- 
 mit him to answer to them alone.
 
 CHAPTER IV. 
 
 CROSS-EXAMINATION. 
 
 After the party calling the witness, whether he 
 be plaintiff or defendant, has examined-in-chief, the 
 other can cross-examine. And he should first con- 
 sider whether he should cross-examine at all. The 
 witness may be too shrewd, or his knowledge may 
 be too perilous, or the examination-in-chief may 
 have been so stupid that it will be helped by almost 
 any question from the cross-examiner. I have noted 
 that no itching desire for anything else, not even 
 that for speaking, often tiresome or dangerous, is so 
 frequently pernicious as that for cross-examination. 
 It many times requires great self-mastery when the 
 witness is turned over to you, to announce at once 
 that you have no questions for him. This announce- 
 ment should always be made unless you can with 
 reason expect no damage, or some benefit, from 
 exercising your right to sift the witness. I note m 
 my observation, that the wary veterans of the courts 
 cross-examine less and less as they grow older in the 
 
 practice. By the multitude, cross-examination is as 
 
 259
 
 26o CONDUCT OF LITIGATION. 
 
 much overrated as advocacy. Sometimes a great 
 speech bears down the adversary, and sometimes a 
 good cross-examination turns a witness inside out, 
 and shows him up to be a perjured villain. But 
 usually cases are neither won by speaking nor cross- 
 examining. The tyro's conception of the purpose of 
 the latter, is that it is intended chiefly to involve 
 all the adverse witnesses in an inconsistency or self- 
 contradiction. But you may often see a dozen cases 
 tried, and no witness of bad character make his 
 appearance. It is only the profligate who swear 
 falsely. And if not the profligate, it is the extremely 
 heedless who make such glaring blunders and mis- 
 takes, as to destroy the credit of their testimony 
 These cautions I present here in the fore-front, to be 
 attended to before I give in the next chapter the 
 suggestions of Mr. Cox seriatim, who, it appears 
 to me, though giving veiy valuable instructions, 
 somewhat overrates the importance of examining 
 your adversary's witness. 
 
 The natural division of the subject seems to me 
 to be the examination for the witness, whom you do 
 not intend to attack, and that for the other whom 
 you will attack. As to the first, that is, the cross- 
 examination of the witness whose credibility you 
 accept, it is intended to prevent the adversary from 
 garbling the evidence and winning, by giving only
 
 CROSS-EX A MINA TION. 26 1 
 
 some detached portion, which would be explained 
 away and lose all of its force were the whole knowl- 
 edge of the witness brought out, and also to prove 
 other and independent facts supporting the case of 
 the adverse part}^ A witness called to prove the 
 admission of a defendant, that he owed the plaintiff 
 so much, after so testifying, is cross-examined and 
 states, when interrogated as to the w^hole of the 
 admission, that at the time the defendant made 
 it, he said further that it was a gaming debt, 
 or some other illegal debt. Here the witness ha? 
 really become one for the defendant. Again, a 
 witness called to prove some alleged cause of action, 
 may also know of some valid discharge from it 
 — some facts that make out the defense. Such 
 knowledge, when drawn out, makes him to support 
 the adversary instead of the party who called him. 
 Thus, a witness under the direct examination may 
 prove the demand of the plaintiff as declared on, 
 and when cross-examined may further prove that the 
 defendant has satisfied the demand. 
 
 An honest witness may be reasoned with and 
 kindly led out of many errors, and be converted into 
 an ally at last. I once knew a half dozen witnesses 
 who, having been summoned to prove a lower value 
 of a parcel of land in controversy, were ordered out 
 of court when the trial began, at the application of
 
