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Cornell University Library 
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 Trial tactics / 
 
 3 1924 020 164 194 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020164194 
 
TRIAL TACTICS. 
 
 BY 
 
 ANDEEW J._mKSCHL, 
 
 OP THE CHICAGO BAH, 
 Author of " Combination of Corporations," and other books. 
 
 CHICAGO, ILLINOIS: 
 
 T. H. FLOOD & CO., PUBLISHERS, 
 
 1906. 
 
Copyright, 1906, 
 
 BY 
 
 ANDREW J. HIRSCHL. 
 
CONTENTS 
 
 Preface I 
 
 Introductory V 
 
 I. Selection of the Court 1 
 
 II. Preparing for Trial 40 
 
 III. Courtroom Conduct 51 
 
 IV. Keporting the Case 59 
 
 V. Calling the Jury 67 
 
 VI. Classifications of Jurors 82 
 
 VII. Preparation of the "Witnesses .... 103 
 
 VIII. Preserving the Evidence 127 
 
 IX. The Opening Statement 139 
 
 X. Introducing the Evidence 148 
 
 XI. Expert Evidence 178 
 
 XII. The Cross-examination 187 
 
 XIII. Instructions; Special Findings; Verdicts 227 
 
 XIV. The Arguments 244 
 
To the Publishes of " Tbial Tactics/' 
 
 Dear Sir: The book of Mr. Andrew J. Hirschl on 
 " Trial Tactics " fills as far I know a distinct niche in 
 legal literature. 
 
 Every law suit may be aptly compared to a drama in 
 real life. This book gives a peep behind the scenes. 
 
 Every law suit may also be aptly compared to a battle. 
 This book gives a view of the generalship on each side, 
 conducted by the respective lawyers, and of the tactics by 
 which battles are won and lost. 
 
 It is interesting to the general reader, aDd it is useful 
 to all lawyers, but especially to the student and young 
 practitioner, for in this book Mr. Hirschl has distilled the 
 essence of a wide, varied and active practice of nearly 
 thirty years. Very truly yours, 
 
 John F. Dillon. 
 195 Broadway, New York, June 28. 1906. 
 
PREFACE. 
 
 The following chapters are not an attempt to 
 formulate any fixed and definite rules or prin- 
 ciples for the trials of causes. The art of try- 
 ing causes is not gained from the statutes or the 
 decisions or from any other such source, but 
 chiefly if not altogether from experience. 
 
 The suggestions in the following pages are in- 
 tended to help the student and young practi- 
 tioner to gain success, should success be de- 
 served, by profiting from the experience of 
 others without suffering the accompanying dis- 
 advantages himself. 
 
 It is requested that the pages be read in suc- 
 cession from the beginning. The later ones pre- 
 suppose a knowledge of what has preceded and 
 may be unintelligible without it. The chapter 
 heads and titles are not to be followed too 
 closely, since they are at best but a broad desig- 
 nation of the subject matter. 
 
 Andkew J. Hikschl. 
 
INTRODUCTORY. 
 
 The skillful conduct of a trial may be com- 
 pared somewhat to the jiu jitsu system of wrest- 
 ling, which enables the inferior man, with less 
 weight, less strength and less endurance to win 
 because he knows better how to apply the weight 
 and the strength that he does possess, while the 
 heavier and stronger man loses because he does 
 not know how to apply these forces at the right 
 time or in the right manner. Law books con- 
 tain decisions upon certain instructions, hold- 
 ing them technically right or wrong, but no- 
 where do these books indicate how to get those 
 lawful and honorable advantages in the litiga- 
 tion which are a legitimate part of the lawyer's 
 duty to his client. If one of the Seconds in a 
 boxing match should neglect to take the choice 
 corner and should set his man up with the strong 
 sunlight in his eyes it would be considered gross 
 negligence. In a law suit the lawyer is the 
 Second. He must put his client in the right 
 corner and to fail to do so is to subject himself 
 to the charge of negligence. 
 
 If a client for instance is liable for a debt, but 
 the statute of limitations has run against the 
 
vi INTRODUCTORY. 
 
 demand it is his lawyer's duty to plead the 
 statute. To many this seems dishonorable be- 
 cause they think that if a man owes a debt he 
 ought to pay it no matter how old it is, but it 
 is the lawyer's duty to plead limitations and if 
 he neglects to do so he would be responsible for 
 the result. 
 
 There are other steps which must be taken in 
 a case not so clear as pleading the statute of 
 limitations, for the omission of which the attor- 
 ney would be considered delinquent. These 
 steps, or rather moves, are to be presently con- 
 sidered. 
 
 The matter of setting a case together is often 
 as important as the case itself and it is honorable 
 for a practitioner to use every reasonable and 
 lawful advantage in this regard. If the law- 
 yer on the other side is doing his duty, he is 
 striving to do the same for his client. Each 
 strives earnestly so far as he properly can in his 
 direction, thus tending to hold the scales of jus- 
 tice in equipoise. Each should strive zealously 
 but honorably in order to ensure a fair trial. 
 If either neglects his part he is jeopardizing the 
 interest of his client. 
 
 There are some judges on the bench who look 
 upon themselves simply as umpires over a game 
 of skill between the lawyers and not at all as 
 the means of dispensing abstract and absolute 
 
INTRODUCTORY. vii 
 
 justice. Certainly before such judges, who are 
 not few, the lawyer must avail himself of every 
 technical point that can he made which is con- 
 ducive to the success of the client, and of every 
 legitimate and proper advantage that his skill 
 enables him to take. 
 
TRIAL TACTICS. 
 
 CHAPTER I. 
 
 SELECTION OP THE COURT. 
 
 ONE of the lawyer's first and most impor- 
 tant duties is to choose the battleground. 
 Where there is a choice he must see that 
 his client gets the advantage. Part of the bat- 
 tleground, it may be said, is geographical and 
 part chronological. Hence it is advisable to 
 go to battle promptly unless in the nature of the 
 case delay may be advantageous. Litigation 
 should be brought early, not only on account of 
 the statute of limitations, which may bar an 
 action altogether if it is brought too late, but 
 also because a prompt action appeals more to 
 the court which tries the case, and to the jury 
 if there is a jury. If a case is delayed in a law- 
 yer's hands the assertion may afterwards be 
 effectively made on the trial that the lawyer and 
 client knew there was no case, otherwise they 
 would not have waited so long in bringing the 
 suit; which casts a suspicion over the case at 
 once. 
 
 1 
 
2 TRIAL TACTICS. 
 
 There are instances, of course, where delay 
 is advisable, even in the bringing of the suit. 
 An illustration may be a case that proves itself 
 and is not susceptible of ready contradiction, 
 or a case that is all documentary and can be 
 won at any time unless it is overcome with 
 affirmative evidence. It often may happen that 
 the opponent will suffer by reason of the long 
 delay because he loses his evidence. His wit- 
 nesses may get away from him, they may die, 
 they may turn hostile, thus if the litigation is 
 long protracted and proves itself delay may be 
 of benefit. This is a cold calculation but it is 
 used. 
 
 A lawyer's duty, when a case is brought to 
 him, is to make what the doctors call a careful 
 diagnosis of it. This means that he must under- 
 stand the case thoroughly, know exactly what 
 the trouble is with his client, what his case is 
 about, and as accurately as possible what his 
 opponent's case is about. If he is to be the 
 leader he must understand his client's case and 
 his opponent 's defense, or if the reverse is true, 
 his opponent's case and his client's defense. 
 Having analyzed that very carefully, having a 
 correct diagnosis, the next step is to make a 
 prognosis, to use another medical term. These 
 are as important in law as in medicine and it is 
 an attorney's duty to attend to them just as 
 
SELECTION OF THE COURT. 3 
 
 much as it is the duty of the physician. The 
 physician is often mistaken in inferences. He 
 must not guess, he must know; if he acts on 
 assumptions he may make a fatal error. A law- 
 yer must look over his client's case or defense 
 and must know absolutely where the trouble is 
 and where it is going to be, in order to act under- 
 standingly. 
 
 Lawyers cannot rely simply upon the knowl- 
 edge of the books. They must draw constantly 
 upon experience and upon reasoning power. 
 They must not rely too confidently upon a deci- 
 sion or set of decisions nor be too much alarmed 
 by adverse decisions. They must analyze back 
 of decisions and see what the law really is. This 
 is well illustrated by a recent case which the 
 judge decided in a certain way, insisting that he 
 was bound by a prior decision. Upon appeal 
 the cause was reversed, that court saying as to 
 the prior decision simply "It is clearly erroneous 
 in the text." 
 
 The elements then of the various matters and 
 how best to make use of them call for earnest 
 consideration. Law books may be likened to 
 cook books. From the same recipe and the same 
 ingredients one cook may produce a very delect- 
 able result but another produce something not 
 fit to eat, because the one has had experience 
 and the other has not. 
 
4 TRIAL TACTICS. 
 
 At times a lawyer gains a great reputation, 
 which is of course the legitimate ambition of 
 every man, through being wise in the choice of 
 his clientage. It is said of Abraham Lincoln 
 that he would not take a case unless he felt con- 
 fident that his side was the right one. He would 
 examine the case confidentially when his clients 
 and their witnesses came to his office and if he 
 felt satisfied that the case was doubtful he would 
 not take it. He had to be satisfied that it was 
 a winning case before he would accept it. Nat- 
 urally under these circumstances the chances 
 were in his favor and he would win because in 
 the course of time the jury began to think the 
 case was right because Lincoln took it, and they 
 would find for Lincoln. Possibly in the small 
 community in which Lincoln practiced in those 
 days a man might afford to take and even find it 
 profitable to take that position. But it would 
 be a very impracticable one in a large jurisdic- 
 tion, say of two million people, because a lawyer 
 might refuse clients for twenty years before any 
 one discovered that a case which he accepted 
 must in its nature be just. Further than that, 
 it is the custom in some jurisdictions to ask the 
 jurors whether they know or ever have known 
 or even have heard of the lawyers. If any of 
 them answers in the affirmative he is rejected. 
 Circumstances alter cases, and a lawyer under 
 
SELECTION OF THE COURT. 5 
 
 these conditions manifestly could not take the 
 position of rejecting every case except those 
 which he is bound to win. 
 
 It is not a lawyer's right or duty to take an 
 improper case — that is, a case which is not law- 
 ful and honorable in every respect. It is his 
 right and his duty to take any proper case, no 
 matter if it is indeed very doubtful. And in the 
 field of criminal law the weight of authority and 
 of the best reasoners is that it is a lawyer's duty 
 to defend the accused, if called upon by the 
 latter so to do or if appointed by the Court, even 
 if the lawyer himself believes the accused to 
 be guilty. The defendant in a criminal case is 
 entitled to a fair trial under the law of the land 
 and it is a lawyer's duty to take his case if for 
 no other reason than to prevent the possibility 
 of an innocent person being convicted. There 
 are cases on record of persons who have con- 
 fessed guilt who in fact were innocent, who have 
 been proved by absolutely incontrovertible tes- 
 timony to have been innocent at the time they 
 confessed guilt. So it is a matter of principle 
 to take a criminal case, but in civil cases there 
 ought of course to be a fair position to advocate 
 for the plaintiff or for the defendant, otherwise 
 it is not the duty of the lawyer to go on with it. 
 
 So long as a case can be fairly and honorably 
 presented, even if it be very doubtful as to the 
 
6 TRIAL TACTICS. 
 
 result, it is the duty of a lawyer to take it. The 
 complications of our system leave it by no means 
 clear in advance who is in the right of the case. 
 It is only by means of a fair and honorable trial 
 in the manner indicated, with an attorney on 
 each side doing his best to develop that side of 
 the case, that the correct result may ultimately 
 be produced, and so the principle of refusing a 
 case unless the lawyer is sure he is going to win 
 is inapplicable. 
 
 A lawyer might be held negligent if he did not 
 use these fair and proper advantages which have 
 been referred to just as he might be held negli- 
 gent if he did not interpose a legal and proper 
 plea. Recently a case was affirmed because the 
 lawyers had made a technical mistake in the bill 
 of exceptions which prevented the case from be- 
 ing reviewed, and it was claimed that the law- 
 yers should pay the amount of the judgment — 
 some $12,000 — because they had not protected 
 their client. The time may come when the re- 
 quirements upon the lawyers will go even 
 beyond such plain things as pleas that ought to 
 be put in and the proper way to prepare a bill of 
 exceptions and errors in them may hold a law- 
 yer for negligence. 
 
 "What kind of action is to be brought depends 
 greatly upon the nature of the case. Sometimes 
 there are three or four alternatives open. Suit 
 
SELECTION OP THE COURT. 7 
 
 may be brought in the Federal Court or in the 
 State Court, in chancery or at law; before cer- 
 tain State judges or Courts or before others ; or 
 again, on behalf of his client a lawyer may re- 
 frain from suing at all but may lie by and wait 
 until the other party sues him. All these things 
 have to be carefully analyzed and a mistake in 
 any one of them, while not so apparent as other 
 possible mistakes, will reveal itself to an ex- 
 perienced critic. 
 
 In determining the choice of the battleground 
 there are various considerations which must be 
 borne in mind. The first thing to be decided 
 is whether to go into any court at all. Suppose 
 a litigation in regard to the ownership of an 
 article. It is a homely saying but true that 
 "possession is nine points of the law," so the side 
 that has possession of the article would do well 
 to stay out of court until they are brought in. 
 There are instances where to sustain the burden 
 of proof is very difficult for the litigant, perhaps 
 impossible. The lawyer who can arrange to put 
 the burden of proof upon his opponent has a 
 great advantage. Take a case where people per- 
 ish in a common disaster. A man and wife go 
 to sea, the vessel sinks and both are drowned. 
 The property belongs to the man. If he died 
 first the wife gets the property and her 
 heirs inherit it; but if the wife died first the 
 
8 TRIAL TACTICS. 
 
 man's heirs get it. In a case like this whoever 
 gets the property keeps it, compelling the other 
 side to sue for it and establish their claim by 
 proof, which is frequently an impossible thing to 
 do. 
 
 Sometimes, however, it is of advantage to 
 allow the other side to take the property and to 
 sue, because, as will be developed more fully 
 later, the plaintiff has a great advantage in jury 
 cases by reason of the last speech to the jury, 
 which is a most forceful weapon. In criminal 
 cases, especially, it is probable that if the de- 
 fendant's lawyer had the last speech to the jury 
 there would seldom be a conviction. At all 
 events it would have to be a very sure case. In 
 any of the ordinary strong fighting cases the 
 defendant would probably win if his lawyer had 
 the last talk. So the last speech to the jury 
 makes a wonderful difference. 
 
 The following case of a man who had 500 head 
 of cattle and who gave a mortgage covering 400 
 of them to one man and to another a mortgage 
 covering 450 of them was an instance of this 
 advantage. A controversy resulted and the 
 man having the first mortgage was wise enough 
 to allow the other one to seize the cattle under 
 his mortgage and go with them. The whole fight 
 was eventually on the identification of the cattle, 
 which is something very difficult to prove and 
 
SELECTION OF THE COURT. 9 
 
 upon which, of course, ultimately many wit- 
 nesses had to be called, developing much circum- 
 stantial evidence as well as direct evidence. So 
 A allowed B to take the cattle and go away with 
 them. Then A sued in trover, which gave him 
 the last speech since he was the plaintiff and in 
 that last speech, by reason of the shrewdness 
 and eloquence of his counsel, he discounted B 's 
 witnesses and won the case ; whereas if the situa- 
 tion had been reversed, if A had taken the cattle 
 and B had sued in trover and had had the last 
 speech he doubtless would have won the verdict. 
 
 So the shaping of the issue on a jury trial to 
 see that his client gets the last speech is one of a 
 lawyer's most important moves. To watch 
 that, among other matters of study, cannot be 
 impressed too forcibly upon the young practi- 
 tioner. There are many instances on record 
 where what was plainly the inferior side in right 
 and law and morals and logic won because the 
 lawyer spoke last to the jury. 
 
 Another matter for consideration is the ques- 
 tion whether to go into a court of law which has 
 a jury or into a court of chancery which has no 
 jury. 
 
 It is a well-known precept of practice that a 
 case which appeals to the sympathies should be 
 shaped to get before a jury while a case or de- 
 fense which repels the sympathies should be kept 
 
10 TRIAL TACTICS. 
 
 away from the jury. An illustration will show 
 how important this may be. There was a case 
 of an old soldier who had bought some $400 
 worth of merchandise and had paid all but $50. 
 Not having paid that, his creditor obtained a 
 capias judgment before a justice of the peace 
 and threw him into jail. Naturally much sym- 
 pathy would be with the old man, because any- 
 body would consider it hard to capias him on a 
 claim of $50 after he had paid $350. The debtor 
 stayed in jail three or four days, became crip- 
 pled from rheumatism, obtained his release by 
 writ of habeas corpus and sued for $25,000 dam- 
 ages. This was the case at law and when the 
 lawyers came to defend the creditor in the dam- 
 age suit they discovered, to their consternation, 
 that the debtor had been in jail without any 
 jurisdiction because the summons before the jus- 
 tice under which the execution was rendered 
 failed to show service — that is, a service appear- 
 ed on the summons but it had been stricken out. 
 Hence, as it stood, there was no service. The 
 case was there, $25,000, because the debtor had 
 been in jail wrongfully. The execution was 
 wrong because there was no proper judgment; 
 the judgment was bad because there was no 
 service of summons as the record stood. The 
 creditor's attorneys in the damage suit of course 
 were going to prove that there had been a service 
 
SELECTION OF THE COURT. 11 
 
 of the summons but that someone had stricken 
 it out. This they would have had to prove to the 
 satisfaction of the jury, which would have been 
 a very difficult thing to do because their sym- 
 pathy for the debtor would have been so intense 
 that they would disregard the evidence. What 
 to do in such circumstances was the question, and 
 the answer was to try to get the case into chan- 
 cery. So the creditor's lawyer went into chan- 
 cery on the theory that the return of the sum- 
 mons was a public record, that some intermed- 
 dler had defaced it and that chancery had juris- 
 diction to restore such record. Before the 
 chancellor, there being no jury, and the chancel- 
 lor not being much influenced by his sympathies, 
 the creditor had a chance and actually got his 
 public record restored. Having got it restored 
 in chancery it was res ad judicata in the law suit. 
 The debtor could no longer say there was no 
 service. Being bound to admit there was service 
 of course there was proper judgment ; and being 
 a proper judgment there was a proper execu- 
 tion; and the old man had no case. 
 
 The issue to be tried also admits of 
 other manoeuvring to get the lawful and 
 proper advantage. Suppose, for instance, 
 that the defendant's lawyer has a defense 
 which is entirely affirmative. His client is 
 sued for merchandise sold and delivered; 
 
12 TRIAL TACTICS. 
 
 it is admitted that the client received the 
 merchandise and that it actually was worth 
 all that he is being sued for but the defense 
 is that he has already paid for it, while the other 
 side claims that he did not pay. Under those 
 circumstances the defendant's lawyer would be 
 guilty of an error if he should interpose "the 
 general issue," because in interposing the 
 general issue he would give the plaintiff the right 
 to the opening and the close and thereby lose the 
 advantage which has been referred to before. 
 If the general issue is not interposed but simply 
 the specific facts, admitting the entire claim of 
 the plaintiff but asserting affirmatively that the 
 debt has been paid or that there was damage be- 
 cause the goods were not up to the sample or any 
 other such affirmative defense, if the case is pro- 
 perly framed when the jury is summoned the 
 defendant's lawyer should at once say that he 
 tenders the jury. This gives him the lead and 
 if he claims it properly he gets the open and 
 close and so obtains the advantage. 
 
 The best place in which to bring a litigation 
 may involve, among other considerations, the 
 state in which suit is to be brought. For in- 
 stance a person living in Hoboken with his busi- 
 ness in the City of New York, or a man living in 
 Chicago who is in business in Hammond, In- 
 diana, may be found going back and forth. The 
 
SELECTION OF THE COURT. 13 
 
 laws of some states may be more favorable than 
 those of other states in a particular kind of 
 action, and in choosing the battleground it may 
 be found advisable to bring the litigation in the 
 one state rather than in the other. It may be 
 advisable to bring the litigation in the Federal 
 Court rather than in the State Court but the 
 client may not be in a position to litigate in the 
 Federal Court because he may be a citizen of 
 the state in which his opponent is also a citizen 
 and hence unable to go into the Federal Court. 
 There are cases in which a client under these 
 circumstances has moved into another state and 
 acquired a residence in that state so that he 
 could appear as a litigant in the Federal Court 
 and jurisdiction was not denied. It might be 
 considered questionable for a man to move into 
 another state simply that he may become a citi- 
 zen of that state and sue in the Federal Court, 
 yet it must be admitted that if he actually moves 
 nobody can attack the motives which induce him 
 to move. One man may go to Colorado on ac- 
 count of the climate; another man may prefer 
 the federal judicial system to that of the state. 
 It is very doubtful whether the motive for re- 
 moval can be attacked in any court. 
 
 These advantages to be gained may seem very 
 technical and shrewd but it is to be questioned 
 whether they are any more technical and shrewd 
 
14 TRIAL TACTICS. 
 
 than other points in the law — the statute of 
 limitations for instance, and other advantages 
 that have been mentioned, which not only 
 should be taken but which must be taken unless 
 a lawyer would subject himself to criticism 
 for negligence. So an important consideration 
 is the selection of the place in which to bring the 
 suit. In a case reported some years ago a bank 
 of the City of Chicago brought suit in Connecti- 
 cut involving some $30,000 or $40,000 and the 
 question arose whether a party, who in this case 
 happened to be a married woman, could be held 
 liable. In some states it is very doubtful 
 whether a married woman can be held for a note 
 given for an indebtedness of her husband. Some 
 states solve that question more technically than 
 others. Sometimes the rules of evidence in one 
 state are different from the rules of evidence 
 in another state. In certain jurisdictions the 
 wife cannot be a witness at all in any litigation 
 against her husband; in other states a wife may 
 be a witness as to some subject matter, for in- 
 stance whatever occurred before her marriage to 
 him; but she cannot be a witness in regard to 
 transactions that occurred during the time she 
 was married to him. In other states, again, she 
 may be a witness in regard to transactions that 
 occurred after she was divorced from hi m if 
 there happens to be a divorce ; but in some states 
 
SELECTION OF THE COURT. 15 
 
 she cannot testify concerning anything that oc- 
 curred at any time, even though she is called as 
 a witness after divorce. This question may be 
 very important if the litigation rests on the testi- 
 mony of the wife, so if that kind of evidence is 
 to be counted upon it would be advisable to 
 ascertain what the law is in the different states 
 if there is a choice of states. 
 
