(Jflrnrll Haui ^rl^nol Hibratg Cornell University Library KF8915.R32 Conduct of lawsuits out of and in court 3 1924 020 164 293 Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020164293 CONDUCT OF LAWSUITS OUT OF AND IN COURT: PRACTICALLY TEACHING, AND COPIOUSLY ILLUSTRATING, THE PKEPARATION AND FORENSIC MANAGEMENT OF LITIGATED CASES OF ALL KINDS. BEING A NEW EDITION OF "PRACTICAL SUGGESTIONS," REVISED AND REWRITTEN. BY JOHN C. REED, AUTHOR OF "AMERICAN LAW STUDIES.' BOSTON: LITTLE, BROWN, AND COMPANY. 1885. Copyright, 1885, By John C. Reed. University Peess; John Wilsoh and Son, Cambhidgk. PREFACE. Contrasted with Practice, — in the main an aggregate of forms and small details variously prescribed by many Legislatures, and which is more and more abandoned by American law au- thors to the statutes of the State where the case in question finds its tribunal, — our subject, the Conduct of Lawsuits, is a system which is alike in all the States, and in all the courts, whether State or Federal. In the great bulk of cases the end of litigation is to procure or avoid an adjudication that so much money be paid, or certain property be surrendered, or a contract be specifically per- formed, or such and such punishment be suffered ; each cause of action suggested being founded on an act of more than hourly occurrence in every society. The means by which the end is sought are comparison of the rights claimed and the pro- cedure chosen with the directions of the law; and if this do not prove decisive, as most often happens, a further comparison of the proofs of one side with those of the other. While the Code differs from the common law, and some of our IV PREFACE. States adopt the former and others hold to the latter, and while procedure in its constituents of forms of declarations and pleas, service, process to produce evidence, and all the remaining items, is settled by every State without apparent regard to the anterior English law or that of other Ameri- can jurisdictions ; on the other hand, the end and the means just described are common to the race, and consequently parties, in all places, strive after similar objects in essentially similar ways. And so the conduct of lawsuits in Maine and in Cali- fornia is really identical. The law of one may differ widely from that of the other in many pro- visions of great concern to the local practitioner ; but this no more requires in each State a different science of managing cases, than the great diver- sity in the face of the earth, in climate, and in the language and character of the inhabitants, requires a new manual of strategy and tactics for military operations in every new seat of war. There are but three turning-points in litigation. A party wins by showing a legal, evidential, or emotional superiority to the other. Appeal to the judgment in making effective the first two, and excitement of the feelings in the third, — what are more common than these to man the world over ! In their preparation. Eastern and Western, English and American lawyers, all seek to provide the superiorities mentioned, and they strive to present and maintain them in their con- duct in court. The principles of preparation and PREFACE. V of trial and argument remain unchanged amid all local differences, whether of substantive or reme- dial law. Like the principles of Evidence, Plead- ing, and Statutory Construction, and like those of the practical arts, thej partake of the universality of logical processes and the laws of human action. Thus it appears that Conduct of Lawsuits belongs to the realm of the general law author, a province which every year becomes more clearly defined in America.^ And it is my conviction, after long contemplation, that there is no other division, not even excepting the highly developed ones of Pleading, Evidence, and Statutory Construction, in which the general law so completely coincides with that of the State. It is true that a large part of what we call Conduct of Lawsuits more nearly tallies with theory and art, as we com- monly use those words, than with the law which we constantly look for in text-books. But as the usual course of things in the courts is held of it- self to be authority, we see that even this part belongs to the law. And there can be no hesita- tion as to the rest, illustrated as it has been by judicial decisions, though with very imperfect de- velopment, as we shall soon show. 1 See American law Studies, §§ 196, 197, 200, 810-820, distinguish- ing the general law from State and Federal law, presenting its leading importance in education, and telling how it is the concern of the text- writer ; and contrast with Ihid., §§ 1002-1011, which show the smaller place occupied by the general law in actual practice. In these passages I have taken great pains to develop the subject adequately from every important point of view. VI PREFACE. Our subject is of the greatest moment to the lawyer. Its mastery is the most important part of his professional education. If he does not know the right methods of preparing and trying his case, any success of his will be accidental only, and he must soon give way in the arena of prac- tice to those of his brethren who do know them. An old author defines art, in its sense of theory, to be a pre-instruction which shows the true way and reason 6f doing something.^ I would impart fully the rationale of both the preparatory and forensic management of cases, and I hope that in my effort I have conformed to the definition quoted. And further, I have throughout clung so closely to actual and familiar facts that I also hope my brethren will feel, — to paraphrase the language of Shakespeare, which has long seemed to me to show the essence of sound teaching — that the business and practical needs of litigation prompt all that I say.^ This book was conceived, and it has been written, while the author was laboriously engaged in a general practice. I do not pretend to have established anything new. I only claim that I have been the first 1 " Ars est praeceptio, quae dat certam viam rationemqne faciendi ali- quid." Auot. ad Her., 1. 1. '^ The Archbishop having lauded the wisdom with which Henry V. dis- courses of affairs of church and state, of war and of policy, and then the unquestioning acceptance of the King's views by all hearers, gives his con- clusion in these words alluded to in the text : — " So that the art and practio part of life Must be the mistress to this theoric." PREFACE. vii exhaustively to analyze and systematically to present and illustrate the all-important principles which every good lawyer follows, or ought to fol- low, in managing litigation. My business from first to last is with those old principles which cannot be commenced with too early, and to which the best endowed member of the profession yields increasing obedience while he is maintaining and extending his leadership. It is high time that they be properly elucidated as a whole ; and that the young lawyer, instead of being left to pick them up at random and haphazard in a long mis- spent novitiate of practice, be furnished with a manual explaining to him how uriderstandingly to take, ably prepare, and skilfully try his cases. The author trusts that he has in the following pages given his younger brethren this needed book. The reader is referred to the General Introduc- tion for a fuller and more precise statement of the scope and purpose of the work. J. 0. R. Atlanta, Ga., May, 1885. J(jHN C. reed. a. M. HEINHAKDT. JAS. i-\ U'NEIEL. LAW OFFICE REED, REINHARDT & O'NEILL. ~>^ WHIIEHALL SIREET. '^<^ £,-^ ^:^~ y^^^'^^^ "^^ ^ ^ -" * / .^y-/>--- ^^"7 . ^^■ fL^^^r"^ J-U17:'' A^^^y ^- TABLE OF CONTENTS. GENERAL INTRODUCTION. Purpose of the chapter, § 1. — Conduct of Lawsuits distinguished from Practice; separately ti-eated because of its high .develop-, ment and its indispensableness to all practitioners, § 2. — Contrasted with the method of judges, § 3. — The words Lawsuits and Litigation used in their widest sense, § 4. — Preparation of cases glanced at, § 5. — The judge is disinter- ested and the lawyer not, § 6. — Process of nature that every great interest receive devoted protection, § 7. — How the right is secured by impartial judges and juries, and free prepara- tion and speech of counsel, § 8. — Average practitioners and average cases our special subject, § 9. — Law and fact as elements of litigation, and their several tribunals, § 10. — Ubiquity in practice of law and fact contrasted, § 11. — Mixed questions of law and fact, § 12. — The two present in every case, § 13. — A third element of litigation, that is, the emotional, § 14. — Two cases illustrating this third element, §§ 15, 16. — Importance to the practitioner of knowing com- mon views, prejudices, likes, and dislikes, § 17. — The law as administered more affected by feeling than that of the books, § 18. — Influence of feeling and passion in litigation, though much less than that of the other two elements, too much over- looked, § 19. — Legal, evidential, and emotional, the three elements of litigation, § 20. — Object of right management of litigation is to have a superiority on some or all of the three elements, § 21. — Litigation contrasted with various games and with war; how good generals, players, and lawyers win, § 22. — The contrast with war stated at greater length, §§ 23- 27. — Conduct out of Court, or Preparation, corresponds to Strategy; Conduct in Court, to Tactics; superior importance TABLE OF CONTENTS. of Strategy and Preparation to Tactics and Conduct in Court, §§ 24, 25. — Consideration of a case offered, § 26. — How far litigation can be illustrated from warfare, § 27. — Prepara- tion of cases, the first half of litigation ; its greater impor- tance enforced by a contrast of two eminent lawyers, § 28. — Conduct in Court, the second half, important, but not so im- portant as the first, § 29. — Changes of standpoint from con- sidering the case when offered to its argument, § 30. — Chapter on Character of Successful Lawyer, §31. — Cox's Advocate, § 32. — Harris's Hints on Advocacy, and Illustrations in Advo- cacy, § 33. — Warren's Duties of Attorneys and Solicitors, § 34. — Gleanings from other books, § 35. — Student's need for a treatment of Preparation and Forensic Conduct as a whole, § 36. — Necessity that all practitioners understand both divis- ions, § 37. — The Reports furnish us but little of our mate- rials, § 38. — Weeks's Attorneys at Law noticed in order to show the small use we can make of Reports, §§ 39, 40. — The writings of authors and experience in practice mainly supply our materials, § 41. — The use to be made of these two sources, § 42. — Origin and writing of this book, § 43. — What the author believes will be its especial benefits to students and young lawyers, § 44. — Professional methods in common use to be learned by student and exercised in until each one will be done automatically, § 45. BOOK I. CONDUCT OUT OF COURT. CHAPTER L A CASE OFFERED. Cases where clients can be wisely advised to yield or to litigate, our subject, § 46. — An examination preliminary to advising to be made, § 47. — Such examination for difficult rather than for easy cases, § 48. — How the client's knowledge is to be drawn out of him, § 49. — Quintilian's directions, §§ 50-52 TABLE OP CONTENTS. xi Comment upon them, § 53. — Necessary patience and careful- ness with client, § o-i. — Witnesses to be sifted -well, § 55. — Importance of close attention to documents, § 56. — Illustra- tions from trials where party lost by offering evidence which he had not studied, §§ 57, 58. — Enforcing duty of cautious examination of accessible evidence before counsel advises action, § 59. — Two excerpts from Mr. Warren, modernizing the quotation from Quintilian, §§ 60-62. — Duties of Eng- lish attorneys good lessons to American lawyers meditating a case oifered, § 63. — Hinted that the adverse case is to be conjectured as far as possible, § 64. — Case where Judge Cooley supposes an abstract of title submitted for an opinion, § 65. — The lawyer consulted must examine and decide without procrastination, §§ 66, 67. — Facts to be weighed and law to be considered, § 68. — Points of controversy and probable issues, § 69. — Advice to be according to the apparent chances of litigation, § 70. — Plan of Conduct hinted at, § 71. — The lawyer, like the general, acts on probabilities, § 72. — He should resort to the courts only when he seems to have a legal, evidential, or emotional advantage, § 73. — He cannot be sure of success, § 74. — He should be accurate in his under- standing, and exempt from undue excitement, § 75. — The lawyer who is never dangerous until he has lost, § 76. — The thoroughly cautious lawyer is the most dangerous, § 77. — A famous lawyer who carefully considered every case offered him, § 78 — Timidity, doubt, and over-caution reprehended, §§ 80, 81. — Ethics of accepting and declining cases, §§ 82-89. You take ten cases you ought not, to one that you mistakenly refuse, § 90. — The trial counsel often has to rely on a junior, § 91. — Unpopular cases of merit, §§ 92-95. — Classified sum- mary of duties of lawyer before advice, § 96. — The minu- tise belong to our chapters on Preparation, § 97. — The young lawyer must for a while observe and imitate, and confer with his wiser friends, § 98. CHAPTER II. PRINCIPLES or PREPARATION. —PREPARATION OF" THE EVIDENCE. What is non-serial must be treated serially, § 99. — Much remains to be done which was not foreseen when case was accepted. xii TABLE OF CONTENTS. § 100. — The first aim of Preparation is to secure apparent advantages; — party's witnesses, § 101. — Sir George Stephen as to opposition of witnesses to a minute of their .statements being made, §§ 102, 103. — How to commit doubtful witnesses to their statements, -§§ 104, 105. — Protection of written evi- dence, § 106. — Process for witnesses and documents, and when you shall resort to it or not, §§ 107, 108. — Perpetuation of testimony of certain witnesses, § 109. — To obtain addi- tional advantages the second object of preparation; further study of the evidence, § 110. — Examples of procuring addi- tional evidence, §§ 111-113. — Third object of preparation to abridge advantages of adversary; illustrations, §§ 114-116. — Preparation should not injure the client; illustrations, §§ 118, 119. — Caution necessary to avoid injuring yourself, § 121. — You must learn the secrets of the other side, and how, §§ 121- 124. — How you should meet the preparation of the adversaiy, § 125. — Concealment of your purposes and evidence, §§ 126, 127. — Stratagems, § 128. — Necessity of understanding the law of evidence, § 129. — Summary of essentials of prepara- tion of the facts, § 130. — The whole evidence to be collected; Mr. Warren's advice to over-prove rather than under-prove, § 131. — The decisive points only to he attended to, § 132. CHAPTER III. PKEPAEAflOiSr OF THE LAW OF THE CASE. Preparation of the facts naturally precedent to that of the law § 133. — Some previous observation of practice necessary to the student, § 134. — Facts more often disputed than law, §§ 135, 136. — Great and unexpected successes occasionally won on law points, §§ 137, 138. — The applicable law to be at- tended to in preparation with care, §§ 139, 140. — The .three departments of American law, § 141. — Law seldom ascer- tained by theorizing; it is to be had from the sources, § 142. Usually three classes of law questions in cases, — the first be- ing as to the substantive right of the client; illustrations of the first, §§ 144, 145. — The law giving the right to be scruti- nized, § 146. — Where the law is difficult, § 147. — Questions as to proper remedy in the second class, § 148. — Various reme- dies, and how they are to be resorted to, § 149. — Illustrations TABLE OF CONTENTS., xiii §§ 150-154. — Summary as to remedy, § 155. — Questions as to evidence belong to third class; how they should be treated, § 156. — Law certainly against the practitioner, that certainly for him, and that which is doubtful, encountered through the entire course of preparation, § 157. — His duty as to each one of the three kinds, § 158. — The few cases without precedent, § 159. — Delicacy of asking for a ruling which is an innova- tion, § 160. — Effort of born lawyer always to plant himself on sound law, § 161. — Over-refinement in selection of law points to be avoided, § 162. — The authorities settling the different points which you see will be mooted to be weighed and noted, § 163. — Over-logical views to be eschewed, and the average professional mind sounded as to doubtful subjects, § 164. — The pleadings, § 166. — Demurrers, § 167. CHAPTER IV. OTHER PARTICULAK8 OF PREPARATION. Tie emotional element, § 168. — The modern does not, like the ancient advocate, aim consciously to stir the passions, § 169. — Where a decided leaning of the community must be recog- nized in the preparation, § 170. — The case which at first appeared too old, § 171. — The emotional resources both of yourself and your adversary never to be overlooked, § 172. — Filing of your pleadings, proper service, notices, § 174. — Agreements of counsel, § 175. — Things to be doue, such as the removal of encumbrances, § 176. — The ablest of the coun- sel should investigate the case and classify its details ; inferior- ity of English system, where counsel are never brought in contact with party or witnesses, § 177. — David Paul Brown's comparison of the English and American systems, §§ 178, 179. — Great need that the leading counsel confer with party and witnesses, § 180. — Choate's seeing the impressive be- havior of a client, §§ 181, 182. — Inferiority of English coun- sel in the private examination of witnesses, § 183. — The division of labor in England between attorney and counsel unnatural and irrational, § 184. — Our young lawyers should aspire to make both good attorneys and good counsel, § 185. — Plurality of counsel, § 186. — The associates should be prop- erly placed; the tact of Burr, § 187. — Lord Bacon's threefold XIV TABLE OF CONTENTS. division of business, § 188. — Consultations between associates should be frequent, and their disclosures frank, § 189. — Duty of associates to one newly employed, § 190. — How to treat your associate, § 191. — Local counsel, § 192. — Conclusion as to plurality of counsel, § 193. — Practitioner should have a definite purpose in everything, § 194. — Premeditation not to be too prolonged; rapid action necessary, §§ 195, 196. — Burr's " Never do to-day what you can as well do to-morrow," good, § 198. — How forethought and promptness to be reconciled, § 199. — The lawyer preparing should not be flurried or vision- ary, § 200. — Patient and never remitted attention a potent virtue, § 201. — The lawyer should carry his cases with him everywhere, and be always able to stand a Socratic cross-exam- ination upon them, § 202. — Accurate and well-in-hand knowl- edge of the case the grand result of thorough preparation, § 203. — The talents of perversion on the other side of no avail, § 204. — Choate's habitual preparation, §§ 205-210. — Burr's, § 211. — Bad against good preparation, § 212. — But everything cannot be foreseen and provided for, § 213. — He who believes that Providence sends him only good cases, con- trasted with the true lawyer, § 214. CHAPTER V. PLAN OF CONDUCT. Great importance of subject; it is the highest point of view in the preparation, § 215. — The plan keeps even pace with the preparation, but its final construction is the last work, § 216. Use of word as contrasted with "line" and "theory" justi- fied, § 217. — The right plan assures most and risks least, § 218. — Napoleon's saying, that the whole art of war consists in being the stronger on a certain point, illustrated by battle of Marathon, where Miltiades evaded the onset of the enemy's choice troops, §§ 219, 220. — The strength of the enemy di- rectly engaged by Epaminondas at Leuctra with success, § 221. — The circumstances vindicate each plan, § 222. — Choate always had a plan, § 223. — An example from his practice, § 224. — A simple plan which prevailed against an adversary seeming as strong as the Spartans at Leuctra, § 225. — Mag- nificent results often follow simple plans ; — looking and seeing TABLE OF CONTENTS. xv for one's self the basis of the general's and lawyer's genius, § 226. — Simple and complex plans contrasted, § 227. — A complex plan which involved different points of law and fact, §§ 228-231. — The first sort of simple plan being where the issue tendered is accepted, § 232. — The second is where the issue tendered is evaded by presenting another on which you think you are the stronger; instance from Burr's practice, § 233. — Evasion of an issue of law tendered, § 234. — The complex plan glanced at again, § 235. — The plan should al- ways be as simple as it can be made without judging too severely against client, § 236. — Covering weak points ; exam- ples of successful concealment, § 237. — Where the weakness cannot be concealed; Choate's plan for defence of Prof. Web- ster, §§ 238, 239. — Where a mistrial rescued a party from a great difficulty, § 240. — Weakness often to be concealed by reticence, bluif , feints, or other ruses ; and a good case is some- times to be saved by wiles and stratagems, § 241. — The emo- tional element of litigation ; persons and acts distinguished as causes of favor or disfavor, § 242. — Emotional advantages to be supported by apparent merit in law or fact, and not to be urged immoderately, § 243. — Effectiveness of moderation where the facts showed that a lady had fraudulently altered a paper, § 244. — Danger of appearing to persecute, § 245. — Guarding the parts of your case which are exposed to the cen- sure of the feelings, § 246. — Always scheme to have the feel- ings excited by the case help your side, § 247. — When secrecy is right or not, §§ 248, 249. — Provision in plan for new tri^l in case you lose; examples, §§ 250-252. — The lawyer who is expert in setting aside verdicts, § 253. — Whether conduct shall be bold or not, § 254. — Difference in the spirit of offence and defence, § 255. — Essentials of good defence, § 256. — The aggressive defence, § 257. — Advantages of the aggressive and of holding the initiative, § 258. — Summary as to aggressive and defensive, § 259. — The line of defence in cases exciting much public feeling should sometimes be disclosed, §§ 260, 261. — A mistake in not using the privilege of suppressing inves- tigation, § 262. — Where your case is hard to defend but your client is influential, do not give the adverse witnesses early opportunity to testify, § 263. — Subject of continuances commenced, § 264. — If you defended the workman charged with stealing from the cash-drawer, you should wait on devel- b XVI TABLE OF CONTENTS. opments, § 265. — Other cases in which you should wait, § 266. — Provision to be made against contemplated continu- ance of adversary, § 267. — Slowness to try cases not to be cul- tivated, § 268. — Remedies as connected with subject of this chapter, § 269. — Groups of connected cases, where a special one should be tried first if possible, § 270. — Examples, §§ 271 -273. — Such cases require careful attention, and the subject is too much neglected, § 274. — All possible alliances for your client to be secured, § 275. — Marshalling the proofs; the coun- sel for the State who blundered when he secured the conclusion for himself by holding back some of his evidence, §§ 276, 277. — When you are to put in more and when less evidence before you rest, § 278. — Comparative value of the right to the last word and of the first impression with good evidence, § 279. — The plan, especially in complicated cases, should be drafted; which can be largely done in arranging the proofs, § 280. — The essence of the lawyer is in his fashioning, anticipating, and contriving as to cardinal points, § 281. — Procurement of special legislation, § 283. — Arbitrations and references, § 284. — Amicable settlements recommended, and how the lawyer should act in them, §§ 285, 286. CHAPTER VI. BRIEFS. Why the subject receives a chapter, § 287. — Too restricted sense of " brief," as the word is used in America, § 288. — Contents of an English brief according to Sellon and Tidd, § 289. Such a brief sets forth the whole preparation, § 290. — Policy of such a brief advocated; — exceptional memories, § 291. Your memoranda to be digested, § 292. — Great ability neces- sary to make a good brief as set forth by Mr. Warren, § 298. A brief is gradually made up, § 294. — Advice of Mr. Bishop as to notes of authorities, § 295. — Whether the pleadings should be copied or abridged, § 296. — The statement of each party's case to be accurate, §§ 297, 298. — The proofs to be marshalled and a list of witnesses to be made, § 299. Copies and abstracts of documentary proofs, § 300. — One who habitu- ally pre-arranges his proofs on paper rarely stops short of making out his case at the trial, § 301. — Questions which you TABLE OF CONTENTS. xvii anticipate may arise collaterally, to be provided for, § 302. — Cautions against apprehended danger; advice of Mr. Warren, § 303. — All omissions to be supplied ; when a brief is perfect, § 304. — Draft of plan of conduct, § 305. — Voluminous brief to be indexed, § 306. — Detailed directions of Mr. Warren, §§ 308-314. — As to law points, § 315. — American neglect of briefs earnestly deprecated, § 316. — Your brief can be easily made by keeping your accumulating papers and memoranda together and in right order, the final statement of case and last draft of plan being intercalated at the close of the prepara- tion; there is no Procrustean model of briefs, §317. — You are not to be slavishly dependent on your brief, § 318. BOOK II. CONDUCT IN COURT. CHAPTER VII. INTRODDCTOUY. Correspondence of subject of this Book to Tactics, § 319. — Object of Conduct in Court ; talents for managing a trial contrasted with those of preparation, § 320. — Greatest ability for trying rarely united with the greatest for preparing, § 321. — Un- anticipated occurrences of the trial, and the faculty of extem- poraneous action necessaiy for dealing with them, § 322. — Importance of precedent preparation ; restatement of its essen- tial parts, § 323. — The subjects of our two Books run into each other in the plan of conduct; preparation is to be made no more than the fulcrum of attack or defence, § 324. — Spirit of proper conduct of a trial, § 325. — Leading objects of con- duct in court classified, § 326. — Consultation of counsel on the eve of trial, §§ 327, 328. — Selecting the jury; several illustrations, §§ 329-334. f xvm TABLE OF CONTENTS. CHAPTER VIII. OPENING THE PLEADINGS AND OPENING THE CASE. In England the junior counsel for plaintiff opens the pleadings and the leader opens the case ; in America both openings are usu- ally by the same counsel, and often by the junior, § 335. — Mr. Cox's directions as to opening the pleadings, §§ 336, 337. — His directions as to opening the plaintiff 's case, §§ 338-345. — • Teachings of Mr. Harris, § 346. — Opening of facts more important in England than here; but it is very important here, § 347. — The opening of the pleadings shows the issues; how it prepares for the defendant's cross-examination, § 348. — The reading of voluminous pleadings should be preceded by an oral synopsis, § 349. — Requisite carefulness with the judge on novel law points, § 350. — Treatment of the proofs ; Cock- burn's opening speech in trial of Palmer, § 351. — State your propositions, and then outline your proofs of each, § 352. — Scar- lett's opening; excellent short openings, § 3.53. — Defendant's opening of the facts in America, § 354. — How a progressive development of the evidence aids an opening, § 355. — Prin- ciples of opening stated by Gains in a few words, § 356. CHAPTER IX. BEGINNING OF CONDUCT OF THE EVIDENCE. — THE EXAMINA- TION OF THE party's WITNESSES. Affirmant to make witness to testify to the fact desired, but the law permits him to raise the presumption of its existence by showing an absence of the person in question for a certain number of years without having been heard from. The books contain minute directions as to the proofs required to sup- port particular actions and pleas. There are also rules for PEEPARATION OF THE EVIDENCE. 91 weighing evidence : thus positive, other things being equal, will overcome negative ; an unbiased witness is more cred- ible than another to the same fact who evinces an evident leaning towards one of the parties. It is not our object to compile the law. We must take it for granted that our student knows its general principles. And we earnestly in- sist that even in seeking after superiorities of evidence his Stephen, Greenleaf, Wharton, and Abbott be reinforced by the digests both general and special, and especially that the reports of his State be constantly looked to for guidance. It is true that the law of evidence grows more and more liberal, assimilating itself year by year to that logic which, according to the title-page of John Stuart Mill, contains " the principles of evidence and the methods of scientific investigation." Disabilities and incapacities have been re- moved which the centuries before us worshipped, deluded into believing such suppressors to be the guardians of truth. In our own day we have seen millions of blacks made competent witnesses in all kinds of cases. Still the law is not ready to surrender her supremacy, and unfortu- nately an argument decisive in the courts can often yet be made from facts perverted and garbled by legal rules which is not a logical argument. § 130. We now summarize the more important items Which we have been considering. V First. The evidence found to exist when litigation is decided upon is to be put under command. The oral tes- timony is to be ascertained precisely, and the proper steps taken to fix the fickle or those under an adverse bias or interest by having them authenticate their statements with their signatures or make them in the presence of others. All documents are to be guarded against the peril of removal or spoliation. 92 CONDUCT OUT OP COURT. As the second stage of securing existing advantages of evidence, the process for coercing the appearance of the witnesses and the forthcoming of the documents must be used. It is also pointed out when testimony should be perpetuated. Blunders here are more unpardonable than anywhere else in the preparation. The duty is plain from the very first. In the subsequent investigation other ad- vantages may escape discovery, in spite of great industry ; but if you do not, by using the cheap and easy process of the law, assure those advantages palpable to an average practitioner as soon as the case is presented, the damage resulting to the client is fairly chargeable to your gross negligence. Second. The practitioner must, if possible, develop a greater force in his proofs than they appeared to have, or he must acquire others. The patient study of the facts in order to get their full meaning is hinted, and detailed di- rections for discovering and collecting remaining evidence are given. Third. It is shown to be an object to hem in the ad- versary and curtail his available supports, and examples are given to emphasize the importance of attending to this duty. These three are exhibited as the leading constituents of a rational preparation. Then come the following addenda : — 1, Warning is given against hurting your client and helping the other side. It is insisted that the issue be so well understood, and the witness or document be so accu- rately examined beforehand, that no adverse testimony be unwittingly produced. 2. Then the modes of finding out the opposite case and the proper counter measures to be taken by you are reviewed. PEEPARATION OF THE EVIDENCE. 93 3. Next, you are told when to conceal your hand and how to thwart the curiosity of your adversary. 4. Lastly, you are impressively reminded that even the principles of preparation of the facts are derived in great part from the law, the importance of its department of evidence being particidarly suggested. § 131. So much for the subject of this chapter. The lawyer should prepare upon the facts with unflagging in- dustry. As we have tried to impress upon the student, often after the case appears prima facie to be maintainable it requires great labor to detect all of the supporting testi- mony. You will be led to more and more of it by probing the witnesses, yom' client, the documents, and the entire sources of information. All of us have noted the shrewd- ness with which veteran lawyers guess at the existence of testimony. Spare no pains to get the whole. Nothing material, whether apparent at the first or afterwards found, should be thrown away. An item light and trivial of itself may turn the scale. Remember the maxim of 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 o^er-prove rather than MWcfe?'-prove your case. By this I mean that, when you have got so far in a cause as to the point of trial, you should not peril all that you have already ex- pended and damage your client's interests and your own reputation by niggard considerations of expense in provid- ing proofs of your case. Five or six pounds may, as it were, insure you against defeat, by excluding all fair chance of deficient proof. It is much better to have secured a verdict burdened with the cost of a superfluous witness. 94 CONDUCT OUT OF COURT. but whose testimony might, in some turn of the cause, have been indispensable, than to have lost a verdict which you would have infallibly gained if you had not chosen to run so near the wind and neglected to come provided with proof which might not have increased your costs a couple of pounds, — those even having to be paid by your oppo- nent. There have been very many cases in which a party has struck at the trial, especially at the assizes, on seeing his adversary come prepared with such superabundant proof as excluded all chance of a breakdown."^ § 132. We add a word of caution. Bewai-e of divert- ing yourself and the jury from the turning points by attend- ing to unimportant matters. One who has made a brilliant and solid fame as a lawyer and judge ^ often tells me that the greatest trouble in practice and on the bench is to get rid of the immaterial, to disentangle the merits from the mass of irrelevancies with which they are mixed up by the testimony and argument. We say plainly what Mr. War- ren really means : owr-prove, if you can, the important and decisive points, and leave all the others to the care of your adversary. 1 Duties of Attorneys, Am. ed., 181 et seq. 2 Judge L. E. Bleckley. PEEPAEATION OF THE LAW OF THE CASE. 95 CHAPTER III. PREPARATION OP THE LAW OF THE CASE. § 133. In a great number of cases the preparation of the evidence occupies but little time, while there are also many in which it requires great effort. But be the case a transaction intelligible at the first view to the practised lawyer, or an affair of multifarious details, complicated, scattered, and where many of them cannot be found ex- cept by a wise and persevering search ; the facts — their complete collection, their proper assortment and classifica- tion, and their thorough mastery — are in order prior to any legal inquiiy. This is the justification of the place of the last chapter, for it naturally comes just before this which treats of the preparation of the law. The student should learn at once that to be in haste to take up the legal investigation of a case is generally to miss the real points and commit himself to a theory inconsistent with the facts. And when the theory is formed too soon, the facts acquired afterwards will be distorted to suit it. But the special lesson to be taught here is that this premature beginning at the wrong end causes a consideration of irrel- evant law questions which is nearly always misleading and therefore worse than useless. § 134. The foregoing being premised as to the impor- tance of studying the evidence before determining the law 96 CONDUCT OUT OP COURT. of the case, we proceed to the special subject of the present chapter. Here the education is properly commenced by a brief contemplation of practice. A young man without this cannot understand us at all. It is by observation and then initiation that we begin to learn at the first, and the same process goes on in many places to the last. Manners, etiquette, command of inferiors, and various other things, are mysteries which can be fully learned only after a season of observation and trials at their attainment. § 135. Almost the first remark of the novice who has frequented the courts for a while is that the lawyers wrangle far more as to facts than they do as to law. He notes next that when they dispute as to the law it is more frequently as to the proper application of some legal rule than as to the existence of such a rule. The law slowly becomes more and more certain. The great digests, the repeated revisions and codifications, the multiplication of text-books, and the growth and widening sway of a true science of jurisprudence, are all systematizing it into an harmonious whole. Much yet remains to be done. But no careful observer can compare the present law of many of the States with that of half a century ago without seeing that nearly the whole body of the rules usually administered in the every-day business of society has be- come easier to find, easier to understand, and easier to apply. The tyro, from the codes and revised statutes, will answer unerringly many a query which years ago would have puzzled the ablest and wisest lawyers. The long arguments of these days are generally in the discussion of the particulars of the case in hand. The treatment of pure law questions is usually short, — shorter now than it was formerly. The tendency is to smaller text-books upon the PREPARATION OF TPIE LAW OF THE CASE. 97 older subjects, and to digests such as those of Sir James Stephen. A concise statement of the true law, without discussion, is more and more demanded. § 136. To the uninitiated it would appear that the law of the case is by far the more important part of the prepa^ ration. But experience teaches that, while the practitioner must know well the law which is of familiar application, his principal business in his cases is generally with the facts. A legal question will be decided by rules with which he becomes better and better acquainted, while every question of fact arising is to be settled by new proofs. It may serve to bring out more clearly the contrast of law growing more certain year by year to the lawyer and facts forever springing up freshly around him, to state that he is to satisfy the court as to the former by the use, day after day, of the same books and texts, which at last become a lesson learned by heart ; but to decide the latter, he has witnesses and documents in every case to deal with that he never heard of before, every one of which must always be investigated for and by itself. § 137. What we have said in the last sections is true in the average of cases. But occasionally a lawyer gains an unexpected victory by showing that some generally received notion is not law. One of the most famous of such exploits was the success of Scott (afterwards Lord Eldon) in Akroyd V. Smithson, while he was young and waiting for business. A testator had directed his real estate to be sold, and the residue of the proceeds after payment of debts and expenses he bequeathed to certain persons. One of these had died before the testator, and in a bill filed, among other things, the lapsed share was claimed by the next of kin. A brief was given Scott for him to consent for the heir at law on 7 98 CONDUCT OUT OP COURT. the hearing. But he turned through the books and pored over the question until he became convinced that the share in question was to be regarded as real estate, and therefore belonged to his client. The case came on at the Rolls before Sir Thomas Sewell. The solicitor who had delivered the brief was told by the young lawyer that he should con- sent that the will had been duly executed, but that he must support his client's claim to the share. He made an ear- nest effort, which shook but did not convince Sir Thomas, but he learned of a compliment paid by the latter to the argument after his adverse decision. As good luck would have it, there was an appeal by another discontented party, and Scott receiving a guinea brief to consent as before, he insisted on arguing the point again. In spite of the re- monstrance of the solicitor, the refusal of the guardian of the client to increase the fee, and the concurrence of the bar in the ruling of Sir Thomas Sewell, he did argue it ; and Lord Thurlow after considering for three days decreed in his favor. The argument was published, and, as an old solicitor remarked to him just after it was made, the young lawyer had cut his bread and butter for life. Some time later Scott appeared in the Chancellor's Court of Lancor shire to argue the other side of the question. Dunning (Lord Ashburton) told him that he would not hear him ; he had read the argument just mentioned and he defied him or any other man in England to answer it. Surely such a failure would delight a lawyer more than ordinarily to win a case. § 138. As this case made the fortune of Scott, so did Erskine likewise make his fortune in his first effort by a brilliant speech upon a question of law. But we must re- mind our pupil that cases of importance which turn upon PREPARATION OF THE LAW OF THE CASE. 99 a contested rule of law as eompared with those involving issues of fact are of rare occurrence. § 139. And yet the applicable law must be carefully attended to in average preparation. If you draw a decla- ration which the defendant may admit to be true and yet can demonstrate that its allegations make no good cause of action, his demurrer will upset you. And if you rely on a plea which the plaintiff's denmrrer shows to be bad as a legal defence, he will win. Turn from the pleadings and consider the evidence. Every part and parcel of that has to run the gantlet of Greenleaf, Stephen, and Whar- ton. The law not only prescribes what is a good cause of action or ground of defence, but it also settles what evidence is to be admitted and what excluded. Every separate sentence in the answers of a witness under ex- amination can raise a question under the law of evidence. § 140. In legal preparation you commence with an as- sumed rule of law, proceed from that to another, and so on, it may be step by step, through many more before you can make good your claim to the desired judgment or ver- dict. Therefore the aim of preparation as to the law will be that you make no misstep in the whole progress ; that you plant your pleadings and evidence, both as a whole and in detail, immovably upon a rock of the law. It is also your purpose, as part and parcel of this task, to show that your adversary has in his pleadings and evidence — either in one or in both — failed to meet your case. § 141. To the American practitioner the law exists in three great departments. Enumerated in the order of the frequency of their occurrence in practice, they are State law, general law, and Federal law. The State and Federal Constitutions, statutes, rules of court, and reports are the 100 CONDUCT OUT OP COUET. authorities which decide questions of State and Federal law, while the general law authorities are English text- writers, statutes, and records anterior to our independence, and the entire reports of all English-speaking lands. In another work to which this is a sequel, we have taken pains to show the relation of these different divisions to one another, to point out how they are to be mastered and what part is played by each in practice.