 262 CONDUCT OF LITIGATION. 
 
 the party who alleged a higher value. When the 
 lirst of these witnesses was called in on his 
 examination-in-chief, he answered plump that the 
 land was worth only six or eight dollars per acre. 
 On the cross-examination he was asked how 
 did it compare in quality and value with that of 
 Mr. A, of Mr. B, of Mr. C, and so on through 
 a round of many plantations in the vicinity. He 
 made the land in question a little better than those 
 others inquired about. He was then asked as to 
 sales within the four or five years preceding of these 
 lands, and he had to admit that twelve dollars per 
 acre was the lowest price that any had brought, and 
 that the whole averaged about fifteen dollars per acre. 
 When he answered under his direct examination 
 that the land was worth only eight dollars per acre, 
 being a farmer, he gave as his reason that he con- 
 sidered no lands in that part of the country worth 
 more for farming purposes. But after he was 
 asked by the adverse party if it was not worth 
 what it would command in the market, he an- 
 swered affirmatively, and admitted further that it 
 would bring in the market about eighteen dollars per 
 acre. Every other one of the witnesses were dealt 
 with alike, and with a similar result. The success of 
 this cross-examination was due to a careful study of 
 these different sales : in other words, to a prudent
 
 CROSS-EXAMINA TION. 263 
 
 preparation. Such a triumph is worth seeking after. 
 It leaves no heart-burnings behind. An honest man 
 is made honestly to acknowledge his errors. As 
 another instance of where you accept the testimony 
 that you draw out, you are reminded that sometimes 
 you can put an adverse witness of high character 
 and great influence in conflict with the other wit- 
 nesses of the adversaiy, and demonstrate from his 
 narrative that he is worth them all. 
 
 As I leave this division of the subject, to wit, 
 the cross-examination intended for witnesses whose 
 narrative you mean to accept, I remind the reader 
 that the longer he attends the courts, the more 
 favorably he will be impressed with the honesty of 
 juries and witnesses. This sort of cross-examination 
 is, therefore, to be the most meditated and used. 
 
 Our other division comes next. We are now to 
 consider the cross-examination for a witness whose 
 narrative you do not accept. And you may attack 
 here without imputing perjury to him. And again 
 you may brand him with falsehood ; and the attack 
 is made generally in one of two ways : either you 
 make him contradict himself or disclose facts dis- 
 crediting his narrative, or you draw him out into 
 statements which will be contradicted by the othei 
 testimony. As instances of facts which discredit 
 without disgracing the witnesses, relationship 01
 
 2(H CONDUCT OF L/T/GAT/OJV. 
 
 great friendship to the party calling, may be men- 
 tioned. And so a witness who testifies to facts may 
 admit that darkness, or a crowd, or many other 
 things, were in the way of his seeing well. Or the 
 intrinsic unreasonableness of his testimony may be 
 brought out clearly. And as we have already 
 hinted, the point of the cross-examination may be 
 to put the witness in conflict with the other testi- 
 mony. He may be led into statements which may 
 be disproved by the fellows of his own side, or into 
 statements which your own witnesses may bear 
 down with superior counter testimony. Or the still 
 more destructive attack of successful impeachment 
 by proof of statements made by him, contradicting 
 his present testimony, may be made. The manual 
 of evidence will, if consulted, give ample instruc- 
 tions. 
 
 No cfreater difference is seen between the old 
 and young lawyer anywhere, than that which may 
 be noted in examining adverse witnesses. The 
 young counsel in the novitiate of his practice, always 
 deems it his duty to make even the most honest 
 and intelligent men contradict themselves. While, 
 on the other hand, his gray-headed brother will gen- 
 erally be found handling the witnesses of his adver- 
 sary with great caution, and but seldom essaying to 
 involve any one, except some poor creature whose
 
 CROSS EX A MINA TION. 265 
 
 face shows his lowness, in a glaring inconsistency. 
 The veteran will be found in most of his cross- 
 examining attacks, leading the witness into irrecon- 
 cilable oppugnancy with preponderant evidence, or 
 laying the foundation for impeachment, or drawing 
 out facts which show the witness biased or mis- 
 taken. 
 