 Whether the form of action should be law or 
 equity, has to be considered. There are some 
 cases where a suit at law cannot be won because 
 of lack of evidence, whereas a similar contention 
 might be won in equity. That is, some matters 
 can be brought in equity which cannot be brought 
 in law. The ordinary definition of equity is that 
 it is a system of jurisprudence which gives a 
 remedy where the law is defective. But that is 
 not a correct definition and is apt to mislead. 
 Equity gives no remedy where the common law 
 is defective because the very things that give no 
 relief in law fail to relieve in equity. The 
 proper definition is that equity gives a method 
 of relief where the law would give relief if it 
 could, but fails because it is defective in its 
 method. Take a very simple illustration. 
 
 A homeless man is sitting on the doorstep of 
 a rich man and is slowly freezing to death; the 
 rich man refuses to let him in to warm and the 
 poor man is crippled by the cold. If he sues 
 
16 TRIAL TACTICS. 
 
 at law he cannot win because there is no action 
 that he has a right to win. No matter how hard- 
 hearted or cruel the other man man was the poor 
 man had no right to go in and hence he could 
 not recover at law. But neither could he sue in 
 equity. He has no right and having no right he 
 cannot get any remedy in either forum. If he 
 had a right and through defect in the method 
 could not find it in law he would have a remedy 
 in equity. By the phrase right in law is meant 
 right in a broad sense — not in the technical 
 sense of the common law — in the broad sense of 
 right of action, among the English speaking peo- 
 ple, who have derived that from many minor 
 sources, the decisions of the courts, the com- 
 mon understanding, the Bible, the civil law, and 
 many other places which are supposed to be the 
 sources of justice. 
 
 A fair illustration of an appeal to equity may 
 be given. A man is a tenant of a house and it 
 is agreed that he shall have a new lease. He 
 expends a large amount of money on the house 
 on the promise of a new lease but the landlord 
 at the last minute, fails to give it to him and 
 brings a suit at law to eject him. At law the 
 tenant has no remedy and he would be put out. 
 He is not allowed to testify that he ought to have 
 a lease because that is a pure matter of equity. 
 But he goes into equity and gets an injunction 
 
SELECTION OF THE COURT. 17 
 
 against the landlord so that the landlord cannot 
 put him out. On general principles of right 
 and equity he has a right to a lease. He cannot 
 enforce that right at law but he can in chancery. 
 
 In replevin it is the practice very often for a 
 plaintiff, when it comes to the trial of his case, 
 to allow himself to be non-suited. The statute 
 says he may do so and when he is sued on the 
 bond he sets up the defense of title, but the dis- 
 advantage of that is that his opponent obtains 
 the first and the last speech in the suit on the 
 bond, whereas, if he tries his replevin suit he 
 obtains the first and last speech himself. 
 
 Suppose a case in which a man has obtained 
 a large amount of property by alleged false pre- 
 tenses. Now, fraud is hard to prove and must 
 frequently be shown by circumstantial evidence. 
 The man who commits a fraud is not very apt 
 to publicly proclaim it, and his associates are 
 not very apt to do so. In such case it is of the 
 utmost importance to get the last speech to the 
 jury, because the man who has the last speech 
 can put the circumstances in the most favorable 
 light for his own side and can attack the evi- 
 dence of the other party. Ordinarily it would 
 be advisable, then, to stand upon a replevin suit 
 and not be non-suited. 
 
 Another thing which is advisable, at least in 
 jurisdictions which have a short cause calendar, 
 
18 TRIAL TACTICS. 
 
 is to retain the suit for the plaintiff so long as 
 possible rather than to abandon the suit and be- 
 come the defendant. 
 
 Many cases involving a considerable amount 
 are capable of trial on short cause. For in- 
 stance, if the right of action is on a note or on a 
 lease, some document that proves itself, the 
 plaintiff can put his case in in two or three min- 
 utes and try it within the hour to a certainty, 
 while the defendant may find himself greatly 
 distressed if he is in short cause. 
 
 The plaintiff, again, in some jurisdictions has 
 the advantage of being able to experiment with 
 his case. He can try it almost up to the finish 
 and if he finds himself in much distress he can 
 try it over again. In some jurisdictions this 
 cannot be done ; neither man is allowed to aban- 
 don his case, but in others the plaintiff can bring 
 it on for trial ; he can get all his testimony in ; he 
 can get all his opponent 's witnesses in, cross-ex- 
 amine them, find out all that they know, and if 
 he sees there is any danger of losing, take a non- 
 suit and commence anew. This cannot be done, 
 however, if the statute of limitations has run 
 against the case ; which must be guarded against. 
 
 There is a great difference between taking a 
 non-suit and suffering a non-suit. If a lawyer 
 is non-suited — that is, if the non-suit is forced 
 upon him by the court, he can commence over 
 
SELECTION OF THE COURT. 19 
 
 again in one year, provided that the statute of 
 limitations has at that time already run. Some 
 statutes are peculiarly worded, saying that if in 
 any of the actions specified in the Act on Limi- 
 tations the plaintiff be non-suited and if the 
 time limited for the bringing of such action 
 shall have expired during the pending of such 
 suit, then a new suit may be brought within a 
 year. 
 
 If the period of limitation has not yet run 
 then that statute does not apply. Suppose a 
 man has an action which is barred in five years 
 and is trying the case at the end of four years, 
 eleven months and twenty-five days, and is non- 
 suited. He does not have a year extra to come 
 in ; he has only five days left because the statute 
 does not apply. It applies only when the plain- 
 tiff is non-suited after the five years have ex- 
 pired. Action for death of a person is not 
 always clearly defined under this one year privi- 
 lege because such action is occasionally not re- 
 ferred to at all in an Act of Limitations; 
 whereas the one year privilege seems limited to 
 that Act. 
 
 Another case where the plaintiff can experi- 
 ment may be given. Suppose the jury is waived 
 and the plaintiff tries the case and finds that the 
 judge is against him. The judge expresses him- 
 self fully and clearly and is about to enter a de- 
 
20 TRIAL TACTICS. 
 
 cision against the plaintiff; the plaintiff then 
 has the right to take a non-suit and it may be 
 advisable for him to do so, unless he is barred 
 by limitations, and he is ready to commence over 
 again with possibly a better result than before. 
 
 The kind of action to be brought depends 
 much upon the kind of case. Take for instance 
 a case of domestic infelicity in which the woman 
 is the plaintiff. If a divorce suit is decided 
 upon it comes before the chancellor, and, under 
 some systems, with a jury. As a rule the sym- 
 pathies of the jury are with the woman and it is 
 altogether likely that it is advisable to bring the 
 suit in divorce rather than for separate main- 
 tenance. In a separate maintenance suit there 
 is no provision for a jury. The chancellor may 
 call one if he wants to but he does not have to 
 do this and is not bound by the result if he does. 
 But with divorce either side may call for a jury. 
 
 Common law marriages are among the cases 
 which appeal peculiarly to the sympathies of a 
 jury, especially where the parties have lived to- 
 gether for some considerable time and where 
 children have been born as a result of the 
 union. A small amount of evidence will satis- 
 fy the jury that a woman is the wife by common 
 law marriage, whereas the chancellor is not so 
 apt to be swayed by the emotions. He has been 
 in court all his life and has become rather case 
 
SELECTION OP THE COURT. 21 
 
 hardened. It would undoubtedly be a grave 
 mistake, where the claim of the wife is provable 
 by circumstantial evidence and where the base 
 of it rests so much on sympathies, to bring sep- 
 arate maintenance rather than divorce, for the 
 reason above stated, that one is tried without a 
 jury and the other is tried with a jury. 
 
 The choice of the judge of the court is an im- 
 portant consideration in bringing litigation. In 
 every large city there are numerous branches of 
 the court and the careful practitioner must ob- 
 serve constantly and learn the personal peculi- 
 arities of the various judges. Some judges for 
 instance are prejudiced against divorce, some 
 approve of it. Some are more sympathetic and 
 inclined to favor the woman, others are more 
 severe and what is commonly called cold- 
 blooded. Some judges, again, are known to be 
 very indulgent in habeas corpus cases; whereas 
 with other judges it is difficult to sustain the 
 writ. All these are points which must be con- 
 sidered if a lawyer wants to do his duty by his 
 client. A change of venue may be needed by 
 the defendant — not only from one judge to an- 
 other but sometimes from one county to another. 
 It is well to inquire carefully into the temper of 
 the people and of the judges before the assign- 
 ment of the litigation is made. 
 
 On matters concerning real estate for in- 
 
22 TRIAL TACTICS. 
 
 stance, a subject on which a great deal might be 
 said, a few illustrations may be given. A right 
 to a piece of real estate may be tested by bring- 
 ing ejectment against the party. That would 
 be an action at law with a jury. There are some- 
 times questions of titles and questions of inher- 
 itance which appeal to the jury. The proof of 
 heirship, the proof that the client is an heir in 
 some way, may involve a great many affairs in a 
 family and in their ancestry, and sometimes the 
 proof is very difficult for the claimant of prop- 
 erty. So it may be entirely advisable to have it 
 submitted to the jury for the reasons already 
 given. 
 
 Again, to get a decision as to real estate in 
 which the client claims a share of the property, 
 partition may be brought, which is a chancery 
 proceeding, with of course no jury. The client's 
 claim is tested out by a bill in chancery which 
 constitutes partition. Practically it is well to 
 be prompt when bringing the partition, because 
 under some statutes the lawyer who starts the 
 suit gets a fee from the estate which gives his 
 client that much profit, whereas if he merely 
 represents his clients as defendants it is not cer- 
 tain whether any fee will come out of the prop- 
 erty and he has to look to his client for his fee. 
 The chances are that he would not pay so much 
 as the lawyer would be entitled to get, and so 
 
SELECTION OF THE COURT. 23 
 
 much as lie would cheerfully pay if it came out 
 of the property. 
 
 Again under some statutes property can be di- 
 vided by petition for partition. There are pro- 
 visions that if a client owns a share of real 
 estate and wants the property sold and the 
 money divided or the property itself divided, if 
 it is capable of division, the client has a right to 
 petition the court for a division. That is a law 
 procedure not a chancery procedure, and all the 
 issues in that procedure would be tried by jury. 
 The steps are almost identical with those for 
 partition; but the ordinary course of law cases 
 is followed and it therefore would be a jury 
 case. 
 
 So again the client may be a woman who has 
 a claim to property for dower and she may bring 
 litigation to set off her dower ; or the client may 
 have a claim to real estate and procedure might 
 be brought under the Torrens Act for the regis- 
 tration of title; or in Chicago under the Burnt 
 Record Act, a mode of proceedings in the courts 
 since the Great Fire. If the client has a title 
 to real estate he may proceed under the Burnt 
 Record Act, and seek to preserve upon the rec- 
 ords the evidence of that title. That proceeding 
 does more: it finds whether the client owns the 
 property itself and bars other claimants, if 
 there are any. 
 
24 TKIAL TACTICS. 
 
 Or again the client may bring proceeding in 
 the way of quieting title, or proceeding may be 
 brought in the Probate Court that the property 
 may be sold. In the course of that proceeding 
 it is laid down that the various persons who 
 think they have claims against the property 
 may be brought in and may be compelled to 
 test out the matter there. 
 
 So there are six or seven different remedies 
 and it must be decided by very close deliberation 
 and a very careful analysis of the statute in each 
 case provided, which one would be the best. 
 
 There is still one more way of testing the right 
 to property. For instance, after the death of 
 a man a woman who claims to be his widow ap- 
 pears and asks for what is called the widow's 
 allowance or award, which means the support 
 of the widow and children for one year. Some 
 one else may come in and claim that this woman 
 is not the widow but that another one is. Some- 
 times there are several widows. This means a 
 contest which is heard in an informal way in the 
 Probate Court and the result is sometimes ob- 
 tained in a very summary manner. Lawyers 
 may pay very little attention to whether the 
 woman should have the year's allowance or not, 
 but it may form res adjudicata — that is, it may 
 be a decision which right or wrong may after- 
 
SELECTION OF THE COURT. 25 
 
 wards obstruct the client in litigation involving 
 the same subject matter. 
 
 The action of account is a law action, whereas 
 an action to obtain an accounting is a chancery 
 action. The choice may be found to be advan- 
 tageous to one side or the other. 
 
 The validity of a mortgage may be tested 
 either by foreclosure of the mortgage or by 
 bringing ejectment based on the mortgage. It 
 can readily be told whether or not the case is 
 one appealing to the sympathies. Suppose that 
 some poor woman has invested the hard earned 
 savings of a lifetime in a mortgage and it is 
 denied that the mortgage is valid and a litiga- 
 tion ensues. If she goes into chancery, with the 
 many fine and sometimes technical doctrines of 
 chancery (the saying about coming into chan- 
 cery with clean hands is well known), such a 
 claimant may have a good deal of trouble ; but if 
 she goes in her own simple way before a jury, 
 the jury will probably find in her favor. She 
 can test that mortgage by bringing ejectment 
 and having obtained that decision it would be 
 res ad judicata if later she brings a bill to fore- 
 close the mortgage. 
 
 The advantage of being the beginner of the 
 suit is very marked in many cases. Suppose a 
 man owns a lot and hires a contractor to build a 
 house. After it is finished there is much dif- 
 
26 TRIAL TACTICS. 
 
 ference of opinion; the owner claims that he 
 has paid the contractor more than was owing 
 to him, and that the contractor spoiled part of 
 the house; that various things caused damage 
 and that the contractor is owing money to the 
 owner of the lot. The contractor, on his part 
 claims that he did everything well, that the 
 owner did not pay all that was owing to him. 
 If such a case comes into a lawyer's office, it 
 would be his duty immediately to sue, because 
 the man who brings the first suit controls the 
 case. For instance the lawyer representing the 
 owner sues the contractor, who commences a 
 cross action, a set-off. The owner, controlling 
 the litigation, would have the first and last 
 speech and that would be the turning point in 
 that case. Even if the opponent does not bring 
 a set-off which he does not necessarily have to 
 do because he may bring an original suit in the 
 same or in another court, the first case is the 
 senior case. The chances are then that the 
 courts will consolidate the two cases and if they 
 do this the second case will be brought into the 
 first one and the same advantage will be held. 
 Or if the two cases are not consolidated the first 
 case should come on for trial before the second 
 one if reasonable diligence is used in pushing it 
 forward. The case brought first and tried first 
 having the advantage of the first and last speech 
 
SELECTION OF THE COURT. 27 
 
 will probably win, and the matter is then res ad- 
 judicata when the second case comes on. If 
 due diligence is used it is altogether likely that 
 the second case would be stopped until the first 
 case is heard. There is always some advantage 
 in being the senior ; there may be a considerable 
 advantage and at all events nothing can be lost 
 by it. 
 
 A debtor arrested upon a writ of capias ad 
 satisfaciendum may in some jurisdictions test 
 the validity thereof by habeas corpus; in this he 
 has the choice of judge and may apply before 
 one who greatly, perhaps inordinately, favors 
 the debtors on such questions. But the creditor 
 has anticipated such a move and when asking 
 for the writ of capias has caused the debtor to 
 be notified thereof, thus giving him an oppor- 
 tunity to be heard against the issuance of the 
 writ; herein the creditor has the choice of the 
 judge and an order directing the ca. sa. to issue 
 should to some extent be deemed controlling by 
 way of res ad judicata in any subsequent habeas 
 corpus proceeding. 
 
 There are many instances where the matter of 
 the senior suit plays an important part. For 
 instance a surgeon has performed an operation 
 upon a patient and the surgeon has not been 
 paid. The patient claims that the surgeon did 
 not properly perform the operation; other sur- 
 
28 TRIAL TACTICS. 
 
 geons and physicians tell the patient that the 
 operation was malpractice. If the surgeon sues 
 for his bill and recovers and is afterwards sued 
 for malpractice ; or if the two suits are running 
 at the same time and the surgeon's suit is 
 brought first and he wins, it has been held in 
 many cases that that is an adjudication; it has 
 been adjudicated that the surgeon did perform 
 his work properly or else he would not have been 
 entitled to his pay. It has been held that if he 
 gets his judgment for pay, even by default, then 
 that is res adjudicate/, that he performed his 
 work properly. So cases are in the books where 
 a patient claiming that the surgeon was guilty 
 of malpractice actually had a suit pending for 
 $10,000 or $15,000, while the surgeon has gone 
 before a justice of the peace with his little bill 
 of $50 or $60 or $100. The surgeon has estab- 
 lished his claim for services before a justice of 
 the peace, the time for appeal has gone by and 
 that judgment has been pleaded in bar to the 
 patient's claim for damages and the plea has 
 been sustained. On the other hand if the pa- 
 tient had sued first and the surgeon afterwards 
 the senior case would have the advantage over 
 the junior case. 
 
 Often street railroad companies when one of 
 their cars has collided with some passing car- 
 riage or wagon immediately sue the driver of the 
 
SELECTION OE THE COURT. 29 
 
 wagon for damages. They bring a small suit 
 before a Justice of the Peace, claiming that the 
 driver of the wagon was in fault in running into 
 the car and injuring it ; perhaps he scratched the 
 paint a little or broke a window. At all events 
 they rush immediately with a small suit before 
 a Justice of the Peace, and the driver of the 
 wagon perhaps thinking little about it, and even 
 his lawyer thinking it a matter of no importance 
 may let the judgment go by default and the 
 street car company obtains a small judgment. 
 But the driver of the wagon who may have suf- 
 fered severely, perhaps with broken ribs or with 
 the loss of a limb in that same collision, when he 
 later brings a suit for damages, finds that his 
 suit is barred because it has been found in the 
 judgment of the Justice suit that he was 
 in fault and it was res adjudicata, which pre- 
 vents his recovering against the railroad com- 
 pany. 
 
 The difference between a bar by res adjudi- 
 cata under a prior suit and an estoppel in evi- 
 dence should be explained. By res adjudicata 
 is meant that the affair has been adjudicated. 
 If the affair has once been adjudicated be- 
 tween the parties it then is obligatory upon each 
 one of them not only as to all the matters in- 
 volved in that case but in regard to all matters 
 that could have been and should have been in- 
 
30 TRIAL TACTICS. 
 
 volved in that case. There are two ways of 
 taking advantage of res ad judicata; either by 
 bar as a plea or by estoppel in evidence in the 
 course of the trial. By bar as a plea is meant 
 that if a matter has been sued and that same 
 matter is sued over again, the decision in the 
 prior suit is a bar. Or the prior suit may not 
 be a bar, but in the course of the second trial 
 may be used by way of estoppel. An illustra- 
 tion will explain. Suppose a man buys a horse 
 warranted to him to be sound and as purchase 
 price he gives one note for $100. He soon finds 
 that the transaction was a fraud, that the horse 
 is not sound, and that in fact it was a stolen 
 horse; that the man who sold it to him had no 
 title. Hence the note was without consideration 
 or the consideration failed; at all events it is a 
 complete bar to the note. The payee of the note 
 sues on the note and the maker wins. Later the 
 payee of the note sues again upon the same note ; 
 then the maker of the note should plead in bar 
 that he was once sued upon this same note, that 
 he pleaded and that it went to trial and that 
 judgment was given. That is a bar. Suppose 
 that this man in precisely the same circum- 
 stances gave two notes, each one for $50, the one 
 note due in one month and the other note due 
 in two months. When the first note comes due 
 the payee sues upon it and the maker wins as 
 
SELECTION OP THE COURT. 31 
 
 before, upon the ground that the consideration 
 for the note had failed. Later the second one 
 comes due, the payee sues on it. The maker 
 cannot here plead in bar. He can not say that 
 he has been sued on that note and that there has 
 been an adjudication in his favor because he 
 has not in fact been sued on that note at any 
 time; but when he comes to his defense on that 
 note he can plead an estoppel, and it is probably 
 safest for him to plead specially, that that note 
 was made by him under circumstances stated 
 and in connection with another note, namely the 
 note due in one month, and that he was sued on 
 the first one and in that suit he set up this de- 
 fense and that this defense brought a judgment 
 in his favor and that it was necessarily adjudged 
 that both these notes were without consideration. 
 Hence the payee is estopped on the trial of the 
 second case from contending that the second 
 note is still a valid note, because the entire con- 
 troversy was heard on the first one and applies 
 to both notes and both litigations. So if the 
 same plaintiff sues the same defendant and the 
 defendant wins and there is a second suit the 
 defendant pleads in bar. In the case instanced 
 above, however, in which the railway company 
 won and later the owner tif the wagon sued the 
 railway company, this reversed the parties. In 
 the first suit the company was plaintiff; in the 
 
32 TRIAL TACTICS. 
 
 second suit the company was defendant. There 
 the plea would not be in bar, but it would be a 
 special plea by way of estoppel. 
 
 Another consideration in determining the best 
 place in which to bring a litigation is the con- 
 flicting decisions which at times prevail between 
 the Federal Courts and the State Courts. The 
 rules in the Federal Courts at times are quite 
 different from those in the State Courts. A 
 very apt illustration can be found in the 36th 
 Supreme Court of Illinois, Manning v. McClure, 
 which deals with the law of negotiable paper 
 and which differs materially from the case of 
 Swift v. Tyson, U. S. Supreme Court, 16 
 Peters 1. 
 