-^ We need only say here that a law question of doubt must be first referred to its proper department, and when that reference is made it is next in order to search the law-books of that depart- ment for the desired answer. It is a common experience that a case presents a law question under each one of the three departments. We must also suggest that, when no rule of decision can be found in the books mentioned, the question is generally decided by the reason of the general law, — a subject likewise treated by us at length.^ § 142. We think it important to impress upon the young practitioner at the outset that it is only in exceptional instances that the law is discovered by theorizing and rea- soning. He should abjure the conceit that he can forego enactments and reports and guess at a rule of law when- ever he needs to know what it is. Let him always exam- ine the sources, and ordinarily he will there find counsel which commands with almost axiomatic force either to reject or accept the particular proposition under considera- tion. He should take a lesson from the editor of a classic, to whom conjectural emendation is not permitted until a comparison of all the diflferent manuscripts has shown that there is, as to the particular passage, no real text extant. 1 American Law Studies, xxxvii. et seq., §§ 823-827, 1002-1011. 2 Ibid., §§ 789, 790, 801 et seq. PREPARATION OF THE LAW OP THE CASE. 101 Nearly every reader will impatiently exclaim in reply to what is said above in this section, " Of course, everybody does that which you advise." But it is our conviction that no other duty is more neglected in practice than the one which we are now trying to enforce. Before the magistrates and commissioners, in trials in all the smaller courts, in those in the higher ones — even in arguments in courts of error — you rarely have to wait long without hearing a point properly decided against a counsel upon some relevant constitutional or statutory provision or rule of the general law, which seems when it is cited to have been known to everybody else. " How did it escape him ? " the looker on says to himself. The answer is, that a large proportion of both young and old lawyers never bestir themselves over the real questions until after their cases are called on. § 143. Having hinted the great influence of the law from the first to the last of litigation ; having glanced at the American trinity, that is. State law. Federal law, and gen- eral law, and the fact that every legal question arises under one or the other and is to be decided by its peculiar pro- visions ; and having emphasized the duty of always settling a legal proposition by consulting the books for yourself instead of waiting for them to be shown you by your ad- versary or the court, — we now take up the consideration of the ordinarily occurring legal questions. § 144. There are generally three classes of these in cases of the common type. We begin with that one which is logically, and nearly always practically, the first in impor- tance. We may state it in general terms to be. What is the substantive right of my client ? We will illustrate. A firm of merchants have delivered goods to a servant for 102 CONDUCT OUT OF COURT. his master, and the latter refuses to pay for the goods upon the ground that he has not received them and that his ser- vant did not have authority to pledge his credit. If you find that the merchants can prove certain acts of the master noted in the books from vi^hich the community may reasonably infer that the servant had the authority in ques- tion, it is the same thing in lavsr as if the servant actually had it, although it may be true that the master expressly forbade the servant from making the particular purchase ; and you will recover against the master. Again, suppose, there being no lineal heirs, that an estate is to be distributed among the collateral heirs, and among the claimants there are children of a deceased brother or sister of the intestate. Under the law of Georgia you would have a good case for these children, for they rep- resent their parent. In the first of the supposed cases the substantive right of the merchant is to have the fair price of the goods from the master, and in the second it is that of the children mentioned to divide between themselves such a part of the estate as their father or mother would receive if living. § 145. We have had you to be counsel for the plaintiff's in the two cases put. We will now place you on the other side of cases which are similar except in a few particulars. We will suppose, in the first case put, that the master has given notice to the merchants that he has withdrawn the authority possessed by the servant, or that some acts have been done by him within the knowledge of the merchants from which acts the law implies a revocation of the author- ity ; and in the second case, that the children of collateral heirs other than brother and sister are claiming to repre- sent their deceased parent in the distribution of an intes- PEEPARATION OF THE LAW OF THE CASE. 103 tate's estate under the law of Georgia, which provides that there shall be no such representation. In both these you show that the plaintiffs are not entitled in law to the sub- stantive rights which they claim. § 146. By contemplation you see that each case in which you are for the defendant has in it a fact of importance, which was not in the corresponding case where we sup- posed you to be for the plaintiff. These illustrations suffi- ciently explain to you that every substantive right which a party may claim from another is founded upon the concur- rence of certain facts and the non-existence of others. They also show from a new point of view the commanding necessity of the practitioner's beginning the investigation of the case by ascertaining the facts, — at least those ma- terial ones conferring or denying a legal right asserted by action. But the special lesson which we would have these illus- trations now teach is, that there are certain rules of law which give the substantive rights pointed out and that a particular rule is to be well studied and thoroughly under- stood whenever a right is claimed under it. The real test here is. Will the material facts relied upon, well and truly pleaded, prevail against the adversary's demurrer ? § 147. We have feigned cases where the applicable law is easily found. But to the practitioner it is often a matter of great difficulty to determine with certainty whether a right set up is allowed or not by the law. The relevant legal provisions may be of ambiguous meaning, or there may be none at all. Whether the right or its non-existence be plain or doubtful, it is necessary for the lawyer to have a clear conception of the governing rules of law and to be able to present decisive authority or to give satisfactory 104 CONDUCT OUT OF COURT. reasons establishing the rules and justifying the application he would make of them. "When he can support the right of his client by such citations and arguments as will con- vince an average judge his preparation upon this part of the case is in a measure complete. § 148. After settling that the right of the plaintiff or the defence is maintainable in law, the proper remedy is next to be considered. Often there is but one. But many times there is a choice. Thus in Georgia it is ordi- narily better to use the fictitious action of ejectment than the statutory short form, which has no substitute for sev- eral demises. The measure of damages may be larger in one action than in another, as for instance the highest value of personal property at any time between its tortious conversion and the trial is recoverable in trover,^ while the plaintiff's verdict would be smaller if he resorted to an action ex contractu, as is often permitted to him. Some cases can be brought in, and others can be removed to, a Federal court, where you can have the benefit of more fa- vorable rules of decision on some subject of general juris- prudence involved than those which prevail in the courts of the State. If you can appeal to equity, you may there find a peculiar procedure helping you and a relief which you cannot have at law. § 149, The law is a well-stored armory. No one who begins a suit can ever anticipate precisely what action lying in wait for him somewhere he may provoke. It is not germane to our purpose, in search as we are of only the most general principles, to discuss in detail the whole series of injunctions, cross suits, counter claims, procuring the appointment of a receiver, and other remedies, which 1 Code of Georgia, § 3077. PEEPAEATION OF THE LAW OF THE CASE. 105 often turn a confident attack into a hard-pressed defence, or drive a party into other straits. This belongs rather to the subject of local practice than to the proper treatment of the leading principles of conduct of litigation. We can only say to our readers that, premising for him, as we have, a knowledge of the law of procedure, he must ever be asking himself the question, Can I better myself with a change of forum, or a new remedy, or some other addition to my attack or defence ? § 150. We will now illustrate the doctrine of the last sections by a series of examples. I once noted the conduct of an action by the heirs at law of an intestate which involved the actings and doings of the administrator for a long while. It had been brought under the statute upon the bond, without the establish- ment of a devastavit in equity. The items were multifa- rious ; and the fact that the administration was active during the war had added to the complication of the ac- counts, because of the large displacement of the assets by conversions into Confederate currency, the course of which was not narrated in the annual returns ; this currency having been treated as good money by the administrator, as was usually the case in most of the transactions of the time. The plaintiffs made good their claims to ten or twelve thousand dollars, but they recovered a very much smaller amount. It was always clear to me that, had they obtained the appointment of a suitable person as auditor under the local statute, he would have reported for them the full amount to which they were entitled and the de- fendants would have found it difficult in the extreme to overcome such a report. As it was, the jury could not see their way through the complexity of the proofs, and 106 CONDUCT OUT OF COURT. they found a verdict which was not so strongly against the weight of the evidence as to command a new trial. The great popularity of some of the administrator's sureties, who were the only solvent defendants, should have sug- gested to the plaintiffs the good policy of leaving a jury in the case the least discretion possible. § 151. Under the Code of Georgia, — which went into operation January 1, 1863, — if the complainant iu a bill in equity waives discovery, the answer of the defendant is not evidence for him. Now and then, when you hold a good hand of invincible evidence, it is the better policy to call for discovery, calculating upon the crushing effect of overcoming the answer in case it is adverse. But I have observed that the defendant sometimes prevails because of the omission by the complainant to insert the waiver ; and as the courts have established the rule that the waiver cannot be made by amendment after the answer is in, it is great supineness in the defendant to delay its filing and thereby give his adversary opportunity to make the amend- ment in time. § 152. It is often a delicate question whether you shall stand on the defensive or resort to a possible aggressive. Thus you may obtain an injunction of the plaintiff and force him to try the case in equity, where he is turned into a defendant. An instinctive perception of the common feelings must be your guide in deciding the question. I can only say, with much diffidence, that judges and juries generally sympathize with a well-considered and bold as- sault upon fraud and all intended injuries of a serious kind, while in many cases they prefer to see the possessor merely defend his claim without invasion. To neglect taking the initiative where it will help you, and to assume it when it PEEPAEATION OP THE LAW OP THE CASE. 107 appears to be more than the proprieties of your case de- mand, are both blunders which should be avoided. We will note at another place the usual advantages of holding the initiative. § 153. The following will show the use which a cross prosecution may sometimes be made to serve. A, who was a member of a popular and influential family, was pressing hard against B, a man almost unknown in the county, a charge of assault and battery. By the advice of his counsel, B obtained from the grand jury, which had returned an indictment for the charge mentioned, another indictment charging A with shooting at him, — an offence under the local statute much more serious than the other. The shooting and the battery were parts of the same fight, which Avas without justification on either side. A plea of guilty was promptly entered to the indictment for the lesser oflTence, and, B's counsel appearing for the State and con- tending with vigor, A was convicted. The counsel then proposed to A and his friends that it was now their policy to join with him in an application to the court to lighten the punishment of both ; which proposal was perforce ac- cepted. The court, duly considering the weighty represen- tations procured from the grand jury and other persons of standing and reputation by the influence of A's relatives, and also the more potent appeals of the two prosecutors, visited each defendant with the smallest penalty which he could inflict under the law. This was substantial vic- tory for B. § 154. Our last example here enforces the importance of rightly choosing your forum when you have a choice. A suit was brought upon a guardian's bond in the county where the surety resided. The principal, who lived in 108 CONDUCT OUT OF COURT. another county, was utterly insolvent. On the trial, the plaintiff appeared to have made out his case and to have overcome with his evidence that supporting rather a flimsy defence. But there was a verdict for the defendant, which could not be set aside, as it was held not to be so decidedly counter to the evidence as to require a new trial. The action should have been brought in the county of the guardian, as it could have been under the local law. The plaintiff would then have had the surety away from home and where his popularity in the vicinage could do him no good, and where too he would have been burdened with the odium of the faithless guardian. Besides, in that county the guardian, who was the main witness for the defence, would have testified from the stand. As it was, his testimony had been taken by commission, which the statute authorized in the case of those not residing in the county of the suit. A rigid cross-examination viva voce would have destroyed the credit of the witness. But the law of the State permitted only a list of set cross-interrog- atories to be addressed to those who testified before a com- mission. The plaintiff threw away two 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 disclosed by the service - of his interrogatories on the plaintiff, the action should have been dismissed and another brought in the county of the guardian. We hint that there are many considerations other than those mentioned above which guide you to the selection of your forum. The leaning of a judge in cases of special character, or his known convictions as to certain legal questions ; the advantage of having your timid and shaky PREPARATION OF THE LAW OF THE CASE. 109 witnesses examined by commission and of having your others who will bear themselves well under oral examina- tion to testify from the stand, and the further advantage of dispensing with the presence of the more effective of the adversary's witnesses or of forcing into court those whom you can demolish or turn into allies by a cross- examination; avoiding or making use of the prejudices of the community or of its familiarity with the transac- tion in question ; — these are not all the reasons for pre- ferring a particular court which practice will teach you after a while. § 155. As we close this division we sum up briefly, and say to our student, that, after he has satisfied himself that the right asserted, or the defence set up by his client, is maintainable in law upon the probable facts, he should take the remedy which combines all or as many as may be of the following qualities : — 1. It should stand against demurrer or legal objection of every kind. 2. It should make available all of the client's material points. 3. It should be so managed as not to contribute any help to the other side. These three may be termed the strictly legal essentials. 4. The remedy must also, as far as it can be made to do it, include all of what we may call the non-legal resources of the case ; such as the most favorable forum and vicinity, the alliance of influential parties, and many other particu- lars which will suggest themselves to the trained practi- tioner wherever they exist. AH of good according to the foregoing enumeration which is certain or achievable must be considered, and 110 CONDUCT OUT OF COURT. then the practitioner must follow the maxim, " Prout ergo expedit, ita quisque vel hanc actionem vel illam eligere debet." i § 156. The substantive right demanded, or its denial by him of whom the demand is made, is to be first attended to ; then the remedy ; and next comes, as the last and third division of the more prominent essentials of legal preparar tion, the competency of the expected evidence. Of course, where it is voluminous the whole cannot be anticipated, and therefore there cannot be anticipated all of the legal questions which may arise upon it. But you will know that on which you rely to make out a prima facie support of your main points, and alsp much that will be produced against them. The important details of arranging the proofs so that they will sustain your pleadings and impugn those of the adversary, do not concern us here. It is only proper to treat legal points. You should carefully guard yourself against relying upon a proof which can be shown to be incompetent, and also ' stand prepared promptly to challenge every illegal one of the other side that you can- not disarm or turn into a reinforcement ; and divining as well as you can the objections which may be urged to your testimony and those which it will be your interest to make, you should be furnished with the right authorities and arguments. The duty mentioned in this section, though it is palpa- ble to even the younger bar, is too much neglected by tried and experienced practitioners. From constant use in all sorts of business and upon every side of the court, we as- similate the general principles of evidence so thoroughly 1 Inst. 4. 7. 5: "The action which is the more advantageous should always be chosen." PREPARATION OP THE LAW OP THE CASE. Ill that we fancy we can satisfactorily handle any question under this branch of the law at a moment's notice. This often leads us to build upon an inadmissible proof, to overlook such of the adversary, and to make unmaintain- able objections. The counsel should frequently turn over the proofs in his mind — both his own and those which he has reason to think will be offered on the other side — in order to foresee clearly what need he may have for the rules of evidence in defending his positions or assailing the opposite. § 157. We have thus run over the entire course of legal preparation. There remain, however, some general reflections to be made which belong alike to all the three divisions which we have marked off. We begin with the three kinds of law which the lawyer encounters at every stage. The first is that which is certainly against or counter to him. The second is that upon which he may take position with unerring certainty. It may be the unmistakable command of an enactment or an harmonious current of decisions and authorities. And the third kind is a considerable domain, lessen- ing slowly in size every year, but which will never wholly disappear ; and that is where the law is really doubtful. § 158. No prudent lawyer will throw himself against law of the first kind. He will avoid it and steer around it. And of course he will throw away no advantages under the second kind. Law of the third kind occurs less frequently than either of the other two, but it does meet the practitioner so often that he should be educated in the proper modes of dealing with it. 112 CONDUCT OUT OP COURT. The minds of men are so different that as a consequence we have jar and conflict in opinions of the profession and in judicial decisions. A judge sometimes reverses himself. The rulings of previous courts are now and then overset by those of their successors. There are many uncertainties inherent in the law. Language, either in enactments or from the mouths of judges, is obscure or of double mean- ing. The subject may be new, and we see that it must be left to the future for further development. Some particu- lar doctrine assumed by courts and text-writers, and which is beyond the sure application of stare decisis, appears to be so unreasonable that we may expect its modification when sharply questioned. Upon all doubtful law which is relevant to the case the counsel should take chances with judgment. He should give his client opportunity of winning. But he must avoid risking too much on uncer- tainty. If he can, he should have — to use a colloquial- ism — another string to his bow. § 159. As a continuation of the letst section we must note the cases which are without precedent. We need not repeat what we have said elsewhere upon the appeal that must sometimes be made to jmnciple.^ But we must remind the student that he will find judges extremely averse to making avowedly new rulings. He must bear in mind that this almost humorous description of Sir H. Maine is but the truth : — " With respect to that great portion of our legal system which is enshrined in cases and recorded in law reports, we habitually employ a double language, and entertain as it would appear a double and inconsistent set of ideas. When a group of facts comes before an English court for 1 American Law Studies, §§ 801-809. PEEPAEATION OF THE LAW OF THE CASE. 113 adjudication, the whole course of the discussion between the judge and the advocate assumes that no question is or can be raised which will call for the application of any principles but old ones, or of any distinctions but such as have long since been allowed. It is taken absolutely for granted 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 forthcom- ing to detect it. Yet the moment the judgment has been rendered and reported, we slide unconsciously or unavow- edly into a new language and a new train of thought. We now admit that the new decision has modified the law." 1 § 160. You must not, therefore, if you can avoid it, shock the sensitive conservatism of a judge by asking for an innovation as such. It should if possible be demanded as an old principle. Such a demand is generally permis- sible, as even the latest doctrines and measures are to be justified by long-obtaining maxims of expediency and right. But sometimes all pretence must perforce be thrown aside, for the novelty of your position is too conspicuous for con- cealment. Here the lawyer, if he would succeed, must be able to show that a great interest is at stake, and come before the court fully furnished with resistless demonstra- tion. He must have besides an infallible presentiment that the judicial mind, prepared by previous reflection or discussion and the calls of the community, is ready to ad- vance courageously, before he can safely rest his case upon the chance of such a decision as he now seeks. Let him have other and more certain positions if he can. 1 Ancient Law, 31 (London, 1870). 114 CONDUCT OUT OF COURT. § 161. The born lawyer exhibits in his preparation a growing tendency to found his aggressive or defensive com- binations the more circumspectly on sound legal ground. The wary veteran of forensic battles is all the while sus- picious that his assumptions will be shown to contravene governing authority, and this suspicion keeps him from sleeping in a false security. His avoidance of bad law becomes instinctive. And he shows another growing ten- dency. He is too busy for much laborious thought. He is a man of action. Often he cannot give legal questions in his case a thorough examination before he must prepare to argue them in the court of last resort. This constraint begets in him a wonderful facility of turning his cases around struggles upon uncertain law questions. He never engages with his adversary for the mere love of controversy. He must first see either that controversy is inevitable, or that he can anticipate with much probability some justify- ing advantage. Legal questions, though easy when argued for us by able lawyers, learned judges, and gifted text- writers, are not always easy to decide before such argu- ment. The really easy questions are not seriously mooted. When good lawyers divide on law points and resolve to argue them in earnest, there is generally difficulty. The sifting and analysis necessary to detect the cardinal propo- sitions is often an Herculean labor. The wary practitioner fearing gins and snares, will, if he can do it with safety, at once shun a question which he has not time to settle, and press his adversary upon ground better known. § 162. In the selection of the points upon which he is to stand or fall, he must use good sense and judgment. As he becomes older he refrains more and more from what may be termed over-refining. The law is not of the family PREPARATION OF THE LAW OF THE CASE. 115 of the exact 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 seek not to be finically precise. The judge is also practical. His knowledge of the law is in some sort scientific ; but his peculiar science teaches him that he must not be over- logical and he must not regard infinitesimals and exacti- tudes. He will often decide right and be as unable to give a good reason as a woman is for her right decision. He gives correct judgments, not " laboriously, but luckily." § 163. We have thus outlined nearly the whole tract of legal preparation. Many disputes will arise collaterally during the trial or hearing, without warning, and which therefore cannot be prepared for. To manage these rightly you must needs rely upon your mastery of common princi- ples and the training of experience in analysis, decision, and argument; and especially upon your familiarity with the facts and the needs of your case. The legitimate objects are what you can anticipate, — the maintenance of your case as pleaded, the support or attack of the remedy and also of the expected evidence. The authorities settling these different points are to be collated and considered well. The duty just noted is much slighted. You will see every day that even lawyers of fair standing lose cases which are counter to the State statutes and decisions, to say nothing of those where they blunder as to the general or Federal law. You will also find that many where they win have overlooked the really decisive authority. A better preparation would have avoided contesting unten- able ground or diminished the peril to a good cause. 116 CONDUCT OUT OF COURT. § 164. The vital points which you may reasonably ex- pect to be controverted are your especial care. As to these you are to be as impregnable in defence or resistless in attack as possible. Nearly all of these — I should say seventy-five per cent of them at least — are easy, requiring only a little attention bestowed in due time. The remain- ing ones give trouble. Here you must avoid self-deception. Do not impose upon yourself with over-logical views. You will generally be profited by conference with your brethren. They may not cite a relevant authority or advance a deci- sive reason, but they will in their concurrence indicate an instinct or tendency of the professional mind that is the staple out of which legal doctrine largely comes. Even a hasty opinion of the average bar — not that of one lawyer — is entitled to respect. If it does not point the way to the truth, it may disclose a difficulty which when fore- warned you can remove. But when the bar differ there is usually difficulty, and here you can hardly ever be more than falsely confident. § 165. We leave this part of the subject by saying that the general aim of legal preparation is that you may be safe on the turning-points as to the right claimed, the remedy and evidence, and be able to get the approval of the court. § 166. The pleadings do not require the attention that they once did. They become less and less artificial in England and all over America. It must however be re- membered that, while the privilege of amendment saves nearly all bad pleading, the addition of material allegations by the exercise of the privilege will generally surprise the adversary, and he must be allowed sufficient time to meet the new matter. You will then hardly ever be able to PEEPAEATION OF THE LAW OF THE CASE. 117 bring him to try before the next term. It is often of the utmost consequence to coerce a trial ; and the insufficiency of your declaration or plea may lose a golden opportunity. Let your pleadings be neat, brief, lucid, and of adequate fulness, making such a case that you will not be driven into an amendment or be deprived of a triumph by an arrest of judgment. In cases out of the usual line of precedents they some- times require great care. You should remember that to plead a difficult cause well is often to win it, communicat- ing a mastery, as it does, which is to be had in no other way. Occasionally you must plead ingeniously and deli- cately in order to cover a weak point by a show either of unconcern or of great strength. There are ruses of vague- ness, double meaning, and sham, of which we see wary practitioners now and then make good use. And try to foresee the amendments of your adversary, so that when they are made you vrill have no need to ask for delay. § 167. There are demurrers which are of only dilatory effect, and they may help you when it is your interest to balk a hotly pushing antagonist. There are others which rout and destroy ; as, for instance, when your client is in- dicted under a statute which you can show to be unconsti- tutional. Your own wit will instruct you how to^ avail yourself of both kinds, and prepare th^ properly. 118 CONDUCT OUT OF COUKT. CHAPTER IV. OTHER PARTICULARS OF PREPARATION. § 168. We do not devote a separate chapter to what in our Introduction we classed a'fe the third element of litiga- tion and developed at considerable length.^ Law and fact are generally the staple of the case, while the other ele- ment is imcertain in occurrence and quantity, and when it is present with much influence it is for the most part as an addition of coloring and weight. The more common examples of the emotional excitement to which the lawyer must attend in his preparation are friendly and hostile prejudices. The favor which the locality will generally show a resident, and the opposition that people living at a distance who contend with him will call forth ; the popu- larity of women, and the unpopularity of railway and insurance companies ; the attitude of different races, polit- ical parties, religious denominations, secret societies, and many divisions of the community which we have not space to mention, towards their own members and those of the others; the hearty unquestioning acceptance by the multitude of certain views and notions upon common subjects, and their gushing approval or disapproval of par- ticular acts ; — these are instances. It is to be noted that wherever the family relations are in any wise involved, 1 Ante, ^^ li-19. OTHER PARTICULARS OF PREPARATION. 119 jurors generally and judges often can look through only a medium of inveterate sentiment. It needs not to go be- yond this and try the vain task of exhausting the causes which set passion or feeling in active play. But we must suggest that the lawyer has to anticipate in every case the effect which the revelation of his facts will work on the likes and dislikes of the judge and jury. To be a prophet here postulates a good natural gift of discernment into the heart of man and much professional experience. We ob- serve that many of the bar calculate that every issue of law or fact will be weighed always in cold blood, while a still greater number often make false appeals to feeling with their evidence and speech. The consummate lawyer rarely falls into an error of omission or commission in this matter, either in his preparation or during the trial. § 169. It is a peculiarity of modern development that the advocate, whether popular, parliamentary, or forensic, does not aim as consciously to stir the passions as was the wont in the olden time. This is the only material respect in which the orations of Cicero would be out of place in our courts. When the speaker discloses by his action that he has premeditated pathos or invective, or that he has executed a stratagem to excite favor or hostility, and he feels that his cause depends upon the use of such means, we are repelled at once. The moderns strive more ear- nestly than did the men of the classical days to subordinate the feelings to the judgment. Of course we can never accomplish this to the full, but we have attained the point where we but seldom consciously give the feelings the lead. They are to be evoked without apparent design, or, what is still more efficacious, as dictates of the judgment. To the great mass of mankind their prejudices and emotional 120 CONDUCT OUT OF COURT. impulses seem to be their convictions. When the lawyer would break their force he must make them show their real nature, but he is to keep it back when he would have in them reliable allies. § 170. Many times the temper and leaning of the com- munity are so decided that the fact must be recognized in preparation. A woman was litigating with the executor of her deceased husband upon a large claim to which there were clearly two sides on the facts. She and her husband had each several adult children by a former marriage, but there had been no fruit of their own. The children of the husband lived in a distant part of the State, whUe the widow with her children had long lived in the county of the forum. While she was alive her case was exceedingly popular, and the counsel for the executor had avoided a trial. She was old, and had for years been in feeble health. She died, and, presto ! the case changed sides. Her chil- dren, though residents, as against his non-resident children somehow could not hold the place of their mother, and they were regarded as strangers. The widow of the de- ceased could demand his bounty, while her children could not. It was really no question of bounty, but the im- pulses of the people made it such. And thus in the case one natural bias had displaced another. Of course as re- gards preparation the plaintiff's lawyer would be in haste to complete his readiness for trial and to try before the death of his client if possible, while the adversary would find cause for waiting if he could. § 171. We give another example. The statute of lim- itations has lost almost all of its former odium as a de- fence. And courts become more prone to disallow old claims even when they are not barred by the statute. A OTHER PAETICULAES OF PEEPAKATION. 121 purchaser of the reversioner's estate had brought ejectment against a lessee just after the expiration of the term of twenty years. There was some show by the defendant that the alleged lease had never been made and much more of outstanding title. The plaintiff proved that the wi-itten lease he alleged had been lost, and his evidence of the contents and of his title was superior to that of the defendant. But he lost the verdict by failing to impress upon the jury that he could not sue earlier than he did because of the lease. As he made his only effort against the outstanding title set up, the jury, not being enlightened on the other point, felt that the plaintiff had slumbered over his rights long enough to forfeit them. Now do not exclaim. What a stupid jury ! They were intelligent and honest laymen, though not good lawyers. They did know that it was the law of the State that twenty years' posses- sion gave a title by prescription, and the mistake they made was a natural one for laymen to make. The plaintiff got the verdict set aside, and when he tried again his counsel, who had learned the reason of his miscarriage, took pains to explain why the suit could not have been brought within twenty years after the commencement of the lease, and achieved a final victory. And we remind you that you should always seek to have some evidence giving a good reason why your claim, if it is an old one, was allowed to become so before the suit was begun. § 172. The forum of your choice, the golden moment of favor when to try, connection with parties or a cause that are stronger than yours, admissible proof that commends your side to the good and the other to the bad will of ordi- nary men, — these and similar advantages are to be looked 122 CONDUCT OUT OF COUKT. for with mde-opeii eyes and clutched with unslipping hold when found. And you are to be on the watch against the enemy. Build in time a protection against the odium he would throw on you, and never overlook an opportunity of curtailing his emotional resources. § 173. Our next concern here is to glance at some of the items of preparation which do not properly belong to any one of what we have termed the three elements of litigation. We need give only a few hints, to be filled out by the student from recent books of practice, the study of judicial records,^ and his experience. § 174. Your declaration, bill, plea, or answer must be filed in time. Where any of your papers require service you must be careful to have the proper ofiicer comply with the requisites of the local statutes or rules of court. Often you should give certain notices to the other side ; otherwise the case will not be ready for trial when it is called on. § 175. Agreements of counsel play a rdle of importance in practice. Thus, an admission that both parties derive title from the same person may save much expense and trouble to the plaintiff" in an action involving ownership of land. And there are many facts not really disputed, but which must be proved in order to make out your case. Your adversary will usually be willing to admit their exist- ence. Many of your brethren will be prompt to make all such concessions as help you and do not hurt them. It was once my great pleasure frequently to have as the leader of the other side a consummate lawyer who never insisted upon anything immaterial. To all of my requests for the consents here suggested he habitually replied, " I always waive everything but my client's money." 1 See American Law Studies, §§ 990-992. OTHER PAETICULARS OF PEEPAEATION. 123 You will find it well to solicit these indulgences as soon as you discover the need of them, for it is much more probable that they will be granted then than if they be ap- plied for on the eve of a trial. And it is the better policy to have them evidenced by writing. That Professor Wash- burn never had a parol understanding with his brethren denied in a thirty years' practice/ is exceptional. A very large proportion of the bar can be trusted without limit in this respect, but there are some who cannot be. There are other reasons for the course which we advise. For in- stance, a written agreement having been acted upon, it will generally be enforced by the courts against counsel who succeed those who made it in the conduct of the case. § 176. Sometimes a position taken by the adversary re- quires you to do something in order to meet it. Thus, the plea may truthfully allege that certain property is yet encumbered in a particular way, when it was sold by the plaintiff as unencumbered and such sale was the consider- ation of the contract upon which suit has been brought. Here of course you will see to it that your client removes the encumbrance before the trial, if he must and can. We have not space for further remark as to the subject of this section. We leave it by saying that, if you keep your eyes about you in practice, you will note many other illustrations of things which the adversary will force you to do if you would not forego the judgment sought in your pleadings. § 177. We devote the rest of the chapter to some general reflections pertinent to all the branches of prep- aration. In the first place let us note as a fault too common with 1 Study and Practice of the Law, 106. 