 And I must not forget to enforce the impor- 
 tance of due preparation by the lawyer for the 
 particular witness he is to cross-examine. To use a 
 current colloquialism, it will many times pay to turn 
 over carefully in your mind, in your closet, the tes- 
 timony expected to support the case of your adver- 
 sary. It will often arm you with weapons of utter 
 demolition. 
 
 I well recollect the management of a lawyer 
 who undertook the defense of a negro man, charged 
 w"ith the murder of a white girl, who had been 
 found dead, the signs on her person indicating the 
 old tale of rape. The evidence against the defend- 
 ant was purely circumstantial, but it was thought 
 conclusive by the people, who had been worked 
 up a'mort to a frenzy against him. The lawyer had 
 his own reasons for believing his client innocent, 
 and that the guilty man was somewhere in the 
 crowd of witnesses who eagerly pressed forward to 
 
 damn the cowering prisoner. There had somehow 
 
 25
 
 266 CONDUCT OF LI TIG A TION. 
 
 been two examinations of the defendant by a magis- 
 trate, and the counsel had been informed that at each 
 the prosecutor, a relative of the deceased, had finished 
 his testimony as to tracing the tracks of a man, dis- 
 covered near the dead body the day after it had been 
 found, to where a sudden rain, occurring while he was 
 following the tracks, put them out in a road a mile 
 from the prisoner's house, by saying that he thought 
 it useless to go any further, as he knew who the mur- 
 derer was, meaning the prisoner, of course. This 
 opinion was not legal testimony, but the lawyer de- 
 cided not to object to it, and to draw it out if he could, 
 if it did not come out spontaneously. He had begun 
 to see, as he believed, that there was something false 
 and hollow in the zeal of this avenger of blood. It 
 is useless to tell all of the incidents of the trial 
 The prosecutor was the main witness to identify 
 the tracks mentioned above as those of the prisoner. 
 The lawyer, as he expected, heard at the trial the 
 prosecutor blurt out again the declaration that when 
 the rain came up, he was then satisfied who the 
 murderer was, intimating without much obscurity 
 that it was the prisoner. When turned over for 
 cross-examination, the prisoner's lawyer began by 
 repeating to him that he had stated that, when 
 the rain came up, he was satisfied then of the 
 prisoner's guilt, to which the witness, with some
 
 CROSS-EXAMINA TION. 267 
 
 show of insolence, assented. He was then cabiily re- 
 minded that, at that point of time, the prisoner had 
 not been apprehended, wearing boots which the State 
 claimed to fit the tracks, nor had an)^body then de- 
 tected stains on the prisoner's clothing, claimed to be 
 blood spots ; and he was quietly asked to state all of 
 the reasons which he had at the time the rain came 
 up, for believing the prisoner to be the guilty man. 
 He gave only three, to wit : the general direction of 
 the tracks, a conversation which he had testified to 
 having had with the prisoner about the girl a few 
 months before her death, and information, which had 
 been given him about the same time by the girl's 
 mother, of a visit the prisoner had made to her house 
 at night. He did not give these rea^sons at once. 
 He had to be quizzed a long time. It was the law- 
 yer's purpose to make this sifting attended to. He 
 forced upon the w^itness ample time to reflect, 
 who, after many trials, gave up, and said he knew 
 that he had no other than the three reasons men- 
 tioned. Now for the lawyer's aim in thus com- 
 mitting the witness so irrevocably to the three rea- 
 sons. He made such a stout defense of an alibi, and 
 had entangled so many of the eager and heedless 
 witnesses for the State into contradictions of their 
 testimony reported by the magistrate, that when 
 he closed, the State replied with a great array of
 