 There is a difference in the choice of the 
 forum in that kind of a question and whether to 
 bring litigation in the State Court or in the 
 United States Court would depend upon the na- 
 ture of the case. The Federal Courts are not 
 bound by the decisions of the State Courts on 
 matters of general law, on matters of common 
 law, on matters of the law merchant or mercan- 
 tile law — in fact are not bound by the decisions 
 of the State Courts on any matters unless they be 
 matters dealing peculiarly with the internal or 
 domestic matters of the State itself, for instance, 
 matters based on the constitution and statutes of 
 the State and concerns peculiar to the State 
 
SELECTION OF THE COURT. 33 
 
 itself. There the Federal Courts would follow, 
 so to speak, the decisions of the State Court; 
 but if a question be solvable by the application 
 of general law, common law, the law merchant, 
 the law relative to bills and notes and drafts, the 
 Federal Courts follow their own theories, and 
 are not bound by the State Courts. This may 
 make a great deal of difference, which must be 
 considered if there is a choice. 
 
 In the matter of damage cases, personal in- 
 jury cases, there is a marked difference between 
 the Federal Court and the State Court with 
 reference to such a simple thing as chips flying 
 off a hammer or chisel and injuring the laborer's 
 eyes. There are quite a number of these cases 
 and the Federal Courts at times hold them more 
 favorably to the injured man than do some of the 
 State Courts; though in a case against a large 
 corporation which owns a large plant the im- 
 pulse might probably be to go into the State 
 Court. 
 
 Also on the subject of releases signed by peo- 
 ple who have been injured, a number of deci- 
 sions can be found in the Federal Courts some- 
 what different from those in the State Courts. 
 It may be found advantageous to examine the 
 two systems. Usually the first impulse of law- 
 yers defending large corporations is to go from 
 the State Court into the Federal Court. Some- 
 
34 TRIAL TACTICS. 
 
 times it is advisable to do so, other times it is 
 not advisable, and it is the duty of the lawyer, 
 before he removes the ease from the State Court 
 to the Federal Court to consider carefully 
 whether the principles that prevail in the Fed- 
 eral Court are more favorable to him than the 
 principles that prevail in the State Court. If 
 the party cannot well be sued in his resident 
 state because the principles applicable to the liti- 
 gation are not so favorable there and he cannot 
 be caught in a neighboring state because he does 
 not leave home, he may, however, have property 
 in some other state which can be attached and 
 thus subject him to litigation there. 
 
 The law relative to joining the employer and 
 his negligent servant as co-defendants varies in 
 different jurisdictions, some holding that they 
 can be joined and others that inasmuch as the 
 cause of complaint is essentially different, one 
 being tried for his negligence and the other on 
 the doctrine of respondeat superior, they cannot 
 be joined. 
 
 The Federal Courts are also more liberal than 
 the Illinois State Courts in allowing bills in 
 chancery to cancel insurance policies, notes, etc., 
 obtained by fraud. The State Courts refuse 
 equitable relief on the ground that the remedy at 
 law is adequate, but ordinarily the remedy is 
 not adequate, for the policy holder or the holder 
 
SELECTION OF THE COURT. 35 
 
 of the note may not bring his action for a num- 
 ber of years and in the meantime all the evi- 
 dence may be lost. The State Courts however 
 will enjoin the holder of a note not past due 
 from transferring it, and this may prevent him 
 from selling to a purchaser without notice. 
 
 On the question of res ipsa loquitur, on the 
 measure of care which the licensor owes to a 
 licensee, and in some matters of assumed risk 
 quite a number of cases may be noted in which 
 the Federal Courts hold more strongly for the 
 plaintiff than do some of the State Courts. 
 
 Suppose a man has made himself obnoxious to 
 his neighbors and a large band of them come and 
 abuse him. Of course he wishes to sue for dam- 
 ages. Naturally if he should sue in his own 
 county he would get no redress because the en- 
 tire county is inhabited with the friends and 
 relatives of the very men who committed the 
 offense and sentiment is strong against him. It 
 is useless for him to sue those people in his home 
 County ; but supposing he moved to a neighbor- 
 ing State and being a citizen of that State sued 
 them in the United States Court in the Division 
 which sits elsewhere. He comes before the 
 United States Court, before a judge who is not 
 elected by the voters of the County but who is 
 appointed by the President of the United States, 
 and the ease is tried before jurors, none of 
 
36 TEIAL TACTICS. 
 
 whom lives in the County or if one should hap- 
 pen to live there he may be challenged off. In 
 this way he has a fair chance and is very apt to 
 get a judgment. 
 
 This matter of establishing a change of resi- 
 dence depends upon several conditions, the most 
 important of which is that the new residence 
 must be assumed permanently. If a man actu- 
 ally assumes the new residence it does not make 
 any difference whether he has been, there ten 
 minutes or a hundred years, he becomes a resi- 
 dent. Of course it is a little harder to prove 
 residence if it is recent than if it has been for 
 many years. The question of domicile or resi- 
 dence or citizenship is dependent not simply 
 upon a lapse of time, though that is a circum- 
 stance to be considered, but also upon other ele- 
 ments. If a citizen of Ohio belonging to the 
 U. S. Service is sent down to Arizona to do sur- 
 veying he may be down there many years and 
 still remain a citizen of Ohio. 
 
 A good illustration of a reason for choosing 
 between the State and Federal Courts occurred 
 during the Civil War and again in 1898 when 
 the Federal statutes required that people buy 
 stamps and affix them to notes, mortgages and 
 such paper as a means of producing revenue to 
 the government. These stamps were sold to the 
 people and to force the people to make use of 
 
SELECTION OF THE COURT. 37 
 
 them it was provided that an instrument with- 
 out being stamped could not be given in evidence 
 on any trial. That is, it could not be given as 
 evidence in a suit in the Federal Court, but if 
 the suit were in a State Court it could be offered 
 without having the stamp upon it. The United 
 States is one government but the State govern- 
 ments are entirely distinct and separate govern- 
 ments and it is a principle that no government 
 can control the actions of another one. If the 
 United States attempted to do that to a State 
 Court it would not be legal and the State could 
 not be bound by any such statute of the United 
 States and has been held not to be bound. So 
 a matter like that would be of the greatest im- 
 portance in determining which court to go into, 
 because in one court a cause of action could be 
 established and in the other it could not. 
 
 Sometimes even when there is no controversy 
 there is a preference in the choice of courts. 
 
 In the matter of adoption, for instance, there 
 may be several courts in which to go under the 
 statutes. The County Court however would not 
 be as advisable as the Circuit Court in such a 
 case for this reason : the Circuit Court is a court 
 of general jurisdiction whereas the County 
 Court is to some extent a court of special or 
 limited or inferior jurisdiction. This decree of 
 adoption might carry with it very serious conse- 
 
38 TRIAL TACTICS. 
 
 quences. It may be assumed that the people 
 who adopt the child cherish it as their own and 
 that when these people die the child will inherit. 
 Now a decree sent abroad if it be a decree of a 
 court of general jurisdiction has more force and 
 is more easily proven and is less subject to tech- 
 nical objection and comment and criticism than 
 would be a decree of a court of limited jurisdic- 
 tion. So even where there is no controversy 
 there is still the choice to contemplate and decide 
 upon before commencing proceedings. 
 
 Illustrations may be observed every day of 
 the importance of this choosing of courts. A 
 recent one in Chicago occurred in a Council 
 meeting in which the Mayor had made some 
 statement about the Traction question and the 
 City's lawyer about midnight rushed out of the 
 Council Chambers to a judge who was waiting 
 and filed his bill in Chancery there in order to 
 get the advantage of being the first complainant 
 in the State Court, lest the Traction Company 
 would become the first complainant in the Fed- 
 eral Court the next morning. 
 
 Sometimes it is advisable to sue before a Jus- 
 tice of the Peace. Sometimes it is advisable 
 when taking papers on behalf of a client to take 
 a series of small notes, none of them over $200, 
 rather than large notes, in order that if quick 
 action be needed a speedy trial can be had be- 
 
SELECTION OF THE COURT. 39 
 
 fore a Justice of the Peace. There are many 
 advantages in a hearing before a Justice of the 
 Peace, especially in a large jurisdiction, one of 
 which is that a lawyer who likes exercise in the 
 country air may sue forty miles from the city 
 and go out there to enjoy it, no matter how his 
 opponent regards the matter. 
 
 In a court of record the terms must be 
 watched. An instance in illustration of the im- 
 portance of this occurred before the Bank- 
 ruptcy Law went into effect, which might apply 
 if the Bankruptcy Law should be repealed. A 
 lawyer secured a client's claim and if he at- 
 tached prior to the first day of the term he would 
 find other creditors attaching also in the same 
 term of court which would let them have a right 
 to pro-rate. He, however chose the term of 
 court and a court in which there were only a few 
 days, perhaps a few hours left, so that by the 
 time the other creditors discovered that he had 
 attached they were too late to attach in that 
 term of court and he had the benefit of collecting 
 his client's claim in full, whereas the other 
 creditors came in at a later term of court and 
 were not allowed to pro-rate or share. 
 
CHAPTER II. 
 
 PREPARING FOR TRIAL. 
 
 THE preparation of a case before going into 
 court is a very important matter. The 
 lawyer must acquaint himself thoroughly 
 with the subject matter of the litigation. In a 
 case of homicide, for instance, if it is at all prac- 
 ticable, at all possible, the scene of the killing 
 should be examined; the location of the partici- 
 pants should be gotten as closely as possible by 
 illustration, by explanation or by measurement. 
 Attorneys often find it advisable to go ten or 
 twenty miles into the country to look all over a 
 farm-yard, a barn, and house and wood-shed, 
 and everything involved in the scene of the 
 homicide, getting the location clearly in their 
 minds more plainly than any drawing or any 
 witness could make it. Witnesses often make 
 mistakes or if they do not make mistakes they 
 may not have the ability to portray the matter 
 by words and drawings as it actually existed. 
 The entire surroundings should be carefully ex- 
 amined even if it be months and years after the 
 homicide. The house is there, the trees are 
 
 40 
 
PREPARING FOR TRIAL. 41 
 
 there, the barn is there ; the general location of 
 things can be grasped. It will help greatly in 
 trying the case, help greatly in cross-examining 
 the opposing witnesses, not only to know what 
 to ask of them, but what is of still more impor- 
 tance, to know what not to ask them. Facts 
 after all are stubborn things and when undenia- 
 ble actualities are opposed the less said about 
 them the better, because the more they are re- 
 ferred to the more difficult it will be later to 
 evade them. One thoroughly acquainted with 
 the surroundings knows almost intuitively what 
 to ask and what to refrain from asking. 
 
 Particularly interesting, both to the plaintiff 
 and to the defendant, are injury cases in 
 which persons are hurt in the complicated ma- 
 chinery of large factories. No amount of ex- 
 planation from any one can give so much infor- 
 mation about a machine as can be learned from 
 close examination of the thing itself. A lawyer 
 recently won a defense because, almost at the 
 risk of his life, he had climbed to the top of a 
 very dangerous piece of machinery in order to 
 look at it while it was in motion from precisely 
 the standpoint that was occupied by the man 
 who was injured. He was enabled thus to tell 
 exactly what had happened and why it hap- 
 pened and in the examination of his own wit- 
 nesses to know exactly what to draw out in order 
 
42 TRIAL TACTICS. 
 
 to present the matter to the jury as it actually 
 had occurred. 
 
 The closest observation is at all times neces- 
 sary. Every incident, every detail, no matter 
 how insignificant, should attract the attorney's 
 attention, even though it is apparently un- 
 marked and its value must at times be quickly 
 determined. In the trial of a recent case the 
 question at issue was whether a testator was of 
 competent mind to make a will, and the trial 
 therefore was on the condition of his mental 
 power at the time the will was made. The con- 
 testants who were opposing the will had been at 
 a loss to obtain evidence of the old man's mental 
 condition. The will was made in favor of his 
 housekeeper who had cared for him for the last 
 eight years of his life during which the old man 
 had been stone blind. Nobody ever came to talk 
 to him except in her presence and the communi- 
 cations were very brief indeed, unless, accident- 
 ally, it might happen that he got out of the house 
 for a few minutes unobserved and one or other 
 of the town people going by exchanged a few 
 words with him. A jury was called and each 
 one of the jury was asked if he had any opinion 
 as to the case or any opinion as to the mental 
 condition of the testator and finally one man 
 said that he had a very decided one and the 
 Court excused him. 
 
PREPARING FOR TRIAL. 43 
 
 Now it was plain that this man possessed in- 
 formation which would make him a good wit- 
 ness for one side or the other but if the contest- 
 ant 's lawyer had gone to him immediately and 
 this man had said: "Yes, my opinion is, that 
 the man was sane," the other jurors standing 
 around would have been influenced by that. So 
 the lawyer apparently disregarded his statement 
 and waited until the jurors dispersed for the 
 noon hour and until this particular man could 
 be found alone. Then the lawyer who had been 
 following him said, " Excuse me, you said you 
 had an opinion about this case ; may I ask what 
 your opinion is?" "Why," the man said, "He 
 was as crazy as a loon!" At two o'clock that 
 man was back in court as a witness and won the 
 case for the contestants. 
 
 There is nothing wrong about taking advan- 
 tage of points like these, nothing dishonorable, 
 nothing improper. It is simply applying the 
 available material to the best advantage. There 
 was a criminal case some years ago in which one 
 of the very important points was whether a cer- 
 tain implement, a case-knife or jack-knife which 
 was there as an exhibit, had upon it stains of 
 human blood or other kind of blood. One of the 
 lawyers made the grave mistake of taking a wit- 
 ness in the court room, talking to him and dis- 
 playing the knife in the presence of the jury. 
 
44 TRIAL TACTICS. 
 
 The witness who was an expert took a look at it 
 and did not come back, which was equivalent to 
 telling the jury that that witness's testimony was 
 unfavorable or the lawyer would have had him 
 back. The place to examine the witness is away 
 from the jury box altogether; then if the wit- 
 ness is doubtful there is no law of morals or any 
 other law to compel him to be called ; he can sim- 
 ply be ignored. If he is a favorable witness, on 
 the other hand, he can be produced at the proper 
 time and place. These are points in the prep- 
 aration of a case that require constant attention. 
 So also not only all the facts connected with a 
 case but all the law connected with it as well must 
 be learned. The theory of the law must be mas- 
 tered ; what elements are needed to prove the case 
 or what elements are needed to establish the de- 
 fense as the case may be. Not that facts shall 
 be manufactured which are not there, but that 
 according to the law of the case the best use may 
 be made of the facts which are there. A simple 
 illustration is a case which in its nature requires 
 a demand upon the other party for payment or 
 a demand for certain papers. If a demand is an 
 ingredient of the case then it is necessary to see 
 before the litigation commences that the same 
 is made; or having commenced the case to see 
 that the proof of the demand is offered so that all 
 the details requisite by law may be properly es- 
 
PREPARING FOR TRIAL. 45 
 
 tablished if they exist. If they do not exist, if 
 there is no case, it may as well be found out at 
 once. So also it is well, by way of preparation, 
 to learn as much as possible about the opponent's 
 case or the opponent's defense so that prepara- 
 tion may be made in turn against it. The de- 
 fendant may claim upon the trial for instance 
 that the cause of action against him has been 
 released. This may be learned from talk be- 
 tween the litigants which precedes the trial and 
 in that case provision must be made against 
 it. It must be ascertained why he claims a re- 
 lease, what the circumstances are under which 
 he is likely to advance proof, and rebuttal must 
 be ready against it at the proper time. It may 
 be urged that these things can be learned in the 
 course of trial and that if surprised by them a 
 lawyer may obtain a continuance. That may be 
 true but to get a continuance means perhaps 
 three more years of delay which discourages the 
 client and justly subjects his lawyer to his criti- 
 cism. All that care and thought can do to over- 
 come these contingencies in advance it is a law- 
 yer's duty to do. 
 
 Chess is one of the greatest games of science 
 and skill and there is one leading rule in chess. 
 Before any move is made on the board it must be 
 expected that the opponent will make a counter- 
 move which will be the strongest possible move 
 
46 TRIAL TACTICS. 
 
 that can be made. So also it is with a litigation. 
 It must always be expected that the opponent 
 will do the strongest possible thing that he can 
 do on his side. If then he does less so much the 
 better ; if he does make the strongest move it has 
 been expected and prepared against. 
 
 Sometimes it is not possible to know in advance 
 much about the case because the declaration may 
 be too general. In that event a bill of partic- 
 ulars must be brought in order to get such speci- 
 fications as will enable better preparations to be 
 made. Much thought must be given to the dec- 
 laration. 
 
 If the declaration is bad, it often will be a 
 great blunder for the defendant's counsel to de- 
 mur to the declaration because by so doing he 
 merely assists the plaintiff's attorney to a better 
 declaration and a better statement of the issue 
 which he is presenting on the trial. If the dec- 
 laration is bad the defense should be very glad 
 of it; because first if he loses the case he will 
 still have a chance to move in arrest of judg- 
 ment, whereas, if he demurs he waives the right 
 of ultimately moving in arrest of judgment. 
 And, second, if the declaration is bad and he 
 does not demur and ultimately loses he may get 
 the case reversed because of the bad declaration. 
 So he has done his technical duty to his client 
 on behalf of the defense by giving him a new 
 
PREPARING FOR TRIAL. 47 
 
 trial and delaying litigation and warding off his 
 opponent as long as possible; whereas if he de- 
 murs to a bad declaration and especially if he 
 argues the demurrer, as many do, he is simply 
 educating the plaintiff's attorney. He is show- 
 ing him first how to draw a good declaration, one 
 which will stand when won, and second he is 
 educating him how to formulate and present 
 properly the evidence in support of his case. In 
 other words he is doing his opponent the great- 
 est kindness while he is supposed to be drawing 
 pay from his own client. It is a subject for con- 
 tinual amazement to see lawyers eminent in the 
 practice taking such steps. There are, however, 
 instances where the opponent may be by demurrer 
 driven to untenable positions and thus to defeat. 
 A declaration should be demurred to however 
 when the demurrer and amendment do not aid 
 the plaintiff or his attorney in the least, but are 
 needed for the defendant and his client to pre- 
 pare themselves for their side of the engage- 
 ment. An illustration is a declaration against 
 the City of Chicago which says that the plaintiff 
 was injured by a defective sidewalk "in the City 
 of Chicago." In this instance the City Attor- 
 ney must demur and demur specially, because 
 the declaration fails to show where in the City 
 it happened; and clearly the City Attorney in 
 such a case cannot prepare for the defense. He 
 
48 TRIAL TACTICS. 
 
 is told the plaintiff was injured in the City of 
 Chicago on a sidewalk. The City of Chicago is 
 thirty miles long and ten miles wide and has 
 , thousands of miles of sidewalk ; and if the City 
 Attorney is conducting a case like that he may 
 think the plaintiff was injured on State street, 
 whereas, when it comes to trial the plaintiff may 
 insist he was injured on Halsted street, and the 
 City Attorney be left without any evidence to 
 meet that accusation. He may have thought the 
 injury happened on State street and may have 
 had witnesses as to that location and no wit- 
 nesses as to Halsted street. Hence, very clearly 
 it is the duty of the attorney for the defense to 
 demur and demur specially, that the declaration 
 is vague and indefinite and fails to apprise the 
 defendant with reasonable certainty of the time 
 and location of the injury. Upon which the de- 
 murrer will be sustained and the plaintiff will 
 then amend and state that he was injured on the 
 east side of State street, between Madison and 
 Washington streets, which probably would suf- 
 fice. The court would probably not compel him 
 to say exactly where but within reasonable 
 hounds so that the defendant could make prep- 
 arations for the trial. That kind of a de- 
 murrer is right. 
 
 Of course a demurrer cannot insist that the 
 plaintiff shall plead his evidence. The demurrer 
 
PREPARING FOR TRIAL. 49 
 
 can neither ask nor will the court grant that the 
 plaintiff must give evidentiary facts. All he 
 must do is to give the ultimate facts. But the 
 ultimate facts must still be given with some rea- 
 sonable definiteness, so as to give the defendant 
 an opportunity to meet them. The question here 
 enters whether to say that the man was injured 
 on the east side of State street, between Madi- 
 son and Washington, in front of a certain num- 
 ber, and that the plank of the sidewalk was 
 broken and the nails in the plank were rusty and 
 the stringer was rotten, or whether it is suffi- 
 cient to say that the sidewalk there had become 
 unsafe to walk upon and insecure, without say- 
 ing why it was unsafe and insecure. But this is 
 a subject that is covered thoroughly in books on 
 pleadings and need not be gone into here. 
 
 It is advisable to demur at other times on 
 similar principles. A large steel company for 
 instance is being defended in a personal injury 
 case. If the plaintiff should say he was injured 
 in its plant it would probably be the duty of the 
 defendant there to demur specially and to find 
 out in general terms of the declaration in what 
 particular part of the building, or at which ma- 
 chine it was that the injury occurred, because 
 otherwise the defendant would not have a fair 
 chance to inquire into the accident and prepare 
 for the defense. 
 
50 TRIAL TACTICS. 
 
 Again a demurrer may be necessary to obtain 
 information, to find out what has to be met; or 
 it may be necessary because the declaration con- 
 tains things prejudicial but not proper to the 
 case itself. In that case a lawyer must either 
 demur or where a demurrer is not applicable he 
 must get these things out by motion. For in- 
 stance, a plaintiff states a cause of action in his 
 declaration and inserts various other matters 
 which are not proper as constituting or helping 
 to constitute any cause of action. But they are 
 alleged; they are in the declaration. Now, if 
 the defendant demurs he will be overruled be- 
 cause the declaration is sufficient, and hence the 
 demurrer cannot be sustained. If he then 
 pleads and goes to trial there will be put in all 
 the evidence on the real cause of action and also 
 evidence under the declaration which does not 
 belong to the cause of action, tending to injure 
 his client in the estimation of the jury because 
 jurors are not very discriminating. Under 
 these circumstances the remedy would be, before 
 pleading to the declaration, to obtain by motion 
 an order to get out of the declaration the matter 
 which is in there; impertinent, irrelevant, sur- 
 plusage and scandalous, as it is termed in law. 
 That is the proper way to pare down the declara- 
 tion and to get it as it should be without im- 
 proper and unfair prejudicial matter. 
 
CHAPTER III. 
 