124 CONDUCT OUT OP COURT. eminent counsel that they leave the investigation of the case and the classification of its details to inferior work- men. Many assume no part of the management before trial. They seem by their beha^dor anxious to incul- cate the belief that their great abilities are for the court- room alone ; that the whole important conduct is there ; and that there is as little precedent preparation of a case necessary as of a game of chess. And the people at large still believe that all this is true. They seek a strong speaker to argue their causes. They care little for the tal- ents or training of the humble junior on whom they shall devolve the ceremony of introducing their champion into the lists, esteeming as they do preparation to be the easy accomplishment of average ability. Now we have striven and written in vain for our student, if we have not con- vinced him that the great need of the highest talents of the lawyer is in shaping the conduct of 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 beforehand ? And can a lawyer who has never looked into an intricate afiair, when the night before the trial has come, master the pleadings, the long array of documents, 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 dis- turbing pressure upon him? Our young lawyers will do right to master thoroughly the duties of English attorneys and junior counsel. The former make a full statement of the facts gathered from the client, interviews with his wit- nesses, and inspection of pertinent documents, which state- ment is submitted to a junior, who gives a written opinion upon it. If the answer of the counsel is in favor of liti- OTHER PARTICULAES OF PREPARATION. 125 gation, there may be a further sifting and accumulation of facts, and after a while an opinion on the evidence is taken by the attorney. Every step as it were is in careful writ- ing and under the eye of an attentive counsel. Finally, on the eve of the trial, the brief made up by the attorney, to any intelligent lawyer, tells all of the case of the client and anticipates much of the adversary's. The evidence is marshalled and all the details co-ordinated, the issues pre- sented and the line of conduct indicated. I am convinced that our system in America, uniting as it does attorney and counsel in one, is, in the hands of thoroughly trained lawyers, the better. Its faults, which are mainly due to defects of professional education, are not inherent, while it has a great inherent superiority to the English. Under the latter, the counsel is never brought in contact with the witnesses until he faces them on the stand. To use a metaphor from the military, the general never reconnoitres in person. We subjoin the comment of our celebrated lawyer, David Paul Brown. § 178. "Both of these systems [the Roman and the English] were undoubtedly less onerous and more agree- able 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 Philadelphia. Here the attorney is the counsel and the counsel the attorney ; he manages and controls the entire progress of the suit ; his intercourse with his client is not intermediate but di- rect ; 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 case. The labor incident to these duties is very great, but its advantages are commensurate. A man can never perform 126 CONDUCT OUT OF COURT. • any work so satisfactorily as when he is acting upon his own knowledge, nor can facts procured by an attorney be as satisfactory to counsel as those which he himself might obtain by personal examination. Every man has his own views in regard to the points of a case and the nature 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 well 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 estimate 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 because it is subject in some respects to casualties or exceptions, but those who have attended legal proceedings at Westminster Hall or Lincoln's Inn could not fail to have perceived, and not un- frequently, great embarrassment of the counsel from a want of that familiarity with the facts and their application to the legal points of a case which would have been avoided or lessened by pursuing the system adopted in this coun- try. No lawyer can examine a witness satisfactorily from the notes or brief prepared 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 coun- sel, but they place him in a state of dependence from which it in some cases happens no genius or talent can relieve OTHEE PAETICULAES OF PEEPAEATION. 127 him. A man who always depends upon another naturally and necessarily impairs his own powers. § 179. "We remember a rather amusing instance of this in the argument of an injunction -in the case of The Queen r. 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, etc., the learned judge during the argument inquired of Mr. Talfourd as to the averment of a certain fact which was deemed vital to the proceeding. The learned Sergeant (who had probably never read anything more than an ab- stract of the bill) could not find it, — none of the attorneys could find it. The Crown affirmed its existence, the defend- ant 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." ^ § 180. The advantage of collecting and inspecting the evidence for one's self, and of keeping up with the prepa- ration at every stage, can hardly be overrated. Without this the wariest lawyer will often commit pernicious blun- ders both of omission and commission. Especially should the leader, or his most reliable associate, always talk with the party and witnesses in cases where the facts are seri- ously contested. Mr. Parker narrates the following, which will enforce our counsels : — § 181. " He [one Captain Ashton] claimed to have loaned several thousand dollars to a trader upon a mort- gage of his stock. The trader failed, and his creditors contested the mortgage. They urged that the captain had no visible means, no property, and could not have had the money to lend on mortgage ; and, moreover, that the 1 2 Forum, 255 et scq. 128 CONDUCT OUT OF COUET. trader's stock of goods was so small and his assets so defi- cient 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. " Mr. Choate 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. Clioate in a room of the hotel. Ashton had not met his debtor for some time. Ashton and his counsel, with wit- nesses, were in the private room when the mortgagor, who had been notified to appear, came in. Ashton sprang at him like a tiger. ' You scoundrel,' said he, ' you have cheated me ; you have robbed me of my gold.' " Mr. Choate remarked to the writer, years afterwards, in speaking of this case, ' That incident satisfied me my cli- ent 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 subsequently developed to leave no doubt that Ashton's story was true." ^ § 182. Now had Mr. Choate been an English counsel engaged in this case in England, he would not have en- tered the trial encouraged by having witnessed this impres- sive spectacle. Some attorney might have seen it and tried to narrate it to the counsel, but he could not have fully represented the expression and the action of Ashton. 1 Eeminiscences, 115. OTHER PARTICULARS OF PREPARATION. 129 § 183. In advising the attorney who is getting up a case to sift the witnesses well, Sir George Stephen ad- mits that English counsel are unskilful, in the following passage : — " I have dwelt at considerable length on the examinar tion 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 unskilful in the private examination of wit- nesses than ourselves,"-^ — that is, than attorneys. This inferiority of English counsel is due to their little practice in such private examination. The defect should be carefully avoided by the American lawyer. To be able to elicit from dull or reluctant people all that they know of benefit to the client, is a most valuable quality. And it is one which a counsel by reason of his superior legal knowledge and training can develop to a much higher de- gree of efficiency than can be attained by an attorney. § 184. There is a natural consolidation as well as a nat- ural division of labor, and so there is simplification going on in the world as well as multiplication. The division of labor between the English attorneys and counsel is as if the master never took his scholar in hand until the mo- ment of final examination, having turned over his training to an ignorant assistant. A delicate trust, requiring skill and tact for its performance, if delegated by the trustee, should be delegated only to an agent possessing requisite ability. What would be thought of an ancient historian — a Niebuhr or a Mommsen — who took the facts from which he drew his conclusions entirely from modern compilations ? ' Adventures of an Attorney, etc., -306 (New York, 1874). 9 130 CONDUCT OUT OP COURT. How far short of his able and exhaustive treatment would Mr. Bishop come if he never consulted the reports and authorities for himself, but got them at second hand from the notes of clerks and copyists ! If we found such a sys- tem of writing history or law-books we should pronounce the division of labor in it to be unnatural and pernicious. And it seems to me that the English system, dividing as it does the preparation of cases between attorney and counsel, and not permitting the latter to sound the witnesses and party for himself, is so far a false system. I believe, if the duties were interchanged, if the superior man were to play the attorney, sift the witnesses, marshal the proofs, and leave to the less learned and able attorney the drafting of the pleadings and the conduct at the trial, that in the final issue of litigation those parties who had the better causes would in the average fare better than they do now. The disease of the system is that it assigns the feebler and more unskilled man to the post which requires the greater strength and skill, and it artificially divides that which in its nature is indivisible and integral. § 185. Our young lawyers of America should aspire to make both good attorneys and good counsel. They will be the better counsel for having become good attorneys. When they have risen to leadership and much of the bur- den of preparation must be devolved on their partners and associates, they will rightly guide and direct the latter, and also know when their personal attention to the facts and details of cases is necessary and how to render it properly. § 186. There are many cases of multifarious and com- plicated details, or of doubt and difficulty as to the law, where it is advisable for the client to have more than one OTHER PAETICULARS OF PREPARATION. 131 counsel. Occasionally we see a single lawyer get up an important and laborious case well, and conduct it fault- lessly from beginning to end. But ordinarily one in good practice is so subject to interruptions of many kinds that, though ever so careful and painstaking, he is not willing to undertake the entire management and preparation of a seriously litigated case. The old adage, that two heads are better than one, is applicable. Labor merely manual or clerical needs not much looking after if the laborer is honest. But where there must be thought and reflection at every step, the wisest and most capable man should in- crease his own ability with assistance. You have seen the bystander point out the best move in the game, which had been overlooked by the player. Possibly there have been many good moves which he did not anticipate ; and yet as to the particular move mentioned he has had better in- sight than the player. I inquired the character as a lawyer of a new-made judge of one of the shrewdest and quickest members of the bar. " 0," he replied, " 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, when he is preparing or trying a case alone, sometimes commit a blunder which will chagrin him, because it is so palpable after it is committed. The blunder will be seldom per- mitted by an attentive associate of even humble capacity. The ablest lawyer will generally be the busiest ; and he will therefore, in his moments of fatigue and exhaustion, or when he is too pressed with a multiplicity of engage- ments to look into any one thing with sufficient care, need the calm vision of an unruffled associate. § 187. The burden of preparation should be fairly divided between associates. Each one of them should 132 CONDUCT OUT OF COURT. be chosen for his peculiar ability, and then be made to exert it. The following passage from the Life of Burr is illustrative : — " He [Burr] showed unequalled tact in placing his men. Before selecting his associates in a cause, he would ascer- tain and carefully calculate all the opposing influences, — prejudices, interest, indifference, ignorance, political, local, and family feeling, — and choose the man likeliest to com- bat them with effect. If there was a crank in the 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 contrive by some means to bring it to bear in favor of his client. If learning and eloquence were essen- tial he would enlist their aid also." ^ § 188. This excerpt from Lord Bacon is of application here : — " There be three parts of business, the preparation, the debate or examination, and the perfection. Whereof if you look for despatch, let the middle only be the work of many, and the first and last the work of few." ^ We may make " preparation " stand for the analysis of the case and enucleation of the issues, which of course must precede the assignment of their parts to the different associates. The " debate or examination " includes the varied labor of the associates. And the " perfection " is that which we shall soon explain to be the Plan of Conduct and also the command exercised by the leader throughout the trial. § 189.- .There should be frequent consultations of all the counsel. Every one of them should at any moment know not only what has been done by the others, but also what 1 Parton, Life of Burr, 150. " Essay, Of Despatch. OTHER PARTICULARS OF PREPARATION. 133 each is then doing and is to do. This unity will secure from every one his utmost achievement. Thereby faults will be corrected, blunders avoided, and surprises antici- pated. And the client should not be permitted to encum- ber the case with useless counsel. He should be made to understand that according to the proverb, what is every- body's business is nobody's, he is but inviting failure when he has a throng of counsel and it is not known which one should lead and who should be answerable for the several items of preparation. There should be a leader, chosen either by the client or designated by his superior standing. As a general rule the associates should be selected under his advice. His experience and knowledge will dictate to him the kind and number. After they are selected and placed, there should he between all the extreme of freedom and unreserve as to the secrets of the case. Every contri- bution that any one of them can make to the cause should be made without stint. Nursing a darling point in reti- cence and keeping it from his companions to make a sur- prising and brilliant display of it in court, is unworthy of a lawyer. Eather when the preparation has been difficult and laborious and a faultless conduct has won a great vic- tory, let it be impossible to discover who did any particular part of the perfect work. And bickerings and manifesta- tions of jealousy between associates are dishonoring to the profession. § 190. A new counsel, employed after the preparation has commenced, should be furnished by the others with their knowledge and views of the evidence and their legal positions and citations. He can thus begin his investiga- tion where they have left off, which will save time and profitless labor to the case. 134 CONDUCT OUT OF COURT. § 191. Treat your associate always with respect. Hear his suggestions with attention. Though he is as far from you as night is from day, manifest no impatience. If you disagree, avoid all heat. A calm and placid statement of a different view when you are in the right will nearly always be convincing. And if you keep cool and your adviser states his opinion without excitement, you will yield in case the opinion appears to be correct. Truth presented without excitement to a mind not passionate is generally accepted as soon as understood. § 192. Local counsel, as Americans are in the habit of terming lawyers who reside in the community where the case is to be tried, are nearly always indispensable. The movements of the adversary and the opposing influences at work can be properly watched only by counsel on the spot, and most of the preparation must be there made. The sway of local counsel is also to be taken into the account. The popularity of lawyers and their troops of numerous friends are often formidable allies to the client. The personal influence of a particular lawyer is sometimes of itself worth a large fee. § 193. The foregoing as to plurality of counsel is in- tended to be suggestive rather than exhaustive. The prin- ciples determining their proper selection are well understood by the profession, although they are too often disregarded. We leave the subject with the remark, that we have more often seen too many counsel than too few associated. § 194. That the practitioner should always have a defi- nite purpose is a truism, but it is so surpassingly important that we must say something special of it. The sixth of David Paul Brown's Golden Rules for the Examination of Witnesses is, "Never ask a question without an object, nor OTHER PAETICULAES OF PREPARATION. 135 without being able to connect that object with the case if objected to as irrelative." It is the Golden Rule of prep- aration that everything from beginning to end be done with intelligent purpose. Action solely for the sake of action, as a woman often insists upon 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 purpose of right preparation. The lawyer, whether he is leading counsel or not, should have a clear perception of the end to be. attained before he begins to act. If not, he will disarrange the unity of his preparation and be often detected and exposed by a skilful adversary as warring against his own side. § 195. But this is not advice to stand forever shivering on the brink. Goethe says, " Who meditates long does not always choose the best " ; and again, " Many delibera- tions usually show that one has not his proper object before his eyes, while overhasty actions show that he does not know what it is." A lawyer must decide, and having de- cided he must act promptly and keep acting vigorously. He is not the hesitating Hamlet, who stops to probe and sound every proposed measure to its infinite depths. He cannot even meditate long over his law-books. He must be as quick as Kenyon, of whom Lord Campbell tells us : " Dunning, instead of continuing to dine on cowheel, shortly after being called to the bar was making thousands a year and had obtained a seat in Parliament. He had many more briefs than he could read and many more cases than he could answer. Kenyon became his fag, or in legal language his ' devil,' and then began the career which 136 CONDUCT OUT OF COURT. led to the chief justiceship. With most wonderful celer- ity he picked out the important facts and points of law which lay buried in immense masses of papers, and ena- bled the popular leader to conduct a case almost without trouble as well as if he had been studying it for days to- gether." § 196. His quickness introduced Kenyon to Lord Thur- low. 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 properly 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 oif his great wig he mixed in 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 Littleton 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 practice, having once or twice as amicus curice very opportunely referred him to a statute or a decision, was called in to assist him in private ; and now the de- lighted Chancellor had in his service the quickest instead of the most languid of journeymen." § 197. This faculty of rapid and accurate work is indis- pensable to the efficient lawyer. For all the wonderful correctness of his judgments. Lord JEldon's fame would now be greater had he been less slow to decide and act. Mr. Smiles, in his Self-Help, thus illustrates our present theme : — OTHER PARTICULARS OF PREPARATION. 137 " 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.' " § 198. Of course there should be the indispensable pre- cedent forethought ; and rapid as his action must be, the lawyer must feel when it is finished that it has been done with full consideration. The words of Burr, who was as prompt to decide as he was indefatigable in execution, are wisdom. We transcribe from Mr. Parton's Life. " There is a maxim," said he, " Never put off till to-morrow what you can do to-day. This is a maxim for sluggards. A better reading of it is, Never do to-day what you can as well do to-morrow, because something may occur to make you regret your premature action." David Paul Brown did injustice to this counsel of Burr.^ To harmonize its teaching with that of the sayings of Goethe and Scott just quoted, is to formulate the essential principle of a busy man's life. Action must be prompt, but it must be well weighed ; it must be as prompt as it can be to be well weighed, and as well weighed as is compatible with its being prompt. § 199. This necessary accurate forethought and prompt- ness can only be had by the preservation of composure. Here are wise words of David Paul Brown : — " By all means in all circumstances maintain your com- posure ; if you lose that, you lose all. If asked what is the most desirable attainment of a lawyer, we should say I Forum, II. 69. 1S8 CONDUCT OUT OF COUET. composure. A wealthy and venerable gentleman of this city, whose only son had recently teen admitted to practice, called upon us and with a perfectly natural interest in the future advancement of his son inquired what course we would recommend in order to his success at the bar. 'Your son/ was the reply, 'has had an excellent educa- tion in literature and in law. All that he will require in order to render his faculties and learning available is com- posure.' ' Ay,' 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 conquer, 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.' " § 200. Flurry from thinking too much of your adver- sary's weapons and too little of your own, or from the short time allowed for getting ready, or from the self-accu- sation of neglected opportunities, often balks preparation. And if you will note some lawyers at work in their cham- bers they are always imagining the trial, devising brilliant cross-examinations in detail for adverse witnesses whose real testimony they have not taken proper pains to dis- cover, and making showy speeches to points of law and fact which will never arise. They heat themselves and be- come oratorical too soon ever to learn the all-important particulars of the case which supply winning arguments and appeals. This poisons all their labors. They almost remind one of children talking to themselves while build- ing air-castles in the future. A trial anticipated in this spirit will most generally prove, when it comes, to be an air-castle. In the preparation of his cases the lawyer OTHEE PARTICULARS OF PREPARATION. 139 ought to avoid all passion and resolutely turn away from the visionary. A judge impartial, or a jury not partaking at all of his dient's passion or his own, are to be convinced that his case is good. § 201. Patient and never remitted attention is a potent virtue. Everything seems to have grown more definite in our day, and accuracy is more demanded than ever. The lawyer must be always ready to show that he thoroughly miderstands his case, and that he can with exactness apply to it the guiding law, which he must also thoroughly un- derstand. I suppose that every lawyer of some practice has noted how rare a talent it is in men to report the sub- stance of anything accurately. When you are trying a case and the evidence has developed that one not thought of before must know important facts, and you have him sounded by your client or your junior and a favorable re- port is brought back, you will do well, if you can, to hold a brief colloquy with him before you swear him. Many listeners hear only what they wish to hear, and this is a large class ; and a still larger class misapprehend what they do hear. The flying rumors that go around in society are exaggerated instances. At last, in their most grotesque form and in the widest departure from the truth, they are but the result of many misapprehensions concentrated. Patient attention to your client will make you under- stand him at last ; by patient attention you will master the obscure nan-atives of the vdtnesses, the pleadings, a mountain of documents, the resources and designs of the adversary, and by the same power you will time and again extricate your case from decisions and apparent construc- tions of statutes which for a long time menaced it with certain ruin. 140 CONDUCT OUT OP COURT. § 202. Therefore let the lawyer carry all of his cases with him everywhere. On every particular one he should be always able to pass a Socratic cross-examination. Soc- rates held that no man was master of a subject until he could handle it from all points of view. This knowledge is not to be imparted by a set discourse. A man must acquire it for himself. It is in the head, in the compre- hension, rather than in the memory. This is illustrated in the case of an honest and rightly seeing witness under a searching cross-examination. He will be asked many questions which he has not anticipated, but if he keeps his coolness he will answer aright and all his answers will be consistent. So long as he stands upon his own knowledge he cannot be made to contradict himself. And thus a lawyer must know his case, so that he may be able to meet at once any attack of the adversary, although he may not have foreseen it. As soon as he understands the attack he can show that it is inconsistent with what he knows the case to be. § 203. The grand result of thorough preparation, where the lawyer has been patient, attentive, industrious, and free from passion, is this accurate and well-in-hand knowl- edge. We observe many of our brethren groping in the dark, as it were, in search of they know not what. It is this which they are unconsciously looking for. The law- yer who bas such a knowledge of his case can be put down only by equal knowledge and the right on the other side. In intricate cases, he who has got the details by heart, so that he can present them all from innumerable stand- points, is an over-match for an antagonist who has only a smattering of the case, even where the right is strongly with him. How does this victorious knowledge come? OTHER PAETICULARS OF PEEPAEATION. 141 It is mainly character. The self-collected, thorough-bred lawyer, exempt from all vanity, self-reliant without being self-conceited, who saves all his passion for the jury, who hardily loolis any unpleasant anticipation full in the face, and who is incessantly testing in cold blood the san- guine representations of clients and their partisans and his associates, will acquire a profound familiarity with the case in an incredibly short time. If one wishes to win by de- ceit and perversion he will study deceit and perversion ; if he belongs to those over-sanguine people who believe that no disaster can ever befall, he will build perilously on hasty assumptions ; but if he fully understands how a trial is a thorough discussion of the questions made by the law and evidence, he will seek to come with the requisite knowl- edge for such a discussion. And this knowledge produces the "vigorous verdict-getting counsel."-' § 204. How empty and vain are the talents of perver- sion arrayed in a real court against this true mastery ! The great lawyer whom we sketched above ^ was so little solicitous for the last word that he never would nianceu- vre nor wrangle for the right to conclude. He often made a gift of it to his adversary. But it was a world's wonder when he lost a good case. His knowledge of any matter he was trying was so accurate and ready that no misrepre- sentation could prevail against him. § 205. The preparation which the great Rufus Choate habitually gave his cases should be ever held up before the young lawyer. The following is told of it : — 1 Lord Campbell's Life of Lord Brougham, 256 (London, 1869). The words quoted are a panegyric of Mr. Clarke, leader of the Midland Circuit. 2 Ante, § 78. 142 CONDUCT OUT OF COURT. " What laborious and careful and plodding preparation he made in the plainest of cases ! When occasion de- manded 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 " I have known him to 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 preparation and trial of cases will remember how he made them work." ^ § 206. A later biographer quotes Mr. Bell's account, which we here transcribe : — " Mr. Choate's method of preparing his cases for trial and argument depended so much upon the varying circum- stances of the cases, that it is very difficult to say that he had any particular plan. But this always was his practice when 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 practicable, personal ex- amination of the principal witnesses, accurate study of the exact questions raised by the pleadings, and a thorough and exhaustive preparation of all the law upon those questions. This preparation completed, the papers were laid aside 1 Parker, Keminisoences, 111. OTHEE PAETICULAES OP PEEPAEATION. 143 until the day of trial approached. At that time a thorough re-examiuation of the facts, law, and pleadings 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 were first examined, and reconstructed, if in his judgment necessary, and as careful an examination of the law made as in the other case. § 207. " 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 com- menced with the knowledge that the argument was to be made ; and from that time to the entry of the judgment the case never seemed to be out of his mind ; and when- ever and wherever a thought appropriate to the case occurred to him, it was noted for use. It would often happen that the case was nearly reached for argument at one term of the court, every possible preparation having been made, and the brief printed; yet the term would end and the case not come on. The former preparation then made but a starting-point for him. At the next tei-m a fuller brief appeared ; and this might happen sev- eral times. The finished brief of the evening had to be altered and added to in the morning; 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 was discovered, or if a new view of it occurred to him, the court was instantly informed of it. § 208. " And so in the trial of a case at nisi prius. Every intermission called for a full examination of every 144 CONDUCT OUT OF COURT. law-book which could possibly bear upon questions already before the court, or which he proposed to bring before it. No difficulty in procuring a book which treated upon the question before him ever hindered him; it was a mere question of possibility."^ § 209. His biographer also says of him : — " 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." § 210. Let the young lawyer not be deceived. The diligent preparation made of his cases by Choate is far more instructive and far easier to emulate than the elo- quence and success which have become the renown of the great advocate. § 211. Of Aaron Burr, who according to Mr. Parton was one of the most successful of all lawyers, the latter " In preparing his cases for trial he was simply indefati- gable. While there was an authority to be examined, while there was evidence to be procured, while there was an expedient 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 capitu- lated. Burr not only labored himself to the uttermost of the powers of man, but he had the art of exacting from his assistants an equal diligence. There was no resisting his requirements. Assistant counsel would receive notes from him at midnight when tney were asleep, demanding instant I Brown's Life of Choate, 3d ed. (Boston, 1879), 419-421. OTHER PAETICULAES OP PEEPAEATION. 145 replies, which obliged the drowsy men of the law to refer to authorities and examine papers. On the day of trial he had his evidence, arguments, and authorities marshalled in impenetrable array. Every possibility had been provided for. No man at the bar could ever boast of discovering a flaw in his preparation^ or of carrying a point against him by surprise." ^ § 212. Non-preparation or hasty preparation against thorough preparation is empirical matched with scientific and rational knowledge, and as the mob against regular troops. Good luck and accident will sometimes lead the unprepared to success, but in the average he will be beaten and hardly understand why. § 213. We guard our student, however, against conceiv- ing us to advise him that all things can be anticipated and provided for. We mean no such thing. The lawyer ap- proaches the trial as the general goes to the field, furnished with knowledge of as many particulars appertaining to the business in hand as can be had in order to act on his own line and also be ready out of this knowledge to meet with new movements of his own any of his adversary's. § 214. We have one thing more to say before closing the chapter. No adversary is so weak as he who fumes with 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 it were an attack upon the very foundations of all justice. But the good lawyer, the veteran of a thousand fights, the cool-headed champion who has time and again won against odds, relies on his case as he sees it from his standpoint, and he never feels sure of victory before he has 1 Parton's Life, 147. 10 146 CONDUCT OUT OF COUET. conquered. His exertion and vigilance do not cease till the final judgment. His own ingenuity teaches him that the resources of the other side may have been under- estimated. He leans not on Providence nor good luck, nor on the manifest justice of his cause. He stands on the law and 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. 147 CHAPTER V. PLAN OF CONDUCT. • § 215. The previous stages treated in our Chapters I. to IV. are windings or bits of flat which permit no distant prospect. While the genuine lawyer has constantly made an earnest eiFort to do all the different items properly and to co-ordinate them rightly after they are done, yet their consistency and propriety as parts of the whole which they constitute, and that he has throughout been guided by prin- ciple, have been dimly felt rather than clearly seen. But in the subject of this chapter we attain the point of high- est altitude in the conduct. From this eminence one can look back to the very commencement, rectify any depart- ure from the true course, and, what more concerns us now, with his ultimate purpose at last in distinct view, he can dispose the particulars and direct the future progress in such sort as to lead his case steadily on in the road to its most favorable event. The wise plan, in the light which it throws upon the goal and the way thereto, is the very essence of preparation. It is the special and the highest business of the leader. When the success of such pre- eminent advocates as Erskine and Choate is understood, it is found to be due to the wisdom with which they dis- cerned the material and decisive, rejected the unimportant, and preflieditated their line of action, far more than to the 148 CONDUCT OUT OF COUET. effect of their renowned eloquence. It is not to be for- gotten that Scarlett and Mason, who cannot be ranked with the eloquent, won as large a proportion of verdicts as the brilliant orators. § 216. Having thus outlined the importance of our particular subdivision, we must, before going on with its special treatment, again remind the reader how awkward it is to discuss that as a series which is non-serial in its nature. The plan of managing the attack or defence, and the other parts of preparation, have been growing together and almost inseparably from one another. The lawyer has caught at different times glimpses of its several features, and his conception of it has become more and more defi- nite. The final construction is, however, the last work of preparation, when the counsel feels that his mastery of the case is thorough, and he fully grasps every point of offence, defence, or avoidance. Then and not till then is he to put the finishing touches to that which has been almost com- plete, it may be, for some time. § 217. The general before he takes the field makes a plan of the campaign; and so, by a metaphor which will not, we hope, be deemed too bold, we apply the word "plan " in the conduct of litigation. In the talk of the bar we have another synonym. Says one of his adversary, " I do not yet see what is his line." Thus Choate is reported by Mr. Parker as saying of Professor Webster's counsel, that they " should settle on their certain line of defence," etc. The word which we use, however, is by far the best that we can think of, and is much superior to the more com- monly used " line," which is a metaphor almost unintelli- gible, and when it is understood has a sense too restricted for our purposes. PLAN OF CONDUCT. 149 The word " theory " is used almost synonymously. Judges and counsel often speak of the plaintiff's theory and the defendant's theory. But the right theory, that is, the one which includes all the points in the best possible way for you, taking correct note of the strong and weak parts of your side and those of the adversary, is really but the true view of the facts of the case, or, better still, their explana- tion and I'econcilement, and this theory is the prerequisite of the good plan. § 218. The essential of a good plan of conduct is that it embrace all the materials of your side, whether they be law points, combinations of fact, or grounds of excitation ; such materials being arrayed in the proper order to support your own intended aggressive or defensive, and to provide against the operations of the adversary. Or, as we may define more shortly, the plan of conduct is your intended method of using the results of your preparation to vanquish the adversary. § 219. Napoleon said, as we have already quoted, that the whole of the art of war is in being the stronger on a certain point. The whole of the art of managing litigation is likewise in being the stronger on a certain point. As we wish to impress the student with the saying of Napo- leon, we will illustrate it by two celebrated examples. At Marathon, the Persian army compared with the Greeks was as the sands of the sea-shore. The Greek commander came out confidently from behind the walls and offered battle in the open field. He did not oppose, as a medi- ocre general would have done, his best troops, but he posted his slaves against the formidable Persians aud Sacians in the centre, who were the chief reliance of the enemy, while he arrayed on each wing those free-born 150 CONDUCT OUT OF COURT. volunteers who, as we are told, were aflame with an incred- ible ardor of fighting, in front of countless hosts of undis- ciplined savages placed by the enemy, not anticipating the novel dispositions of Miltiades, where, as it was thought, they would be out of the way. The Greeks came forward on the run, and the two armies closed. The massive Per- sian centre, with resistless momentum, broke the opposing line, and presently was chasing fugitives everywhere. But the Athenian wings, counting the numbers of their adver- saries only as so many tokens of victory, were also advan- cing, spreading panic and rout before them. The Persian centre 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 conquering Greek armies in the rear, as it were, and all of its supports going to pieces. The Persians and Sacians also fled ; and the immense horde ot invaders paused not in their camp, but were beaten to their ships. § 220. Many generations have meditated over the battle, and they cannot discover how the Greeks could have done better. Had Miltiades ranged his choice men against the centre he would have been crushed at the outset. But, with a genius to which all subsequent civilization should do reverence, he evaded the opposeless column and indi- rectly overthrew what he could not directly encounter. His plan was complete : that is, it rightly marshalled all of his strength in order to sustain itself and withstand the formation and designs of the enemy. The rapid charge with which he began was the finishing work of perfection, assuring the whole. It was a mask that concealed his superb dispositions, and it gave no time to the enemy to conform his own accordingly. PLAN OF CONDUCT. 151 § 221. We next give the plan of another battle, — that of Epaminondas at Leuctra. Instead of evading the special strength of his antagonist, 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. The Spartans had been the terror of Greek and barbarian ; and Epami- nondas, rightly judging that the main battle would be of- fered by these redoubted veterans, held back the rest of his men and 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 ironclad is to a wooden ship of equal guns. § 222. The circumstances of the two generals show the plan of each to have been proper. Miltiades was right to dodge the onset of the massive centre in order to take it at advantage afterwards, and Epaminondas was right in engaging at once the flower of his enemy in direct conflict. The reader must not consider these grand examples as more than distant analogies. Warfare and litigation have their several spheres, which differ perhaps more often than they are alike. It is only profitable to touch on the real correspondences of the two in leading principles. And we think that the student will presently see a good use made of the foregoing treatment of plans of battle. § 223. We enforce the importance of the subject of the chapter to the practitioner by the example of Choate, of whom it is said that " 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 rul- ings to the jury. " ^ 1 Brown's Life, 3d ed., 421. 