 268 CONDUCT OF LITIGATION. 
 
 new evidence. The prosecutor's brother testified 
 to a threat he had heard the prisoner a few days 
 before her death make against the deceased. Under 
 cross-examination, veiling his purpose under a 
 throng of questions, our lawyer drew out of him 
 that he had communicated this to the prosecutor 
 the day before the rain. The prosecutor's daughter 
 testified to having stolen on a clandestine meeting 
 of the prisoner with the deceased a few days 
 before the homicide. She was likewise led so 
 quietly to tell that she had communicated this to 
 her father before the rain, that no one noticed it. 
 And at last came the prosecutor's wife, who testified 
 that the deceased in an interview with the witness 
 the day befoi'e her death, told her that she expected 
 to meet the prisoner on the morrow in the field 
 where she was found dead. She likewise was made 
 to say that she had told all this to her husband 
 the day before the rain. And thus was the prose- 
 cutor destroyed; for this new evidence of his own 
 family had given him many more and stronger 
 reasons for believing the guilt of the prisoner than 
 the three he had stated as all that he had, when 
 allowed full time for deliberation. In fact, this 
 new evidence, if true, showed that the prosecutor 
 should have lost no time searching for tracks and 
 blood stains, as he did, but that he should have at
 
 CROSS-EXAMINATION. 269 
 
 once known the prisoner to be the doer of the 
 crime, as soon as he learned of the homicide. That 
 all this evidence, so much more satisfactory than 
 the rest, if true, and so palpably pointing at the real 
 ofTeiider, had not 'been produced on either of the 
 preliminary investigations, in which every one of 
 these witnesses had testified, re-enforced the attack 
 upon the prosecutor a hundred-fold. Nobody, not 
 even the judge, nor any of the audience, nor jury, 
 nor sharp-sighted lawyers who represented the pros- 
 ecution, were aware of the successful attack on 
 this witness till the argument showed it up clearly. 
 The poor man's life was saved, and the upshot of 
 the Vvdiole matter was, that the prosecutor's brother, a 
 distant relative of the deceased, who had testified to 
 the threat, was detected as the real murderer. This 
 demolition of the main witness for the State was 
 achieved because the lawyer knew his ground from 
 having meditated it, and it was no very shrewd 
 guess of his, suspecting strongly as he did, the 
 prosecutor of at least knowing who was the guilty 
 man, that the prosecution would reply to his strong 
 defense with new evidence inconsistent with the 
 first, and that he Vv^ould have to furnish it. The law- 
 yer, from conning over the report of the magistrates, 
 saw that he would necessarily involve the State's 
 witness in many contradictions, and he felt confident,
 
 270 CONDUCT OF LITIGATION. 
 
 too, that this would bring back many of these 
 witnesses a second time, when they would be found 
 a still more easy prey. 
 
 And it is to be noted, too, that some of the 
 testimony was technically illegal. A lawyer more 
 often injures than benefits his case, by having illegal 
 testimony excluded. 
 
 I will give another instance where a life was 
 saved by a cross-examination carefully meditated, 
 and the testimony anticipated carefully met by 
 thorough preparation. 
 
 A master one morning at breakfast suspected 
 poison in his coffee, and immediately accused his 
 cook. The negro was thought to evince manifest 
 signs of guilt. The whole family showed alarming 
 symptoms at once, and the master in his rage made 
 the cook drink all the remaining coffee. She fell 
 into convulsions. Of course it was poison. Mem- 
 bers of the family saw in the coffee grounds frag- 
 ments of the fatal buckeye. The doomed slave was 
 hurried throuo-h an examination, and committed 
 for the capital offense of attempting to poison. 
 One of the greatest advocates whom I ever knew, 
 whose heart went out in yearning love for the 
 poorest and lowliest in distress, inquired into her 
 case. He quietly learned all of the testimony 
 against her. Every one who had drank the poisoned
 