 COUKT ROOM CONDUCT. 
 
 A SUBJECT on which a few remarks may 
 be appropriate is that of the court room 
 conduct of the attorneys in a litigation. 
 A great many people appear still to have false 
 ideas on this subject and to think that a lawyer 
 should assume some sort of artificial demeanor 
 while in litigation, whereas the strongest posi- 
 tion for him to take is undoubtedly that which is 
 most natural to him. It is just as inappropriate 
 for a small man to go into a court room and as- 
 sume a pompousness and dignity, a deep tone of 
 voice which is unnatural to him, as it is for a 
 large, dignified man to go before the Court and 
 belittle himself by some buffoonery. The best 
 conduct in general is the natural conduct, the 
 unaffected every-day manner of the individual 
 which becomes him best. 
 
 Of course there is much to be said in favor of 
 training and culture. Some men have naturally 
 a defective voice and much is to be accomplished 
 by developing the voice and strengthening the 
 tone to give it better carrying power. The value 
 
 51 
 
52 TRIAL TACTICS. 
 
 of a powerful, pleasing voice can scarcely be 
 overestimated but the pitch of the voice from be- 
 ginning to end should be the customary speaking 
 tone. Many speakers still make the great mis- 
 take of commencing their argument with vocifer- 
 ation, with thunderous tones of voice which be- 
 come tiresome to their listeners and the effect is 
 much like writing a letter and italicizing every 
 sentence. With all italics there is no emphasis. 
 The emphasis, the stress of voice, must be re- 
 served for those places where the more profound 
 impression is to be made. If everything is em- 
 phasized the important parts are lost among the 
 unimportant. The quiet, self-possessed conduct 
 of the attorney is by all odds the most effective 
 manner for conducting a jury trial, especially if 
 it be a long trial. It may be that if the matter 
 is run through in half a day or even a day, 
 vehemence, and an impassioned utterance may 
 be effective. But in a long trial the voice must 
 be reserved and the emphasis must be reserved. 
 If there are some very cogent pieces of evidence 
 they should not be exploited and exhibited at 
 the very beginning because they will fall flat 
 afterwards. The effect of the case should be 
 allowed to grow upon the jury so that it falls 
 constantly with a greater and greater impression 
 upon their minds. Then at the end when force 
 and emphasis are needed, the reserve power to 
 
COURT ROOM CONDUCT. 53 
 
 make the desired effect upon their minds will be 
 available. 
 
 Much might be said about manoeuvring in 
 the conduct of the trial. There is a trick fre- 
 quently employed that should be guarded against. 
 In very serious cases of injury and suffering in 
 which the plaintiff perhaps has become badly 
 crippled, serious criminal cases and even in cases 
 of death the lawyer defending sometimes seeks 
 at every point to break the solemnity of the case, 
 to throw an air of levity around it so that the 
 jurors may not be oppressed with the entire 
 weight and responsibility of so serious a matter. 
 The defending attorney will introduce little side- 
 remarks and stir up little bits of hilarity. The 
 other side will frequently be caught by that trick 
 and will unwisely be tempted to retort, which is 
 just what is desired. By far the most effective 
 safeguard against such attempts is a dignified, 
 reserved demeanor which ignores such petty 
 trickery and allows it to waste itself upon the 
 armor of indifference. 
 
 Also there are attorneys who are much given 
 to a constant play of the emotions, seeking at all 
 times to rouse feelings of sympathy, of pathos, 
 or perhaps of hilarity. That is usually poor 
 policy because they are scattering their shot. 
 They commence a long trial and in the very early 
 stages explode some pyrotechnics of oratory 
 
54 TRIAL TACTICS. 
 
 which should have been saved for the close when 
 they are summing up. When the time conies in 
 which such ammunition is most needed they will 
 find that they have by those scattering small 
 fusillades that have been going on for hours or 
 days or weeks wasted the impressions that they 
 might otherwise have made. It is much better 
 to keep such things in reserve until the time 
 when they are of the utmost importance — away 
 at the end, in a consolidated, forcible, crystal- 
 lized shape. One cannon-ball can demolish a 
 wall, whereas a lot of scattered pigeon-shot has 
 no effect except to make a little irritation. 
 
 In small communities where jurors are sup- 
 posed to be known it is perfectly proper to ad- 
 dress each one of them by name and they prob- 
 ably would expect to be thus addressed. Every 
 man considers himself of some importance in 
 this world and every man likes to think that he 
 is recognized by other men and that his name is 
 well and correctly known. The fundamental 
 principle by which politicians get into office is to 
 greet all men promptly by name. Even in the 
 large cities attorneys occasionally step up in 
 front of the twelve jurors and without looking 
 at a note or memorandum manage personally to 
 address each one of them correctly. If a lawyer 
 begins this he must go through the entire twelve, 
 because if he calls eleven by name and skips the 
 
COURT ROOM CONDUCT. 55 
 
 twelfth one the last man will be offended to think 
 that he is not considered as important as the 
 others. 
 
 While engaged in taking the jury this is oc- 
 casionally done and it has presumably never been 
 criticized as improper. There are courts how- 
 ever which have reversed a decision because the 
 lawyer spoke to four or five of the jurors thus by 
 name during the arguments, claiming that it was 
 an improper appeal to those men, to pick them 
 out and speak to them personally, as it were, al- 
 though in the guise of an argument. So there is 
 always room for consideration in such matters. 
 
 Above all things it is the part of wisdom and 
 of honor for the lawyer in the trial to be fair and 
 square, to be honest, to be candid. Every case 
 does not have to be won. If the case is not just, 
 it should not be won. It is a greater wrong to 
 win an unjust case than to lose a just one. The 
 first is wrong, the second is merely a mistake. 
 It is the part of duty for a lawyer to develop 
 honestly and efficiently all there is in the case or 
 the strongest there is in the defense but that is 
 all. So if it occurs on questions $2 law and ques- 
 tions of fact that an error has been made the 
 best thing to do is to frankly admit it. The old 
 saying is a very true saying, that "Honesty is 
 the best policy," as a mere matter of policy. It 
 may happen in the course of the case or of the 
 
56 TRIAL TACTICS. 
 
 defense that certain contentions have been in- 
 sisted upon and later some unassailable docu- 
 ments or book entries may be introduced which 
 conclusively disprove them. As a mere matter 
 of policy it is best to admit the mistake and if 
 there is anything left of the case to go on with 
 what is left. If a lawyer obstinately insists that 
 he is right in the face of indisputable documents 
 the jury or the Court will lose all respect for him 
 and for the remaining portions of his case and 
 will surely defeat him. 
 
 The reprimand of the Court is something to 
 be avoided at all times in every stage of the case, 
 even from the moment of going into the court 
 room, when some lawyers have been known to 
 forget to remove their hats and have incurred a 
 reprimand from the Court or bailiff. Of course 
 there are times when a stand must be taken and 
 the Court may be impatient, which cannot be 
 helped. It is never well to argue with the Court 
 because the Court always has the advantage. It 
 is not a fair fight and the lawyer and his client 
 will be the sufferers. So anything which will 
 call forth a reprimand should be avoided because 
 it is bound to lower the lawyer in the estimation 
 of the jury. Many a very good case has been 
 lost because of the constant bickering of the 
 lawyer with the Court until the jury gets the im- 
 
COURT ROOM CONDUCT. 57 
 
 pression that the lawyer has no case and finds 
 against him on general principles. 
 
 The jury, as a rule, like fair play. Fairness 
 is by all odds the strongest position to assume in 
 the course of any litigation and of course that in- 
 volves being gentlemanly and tolerant and pa- 
 tient. It is better to be too tolerant than not 
 tolerant enough; to avoid being the offender. 
 The case should be conducted properly, within 
 the bounds of law and in a gentlemanly manner ; 
 then if the opponent is differently constituted, 
 if he is unfair, provokes discussion, makes jeer- 
 ing remarks, the jury will soon become prej- 
 udiced against him and turn their sympathies 
 the other way. The time comes when they will 
 see that one man is being imposed upon, that the 
 other man's insulting remarks are wrong and un- 
 fair, and when a favorable opportunity comes he 
 can be crushed with one effective response. A 
 double end is thus gained. The antagonist has 
 been overcome and the sympathy of the jury has 
 been retained, a much wiser and stronger course 
 than to follow him in his petty bickerings as 
 some lawyers do ; to bicker back and return sneer 
 for sneer while both contestants belittle them- 
 selves before the jury. A lawyer loses nothing 
 by a quiet, controlled demeanor, not hypocritical 
 of course and not too submissive, for the client's 
 interests must be protected at the right time, but 
 
58 TRIAL TACTICS. 
 
 it is better for him to be a little too patient rather 
 than too contentious. As a rule the Court will 
 of its own motion in due time reprimand the 
 offender ; the effect of this is more forcible than 
 if the reproof comes from counsel. 
 
CHAPTER IV. 
 
 REPORTING THE CASE. 
 
 BEFORE going on with the jury — before do- 
 ing anything at all — provision should be 
 made to have a good reporter in attend- 
 ance, a stenographer to take the case. If it is a 
 case of any importance which can at all afford it, 
 for the lawyer's protection and for the sake of 
 his client, a good stenographer should be at hand. 
 It is the lawyer's duty to provide the stenog- 
 rapher because the client does not know the im- 
 portance of having one and if unfavorable re- 
 sults follow as a result of the omission the attor- 
 ney would be to blame. It is true, litigants are 
 not compelled to have one but the practice at the 
 present time is almost dependent upon having a 
 stenographer. Lawyers may write up from their 
 own minutes or possibly from memory a report 
 of the case, especially if it be a very short one of 
 little importance with only a few brief witnesses. 
 One way of making a bill of exceptions is to 
 write up the substance of the testimony instead 
 of all the spoken words by question and answer, 
 but there is danger that this may not be correct, 
 
 , 59 
 
60 TRIAL TACTICS. 
 
 and the court will not sign it unless it is correct, 
 and the judge is too busy to write it himself. The 
 court nowadays expects that a stenographer be 
 provided. In former times the court would take 
 elaborate minutes of the case and the bill of ex- 
 ceptions could be written up from the court's 
 minutes, but very few judges now take minutes 
 of a whole case. They jot down a few important 
 points just for their own information but not to 
 make a record of the case. 
 
 In some jurisdictions the court has an official 
 reporter who is always in attendance and there 
 of course it is not necessary to provide another 
 one, though it may be advisable because the offi- 
 cial stenographer may possibly not be entirely 
 experienced or may not work at satisfactory 
 hours. Suppose in the trial of a case the official 
 stenographer has taken the case until five o'clock 
 in the evening and has gone home. When the 
 lawyer goes to his office and wants to prepare 
 himself for the next day's argument, for a cross- 
 examination perhaps, and needs the stenographer 
 to read or to give a transcript of the evidence 
 taken during that day, or of portions of it, he 
 cannot be found. He may have gone to his home 
 in a distant suburb and cannot be reached. ' 
 
 Again the official stenographer may make mis- 
 takes and the private stenographer can act as a 
 check thereon or as an assistant in finding mis- 
 
REPORTING THE CASE. 61 
 
 takes and having them corrected. It is interest- 
 ing to see what minute accuracy is necessary in 
 all stages of a case. An illustration of this oc- 
 curred in a recent case in which a witness said 
 that he had stepped slightly forward; " stepping 
 slightly forward," was the phrase he used. It 
 was taken correctly at the trial by the stenog- 
 rapher, it was transcribed correctly, but when it 
 got into the reviewing court, in print, in the ab- 
 stract of the case it read that he went "stooping 
 slightly forward. ' ' It was about to be submitted 
 on that when counsel noticed the error and had 
 it corrected. In the Supreme Court the judges 
 stood four for the case and three for the defense, 
 and the four were very weak for the plaintiff. 
 If that correction had not been made there is not 
 the slightest doubt that the court in reviewing 
 that case would have unanimously held for the 
 defense. 
 
 This is the reason that the apparently unim- 
 portant correction made such a vast difference. 
 The plaintiff was engaged in a foundry and at 
 night in the darkness had to go out from the 
 foundry over a long pile of ashes or cinders, 
 carrying some implement to the further edge. 
 He was injured by reason of some obstruction 
 that was there and was required to show that he 
 himself was in the exercise of ordinary care, so 
 he testified that he went out through the dark- 
 
62 TRIAL TACTICS. 
 
 ness "stepping slightly forward," which de- 
 scribes the exercise of care ; that is, he was put- 
 ting one foot slowly ahead of the other, feeling 
 his way with care. But as printed that he went 
 out there stooping slightly forward — he might 
 have been running and still stooping; in fact 
 runners do go stooping. That was the only item 
 of evidence bearing on that proposition and the 
 burden being on him his case would have been 
 necessarily lost in the reviewing court if the ab- 
 stract had contained his expression in the form 
 "stooping slightly forward." 
 
 At times similar misprints or errors are made 
 by the stenographer, though in this particular 
 case it was not made by the stenographer but by 
 the printer or the persons who prepared the 
 proof for the printer, in printing the abstract of 
 the case for the upper court. 
 
 The stenographer should be instructed to take 
 everything that occurs from the very first mo- 
 ment that something is said in the case. Let 
 him put down everything that is said by the at- 
 torneys, by the court, by the jurors, by the wit- 
 nesses, or anyone else. It is always easier to 
 ignore a matter afterwards if not necessary for a 
 record than it is to supply it if it has been 
 omitted. Sometimes a very slight expression of 
 an attorney is absolutely necessary in the final 
 
REPORTING THE CASE. 63 
 
 result of the ease, something that may be for- 
 gotten if not preserved by the stenographer. 
 
 In the opening of a recent case the attorney 
 for the plaintiff stated his view, and the attorney 
 for the defendant stated very briefly his view 
 of the theory of the case. The trial lasted sev- 
 eral days and the listeners had almost forgotten 
 what the counsel had said at the beginning. 
 There had been much discussion and shifting 
 about and questions had been sprung by the 
 court; ultimately the attorney for the plaintiff 
 offered some instructions which the court gave. 
 Then the attorney for the defendant asked for a 
 new trial on account of error in those instruc- 
 tions, which probably existed, but the attorney 
 for the plaintiff compared his instructions lit- 
 erally with the statement which the defendant's 
 attorney had made in the opening of the case 
 and it was held that the attorney for the defend- 
 ant could not complain of the instruction as it 
 was a literal copy of what he himself had ad- 
 vanced as the theory of the case, although during 
 the trial both parties had shifted away from it a 
 good deal. He had made the statement however 
 and the attorney for the plaintiff had a right to 
 rely on it. So frequently a mere incidental re- 
 mark, made by one or the other of the attorneys 
 which the reporter preserves may ultimately be 
 found necessary to prove the case itself. 
 
64 TEIAL TACTICS. 
 
 The attorney for the defendant, in the open- 
 ing statement may say that the defendant was 
 running its car down the hill and so on, when 
 it collided with the plaintiff's wagon. The case 
 may last quite a number of days and when it 
 comes to a verdict the defense may then claim 
 that there was no proof that it was their car, 
 that there was no evidence showing that their 
 company owned the railroad in question at all. 
 The plaintiff will then turn to his stenographer 
 and the stenographer will read that in the open- 
 ing of the case the defendant's attorney said that 
 the defendant's car ran down the hill and struck 
 the plaintiff's wagon. That is as good as evi- 
 dence on that point. It may be that the plaintiff 
 had no evidence on that point at all and relied 
 on this statement as covering the point. If the 
 statement had not been made the plaintiff's at- 
 torney would have subpoenaed witnesses to prove 
 it. Details may be forgotten and only the gen- 
 eral impression remains that the point was made. 
 The plaintiff's attorney himself may not remem- 
 ber exactly how the point was covered but re- 
 members that in some way it was covered and the 
 reporter's notes will come to his assistance and 
 furnish him proof of it. 
 
 The stenographer selected should be not only 
 of the greatest skill in order to secure accuracy, 
 but also a person of good standing in his profes- 
 
KEPOKTING THE CASE. 65 
 
 sicm, that is, one whom the courts know to be a 
 skillful, honorable person who would report the 
 matter correctly and not allow himself to be 
 bribed or hired to make an incorrect report. Re- 
 porters have the opportunity and power to make 
 incorrect reports and to do a great deal of mis- 
 chief. Sometimes a word or two omitted or 
 inserted would make the case entirely different. 
 It is of the most importance that figures and 
 fractions be heard correctly and taken down cor- 
 rectly. Questions of temperature, at which iron 
 may be worked, for instance, or the temperature 
 at which articles were kept, may play an impor- 
 tant part in the evidence and a witness's exact 
 testimony can later be verified only by the stenog- 
 rapher. Of course the lawyers take notes but 
 their notes are not very accurate and not entirely 
 reliable and they sometimes become confused in 
 their own notes. 
 
 Another advantage in having a reliable stenog- 
 rapher is that he can be counted upon to be per- 
 manent in his location. The shorthand notes 
 that the stenographer has taken may be needed 
 later, in the next term of court perhaps or the 
 next year, or in ten or fifteen years. One case 
 may come and go though all the courts until after 
 six or seven years it may be decided and then 
 another case may grow out of that one, and by 
 the time the second case is reached for trial it 
 
66 TRIAL TACTICS. 
 
 may become important to know what had been 
 said at the beginning of the first case. There 
 may have been two or three trials of a case. 
 They drag through the courts at fearful length. 
 The writer has a case which has been going fif- 
 teen years and is very apt to go fifteen years 
 longer. The note books of the reporter are very 
 important in those circumstances. Of course 
 the transcript can be kept but the transcript is 
 not evidence, if anyone stands on a technicality. 
 The reporter and his minutes must be found. 
 The reporter cannot profess to remember the 
 evidence. All he can do is to identify the tran- 
 script, find the minutes back of that and then 
 read from his minutes. Possibly he would be 
 allowed to testify that his minutes had been made 
 fully and correctly and that the transcript was 
 made by him fully and correctly from his min- 
 utes, and under these circumstances it might be 
 allowed. 
 
 The transcript is very often needed by the 
 judges in settling the bill of exceptions; there 
 may be a long delay after the trial before the bill 
 is made. The transcript is very important in 
 arguing a motion for a new trial. Of course 
 those are shorter intervals, and almost any re- 
 porter would suffice there — that is he would not 
 have to be permanent in the place, provided he 
 was accurate and competent, and enjoyed the 
 confidence of the court. 
 
CHAPTER V. 
 
 CALLING THE JURY. 
 
 THE first proposition in the case itself is the 
 calling of the jury. The jurors must be 
 examined to see whether they are fit to 
 serve in the case. There are technically two 
 openings to the jury. First the case is opened 
 before the jurors are examined ; next the jurors 
 are examined ; then the jurors are accepted ; and 
 then the case is opened before the evidence is put 
 in. The first opening before examining the 
 jurors is merely a short preliminary statement 
 to inform the jurors in a general way of the na- 
 ture of the litigation. No details are supposed 
 to be stated in that. It is not in place to do so 
 and may call forth the reprimand of the court. 
 In a case for instance, where the plaintiff has 
 replevied a threshing machine from the defend- 
 ant an adequate opening before the examination 
 of the jurors may be like this : 
 "May it please the Court and Gentlemen of the 
 
 Jury: 
 
 This is a case where John Doe, the plaintiff, 
 has replevied a threshing machine from Richard 
 
 67 
 
68 TEIAL TACTICS. 
 
 Roe, the defendant, and that is involved in this 
 case. Now, Gentlemen of the Jury, I will speak 
 to all twelve of you on this rather than to waste 
 time by asking each one of you separately : ' Has 
 any one of you ever observed a case of this 
 kind?' " 
 
 Too much care cannot be used in the very first 
 utterance to the jury to avoid saying anything 
 that may prejudice them unfavorably, and to 
 avoid implications that may be derogatory to 
 some of them. When the jurors are to be drawn 
 out on any proposition it must be done in a man- 
 ner that will not offend them. If for instance 
 the attorney is prosecuting a man for stealing 
 a horse and he fears that perhaps one of those 
 twelve jurors may have been a horse thief in his 
 youth and may have some sympathy for the ac- 
 cused it would not be the part of diplomacy to 
 say : ' ' Gentlemen of the Jury : This is a prose- 
 cution against the defendant for stealing a horse. 
 Has any one of you ever stolen a horse?" A 
 less direct but more tactful way to elicit the re- 
 quired information would be: "Gentlemen of 
 the Jury, the accused, here, is on trial charged 
 with stealing a horse and it is the earnest desire 
 of the prosecution, and no doubt also of the de- 
 fense, to find jurors who have no opinion and no 
 bias in a litigation of this kind ; so let me ask you 
 in general, has your attention ever been attracted 
 
CALLING THE JURY. 69 
 
 directly or indirectly to a litigation of this kind 
 in such a way as to influence your judgment? 
 Possibly you have been witnesses or served on a 
 jury and tried causes of this nature or some 
 such matter has otherwise come to your atten- 
 tion." That is enough. Assuming that they 
 answer honestly they will all answer in the nega- 
 tive, that they have never had any circumstance 
 to direct their attention to that kind of a trial. 
 If any one of them had ever been mixed up in 
 such an affair he would probably say that he had 
 been through some such matter and had rather 
 made up his mind, which would be hint enough 
 possibly to excuse him or at least to question 
 further. 
 
 Sometimes in cases where people have been 
 injured the jurors are asked whether they have 
 ever had any experience in a case of this kind. 
 Presently some one will say, "Yes, I was plain- 
 tiff myself, some years ago, against a railroad. 
 I was injured and sued the company." That 
 should be hint enough for the defendant to ex- 
 cuse that man because he fears that the man is 
 of the opinion that the company was wrong in 
 his case and that he will naturally assume that 
 the company is wrong in the case to be tried. 
 