162 CONDUCT OUT OF COURT. § 224. We will now give several instances of plans, be- ginning with the less complex ones. " In an insurance case we were for the plaintiff, A ves- sel had been insured for a year, with a warranty that she should not go north of the Okhotsk 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 wit- nesses had been summoned by both parties ; — on our side, to show that by merchants the Okhotsk Sea was consid- ered to include the bays and gulfs ; 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, certainly,' 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 was dumfounded. They had expected that we should be at least two days putting in our case on the other theory, and had no witnesses 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."^ § 225. A local statute allowed a certain number of years of adverse possession of land under a bona fide claim of right to give the occupier a prescriptive title, and the de- fendant had occupied for three times the space of the stat- utory term. The plaintiff — who was without doubt the 1 Mr. Bell, as quoted in Brown's Life, 3d ed., 421, 422. PLAN OF CONDUCT. 153 true owner, if this prescription could be got out of the way — brought his action of ejectment, and after making out & prima facie case of title, as he easily could, closed his evidence. The defendant then proved his long occupation by many witnesses, himself among the number. But from the cross-examination knowledge by the defendant of the plaintiff's right and recognition of the same, at a time not long preceding the commencement of the occupation, was clearly shown, and many other facts were brought out which, with the knowledge and recognition mentioned, completely disproved the alleged bona fides of the adverse possession. The defendant's counsel seemed to have antici- pated that the plaintiff would try to show that the latter had been under such a disability as would prevent the prescription, and to meet this point he was well prepared. But the plaintiff's lawyer by carefully attending to his business had found out that he could make the proof upon which he relied by the witnesses of the adversary. § 226. These are easy plans, but such are not therefore to be despised. The greatest results and the most splendid successes often come from operations so simple and plain that all the world then wonders how there ever could have been any doubt as to the event of the cause which has won. The plan of the battle at Leuctra was no more in- tellectual exertion than that last narrated. The twenty- one years' adverse occupation looked as formidable to the community as the Spartan prowess seemed to all Greece ; and yet when we calmly contemplate what was done to both we see that the unexpected victories were no great reason for boasting. An over confident adversary was merely shown in each case that what he thought was his resistless strength was but a shell imposing its appear- 154 CONDUCT OUT OP COURT. ance for substance upon 'people who did not choose to look steadily. The grand element of all true courage — that great- ness of mind which has led safely out of what seemed to be the most complicated involvements of peril — is just daring to contemplate things composedly for yourself, and with your own eyes. To join this hardy inspection and undaunted gaze to the character which never acts save with an intelligent purpose, is to have the basis of that genius which vanquishes on the field and in the forum. Nine tenths of what other people take to be difficulty in- surmountable are to such a man mere shadows, portentous only in the imagination, as " black Vesper's pageants " are to children. § 227. The examples of simple plans which we have given offered opportunity for ingenuity and stratagem. But there are many cases — probably a large majority of those contested — that, after the maturest study, show but a single issue, which is conspicuous and unavoidable. In these the plan needs no study, for it is apparent that the contest will be one of weight or strength only, and not of skill. And there are many others in which a bundle of controversies, as it were, will often be found. You will seldom see a case involving much property or important rights turn upon a single question. You will generally observe that both the plaintiff and the defendant instinct- ively seek to increase each his favorable chances by pre- senting more than one point to be decided, and by making a skilful arrangement of these points. We will give an instance of a plan involving several points. § 228. An old man, some years before his death, made a voluntary conveyance of a parcel of land to one of his PLAN or CONDUCT. 155 sons. After the death of the father, intestate, the land was sold in bankruptcy as the property of the son, and was bought by A. At this sale notice was given by an agent of the creditors of the father that they claimed the conveyance to the son was void because of his mental in- capacity at the time. The bankrupt was then a party defendant to a bill in the State court brought by these creditors, and he had answered the same, insisting on the validity of the deed. The sale in bankruptcy and the pur- chase by A were both effected before the final decree in the bill. A had been put into possession, and the repre- sentative of the intestate, who also 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 intestate at private sale by this so-called receiver, including the parcel sold in bankruptcy. The receiver, who had been pretending to hold the land since the sale in bankruptcy under A as A's agent, now sold it without A's knowledge, and put B, his purchaser, into possession, thereby ousting A. The receiver affected to be acting under the decree. A brought ejectment against B, and his proof is arranged here to show his plan. 1. He proved his possession under his purchase in bank- ruptcy. • 2. He then showed title in the intestate ; the convey- ance of the latter to the son ; and the deed of the assignee to himself ; when he rested. 3. After the defendant had put in evidence impugning the deed of the father, and proof of his title under the re- ceiver's sale, the plaintiff replied with strong evidence of mental capacity ; and he also showed that all of the heirs at law had, in a writing which he claimed to have the 156 CONDUCT OUT OP COUET. force of their deed, conveyed this land to the son men- tioned before it was surrendered in bankruptcy, the plaintiff maintaining that, even if the deed of the father was void, the son had acquired all the interest and estate of the heirs, on whom the title devolved on the death of the ancestor. 4. He then introduced a pertinent record, which, as he contended, showed that the appointment of the alleged receiver was invalid, certain requisites of the statute apper- taining not having been complied with. § 229. This exhausted every resource of his evidence. If he could maintain the voluntary conveyance, — that is, that the father was comijetent to make it, — his purchase was undoubtedly good. The evidence on this point was very contradictory. In case he lost here, if he could uphold his claim that he had the title of the heirs, he would be on his feet again and on firm ground. The jury might believe the voluntary conveyance to be void, yet if they were told from the bench that the writing mentioned was a valid deed, then the position of the defendant, who was urging the invalidity of the voluntary conveyance, would be turned. The character of this writing was doubtful. But if the plaintiff failed to support the deed of the father and what he alleged 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, pro- vided he established the invalidity of the receiver's appoint- ment. Here he appeared impregnable. The appointment had not conformed to the statutory directions. The de- fendant was therefore a mere trespasser, and A could recover of him upon proof alone of his possession, such possession being, as it was, prima facie legal. PLAN OP CONDUCT. 157 The first and third parts of the plan were added last in the preparation, and the fourth was not thought of until long after the action had been brought. It coi\ld only be made to appear by a careful perusal of a voluminous and almost illegible record. When A commenced his suit he relied only on the validity of the voluntary deed and his purchase before the decree which has been mentioned. § 230. This instance has been given in detail because it illustrates nearly all the uses of a plan. In the first place, it is well to note that the plaintiff's case involved questions of law as well as fact. The character of the writing claimed to be the conveyance of the title of the heirs, and whether the appointment of the receiver was valid, were questions of the former kind. The other issues were for the jury, though they would receive instructions as to them from the court. Thus they would be directed that, if the father's conveyance had been proved to be invalid on the ground stated above, then it was for them to inquire if the plain- tiff had established his prior possession by credible evi- dence, and if he had, they should give it effect. So too the court would tell them to allow the voluntary convey- ance or not, according to the proof. If all the plaintiff's positions were right, he had two grounds of recovery, to wit, his prior legal possession and the title of the intestate conveyed to the son. If the de- fendant overcame the voluntary deed, then the plaintiff might still have two grounds of recovery, that is, his prior possession and the writing executed by the heirs. But if he failed to maintain the conveyance of the father and that of the heirs which he alleged, yet when he demonstrated the invalidity of the receiver's appointment he was sure to succeed, as his prior possession was scarcely disputed. 158 CONDUQT OUT OF COUKT. § 231. It thus becomes plain that his attack upon the appointment of the receiver was his most important posi- tion. 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 proba^ bilities would then be against him. In military language the question of the appointment was the key to the field. The plaintiff's counsel was therefore right in more carefully meditating this attack than any other part of his prepara- tion. Many passages of a long record had to be put together rightly in order to show that the requisites of the law had been disregarded. His adversary, having assumed the validity in question, had industriously essayed to get the preponderance of evidence on the issues as to the title of the intestate. He was struck with astonishment when the plaintiff's plan was disclosed, and he could not main- tain the impugned receivership. It is further to be remarked that this plan not only com- bined every resource of the plaintiff, but it had the further merit of masking his purpose and of completely anticipat- ing and providing against the case of the adversary. § 232. We are now ready to classify plans. They will be found to be fewer than the reader will suppose on his first reflection. There are, I believe, but two sorts of simple plans, that is, of plans for single issues. The first is where a palpable issue of fact or law is presented by one side and accepted by the other. Thus the plaintiff may say that the defend- ant owes him money by reason of a contract declared upon. The defendant, if he deny the contract alleged, accepts the issue of fact tendered. Here the party having the superior evidence at the trial is entitled to the verdict. Or the PLAN OF CONDUCT. 159 defendant may admit the contract as recited in the plain- tiff's pleadings, and urge that it appears to be an illegal one. Thus an issue of law is presented, which will be settled from the statute-book or other pertinent authority. Both of these instances — the one an issue of fact and the other an issue of law — • are evidently similar in nature ; for the adversary in each joins in the first issue offered, neither side is evaded or surprised, and the contest is a premeditated and fair trial of strength. § 233. The second sort of simple plan is where the issue presented is declined, and you tender another on which you conceive that you are superior. Its effectiveness may be increased by secrecy. Mr. Parton tells of Burr : " 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 re- lated that in an ejectment suit to recover a valuable house in New York the opposing counsel had expended their whole strength in proving the genuineness of a will, sup- posing 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 the links of the title which, having never be- fore been disputed, had been provided with merely formal 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 which an offered battle-ground is rejected and an engagement forced somewhere else. § 234. And it may apply to issues of law as well as to issues of fact. I once witnessed the trial of a case in 160 CONDUCT OUT OP COUET. which some shippers sought to recover back from a rail- way an alleged overcharge by the latter. The suit had been brought in the county where the produce was shipped, while the charges had been paid in a distant county by the factor of the shippers. The counsel for the railway de- murred on the ground that the court did not have juris- diction, as it was enacted that suits against railways be brought in the county where the contract had been made. He argued that, if the railway was liable for the overcharge, ■it was upon the contract implied 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 plaintiffs' counsel conceded in reply that he might have sued in the county last mentioned on the implied con- tract, but he averred that the law had implied another contract for his benefit, which was that the railway should not charge above the charter rates, and that this was im- plied or made in the county where the produce was re- ceived by the railway; and that the gist of his action was a breach of this last-mentioned contract. Now whatever the reader may think the law to be, this dodge, as it were, of the plaintiffs' counsel will illustrate that issues of law presented may be evaded, and others tendered in their stead. § 235. So much for simple plans. We must glance again at the complex plan. It embraces more than one issue or point of controversy. It may present both ques- tions of fact and of law, and it may directly meet the issues raised by the other side, or dodge them as we have suggested. The same plan may meet the issue on some of the points of controversy and evade it on others. The instance of the ejectment by A against B given above in PLAN OF CONDUCT. 151 this chapter illustrates this. Such plans are of infinite range both in copiousness and variety, and the subject becomes familiar to the practitioner only after long ex- perience. § 236. If you observe veteran lawyers you will see that generally their plans are more straightforward and less complex than those of their juniors. The simpler the plan can be made the better, provided nothing important be sacrificed. The lawyer must weigh everything. His acu- men and judgment must find and reject all the trivial and slight and include all the good. For instance, if, when defending a surety, he could support by evidence the ille- gality of the consideration of the contract ; that the debt had been paid ; that the principal had been indulged by the plaintiflf to the detriment of the surety ; and that the right of action is barred ; — he should plead every one of these points and prepare on all of them. He is wrong to throw away a single chance of success. But if he can only maintain one or two, let him dispense with the rest. The simplest plan that is exhaustive of all your resources is the desideratum. It is more easily understood and retained in mental grasp, and therefore more surely executed. Noth- ing so enfeebles a lawyer as to cultivate a tendency to make every possible point. Reflection, observation, and practice shoidd teach him the difference between the select positions carefully to be attended to, and all the other mat- ters which will be rightly disregarded. But we would not have him hypercritical and over-nice. While he should discard everything of unimportance he ought not to be too severe a judge against his client. He should give him the benefit of all reasonable doubts, to use the language of the criminal law. 11 162 CONDUCT OUT OF COURT. § 237. We must especially note the attention that weak points deserve. It often requires great exertion and extra- ordinary tact to cover them. Thus a policy on the stock of a mercantile partnership had, after being assigned, been sent to another State for collection, where certain creditors of the firm — which, bear in mind, had failed in the mean time — contested the validity of the assignment as against them. The counsel of the assignee, who under the State decisions had to show that the assignment was for a good consideration and after the occurrence of the loss, dis- covered that his client once held a demand against the firm for which he took the individual note of one of the members and that the consideration of the assignment was the payment of this note. The contesting creditors were not aware of this fact. They were confident that they could prove the assignment had been made after the ser- vice of their garnishment, and thus get rid of it. In this they were mistaken, as the counsel for the assignee had ascertained from the subscribing witnesses to the assign- ment and from certain agents of the insurance company to whom the policy had been presented after the assignment. But if he called these subscribing witnesses they might under cross-examination prove what was the consideration of the assignment, that fact being within their knowledge. This would be prima facie to place his client in the pre- dicament of a separate creditor, who could take nothing of the firm assets until all of the firm debts were paid. He provided this way around the difficulty. The assignors and subscribing witnesses residing outside of the juris- diction, he availed himself of the rule established by the decisions that he could prove the execution of the assign- ment by proving their handwriting. The assignment re- PLAN OP CONDUCT. 163 cited that it was for value, which under the authorities was prima facie proof of the consideration required to be shown. He proved the handwriting, and also that the as- signment had been seen by them before the garnishment was sued out, by witnesses who knew nothing of the con- sideration. So the ugly adverse fact was never disclosed to the enemy and the assignee collected the policy. § 238. But then you have weak points that it is im- possible to conceal, and if you cannot defend them you will lose perforce. We will make one of the most cele- brated of American cases serve as an illustration. The Commonwealth had pro%'ided almost irrefragable proof that the human remains discovered in a furnace which had been in the exclusive use of Professor Webster since the disappearance of Dr. Parkman, with the murder of whom the former stood charged, were those of the latter. The counsel of AVebster wished to associate Choate. The latter was convinced of the impolicy of contending that Parkman had not died in the presence of Webster at the time and place laid, and he could not be persuaded into adopting the proposal of the counsel to prove that the former was living for some while afterwards and had been seen at many different times in the streets, — a fact which was denied by his own family, the people of all the world to know it if it existed. The great lawyer insisted that the killing should be virtually admitted. But the defendant, his advisers, and his friends were set against this. They did not employ Choate ; and they rested the defence upon disputing the identity of the remains and any participation of Webster in the killing. They ran their heads against a stone wall, and the prisoner died at last under the hands of justice, having confessed the homicide. 164 CONDUCT OUT OF COURT. § 239. Now let us hear what was Choate's plan. It is given in his own words, in a subsequent conversation with Judge Lord : — " There was but one way to try that case. When the Attorney General was opening . . . and had come to the discussion of the identity of the remains, . . . the prison- er's counsel should have risen and said, substantially, that, in a case of this importance, of course counsel had no right to concede any point, or make any admission, or fail to require proof, and then have added, ' But we desire the Attorney-General to understand, upon the question of these remains, that the struggle will not he there. Assuming that Dr. Parkman came to his death within the laboratory on that day, we desire the government to show whether it was by visitation of God, or whether, in an attack made by the deceased upon the prisoner, the act was done in self-defence, or whether it was the result of a violent alter- cation. Possibly the idea of murder may be suggested, but not with more reason than apoplexy, or other form of sudden death. As the prisoner himself cannot speak, the real controversy will probably be narrowed to the alter- native of justifiable homicide in self-defence, or of man- slaughter by reason of sudden altercation.' " He then said, ' The difficulty in that defence was to explain the subsequent conduct of Professor Webster,' and he proceeded ... to show that the whole course of the accused, after the death, could be explained by a single mistake as to the expediency of instantly disclosing what had happened; that hesitation, or irresolution, or the de- cision, ' I will not disclose this,' adhered to for a brief half- hour, might, by the closing in of circumstances around him, have led to all that followed. Having concealed the occur- PLAN OF CONDUCT. 165 rence, he was obliged to dispose of the remains, and with the facilities aiforded by his professional position." ^ It is now a wonder that the plan was not adopted. Though it never had existence beyond a proposal which was scornfvdly rejected, we believe that it will add as much to the future renown of Choate as any of his great- est orations. § 240. The last is an illustration really of a right theory rather than of what we mean by a plan. Still it is so close to our present subject as to be in place here. For if the plan you adopt is founded on a bad theory, it must needs be bad. There are difficulties which often confront you for a long time, but which you can at last get around. Thus a plain- tiff had no other means of making good the most of his account than by a witness who had been his clerk when it was made, and who was now in the defendant's employ- ment. The facts had to be corkscrewed out by a long examination, and by reason of the witness's stubborn re- sistance the plaintiff's case was left with such feeble sup- port that the jury disagreed. But the plaintiff had found his deliverance. When the witness was turned over for cross-examination the opposite counsel began by asking him to point out the items which his employer disputed. In the presence and hearing of the defendant, the witness in reply to the question selected out of the long bill of particulars only four. These the plaintiff could prove by other testimony. At the next trial he proved the question and how it was answered in the hearing of the defendant, and this was held by the court to be an admission by the latter of all the items but the four. Then having proved 1 Neilson, Memories of Rufus Choate, 18, 19. 166 CONDUCT OUT OP COURT. the four, the plaintiff rested. This time the defendant could not escape. § 241. We have not space for further illustration. But we remind you that you ought to conceal, if you can, the existence of your weak points, by reticence, bluff, feints, or whatever ruse will serve your turn ; and when conspicuous difficulty is most menacing and your adversary swears that he has you on the hip, look about you in tranquil search, and you will often find safe retirement or a sure road to victory. You must be fully aware of your necessities, of your resources, and of the operations of the adversary, sure in applying legal rules and evidence which make for you and quick to find expedients and shifts to compensate for the advantages which you must sacrifice. All this is an unknown art to many of the profession. It is well for the young lawyer to get an inkling of it at the outset of his career. He is not to balk the right by concocting fraud. But he ought to learn that the most righteous cause often requires to be fenced by wiles or rescued by stratagems, and these then become the instruments of justice. § 242. Now as to what we have called the third ele- ment of litigation. We nlay remark that it often runs into the other two, and we have therefore now and then treated it unconsciously in the foregoing ; and we must in sev- eral places later on, go over some of its remaining details. We begin here by distinguishing between persons and actions as causes of favor or disfavor. The fonner di- vision is much more easy to handle than the latter. We know at once the different people who as parties attract or repel sympathy. Thus a counsel for a non-resident woman suing a rich defendant was right to avail himself of the first opportunity to prove that his client was born PLAN OF CONDUCT. 167 in the county where the case was trying. The widow who brings a civil action for the homicide of her husband, es- pecially if she is poor and has several children, is generally a favorite with juries. But your client may belong to one of the preferred classes, and yet his part in some trans- action arouses the feelings of people against him. In- gratitude, coldness towards friends, avaricious demands, fraudulent or oppressive conduct, disregard of the common sensibilities, — such are some only of the things we are now considering which may seriously damage a cause otherwise strong. The use to be made of the predilections for or against certain persons or actions just mentioned is an im- portant lesson. We take for granted that the preparation has given all of them in the particular case due attention, § 243. How will you have them efficient when they make for you ? and how will you break their force when they are opposed ? The answer to the first question is found mainly in two particulars : you must support them by at least an appearance of merit in law or fact, and you must abstain from urging them immoderately and too zeal- ously. If you stand upon them alone the instructions of the judge will generally be decidedly adverse, and the jury may be ashamed to follow their inclinations. Even if you win and hold against the motion for a new trial, the court of errors may set aside the verdict with such determined promptness, or even with such directions, that you are deprived of all hope. You must learn the art of giving prominence to the legal and evidential resources of your case while you seem to allow the others to put themselves forward of their own accord. § 244. We will give an example of the good effect of moderation in attacking a transaction which was closely 168 CONDUCT OUT OP COURT. akin to forgery, — one of the most disreputable of crimes. A lady of respectable standing had brought suit on a promissory note. The plea was the statute of limitations, with the further allegation that the date of the note had been altered. The plaintiff's counsel claimed that his cli- ent's character was wantonly impugned by the defence, and he seemed to regard this position as his trump card. The defendant's evidence was circumstantial, making a weighty case, but not conclusive if the plaintiff's honesty was unassailable. If there had been alteration it was fraudulent, and to establish such an alteration would have under the code prevented a recovery, even if the note was not barred. The counsel for the defendant, with some risk of not being able to establish clearly the date for which he contended, and thus support the plea of the statute of limitations, disclaimed any intention to allege that the al- teration was fraudulent. This good lady, he urged, merely did what she thought was prudent and right ; that is, she tried to keep her note from going out of date. He got the verdict. The foreman told me that all the jury at first leaned to the plaintiff, deeming the plea almost libellous, but in consequence of the disclaimer mentioned they could consider the evidence without bias, and at the last they unanimously agreed that the plaintiff had altered the note with a dishonest purpose. § 245. We insist especially that you do not press your advantages too hard. Here is perhaps the best place to find good examples of the effectiveness of that suggestive understatement which Scarlett insists upon in the speaker. If you collect a great store of facts, and make an elaborate presentation by your evidence of the acts which you would PLAN OF CONDUCT. 169 have the jury stigmatize, you are always in danger, except in cases of the most marked and pronounced type, of ap- pearing to persecute, and of exciting thereby sympathy for the persons assailed. § 246. One of the most delicate problems of all conduct is how to guard those parts of your case which are exposed to the censure of the feelings. It is all-important that you fully understand your weakness. Of course you will care- fully look for all the evidence that will color the particular transaction in your favor or dissipate an adverse misappre- hension of it. You will be wise to enlist a stronger preju- dice or passion on your side, as the defendant, in the illustration just given, vanquished the popularity ordinarily attending the case of a lady by adroitly setting against it the abhorrence with which fraud is universally regarded. Or you may form an alliance with a strong party or a pop- ular cause. A decisive effort somewhere else, raising an issue which makes irrelevant the point you fear, or which draws off the force destined for its assault, may be your policy. Sometimes a persistent ignoring is all that you can do. I have seen this shift succeed against great su- periority on particular material points. Especially do we advise you to add to and strengthen your evidence indus- triously, as the confidence of the adversary in his emotional ascendency will usually make him negligent, § 247, The general conclusion to be derived from our discussion is, that in forecasting your operations you must be as much alive to the effect which the facts on each side will work upon the feelings as you are to the maintenance of your propositions of law and evidence. Often, as we have already hinted, your case will find the jury indifferent. But there is a large proportion of serious litigations — per- 170 CONDUCT OUT OP COURT. haps more than a fourth — in which emotion is a potent factor. It often turns the scale unconsciously to the jury and lookers on, who all are sure that the verdict is fairly won by the evidence. It is the business of the lawyer to discern these subtile influences, and also to know the orbit of manifest excitement. The required talent will hardly ever rise to the sure vision with which he detects legal and evidential weight ; it will rather, at its highest, belong to what we denominate instinct. Yet the talent can be trained, as the amendment of the born orator shows. And we now leave the special treatment of the subject, by saying you must not rest in marshalling the evidence and points of law, however resistlessly you may seem to put them. Scheme also to have the feeling excited by the case help your side. § 248. We have in the foregoing brought out the gen- eral idea of Plan of Conduct. We are now to go through a series of minor parts of the subject which are of great concern to the practitioner. We begin with secrecy, the value of which we have already hinted. No prudent general will in ordinary cir- cumstances betray to the enemy his intended movements. In litigation, secrecy is not so important. There are many controversies where a practising lawyer will see everything material belonging to either side at the first glance. The issues are so simple, the law so plain, and the evidence so manifest, that it is idle to essay concealment. But in cases of a different kind, where the facts are manifold and the governing law hard to find, and where there are evi- dently great stores of evidence at the command of the ad- versary, you will be blind and foolish to publish your plan. Your case is entitled to all the advantage which you can PLAN OF CONDUCT. 171 lawfully win. You are not to forge precedents to dupe the judges or to suborn witnesses to hoax the jury ; but youK client can rightfully exact of you that you procure for him the most favorable judgment possible under the law as the judge holds it to be, and the evidence as the jury see it. You may obtain 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 it is sustained by the proofs adduced, is yet decidedly against the weight of that which could be adduced. You should get this decision or verdict, provided you get them honestly. If you succeed by superior con- duct you have done right, though the real right of the case is against you. You will hardly ever have these victories in the cases last described except by keeping your cardinal propositions of law and fact to yourself. § 249. But there are cases where you do well to dis- close your plan. Thus Choate said before the trial of Pro- fessor Webster that the counsel of the latter should put forth some theory of defence in order to allay the rising popular excitement. This is an instance where weakness and infirmity might possibly have been helped by the pub- lication advised. Sometimes you will find your hand so strong that it will appall your adversary when he sees it. This is often the case when you are arrayed against fraud, oppression, or the other instances of baseness which draw upon themselves the instant condemnation of all honest judges and jurors. § 250. The prudent general secures beforehand his way of retreat to be used in case of disaster. Every device possible to diminish risk and uncertainty must be resorted to in the conduct of litigation, and the preparation should 172 CONDUCT OUT OF COURT. look beyond the rencounter, and provide, if it can be done, the means of obtaining a new trial when one has lost. As the lawyer becomes more and more familiar with the case, he will find suggested along its whole track how his adver- sary or even the judge may be surprised into some action to serve the purpose just mentioned. Perhaps he is aware of certain peculiar views of the law entertained by one or the other which he may turn to account. The author thinks from his own observation that the most of his brethren, even when conducting important cases, trust rather to their own ingenuity during the trial to provide a ground for an- other, than to a rightly premeditated plan. It is far bet- ter to reinforce the ingenuity, however great, exercised during the short time that the court is engaged with the case, with the usually greater results of long deliberation made beforehand. During the trial the mind is too in- tensely occupied with the principal business to attend much to anything else. § 251. We will now give two examples of premeditat- ing a ground for a new trial. While A, a young lawyer, was preparing an ejectment for the plaintiff, he apprehended that it would be attempted to examine himself as a witness against his client. This was because of the connection of the opposite counsel with a case tried not long before and recently reported, as it had been carried to the court of errors, in which case this coun- sel had gained a great victory by making a witness of the plaintiff's lawyer, who testified without objection that he and his client did not have authority to use the lessor's name. A had two demises in his declaration. It is un- necessary to narrate the facts which made him desire that the defendant should offer him as a witness. Suffice it to PLAN OF CONDUCT. 173 say that A felt sure that his testimony would not put him in worse plight, and he could think of no surer ground of a new trial in the event of an adverse verdict, an event which he feared because of his inexperience and his opponent's ability. As he would waive his point by not objecting, he resolved to make a frivolous objection which he believed would not be sustained by the court. On the trial, after the plaintiff made out his prima facie case, supporting only one of the demises laid, and had closed, the defendant's counsel offered A as a witness to prove that the suit was brought for the exclusive benefit of the particular lessor whom he believed to be the real plaintiff, although the demise from him had not been supported by proof, and against whom the defendant had a good defence ; 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 unmeaning was overruled with some warmth, and A was forced to tell that the last-mentioned lessor was his real client. There was a hard contest upon the evidence. The de- fendant did not connect the lessor, for whose sole benefit he had proved by the lawyer, as recited, that the suit was proceeding, with his defence 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 argued that the admission of the evidence had violated the rule of law protecting confidential comunications between client and attorney. Had A objected on the ground which he ex- pected to use in support of his motion for a new trial, — as the rule in that State now requires, — the excellent judge would have at once sustained the point, and another per- 174 CONDUCT OUT OF COUET. son present who would have been a competent witness would surely have been thought of by the defendant. This witness at the next trial was in a distant State. The judge was led into his mistake by too quickly assum- ing that the court of errors had decided in the case men- tioned that the counsel was compellable to testify.^ Had the real incompetency been stated this delusion would have vanished, and had the other witness been examined an adverse verdict could hardly have been set aside. The plaintiff at last recovered his land. § 252. The second example is more ingenious. I gath- ered it from an argument which I heard in the Supreme Court of Georgia between two of the ablest and cunning- est lawyers that I ever knew.^ The statute permitted a complainant in a bill in equity to waive discovery and enacted that after such waiver the defendant's answer was not evidence. In this case the complainant — who was a remainderman — had exhibited his bill against thetenant for life, alleging a forfeiture of the life estate by reason of the waste of the defendant. All in the bill that could be said to be the waiver men- tioned was the statement that the complainant could prove his allegations without the oath of the defendant. The case had been tried by a jury, as is the custom in Georgia. The counsel for the tenant for life had con- tended below, as his adversary stated, that, discovery having been waived as to the particular allegations just mentioned, some of these being material and not having 1 Adams v. McDonald, 29 Ga. 571. Stephens v. Mattox, 37 Ga. 289, is the case from which the example given in the text is taken. 2 Woodward v. Gates, 38 Ga. 205. William Dougherty and B. H. HUl were the counsel opposed. PLAN OF CONDUCT. 175 been proven, the complainant's case was not made out. But under the instructions of the court the jury had found against the defendant. He moved for a new trial ; and it was the assignment as error of the judgment refusing the motion which I heard argued. Several points were dis- cussed ^\'ith zeal and ability ; but a new trial was granted the tenant for life on the ground more strongly pressed than any other, that discovery had not been waived ex- pressly, as the judges held such waiver must be, and therefore his answer was evidence, and it had not been overcome by two witnesses. There was an apparent, but not a real, waiver of discovery. This resistless attack upon the defendant 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 plan of his adversary, who had the ingenuity wholly to reverse his position and still hold on to his case triumphantly. § 253. As we close this subdivision we remind the stu- dent that a lawyer who is expert in setting verdicts aside is a dangerous antagonist. The quality implies so much of readiness and foresight that its possessor usually wins a larger proportion of cases upon the first trial than the average of his brethren. § 254. The lawyer is often puzzled to decide whether his attack or defence shall be bold or not. Sometimes he is on the unpopular side, and violence will repel instead of attracting sympathy. Again he will often conduct cases where timidity will ruin him.^ All the counsel that I can 1 Miles W. Lewis, of Greene County, Georgia, who died in 1880, was a lawyer whose natural gifts for his profession were out of all proportion to his small ambition. I was often with him or on the other side. I came at 176 CONDUCT OUT OF COURT. give him in these matters is, that he should be guided by the circumstances and his knowledge of human nature. Generally a conduct fortiter in re, suaviter in modo, is the best of all. § 255. A difference in the spirit of offence and defence must be considered. There is a natural advantage of the latter, which was noted long ago by the Romans. Thus they said : " If the one holding the affirmative does not cast the onus by his proof, the adversary, though he show nothing, will prevail."