 CROSS-EXAMl.YA TION. 271 
 
 coffee had sworn to its unusually bitter taste. It 
 chanced that the advocate had been lately by his 
 dentist prescribed a decoction of buckeye for tooth- 
 ache, and he knew its taste was sweet instead of 
 bitter. But he was too prudent to proclaim his 
 dissent. The infuriated family learning, the mob 
 might have balked him. He waited till the trial, 
 when he went into court, and calmly volunteered 
 to defend the frightened woman. The court, of 
 course, assigned him to be her counsel. He made 
 all of the witnesses for the State dilate on the bitter 
 taste they had testified to at the examination — he 
 almost made them quarrel with him, by appearing 
 to doubt their memories— bitter-tasted the coffee 
 was — they had never tasted anything so bitter. His 
 only evidence was a glass of fluid, proven by the 
 dentist, a man well known to all of the jury, to be a 
 decoction of buckeye. The glass was handed to the 
 judge; he tasted; then to the jury; all of them took a 
 timid taste ;and in a few minutes there was a verdict 
 of acquittal. The bitterness had no doubt been the 
 result of negligence with the cofifee-p ., and fright 
 had caused the convulsions into which the cook 
 had fallen. Witches, however, have been burnt, and 
 other women both bond and free, have been con- 
 victed on evidence less satisfactory than that against 
 this slave and, with sadness be it said, executed
 
 272 CONDUCT OF LITIGATION. 
 
 This great advocate had often delivered prisoners 
 from the dread penalty, and his name was in all 
 men's mouths for his matchless tact and unrivaled 
 eloquence ; but to his immortal honor be it told 
 that he ever counted his unfeed and unostentatious 
 defense of this friendless slave among the proudest 
 of his victories. 
 
 And I will give still another instance_^ of cross- 
 examination as introductory and corroborative of a 
 carefully-prepared defense. It is from the Forum.' 
 
 " A young and interesting girl, of respectable 
 position, had trusted and been betrayed. She be- 
 came a mother. At the age of three weeks the 
 child died somewhat suddenly. A post-moi'tem 
 examination took place. The death v/as said to 
 have been produced by arsenic, and the medical 
 witnesses strengthened that opinion by testimony. 
 The mother was indicted for murder, and was tried 
 before Judge Symser, of Montgomery County, a 
 humane, and industrious, and eminent judge. 
 
 "In addition to the scientific evidence, and in 
 strong corroboration of it, it was shown that a day 
 or two before the death of her infant, the mother 
 had sent for half-an-ounce of arsenic to a grocer's. 
 That after the death, the arsenic was taken to the 
 grocer's and weighed, and had lost twenty-four 
 
 ' 2 Vol. 455.
 
 CROSS-EXAM IN A TION 273 
 
 grains in its weight. This circumstance, together 
 with the opinion of the chemist, presented a strong 
 case. Neither was sufficient in itself, but together 
 they were dangerous. Of course the cross-examin- 
 ation as to the weight was very rigid and severe. 
 Upon this particular point it ran thus : 
 
 " ' When the arsenic was purchased, how did you 
 weigh it } ' 
 
 " ' I weighed it with shot' 
 
 " ' How many shot ? ' 
 
 " ' Six.' 
 
 " ' Of what description ? * 
 
 " ' No. 8.' 
 
 " ' When it was returned to you, did you weigh 
 it in the same scales 1 ' 
 
 " ' Yes.' 
 
 " ' Did you weigh it with the same shot ? * 
 
 " ' I weighed it with shot of the same number, for 
 I had no other number.' 
 
 " ' How much less did it weigh } ' 
 
 " ' Twenty-four grains less.' 
 
 " It was plain that the testimony bore hard upon 
 the prisoner, but at this stage of the case the court 
 adjourned. Immediately my colleague (Mr, Boyd) 
 and myself visited the stores of all the grocers, and 
 took from various uncut bags of No. 8 the requis- 
 ite number of shot, subjected them to weight in tie
 
 274 CONDUCT OF LITIGATION. 
 
 most accurate scales, and found that the same num 
 ber of these different parcels of shot varied more in 
 weieht than the difference referred to as detected in 
 the arsenic at the time of its return. The shot, the 
 grocer, the apothecary, the scales, were all brought 
 before the court. They clearly established the facts 
 stated, etc." 
 