 At the time of acquainting the jury with the 
 general subject matter, as well as in the opening 
 of the case itself after the jury is taken and be- 
 
70 TKIAL TACTICS. 
 
 fore any evidence is submitted, the general plan 
 must be laid of how it is proposed to treat the 
 case in its entirety as it develops. The leading 
 thought in this must be not to disappoint the 
 
 jury- 
 Suppose that a client has had his hand injured 
 
 in a machine so that the small finger and the 
 finger next to it are entirely gone and the middle 
 finger is lost at the middle joint. That is a very 
 serious injury but there is a good deal left of the 
 hand ; the thumb and first finger of that hand are 
 still serviceable. It will not do in opening such 
 a case to say to the jury: "Gentlemen, this is a 
 case where my client has been deprived of his 
 hand," because afterwards, when it comes to the 
 evidence and they expect to see the fearful mu- 
 tilation or the loss of the whole hand and find 
 that more than half of the hand is still there, 
 their tendency is to say, "That is not so bad an 
 inquiry as we were led to expect." Whereas if 
 the statement is made: "This is a case where 
 my client has suffered somewhat through an in- 
 jury to his hand ; you will find that he has lost a 
 portion of his hand," and then a hand is shown 
 with two fingers entirely gone and another finger 
 gone at the middle, they will say: "That is a 
 very bad hand." It is only an application of 
 the universal rule that if too great expectation 
 is aroused the result is a disappointment ; where- 
 
CALLING THE JURY. 71 
 
 as if expectation is kept within reasonable 
 bounds the result is a favorable surprise. The 
 actuality should always be greater instead of 
 less than the expectation. 
 
 When the case is opened fully the jury is told 
 in detail the questions which they are expected 
 to solve, as, for instance, that the plaintiff sues 
 for the value of a certain machine, that it is ex- 
 pected the defendant will claim the machine was 
 not up to warranty and that the trouble was that 
 some of the gearing which had been represented 
 to be of a certain quality, describing it, was of 
 a very defective quality — and so on. After the 
 jury has been accepted the evidence on both sides 
 is submitted. Then the counsel for the plaintiff 
 again speaks to the jury in the opening address 
 or argument ; after that the defendant argues, if 
 such is the case, and then the plaintiff closes. 
 The plaintiff's attorney addresses himself to the 
 jury four times and he should be very careful 
 that he does not tire them, as there is danger of 
 doing where a man has to speak so frequently. 
 It is advisable therefore if there are two lawyers 
 on a side to divide up the work, if both are com- 
 petent, so that the different personalities and 
 style of address may furnish a little diversion to 
 the jury. 
 
 The examination of the individual jurors is 
 called the voir dire; in this examination the 
 
72 TRIAL TACTICS. 
 
 jurors are required to answer in regard to their 
 qualifications to serve on that trial. There may 
 be, even prior to that in civil cases and quite 
 often in criminal cases a challenge to the array or 
 panel of the entire jury. It may be claimed by 
 the one party or the other that the entire jury 
 has been illegally chosen. In that case there 
 is a step to be taken to wipe out that jury alto- 
 gether and have a new jury chosen. But it will 
 be assumed that the jury has been properly 
 called. 
 
 In general terms the examination of the jury 
 should be befitting the circumstances. In a very 
 small case for instance, where the amount is 
 trifling and the question very simple, it clearly 
 would be poor taste and possibly unfavorable 
 to the result of the case for either side to insist 
 upon a very searching and thorough examination 
 of the jury. If the plaintiff's lawyer did this 
 the jury would be led to expect some momentous 
 case, to which they were to pay very strict atten- 
 tion and for which the best possible material was 
 wanted in the jury and they would be disap- 
 pointed when the trivial little case developed. 
 On the other hand if the defendant 's lawyer in- 
 sisted upon an over rigorous examination the 
 jury would very probably get the impression that 
 he was afraid of the plaintiff's case, that there 
 was something weak about his side of it which 
 
CALLING THE JURY. 73 
 
 might lead to his defeat. So, as in everything 
 else in the world, cases must be adapted to cir- 
 cumstances. If the jury is to take a compara- 
 tively small case the amount involved being small 
 and the questions few the more quickly it is 
 taken the better it probably will be. The jury 
 likes to have confidence shown in them and one of 
 the best ways to take the jury, if it is deemed per- 
 fectly safe, is simply to say, when it has been 
 seen that the other side has asked practically all 
 that is necessary, "Your Honor, this jury is en- 
 tirely satisfactory to me. ' ' This produces a feel- 
 ing that the lawyer has confidence in them and 
 on their part a responsive feeling of respect and 
 confidence. This general proposition of course 
 must always be predicated upon safety. There 
 might be something in that jury which it would 
 not do to take and it may be necessary to find it 
 out, which will be presently considered. 
 
 There may be two ways of taking a jury : One 
 is to take them in blocks of four, the other is to 
 take the whole twelve at once. As a general 
 thing in civil cases the whole twelve are taken; 
 that is, the plaintiff examines the entire twelve 
 jurors and if satisfied with them tenders the 
 twelve to the defense and then the defense ex- 
 amines them. There is a privilege or right for 
 the plaintiff to examine four jurors and, being 
 satisfied with them to tender those four to the 
 
74 TRIAL TACTICS. 
 
 defendant. Then the defendant's attorney ex- 
 amines those four and being satisfied with them 
 accepts them and they are sworn as jurors. 
 Lawyers in defending criminal cases and lawyers 
 for railroads, in defending their damage cases, 
 or in any such cases for the defense may claim 
 that it is a slight advantage to them for the 
 jurors to be called in fours. The reason that 
 they consider this method a slight advantage for 
 the defendant is as follows : If the plaintiff has 
 the whole twelve of the jury before him he can 
 use his peremptories to better effect because he 
 can tell better which of the men are least de- 
 sirable by seeing them all together. 
 
 There is much juggling sometimes in the mat- 
 ter of peremptories, especially in the small coun- 
 ties where everybody knows every one else. 
 Peremptories are sometimes used to get rid of 
 jurors, not because they are undesirable, but to 
 get them out in order that some others seen about 
 the court room may be chosen, who may be 
 friendly to one of the lawyers or litigants and 
 yet not disqualified. The practice in some juris- 
 dictions is that when the regular panel of the 
 jury is exhausted the sheriff fills the jury from 
 the by-standers or talesmen, as they are called, 
 standing about in attendance, and if the lawyer 
 sees some of his friends in the crowd he gets 
 rid of as many of the jury as he can. Telepathy 
 
CALLING THE JUEY. 75 
 
 apparently at times plays a part in the selection, 
 for the sheriff, with singular perception, at times 
 knows exactly which ones in the crowd the lawyer 
 had in his mind. There is not so much danger 
 of this practice in a large city where the jurors 
 are almost all strangers and the jury is not filled 
 from persons in attendance but from other jurors 
 in attendance. 
 
 If four jurors are taken at a time, though some 
 of them may not be quite desirable, the plaintiff 
 is afraid to send them out for fear he will get 
 something worse and his peremptories will be 
 exhausted. So he will strain a point and keep 
 those four on the jury rather than send any of 
 them out at the risk of getting worse. So he gets 
 the first four and the second four and the third 
 four and the jury is completed with some unde- 
 sirable men on it, because after he has once said 
 he will take those four he has to keep them. The 
 reason that this method is more disadvantageous 
 to the plaintiff than to the defendant is that the 
 defense gains by a single undesirable man on the 
 jury because it may lead to a small verdict or 
 a disagreement and the defense can tire out the 
 plaintiff with a succession of mis-trials or hung 
 juries. Twelve desirable men are required to 
 make a large verdict for the plaintiff but one 
 undesirable man may spoil it. He may hold out 
 for a small verdict or no verdict which will result 
 
76 TRIAL TACTICS. 
 
 in a disagreement or a hung jury, and the de- 
 fendant always gains by that, for the plaintiff is 
 eventually glad to settle. For the same reason 
 attorneys for the defendant sometimes care very 
 little about the entire twelve on the jury. If they 
 can get two or three or four good strong men 
 who appear favorable and who will stand by their 
 opinions that is all they care for. That may do 
 for the defendant but it will not do for the plain- 
 tiff because one undesirable man is as much harm 
 to the plaintiff as eleven are to the defendant. 
 
 Some things depend upon the locality in which 
 a lawyer practices. If he practices in a small 
 community his general method must be some- 
 what different from that which he would use if 
 he practiced in a county of two millions of people 
 or more. In Chicago it is customary to throw 
 off from the jury any one who has any acquaint- 
 ance whatsoever with the opposition. If there 
 is a man on the jury who says he knows either 
 the opposing litigant or the opposing lawyer, as 
 a rule he is challenged off. There is always a lit- 
 tle apprehension that he might be influenced by 
 his acquaintance no matter how strongly he says 
 he will not be. In a small community that would 
 not be possible because everyone knows everyone 
 else and some chances must be taken. If John 
 Doe — on the jury — a highly respected man in 
 that community, says he knows the defendant 
 
CALLING THE JURY. 77 
 
 and the plaintiff challenges John Doe the other 
 jurors will have an idea from the fact that he 
 was rejected that he thought well of the defen- 
 dant and they will therefore infer that the defen- 
 dant is probably right if he has such estimable 
 friends as Mr. Doe. Every challenge, for what- 
 ever cause, produces a slight reaction of this sort. 
 Therefore it is not well to challenge too freely 
 unless there is a sufficient reason. 
 
 In some respects however inquiry in small 
 towns must be more searching than in large cities 
 because so many matters may center right in the 
 jury. For instance the plaintiff is a large 
 grocery concern and is suing a retail grocer for 
 a considerable bill of stuff that it has sold to the 
 defendant. On the jury is a man who is cashier 
 of the bank in that small town. It is altogether 
 likely that that bank has been lending money to 
 the defendant, because in a small town every 
 business man is borrowing money somewhere or 
 other. 
 
 When the cashier is asked by the plaintiff's 
 attorney, "Have you any interest in this con- 
 troversy 1 ?" he would conscientiously answer no, 
 but probably in a very close case the cashier, even 
 if the most honest of men, would decide for the 
 defendant because his subconscious reflection 
 would be like this : ' ' If I decide for the plaintiff 
 and it runs into execution to-morrow against this 
 
78 TRIAL TACTICS. 
 
 defendant and they lock him up, where does our 
 bank get its money?" and his judgment would 
 involuntarily be influenced. 
 
 Another case in a small town may be used for 
 illustration, in which an electric car company 
 is being sued. The lawyer for the plaintiff may 
 think he is doing his full duty when he asks a 
 juror if he is a stockholder in the electric rail- 
 way company. He replies that he is not, that he 
 has no interest in it whatever. He is kept as a 
 juror, the plaintiff is beaten ; and it is afterwards 
 learned that that juror persuaded all the others. 
 It is subsequently disclosed that he owns a sub- 
 division two or three miles out; that he had 
 divided his property into small town lots which 
 he wanted to sell and that naturally he is inter- 
 ested in the welfare of that electric company. If 
 they are making money he can ask them to put 
 on more cars, whereas if the company is crippled 
 with judgments they may not be able to afford 
 them. Unconsciously perhaps this reflection 
 runs through that man's mind and though he 
 answers the questions honestly, because accord- 
 ing to the statute he is not interested in that 
 company, indirectly he desires its welfare. 
 
 In every jurisdiction may be found either by 
 statute or by the common law principles — nearly 
 always by statute — certain grounds on which a 
 juror may be challenged. If those grounds exist 
 
CALLING THE JURY. 79 
 
 the challenge is made and the court permits the 
 juror to be put off the panel. Also either by- 
 statute or by the common law — in addition to the 
 challenges for cause — are permitted a certain 
 number of peremptory challenges, challenges 
 which may be exercised without giving any rea- 
 son. 
 
 Great care must be exercised that the challenge 
 when made is sure to be a correct one because if 
 one is made which is not right — if for instance 
 a challenge is made for cause and that cause is 
 not laid down, and the court denies the challenge, 
 that juror will be offended. So also if an ad- 
 ditional peremptory challenge is made to which 
 a lawyer is not entitled the object of that chal- 
 lenge naturally will become unfavorably dis- 
 posed. He may be a fair-minded man, desirous 
 of doing his duty but he involuntarily has be- 
 come a little hostile in his attitude. So it is a 
 dangerous thing to challenge if there is the 
 slightest doubt that the challenge will be allowed ; 
 it is better to take a chance in not challenging. 
 
 It may happen that a man is justly challenged 
 for cause but that the court overrules the chal- 
 lenge and does not put him out and the ill-will 
 of that juror is incurred. After that the lawyer 
 may have three peremptory challenges and use 
 only two of them. The case is lost and then ap- 
 pealed and it is argued in the upper court that 
 
80 TRIAL TACTICS. 
 
 the court below refused to put that man out when 
 he was challenged for cause and therefore the 
 court erred. The upper court may hold, "Yes, 
 the trial court erred, but the lawyer had one per- 
 emptory left and had an opportunity to correct 
 that error and should have put that man out on 
 that peremptory. Not having done that he has 
 waived the error." It is the rule in law and in 
 every phase of the law that individuals must 
 protect themselves in every reasonable way be- 
 fore they claim the protection of the court or of 
 any one else. "The gods help those that help 
 themselves," is a principle that runs through all 
 law as it runs through all human relations. If 
 a man neglects to close up a window leading into 
 the basement of his house and the water rushes 
 into that window and destroys his furniture 
 stored in there, and it is seen that for fifty cents 
 he might have gotten a board and nailed up that 
 window, the chances are that if he sues he will 
 recover just fifty cents, what it would have cost 
 him to have protected himself. So in this case 
 if the man could not be gotten off by challenge 
 for cause, because the court made a mistake, the 
 available peremptory challenges should have 
 been exhausted in order to preserve the point 
 that it was error in the court not to let that man 
 out. If, however, all the peremptories had been 
 
CALLING THE JURY. 81 
 
 used on some other jurors the error could be pre- 
 served on this party. 
 
 While examining the juror on a challenge for 
 cause it is proper to examine him very thorough- 
 ly, even slightly beyond what would be simple 
 cause; it has been held that there is a right to 
 examine further than that, in order to learn the 
 manner and nature of the juror so that it may be 
 determined whether the peremptory shall be used 
 on him at all or not. In this matter there is 
 quite a difference — as in all the steps of the case 
 there is quite a difference in the practice in the 
 various jurisdictions. 
 
 In some States for instance it is held that if 
 during the examination or indeed during the 
 trial something comes to the attention of the 
 juror which is injurious to one side and erron- 
 eous it is the lawyer's duty then and there to try 
 to stop the trial by moving for a venire de novo, 
 a new jury. 
 
 In other jurisdictions it is held that the in- 
 jured side must object to such improper and 
 prejudicial matter and the court will sustain the 
 objection and also tell the jury to ignore it. 
 Which however, is of dubious effect because 
 sometimes the more they are told to ignore a 
 thing the greater the impression it makes upon 
 their minds. 
 
CHAPTER VI. 
 
 CLASSIFICATION OF JURORS. 
 
 THE nature of the case must in a general 
 way determine the class of jurors that 
 will be most desirable. In general groups 
 the criminal cases differ from the civil cases and 
 the civil cases may be divided into those appeal- 
 ing greatly to the emotions and those appealing 
 altogether to the intellect. 
 
 Where it is necessary to hold jurors against 
 sentiment and in favor of strict technical rights, 
 logical jurors, who will adhere to the rules laid 
 down of logic and of law and ignore matters 
 of emotion and of sentiment, and who have in- 
 tellect enough to understand the propositions are 
 desirable. Ordinarily, it may be said, stupid 
 jurors are best for the plaintiff. The last speech 
 is about all their limited intellect can retain 
 when retiring to consider of their verdict. 
 
 A litigation between a large bank and a rail- 
 road company on the question of a note, for in- 
 stance, is more a matter of mathematics than of 
 anything else; a question whether one company 
 should collect so many thousand dollars from 
 
 82 
 
CLASSIFICATION OP JURORS. 83 
 
 another company. A case against a bank how- 
 ever in which the plaintiff is a poor widow, has a 
 strong appeal to the sympathies. If it appears 
 that the plaintiff has entrusted her hard earned 
 savings to the defendant who fails to refund and 
 who has no defense to plead except the statute 
 of limitations, it is plain that almost every juror, 
 if he possibly can, will decide for the plaintiff, 
 and overcome the technical and what many think 
 highly unjust defense of limitations. In a case 
 of that sort a very cold-blooded jury is required 
 for the defense, rigidly conscientious men, great 
 sticklers for the law, technically interpreted, 
 men who are bound by their oath against all sen- 
 timent. 
 
 Between similar litigants the defense of the 
 statute of frauds would probably be looked upon 
 by most juries as a harsh and technical defense 
 and one which they would use any means to over- 
 throw, though if the litigants were reversed, and 
 the plaintiff happened to be a " chattel mort- 
 gage shark," incorporated, suing a poor strug- 
 gling man, a defendant who had possibly for 
 several years been paying high interest and who 
 had pleaded bankruptcy, they would probably 
 sustain for him the statute of frauds or the stat- 
 ute of bankruptcy or the statute of limitations 
 or any other available statute or principle that 
 might be called to their attention. 
 
84 TRIAL TACTICS. 
 
 Again if a lawyer recognizes that his case is 
 weak but he has the last speech he would natu- 
 rally try to get as jurors men who are more read- 
 ily swayed by the emotions rather than those 
 jurors who are intensely intellectual and logical 
 and on whom oratorical eloquence would have no 
 effect; while if he has a strong defense, but a 
 technical one, he would try to get intellectual, 
 unemotional men who would not be carried away 
 by their sympathies. In damage cases against 
 factories, railroads or other large companies 
 where the natural sympathy is for the plaintiff, 
 and the defense is a technical and artificial one, 
 such as fellow-servant, contributory negligence 
 or assumed risk, men of strong intellectual quali- 
 ties are required who will solve the matter as 
 they would an irksome mathematical problem, 
 but solve it correctly. 
 
 Several other features should be considered in 
 the choice of a jury, such as the occupations or 
 professions that are involved in the particular 
 hearing, in the evidence and in the argument. 
 In a case against a physician for malpractice 
 for instance, where the jurors naturally would 
 be much influenced by sympathy for the plaintiff, 
 the defendant would do well to get as many pro- 
 fessional men on the jury as possible, architects, 
 civil engineers, contractors who build houses, 
 superintendents of factories, men whose occupa- 
 
CLASSIFICATION OF JURORS. 85 
 
 tions or professions are such that they them- 
 selves might make a mistake once in a while, just 
 as it is alleged this physician made a mistake. 
 Their general inclination would be to hold with 
 the defendant, unconsciously perhaps, but they 
 would be a bit slow to convict another man of 
 negligence and make him pay large damages 
 when in their own positions some slight inatten- 
 tion on their part might bring a similar litiga- 
 tion on them. On the other hand jurors who 
 had no occupations of moment, who had never 
 felt the weight of responsibility might not con- 
 sider that something should be allowed by way 
 of extenuation or excuse for the defendant and 
 they would be very much for the plaintiff and 
 against the defendant. 
 
 In the general divisions of jurors nationality 
 is another important basis of classification. In 
 this respect the parties litigant must be consid- 
 ered, the opposing lawyers and the witnesses that 
 may appear on one side or the other — especially 
 the strong or leading witnesses who cover the 
 chief points in the case and upon whose veracity 
 the trial hinges. There is no doubt that "blood 
 is thicker than water. ' ' People are instinctively 
 clannish, and those of the same nationality will 
 side with each other rather than with an alien. 
 In a recent trial of a man of one nationality ac- 
 cused of killing his wife who was of quite dif- 
 
86 TRIAL TACTICS. 
 
 ferent nationality, the prosecuting lawyer con- 
 stantly challenged off from the jury the men of 
 the same nationality as the accused, whereas the 
 defending lawyer challenged off men of the 
 same nationality as the deceased wife, and it was 
 proper practice. Any lawyer would feel that he 
 was delinquent in his duty if he did not do that. 
 The case might come out all right and the law- 
 yers feel that the challenged .juror might just 
 as well have stayed on if he was an honest man 
 — but if he were not put off and the case did not 
 come out right, the lawyer and doubtless his cli- 
 ent would feel that he had made a mistake and 
 that the case was lost because the juror's nation- 
 ality was on the opposite side. Of course in the 
 light, small cases, which do not get very deeply 
 into the minds of the jurors and are readily 
 solved it is not so important, but in a serious 
 ease it is considered a very important factor. 
 
 The matter of religion has to be considered in 
 a similar manner, if anything even more than 
 the matter of nationality. There are few things 
 which so strongly, though usually unconsciously 
 prejudice people as the matter of religion. The 
 minds of even the most honest men are biased 
 by the fact that they belong to a certain creed or 
 religion, and they would be slow to discredit a 
 man of their own religion and to give belief to 
 one opposing him who belonged to an opposite re- 
 
CLASSIFICATION OF JURORS. 87 
 
 ligion. It is a practically invariable psycholog- 
 ical fact that if a witness and a juror in a case 
 belong to the same religion while the opposing 
 witness belongs to another the juror will be 
 strongly predisposed to believe the witness from 
 his own church. At all events strong affirmative 
 weight of evidence will be required to cause him 
 to reverse his beliefs. Not that the juror says, 
 "I will believe him because he is in my church," 
 but that he unconsciously assumes the credibil- 
 ity of his brother member. So the religious ele- 
 ment is a very powerful element and one that 
 must be considered. 
 
 The matter of what might be called artificial 
 bonds is at times even stronger than natural 
 bonds; the natural bonds people are born into 
 and perhaps would like to break but the artificial 
 bonds they enter voluntarily. So membership 
 in the same societies, the Masonic Order, the 
 Odd Fellows, or Knights of Pythias, for instance 
 may be a very strong influence. If one of the 
 jurors in a case is a Free Mason and the prin- 
 cipal witness is also a Free Mason and he is 
 contradicted by a witness who is not a member 
 of the order, it is very probable that other things 
 being equal the juror, though intending to be 
 perfectly honest would be inclined to believe his 
 fellow Mason. The G. A. R. is another influen- 
 
88 TRIAL TACTICS. 
 
 tial organization between whose members strong 
 bonds of fellowship exist. 
 