^ "The necessity of proving his case is always upon him who sues." ^ And they said, still more acutely, " When the right of each litigant is obscure it is customary to give judgment against the plaintiff." ^ The most apparent advantage of the offensive is that its course can be accurately premeditated, while the other must often be in peril because of a mistaken anticipation of the in- tended operations of the assailant. If you observe a large number of the profession you will find that you may divide them into two classes, placing in one the lawyers who attack better than they defend, and in the other those who defend better than they attack. Occasionally you will see a member of the bar who will nearly always be found of counsel for the defendant, while you note another who is so prone to action that he seems to get all the cases which demand the aggressive. Mr. Parker tells us : "Not a great many years ago, a leading lawyer at the last to discover his peculiar forte, which, as I expressed it, was that he knew better than any of us when to hully and when to heg. 1 ' ' Actore enim non probante, qui couvenitur, etsi nihil ipse praestarit, obtineat." Cod. 2. 1. 4. 2 " Semper necessitas probandi incumbit illi, q^ui agit." Inst. 2. 20. i. 3 "Cum obscura sint utriusque jura, contra petitorem judicari solet." Inst. 4. 15. 4. PLAN OF CONDUCT. 177 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 of going on term after term fighting cases for corporations with Choate to close on me for the plaintiff? If I have fifty cases, I shall not gain one of them.' " 1 § 256. We will now try to show what are the essentials of a good defence. In many cases you have no opportu- nity beyond a direct reply. Your part is mere resistance. You only meet the adversary and try to hold your case on the cardinal points. You never drop the defen- sive, relying all the while upon the general issue alone. Your purpose is merely to draw the game ; and much ingenuity may be shown here. I regarded it as high praise which I once heard given a lawyer who nearly always avoided taking an initiative, though he was in large practice. A rival who was often opposed said of him, " He usually acquiesces in your positions and beats you by adopting your theory of the case." The common judge or juror is two-sided. Ordinarily he is inclined to let matters remain in statu quo and save himself the exertion of setting them to rights. This vis inertiae, as it were, can be turned to great account in the management of litigation by an ingenious practitioner who is so full of it that he always has a plausible reason against any pro- posed change. The other side shows itself when you hear even a stranger, perhaps as you walk the street intent on your business, make complaint against another. It may be that money has not been paid as promised ; it may be a woman asserting to a man that he has abused her trust. You pass on believing that the charge is true, although 1 Eeminiseenees, 53. 12 178 CONDUCT OUT OF COURT. you heard it denied. Your experience has strengthened the inherited tendency, for yon have noted that far more than half of the bills presented in society and of the claims sued in the courts are just and ought to be paid. It is this last-noticed side of human nature which generally gives the superior morale to the attack in litigation ; and there are advocates in which it is always uppermost in such contagious potency as to bring their hearers in ac- cord. As Shakespeare surmounted the heights both of tragedy and comedy, the ideal practitioner would be per- fect in offence or defence as the circumstances dictated. And we see that the average practitioner has a high de- gree of skill in both, though he is better in one than in the other. § 257. But there is a defence which in its nature is offensive. As Ulpian said, "He brings an action who stands upon a plea [other than the general issue], for wheu the defendant uses such a plea he becomes really a plain- tiff." ^ But the resort to the offensive is not alone by means of an affirmative plea. While relying on the gen- eral issue, if you marshal the proofs to overwhelm the main witness of the plaintiff, you are acting on the offen- sive as decidedly as the plaintiff was when he opened. Your purely negative plea is supported by an aggressive, realizing it may be Napoleon's saying, that a strong attack is the best defence. We have mentioned the natural in- clination of men to favor the aggressive ; and also that it can be thoroughly planned beforehand. This last is the reason why the advantage is usually with the attacking 1 "Agere etiam is videtur, qui exceptions iititur, nam reus in excep- tions actor est." Dig. 44. 1. 1. The bracketed words in the translation are necessary in order to fit Ulpian's language to the pleading of our day. PLAN OF CONDUCT. 179 column in warfare. It has something definite and premed- itated to do. The other side 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. If chances are equal and you give it to the adversary, he will beat or draw if he makes no misplay. You should turn your defence into a real attack, if you have good ground of a cross-action at law or in equity. The plaintiff controls his action. He can dismiss and renew, or shift to some other remedy or forum, and avoid trials until his opportunity is ripe, but the defendant who is nothing but a defendant only parries his adversary pushing for a trial by showing some provi- dential cause. Even when your legal position is mere denial, carry some cardinal point of the plaintiflF's case by aggressive disproof, if possible. I have seen more bat- teries effectively masked and more surprises successfully laid under the general issue than in any other place. § 258. So then we advise that you never overlook the advantage of the aggressive. It may be legal, as when you are really plaintiff, or it may be evidential, as when you assail the proofs of the other side. The plaintiff should hold to the initiative, and keep the move through the entire conduct if he can. And the defendant should make an aggressive defence whenever the case permits it. The moment his aggression begins he has the move, and if it has been planned judiciously and executed skilfully he may win the victory. An unaggressive defence requires more vigilance and far more sudden promptness of decision and action than an attack.^ It is only to be adopted when 1 In the Epithalammm of Catullus, — an amabcean poem, — the maid- ens sing first and the youths merely reply. The advantages to the former 180 CONDUCT OUT OF COUET. there can be no other. Still, as it must be made now and then, it should be carefully meditated by every lawyer. Fancy yourself assailed by a boxer and you do nothing but parry his blows. This is the unaggressive defence. If you catch him off his guard and knock him down, this is aggres- sive defence, and much safer for you than the other. § 259. That the opening attack of the moving party must be premeditated ; that he must anticipate the mode of resistance that will be made, and provide the means of maintaining his lodgment first won and of carrying bis advance victoriously on; and that the other side must either stand upon the general issue, both as plea and on the evidence, or make an active and offensive move- ment ; — this justifies the notice we have made of this branch of the subject. These operations must be care- of having the initiative, and the hard straits of the latter, who must an- swer instantly to the premeditated words of the maidens, are well expressed by the youths in the following stanza : — " Won facilis nobis, aequales, palma parata est, Adspicite, innuptae seoum ut meditata requirunt. Non frustra meditantur, habent memorabile quod sit. Neo mirum, penitus quae tota mente laborant. Nos alio mentes, alio divisimus aures: lure igitur vincemur ; amat victoria curam. Quare nunc animos saltern convertite vestros, Dicere iam incipient, iam respondere decebit." This passage is translated as follows by Prof Eobinson Ellis, of Univer- sity College, London : — " No light victory this, comrades, ready before us. Bnsy the virgins muse, their practised ditty recalling, Muse nor shall miscarry ; a song for memory waits us. Rightly ; for all their souls do inwards labor in issue. We — our thoughts one way, our ears have drifted another. So comes worthy defeat ; no victory calls to the careless. Come then, in even race let thought their melody rival ; They must open anon ; 't were better anon be replying." PLAN OF CONDUCT. 181 fully prepared, and, what is of more importance to us here, they must be wisely planned. § 260. We have noted above that it is better sometimes to put forth, in some sort of a public proceeding in the case, the line of defence. The neglect or improper use of such an opportunity has often caused irreparable damage. It is proper, therefore, to consider the topic again as a part of the subject of this chapter. § 261. The lawyer residing in a retired corner of the country is often surprised to find that the leading facts of an exciting case circulate widely from mouth to mouth. Though they are mixed with much fiction and exaggera- tion, yet they nearly always retain enough of veracity to uphold in some measure, when they are investigated on the trial, the opinion which they have previously produced. And in those communities situated on or near railway lines which now constitute the bulk of our population the news- papers are eagerly read, and every incident of such a case is discussed by the people as soon as it comes to light. If there has been but a partial disclosure, and that of unfavor- able evidence, such a decided prejudice against the defend- ant may be formed that it cannot be overcome. A prejudice of this kind is not to be prevented by canvassing and talk except when the party's relatives and friends are numerous and influential. The better way is to give a satisfactory explanation of the unfavorable facts, supporting it if need be with good evidence, either at the examination by the magistrates, or upon an application for bail, or on some other occasion in court which permits. Of course you must have a real mastery of all the essentials, and a the- ory so true or plausible that it will become stronger by examination. 182 CONDUCT OUT OF COURT. § 262. Now and then it is desirable to suppress investi- gation and discussion if possible. 1 remember the case of three persons charged with having murdered a man whose dead body had been found at an early morning hour in a public part of a town. They had borne good characters. For several weeks after the killing there had been no sus- picion of them. The case, to use a popular phrase, had been " worked up " by a detective. The evidence was cir- cumstantial, consisting of very many minute links, only a few of which were in the knowledge of any particular witness, and aU of no seeming importance until they were collected and arranged. When the arrest was made there was an outbreak of deep indignation against the detective. The defendants did not waive an examination and oifer bail, as they could have done under the statute. And so the counsel for the prosecution put together all of the disordered bits of evidence, and the whole was carefully taken down by the magistrate. Public sentiment was revolutionized immediately, and the defendants were com- mitted. Had the examination been waived, the prisoners could have easily given bail. And the evidence would not have been recorded. Had they not been in jail, it would have been at least a year, considering the state of the docket, before they would have been brought to trial ; and it might have been longer, there being no clamor against them. In that space of time many of the facts would have been forgotten, some of the witnesses might have died, others have removed beyond the jurisdiction, and still others — not committed irrevocably — might have had their mouths stopped by pity or influence, and an acquittal of all would have probably been the end of the matter. As it was, only one was saved ; and some of the better PLAN OF CONDUCT. 183 part of the community always believed that every one of the three was innocent. § 263. It may be said that where your case is hard to defend and your client enlists much influence in his behalf it is almost always the right policy to defer as long as you can giving the adverse witnesses an opportunity to testify. In a few months or even weeks their heat subsides, they come in contact with those in sympathy with the defend- ant, and at last when the State puts them upon the stand they have somehow really become witnesses for the defence. § 264. We must say something as to continuances. The grounds are prescribed by the law. If a material wit- ness is ill, or some other cause exists, the court has no dis- cretion and there must be a postponement or continuance. But many times you would put off the trial even when you have apparently collected all of the evidence. Thus, just after a homicide has been committed, the excitement against the defendant is often so strong that he will surely be convicted if brought to trial before it subsides. And in other cases you have a presentiment, which is by no means the tempting whisper of procrastination, that you will be- come stronger by waiting. This occurs especially when you are defending persons charged with crime upon cir- cumstantial proof, of which I will give a striking instance from my own experience. § 265. A shopkeeper had employed B, an ingenious workman who lived near to make him a new cash drawer. Its mechanism was such that screws securing the front piece could only be removed by a particular sort of tool. About a month after the drawer had been made, the shop- keeper, who slept in an adjoining room, when he awoke in 184 CONDUCT OUT OF COURT. the morning missed his pantaloons. The outside door and the door communicating with the store-room were both' open, although he had fastened them just before he lay down. The drawer was gone. After a short search he found it not far from the store, but of course without the money which he had counted the night before. He left the drawer and went back into the store. A few minutes afterwards he saw B looking at the drawer. Then B, who was almost drunk, sauntered into the store. He was wearing a sack coat, and in one of the pockets the shop- keeper saw the peculiar sort of driver necessary to unscrew the drawer. He stealthily took it out, and holding it up before B said: "You stole my money last night, and now here you are trying to face me out with a show of fearless innocence. If it were not for your good wife and her relatives I would get a warrant against you at once. Leave, and never come about me again." B did not re- ply, and slunk away with a guilty look. The bystanders believed that B was guilty, and as his character was not first rate the community accepted their opinion. But an old man counselled the people not to condemn too soon, saying that, while B might possibly pilfer something to eat when he was hungry, yet he did not have the courage to break the outside door, pass through the room of the storekeeper, who, as he knew, always had fire-arms to hand at night and was a brave man, and then go to work at opening the drawer without having locked the door be- tween him and the storekeeper as he could have done. But the old man was unheeded, and it was resolved that the grand jury should pass upon the matter at the next term of the court. A very bold burglar, always operating alone as it ap- PLAN OF CONDUCT. 185 peared, had broken into several houses in the neighbor- hood and carried oif valuables from each one. He had been pursued several times, but without effect. His horse had been seen, and could be identified from its unusual appearance, but no one had ever seen the face of the rider. A few months after the cash-drawer had been rifled, a man mounted on the noted horse was seen going towards the town where the shopkeeper lived, where he would probably arrive just after dark. He did come at the time expected, and unawares he rode into the midst of a party waiting to apprehend him. He resisted, and he was shot from his horse. The horse was taken, and when a light was struck the rider was tracked by liis blood from the place where he had fallen to a fence beside the road. The fence was bloody. He could be traced no farther, and he never was found. But the pantaloons of the shopkeeper were seen on the other side of the fence, and they were stained with fresh blood. And in a haver- sack tied to the saddle of the captured horse were some of the contents of the drawer, and also certain articles taken from the houses when they were entered as just men- tioned. Thus the truth came out at last. It was plain that the old man was right, and that the entry of the store was the exploit of the daring burglar. Had there been an indictment of B, his counsel, of better insight than the crowd clamoring for an immediate prosecution, would have left no means untried by which the case could be contin- ued and time given for developments. § 266. Again, after even the maturest study of the case you feel that you have not mastered it.^ And there are 1 Even gifted judges who have considered the arguments of able counsel,, now and then need much time to find the true answer. The following 186 CONDUCT OUT OF COURT. other reasons to be considered. I have known cold- blooded lawyers to take the chances of the death of ad- verse witnesses whose testimony had not been perpetuated. I knew a shrewd and successful advocate who would try his bad cases and would not try his good ones at the October term in a county where the people always took a more than usual interest in the political campaign, then near closing with a State, Congressional, or Presidential election. It behooves the lawyer to stand ready, if he can, with a good cause of continuance. He is not to prepare a perjured showing. But by always keeping his eyes about him he will generally possess the enviable election of try- ing or not trying. " It is said when Schomberg was told that the enemy was advancing and was determined to fight, he answered, with the composure of a tactician con- fident in his skill, ' That will be just as we may choose.' " ^ § 267. And it is the business of the lawyer preparing to provide against the projected continuance of the adver- striking instance, from the experience of Judge Bleckley, is given in his own words : — "The case of Carswell v. Schley, 56 Ga. 101, involved the oonstrac- tion of a marriage settlement. It was argued at July term, 1875, and by imperative requirement of the Constitution had to he decided either at that term or the one next ensuing. The court deliherated until the very last day of the latter term, and was still as far as ever from a satisfactory con- struction of the instrument in controversy. As the hour of adjournment approached, the pressure of the case became intolerable, — especially to that member of the court to whom it had been assigned for special study. In an agony of perplexity and indecision, he walked the floor, meditated, and suffered. All at once, as if by a sort of inspiration, the correct construction occurred to him. On communicating it to his colleagues, it proved as satisfactory to them as to himself, and the case was decided accordingly. Neither in the argumeijt nor in consultation had there been any reference made to the view which presented itself so suddenly, and which finally controlled the case." 1 Macaulay, History of England, Chap. VIII. PLAN OF CONDUCT. 187 sary, if possible. It is not enough that you can accept or decline an offer of trial, but you should be able to force one upon your adversary when you desire. You may suc- ceed if you discover in time the ground on vs^hich he relies for a continuance. The law may allow counter showings, or admissions of the expected proof of absent witnesses. Or the showing when scrutinized may be demonstrated to be only apparently good. Or there may be some reply which may avoid the showing. Thus, on a bill in equity to recover a tract of land and for an account of the mesne profits, the complainant, feeling that he had a certain case and being very anxious to try, met a strong showing of the absence of witnesses to disprove the alleged profits of the land by striking out the part of his bill which claimed them. As the defendant was insolvent, the complainant made no sacrifice. § 268. So much for the subject of continuances, only we must say that no lawyer should cultivate a slowness to try his cases. There are some who always recoil, and their ingenuity in devising continuances is exhaustless for a long while. The accumulation on many of the dockets, the great impatience with jury duty, and the insufficient judi- ciary force everywhere, make it nearly always uncertain when even a case where both parties desire it can be tried. In such a state of things the lawyer who is too prone to continue may after a while be practically out of business. § 269. We have already given the subject of remedies much attention. It deserves another glance from this standpoint. Sometimes you need several remedies. Thus under the statute it was very doubtful whether it was the business of the Ordinary or the County Commissioners to grant a certain license. An applicant against whom there 188 CONDUCT OUT OP COURT. was great hostility should have applied to boih, and then taken separate proceedings to review each judgment refus- ing his application. For the time allowed was so short that, when it was decided he had applied to the wrong tribunal, it was too late to apply to the other. And there are cases of ambiguous right where it is proper that you have diiferent claimants litigate ^ari^assw. But there is another important standpoint. A dexter- ous use of a new and unexpected remedy often proves very embarrassing to the adversary. See if you cannot make a decisive swoop upon him with an injunction, receivership, removal, or levy. I have known a railway to surrender at discretion to a plaintiff who had blocked its business by garnishing all the merchants along its line to whom 1 it habitually carried much freight. § 270. Sometimes you have a group of connected cases, where orie should be managed with a view to the others^^/ Thus there may be several defendants indicted for a grave offence, and each one may be entitled to a separate trial. Or there may be suits against a railway by different passen- gers, all of whom have been injured by the same casualty. And the connection may not be so intimate as supposed in the last two sentences, for one case may involve but a part of the facts of the other. If you can have one tried first, you may discover important secrets ; or you may win it more easily than you can the others, and discourage your adversary or secure the good opinion of the public ; or you may profitably defer a show of your own strength until it is too late for resistance by the other side. If your desire be no more than to sound the judge and recounoitre the adverse positions and evidence, it is better to begin with a case in which you have least at stake, or where the adver- PLAN OF CONDUCT. 189 sary is weak, or where you are sure of being invincible. AVhen it is your aim to bring public opinion to your side with the verdict, by all means have the first encounter where your advantage is very great. Thus, in the instance just mentioned of suits by passengers, for the defendant you would prefer to commence with a professional man, who puts an extravagant estimate upon his diminished capacity, rather than with a poor woman claiming compen- sation only for serious hurt to her person and great pain and suffering. § 271. As an example of attaining the third object in the enumeration just made, we give the following. A young man was indicted for murder. His defence was a very strong one, but by reason of the popularity of the deceased a great excitement was raging against him in the public mind. While this was at its highest, a suit for divorce was commenced by that one of his counsel who had borne the principal burden of preparing his case, on the allegation of adultery of the wife committed with the client. The evidence supporting the suit being very weighty, and much of it having got in circulation, the excitement mounted into a fury which threatened to end in lynching. By skilful fence the criminal case was post- poned for more than two years. In the mean while the libel had become ripe for trial. One of the counsel for the defendant in the indictment led for the libellant, and this connection gave him opportunity to try the criminal case before the divorce, when the odium of the killing had been almost supplanted by that of the other charge. The defendant was acquitted ; and in due time the libellant succeeded. Had the order been reversed, the exposure made by the plaintiff's evidence would have in all proba- 190 CONDUCT OUT OP COURT. bility hung a millstone of inveterate prejudice around the neck of the young man. § 272. In Georgia, joint defendants in a criminal case may be tried separately upon the motion of either the State or the defence. When there is a severance, the State can elect which one is to he first put on trial. This election is a great advantage to the State ; and it can be avoided only by a good showing for a continuance by the particular defendant so elected. On the trial of one of the defendants, the others can testify. If they testify for the prisoner, that is an advantage to him of severing. Oftentimes, to avoid more than one trial and to give the defendants the privilege of testimony just mentioned, it is agreed that while all shall be tried jointly each one shall have the others as witnesses. It is my observation that this agreement is usually advantageous to the defendants in two respects. If one or two of them are of good character or have a very strong case, there will frequently be an ac- quittal of all ; and if the defendants are numerous, the jury will compromise by acquitting some and convicting others, even where the evidence against all is strong. § 273. There was the same issue in two civil cases. The defendant got a verdict at the trial of the first. ~A long and somewhat confused document had been put in evi- dence by the plaintiff, which the adversary had not time to consider closely, the exigency demanding it having occurred suddenly by reason of an unexpected turn in the trial. The plaintiff moved for a new trial upon various grounds. His most satisfactory one was that the verdict was against this document, and his motion was granted on this ground. Had he postponed the hearing of the motion until after the trial of the other case, he would in all probability have won PLAN OP CONDUCT. 191 the latter ; for the defendant was very confident that the document was favorable until the adversary's argument of the general proposition that the verdict was contrary to the evidence changed his mind. He then set to work and looked up other proof, by means of which he finally pre- vailed in both cases. § 274. For all cases closely related to one another, as explained above, there should be careful forecast in the plan of conduct. It will nearly always help you to have the selection of the one to be tried first. And the use of the trial to make discoveries of fact and the views of the adversary, to divert attention from defenceless points, to sound the judge, to steal a march and achieve the first success, should be well premeditated. Means of post- poning the other cases may be found. The counsel en- gaged should be carefully studied. The one leading on the opposite side of the preferred case may not be in the others, and he may press for immediate trial and have such force of character as to effect an acquiescence in his desires. Or your wish, if its real reason be cleverly concealed, may be attained by the consent of your adversaries. The subject is too much neglected by all but the most thorough practitioners. Many times the average lawyer is not aware of the bearing which one of his cases has upon another until he has blundered into a premature show of his hand or made his attack in the wrong place, after which he sees that, had he tried the other first, he would have gained both or lost but one. It is not enough that each case be well understood. The need is that every member of the group be studied in its relations to its com- panions of witnesses and other evidence, of legal positions, of peculiar strength or weakness, as for instance in respect 192 CONDUCT OUT OF COUKT. of the character of the parties, of counsel, and of many other things which will suggest themselves to the practi^ tioner whose eyes have been opened to the importance of this matter. § 275.'^ Closely akin to the last subdivision is the securing of all possible alliances for your client. Other people may be similarly interested while they are not parties. Their co-operation will often help greatly, revealing new facts, adding influence, and softening opposition. Sometimes their interest had better be kept secret until you have won a decided success, and again it may be well to proclaim it early. It now and then occurs, that after litigation passes a certain point there is a divergence of the interest which was united before. Here by a communication to your old enemies, demonstrating their present community of inter- est with you, you may propose such wise conjoint action as will turn them into the Jjest troops of your side. Reflect and look about, and you will soon find in your own practice many illustrations of what we have said in this sec^on. § 276i One of the last things in the plan to be matured is the settlement of what we may term the order of trial ; that is, the arrangement^ of your law points and the mar- shalling of your proofs. / The former may be dismissed with this mere allusion. The other demands a short com- ment. We will begin by illustration from a blunder. A prisoner was put on trial for murder. The killing had oc- curred in the midst of a large collection of people, nearly all of whom were hostile to the slayer ; but as it was sud- den and attended with great excitement there was but one of the bystanders not related to him who could prove that he gave the fatal stroke. The defence was that he was PLAN OF CONDUCT. 193 protecting the life of his infirm father. If the defendant introduced no evidence, he would have the last word to the jury. The counsel for the State, who unduly desired this privilege for himself, ordered his proofs with a view to force the defendant to introduce evidence. He proved the killing only, and, relying upon the presumption of malice therefrom, he rested. The father then testified that, while he was unarmed, the deceased renewed a former quarrel with him, tried many ways in vain to provoke a blow, and at last commenced an assault. The witness struck back in self-defence. The deceased began to use his knife. Some of the friends of the latter struck the old man from the other side. One of his sons came up, but he was pros- trated by a cudgel. While the father guarded against the gleaming blade in front and was under a rain of blows from behind, the other' son, the defendant, rushed into the fray, killing the deceased afler»a brief .encounter and then instantly turning his bloody knife upon the other comba- tant, who was still beating his father. It thus appeared that the son's sole object was the deliverance of the father fi-om his extreme peril. The old man passed a long cross- examination without damage, and the effect of his testi- mony, in spite of his relationship and unpopularity, was very great, as it seemed to raise the curtain which the State wanted to keep down and explain the motive of the act. The State replied with voluminous and apparently credible evidence contradicting that of the father, but she could not displace its deep lodgment. § 277. Had the counsel for the State introduced at the first much of that which he had reserved for rebuttal, he could have given to his theory of the killing the telling support of the first impression upon the minds of the jury. 13 194 CONDUCT OUT OF COURT. But he well knew the defence relied upon, as the father had made a statement under the statute when he was pre- viously tried on the same indictment and acquitted, and he knew further that nearly any particular one of the by- standers would testify to at least a minute fact in some wise verifying the narrative of the father. This made him fear that, if he undertook to go beyond the mere killing, the prisoner would draw out in cross-examination sufficient to justify him in dispensing with evidence for himself. § 278. We may say that, if your case for the plaintiff is doubtful, you should premeditate resting only upon as strong proof as you can make. And this is almost univer- sally the right policy in criminal prosecutions. But where much of your evidence for the plaintiff is self-contradictory or open to other serious attack, it may be expedient to as- certain the evidence on wihich the defendant will rely in time for you to cull from your own that which serves to overbear your antagonist without hurting you. Some effi- cient lawyers, who are generally as strong on one side as on the other of any particular kind of case, seem to do all of their premeditation after they have announced ready. They show a wonderful quickness and ingenuity which are often overprized. If you note them closely, you find that they frequently lose for the lack of something which a little forethought would have supplied, and further that they hardly ever thoroughly try a case until by chance they have opportunity to try it the second time. The young lawyer should teach himself to arrange beforehand all of his positions as to decisive points of law and evidence. He must not try to predict the minutiae of the adverse case nor all of even his own. While he prepares for that PLAN OF CONDUCT. 195 which can be ahnost unerringly predicted, he must also cultivate the ex tempore readiness a high degree of which is always found as a characteristic of the successful trial counsel. A definite direction and a general outline are all that should be included in the plan. If this is done with prudence and practical insight, and if experience has devel- oped self-reliance and inventiveness, the lesser operations will in the main be conducted aright. § 279. The plaintiff, or the party maintaining the af- firmative of the issue, usually has the right to begin. The defendant may sometimes acquire it by confession and jus- tification. Again, where one has the initiative, he may be deprived of having the last word to the jury by the failure of the other side to introduce evidence. We note that many lawyers take pains to secure both the right to begin and the general reply. I think that usually in practice the value of the first impression upon the court with evidence prima facie satisfactory is underrated, while the value of the conclusion in the argument is overrated. Both advan- tages are to be sought after. But either one can be bought too dear. A defendant at law may turn himself into a plaintiff" in equity by a bill giving his adversary advantages that he did not have before, and it is a common observa- tion that the concluding argument to the jury is often obtained by a fatal sacrifice of evidence. § 280./3Ve insist that the plan be clearly grasped and fixed in the understanding. Nothing conduces so much to this end — especially in complicated cases — as that it be neatly drafted. That may largely be done in the arrange- ment of your proposed proofs. / § 281. In conclusion of wnat we say of the essentials, we urge that, though this is a long chapter, its length is 196 CONDUCT OUT OF COURT. not sufficient even in this small work to represent the rela- tive importance of its subject. The essence of our lawyer is in how he fashions, anticipates, and contrives as to the points on which the event will turn ; the unerring judg- ment of his adoption or rejection of materials belonging to every one of the three elements, or of means that are pro- posed ; the consolidation of his proofs in strongest array ; his happy provision against the as yet unpublished counter preparation ; the exquisite tact by which he covers the vulnerable parts of his evidence and commands those of the opposite, keeps back unfavorable and brings out fa- vorable law questions, and steers clear of the shoals of obloquy into which he draws his adversary ; his Napo- leonic audacity in rightly aiming his attack upon seem- ingly impregnable positions, — yes, this is the true sphere and arena of the trial practitioner. A right plan of con- duct is the eye to preparation, to the opening of the case, superintendence of the evidence, argument, and gather- ing the fruits of victory. During the time of the classical Roman law the jurisconsult — that is, the case-answerer — was highly exalted above the forensic orator, ^nd we have reached a time when the lawyer who is very able in plan of conduct far excels in sway of business and stand- ing at the bar the mere advocate, however much honey he may let flow from his tongue. / § 282. We will now treat somewhat at random of some other topics which we are in doubt whether to place in this chapter or in those immediately preceding. § 283. Sometimes you can help your case by procuring special legislation for it in matters not hampered by the Federal or State Constitution. Thus the legislature may remit a forfeiture to the State before the right of some PLAN OP CONDUCT. 197 person to it has vested by reason of a judgment rendered in his favor. § 284. 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 and decline to arbitrate good ones. / Arbitrators, both profes- sional and lay, are over-prone to compromise ; and if the right is manifestly against you, still you will nearly always be awarded something in an arbitration. But it has been my observation that the poor, the weak, the infirm, the widow, and the orphan, succeed better in their cases when the whole country can note the trial from beginning to end. To leave the case of an inexperienced man of submissive disposition who is matched with a shrewd adversary to the decision of laymen, is generally to make the strong man stronger and the weak one weaker. Yet there are cases involving the most delicate matters which should never be publicly investigated if it can be avoided. The whole community would be scandalized at the consequent expos- ures. When the honor, the happiness, or the domestic peace of your client is at stake, you must govern him with a high hand. His property and the amount of your fee should be postponed to the more precious interests. § 285. Here is par opportunity for recommending ami- cable settlements.-^ Let it be your always kept rule, except in those cases wh'ere delay is perilous, never to bring an action or file a defence until you have been refused a com- position that you regard reasonable and right. Ask the other side to confer with you ; solicit an oflPer ; be ready to oiFer terms yourself. \ Always get from your client as large discretion as possible. The disease of our judiciary is slowness. The parties grow old in litigation : witnesses 198 CONDUCT OUT OF COURT. die ; the death of a party often entails inextricable confu- sion ; and there is still more where 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, better for the parties who have other affairs claiming attention, better for the lawyers, better for so- ciety, that there be as speedy settlement as possible of all cases that can be settled. Remember the almost uncon- scionable sacrifices which a shi-ewd business man will often make in order to avoid the courts. I lean decidedly against arbitration in general. References to the counsel of the parties are better, but there is" in them also too much compromise of certain rights. ^ An informal settle- ment with your adversary's lawyer is preferable. / If you can meet each other as gentlemen, and not as sharpers, in- tending 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 cele- brated lawyer whom I commended above,^ habitually made more effort to settle cases than any of his contemporaries. If you were on the other side and believed to be favorably inclined, he would sound, you as soon as he fell in with you ; and if he found the way clear, he would disclose his hand with great frankness. Then he would consider what you had to say. After brief reflection he would begin, " Well, this is the right of the case," and he would proceed to state what he conceived it to be. He always conceded you something for the sake of peace, 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 in the practice ; PLAN OF CONDUCT. 199 and I often thought that the greater part of it was the aecumnlation of fees which he had received in such cases. Nothing could 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 the chances of doing worse are so and so. Your time and your peace are worth more than this probable concession. I advise you to settle as is proposed ; but I tell you that you com- mand me while I can only recommend to you." The cli- ent generally heard this httle harangue with weariness, and before it was half done had given him full powers. He who rejected his proposals nearly always had reason after- wards to repent, for it was but seldom in such a case that he failed to recover more than he had offered to be content with. ,/ § 286. / The lawyer should ever be vigilant to discover chances of compromising controversies. / Let him guard himself against a disposition to concede too much, and he should not make of himself a stickler for small things. Let him confer only with the counsel of the other side. Never take advantage of a layman. Seek a foeman worthy of your steel in his lawyer. To procure an inadequate settlement of a litigated matter from a party without the knowledge of his lawyer ought to be made a penal offence. When negotiating, you are to be prudent and careful, for you must not disclose secrets to your hurt. And that which is of the greatest importance is that you shall understand the character of your adversary. If he is tricky or unrea- sonably contentious, you had better do nothing more than make him a definite offer, and inquire for his in the event that he rejects yours. But if he is one of those gentlemen 200 CONDUCT OUT OF COURT. who fill the bar of America everywhere, when you divine that he cannot meet or evade your strength, you may disclose it, and thereby the more speedily effect your purpose. It has been my experience to find that in trea^ ties with counsel for amicable settlements there are less diplomacy and less strife to outwit than in any other attempts at adjustment. BEIEFS. 