 We have said that the detection of a witness in 
 palpable perjury is but seldom,, and that such detec- 
 tion generally occurs only to one Vviiose face or bad 
 character would by themselves deprive him of credit. 
 As the lawyer must, however, be prepared to deal 
 occasionally with reckless swearers, we will give 
 some instances where such v.^ere brought to grief. 
 The first is told by Judge Sharswood : 
 
 " He [a gentleman of the bar of Philadelphia] 
 allowed nothing that occurred in a cause to disturb 
 or surprise him. On an occasion in one of the 
 neighboring counties, the circuit of which it was his 
 custom to ride, he w^as trying a cause on a bond, 
 when a witness for defendant was introduced, who 
 testified that the defendant had taken the amount 
 of the bond, which was quite a large sum, from his 
 residence to that of the obligee, a distance of several 
 miles, and paid him in silver in his presence. The 
 evidence was totally unexpected ; his clients were 
 orphan children ; all their fortune was staked on this
 
 CROSS-EXAMINATION. 275 
 
 case The witness had not yet committed himself 
 as to how the money was carried. Without any 
 discomposure, without lifting his eyes, or pen from 
 paper, he made on the margin of his notes of trial 
 a calculation of what that amount in silver would 
 weioh ; and when it came his turn to cross-examine 
 calmly proceeded to make the witness repeat liis 
 testimon}' step by step — when, where, how, and how 
 far the mon.y \ms carried, and then asked him if he 
 knew how r, 'h that sum of money weighed, ar.d 
 upon naming the amount, so confounded the wit- 
 ness, party, and counsel engaged for the defendant, 
 that the defense was at once abandoned, and a ver- 
 dict for the plaintiff rendered on the spot." ' 
 
 Now for another instance of manifest perjury 
 detected : 
 
 An outrasfc of violence had been committed at 
 night, and the State, endeavoring to identify the 
 prisoners charged as the offenders, introduced a wit- 
 ness who testified that he met, a moment after the 
 outrage, a party of men coming away from the place, 
 with whom he held a brief parley in the dark. He 
 further swore that these men were mounted and 
 disguised, and that it was very dark, there being no 
 moon ; that he could recognize none of them, but 
 that he did recognize the horse of one of the pris- 
 ' Legal Ethics, 11.
 
 276 CONDUCT OF LITIGATICN. 
 
 oners, which that particular defendant usually rode. 
 On cross-examination the witness said he was only in 
 front of the horse, and about five or six feet off, and 
 repeated his previous narrative of the extreme dark- 
 ness of the night. Fie was then drawn on to make 
 some absurd statements of his power on such a night 
 to distinguish a brown horse from a bay, and a dark- 
 brown from a medium-brown, when in one of his re- 
 plies he spoke of the prisoner's mare. He was immedi- 
 ately asked if he knew that night she was a mare, and 
 he said yes. He was then asked, as he stood at her 
 head, how could he tell in the dark that the animal 
 was a mare ; and the question dumbfounded him. His 
 perjury had been apparent from the moment of his 
 saying that he could distinguish a dark-brown from a 
 medium-brown that night ; but he was not checked, 
 and graveled in his voluble lies until the last ques- 
 tion left him no cover or loop-hole. 
 
 Such blunders of witnesses will sometimes be 
 overlooked. All the counsel engaged should keep 
 their attention fixed on the answers. The associate 
 quietly listening will often detect that which 
 escapes the questioner. 
 
 We will here illustrate our subject, by the 
 famous cross-examinations of Majocchi and of 
 Louise Demont, in the trial of Queen Caroline. 
 
 These two witnesses called by the prosecution
 
 CKOSS-EXAMINA TION. zyj 
 
 to prove that the Ouccn had committed adultery 
 with her menial Bergami, testified to a great many 
 circumstances which, if true, estabhshed her guilt 
 beyond question. 
 
 Majocchi having in his direct examination nar- 
 rated incidents and details extending through a long 
 time, and to many places, was thoroughly sifted by 
 Brougham, who interrogated as to a vast number 
 of contemporary surroundings, to which the witness 
 had not before testified. Majocchi would often 
 profess not to remember. 
 