 Sometimes an appeal to a jury on the grounds 
 of fellowship, if it can not be avoided in any 
 other way may be anticipated and discounted. 
 In a recent case against the City of Chicago in 
 which the plaintiff was injured on a defec- 
 tive sidewalk and sued the city, three of the 
 jury were saloon-keepers. They were undesir- 
 able jurors for the plaintiff. When a saloon- 
 keeper is on the jury the attorney for the city 
 may be expected to work in allusions to the effect 
 that if the city is burdened with paying heavy 
 damages to people injured on the sidewalks it 
 will have to increase its taxes and possibly will, 
 have to increase its license fees. This catches 
 the attention of saloon-keepers who are afraid 
 that they may have to pay a higher fee and who 
 also catch the implication that the city is watch- 
 ing them. They know that there is some connec- 
 tion between the city and the police and they fear 
 that some day the police will come and close them 
 up. It is no cause for challenge that a man is 
 a saloon-keeper; a man who keeps a saloon has 
 just as good right according to law to be a juror 
 as anybody else has. If peremptory challenges 
 had been used in this case it would have been 
 necessary to challenge all three or none because 
 if only two of them had been challenged and the 
 
CLASSIFICATION OF JURORS. 89 
 
 other challenge held in reserve the one man 
 would have resented the slight to his colleagues. 
 Knowing all this the plaintiff's attorney, instead 
 of challenging any of them won the favor of the 
 three saloon-keepers who happened to be Ger- 
 mans by telling the following story in his closing 
 speech. He spoke something like this: "And 
 now, Gentlemen of the Jury, the case is with you. 
 I have tried to do my duty and I know you will 
 take pleasure in doing yours. The City of Chi- 
 cago is all-powerful; it holds in its hands the 
 property of the richest and of the most humble ; 
 it is anxious as a city and all the people are 
 anxious as a people to do right and justice to 
 everybody. A story of the great Emperor Fred- 
 erick comes to me. When he was building his 
 palace near Berlin, this beautiful edifice costing 
 millions was fairly completed excepting one 
 wing. Some forty feet of one wing had not been 
 built because on the ground where it was to be 
 built there stood the cottage of a widow who re- 
 fused to sell it. The Emperor's engineers of- 
 fered her a fabulous price for the cottage but she 
 refused saying it was hers; that there she had 
 been born and there would she stay until death. 
 The engineers asked the Emperor's permission 
 to tear down the cottage. They said that they 
 would do the right thing by her, give her a more 
 beautiful place somewhere else. If he would but 
 
90 TRIAL TACTICS. 
 
 say the word they would tear it down and com- 
 plete the palace, but the Emperor replied, 'No, 
 let the cottage stand as an evidence that of all 
 my powers the prerogative to do justice even to 
 the most humble of my subjects is predominant 
 in me!' " This tribute to their spirit of justice 
 reassured these jurors and the verdict was favor- 
 able. 
 
 In the general selection of the jury the ma- 
 terial of the opponent's case must also be con- 
 sidered and in this regard anticipation must to 
 some extent figure. In a case for instance in- 
 volving a collision between a passenger engine 
 and a farmer's wagon, the defendant may natu- 
 rally be expected to call as witnesses the train- 
 crew, the conductor and the fireman and possibly 
 some of the trainmen. The plaintiff has an idea 
 that the witnesses for the defense will be people 
 of that kind, which may give him some intima- 
 tion how to use his peremptories on the jury. If 
 he found some railroad men on the panel, some 
 of them possibly belonging to the railroad em- 
 ployee's union, it would be a wise thing to chal- 
 lenge them off because he may anticipate that the 
 witnesses for the defense will be very much of 
 the same general calling as these jurors. 
 
 In cases involving death there is a decided ad- 
 vantage because it can be ascertained from the 
 coroner's inquest or from examination of his 
 
CLASSIFICATION OF JURORS. 91 
 
 record what kind of men or women will appear 
 as witnesses. In this way an outline can be got- 
 ten of the testimony, at least that of the princi- 
 pal witnesses. 
 
 In criminal cases the defense learns this from 
 the indictment, because as a rule in nearly all the 
 jurisdictions the names of the witnesses are in 
 some way appended to or endorsed on the indict- 
 ment. In some States the accused have a right 
 to be furnished not only with the names of the 
 witnesses but with a transcript of the testimony 
 that they gave before the Grand Jury. A law- 
 yer must learn from his client, as thoroughly as 
 possible, all that he knows about the witnesses 
 who will appear for the other side. In that way 
 a great deal of information may be gained on 
 which to base challenges. If a case has been 
 tried before, a very good idea of the witnesses 
 and of their testimony may be obtained from the 
 record of the former case and other important 
 sources of information may suggest themselves 
 in particular cases. 
 
 It will be found at times that jurors have con- 
 victions of right and wrong to which they adhere 
 quite positively. If they are honest and con- 
 scientious they will state these convictions when 
 they are examined and they may be ground to 
 challenge for cause or at least peremptorily. It 
 is seldom that a juror deliberately lies ; if he has 
 
92 TRIAL TACTICS. 
 
 a preconceived opinion he usually admits it. If 
 a juror does tell a deliberate lie without being 
 discoyered and is taken on the jury, if he is 
 found out before the trial is through, a new jury 
 must be moved for immediately. It will not 
 do to keep quiet and lose the case and then ask 
 to have it all undone. The Court probably 
 would not call an entirely new jury but would put 
 a new juror in his place and then commence the 
 hearing all over again. If a juror's deception is 
 discovered after the verdict but still within the 
 term of the court attempt must be made to get 
 redress by motion for a new trial, and the decep- 
 tion must be set up supported by affidavit. But 
 if the term of court has closed and judgment 
 has been entered on the verdict the only redress 
 would be by bill in equity or by statutory pro- 
 ceedings where such provision is made. 
 
 In the matter of preconceived opinions many 
 men for instance will not recognize the defense 
 of fellow-servant if they can help it because they 
 consider it a technical defense and not merito- 
 rious. In a railroad case in which a man work- 
 ing in a railroad yard fixing the track is run down 
 by a railroad hand-car pushed by his fellow em- 
 ployees the ordinary layman may not be willing 
 to follow the defense of fellow-servant because 
 he does not think it right. He holds that the 
 man was entirely blameless, that he, was working 
 
CLASSIFICATION OF JURORS. 93 
 
 for the company and was run down by the serv- 
 ants of that railroad company and he is more 
 inclined to the doctrine of respondeat superior — 
 the doctrine that a superior is responsible for 
 what bis subordinate does. The ordinary lay- 
 man will very frequently throw out the defense 
 of fellow-servant and allow the injured man to 
 recover. That tbere is justification for this 
 view, especially in railroad matters, is seen in 
 various States whicb bave deemed this defense 
 oppressive and enacted statutes that a, railroad 
 man who has been injured may recover from a 
 company althougb the injury was inflicted by a 
 fellow-servant. In defending a case like tbat the 
 jurors must be gone over carefully to see 
 whether they will take tbe law from the court, 
 whether tbey really understand that although 
 they bave tbeir own opinions as men yet the law 
 is a complicated science and they must listen to 
 the court and obey the law as given them by 
 the court. Sometimes a juror on close examina- 
 tion will adhere to his own view of right and 
 wrong and very reluctantly, if at all, admit that 
 be will be guided or controlled by the instructions 
 of the court. Such a juror must be rejected 
 thougb the court may not admit the challenge 
 for cause because the juror may finally grudg- 
 ingly say that he will take the law from tbe 
 court, but the examining lawyer should know 
 
94 TRIAL TACTICS. 
 
 that "a man convinced against his will is of the 
 same opinion still. ' ' 
 
 Jurors must not be allowed to imagine that 
 they are suspected of dishonesty or ignorance or 
 anything of the sort lest they become offended, 
 but they must be diplomatically examined in re- 
 gard to these various possible opinions. 
 
 In many jurors will be found a profound 
 prejudice against corporations as such. They 
 are something outside the juror's mental grasp 
 and consequently objects of deep distrust. Such 
 jurors have a vague idea, derived largely from 
 the newspaper cartoonist's conceptions that all 
 corporations are grasping and oppressive and 
 hence they are antagonistic to them on general 
 principles. When a corporation is being de- 
 fended the jurors must be carefully examined 
 with regard to this prejudice and must be chal- 
 leged off for cause wherever possible rather than 
 by peremptories. The peremptories must be 
 saved so long as it is safe because if they are 
 exhausted unnecessarily they will not be avail- 
 able when needed. 
 
 There are a number of other important eco- 
 nomic questions that figure greatly in court, 
 for instance the labor question, involving union 
 and non-union men : jurors will be encountered 
 who have fixed ideas on the subject which noth- 
 ing can alter. Political questions of course in- 
 
CLASSIFICATION OF JURORS. 95 
 
 fluence a jury, especially if the litigation has a 
 political aspect, for instance if a newspaper is 
 sued for libel. In these cases the jurors are in- 
 clined to find for the paper if they get a chance 
 because jurors are generally a little afraid of the 
 influence of the newspapers. 
 
 In criminal law one of the most important con- 
 siderations in serious cases is whether the juror 
 has any conscientious or religious scruples 
 against inflicting the death penalty. If the pros- 
 ecuting attorney wants to press a capital case 
 and expects to obtain a sentence of death, it is 
 very important for him to probe on that ques- 
 tion because a certain percentage of men have 
 convictions against capital punishment and if 
 they are on a jury they will not vote for a con- 
 viction of murder in the first degree if it is a 
 capital crime in that jurisdiction. They would 
 convict of the next inferior crime but they never 
 would vote for hanging a man because they be- 
 lieve that it is not the province of humanity to 
 take human life. Of course such men could be 
 challenged off the jury for cause. If the prose- 
 cutor does his duty he will probe the jurors to 
 learn their views on that question. 
 
 The jurors must be examined in regard to 
 their various moral beliefs. There is an anar- 
 chistic creed for instance whose believers do not 
 deem themselves bound by their oath as a juror 
 
96 TRIAL TACTICS. 
 
 or bound by the instructions of the court. In a 
 case involving strong sympathy such a man 
 would be a very good juror for the side on which 
 the sympathies lie but he would be a very poor 
 juror for the side whose right is based on the 
 technical law of statutes and precedents, be- 
 cause he would ignore all of that very readily. 
 
 There are various statutes relating to the 
 qualifications of the jurors that should be well 
 learned because they may be useful when it is de- 
 sirable to get rid of a juror if there is no other 
 cause and it is not advisable to exhaust the per- 
 emptory challenges. Age is one of the statutory 
 grounds of challenge that may happen to be ap- 
 plicable. After a certain age men cannot serve 
 as jurors. In some States a juror may be chal- 
 lenged if he is not a freeholder. In some States 
 they must be householders and have a family. 
 They must not be aliens, and must be able to 
 read and write. In some jurisdictions they 
 must not have served on the jury within one year 
 or within two years; this is in order to prevent 
 having professional jurors who hang around the 
 court house in hopes of getting on the jury. 
 Other statutes in other places provide that they 
 must be voters, that they must be tax payers, 
 that they must understand the language, that 
 they must not be parties to another suit in the 
 same term of court. The latter is an important 
 
CLASSIFICATION OF JURORS. 97 
 
 provision which should be ascertained as a mat- 
 ter of peremptory challenge if necessary, be- 
 cause they might wish to establish in their own 
 suit the very thing that they would try to bring 
 about if they sat as jurors. 
 
 In some places jurors must not be members 
 of a corporation. It does not happen so often 
 in large cities but in smaller jurisdictions some 
 person may be encountered who is indirectly in- 
 terested against a litigant as a member of an as- 
 sociation. It constantly recurs for instance in 
 some States where they have a prohibitory liquor 
 law or local option law that people form as- 
 sociations to suppress the sale of intoxicating li- 
 quors and when litigation results some of these 
 very people are chosen on the jury. If that is 
 not ground for challenge for cause it would be 
 wise to make a peremptory challenge. 
 
 In some frontier States there are still associa- 
 tions formed among farmers to prevent horse 
 stealing and a horse thief on trial before a jury 
 of members of that association would fare ill. 
 
 If a juror in a case against a city happened 
 to be a very heavy tax payer it might be a reason 
 for challenging peremptorily because though one 
 verdict would not affect him very much he might 
 think that indirectly and ultimately it would 
 affect him by being a precedent for other cases. 
 
 So various circumstances then with reference 
 
98 TRIAL TACTICS. 
 
 to the jurors must be borne in mind because 
 they may affect the litigants or their attorneys ; 
 the relations of landlord and tenant, of princi- 
 pal and agent, employer and employee, or part- 
 ners must be considered; the interests of stock- 
 holders, of men engaged in lines of business sim- 
 ilar to those involved, of keepers of public re- 
 sorts, might influence their decisions. In a suit 
 against a city a city official would make a poor 
 juror because directly or indirectly he might feel 
 it to his advantage to hold out for the city. 
 
 Opinions on the questions of sanity and in- 
 sanity are important ones on which to probe the 
 jury where the case may involve the defense of 
 insanity or a kindred morbid mental state, hys- 
 teria or nervous depression. 
 
 Some jurors will state in advance that they 
 would not convict a man on circumstantial evi- 
 dence though criminal cases as a rule depend al- 
 most entirely or to a very great extent on this 
 kind of evidence. It happens at times that a 
 principal will turn State's evidence but the ac- 
 cused does not as a general thing surround him- 
 self with witnesses in order that they may see 
 him kill somebody and circumstance is the only 
 kind of evidence obtainable. 
 
 The following account of the notorious Luet- 
 gert case in 1897, in which Luetgert was ac- 
 cused of murdering his wife and boiling up the 
 
CLASSIFICATION OF JUEORS. 99 
 
 remains to dispose of them is taken from a news- 
 paper clipping of that date. 
 
 ''With two exceptions all the challenges for 
 cause yesterday were on account of previously 
 formed opinions which the venire men felt they 
 could not put out of their minds. One venire 
 man was prejudiced against the police whose 
 testimony he believed was like butter, and 
 another, a fashionably dressed real estate man 
 whom both sides tried hard to keep, said he had 
 strong prejudice against circumstantial evi- 
 dence." The prosecution in that case was en- 
 tirely dependent upon circumstantial evidence 
 so if this man had a strong prejudice against cir- 
 cumstantial evidence, he necessarily would stand 
 out for an acquittal. 
 
 Many jurors have not much confidence in the 
 police and the prosecution must challenge such 
 jurors off because the prosecution is so often 
 dependent upon the evidence of the police. It is 
 stated on good authority that some city attorneys 
 have a rule never to call a policeman as a wit- 
 ness. They feel that some of the jurors would 
 not believe policemen, thinking they may have 
 been sent there to tell a story on behalf of the 
 city ; and if jurors are dissatisfied with one wit- 
 ness they are apt to be dissatisfied with the whole 
 prosecution or defense. If the jury gets an idea 
 that there is a hired witness on one side they get 
 
100 TRIAL TACTICS. 
 
 the impression that the whole side is crooked. 
 In the same Luetgert case a man was chal- 
 lenged because he would not believe a policeman 
 on oath. Another man was challenged because 
 he was supposed to be a member of the A. P. A., 
 which if it ever really existed was supposed to 
 be an organization of people who feared the 
 Catholic influence in this country — the Ameri- 
 can Protective Association — to protect the Amer- 
 ican people against the encroachments of the 
 Catholics. If this man admitted that he was a 
 member of the A. P. A. and was on the jury, he 
 would of course have a very strong prejudice 
 against every witness who happened to be a 
 Catholic, and his tendency would be to refuse to 
 believe any Catholic witness. Another juror 
 was thrown out because he said he was a friend 
 of Inspector Schaack. Inspector Schaack was 
 the police officer who aided the prosecution in 
 preparing the case. On the other hand three 
 were rejected because they were Catholics. To 
 quote further from the newspaper clipping, "One 
 was a bookkeeper who convinced Judge Gary 
 and the State after hours of argument that he 
 would make a fair minded juror and was per- 
 emptorily challenged by the defense." In his 
 examination it was probably revealed that he 
 had an opinion on the case of which the defense 
 was afraid because in a shocking offense of that 
 
CLASSIFICATION OF JURORS. 101 
 
 kind the natural inference is that the opinion is 
 against the defendant. He could not have a 
 prejudice in favor of the defendant because he 
 knew nothing of him, and hence if he had an 
 opinion it would be against the defendant. Af- 
 ter hours of argument he persuaded Judge 
 Gary that he would yield to the court's instruc- 
 tions but no doubt he came to that so reluctantly 
 that the defense challenged him, being still 
 afraid of him. 
 
 After there is an acceptable jury in the box it 
 is well to take some reasonable precaution — as- 
 suming the case to be of great importance — to 
 see that the jury is not tampered with. It is a 
 matter for regret that there is much endeavor in 
 some communities to bribe jurors and it behooves 
 the careful practitioner to be on his guard. It 
 will be found for instance in very important 
 cases that the State's Attorney has caused the 
 jurors to be watched most assiduously from the 
 moment they are examined in the court room un- 
 til the verdict comes in. The jurors may not 
 know that they are being watched ; possibly not 
 even the State's Attorney's own assistants are in 
 his confidence in the matter ; but the State 's At- 
 torney and his detectives know, and at times it is 
 a very wise precaution. 
 
 Anything that may tend to influence the jury 
 must be under observation, for instance news- 
 
102 TRIAL TACTICS. 
 
 paper accounts where the newspapers are read 
 by the jurors. Care must be taken to see that 
 no improper influence comes to them in that 
 way. The courts have at times set aside verdicts 
 where it was shown that the jurors, while in at- 
 tendance on the trial read sensational accounts 
 of the case in newspapers. The jury should not 
 be influenced by anything of that kind and it 
 is altogether likely that in every jurisdiction 
 where a jury was found to be influenced by sen- 
 sational, inflammatory narratives in the newspa- 
 pers it would be the lawyer 's duty to call the mat- 
 ter to the attention of the court immediately upon 
 discovering it. If the matter was so serious 
 as to deserve the discharge of the jury, the court, 
 no doubt, might discharge the jury and call a 
 new one and take pains not to have a recurrence 
 of the offense, or the court might satisfy itself 
 with ordering the jurors not to be influenced by 
 what they had read, although the efficacy of that 
 is questionable. It is very hard for a juror, al- 
 though ordered so to do, to cast out of his mind 
 any impression which has once lodged there. 
 
CHAPTER VII. 
 
 PREPARATION OF THE WITNESSES. 
 
 THERE is some work to do in the office be- 
 fore the case is called. The witnesses 
 must be prepared for the court room work. 
 In the first place attention must be given to see 
 that the right witnesses are at hand and not the 
 wrong ones ; witnesses who throw some light on 
 the case instead of those who do not. Some- 
 times there is a superabundance of witnesses 
 and in the interest of economy a few must be se- 
 lected and the others omitted. Sometimes wit- 
 nesses leave the city before the trial or are hard 
 to reach, so the choice must be carefully made. 
 Frequently upon examination witnesses fail to 
 cover the point that they have been relied upon 
 to cover. 
 
 A client for instance, accused of assault, in- 
 sists to his lawyer that it was a case of self-de- 
 fense, that the other man beat him first and the 
 question is practically who struck the first blow. 
 The client comes into the office with a lot of 
 neighbors and friends and kinsmen who were 
 present at the altercation and who all say that 
 he was not to blame, that the other party struck 
 
 103 
 
104 TRIAL TACTICS. 
 
 first and with one accord they declare that they 
 saw the altercation. Five or six are picked out 
 and the others are allowed to go. When it conies 
 to the trial these witnesses do state that the other 
 party struck first but on close inquiry it is found 
 that what they mean by this is that so far as they 
 observed the other party struck first. This is 
 meaningless because' they did not observe what 
 happened from the very beginning. This is one 
 of the most common occurrences to be found in 
 all kinds of cases. Witnesses on cross-examina- 
 tion are frequently made utterly useless. The 
 witness asked "What first attracted your atten- 
 tion to this?" answers "I heard shouting and 
 turned and looked," or "I heard angry words 
 just as I came to the street, as I turned the cor- 
 ner," thereby admitting that he had not seen the 
 beginning of the affair. Before the shouting 
 something must have happened or else there 
 would have been no shouting. Before the blow 
 that he saw there probably was another blow 
 which he did not see and on cross-examination 
 he is forced to admit that he did not see the very 
 beginning and hence his testimony is utterly use- 
 less. His adversary will say that that was not 
 the first blow but that the client had prior thereto 
 struck the adversary and that he has witnesses 
 who saw the affair from the very beginning. 
 The lawyer may have had witnesses, who if 
 
PREPARATION OF WITNESSES. 105 
 
 carefully examined would have disclosed that 
 they saw the very beginning, yet by his inad- 
 vertence or his negligence he failed to bring 
 those witnesses to court and the witnesses who 
 did come were not able to support their side of 
 the controversy. 
 
 So all the theory of the testimony should be 
 gone over in advance to see that every proposi- 
 tion involved in the case is covered by the wit- 
 nesses whom he has, assuming of course that he 
 has witnesses on the proposition. Of course 
 there will be propositions on which the client is 
 in the wrong altogether and then the honorable 
 thing to do is to try to get the matter adjusted or 
 to get it settled, or in a criminal case to try to 
 get the client off easily. But where he has the 
 material for success his clear duty is to pick out 
 the right material and not to ignore it. 
 
 In preparing a case a client will frequently say 
 upon a certain point, "Oh, we do not need any 
 witness on that. They won't contradict that," 
 but that is a very dangerous suggestion to fol- 
 low. They may not be called upon to deny it. It 
 may first have to be established. The other side 
 should never be depended upon to prove a state- 
 ment because, when called upon as a witness, in 
 the first place they testify grudgingly and with 
 many explanations which probably weaken and 
 ruin the proposition; and secondly, since their 
 
106 TRIAL TACTICS. 
 
 opponent has made them his witness, to that ex- 
 tent their character is not allowed to be im- 
 peached. If one side calls the other side as wit- 
 ness they cannot afterwards impeach him. In 
 some jurisdictions it may be shown by other 
 witnesses that he has made a misstatement of 
 some fact or facts, but in no jurisdiction is it al- 
 lowed to impeach his character as such. The re- 
 sult is that when forced on the stand as a witness 
 for his adversary he is given an air of credibil- 
 ity, and when later he appears as his own wit- 
 ness on his side of the case, the rest of his testi- 
 mony comes to the jury under the sanction of his 
 credibility and he is not allowed to be impeached 
 as a man not to be believed under oath. So prac- 
 titioners should not put themselves in that posi- 
 tion unless it is absolutely unavoidable. There 
 are cases possibly where it is necessary to call 
 the other side as a witness by force of law, and 
 under those circumstances he is not said to be a 
 witness for the side that calls him, but he is rec- 
 ognized as a hostile witness and it is barely pos- 
 sible that when he then takes the stand for his 
 own side he may still be treated as a hostile wit- 
 ness and impeached upon general lines. 
 