201 CHAPTER VI. BBIEFS. § 287. After some hesitation we have decided to de- vote a chapter to the subject of Briefs. Were we writing for the English public we should give it only a paragraph, inserted in some fit digression above. The quotation from Sellon made hereinafter would constitute the bulk of what we should have said. That the importance of a brief for the proper preparation of a case for trial at nisi prius is so great, and is so little understood in this country, is the reason justifying this chapter. § 288. The word in the comprehensive sense which prevails in England is hardly ever used in America. Here the lawyer generally calls the skeleton of his law argument his brief. In many parts of the country you never see him provided with any notes except when he argues a purely legal question, and even then you will seldom see him fur- nished with what he calls a brief, unless he is before the court of last resort. You are inclined to believe that, did not the rules require him to furnish the court with his points and authorities, he would there trust to his unaided memory in making his argument. . § 289. In England the brief is prepared by the attorney for the use of the counsel who conduct the trial. The author just mentioned gives the following advice : " The 202 CONDUCT OUT OF COURT. 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 conciseness with perspicuity." ^ Another author of high authority, citing and approving the passage just quoted, says : " Pre- viously to the trial a brief should be prepared by the attor- ney for each party and delivered 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 thereon, and a proper arrangement of the proofs, with the names of the witnesses. The great rule to be observed in drawing briefs, as is well expressed in a late useful publi- cation, consists in conciseness with perspicuity." ^ § 290. The reader thus sees that a brief prepared by an English attorney is much more than a mere enumeration of points and authorities. It may not contain a single one of these and yet be voluminous. It is such a statement as that the case may be therefrom understood and con- ducted. To define it by its essence, it sets forth in an orderly method the whole results of the preparation of the case. § 291. Surely it is not needed that we pause here and demonstrate the good policy of making a brief in the English sense for every case. The merchant enters all his transactions as they occur in his day-book, and at last they are transferred to the ledger, where they are sorted and digested. The lawyer himself keeps his books, in which he can always find a lucid record of any affair between himself and his client or partner. The most ready advocates premeditate what they will say, and if 1 2 SeUon Pr. 459. 2 Tidd Pr. 799. BRIEFS. 203 they do not hold their notes before them while they are speaking they yet have the substance of their speeches well conned and by heart. Shall the lawyer, who is a licensed irregular, who has no appointed times of his own, who is in his office at his hasty preparation to-day and a hundred miles away attending a distant court to-morrow, — shall he who, as fast as he loads his memory afresh, has the contents at once thrust out by others, trust to that battered and ill-treated memory to carry the pleadings, the evidence, the anticipations of the adversary's case and the plan of conduct, without giving it artificial aid ? Could he remember as Niebuhr did, he might dispense with memoranda. 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 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. '0,' said he, 'I never forget any- thing I have once seen, read, or heard.' " Is there an American lawyer who has such a memory ? If there is, we concede that he can manage even his intri- cate cases/without a brief. § 292J If you have done as we desire you to do in your preparation, you have kept memoranda of everything. You have jotted down the controlling legal positions and the supporting authorities. You have notes of your evi-V^ dence and also of that which, you anticipate that the ad- versary will bring forward, f When you see that the close '- of the preparation is at hand, you should make up your brief, which is the final digest of the preparation. / If it is 204 CONDUCT OUT OF COURT. well made, another lawyer could, after giving it a short study, try the case almost as well as you. § 293. To do this important work well requires much ability. Mr, Warren, addressing himself to English at- torneys and solicitors, expresses himself thus : " I cannot quit this part of the subject without suggesting the pro- priety of making logic one of the early studies of those preparing for your branch of the profession. Only con- sider how necessary it is to have some acquaintance with it in order to be able to deal successfully with such cases as I have just been speaking of [patent and copyright 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 adjudica- tion. How charming is it to the finest intellect to have to deal with a brief, however ponderous and disheartening in bulk and 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; dis- figured by no senseless repetitions, no vulgar colloquial- isms, 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 framer of such a brief as I am speaking of ? and who could not have been surpassed even if that very coun- sel had sat down himself to draw up the brief from which he was to speak." ^ § 294. A brief is to be made up gradually. The mate- rials may be long collecting and arranging. Many lavs^ers enter their authorities in a blank-book under the name of 1 Duties of Attorneys and Solicitors, Am. ed. 66. BRIEFS. 205 the case, but you will find it more convenient to have them on loose paper, to be transferred to your^ress-book when they have been finally sifted and sorted./^ In fact all of your notes — those of the evidence as well as of law — , should be made oii_^loose paper. Never write on but one side of the paper, j Your paper-knife and mucilage bottle will save you or your clerk a world of tiresome transcrip- tion if your notes are not written upon both sides, for you can then tear out and insert as you please in any particular page without destroying anything on the opposite page. § 295. We vdll give a pertinent passage from Mr. Bishop : — " There are things which must be taken down for future use. They do not so much occur when one is engaged 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 au- thorities 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 afterwards carried on to go on with the case without a fresh search into the books for what is ^Iready found. This is a labor- saving expedient. " ^ And in a subsequent place he shows the convenience of having the notes on separate slips, each one being labelled with its proper name.^ It is worthy of observation that the distinguished au- thor, in the excerpt given, falls into the American habit of restricting a brief in meaning to the scheme of a law argument. It must be remembered that the lawyer has 1 First Book, § 423. = Toid., § 426. 206 CONDUCT OUT OF COUET. need for a proper system of making and preserving notes of every item of his preparation. In another place, referred to in the foot-note, we have been at pains to show what is this proper system.^ § 296. But now let us go somewhat into systematic de- tail. And, first, the English authorities agree that the brief should contain a copy of the pleadings, or, to use the words of Tidd given above, " a full abstract. " Some contend that there should always be copies. This will probably be preferred in England where the briefs are not prepared by the counsel. Thus Choate is represented as insisting that a person who was to report the testimony in a certain case should set down everything just as it fell from the lips of each witness. Of course Choate would put his own meaning on the evidence, and that meaning might be very small as compared with the volume of the report. An English coun- sel would likewise prefer to abridge the pleadings for him- self. But what is the better for American counsel, who make their briefs themselves ? As the form of pleading becomes year by year of less importance, it seems unnecessary to give more than enough of the substance to understand definitely the issue. Suppose that there is a suit upon a promissory note and the defendant has pleaded non est factum. A short abstract or a copy of the note, as the cause of action, and a note of the defence by name, states the pleadings with sufficient accuracy. And this state- ment is neater than a copy of the declaration and plea, and it is more saving of time to yourself, or to your associate who may have to learn the case from you. But there are many cases where the issues cannot be stated so shortly. Here the pleadings must be meditated carefully so that the 1 American Law Studies, §§ 228-234. BRIEFS. 207 abstract fully present their substance. A lucid abridg- ment gives you a firmer grasp and enables you to bring the court to a more speedy understanding of the case. Of course this work must be correctly done. All of the genu- ine success of the lawyer — his most brilliant achievements of professional skill and his greatest feats of eloquence — are founded upon the utmost accuracy of knowledge of details. MTou should consider your abridgment of the pleadings until you feel sure that it is complete and faithful^ To give the substance of voluminous and ill- arranged matter in the true natural order is a great talent. For instance, how often do we find that a head-note is mistaken in some respect ! A copyist exercises only his eyes, but one who accurately compresses a diiFused and disjointed mass into its smallest intelligible statement has one of the highest talents of the lawyer. We suggest that you attach to your brief copies of com- plicated pleadings, so that opportunity be always afforded you or your associate to decide if your presentation is reli- able and tp correct any of its faults. § 297.'_Next there must be a statement of the case of the client and that of the adversary as anticipated, this statement including material points both of fact and law. , It should be like that of the pleadings just recommended, as condensed as is compatible with clearness. The fault most common here is that the feelings of the advocate un- consciously mislead him. A real lawyer soon learns to sus- pect that every narrative of a client is a misrepresentation in some particulars. Self-interest excites with a desire to paint the case better than the reality. Parties seem often to believe that by doing this they improve their cases. And many lawyers are similarly affected. Even when one 208 CONDUCT OUT OF COURT. is consulting his brethren in the free intercourse which characterizes the bar, it is not always that you hear him put his case exactly. Some detail, slight it may be, or some coloring, is added or omitted. A lawyer had better by far learn habitually to overstate his own weakness and the case of his adversary, and tax himself with the additional inventiveness necessary to meet the imaginary dangers, than cultivate a disposition to sleep in a false security. It is therefore to be emphasized that the statement be fair. The additions which Scarlet made to the brief of the attorney are to be borne in mind. He tells us in his Au- tobiography : — " The mode which I adopted to obtain the facts was to interrogate the attorney when he came with his brief what was the fact in his own case on which he mainly relied. Next, what he supposed his adversary's case to depend upon. Having made a short note of his statement on the back of the brief, I proceeded to discuss the appeal with- out further instruction or meditation. . . . " In like manner, when I began to lead causes in the superior courts, it was my practice to inquire of my junior counsel what were the points on both sides, and to make a minute of those on the back of the brief." ^ § 298. We intend more than the statement of the Eng- lish attorney upon which the case is answered by counsel. What we mean is a presentation of the leading proposi- tions of your side, those of the other as far as you can divine them, and the way in which you seek to avoid the latter. By means of this the trial can be fitly managed and the argument rightly made. Of course it is apparent 1 Memoir of Lord Abinger, 61, 62. See American Law Studies, § 773, for a fuller citation. BRIEFS. 209 that in its final form the statement we insist upon is one of the very- last insertions to be made in the brief. § 299.! The English authorities say that the brief shoulc^ contain the proofs marshalled and a list of the witnesses. / We agree to this, and we suggest that there should b6 added a list of the expected witnesses and proofs of the other side. The list of your witnesses is important. How often have all of us been wearied by waiting in court for some counsel to find out who are his witnesses before he can have them called ! But besides the convenience and econ- omy of preserving the names, there results to you a still greater advantage from keeping these lists. Whenever you open the papers to add somewhat, be it ever so little, your eyes catch these names, — both those of your own and of the adverse witnesses. They are imprinted on your memory, and as you go about following up the many calls which disperse your efforts through a large society, there is no estimating the additional testimony that you will get for your client, and the crippling and checking that you will work to the adversary. A lawyer must always carry his cases in mind, and especially should his recollection of the evidence be full and ready. § 300.1-^Special attention must be given to the documen- tary proofs. / The same arguments made abpye in favor of making abstracts of pleadings apply here^ Even if the lawyer hires copies to be taken, he had better form the habit of adding a short abstract,/ When his cause is at last reached after it may be some years of the " law's delay," with his head full of a multiplicity of other affairs, he will not regret that he has so compressed the volume of the testimony that he can gather it all up at once. U 210 CONDUCT OUT OF COUKT. When the document is of unusual character, as for in- stance a deed containing a condition, and when the issue is on the condition, the abstract should be followed by a note of your conception of its legal force and effect. This will let your associate into your views at once, and he may give you valuable corrections or additions. § 301. You often see the plaintiff nonsuited or a ver- dict returned against the defendant because of a neglect to bring in evidence the existence of which is apparent. The lawyer who is in the habit of putting on paper the proofs necessary to uphold the allegations of his pleadings rarely makes the mistakes just mentioned. He can in no other way so surely come to the trial with complete proofs. § 302. There are some other matters to be thought of. You may anticipate collateral questions. Thus you may be met with serious objection to some of your offered evi- dence. Whenever you can anticipate such objection your ans'VYei; to it should be noted at the proper place in your brief. ; And you should prepare objections to what you anticipate vnll be the proof of the other side. § 303. Cautions to yourself and associate are sometimes proper. Thus Mr. Warren, in the work from which we take so much in this chapter, advises the attorney when the fact authorizes it to make some such memorandum in his brief opposite to the proof as the following : " This witness is exceedingly eager and zealous, and vdll be required to be held with a tight rein." Addressing the attorney in an- other passage, he says : " Be sure to apprise counsel in your briefs of every blot which you think it probable that your opponent may be able to detect in the character of your wit- nesses. This is a matter of great consequence." § 304. These hasty words are only suggestive. The BEIEFS. 211 lawyer can add to them in any particular case by asking himself and answering the question, " What material par- ticular of my knowledge of the facts, or my preparation, does the brief fail to show ? " When a brief, thoroughly and in a right arrangement, contains every item of such knowledge and preparation, it is perfect. / § 305. As we have hinted above^ there should be a neat draft of the plan of conduct., Coinciding so nearly as it does with the statement of l;he case which we have ex- plained in this chapter, it is the key to all the rest. § 306. Lastly, if the brief is voluminous, it should be indexed. The use and economy of the index are so appar- ent that we will say nothing more of the matter. § 307. I now subjoin a passage of considerable length from Mr. Warren. My own differences from his positions have been already intimated. The reader is reminded that he is addressing attorneys and solicitors, who in England never act as counsel. § 308. " Give the pleadings at length ; not contenting yourself with merely indicating their substance and 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 misled by your so doing. The cause often depends upon the very words in which the pleadings are couched, and on which critical issues have been taken. I saw not long ago, for instance, a plaintiff's counsel about to submit to his adversary, owing to the attorney of the former having misled him as to the real nature of the pleadings. He had said as to the only spe- cial plea, 'The replication denies the agreement,' which was proved as alleged in the plea ; but the judge pointed 212 CONDUCT OUT OF COUET. out that the plaintiff stood much more favorably on the record, — his replication being de injuria, — which put in issue every traversable fact alleged in the plea. Now, why could not the replication have been set forth fully and correctly in the brief ? § 309. " Never let a brief go into counsel's hands with blanks on it for names, dates, or sums of money. It not only has a very slovenly, unbusiness-like appearance, but often greatly embarrasses counsel, who may not have you at their elbow to supply them with the necessary informa^ tion. No brief should be regarded by you as complete till you shall have carefully gone over it and filled up every blank ; or if that be for any sufficient reason impracticable before delivering the brief, take care to say as much on the margin. § 310. " When there are two or more briefs, and espe- cially if they be of leng-th, 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 stationer is surely bound to obey your orders in this respect. I have heard a neglect of this matter often loudly complained of, and with justice, as both inconvenient and irritating on sudden exigencies.^ § 311. "In cases of a little more difficulty or impor- tance than usual, you may greatly facilitate the labors of 1 If the briefs are printed, or if the copies are made hy the multiplying mechanical processes lately come into vogue, such as by the use of pads or manifold paper, the pages of all will be alike. But if each copy is to be made by hand, it is well to divide the original into short sections and number them consecutively, for if the copies are accurate the sections of all will correspond though the pages differ. BRIEFS. 213 counsel and enable them readily to do their duty by prefix- ing to the brief a neat analysis of the case, of both plead- ings and facts, referring to the different pages in the brief where they will be found ; and above all giving an alpha^ betical index of the names of the witnesses and the pages Avhere their proofs are placed. § 312. "If you have obtained what you may deem an able opinion upon the case, or even upon the evidence ne- cessary to support it, copy that opinion in your brief for the guidance of counsel at the trial : whom it may quickly put in possession of the true bearings of the cause and apprise them of its difl&culties, timely enabling them better to deal \\"ith them. The most eminent leading counsel by no means regard such assistance as superfluous, but on the contrary welcome it. More than once have I seen them, when a cause was called on before they had had time to read their briefs, as it were devour the ' opinion ' written by some able and experienced junior, and rise soon after- wards wonderfully possessed of the case, especially when engaged for the defendant, § 313. " Whenever your case involves localities let me entreat you to take the trouble of giving a faithful sketch of the locus in quo on one of the pages of your brief or on a separate paper, A single glance at a spirited and faithful sketch of the scene of action will be worth half a dozen consultations. It will fix the matter firmly in your counsel's mind and prevent him from either being confused himself or suffering the witnesses, judge, or jury to be con- fused. Take care also to have several copies in readiness (being able to prove their accuracy) to lay before the jury while counsel is addressing them, — a matter that of no slight importance to your client's interests. A good model 214 CONDUCT OUT OF COUET. of premises or machinery is of incalculable service in giving counsel, and enabling them to give others, a clear view of the case which it illustrates. 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 of counsel or the evidence of witnesses. The judges found it almost impossible to deal satisfactorily with the case ; and at the close of the day, one of them (Mr. Justice Maule), as the court rose, observed : ' In the absence of a model the evi- dence might really all have been read the wrong way.' § 314. " Take special care, however, that your plan or model be fair, — perfectly faithful, — made by a disinter- ested person, with no instructions whatever but to prepare an impartial and accurate representation of the reality ; one which will be acquiesced in by the opposite side and by the witnesses. This will obtain for you credit, with both the judge and jury, for the fair and candid spirit in which you have brought forward your case ; and that credit may serve to turn the scale in your favor in a question of doubt and difficulty. An opposite course of conduct is almost certain to prejudice you in professional and public estimation, and throw discredit on your client and his case, seriously endangering one otherwise characterized by bona fides." ^ § 315. Of course if there are important questions of law in the case, a part of the brief should be devoted to them. For matters easily disposed of, a mere note of a statute, or a late State or Federal decision, or some reliable text-book, may suffice. But where a lengthy examination of statutory clauses and decisions is necessary in order to educe the law 1 Duties of Attorneys, etc., 178 et seq. BRIEFS. 215 \Tith accuracy, you should briefly indicate the substance of the clauses, and the pith of the rulings, and the facts to which they were applied. You will rejoice that you took this extra pains when you come to try your case a long while after the brief was made. If you have contented yourself with mere citations it may require more effort to revive the argument than you can well spare in your limited time. § 316. One only needs to consult the rules of practice in the difiiereut States, and hear the almost universal American use of the word "brief" in the rjestricted sense of a skele- ton of legal positions with relevant authorities, mentioned above, in order to see how widely we differ in the estimate of briefs from the English. The grade of attorneys and solicitors never was separate here from that of counsel. Every practitioner perhaps was ambitious, and arrogated to himself the superior rank. In the mother country it was the duty of attorneys to prepare briefs, but as he was no attorney he would not do the degrading work. Thus briefs seem never to have been introduced into general use in America. That counsel here have direct contact with witnesses and party, and are all the while personally cognizant of every detail of their cases, not learning them at second hand, is to my mind an almost incalculable su- periority of the American over the English system. But we have not- improved our system into what it should be. Our counsel should not alone get up a case better than the English attorneys, but they should also draw better briefs. The practice of law without briefs is as slovenly and primi- tive as the score kept with chalk-marks. Do but note one of our brethren who goes on in this slipshod manner. He becomes a nuisance by keeping in his possession original 216 CONDUCT OUT OF COURT. papers which should never leave the clerk's office. He never recollects exactly the contents of documentary evi- dence, and he often forgets the very authorities on which his case depends. This is all wrong. It is wasteful of time. It is criminal negligence of the client's cause in- trusted. The practitioner should always be able in his office, without any assistance except his brief or the mem- oranda which he has taken, each at its appropriate step in the preparation, to give a clear statement of the case. One who has never tried this careful preparation cannot understand how the making of a sufficient brief facilitates the conquest of the case. This advantage alone is more than compensation for the labor. No attack or defence can be too well meditated or understood, nor can the op- erations of the other side be too well conjectured. And it is just as hard accurately to shape the conduct of an in- tricate case and hold its preparation in your head without a brief or memoranda answering to it, as it is to compose and get by heart a long speech without writing any of it. The feat has been accomphshed. But we know that to write the speech and afterwards learn it is the quicker and better way. § 317. All the papers belonging to a particular case should always be kept together. It is no task to keep them in proper order. First the pleadings, — copies or ab- stracts. Next, the memoranda of the expected testimony, oral or written, of your side and of the other. These to be accompanied by copies of documents, depositions, and all such matters. Then your notes of agenda. Your authori- ties may find place afterwards. Towards the close of the preparation you can intercalate the final statement of the case and add the last draft of the plan of conduct. And BKIEFS. 217 so your brief is complete. You have not missed the time spent in its making. If the cause is difficult and involved, when you recoUect the many times you have referred to this collection, and that it has easily kept you up with all the necessities of preparation, you wonder how you could have done without it. It may look cumbrous and un- wieldy, but to you it is systematic and lucid. You had better not attach the papers together, for if you do not they can be added to or replaced ad libitum in your office, or a particular one, say the citations or the list of witnesses, can be used separately in court and with more convenience. There is no Procrustean model of briefs. They vary with the cases. A particular one should be the accurate miniature of its case. If the case is simple, the' brief will be simple ; if it is complex, all its elements appearing in the brief will make it complex too. § 318. I have to add a last caution, and then I have done with the subject of this chapter.; You are not to cultivate a slavish dependence on your brief as the reposi- tory of your preparation and the record of your anticipa- tions and premeditated plan of conduct. You anticipate and provide for as much as you can in order to have larger supplies out of which to meet on the sudden every exi- gency. The ground and possibly the dispositions of his enemy are known to the general before the battle begins. But he does not essay to fight a set battle any more than the lawyer, for all of his forecast, anticipates a set trial. Neither will be surprised by any action of the other side, however unexpected. The plan of contest of each is not rigid, but is pliant and responsive to even unforeseen needs. The most happy extemporaneous efforts of speech or action are made by men who have the whole business as it were by heart. Observe an old lawyer who comes to argue a 218 CONDUCT OUT OF COUKT, law point. Possibly he has the scheme of what he would say upon paper, A question from the judge presents a new view. The lawyer abandons his prepared argument and speaks only to the suggestions that fall from the bench. And he often triumphantly sustains his case. Why can, he do this ? Because he is thorough master of the sub- ject, and being that he can effectively handle it from any standpoint. And so the practitioner should always be on the eve of trial. His brief, containing a year's assiduous preparation, it may be, will often be abandoned when he is in the midst of the exciting encounter. There have been developments which he did not anticipate, and the entire phase of the case seems changed. But with his skilful preparation he has come not only armed to meet what is anticipated, but armed too for that which is not. If you have never looked into the case till the night before the trial, and you then win it by an unexpected feat after a scaring menace of disaster, you are proud. Your ingenu- ity enraptures you, and you feel that you are a great man. Out of what was that stroke made which laid the adver- sary low ? It was aimed from a knowledge that you had acquired in only a few hours. Perhaps had you come carefully prepared there never would have been that dark hour which threatened you. You might have foreseen and provided against it, or perhaps you might have planned and executed a much more brilliant victory. It stands to reason that you should be more full of resources in a case which you have studied long and well, than in one to which you have given only a few hours' attention. Your preparation and your brief are not for a pre-estab- lished conduct of the case only. They are a training to do your utmost and best wherever and whenever fortune may dictate that you make trial of the adversary. BOOK II. CONDUCT IN COURT. \ BOOK II. CONDUCT IN COURT. CHAPTER VII. INTRODUCTORY. § 319. We have frequently illustrated our subject from the correspondences of the military art, and, as we have said, we are half inclined to entitle this Book " The Tac- tics of Litigation." In war, after the campaign has been planned and the army gathered upon the decisive point according to the manual of strategy, the engagement itself must be fought according to another manual. The former concentrates the greatest possible force on the field, while the latter obtains from the force its greatest possible achievement in battle. And thus in litigation, after a care- ful preparation has brought the parties to prove the for- tunes of a trial, the trial is to be conducted according to other principles than those of preparation. § 320.) Conduct in Court, as we name the subject of this book, is generally called Advocacy. It is the art of having all of your resources to count their greatest in the forensic contention, an4 of impairing as much as you can those of the adversary. 1 To authors and to the multitude it has long displaced the more important division of prepa- ration, and they deem it the only essential. Excellence in 222 CONDUCT IN COURT. advocacy is conspicuous and the crown of success brilliant, for the effort is in public, where many usually see and com- prehend, while on the other hand the most superb prepara- tion will be understood by only the lawyers engaged. A showy counsel who is the attraction of all eyes and ears in the court-room is often but the mouth-piece, and an ineffi- cient one at that, of some hard-working and cool-headed associate who has industriously collected and skilfully grouped the materials of his side and has with the divina^ tion of genius foreseen the adversary's line of operations and provided against it. And yet to manage a trial ably from beginning to end often requires a high degree of spe- cial talent. In the office and consultation-room there is opportunity of procrastination and review, but in court the counsel leading must in many straits reach his conclu- sions by a flash and then act upon them as confidently and surely as if he had been thinking them over for weeks. To open in the beginning the ear of the court and jury to yourself and to close it to your antagonist ; to know when you have done with your witness; to detect at once the hidden inconsistency of the hostile witness with stronger evidence, or his self-contradiction, and decide well whether to leave him as he is for the argument or take the risk of his escape from the toils if he is pressed further in cross- examination ; to grasp thoroughly at all times the entire case made by the other side ; to feel surely, as it were, the leaning of the judge, and to lead him if it is adverse upon other ground or to confirm him if it is favorable ; to read every meaning look of counsel, party, witness, juror, or court ; to remember and forget wisely through the entire course of the evidence and argument; — these are the daily achievements of the ready lawyer. INTRODUCTORY. 223 § 321. And it is rare that the talent to prepare a case and the talent to manage it in court are united each in its highest form. Often both talents are possessed by the same man, though one is generally in decided excess of the other. Thus ISTapoleon was not deemed the match of Moreau, one of his marshals, in tactics, while he was in- finitely superior in strategy and general military ability. There are commanders and lawyers who always have every- thing important cut and dried, and they thereby win a large proportion of battles and cases. Yet many of them are not perfect in their art, for they are unduly disconcerted by unexpected occurrences. In contrast, there are generals who never evince any force of character until they are sur- prised by the appearance of the foe, when they triumph by seducing fortune ; and there is a class of ready and shrewd advocates who defer all serious exertion until the critical moment, and yet their general success is wonderful. § 322, When the average of cases is considered, it is found that each party approaches the trial with considerar ble knowledge — to borrow a term from card-playing - — of the other's hand. There will be, however, a portion of each side unknown or not rightly understood, and many times the event will turn on, the nature or the management of these unknown particulars. The prominent material points will hardly ever be overlooked, and they will be rightly attended to ; but the occurrences which cannot be predicted, such as the miscarriage of an important witness, a case made by the adversary utterly unanticipated in a cardinal particular, and which is the more perplexing be- cause a different one has been prepared against, an amaz- ing decision by the court, — these are the matters which peculiarly call for the tact of the efficient nisi prius lawyer. 224 CONDUCT IN COURT. The faculty now in contemplation is cue of extemporaneous action, and it differs widely from that of a leisurely and well-premeditated preparation. The part played by this faculty in gaining success is greatly exaggerated. Still there is a considerable proportion of cases in which the result will nearly always be determined by the better court conduct. These are where the proofs of each side are pretty evenly balanced, or where the true law to be applied is doubtful, or where right on one side is matched with prejudice and a strong semblance of a claim on the other, or where the facts are novel and the true solution requires more thought and time than can be spared. This catalogue is not com- plete, but it serves to indicate sufficiently the general char- acter of the litigation which specially demands all of the skill of tl)e trial practitioner. § 323t) The best management in court has been gen-v erally preceded by a particularly painstaking preparation. / And such preparation is more important in the cases last enumerated than in all others. Argument is not necessary to prove the great superiority of the adversary who has acquired beforehand the more profound and accurate knowledge of the case to be tried. By reason of his better knowledge alone, other things being equal, he will often discomfit his opponent. Sometimes one will be vanquished where he is the stronger because he has not made the investigation which would have taught him his strength. But we do not say that the same man who has well done, the prfecedent labor is surely the best man to direct the trial. \ The associate who has the highest degree of the extemporaneous faculty described should lead. And he should have thoroughly in his head and by heart the preparation of the case, by whomsoever that has been INTRODUCTORY. 225 made^ The brief, if well digested and exhaustive, and if it IS conscientiously studied, will qualify him for the deli- cate task. This antecedent preparation, the importance of which can never be overrated, as we are now about to use its results, it is well to analyze again in order to have it once more impressively contemplated. It consists in the main (1.) of a most industriously gathered and complete collection of all the materials of your own side ; (2.) of such a collection, as far as has been possible, of those of the other side ; (3.) of a proper classification of all these particulars so as to educe the issues and disclose the right modes of dealing with them ; (4.) . of a plan of conduct which has come out of the other three, — a plan which is firmly set upon incontrovertible facts and law, but which turns with elastic self-adjustability, to meet every unex- pected move of the adversary. § 324. The subjects of the two Books run into one another, or rather the demarcation of conduct out of court from conduct in court is mainly made for the purpose of having the student to understand the whole of Conduct of Litigation. It is in the formation and the execution of the plan that the two cohere so closely that one is but the spontaneous continuation of the other. But the one is not the same as the other. Preparation is the fulcrum of attack or defence. But it must be nothing more. The good tactician is not tied to his preparation ; which with him is only the right beginning, — the planting and fixing of the fulcrum immovably if he can, and the arraying of his columns in their best order, — but which others in- ferior often show by their acts that they conceive to be the end of their work. These drudges are never able to get beyond the brief, which they treat as a report of the trial 15 226 CONDUCT IN COUKT. made beforehand. They will make out the case only pro forma. § 325. After the deal the game is to be played ; after the dispositions have been made, the battle is to be fought. To fight the battle of a case well, one must be master of the case. We say that an author is master of his subject when he maintains his ground against all opposers, each, it may be, attacking in a new and unexpected place. So like- wise of a lawyer who, in trying his case, puts in the whole of his own material evidence and clips off every particle that he can of his adversary's which would damage, who from beginning to end foregoes no advantage, who objects and excepts in the right place and in the right way, and who when the jury retire cannot be said to have over- looked any fair opportunity of offence and protection, we may say that he has achieved a triumph; for it is a triumph even if the adversary wins. In one of his maxims Napoleon says : " A general-in-chief should ask himself frequently in the day, 'What should I do if the enemy's army appeared now in my fi-ont, or on my right, or my left ? ' If he have any difficulty in answering these questions, his position is bad, and he should seek to rem- edy it." And thus the intelligent lawyer has prepared for trial. He has not anticipated everything, — all the de- tails, — for that is impossible ; but he has by repeated self- questionings at last so shaped and mobilized his case that he is ready for any turn during the trial. § 326. We may classify the leading objects of conduct in court as follows : — 1. Your own carefully prepared combinations are to be placed before the court in their best form. 2. You are to see that the adversary gets no advantage of law and evidence which he is not fairly entitled to. INTRODUCTORY. 