 I will copy from the speech of Brougham in 
 defense of the Oueen,' a sufficient number of extracts 
 to give the reader some understanding of the skillful 
 questioning of this witness, and his answers. It 
 will do no harm to see how a most able cross-exam- 
 ination was most ably commented upon, and set 
 forth and enforced in argument. 
 
 " He [Brougham] would proceed at once to 
 give their lordships proof positive of this man's 
 perjury, and this he would do by adverting to his 
 mode of forgetting. In the iirst place, he begged 
 leave to direct their lordships' attention to the way 
 in which this witness swore as to the position of the 
 rooms of Bergami and the Queen. . . . The 
 
 » The. trial of Queen Caroline, Vol. II. 35, e/ seq. (New 
 York, 1874.)
 
 ?;8 CONDUCT OF LITIGATION. 
 
 great object of the Attorney-General, as shown by 
 the opening, and as evinced by the whole of his 
 examination was to show a communication between 
 these apartments; and the manner in .vh'ch Majoc- 
 chi answered, indicated that he was privy to the 
 concoction of the plan. The object of the plan was 
 to prove the position of the rooms of the Queen and 
 of Bergami, always to have been favorable to the 
 commission of adultery, by showing that they were 
 near, and had a mutual communication, whereas all 
 the rooms of the rest of the suite were separated and 
 cut off from those apartments. . . . There was 
 more appearance of proof in his testimony on this 
 point — it presented more accuracy of detail than that 
 of the other witnesses — when he was examined with 
 a view to extract criminatory matter against the 
 Queen ; but he was not prepared for any attack, and 
 his regular custom was utterly to forget himself, in 
 order that he might be protected against the severity 
 of a cross-examination. 
 
 " The questions constantly asked V\'ere : * Where 
 did the Queen sleep .?' ' In an apartmcL. near that of 
 Bergami.' ' Were those apartments near or remote } ' 
 ' They were near.' Questions of this kind w^ere asked 
 over and over again, so good a thing was it thought 
 to procure the answer that the apartments were 
 near,' repeated with success. The same answer was
 
 CROSS EXA MINA TION. 279 
 
 invariably given. Bergami was represented as occu- 
 pying an apartment near that of the Queen, with 
 which there was a communication sometimes by a 
 passage, sometimes by a room, sometimes by a door. 
 Then it was asked : ' Did the rest of the suite Hve 
 apart ? Were they distant or near to the Queen ? 
 Was such the position at Naples ? ' 
 
 " It was important to advert to this point, because 
 
 more was made of the approximation of the chambers 
 
 at Naples, than at any other place. In the direct 
 
 examination the witnesses were asked : ' Did the 
 
 people of the suite sleep in that [the Queen's] part 
 
 of the house or at a distance .? ' And the Italian 
 
 word in answer was ' lautano ' which was interpreted 
 
 'apart' He [Mr. Brougham], however, remarked at 
 
 the time, that it meant ' distant,' and distant it meant 
 
 or it meant nothing. Here, then, the witness had 
 
 sworn distinctly from his own positive recollection, 
 
 and staked his credit upon the truth of a fact, upon 
 
 this fact * that the rest of the suite lodged apart and 
 
 distant from the Queen,' which, coupled with the 
 
 statement that the rooms of her Majesty and of 
 
 Bergami communicated together, must have the 
 
 effect of combining both these circumstances as a 
 
 proof that means were adopted to indulge in a 
 
 criminal intercourse. Majocchi positively stated in 
 
 the hrst instance that the ' suite lodged apart and
 
 28o CONDUCT OF LITIGATION. 
 
 distant from that portion of the house occupied by 
 the Queen/ Was there not then an end of this 
 ' innocent forgetfulness,' if when he [Mr. Brougham] 
 came to ask him in his cross-examination where the 
 suite slept, he altogether falsified his former statement 
 and told him, ' I don't know,' or ' I don't recollect.' 
 