 In the course of preparation it should be 
 borne in mind that the witnesses may never have 
 been in a court and they should be cautioned to 
 tell the plain simple facts of the case, to tell 
 
PEEPAEATION OP WITNESSES. 107 
 
 them quietly and calmly, and so far as they can, 
 disinterestedly. They should be dispassionate 
 because they are to tell the truth for the one side 
 as well as for the other. They are not called 
 upon to take sides and if they allow themselves 
 to take sides they impair the force of their testi- 
 mony by their demeanor. A great many wit- 
 nesses think it is a part of their duty to come into 
 the court room and be as disagreeable as they 
 can, even spiteful toward the other side, toward 
 the litigant and the witnesses and everybody else 
 on the other side. Such a witness would better 
 be kept out of the court room, for no matter how 
 truthful he may be the effect is altogether bad 
 for his side of the case. 
 
 Witnesses must also be prepared to give the 
 ultimate facts in the case and not their conclu- 
 sions from the facts because the court will rule 
 out a conclusion, will not allow the question to 
 be put which calls for a conclusion and will not 
 allow a conclusion to stand which is given by 
 way of answer. The witness not accustomed to 
 these technicalities is at a loss to know how to 
 proceed and very frequently is unable to proceed 
 at all. He blunders a little and then is ordered 
 to step down from the stand, when perhaps his 
 testimony was very vital in establishing that side 
 of the controversy. Parties in cases have some- 
 times been forced to a non-suit, although they 
 
108 TRIAL TACTICS. 
 
 had the material at hand to win their side of the 
 case honestly and fairly, through the inability of 
 their witnesses to give a technical or legal ex- 
 pression to their views. 
 
 What is conclusion and what is a statement 
 of fact is not always easy to determine. A very 
 skilled intellect is sometimes required to deter- 
 mine that and consequently it is the more im- 
 portant to go over the ground in advance with 
 witnesses. In the very common questions of 
 sanity or insanity, health or sickness, drunken- 
 ness or sobriety, of speed of trains or slowness 
 of trains, the matter varies in various jurisdic- 
 tions. In some, questions are allowed as to the 
 conditions of the party or of the matter ob- 
 served; a witness may be asked to state the 
 manner in which the train was going and the 
 witness may answer that it was going fast or 
 slow. In other jurisdictions that is held to be a 
 conclusion and erroneous, because they hold that 
 the witness should give only what the witness 
 observed and the jury will tell whether that was 
 fast or slow. In some jurisdictions also the wit- 
 ness may be asked what was the condition of the 
 party before the accident and after the accident 
 but even then it is a little difficult to put the mat- 
 ter. The witnesses must be made to understand 
 that they are not allowed simply to answer that 
 the party was well before the accident and sick 
 
PREPARATION OF WITNESSES. 109 
 
 after the accident, because that is a conclusion — 
 or to state that he looked well before the accident 
 and sick after the accident — that is a conclu- 
 sion. The witness will have to state the details 
 of his observation, as for instance, "Yes, I saw 
 this party the day before she was hurt. I re- 
 call the fact that she was brought home in the 
 ambulance. Prior to that time I had seen her 
 very often and she was a healthy looking 
 woman." Somebody may then object that 
 "healthy" is a conclusion, and in some States 
 it is held to be a conclusion, so the witness will 
 be asked for more details. "Well, she walked 
 erect and straight and sprightly and her eyes 
 were bright and her complexion was clear, even 
 blooming and reddish, and her general manner 
 was of activity, and her weight was substantial, " 
 and so on. All those details are gone into in 
 some jurisdictions. "What did you observe 
 next?" "After this occurrence when she was 
 brought home in the ambulance I did not see 
 her for a while. ' ' The other witnesses have said 
 that during that period she was in bed. "Well, 
 what then?" "Well, about a month or two 
 after that I saw her for the first time. " " What 
 did you observe?" "She looked shrunken, her 
 complexion was pallid and her eyes were dim and 
 she walked in a tottering manner," and so on. 
 Those are facts as distinguished from conclu- 
 
110 TRIAL TACTICS. 
 
 sions. In some jurisdictions such detail of fact 
 is held to. Of course every thing in this world 
 is to some extent a conclusion since a conclusion 
 is a deduction made from a group of facts back 
 of it. But after all some groups can themselves 
 be solved by a single statement. To take a very 
 elementary illustration, a witness would be al- 
 lowed to say that he saw his friend walk across 
 the room, though technically that is a conclu- 
 sion. He might go into detail and say, "I looked 
 at him and he stood at the north end of the room ; 
 I then saw his right foot rise in the air and 
 move forward about 18 or 20 inches and then 
 strike on the floor, and then his left foot lift and 
 move forward of the right foot about 18 inches 
 and then it went down on the floor." These are 
 the facts and in that way the progression is de- 
 scribed from one end of the room to the other, 
 but practically they are all included in the state- 
 ment that the man walked across the room. To 
 this extent statements of facts are not considered 
 conclusions, though they might be conclusions 
 because the man might not have walked across 
 the room at all. There might have been a rope 
 extended across the room and a derrick pulling 
 him across the room. But where a group of 
 facts has thus been stated in the plain accepted 
 way the error in the conclusion, if there was one, 
 may be shown by cross-examination. If the man 
 
PREPARATION OF WITNESSES. HI 
 
 possibly did not walk across the floor the other 
 party may ask, "Did you not see that there was 
 a rope about his shoulders and that the rope ex- 
 tended up in the air 1 " " Yes, I observed that. ' ' 
 "Then didn't you see that there was a man at 
 the other end pulling on it % " " Yes, I saw that. ' ' 
 So he is broken down on cross-examination. 
 
 The Supreme Court of Illinois has held that 
 a witness may testify that a train was moving 
 very fast, but a trial court has refused to allow 
 a witness to say that because he believed it to be 
 a conclusion. So if a witness has told his lawyer 
 in his office that the train was moving fast, which 
 is an important point in the case, he should not 
 be allowed to go at that, because, having no ex- 
 perience in the court room and excited from the 
 novelty of the situation he may break down on 
 cross-examination and his evidence may be 
 stricken out. If a witness says that the train 
 was going fast it is well to find out how he 
 knows that. Then on study and reflection in the 
 lawyer's office the scene will come back to him 
 because he has time to think and is not con- 
 fused; whereas in the witness chair with the 
 novel surroundings and the people looking at 
 him he may be at a loss. The judge may be per- 
 emptory and while he hesitates, confused, call 
 another witness. But the witness really remem- 
 bers that the train was going fast because he was 
 
112 TRIAL TACTICS. 
 
 walking along the sidewalk, observing the mat- 
 ter. He himself was in a hurry and he observed 
 that the train had gone three blocks while he 
 walked half a block. Those things attracted his 
 attention and with time for consideration in the 
 lawyer's office he will recall the circumstances. 
 Or there may have been another basis of com- 
 parison. He may be accustomed to riding a bi- 
 cycle and it may have left an impression at that 
 instant that the train moved past him faster than 
 anything he had ever observed before, either ve- 
 hicles or animals. 
 
 Few things, again, are so hard to recall defi- 
 nitely from memory as matters of time, so where 
 the question of time is an important factor 
 search must be made in the preparation of a case 
 for corroboration or correction of a witness. 
 The human memory is utterly incapable of accu- 
 rately grasping in the abstract matters of time. 
 Things that happened thirty years ago may ap- 
 pear quite as vivid as those that happened 
 two years ago. No witness can tell offhand 
 from memory even the approximate time at 
 which an occurrence took place. The human 
 memory in the matter of dates seems to look 
 down a vista, as the eye looks down a lane be- 
 tween rows of trees. The first ten, twenty or 
 thirty trees are quite distinct, but beyond that 
 they all appear to grow together and become 
 
PREPARATION OF WITNESSES. 113 
 
 indistinguishable. So where the fixing of a date 
 is an important point tangible corroborative ev- 
 idence should be found to aid the memory. 
 
 In any ultimate statement of a particular fact 
 •the lawyer should see that his party is prepared 
 properly to stand cross-examination. And he 
 must find out whether he has the witness who 
 can best cover the proposition or whether he 
 must hunt about and find other witnesses. 
 
 The lawyer must also ascertain whether the 
 witnesses are telling the truth, because many wit- 
 nesses first through inadvertence and secondly 
 through partisanship for their friend will tell 
 things which are not true. In the first place 
 they are not telling things under the sanctity of 
 an oath and they fail to consider that in the court 
 they will be. Then again they may believe the 
 things they say. Their partisanship, their bias, 
 has influenced their intellect or observation so 
 that they honestly believe their own story, but a 
 lawyer can see that it is not true, that it is exag- 
 gerated — possibly purposely, perhaps uncon- 
 sciously, and he must quiet them down and get 
 at the bottom facts. 
 
 Many witnesses turn themselves into a sort of 
 advocate, believing that they are to champion 
 the side that they are on, either in the lawyer's 
 office or in the court room. They think that they 
 must study ways to give the answers which 
 
114 TRIAL TACTICS. 
 
 are the most favorable in their view to the side 
 to which they are friendly. That idea must be 
 removed. They must be made to understand 
 that all that is wanted is the bottom facts, that 
 it is for the lawyer to determine what use to 
 make of them. It is his duty to prepare the case 
 on his side as he understands it and present it 
 in court. The witness must not be allowed to 
 impose on his lawyer, to tell an exaggerated or 
 perverted story which is relied upon and which 
 later collapses in court and undermines that side 
 of the case. His story should be exploded in 
 the lawyer's own office if it is going to be ex- 
 ploded anywhere. 
 
 It is perhaps most difficult to elicit a perfectly 
 honest statement from a witness on questions of 
 opinion, because the evidence differs only so 
 far as the parties themselves feel an interest in 
 the case. If a client has an interest to prove 
 that a certain property is very valuable the cli- 
 ent 's witnesses, being friendly to him, will put 
 an immense value on the property — not dis- 
 honestly but thinking to do him a kindness and 
 because they wish it to be that way. The wish 
 is father to the thought. On the other hand, if 
 the wish is to have the property of little value 
 they will state that the property is worthless. 
 A little illustration of that recently cost a party 
 nearly a hundred dollars. The question was 
 
PREPARATION OF WITNESSES. 115 
 
 upon the conversion of some chattels; the con- 
 version was practically proved and the ques- 
 tion was how much the property was worth, 
 one party contending that the property was 
 worth $200 and the other party contending that 
 the property was worth $100. The party that 
 was contending for the low value so exaggerated 
 as to testify that the property had no value at 
 all, was absolutely worthless. Later it was es- 
 tablished beyond question that it had a value of 
 at least $120. The result was that the jury ig- 
 nored all that line of testimony and gave the 
 highest value. The party could have gotten off 
 by paying $120 if he had told the plain truth; 
 but the jury was dissatisfied with his testimony 
 altogether, threw it all out, and took the val- 
 uation of the other side. 
 
 So in preparing the witness and clearing his 
 narrative the correctness of that narrative must 
 be tested in the lawyer's office. The witness 
 may insist that a certain demand for the pay- 
 ment of a note was made on a certain day and it 
 may be important to know just the date. It 
 may occur to the lawyer that the witness' state- 
 ment will not stand the test in court; that pur- 
 posely or erroneously he is giving a wrong date. 
 He has heard from some other witnesses, or 
 from what he knows of the opposing side, that 
 that cannot be the date. So he must have the 
 
116 TRIAL TACTICS. 
 
 witness search his memory, search for the cor- 
 roborative facts ; produce the correspondence or 
 the book entries until he finds the right date and 
 finds it fundamentally established, as he some- 
 times may, by indisputable evidence of book en- 
 tries, letters written or received, or other docu- 
 ments, perhaps records in the recorder's offiee — 
 mortgages made or released. The matter must 
 be set together absolutely right so that it cannot 
 be defeated by any counter evidence or any con- 
 tradiction. A searching inquiry may show fail- 
 ure to make timely or any demand; in which 
 event an altogether different topic presents it- 
 self, and if it can be established the suit must 
 proceed on allegation and proof of waiver. 
 
 At times in this probing and searching process 
 if a lawyer is still dissatisfied, thinks that the 
 witness has not got the facts exactly right and 
 that he will not stand a cross-examination suc- 
 cessfully he must inquire if there are not other 
 witnesses and keep inquiring until everybody 
 that could possibly know anything about it is 
 presented to him and a thorough examination 
 made. He may find that his client has brought 
 the feeblest and least important witnesses and 
 has omitted to point out to him the strongest, 
 clearest and most important witnesses. 
 
 It is a singular thing that people will lie when 
 it would be to their interest to tell the truth, but 
 
PKEPARATION OF WITNESSES. 117 
 
 quite a large percentage of humanity is so con- 
 stituted. The first impulse of a witness and of 
 a litigant usually is to contradict unless he is re- 
 peatedly warned that all that is wanted of him 
 is an honest statement of the facts; that the 
 lawyer will deal with the case himself. If the 
 opponent for instance testifies that he saw the 
 client Saturday afternoon at the First National 
 Bank the client will immediately state that this 
 is not so and if he is not headed off will swear 
 in his zeal that the opponent never saw him at 
 any place at any time, while it may be one of the 
 strongest points in his case to prove that that 
 very thing is true — that the opponent did see 
 the client Saturday afternoon at the First Na- 
 tional Bank. Sometimes it is to be accounted 
 for by a misunderstanding, sometimes by the 
 surroundings. As has been suggested before, 
 the situation is novel and the witnesses may not 
 intend to tell lies but they do not understand 
 the bearing of the matter and they will tell that 
 which is either a lie or a great mistake. It is 
 a most common occurrence for instance for a 
 witness on the stand to insist that he has never 
 spoken to a human being about the occurrence 
 when it is common knowledge that he has talked 
 with his own lawyer about it or with his 
 friend's lawyer, if he is there for a friend. 
 Asked, "How could you say such things'?" he 
 
118 TRIAL TACTICS. 
 
 will answer, "Oh, well, I meant that I did not 
 talk with anybody else. I supposed everybody 
 knew that I would talk to the lawyers." That 
 is in many cases the explanation of his misrep- 
 resentation. 
 
 Some witnesses do not intend to be honest and 
 it is an indication of their dishonesty when they 
 will say even an unimportant thing falsely. 
 The witness who will testify falsely to a very 
 unimportant thing discredits his whole testi- 
 mony and in discrediting his whole testimony 
 he discredits the entire case, because the jury 
 will say that if he lies in one particular he 
 has lied in all and if that side must rely upon 
 a lying witness doubtless all their witnesses 
 are equal liars. So a single blundering wit- 
 ness or a single falsehood, even an uninten- 
 tional one, by mistakenly giving a false answer 
 to a minor question may injure the whole case. 
 It at least gives the adversary an argument, 
 whereas without it the adversary might have no 
 point of attack at all. 
 
 In the preparation of the case in the office 
 such things as writings must also be carefully 
 examined. The lawyer should not take any 
 other person's statement for them; should not 
 take any copy or allow his client or any witness 
 to tell him that there is a certain letter which 
 contains certain things, or that there is a certain 
 
PREPARATION OF WITNESSES. 119 
 
 contract with certain terms. He must demand 
 the original, have it brought to his office and read 
 it for himself. He will probably have difficulty 
 in doing this but he will have still more difficulty 
 if he does not. 
 
 A certain case was in court for several years 
 with three sets of lawyers; when the case came 
 to a final hearing the last lawyer examined the 
 original instead of a copy and won the case. 
 The case had been going for ten years upon a 
 copy of an abstract of title, everybody assuming 
 that the copy told the entire truth. But upon 
 ihe final submission the last set of lawyers in- 
 sisted upon examining the original back of the 
 copy and in that were found a few lines which 
 were not in the copy and which turned the en- 
 tire case. 
 
 It must always be expected that the adversary 
 is making the strongest possible move and the 
 fact that a lawyer is looking at a copy can be 
 no indication to him that his opponent is not 
 looking at the original. If he finds something 
 in the original that is not in the copy he will 
 use it or not, as it serves his advantage. He is 
 not there to furnish ammunition to his adver- 
 sary. There is no duty, either in morals or in 
 law or anywhere else for him to do so. If he 
 should expose that information to the other side 
 he would be subject to disbarment. He is not 
 
120 TEIAL TACTICS. 
 
 there for that purpose. Each man looks out for 
 his own side ; so if one man has the original he 
 will use it if it is for his interest, and he will 
 not use it if he finds it is not. If a lawyer's 
 clients have only copies and not originals proper 
 steps should be taken to have the originals 
 brought into court. 
 
 Every proposition advanced by the witnesses 
 must be tested in the lawyer's office, first with 
 reference to the circumstances which are known 
 to exist, and second with reference to the state- 
 ments made by other witnesses to see whether 
 the statements made by this witness, compared 
 with those made by the others are reasonable or 
 unreasonable. If they are unreasonable state- 
 ments there is something wrong. Either the 
 witness is deceiving himself or is deceiving his 
 lawyer or a prior witness is deceiving him. He 
 must find out which is the truth. He cannot 
 bring conflicting witnesses into court for they 
 will ruin his case. He must see, if possible, 
 that all the statements of things claimed by the 
 one could have existed in view of the statements 
 made by the other. 
 
 What may be deemed weak points must be 
 found out in advance. For instance one witness 
 gives an account of an occurrence and it is 
 learned from the witness that he is brother of 
 the client, a fact that is not self-evident because 
 
PREPARATION OF WITNESSES. 121 
 
 their names are not the same. The client is a 
 married woman and the witness is a man and 
 hence their names are different, although they 
 are brother and sister. Some witnesses deem it 
 wise to hide that relationship. They think if it 
 appears during the trial that they are closely re- 
 lated the jury will think their testimony biased ; 
 will think the witness is lying to help along or 
 to shield his sister. All the facts as to their 
 relationship should be obtained and candidly 
 stated in the witness chair. It is better when 
 the witness is testifying to establish in a quiet 
 way that he is the brother of the client than it 
 is to allow the cross-examiner to disclose it with 
 the effect of making a great revelation. "Ah! 
 You are the brother ! " As much as to say, ' ' Ah f 
 gentlemen of the jury, that accounts for it all:" 
 It is better to bring out the fact naturally if it 
 does exist. 
 
 If a point has been fairly well established by 
 one or two plain-spoken, well appearing, good, 
 strong witnesses, especially those in whom the 
 jury, has confidence, who are of good reputation 
 in the community and entirely disinterested in 
 the controversy, examination on the matter 
 should be confined to those witnesses. It is a 
 mistake to accumulate unnecessarily a great 
 many witnesses on one point because some of 
 the others, through lack of intelligence, may not 
 
122 TRIAL TACTICS. 
 
 stand cross-examination so well as the first and 
 may weaken the case all along the line. Espe- 
 cially if the proposition is not expected to be the 
 crucial point of the case it should not be over- 
 loaded with witnesses because by giving it un- 
 due prominence and causing the jurors to think 
 that that is the turning point in the case they 
 will fail to be impressed afterwards with the real 
 point of the case. If there is a choice of wit- 
 nesses those should be accepted who are most 
 pleasing to the jury. Without disparagement 
 to men who frequently are worthy, it is advis- 
 able for instance not to call detectives if it can 
 possibly be helped because a detective does not 
 appeal to the sympathies of a jury. The jury 
 have an idea that a detective is hired and that 
 he will testify accordingly ; that he will be eager 
 to win for his side of the case and at all events 
 will want to earn his fee and possibly thus en- 
 sure future employment. Of course the evi- 
 dence of detectives is sometimes absolutely in- 
 dispensable and if it cannot be avoided there are 
 detectives and detectives, just as there are peo- 
 ple and people in every community. There are 
 detective agencies with a reputation in every 
 community; men of upright character who in- 
 spire confidence and if it is necessary to have 
 them at all those should be obtained who inspire 
 respect. 
 
PREPARATION OF WITNESSES. 123 
 
 That there is good ground sometimes for look- 
 ing upon detectives with suspicion a small item 
 taken from the Chicago Post some time ago will 
 show. 
 
 "DETECTIVES GIVEN A SPUR." 
 
 Colleran Points to the Records, and Hints 
 at More Telling Work. 
 
 Posted in a conspicuous place in the squad- 
 room of detective headquarters is a list of the 
 records of the detectives during the month of 
 November. Captain Colleran again attended 
 roll-call to-day, and told the officers what they 
 would be expected to do if they did not wish to 
 be transferred from the Central Station. 
 
 The record gives the total number of arrests, 
 fugitives returned, and total amount of stolen 
 property recovered. The following communica- 
 tion was read : 
 
 "To Officers of the Detective Bureau :- 
 
 "Please note the record for detectives for 
 November. In looking it over you will see that 
 arrests without conviction are of no account to 
 this office. Criminal arrests are what we are 
 after. It behooves some of you, if you wish a 
 continuance in this office, to wake up and do 
 public duty. That is what we are here for. If 
 not, look out for a transfer. 
 
 "Luke P. Colleran, 
 "Chief of Detectives." 
 
124 TRIAL TACTICS. 
 
 That is an indication to the detective that he 
 must convict his man and if the jury had the 
 information that this notice indicates — that the 
 detective is bound to produce a conviction if 
 possible — the jury would naturally think the de- 
 tective was ready to go to any extreme in get- 
 ting a conviction, even to the extent of telling 
 a falsehood. It would weaken his testimony 
 greatly. 
 