227 3. You are to use efficiently, as the trial progresses, what further combiuations you may be able to make ex tempore out of materials coming to hand. It will serve to give a clearer idea of the distinction between the nature of preparation and that of the duties here in contemplation, to compare the work of the English attorneys and juniors of which the brief is the repository, and what the leader does with the case at nisi prius. The latter will concern himself with the preparation in order to reject useless parts and rectify mistakes in others so far as he can, but his principal business will be to encounter the adversary on the evidence and law, striving to attain the object^ mentioned at the beginning of this section. § 3274 There ought to be a consultation just before the trial, in which the line of conduct should be agreed upon, and who is to lead should be understood. / The best coun- sel for each particular place should be assigned to it. One lawyer will examine the witnesses better than his associates : if so, the post should be given him, though he is not the leader. Sometimes an important legal argu- ment at some point of the proceedings is foreseen : let it be settled who shall make it. Nothing is more irritating to the thorough lawyer than to see several counsel con- ducting a trial in no concert with one another, where no leadership is acknowledged and each one is trying to show off his superiority to all the rest. In England the estab- lished usage of the profession settles the question of leadership. Here the client can determine it; but it is generally decided by the spontaneous and tacit consent of the associates. The lawyer set up to lead should not be over-anxious to exhibit his authority and superior famil- iarity with and understanding of the case.. 228 CONDUCT IN COUET. § 328. At this consultation the witnesses and the party should be present if possible. Every important detail in the brief should be verified if true, or corrected if not. Especially should the witnesses be attended to. As they have been examined and re-examined before, they can soon be disposed of now. They should be searchingly probed on all material points. ') The legal positions ought to be scanned with close scru- tiny, and the pertinent authorities tested. / In fact the entire case must be contemplated. There often occur changes and new developments to the very, last. Let all such be looked at calmly and boldly, and the right remedy be found and applied. It will be decided whether there shall be contention on the merits, or whether lighter legal force shall be resorted to. Often a well-taken exception will relieve you when you have reason to desire a continuance, but you have no good showing for it. As we have said above, there are many simple issues which are easily come at and which do not require cir- cumstance and parade. They will almost take care of themselves. Laborious examination before and careful preparation after acceptance, well-planned conduct and anxious consultations, are for those of intricacy and diffi- culty. While on the subject of consultations we may say that the associate counsel in all cases which need them, ought to confer with one another at every good opportu- nity during the trial. § 329. We will now say something of selecting the jury, a topic which brings us to the subject of the next chapter. We begin by giving a few cases. A young man was charged with assault with intent to INTRODUCTORY. 229 murder. The prosecutor had been the tenant of his father ; and when the former was vacating, the son discovered that he was maliciously defacing the walls of one of the rooms. High words ensued, and then a fight. The prosecutor attacking with a heavy club was disabled by a well-aimed pistol-shot. All of the eyewitnesses were related to the prosecutor, and their testimony was expected to be very hostile to the defendant. His counsel had but a moment to study the panel, but he so managed his challenges that there were eleven landlords on the jury. According to the theory of the State the defendant was clearly guilty ; but the witnesses, having been ordered out of court, con- tradicted one another, and the defacement mentioned was shown by his admissions to have been the act of the tenant, although he had denied it on the stand. The predominant class upon the jury turned the scale in this doubtful case, and the defendant was acquitted. It was ascertained after the trial that the sons of several of the jury had had quar- rels with their tenants for injuries, done to the premises during their tenancies. § 330. A lawyer had spent several months of every year until after he had been called to the bar at the house of a relative, who lived in a distant part of the county, and he had thereby made many acquaintances among the neigh- bors. This lawyer, who had long resided elsewhere, was suddenly brought to this county to defend a stranger ac- cused of murder upon what seemed to be convincing proof. He noted that those who lived in and near the county seat were strongly inclined against his client, while those be- yond were neutral in opinion. The prosecution were not aware of the facts mentioned at the beginning of this sec- tion, and this gave the prisoner's counsel opportunity to 230 CONDUCT IN COURT. select seven of his old playmates for jurors. By an unex- pected turn, a fact never disclosed before came out in the State's evidence which demonstrated the prisoner's inno- cence. But had not this occurred, the prisoner would still have had much advantage of the State because of the friends of his counsel on the jury. § 331. I once observed the trial of an action for libel against four defendants who had lately been excluded from the Baptist church on charges connected with the case. A large majority of the public sympathized with the plain- tiff, who had a strong case. But the counsel for the de- fendants seemed to know his business, as he got none but active members of other denominations upon the jury, trusting that they would try to make proselytes of his clients. The verdict was for the defendants, and it could not be set aside. ' § 332. The last instance which we will cite is one of careful preparation beforehand. A father and son were in- dicted for murder, and the father had been acquitted. There was so much public feeling against the son, who was the actual slayer, that his counsel was very apprehensive that his strong defence might be overborne. Many of the citizens of the county had become disqualified as jurors because of having heard the evidence at the examination and at the trial of the father ; and the counsel had good reason to fear the consequences of a change of venue. There had re- cently occurred a dissension in the Baptist church, to which the father belonged, and it arose out of an affair in which he was personally concerned. A, a preacher, had stood by the father, and B, another . preacher, had taken the other side. Both of the preachers were popular, the influence of the former prevailing in one part of the county and that INTRODUCTORY. 231 of the latter in the opposite part. A entertained deep sympathy for the defendants, whom he honestly believed to be justified ; but he made no public demonstration. He was a man of unobtrusive manners, but of such transpar- ent purpose, moderate views, and deep insight that his decided convictions were quietly adopted by all who had intercourse with him. It was especially fortunate for the defendant, that in the region where A's influence was the greater there was a larger number of persons not disquali- fied from being jurors. Somehow the prosecution over- looked the dissension mentioned, and did not see that it had silently and unconsciously even to the members passed into a division as to the case of the defendant. But his counsel detected it. He went through the names of aU the citizens capable of jury service, marking every friend of the rival preachers. On the trial many panels were exhausted, and eleven jurors had been selected. Though a few names yet remained on the list, there was but one of a man qualified, ■ as the defendant's counsel knew, and had the prosecution been aware of this they would have challenged him and effected a change of venue. The State put this man on the prisoner. He was of the following of B, but not of inveterate prejudice, and anyhow he had to be accepted. The defendant's challenges had been made so discreetly that this last-taken juror was the only representative of his faction on the jury, while several others of good standing were devoted friends of A. The contest on the evidence and in the argument was close and severe. There was an acquittal, and I always thought that the State failed be- cause the leading counsel for the prosecution — a resident of the county, a member of the Baptist church, and a follower of B — had never discovered the significance for 232 CONDUCT IN COURT. him of the church agitation in which he had taken a prom- inent part. § 333. The foregoing examples have opened up the sub- ject. There are various suggestions of your proper cue. Sometimes you need men of great intelligence or of great ignorance, or of great firmness or the opposite. The char- acter of every one offered — whether he leans to mercy or severity or has other defined traits — must often be consid- ered before you can choose or reject aright. You should keep an eye to religious denominations, political parties, clubs. Free Masons, Odd Fellows, and other societies, the different trades, occupations, and professions ; for in all these one member is generally in sympathy with another. The common prejudices of the poor and debtor class against the rich and creditors, of residents in the country against those in the city, of the people generally against corporations, and others to which we have not time to allude, must be held in mind, to be used or avoided as is advised by your side of the case. And the friends of your client and of yourself, — his and your enemies, the parti- sans of the adversary and the claqueurs of his counsel, — the former are good, and the latter bad jurors for you. You must often exhaust the city directory and laboriously inquire of many people in order to be informed fully, j § 334. No honorable member of the profession will tol- erate canvassing and solicitations among those from whom the jury may come, or any effort to corrupt them after they are in the box. But you are to learn at the outset of your practice, that, if you neglect the study of your panel and the selection of your jurors according to the principles set forth above, a mistrial or an adverse verdict will often befall you when you ought to win. OPEN.NTG THE PLEADINGS AND THE CASE. 233 CHAPTER VIII. OPENING THE PLEADINGS AND OPENING THE CASE. § 335. The case not having been continued or post- poned and being called on, the jury selected and sworn, the plaintiff — the few cases in which the defendant takes the initiative excepted^ — is to open the pleadings and his case. Our practice differs from the English. /^ In Eng- land the junior counsel opens the pleadings, and then the , leader states in detail the proofs of his side, which state- ment is called the opening of the case. / The plaintiff's evidence is then put in, and if the defenHant introduces no evidence the counsel of the former will not be heard again. After the plaintiff's evidence is finished the defendant's counsel makes the defence. If he has no evidence, all that he says will be a discussion of the proofs in order to show if he can that they do not entitle the plaintiff to re- cover. But if he has evidence, besides commenting on that of the other party, he will also make an opening of that which he intends to introduce. When his evidence is closed the leader for the plaintiff has the last word to the jury, called the reply. In America the pleadings and the case are usually opened by the same counsel, and the argument of both sides is 1 See Proffatt, Jury Trial, §§ 212, 214, 215, for the rule whicli settles when the defendant shall begin. 234 CONDUCT IN COURT. i' made to the jury after all the evidence is in. / And it is evident that a discussion of the evidence madenbefore it is adduced and sifted by examination is premature. There is no uniform rule settling which one of the coun- sel shall make the opening for either the plaintiff or the defendant. I have noted a tendency to cede it to the junior ; and I have never seen one counsel open the plead- ings and another on the same side open the case. § 336. We will set out by giving what Mr. Cox says in presenting the English division of opening the pleadings and opening the evidence.-' "The junior opens the pleadings; that is to say, he states to the jury the proceedings through whicj;i the issue or issues have been arrived at which they have to try. This should be done in the shortest and most simple manner. Nothing can be more absurd than to hear, as one often does, a long string of technicalities read to a jury, to whom every second word must be unintelligible and the effect of which must be to perplex them at the very beginning of their task and thus to some extent prevent them from approaching it with such clear intelligence as if it had be^ introduced to them in plain English. . . . ^' Make your statement intelligible to the jury by putting it in an intelligible shape and in language which they can understandr As thus : ' Gentlemen of the Jury, — In this case John Doe is the plaintiff and Richard Roe is the de- fendant. The action is brought to recover the sum of £21 and interest, being the amount of a bill of exchange drawn 1 The first volume of Mr. Cox's Advocate appeared in 1852. It never reached a second edition, and he never puhlished his contemplated second volume. As the book is scarce, we shall quote largely in this and succeed- ing chapters from parts of it which have long seemed to us very valuable. OPENING THE PLEADINGS AND THE CASE. 235 by the plaintiflF upon, and accepted by, the defendant. In answer to this claim the defendant has pleaded, 1st, 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 questions you have to try.' § 337. " But it will be said, perhaps, that however prac- ticable this may be with so simple a case as an action on a bill of exchange, it could not be done where the plead- ings are more technical, as in an action of trespass quare clausum /regit, for instance. This, however, will not be foimd incapable of interpretation into intelligible Eng- lish. . . . Let us make the attempt : ' Gentlemen of the Jury, — In this case John Doe is the plaintiff and Richard Eoe is the defendant. The action is brought to recover damages for a trespass by the defendant upon certain premises of the plaintiff, in Ide, in the county of Devon. The defendant has pleaded, first, that he is not guilty of the said trespass ; second, that he entered the premises in question by the leave and license of one James Brown, who was the tenant in possession of the said premises. To the second plea the plaintiff has rephed that the said James Brown was not in lawful possession of the premises, nor entitled to give such leave and license ; and these are the questions you have to try.' "A statement somewhat in this form might be made with equal ease, however various, complicated, or techni- cal the pleadings, and indeed some such sketch must have been drawn in the pleader's mind or set down upon his notes before he put it into technical form." ^ § 338. Mr. Cox next treats the opening of the case : — 1 Advocate, 335-338. 236 CONDUCT IN COURT. " The pleadings opened by the junior, the leader proceeds to open the case to the jury ; and should you chance to fill this honorable post, you may glean some hints for your task from the following remarks, " As a general rule, the statement of the case for the plaintiff should be calm, temperate, and dignified, orderly in arrangement, lucid in language, and as brief as the facts to be told will permit. , . , You cannot more effectually awaken in the court and the jury a sympathy for your wronged client and indignation against the wrong-doer, than by a simple description of the injury and a careful abstinence from angry comments, personal abuse, and other indications that revenge rather than redress is the object of the plaintiff. . . . § 339. " You will begin, of course, with an account of the parties, who and what they are, and the circumstances that led to the present dispute ; then you will state with precision the nature of the dispute itself, and whether it is upon a question of law or of fact, or both, with the very points at issue ; the one for the information of the court, and the other for the information of the jury, that atten- tion may be directed more readily and surely to your evi- dence as it bears upon these points. Of so much impor- tance is this that you should take some pains by previous preparation to put them into the most distinct shape, and you should repeat each one totidem verbis whenever you introduce your statement and when you close the evidence that bears upon it. Then, taking each of these questions in turn, state in the form of a narrative the proofs you pro- pose to produce in order to its establishment, and in so doing be very careful to show no misgiving about it by anticipating objections, apologizing for defects, or making OPENING THE PLEADINGS AND THE CASE. 237 an effort to give 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. , . . You should reserve your energies and your eloquence for the reply. § 340. I" Strange as it may appear, there is nothing more difficult in the j^rt of advocacy than effectively to open a case to a jury. ,' The proof of this is the rarity of the ex- hibition. How few of our advocates accomplish it to the entire satisfaction of a critical listener ! How few possess the faculty of marshalling facts in their natural order, and taking up and so interweaving distinct threads of a story as to form a clear, continuous, intelligible narrative." ^ § 341. The same author thus advises the counsel who is to open the plaintiff's case : — " It is your object to convey to them [the jury] and to the court a history of the case, so that they may thoroughly understand what is the subject matter of the contention, upon what grounds of claim or complaint you come into court, and the evidence by which you purpose to establish them. . . . You will commence of course with a descrip- tion of the parties, who and what they are, with the addi- tion of any circumstances in the position of either of them which may affect the case by explainijig subsequent trans- actions or aggravating the damages. If locality is any way concerned describe the locus in quo, and, if it be possible to procure it, in all cases use a map for this purpose. The rudest drawing of a place .is more intelligible than any verbal description, and it has the still more important use of at once arousing and fixing upon the story the attention of the jury. . . . 1 Advocate, 335-341. 238 CONDUCT IN COURT. " Having described the persons and the place, take up your narrative at such period preceding the immediate matter of controversy as may be necessary to explain the causes of it, — to use a legal phrase, beghi with the induce- ment. Show how it was that the conflict arose. Then describe minutely, with careful reference to the plan, if there be one, the subject matter of the dispute and the precise questions which the jury will have to determine in relation to it. This done, you will proceed to state your case, the facts and arguments upon which you rest your claim to the verdict. . . . § 342, " Perhaps the test whether you have done all that you should do previously to describing your testimony may be thus put : Have you made out such a case by your facts and arguments that, if you prove those facts and they be unanswered, the jury would be convinced that your claim or complaint was justly founded and would give you their verdict ? " This accomplished, and not before, you should proceed to state the particular evidence by which you propose to establish- the facts you have detailed. . . . § 343. " Nothing is gained, but on the contrary a great deal is lost, by stating to the jury anything you cannot prove. They are not convinced by your speech, but by the evidence by which you substantiate your statement. You cannot hope to achieve more with the most impressible juryman than to bring him to this : ' Well, if you prove what you swy, you will have my verdict.' " ^ § 344. Mr. Cox considers how doubtful or adverse witnesses shall be treated, — advising that the former be opened as such, and that as to the latter you " point out 1 Advocate, 342-347. OPENING THE PLEADINGS AND THE CASE. 239 in the strongest colors the interests that operate upon them, as likely to warp their testimony, not only for the purpose of warning the jury against placing confidence in any evidence injurious to you which they may give, but also to make doubly influential whatever they may say in your favor." ^ § 345. Our author says at the last : " In concluding your opening it is rarely prudent to do more than briefly to repeat [to the jury] the outline of your case, and espe- cially so much of it as goes to aggravate damages, winding up by a calm assertion of your confidence that, if you estab- lish the case you have stated, you will be entitled to their verdict.^/_Anything in the shape of a formal peroration, and especially any display of eloquence at the close of an opening, is out of place and in bad taste, and only permis- sible in a few exceptional cases, of which it must be left to your discretion at the monient to determine." ^ § 346. Having given so much space to Mr. Cox, we must allude to Mr. Harris, The leading points emphasized by him are as follows. The opener is to manifest by his manner his faith in his cause ; he is to refrain from constantly anticipating the other side ; he is not to say such things as "I cannot conceive what defence my learned friend can have," or, " It 's really, gentlemen, an undefended case," — such remarks, as the author has observed, being very often followed with a " verdict for the learned friend who has no case or no defence " ; " the principal thing in an open- ing speech is arrangement and order " ; irrelevant matter is to be excluded ; the statement of the issue and the con- trolling evidence is to be clear ; time is not to be wasted on undisputed matters ; moderation is more forcible than I Advocate, 348, 349. « lUd., 849, 350. 240 CONDUCT IN COURT. exa^eration; no material point is to be omitted; the speaker is not to be too rapid ; and that " Slow, sure, and short, is a good motto for young advocates." ^ § 347. The rule in England, that, if the defendant has no evidence, the plaintiff's counsel will not be heard again, renders the opening far more important there than it is here ; for peradventure it may be the only opportunity of the latter to comment on the evidence. With us the plaintiff's counsel can always make an argument after the defendant's counsel has decided to introduce no evidence, although the latter will in that case have the last word. In England, argument and appeal may often with propriety enter into the opening, while here they would be out of keeping. Our juries only expect a long speech after the evidence is closed. And the strengthening tendency to reserve all discussion and explanation for the argument proper has unduly lowered the common opinion of the purposes of an opening. Time and again do I hear the counsel for the plaintiff, after reading rapidly, and seeming not to care whether he is understood or not, the substan- tial parts of the pleadings, only add that he expects to support the allegations of the declaration by evidence, which he will not now take up their time to narrate. Both the court and the jury need a guide to the issues and the expected proof. You often note that the latter rouse up to learn the facts from the speeches. To the honor of our institutions of self-government and our gen- eral education, our juries are in the main intelligent, honest, and very desirous to find and do the right between contending parties. How can they fitly perform this high duty unless all the preliminary instruction which they need 1 Hints on Advocacy, 6th English ed., Chap. I. OPENING THE PLEADINGS AND THE CASE. 241 is furnished them? How can they understandingly go along with the shiftings of a voluminous evidence, often paralleling the play of a turning kaleidoscope, without some general notion given them beforehand both of this evidence and the issues. Even veteran judges are fre- quently found not to have detected the real question until they hear much of the argument. If they who are trained to listen and whose apprehensions have been artificially quickened are the better for a prefatory outline, much more do the laity in the jury-box require a patient and carefal unfolding of the general features of the case at the beginning of the trial. In quoting extensively from Mr. Cox, and by summarizing the views of Mr. Harris, we essay a correction of the fault mentioned above as too common in America. We hope that a contemplation by the young lawyer of the importance attached to the open- ing in England — an importance which, as we have pointed out, it does not have here — would serve to counteract its undue depreciation in our country. And this explanation being made, we will now proceed to dis- cuss the essentials of a proper opening in our courts. § 348. The pleadings are opened in order to suggest what are the issues. I have noted that often the plain- tiff's counsel leaves it to the adversary to open the pleas. But the cross-examination is frequently directed to elicit facts favorable to the plea, and then there is a re-examina- tion considering these facts again. Such a cross-examina- tion and re-examination are only rightly prepared forJby an opening of the pleas as well as the declaration. LSo it f must be insisted that, after you tell the jury the claim of the plaintiff, you also state the allegations of the defend- ant denying or avoiding the claim. I What we have quoted 16 -^ 242 CONDUCT IN COUET. from Mr. Cox in reference to the treatment of the plead- ings leaves us but little to say upon the subject. § 349. If they are voluminous and intricate they should always be read, though there be an oflFer to waive the reading. But a lucid synopsis of them should first be made orally. No long document should ever be read without a clear though ever so brief statement of the points which it is expected to support. We are talkers by nature and readers by art. The judge and jury both prefer being talked to rather than being read to. After the oral statement recommended when the pleadings are read, the jury will understand even the technical terms, the judge will easily discern the questions of law, and both will receive a complete and vivid presentation of the issues made by the record. § 350. When the rule of law which you assume is novel or may appear to "be repugnant to the current of decisions or the accepted construction of a pertinent statute or sec- tion of the code, it is well to be fuller to the judge than is ordinarily required. As soon as you have proceeded far enough with the record to make it appear that the rule as you assert it to be is material, you should indicate the authorities and reasons which you will handle in extenso in the argument. I have observed that, if the judge in the outset takes position against you on the law, he will often not attend as closely to the other particulars of your case as you would have him. You should always try to win the leaning of the judge at the earliest possible moment in the trial. § 351. We must now consider the treatment of the proofs. Mr. Harris's analysis of Sir Alexander Cockbum's opening speech in the trial of Palmer, charged with poi- OPENING THE PLEADINGS AND THE CASE. 243 soiling Cook, is an instructive chapter to the young lawyer.^ The prosecution had to build on many subtle circumstances. It was a complication that, while Cook had been prepared by antimony, he was killed by strychnine, and this necessi- tated careful explanation of the diverse operations of the two substances and much scientific detail in educating the jury for the peculiar proofs. The speech, for all of its length, is in the main a genuine opening. It is made up of what we may call an introductory historical outline, a painstaking development of the turning questions of fact, and a narrative in little of the evidence. The case was one which in an American court would have demanded a far more detailed opening than usual ; and it deserves study in order to fit the lawyer for such exceptional in- stances. But we are chiefly concerned to note what is proper in .<:ommonly occurring cases. § 352.''' The exact issues having been shown by giving the substance of the pleadings, the first thing tq^do with the facts is to give the propositions of each side. These are what Sir James Stephen calls the facts in issue as dis- tinguished from relevant facts, the latter meaning the proofs of the former. ) Your own propositions should be arranged in the true natural order ; and as a particular one is finished, the counter proposition of the adversary should be given. ; After this statement is finished it is in order for you to" sketch, in as brief an outline as is easily intelligible, the evidence which you propose to ofibr in support of your prima fade case. , It would be an impro- priety to anticipate the adverse evidence and tell what will be yours in rebuttal ; for the defendant can always decline to put in evidence, and whether he will do this and what 1 Hints on Advocaoy, 6th ed., 26S-294. 244 CONDUCT IN COUKT. range his proofs will take are secrets of his own. Remem- ber that, even if the defendant has no evidence, you will have opportunity to comment upon the facts drawn out by his cross-examination and his positions when you make your argument. § 353. When Scarlett had reason to expect no evidence from the defendant he made a fuller opening than usual. But he ordinarily employed the conciseness which we rec- ommend. He says : — " It was my habit ... to state, in the simplest form that the truth and the case woidd admit, the proposition of which I maintained the aflBrmative and the defendant's counsel the negative, and then, without reasoning upon them, the leading facts in support of my assertion. Thus it has often happened to me to open in five minutes a cause which would have occupied a speaker at the bar of the present day from half an hour to three quarters of an hour or more." ^ In most cases the jury can be put in condition for in- telligently following your proofs by a very short introduc- tion, provided it plainly unfolds the grounds occupied by both parties and also gives a lucid narrative of your " lead- ing facts." It is well to hint the favorable character of important witnesses, and especially should you prepare the jury for those adverse to you in interest or feeling whom you must call. And as practice sharpens your insight you will learn what other topics must now and then be suggested in an opening. § 354. It is customary in America for the defendant to open his evidence. The pleadings have already been dis- posed of, and you have nothing to do with them except it 1 See the fuller citation, American Law Studies, § 1082. OPENING THE PLEADINGS AND THE CASE. 245 may be to set the plaintiff's counsel right in some misstate- ment. You are not expected at this stage to comment on the evidence of the advei-sary. Your business is to suggest that which you expect to produce. The opening of the plaintiff, his direct and your cross examination, have dis- closed much of your case, and there is therefore more reason for conciseness in yours than in the opening of the plaintiff. As to most other matters, what we have shown to be essentials in the latter may be repeated here.^ § 355. The last thing which we have to say on the sub- ject of opening the facts is that it should be subsequently aided by a progressive development of your evidence. The late Mr. B. H. Hill, of Georgia, kept his witnesses well in hand by proper questions and a restraint from ex- cursion almost imperceptible, and he .observed due order so closely through his examination that the jury had as little need for an opening as the spectators have for a pro- logue to a well-managed pantomime. § 356. The principle of an opening is fully stated by the great Roman institutional writer in a short sentence. He says : — "When the parties came before the judex they used , to preface the argument by setting forth the case to him concisely and in an abridgment ; which was called causae iconjectio, that is, a compression of the case into a brief ' outline." 2 Our lawyers of to-day can find in this the soul of the 1 The reader may compare Cox, Advocate, 442-448; and the chapter ' Entitled "As to Opening the Defendant's Case," Harris, Hints, 6th ed., 1«1-170, where the subject is more widely distinguished from the opening of the plaintiif than is necessary in America. ^ " Cum ad judioem venerant, antequam apud eum causam perorarent, solebant breviter ei et quasi per indicem rem exponere : quae dioebatur causae oonjectio, quasi causae suae in breve coactio." — Gai. 4. 15. 246 CONDUCT IN COURT. subject, — a summary of all that we have said. ; The real use of the opening is to prepare for hearing witnesses and doeuments, no one of which tells the whole story of the case, and to suggest the issues which would otherwise have to be found by a generalization too burdensome for common judges and jurors. > CONDUCT OF THE EVIDENCE. 247 CHAPTER IX. BEGINNING OP CONDTJCT OF THE EVIDENCE. — THE EXAMINATION OP THE PARTT's WITNESSES. § 357. At the first we make a short sketch of the course of evidence in a trial, and the general principles of its conduct, and after this we devote the remainder of the c|iapter to the examination of one's own witnesses. IJWe start with the familiar rule that the party who holds the affirmative of the issue begins the evidence. He is only to make out a prima facie case, — a subject to be treated more fully hereinafter, — and he can usually re- serve much of his testimony to reply to that of the adver- sary. /The plaintiff having rested, if the defendant does not "make a motion for a nonsuit and prevail, and if he does not choose to stand on the case already made, he puts in such e^ddence as he has to avoid the effect of his adversary's ; when he rests. The plaintiff can then sup- port his own proof where it has been attacked, and also attack the attacking evidence by other evidence. He can now prove no additional facts in issue ; he can only fend off the aggression of the other side or contradict its testi- mony. When the plaintiff has re-established his case he will pause again. The defendant can in turn re-enforce his impugned evidence and disprove the testimony last introduced by the plaintiff. And so the parties may go on 248 CONDUCT IN COURT. and run a parallel to the old course of pleading, to wit, declaration, plea, replication, rejoinder, surrejoinder, re- butter, and surrebutter. The plaintiflf's first evidence cor- responds to the declaration ; the defendant's first, to the plea ; the plaintiflf's second, to the replication ; the defend- ant's second, to the rejoinder; the plaintiff's third, to the surrejoinder; the defendant's third, to the rebutter; and the plaintiff's fourth, to the surrebutter. A standard au- thor says : " After the surrebutter the pleadings have no distinctive names; for beyond that stage they are very seldom found to extend."^ The evidence may be documentary as well as oral. Sometimes it will be all documentary, though this will occur but seldom. § 358. We now take up the examination of witnesses. And while we here quote a passage in reference to those of the plaintiff, we remind the reader that our subject in this chapter is the direct examination of the witnesses on both sides. Mr. Cox says : — "The plaintiff's case being stated by the leader, the examination of the plaintiff's witnesses proceeds. The general rule is for the counsel on that side to conduct the examination of the witnesses in turn, the junior taking the first witness, probably because it was supposed that the leader would require rest after his speech. But this order is somewhat departed from under special circum- stances, as where the witness is peculiarly important or his examination demands peculiar skill, in which case the leadec 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 1 Steph. PI. 59. EXAMINATION OF THE PARTY'S WITNESSES. 249 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." ^ § 359. The author is not aware of any American rule which settles what counsel shall examine. This is one of the discretionary matters which is generally disposed of by agreement at the consultation before the trial. If there has been no such agreement, the counsel whose leadership is conceded either^xamines or directs an associate to per- form the duty. / Other things being equal, that counsel should examine who is best acquainted with the expected proof, if it be at all difficult to elicit. / Generally diflferent parts of the case have been got upby different counsel, and possibly but one of them has had an interview with a particular witness. It is plain that this counsel, if he has the ordinary qualifications, should examine the witness whose narrative he knows. And the author has noted that where the facts are many and intricate and the case so doubtful as to require elabo- rate discussion, it is better for the counsel who is to make the main argument not to examine any of the witnesses. He will then be free to take careful notes, and at every pause he can be casting the balance of the testimony in- stead of puzzling in anticipation over the next witness, or the cross or the re-examination. And while thus playing the part of auditor he can be of great assistance to his associate examining, to whom he will only make sugges- tions of important questions which would otherwise be omitted. § 360. It being decided what counsel shall act, and the 1 Advocate, 351. 250 CONDUCT IN COURT. witness being on the stand, the examination of the latter begins. The pleadings of the plaintiff, his declaration, or his bill in equity, or the bill of indictment, contain certain propositions of fact which must be proved, and the pur- pose of the direct examination of the plaintiff's or the State's witnesses is to prove them, as it is the purpose of the defendant's direct examination to prove the material propositions of fact in his plea or answer. We take for granted that our examiner is lawyer enough to distinguish what is good evidence and what is not. Knowing the ex- pected narrative of the Avitness either from having talked with him or from having digested full instructions of a reliable associate, he will so shape his questions as to elicit the material parts. He is to draw out every bit of that which is favorable to his client, and nothing unfavor- able or as little as possible. But if there is something adverse apparent on the surface, the examiner in chief had better draw it out himself. Thus the witness may be a near relative of the party, or a warm friend, or jointly in- terested with your client, and these facts may be as well known to the adversary as to yourself. It is idle to try to suppress them ; and the one calling the witness will gain credit if he proves them, while it might be used to his dis- advantage if he does not. § 361. But we must not go too fast. It seems better to give an outline of what the counsel should do in com- mon cases. Your ordinary witness is self-possessed if you do not snub or chill him, is honest, and not at all stupid if your questions are put in every-day language. Our first business is with him, and when that is finished we shall deal with the exceptional classes. We premise that you have made a proper arrangement of your proofs, as we EXAMINATION OF THE PARTY'S WITNESSES. 261 counselled above ; anc^Ast you will call your witnesses in corresponding order. /.The material parts of a transaction are generally testified to with best je^Fect by the witness in his own way, if he be started right./ While he is engaged upon these it is usually well nov to divert his attention and stop the flow of his recollection by needless questions. The art necessary is in preparing him for this narrative. If he is a little awkward because of his unfamiliarity with the court-room, you can reassure him by a manner which is kind and considerate, but not oflfensively patronizing as we observe it to be too often. There are generally many small details, such as the relation of the witness to the party, the means of his knowledge, etc., which can be made to introduce him to the jury and their credit, and which, as we have just suggested, can be used to give him ease. § 362. When you have brought him to a matter of sub- stance upon which you must interrogate him, you are no longer to lead him. If leading questions are used they discredit the witness, who seems to give prompted testi- mony ; they sometimes ensnare him into incorrect answers ; and should he reply counter to their suggestions, as he will often do, you yourself are disparaged. Mr. Harris truly says of them that if they are allowed by your opponent " it is generally to your disadvantage." ^ He gives the right rule in these words : " A question, without being leading, should be a reminder of events rather than a test of the witness's recollection." ^ § 363. The following passage from Mr. Cox, showing both the proper use of the questions now under consider- ation, and when and how they are to be avoided, is given for consideration and comment : — 1 Hints on Advocacy, 6tli ed., 38. = jtid., 33. 252 CONDUCT IN COURT. £^The rule against leading questions is properly applica^ ble only to such questions as relate to the matter at issuej__ Whatever some priggish opponent may protest, it is per- mitted to you, and the judges will encourage you in the practice, to lead the witness directly up to the point at issue. It saves time and clears the case, and if you nar- rowly observe experienced advocates you will find that they always adopt this course. For instance, instead of putting the introductory questions, ' Where do you live ? ' ' What are you ? ' and so forth, you should, unless there be some special reason to the contrary, directly put the lead- ing question, ' Are you a banker carrying on business in Lombard Street ? ' and so on, until you approach the questionable matter, when of course you will proceed to conduct the examination according to the strict rule. § 364. "But that rule is not so easily to be observed as you may suppose. Frequently it will occur that you will have need to call the attention of the witness to some- thing he may have forgotten ; as thus. Suppose that you were examining as to a certain conversation. The witness has narrated the greater portion of it, but he has omitted a passage which is of importance to you. We know that in fact with all of us in our calmest moments it is difficult to repeat perfectly the whole of what was said at a certain interview, and if it had been a long one, probably we might repeat it half a dozen times and each time omit a different portion of it, although in either case the omitted part would be instantly recalled to our memories if we were asked, ' Did he not also say so and so ? ' or, ' Was not something said about so and so ? ' But this sort of reminiscent question you are not permitted to put to a witness because it would be a leading question. ... In EXAMINATION OF THE PARTY'S WITNESSES. 