 . . . When he spoke of the proximity of the 
 rooms in the one case, and their remoteness and dis- 
 severance in the other case, and when he afterwards 
 declared with reference to the latter that he did not 
 remember where the suite slept, it was clear that he 
 had perjured himself one way or the other, he cared 
 not which, as much as if he swore he saw a person 
 one day and swore he did not on the next." 
 
 The speaker next proceeded to show that Majocchi 
 could recollect in matters where he was not afraid to 
 speak. 
 
 " In cross-examination he [Mr. Brougham] asked 
 the witness — (and he did it to show his accuracy of 
 recollection on particular points where the evidence 
 had been well drilled : 
 
 " ' Have you ever seen the Villa D'Este since the 
 time you came back from the long voyage .? ' 'I 
 have.' ' Was the position of the rooms the same 
 as it had been before with respect to the Queen and 
 Bergami ? ' * They were not in the same position as 
 before.'
 
 CROSS-EXAMINATION. 281 
 
 " And then the witness told a long story describ- 
 ing the alterations. ' There was,' he stated, ' a stair- 
 case on one side of the Princess's room. There was 
 a small corridor, on the left of which there was a 
 door that led into the room of the Princess, which 
 was only locked ; and then going a little farther on 
 in the corridor, there was on the left hand a small 
 room, and opposite to this small room there was 
 another door which led into the room where they 
 supped in the evening. There was this supping- 
 room on the right, there was a door which led into 
 Bergami's room, and on the same right hand of the 
 same room there was a small alcove where there was 
 the bed of Bergami. I saw two doors open always, 
 but there was a third stopped by a picture.' 
 
 " Now could any recollection be more minute 
 than the recollection of a man who could state all 
 these particular circumstances.^ . . . He [Mr. 
 Brougham] only wished their lordships to contrast 
 with this minute recollection of rooms, doors, and 
 corridors, the circumstance of Majocchi not having 
 the slightest recollection of a whole new wing 
 added to the house in which her Majesty had lived. 
 
 " He observed the most trifling destinction of 
 time when that suited his purpose, and he recollected 
 nothinTT of time when it was inconvenient for hi?
 
 282 CONDUCT OF LITIGAriON. 
 
 object. In proof of this, their lordships were re- 
 quested to refer again to the celebrated scene at 
 Naples. This witness remembered down to minutes 
 the tl:nc; which her Majesty had pei.3sed at two 
 different times in Bergami's room. The first was 
 from ten to fifteen miutes, the second from fifteen 
 to eighteen minutes. Here the mean time was 
 sixteen minutes and a half. The witness went to 
 the window and fired a gun, exactly three minutes 
 afterwards. A quarter of an hour was then stated 
 with equal accuracy, and afterwards three quarters 
 of an hour. All this was in answer to his learned 
 friend; ail this was in the examination-in-chief; all 
 this was thought by the witness essential to his 
 story ; all this was to garnish his story with an 
 appearance of accuracy essential to his purpose. 
 . . . . When it [minute accuracy] was of use, 
 not to the prosecution but to the defense, then he 
 could not recollect whether it was a whole night, or 
 eight hours, or any definite period. 
 
 " ' Why could you not recollect the period of 
 time Oil this ccasion as well as on o'_Iier oc asions ? 
 ' I had no WaLch.' ' Had you a watch vvnen you 
 reckoned a minute and the fraction of a minute ? 
 No.' 
 
 " Why, then, did Majocchi know the precise time 
 on one occasion, and not recollect anything of time
 
 CROSS-EX A MINA TION. 283 
 
 at another occasion ? He pleaded the want of a watch 
 only when the defense could be served by time, or 
 when he was asked something which he conceived their 
 lordships Vv^ould consider of importance for the defense. 
 " Majocchi answered no categorical questions. 
 When asked as to the number of sailors present, he 
 could not tell whether it was two or twenty-two. 
 As to place he was equally in fault, akhouL,li he 
 slept in the hold of the ship, and all who slept, slept 
 in the hold too, he could not tell the others that 
 slept at any time there by day or by night." 
 * ■ > ' • * 
 
 " 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. 
 
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