253 vain you ask him, ' Did anything more pass between you ? ' ' Was nothing more said ? ' ' Have you stated all that oc- curred ? ' . . . It would flash upon him instantly if it were to be repeated or even to be half uttered. But you may not help him so, and then there arises a perplexity which every advocate must often have experienced, — in what manner can this be recalled without leading ? . . . Your endeavor must now be to suggest indirectly the forgotten statement ; and to do so without violating the rule which in this respect is certainly pushed further than justice and fairness to the infirmity of human memory can sanction. As each case must depend upon its circumstances it is im- possible to lay down any rule to help you, or even to hint at forms of suggestion. But one method we may name as having proved efficacious when others had failed, and that is to make the witness repeat his account of the inter- view or whatever it may be ; then it will not unfrequently happen . . . that he will remember and repeat the pas- sage you require, and omit something else which he had previously stated. But this of course matters not ; your object has been gained and your adversary may take what advantage he can of the difference in the statements. If the story is a long one you will avoid inflicting this repeti- tion of it until other expedients have been tried in vain. It may be added that a single word often suffices to sug- gest the whole sentence ; if you have a quick wit you may sometimes bring out the matter you want by so framing a question that it shall contam a part of the forgotten sen- tence, ipsissimis verbis, but otherwise applied." ^ § 365. We remark as to this quotation that it assumes a more stringent rule than now exists ; and further, that it 1 Advocate, 355-357. 254 CONDUCT IN COURT. exaggerates the difficulty mentioned. You are always permitted to lead the witness to a particular . subject. The question, " Was not something said about so and so ? " which Mr. Cox says is not to be asked, is permissible, pro- vided it is only suggestive of the special thing to which you are trying to direct the witness. That is quite dififerent from the other, " Did he not say so and so ? " which is leading, as it goes beyond mere mention of the subject and suggests the answer desired. The instances given in the last sentence of the passage are by no means as exceptional as they are there represented. The witness's recollection of even the minutest fact can always be drawn out by un- exceptionable interrogation. When he has made an omis- sion you are not to resort to the questions supposed by Mr. Cox to be vainly put, such as, " Did anything more pass between you ? " " Have you stated all that oc- curred ? " They but burn daylight. You must particular- ize. Suppose your witness is testifying to the confession of a burglary. He states most of the details, but he forgets one that you deem of importance as aflfording you opportu- nity of corroboration. You may thus make your question a proper " reminder," — to use Mr. Harris's phrase quoted above : " If the defendant told the place where he got the crow-bar [which was mentioned in the previous testimony of the confession] and how he got it, what did he say ? " It will profit the young lawyer to train himself, while sifting parties and witnesses in his chambers, to draw out all of their knowledge without ever asking a leading ques- tion. When the habit is once fixed he will find not only that he prepares them better for examination in court, but that he has also acquired an effective faculty for the court- room which is too little cultivated. EXAMINATION OF THE PARTY'S WITNESSES. 255 § 366y It is patent that your questions should be ex- pressed iSTplain language and should he as short and clear as is compatible with your object. . You are to make the witness understand you. But this is not enough. By reason of his previous conference with you, he may under- stand when the jury and the court are in the dark. The following passage from Mr. Harris is in place here. " I will give an instance how not to examine a witness. It is an almost verbatim report of what actually occurred recently at a trial when an experienced junior was exam- ining in chief : — " ' Were you present at the meeting of the trustees when an agreement was entered into between them and the plaintiff?' Answer, ' Yes.' " Q. — ' Will you be kind enough to tell us what took place between the parties with reference to the agreement that was entered into between them ? ' This is an instance of verbosity which shows that, in putting questions, long- draion sentences should he avoided. The more neatly a question is put, the better, as it has to be understood not only by the witness but by the jury. All that was neces- sary to be asked might have been put in the following words : ' Was an agreement entered into between the trus- tees and the plaintiff? ' ' What was it ? ' " It will appear even more strange, perhaps, when I say that, after the answer was given by one witness, which was all that was necessary to prove that part of the case, the question was repeated to another with additional verbiage : ' Will you be good enough to inform us what took place upon that occasion between the parties, as nearly as you can, with reference to the agreement that was then, as you have stated, entered into between them ? Please tell 256 CONDUCT IN COUET. us, not exactly, but as nearly as you can in your own way what his exact words were.' " ^ § 367. The following advice of Mr. Harris finds a place here. It is all excellent, except that the liability of the witness to confusion is much overrated. T The best thing the advocate can do ... is to remem- ber that the witness has something to tell, and that but for him he would probably tell it very well ' in his own way.' The fewer interruptions therefore the better ; and the fewer questions, the less questions will he needed. /Watching should be the chief work ; especially to see tKat the story be not confused with extraneous and irrelevant matter. The chief error the witness will be likely to fall into will be hearsay evidence : either he says to somebody or some- body says to him something which is inadmissible, and delays the progress of events. But the witness being very tender, you must be careful how you check the progress of his ' he says,' ' says he,' or you may turn off the stream altogether. Pass him over those parts as though you were pushing him through a turnstile, and then show him where he is ; or as if you were putting a blind man with his face in the direction he wished to go, then leave him to feel his way alone. " The most useful questions for eliciting facts are the most commonplace, ' What took place next ? ' being infi- nitely better than putting a question from the narrative in your brief which leads the witness to contradict you. The interrogative ' yes,' as it asks nothing and yet everything is better than a rigmarole phrase, such as, ' Do you remem- ber what the defendant did or said upon that ? ' The wit- ness after such a question generally feels puzzled, as if you i Hints on Advocacy, 6th ed., 42. EXAMINATION OF THE PARTY'S WITNESSES. 257 were asking him a conundrum which is to be passed on to the next person after he has given it up." ^ § 368. Of course as you should ask as few questions as is necessary, it is folly to press and sift the witness too far. Mr. Harris says : — " Never cross-examine your own witness. . . . You will hear an advocate cross-examine his witness over and over again without knowing it, if he have not the restraining hand of his leader to check him. " Before Mr. Justice Hawkins not long since a junior was conducting a case which seemed pretty clear upon the bare statement of the prosecutor. But he was asked, ' Are you sure of so and so ? ' ' Yes,' said the witness. ' Quite ? ' inquired the counsel. ' Quite,' said the witness. ' You have no doubt ? ' persisted the counsel, thinking he was making assurance doubly sure. ' Well,' said the witness, * I have n't much doubt, because I asked my wife.' " Mr. Justice Hawkins : ' You asked your wife in order to be sure in your own mind ? ' ' Quite so, my lord.' ' Then you had some doubt before ? ' ' Well, I may have had a little, my lord.' " This ended the case, because the whole question turned upon the absolute certainty of this witness's mind."^ To complete this section, we suggest that you can pre- vent your witness from stating unfavorable facts within his knowledge, either by keeping him well away from them, or in case you must bring him near them by so framing your questions and confining them to particular and minute matters as to allow him no scope for answering what you desire to exclude. These unfavorable facts may be the business of your adversary, which you need not do for him. 1 Hints on Advocacy, 6th ed., 31, 32. ^ ibid., 37, 38. 17 268 CONDUCT IN COURT. Often, however, it is good policy, as we have already urged, for you to prove the adverse. To do so may gain credit for an interested witness in more important parts of his testimony and it may create with the jury an eflFective opinion of your fairness. It has also the advantage of taking the wind out of the cross-examiner's sails. § 369. There is a heedfiilness which should never be abandoned. Mr. Cox has a passage on this topic worthy of consideration. " Your questions in examination in chief should be framed carefully and put deliberately. . . . You should weigh every one in your mind before you put it, in order that it may be so framed as to bring out in answer just so much as you desire and no more. . . . The court will soon learn not to be impatient of your seeming slowness when it discovers that you have in fact abbreviated the work by a pause which has enabled you to keep the evidence strictly to the point at issue. They who remember Sir William Follett will at once understand our meaning, for one of his most remarkable and impressive peculiarities was the grave and thoughtful deliberation with which he framed and put his questions to his own witness, and the result of which was that he was seldom annoyed by unex- pected answers, or by additions and explanations which he did not desire." ^ The most ordinary fault which we observe is redundant and ill-considered examination. The counsel believes that in order to exhaust his witness's knowledge he must keep up a long fire of questions, where fewer, properly selected, would be far better. A foolish question is often a snare to your witness. He wishes to oblige you, and he answers 1 Advocate, 364. EXAMINATION OF THE PAETY'S WITNESSES. 259 something which the cross-examination makes good use of. Let it be your aim always to draw out what you desire by the fewest questions and to permit your witness to answer these only. The last hint which we give here is that you should in general follow the prevailing current of the transaction in hand. The chronological order is not to be adopted at all times.-^ It will often be beneficial to bring out prominent and important facts independently, — to make them con- spicuous by isolation. At the close of a considerable nar- rative frequently you must turn the witness back to matters which he has failed to tell. And it may be well to bring about breaks in a long continuity, to recover the attention of the jury, to rest yourself or the witness. When you understand that he is to be sifted thoroughly, that what he says is to be made intelligible and impressive to those appointed to hear him, and that harm to yourself and help to the other side are to be avoided, you keep hold of the light which shows you the true way. § 370. We have nearly finished what we wished to say of the direct examination of the ordinary witness, — the typical American witness, as we may call him. We only add, that his knowledge of facts supporting the prima facie case is to be exhausted. When you think that your task is done, run over his testimony rapidly in your mind, or glance through your memoranda, or inquire of your asso- ciates, to see if anything yet remains to be proved by the witness. Supply all omissions by well-directed inquiries before you turn him over to the cross-examiner. Thus you will avoid having to recall your witnesses. One who 1 Macaulay.the best of all story-tellers, says, "Mere chronological order is not the order for a complicated narrative." 260 CONDUCT IN COURT. returns to the box creates often an unfavorable opinion because of a suspicion that he is now testifying what has been suggested to him. Of course, if you have some com- manding reason you will not fail to recall ; and generally you should take pains to show why you did not question him before as you do now. § 371. Having treated the average witness, we will now devote a few sections to those of exceptional char- acter. " If your witness be timid, it will be your care to restore his self-possession before you take him to the material part of his testimony. This you should effect by assuming a cheerful and friendly manner and tone ; and if you have the art to make him smile, your wit would be better timed than is always the case with forensic jests. Keep him em- ployed on the fringe of the case until you are satisfied that his courage is restored, and then you may proceed with him as with any other witness. But be very careful not to take him to material topics while he is under the influ- ence of fear ; for in this state a witness is apt to become confused and to contradict himself, and so to afford to your adversary a theme for damaging comment." ^ With the last quotation compare the pertinent Golden Rule of David Paul Brown : — " If they [your witnesses] are alarmed or diffident and their thoughts are evidently scattered, commence your ex- amination with matters of a familiar character remotely connected with the subject of their alarm or the matter in issue, as, for instance : Where do you live ? Do you know the parties ? How long have you knovni them ? etc. And when you have restored them to composure and the 1 Cox, Advocate, 361. EXAMINATION OF THE PARTY'S WITNESSES. 261 mind has regained its equilibrium, proceed to the more es- sential features of the case, being careful to be mild and distinct in your approaches lest you may trouble the foun- tain again from which you are to drink," ^ § 372. 'Upon the quotations in the last section we re- mark that it is your business to anticipate the fright or discomposure of the witness by noting his manner and words in the office. Women and diffident men will volu- bly pour out to you their fears of the court-room, if you win but listen ; and listen you ought, to be prepared for their examination or to prepare your associate. If you will accept their confidence you will find them leaning on you as a protector and furnished the better therefrom for the day of trial. But sometimes, in spite of the most prudent anticipation, the witness will be discomposed when he is called, and if so the advice given in the quoted passages is admirable. These timid witnesses often need support. We may especially apply to them what the old authority advises as to all : " They should be well exercised before they are brought into court and tried with various interrogatories, such as are likely to be put by an advocate on the other side. By this means they will either be consistent in their statements, or if they stumble at all will be set upon their feet again, as it were, by some opportune question from him by whom they were brought forward." ^ Your more self-possessed witnesses, as well as those now under consideration, will be profited by rehearsals and severe cross-examination from yourself. And the course advised will also better furnish you for the direct examination. 1 Second Golden Eule. ^ Qiiintilian, Institutes, V. 7. 11. 262 CONDUCT IN COURT. § 373. But to return to the extrarcurial treatment of timid witnesses, we give an example from Webster's prac- tice. He was for a will impugned on the ground that one of the three witnesses thereto was insane. It was noto- rious that this particular witness, a young man of morbid if not unsound mind and great sensitiveness, had once tried to drown himself. He was in so much mental com- motion at the prospect of cross-examination as to this fact that the aissociate counsel had pronounced in favor of not calling him. But Webster insisted that he be allowed to decide the true policy after he had talked with the witness. He contrived an interview. He won the young man's con- fidence, and drew from him an account of his life, the at- tempted suicide, the hearty repentance, and the assurance of forgiveness which he felt. The rest we give in the words of the great advocate, as reported by a biographer. " When about leaving him I told him that I wished him the next day, when I would summon him into court, to go there, and consider me as his friend. ... I said : ' You have the sympathy of everybody ; and I wish you to tell, in answer to my questions, the story of your life as you have told it to me, merely to show to the jury and court the condition of your mind. You may feel absolutely con- fident that nobody shall harm you.' He went into court the next day and told the story so eloquently that there was hardly a dry eye in the court-room. . . . When the young man had left the stand I felt secure in my case ; and it was won upon that single point." ^ § 374. Mr. Cox notices the stupid witness : — " He cannot understand your questions or he answers them so imperfectly that he had better have left them un- 1 Harvey, Eeminiscenoes, 105-110. EXAMINATION OF THE PARTY'S WITNESSES. 263 answered. With such a one the only resource is patience and good temper. If you are cross with him you will be sure to increase his stupidity and to convert evidence that means nothing into evidence that is contradictory and confused. The preservation of imperturbable good temper is a golden rule with an advocate. . . . Entire self-com- mand is his greatest 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 ap- proval, and you must frame your question in another shape better suited to his dense faculties. If bafi&ed again do not retreat, but renew the catechism until your object is obtained. In constructing your questions you will often find a clue to his links of thought by observing his an- swers, and your next question might then, with a little ingenuity, be so framed as to fall in with his train of ideas. Thus patiently treated there are few witnesses so dull as not to be made efficient for the purpose of an ex- amination in chief." ^ / / p S 375.' I will add that tbertrouble with a dull or stupid or uneducated witness is often prolonged because the ex- aminer keeps himself in a region elevated above the com- prehension of his answerer. He must learn to lower to his level^ One who can make children always understand him will know how to deal with a dunce of a witness. We give in a note below an example from an eminent novelist, illustrating how a superior mind can lock itself up to an inferior of even a high degree of intelligence.^ 1 Advocate, 361, 362. 2 In the following passage from Bulwer's "My Novel," Dr. Eiccabocca gins : — " ' For your sake, young gentleman, I regret that your holidays are so 264 CONDUCT IN OOUET. This is the fault of the former. It is easier for the other to understand the superior in intellect, if the latter will only learn how to talk to him, than to understand what an equal says to him on subjects out of his accustomed range of thought. § 376. " There are two kinds of troublesome witnesses whom you will have to encounter in the conduct of a cause, — those who say too much and those who say too little. Of these by far the most difficult to deal with are your over-zealous friends, — your witnesses who prove too much. A very little experience will enable you to detect early ; for mine 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 ceremoniously than before, ' You don't care much for compliments, young gentleman.' '"No, I don't, indeed,' said Frank heartily. '"So much the better for you, since your way in the world is made ; it would be so much the worse if 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 what you refused yourself.' " 'Eh ?' said Frank, inquiringly. " ' Compliments.' " ' Oh — I — no ; but they are well done ; are n't they, sir ? ' " ' Not particularly : you speak to the artist.' " ' "What ! you painted them ? ' "'Yes.' " ' And the pictures in the hall ? ' " ' Those too.' " ' Taken from nature, eh ? ' "'Nature,' said the Italian sententiously, perhaps evasively, 'lets nothing be taken from her.' " 'Oh !' said Frank, puzzled again. 'Well, I must wish you good morning.' " EXAMINATION OF THE PARTY'S WITNESSES. 266 these personages almost at a glance, certainly after a few sentences. They usually try to look wonderfully easy and confident ; answer off-hand with extraordinary glibness and give you twice as much information as you have asked for. . . . Keep such witnesses closely to the point for which they are required, and having got from them just what you want dismiss them, right thankful if they have not done you more harm than good." ^ Compare with this the directions of David Paul Brown : " As to your own witnesses : if they are bold and may injure your cause by pertness or forwardness, observe a gravity and ceremony of manner towards them which may be calculated to repress their assurance." ^ § 377. The counsels of both authors are valuable. I vdll however suggest that it is the business of counsel to know beforehand what is the inclination of a witness. No gentleman of the bar will ever tell one to say anything but the truth ; but he will be remiss in his duty when he finds him in the consultation-room bold, hasty^ pert, forward, or too partisan, not to rebuke and reprove him into a more becoming behavior, and thus rightly prepare him for the witness-box. For all of this precaution the advice of the Golden Rule just quoted must now and then be followed. § 378. " If you perceive that the mind of the witness is imbued with prejudices against your client, hope but little from such a quarter : unless there be some facts which are essential to your client's protection and which that witness alone can prove, either do not call him or get rid of him as soon as possible. If the opposite counsel perceive the bias to which I have referred, he may employ it to your own ruin. Injudicial inquiries, of all possible evils the worst 1 Cox, Advocate, 358, 359. " First Golden Rule. 266 CONDUCT IN COURT. and the least to be resisted is an enemy in the disguise of a friend. You cannot impeach him ; you cannot cross-exam- ine him ; you cannot disarm him ; you cannot indirectly even assail him ; and if you exercise the only privilege that is left to you and call other witnesses for the purpose of explanation, you must bear in mind that, instead of carry- ing the war into the enemy's country, the struggle is be- tween sections of your own forces and. in the very heart perhaps of your own camp. Avoid this by all means." ^ § 379. The rule of David Paul Brown last quoted assumes that a witness often eludes the watchfulness of party, friends, and counsel, proving at last upon the stand to be but a spy. Prudence will guard against such a ca- tastrophe.^ Every witness of doubtful character should be committed to his narrative in the hearing of those who will quickly bear him down if he^ swerve. The party is not at the mercy of a treacherous witness. The true policy 1 Fourth Golden Rule of David Paul Brown. 2 Compare this from Quintilian : " In regard to witnesses who are con- sistent in their evidence we must he on our guard against treachery ; for they are often thrown in our way hy the opposite party, and after promis- ing everything favorable give answers of a contrary character, and have the more weight against us when they do not refute what is to our preju- dice hut confess the truth of it. We must inquire, therefore, what motives they appear to have for declaring against our adversary; nor is it sufficient to know that they were his enemies; we must ascertain whether they have ceased to he so ; whether they may not seek reconciliation with him at our expense ; whether they have been bribed ; or whether they may not have changed their purpose from penitential feelings ; precautions not only ne- cessary in regard to witnesses who know that which they intend to .say is true, but far more necessary in respect to those who promise to say what is false. For they are more likely to repent and their promises are more to be suspected ; and even if they keep to their word it is much more easy to refute them." Institutes, V. 7. 12-14. The advanced morality of our day comes out as we see from the conclu- sion of this quotation that the author did not reprehend the use of wit- nesses who had promised the client to swear falsely. EXAMINATION OP THE PAETY'S WITNESSES. 267 is by proper means to avoid or to unarm him. If you are surprised, show that he has entrapped you and then im- peach him by his contradictory statement made to your client or his friends. If you cannot do this, a straightfor- ward and manly grappling with the traitor will turn the sympathy powerfully against him. The law and the courts are becoming too wise to allow justice to be cheated under irrational rules. The most busy and eminent counsel can at least, in the consultation the night before the trial, care- fully probe and search all the witnesses of the client's fol- lowing, and thus be forewarned against any lurking partisan of the adversary. § 380. But the hostile witness must often be well ex- amined, and what Mr. Cox says on this subject should be considered here ; we therefore append it : — " There is no more difficult and delicate task in the con- duct of an examination in chief than so skilfully to manage an adverse witness called by yourself that he shall state just so much as you require and no more. " When the court is satisfied that the witness is really an adverse one, the strict rule that forbids leading questions will be relaxed, and you will be permitted to conduct the examination somewhat more after the manner of a cross- examination. ... As a general rule it may be taken that the less you say to him the better for you. Bring him di- rectly to the point which he is called to prove ; frame your questions so that they shall afford the least possible room for evasion, or, what is still worse, explanation. ... If you are satisfied beyond donht of his hostility, and he should, as is often seen, assume a frank and friendly mien in the witness-box, instead of accepting his approaches, reject them with indignation ; let him see that you under- 268 CONDUCT IN COURT. stand him and are not to be imposed upon, and endeavor to provoke him to the exhibition of his true feelings. . . . "^j It is the first care of a skilful advocate in dealing with his (.-"^ovp-n adverse vs^itness not only not to conceal the hostility, but to make it prominent, — to provoke it to an open dis- ' play and draw out the expression of the feeling, if it does not sufficiently appear vi^ithout a stimulus. 7 If he be ad- verse at all, you cannot make him 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 as he may utter against you." ^ 1 Advocate, 359-361. Quintilian advises the accuser to rein in the willing, arid spur the un- willing, witness as follows : " Of witnesses who are summoned to give evi- dence, some are willing to hurt the accused party and some unwilUng. . . . Let us suppose that the accuser knows the inclination. ... If he find the witness disposed to prejudice the accused, he ought to take the utmost care that his disposition may not show itself; and he should not question him at once on the point for decision, hut proceed to it circuitously, so that what the examiner chiefly wants him to say may appear to be wrung from him. Nor should he press him with too many interrogatories, lest the witness by replying freely to everything should invalidate his own credit ; hut he should draw from him only so much as it may seem reasonable to elicit from one witness. But in the case of one who will not speak the truth unless against his will, the great happiness in an examiner is to extort from him what he does not wish to say ; and this cannot be done otherwise than by questions that seem wide of the matter in hand ; for to these he will give such answers as he thinks will not hurt his party ; and then from various particulars which he may confess he will be reduced to the inability of denying what he does not wish to acknowledge. For as, in a set speech, we commonly collect detached arguments which taken singly seem to bear but lightly on the accused, but by the combination of which we succeed in proving the charge, so a witness of this kind must be ques- tioned on many points regarding antecedent and subsequent circumstances, and concerning places, times, persons, and other subjects ; so that he may be brought to give some answer ; after which he must either acknowledge what we wish, or contradict what he himself has said. If we do not suc- ceed in that object, it will then be manifest that he is unwilling to speak ; and he must be led on to other matters that he may be caught tripping if EXAMINATION OF THE PAETY'S WITNESSES. 269 § 381. The examination of a stubborn witness of this kind must often be carefully premeditated. Sometimes persistent and detailed interrogation is your only cue, while again you may have to prepare the way by testimony with which he will not dare to collide. A firm of manu- facturers had contracted with an agent to sell for them in a particular territory, reserving the power to discharge him on giving ten days' notice. They were bound to fill all orders for their products at given prices forwarded by the agent. Several months after the connection commenced the agent received an unexpected notice terminating the agency, and, what was more unexpected, his bookkeeper threw up his place and announced that at the expiration of the ten days he would represent the manufacturers in the territory mentioned. The agent had left the business almost wholly to the bookkeeper, and therefore in a suit against the firm he had to prove most of the items in his account by the latter, who had become very hostile to him. In the direct examination this witness was carried through the pertinent entries in the books and letters in the press- book, — all in his handwriting. The letters contained many orders which the firm denied having received. Of course the originals had been called for properly. The witness was forced to admit that he had duly mailed every letter which he had copied. As to a few items which could not be established in this way, he was made to hear beforehand certain reputable men testify that he had taken their orders, and this induced him to say that these also possible on some point, though it be unconnected with the cause ; he may be detained an extraordinary time, that by saying everything, and more than the case requires, in favor of the accused, he may make himself sus- pected by the judge ; and he will thus do no less damage to the accused than if he had stated the truth against him." Institutes, V. 7. 15-19. 270 CONDUCT IN COUET. had been forwarded. Every answer proving an item came from him like the drawing of an eye-tooth, while he was voluble in insinuations against the honesty of his former employer who had put unwonted trust in him. His con- duct as revealed under examination looked so much like treachery as to turn public sympathy against the defend- ants, who at last succumbed and paid most of the agent's claim. The right treatment of such a vritness is like the cross- examination purposed to pull out facts from one who would hold them back. When you must use him, your opening of the evidence should parade his hostility and explain the necessity of your calling him. And we will anticipate a part of your duties as cross-examiner which can be appropriately glanced at here, by warning you to stand on your guard against the spurious hostile witnesses of the other side. Be not deceived into relying upon them as allies, and be ingenious enough to make them unmask. § 382. In close connection with the foregoing is the third Golden Rule of David Paul Brown : — " If the evidence of your own witnesses be unfavorable to you (whi(?h should always be carefully guarded against) exhibit no want of composure ; for there are many minds that form opinions of the nature or character of testimony chiefly from the effect which it may appear to produce upon the counsel." It is a still greater reason for maintaining your compo- sure that otherwise you will often fail to find the right way around the unexpected answer. § 383. But avoid the hostile witness if you can. David Paul Brown says in the fifth Golden Rule : — "Never call a witness whom your adversary will be EXAMINATION OP THE PAETY'S WITNESSES. 271 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." § 384. We have reviewed in detail the different leading classes of witnesses from the standpoint of the direct ex- aminer. We have yet something to add before his duties are fully presented. § 385. Mr. Cox says : — " Great caution is required in the examination of all your witnesses after the first to prevent their disagreement in any important particulars. No error of inexperience or unskilfulness is more common than to examine a witness according to the brief, without reference to the evidence previously given and the requirements of the case as it stands. If you fear that there may be conflicting testi- mony on any point, the first witness having varied from the statement in the brief, it is usually better to leave it as it stands upon that single testimony than to bring out a contradiction ; but upon this you must exercise your sa- gacity at the moment ; it must depend upon the particular facts of the case ; we only suggest to you that it is one of the diflBculties of examination in chief which you should be prepared to encounter." ^ This passage shows the incurable evil of the English division of counsel and attorney. According to their usages counsel would be degraded by any other communi- cation with the witnesses than while they are in the box. 1 AdTOcate, 357, 358. 272 CONDUCT IN COURT. Familiar contact with them is for the attorney alone, who is of inferior grade and ability ; and whose misapprehen- sion of the testimony is often a snare to the examiner, when if the latter could have had a few minutes private intercourse with the witness he could have corrected it and perhaps steered the cause around the breakers. Let the American lawyer avoid this evil by talking with the wit- nesses for himself, and thus come to the trial fully informed. He will thereiby find out in time all the material conflicts between them. § 386. This subject of avoiding conflicts in one's testi- mony is so important that we will give an illustrative case. The reader is asked to recall the instance already used by U.S,' where the caveator of a will introduced the testimony of two women, who while they agreed as to the main fact yet contradicted each other in so many other particulars of importance as to bring discredit upon themselves. We said it was a blunder in the preparation that their discre- pancies had not been discovered beforehand ; and then only the one disinterested should have been examined. But we are now concerned with another blunder which was committed on the trial. The caveator put in evidence the testimony of both witnesses. This he was not obliged to do. He could have relied on the disinterested witness, and if the propounders had introduced that of the other they would have been held to the rule that they could not discredit their own witness, who be it remembered testi- fied positively for the caveator as to the cardinal proposi- tion. And had the propounders left the testimony of this disinterested woman unattacked, — and they had no means of attacking it save by that of the other, — it is diflicult to 1 Ante, § 118. EXAMINATION OF THE PARTY'S WITNESSES. 273 see how they could have avoided an adverse verdict. As it was, the caveator seemed to believe that, because he had taken the testimony of both women by commission, he must use all of it. And so he not only prepared adverse evidence, but he actually introduced it when there was no need, and thereby broke down his case. § 387. We have run over the usual incidents of direct examination which lie on the surface. We have reserved for this place a consideration of its real purpose and end. It is to be remembered that until the argument all of the evidence as it comes out is treated as true. The object of a party is to make his evidence complete before he rests, either charging the adversary or discharging himself. We will illustrate. Suppose a suit brought on a promissory note and the plea is payment. The plaintiff's first evi- dence will be the note, which when put in charges the defendant. If, however, the latter proves by certain wit- nesses that on a certain day he paid the plaintiff the amount due, which was accepted by him in satisfaction of the note, he may safely rest, for he has discharged himself. Then the plaintiff may call witnesses who impeach those of the adversary, and others who prove an admission by the defendant that the payment mentioned was to be applied to another purpose ; and thus the defendant is charged again. The defendant may next contradict or explain away the admission, and strengthen his proof of the payment of the note, thus discharging himself the second time. And the course of the evidence may go through further alternations of charging and discharging. '^■. ,Each adversary must at every stage make his evidence so strong before he rests that,Jf it be assumed to be true, he is entitled to the verdict. iThis is always the leading 274 CONDUCT IN COUKT. object to the direct examiner, whether he is counsel for the plaintiff or the defendant, and at whatever stage or turn of the evidence he may be. And the testimony of every one of his witnesses is to be regarded only as means to attain this object. This is the wise counsel of David Paul Brown, who in one of his Golden Rules says that counsel should never ask a question without an object, nor without being able to connect that object with the case, if the question is objected to as irrelative ; and in another : " Never begin before you are ready, and always finish when you have done. In other words, do not ques- tion for question's sake, but for an answer." Of coupae it is clear that these rules apply to all examinations. 7 You should have a rightly intelligent purpose in every question, whether you are dealing with your witnesses or those of the adversary. I To return to the examination in chief, the exact understanding of the real end of the introduction of testimony will always show the counsel how to shim the useless, irrelevant, or hurtful, and to avoid pausing too soon. Now and then he must go further than he intended at first, because of surprises by conflicts among his witnesses, or the development of adverse facts in cross-examination. But he will always make out his case before he rests, — that is, if his evidential resources are sufficient. § 388. We hope that we have adequately opened the main subject of this chapter to the young lawyer. In case we have failed, its superior importance will become plain to him after a while, if he has formed his own opinions by observing the courts for himself, instead of accepting the errors of Quintilian and the English writers, who ignore the fact that witnesses are generally truthful, self-possessed, and honest, and who exaggerate the average achievement EXAMINATION OF THE PARTY'S WITNESSES. 275 of cross-examination. He will then find that in almost every trial the verdict turns on facts which have been dis- closed under the direct examination of either the plaintiff's or defendant's witnesses. § 389. Especially train yourself to see the real bearings of every one of these potent facts and to bring them out completely; and bring them out in a way to strike the attention of the jury. Here comes in appropriately the ninth Golden Rule of David Paul Brown : — " Speak to your witness clearly and distinctly, as if you were awake and engaged in a matter of interest ; and make him also speak distinctly and to your question. How can it be supposed that the court and jury will be inclined to listen, when the only struggle seems to be whether the counsel or the witness shall first go to sleep?" 276 CONDUCT IN COUKT. CHAPTER X. OEOSS-EXAMINATION. § 390. After the party calling the witness, whether he be plaintiff or defendant, has examined in chief, the other can cross-examine. And he should at first consider whether he should examine at all. The witness may be too plain-spoken, honest, and steady, and you may exactly understand his narrative and apprehend nothing but aid to the other side from any question that you may ask. Many times it requires great self-mastery, when the witness is turned over to you, to announce immediately that he may retire. This announcement should always be made, unless you have good reason to expect no damage or some benefit from exercising your right to question. I note that the wary veterans of the courts cp