 The witnesses should be given to understand 
 that they are to give the whole truth and nothing 
 but the truth, but not more than the truth, be- 
 cause that may be injurious. Unfortunately 
 there are instances where their misguided zeal 
 has caused them to make exaggerated statements 
 that bring ridicule upon themselves and injure 
 the side of the case that called them. There is 
 a case often quoted which goes something like 
 this: A woman was claiming money from the 
 estate of a deceased uncle, alleging that the un- 
 cle had promised it to her to pay for her serv- 
 ices. She could not testify against the de- 
 ceased, so a friend of hers testified but did not 
 quite cover the case, because the Court held that 
 under the circumstances there should have been 
 an express promise, not merely an implication, 
 and in the course of the arguments the Judge 
 said, "If the deceased had said right here, in the 
 light of these Missouri cases, that he would pay, 
 
PREPARATION OF WITNESSES. 125 
 
 it might be different." The complainant's law- 
 yer insisted that that had been covered and the 
 Judge said, "Recall your witness." She had 
 heard all the talk and the lawyer said to her, 
 "Did you entirely cover that conversation that 
 you told us about?" "Well, I heard that uncle 
 say, ' And if in the light of these Missouri de- 
 cisions you have done this work I will pay 
 you !' " There may have been and probably was 
 some talk about pay but the witness in her ex- 
 cess of zeal exaggerated and spoiled her evi- 
 dence. 
 
 The witness should be given to understand 
 that only the facts are wanted, the truth and no 
 more and no less and in the plainest manner. 
 Either A and B happened or A and B did not 
 happen; but a witness must not be allowed to 
 say "I don't remember," because this disinte- 
 grates his entire testimony. If a thing hap- 
 pened very long ago, naturally a witness cannot 
 remember every detail but if it is a thing of re- 
 cent occurrence the witness either knows it or 
 does not know it. He should not be allowed to 
 put off his lawyer with "I don't remember," or 
 "It is so, to the best of my knowledge and be- 
 lief," or "So far as I can recollect." He either 
 knows it or he does not know it; it either hap- 
 pened or it did not happen. He must not hesi- 
 
126 TRIAL TACTICS. 
 
 tate about any one point because this simply 
 weakens his testimony on other points. 
 
 In the case of a witness who is very youthful, 
 as part of his preparation for the court room it 
 must be ascertained that he understands the na- 
 ture of an oath and understands what he is going 
 to do and if asked in court by the judge or by 
 the lawyer, as to the nature of an oath, as he will 
 be, that he knows what it all means. It is right 
 and proper to instruct him if he has not had the 
 instruction, or to get some competent person to 
 instruct him, his parents or those of the same 
 religious belief. A very young child who has 
 never had his mind directed to such things at 
 all, coming for the first time into a witness chair 
 in the court room, gazed upon by a great many 
 people is terrified and cannot understand — un- 
 less he is extremely mature intellectually — what 
 is going on, and very important testimony is 
 sometimes unnecessarily lost, simply from the 
 embarrassment of the witness. 
 
CHAPTER VIII. 
 
 PRESERVING THE EVIDENCE. 
 
 THERE are various ways to preserve evi- 
 dence and bring it into court. One of 
 the ways is by taking depositions. Wit- 
 nesses cannot always be relied upon to come to 
 court, especially if they live at a distance. So 
 it is advisable to take their depositions in order 
 that if they do not come the deposition will be 
 there to cover the point. The point may not be 
 a di3puted one, but it has to be covered because 
 if it is not covered there is a link missing in the 
 chain of evidence and the case cannot be estab- 
 lished at all. In a damage case for injuries, for 
 instance, it must be proved that the horse and 
 wagon which ran over the plaintiff belonged to 
 the defendant. After it is proved the defendant 
 will not contradict it but still it must be proved 
 in oraer to establish the case at all. Now a 
 point like that may be covered by a deposition, 
 perhaps the deposition of the driver of the horse. 
 He may have gone to a distant state and may not 
 be ^resent but his deposition, if it has been 
 taken, may show that uhc horse belonged to the 
 defendant and establish that point. 
 
 127 
 
128 TKIAL TACTICS. 
 
 Many lawyers take a signed statement from 
 the witnesses, and some take a sworn statement. 
 Everything considered, it is advisable to take a 
 signed statement from a witness. For in- 
 stance a client comes into a lawyer's office and 
 says that there has been a terrible calamity in 
 his factory the night before. A large piece of 
 machinery fell, and injured somebody. It is ad- 
 visable then and there for the client to bring 
 the witnesses to the lawyer's office and for him 
 to go over the matter with them thoroughly, to 
 get their facts, write them out, and have them 
 sign their statement. Some even have them 
 swear to the statement, which is rather meaning- 
 less, because an oath, under such circumstances 
 has no legal effect. The advantage of having 
 these statements is that the case may come on 
 for trial perhaps three or four years after- 
 wards ; by that time, the witnesses may have be- 
 come unfriendly; they may have left their em- 
 ployment, and may have some ill-feeling against 
 the client. If they then appear as witnesses 
 against the client and misrepresent the facts, 
 statements which they themselves signed at the 
 time may be used to refute them and to show 
 what the facts really were, and in that way their 
 testimony is defeated. It will sometimes be 
 found that if the witnesses afterwards turn and 
 want to defeat the client they will declare that 
 
PRESERVING THE EVIDENCE. 129 
 
 the statement they gave was not put down as 
 they said it, but that the attorney and his ste- 
 nographer took it down falsely. Some lawyers 
 are careful to have the witness write the whole 
 statement and sign it himself, so he cannot after- 
 wards say someone put it down falsely. Even 
 then a mendacious employe who writes and signs 
 such a statement and later testifies against the 
 client may declare that he was coerced under 
 threat of discharge to write a false statement. 
 Of course if that develops on the witness stand 
 it is very bad for the client, even though it is 
 untrue. So the matter of signed statements has 
 its advantages and its disadvantages. How- 
 ever, everything considered it would seem ad- 
 visable to take the signed statements; to take 
 them if possible in the handwriting of the man 
 who makes the statement and in the presence of 
 some reliable, intelligent person as witness who 
 can later show in court, if necessary, that the 
 statements were properly taken. 
 
 In regard to a point which is apt to be con- 
 tradicted while it is well to cover it by a deposi- 
 tion to be used in case of necessity it is much 
 better to have the living witness in court than 
 a deposition, assuming that the witness is one 
 who makes a good appearance in court. If the 
 witness is one who make a bad impression it is 
 better to take his deposition because this can be 
 
130 TRIAL TACTICS. 
 
 done quietly in the office of a notary. Some- 
 times people are extremely nervous and will 
 therefore make a bad public impression yet they 
 will make a very fine deposition if taken in the 
 quiet of a notary's office. 
 
 In some states the law seems to be somewhat 
 defective in this respect. Depositions are not 
 allowed to be taken in all cases but only in those 
 given in the statute, for instance if a witness is 
 sick or about to leave the state. In the absence 
 of such conditions depositions cannot be taken 
 but if it still may be necessary to take the deposi- 
 tion, there is in some jurisdictions a process 
 called the perpetuating of evidence, the taking 
 of testimony in an entirely new suit, an original 
 suit. That kind of evidence has been used with 
 good effect in a case at law in this way. A man 
 had been killed by falling machinery and the 
 only witness who could give any testimony what- 
 soever about it was the engineer, at the time in 
 the employment of the defendant. It was 
 feared that the defendant would see to it that 
 the engineer was out of the city at the time of 
 the trial in order that the plaintiff could not sub- 
 poena him. So the plaintiff's attorneys imme- 
 diately instituted this additional or collateral 
 suit, called a suit for the perpetuating of testi- 
 mony and in that suit took the testimony of the 
 engineer and laid it away for future reference. 
 
PRESERVING THE EVIDENCE. 131 
 
 Their precaution proved to be well taken be- 
 cause when the case approached trial they were 
 not able to find the engineer but by having this 
 testimony they were enabled to force a very good 
 settlement out of the defendant; whereas in 
 the absence of that testimony the plaintiff would 
 have appeared without any evidence and neces- 
 sarily would have been non-suited. 
 
 If a witness is unable to speak English an 
 interpreter should be provided in the court. Of 
 course the benefit of the witness is lost if there 
 is not an interpreter, and it is as much the law- 
 yer's duty to have one present as it is to have 
 the witness present. It is not the duty of the 
 court to furnish an interpreter nor to wait until 
 one is obtained. There are cases where very im- 
 portant testimony has been lost because it was 
 to be given through witnesses who could not 
 speak English and the attorney had omitted to 
 provide an interpreter. The interpreter should 
 of course be skilled because it is not every one 
 who is able to interpret even though he is well 
 informed in both languages. He has to be very 
 ready and very accurate and a man of consider- 
 able strength of memory to catch what is said 
 and remember it and repeat it accurately. 
 
 Preparation must be made from the office also 
 that subpoenas are served, that the witnesses are 
 found to be in attendance, that those who come 
 
132 TRIAL TACTICS. 
 
 voluntarily are there and those who refuse to 
 come voluntarily are forced to come by sub- 
 poena. It is a paradoxical truth that it is good 
 policy not to subpoena witnesses who must be 
 forced to come and to subpoena the witnesses 
 who do not have to be forced in. It weakens the 
 testimony of a witness when he seems too eager, 
 too willing to come to court but if he is sub- 
 poenaed in, to the question, "Why are you 
 here?" he can simply answer, "I was subpoe- 
 naed here." If he comes of his own accord it 
 looks much as though he were eager to help that 
 side, and although it should not be so it weak- 
 ens his testimony in that regard. On the other 
 hand a witness who does not want to come and 
 is to his inconvenience forced in with a sub- 
 poena, is apt to get very angry about it and to 
 take the first opportunity to escape. If the case 
 goes over until the next day he will not come 
 back unless care is taken to have an order of 
 court compelling him to come back. And per- 
 haps even when he testifies he will show antag- 
 onism. So it is well to try to get such a witness 
 to come without a subpoena. Of course no gen- 
 eral rule can be laid down which is not subject 
 to modification with regard to the people who 
 are being dealt with. 
 
 Notices to produce must be served if there are 
 documents which have to be brought in. Copies 
 
PRESERVING THE EVIDENCE. 133 
 
 are not allowed to be offered or statements of 
 the contents of writings unless a demand has 
 first been made in such a way as the law requires, 
 to have the originals there. If the adversary 
 in a litigation has the instrument in question a 
 notice to produce the original must be served 
 upon him or his lawyers. But if another person, 
 a person not in the litigation, has the original 
 paper then a subpoena duces tecum must be 
 served upon him, an order to bring with him the 
 particular paper in question and the paper will 
 have to be sufficiently described. This subject 
 however is covered in detail in the books. 
 
 As has been said before, the presence of the 
 living witnesses is to be preferred, if at all ob- 
 tainable, to their depositions. Frequently the 
 presence of witnesses in court and their appear- 
 ance in court have great influence upon the jury. 
 There is a story told which is perhaps not in 
 keeping with the highest ideal of advocacy, but 
 it is related of Rufus Choate, probably the 
 greatest American jury lawyer of his time. It 
 is said that he was defending a man who was 
 sued by a woman, no longer youthful, who 
 claimed that this man had agreed to marry her 
 and had broken the agreement. While the wo- 
 man bore traces of years the man was extremely 
 youthful looking although he was well along in 
 years and he happened to be of comparatively 
 
134 TRIAL TACTICS. 
 
 slight stature. The story is that Choate caused 
 him to be dressed in short trousers in a boy's suit 
 with a large collar coming down over his jacket 
 and shoulders, and presented him in that man- 
 ner in court as though he were a mere infant, 
 young enough to be the child of the woman in 
 question. This story is printed on pretty good 
 authority about Rufus Choate, but though it 
 may have been an effective trick it is doubtful 
 whether it is to be commended. There are sim- 
 ilar tricks that will be found mentioned in text 
 books and in popular treatises but some of them 
 are woefully near improper practice and should 
 not be commended. They should be guarded 
 against when an attempt is made by the adver- 
 sary to practice them. 
 
 A trick often resorted to in the case of a man 
 accused of a heinous offense, murder for in- 
 stance, is to have his mother sit beside him in 
 the court room. There have been cases where it 
 is said that great advocates have borrowed or 
 hired a mother to sit beside the accused in the 
 court room and look grief stricken. That comes 
 very near deserving disbarment. Of course the 
 defendant has the advantage. If he is found 
 not guilty that is the end of it because the State 
 cannot get a new trial. But if anything like 
 that is practiced in a civil case and is found out 
 and a verdict is obtained by imposition there is 
 
PRESERVING THE EVIDENCE. 135 
 
 no doubt that the verdict would be set aside. It 
 might be urged that the man has the right to 
 have some one sit beside him because if he had 
 no mother he should have one; if his mother 
 were alive or within reach most likely she would 
 be sitting there with him, but that does not neces- 
 sarily follow. So far as the proper manage- 
 ment of the case is concerned it is no doubt the 
 duty of the attorney to observe within the pro- 
 prieties of his profession all those minor matters 
 which appeal so much to the jury in such cases, 
 but at times it may be overdone. 
 
 Injured people may be seen sitting in the pres- 
 ence of the jury and exhibiting to the jury the 
 stump of the arm or of the leg where the rest of 
 the member was sawed off by machinery or cut 
 off by a car. This is held allowable and no 
 doubt it is conducive to results ; perhaps if it is 
 not done the plaintiff will blame his lawyer if 
 the verdict is small or if the verdict is for the 
 defense. The courts have held such things per- 
 missible but in the writer's opinion they should 
 not be permitted. They serve no purpose in en- 
 lightening the jury and are certainly merely for 
 the purpose of exciting sympathy and prejudice. 
 If a man testifies for instance that his foot was 
 cut off at the ankle, and that he wears a wooden 
 foot encased in a shoe, the jury cannot be en- 
 lightened any more by having him remove the 
 
136 TRIAL TACTICS. 
 
 shoe and the wooden foot and show the stump 
 sawed at the ankle. 
 
 Much preparation is necessary then in the 
 presentation of the subject matter. For in- 
 stance, the condition of the machinery, or the al- 
 leged defective sidewalk involved in the litiga- 
 tion may be in question. At the present time 
 these matters are frequently reproduced in the 
 presence of the jury by means of photographs. 
 The lawyer should make wise provision in that 
 regard if he has the opportunity. But time is 
 required to do all these things. When the case 
 is on trial it cannot be done; neither can the 
 court wait to give the opportunity to do it then. 
 The time to attend to all of this is when pre- 
 paring the case in the office. 
 
 Sometimes provision is made for the jury to 
 go and look at the locality in question. It is a 
 very common practice in condemnation cases for 
 the jury itself to determine to what extent a rail- 
 road has affected a particular street and the 
 buildings on the street, and thus to estimate the 
 damage done to the surrounding property. 
 That has its advantages and its disadvantages. 
 The side that is sure to win may ask to have this 
 done because where the jury itself sees the sub- 
 ject matter the verdict given by them is rarely 
 disturbed. The trial judge may not have been 
 along, or if he was he is not a juror and what the 
 
PEESENTING THE EVIDENCE. 137 
 
 jury saw cannot get into the evidence, into the 
 record, even by means of photographs and the 
 reviewing court will say — "The jury saw these 
 objects, so why should we say the jury made a 
 wrong decision upon things which it saw, when 
 we have never seen them at all?" Every pre- 
 sumption will be of the correctness of the jury's 
 decision. 
 
 Parties at times display ponderous machinery 
 before the jury, especially in patent cases. In 
 one case 50 feet of rope about three inches in 
 diameter were exhibited, which was rather ab- 
 surd because the party who was interested in 
 that rope need have shown only six inches of it 
 and then let the imagination of the jury supply 
 the rest. But that party presented that long 
 rope and the reviewing court said, "The jury 
 saw the rope and we did not, ' ' so they would not 
 assume that the jury had drawn a wrong con- 
 clusion from the appearance of the rope. 
 
 In a recent case a stone weighing 135 pounds 
 was brought into the court room. The question 
 was whether it was a proper stone to form one 
 of a series of steps. Fortunately the court took 
 the case from the jury and the opponent must 
 now get the stone into the record if he wants to 
 take the case higher. The risk was taken be- 
 cause the defendant's attorney knew that this 
 stone could be carried through all the courts if 
 
138 TEIAL TACTICS. 
 
 necessary and he was satisfied that the jury 
 would from the mere inspection of the stone say 
 it was a suitable one. This seemed a proper 
 thing to do because the witnesses were saying 
 that it was very defective, that it was crooked 
 and weak and so it seemed advisable to allow the 
 stone to speak for itself. It was found to be a 
 very good looking stone and the court took the 
 case away from the jury. But nothing should 
 be taken into court which cannot be used if the 
 case goes the wrong way. 
 
CHAPTER IX. 
 
 THE OPENING STATEMENT. 
 
 IN his opening address in court the lawyer 
 must explain to the jury more fully than 
 he did before, the nature of the case. It 
 will be remembered that when the jury was 
 chosen the attorneys explained to the jurors in 
 a brief, general statement what kind of case it 
 was; now the particular nature of the case on 
 trial must be stated. The attorney tells them 
 that he is for the plaintiff and he gives them an 
 outline of what he expects to prove. He will 
 state for instance that his client worked for a 
 certain number of years for the defendant at a 
 certain kind of work at an agreed price, that he 
 received some pay and that the balance is un- 
 paid. He will then give them the details of the 
 circumstances. 
 
 After the plaintiff's attorney has spoken, in 
 both criminal and civil cases, the defendant 's at- 
 torney has the right to speak and to tell the jury 
 in a brief outline what the defense is going to 
 be. It is the law in probably every jurisdiction 
 that the defendant's attorney may here do one 
 of three things. He may open with a statement 
 
 139 
 
140 TKIAL TACTICS. 
 
 of his defense, or he may waive the statement 
 altogether or he may reserve it. He either tells 
 what his outline of defense is or says he does 
 not care to do so ; or he waits until the plaintiff's 
 evidence is all in or the prosecution's evidence 
 is all in, and then makes his statement of the de- 
 fense. That is permissible but care must be 
 used in doing it. If the defendant's attorney 
 says he waives his statement or in a vague sort 
 of way says he does not care to make a statement 
 he afterwards cannot make any. But if he says 
 he reserves it he can make it later. There is a 
 good deal to be considered in determining the 
 manner of making the statement of defense and 
 whether to make it at all or not. 
 
 As a general rule the defendant ought to make 
 a statement because although the plaintiff has 
 technically the burden of proof, sometimes he 
 really has not much burden; his case is simply 
 stated and practically is such that it can not be 
 easily contradicted; but the defense is perhaps 
 some entirely new affirmative matter. Now 
 once more as to the plaintiff's statement : assume 
 a case in which the plaintiff is injured by a rail- 
 road collision in which essentially the negligence 
 of the company is not going to be greatly contro- 
 verted, or the care of the plaintiff, or the extent 
 of the injury; but it will eventually appear 
 that the company relies on a release as defense. 
 
THE OPENING STATEMENT. 141 
 
 In such a case the plaintiff's statement is a very- 
 perfunctory matter. But assume that the 
 plaintiff's case is going to be resisted on all ma- 
 terial points. Then the plaintiff's attorney 
 should open the case clearly and fully and 
 strongly for this reason: He has the burden 
 upon him. He has to show to the jury that he is 
 entitled to get money from the defendant, if it is 
 a civil case, or that he is entitled to have the ac- 
 cused sent to prison or to the gallows if it is a 
 criminal case. He must convince the jury of 
 that ; he has to build up the case ; he has to start 
 from the foundation and make the superstruc- 
 ture and the roof and the complete building ; be- 
 cause if there is anything wanting in the edi- 
 fice the jury cannot hold with him. 
 
 It is well known from experience how diffi- 
 cult it is to listen for the first time to a new 
 reader or speaker, whose voice is a little differ- 
 ent, to grasp thoroughly what he says. Now of 
 the men in the jury box, one is possibly the 
 driver of an omnibus, a person who can scarcely 
 read, who has never heard any one read. An- 
 other one is perhaps a salesman, who of course 
 is more accustomed to the ordinary affairs of the 
 day than to continuous use of the intellect. Im- 
 agine then jurors knowing nothing about this 
 logical structure that is going to be built and 
 eight or ten witnesses, one after another, com- 
 
142 TRIAL TACTICS. 
 
 ing up and describing something to them; rat- 
 tling off their evidence when perhaps the court 
 room is noisy, so that not one-third of what they 
 say can be heard, much less understood. Such 
 evidence as that is as hard for the average juror 
 to follow unaided as an opera without the 
 libretto. He must first get a clew to what is 
 coming; then it is very easy to understand and 
 very pleasant. A good, strong opening is a 
 libretto. It is an explanation to the jury, in 
 general terms perhaps, but nevertheless a clear 
 and distinct outline of what is coming; and a 
 good, strong opening will carry the jury even if 
 they have not heard a word of the testimony, so 
 long as there is no one to contradict it. The 
 jury will believe that the testimony they hear 
 is the testimony that the opener said would 
 come. 
 
 The construction of the opening may again 
 be compared to the building of a house. Of 
 course there are exceptions to everything, but 
 the general idea should always progress step by 
 step in the most natural, logical and reasonable 
 sequence. A house builder does not first hang 
 the roof up in the air by props and then later 
 add the superstructure and then the foundation. 
 The foundation is first laid, then the main struc- 
 ture is erected and ultimately the roof. Last of 
 all some ornamentation is possibly added. And 
 
THE OPENING STATEMENT. 143 
 
 so in the statement of the case, ordinarily the 
 earliest part chronologically should be stated 
 first; that is where the matter started. Then 
 the next step and then the next should be added 
 in logical sequence. 
 
 Suppose for instance a very complicated mur- 
 der case in which it is wished to show a motive 
 for the homicide. The prosecutor perhaps 
 starts in by saying that the accused is indicted 
 for a murder committed in December, 1904. 
 Then he would not properly say, "In July, 1904, 
 there was a very serious quarrel between the ac- 
 cused and the deceased, and then, Gentlemen of 
 the Jury, I should tell you that before that, some 
 years ago, the deceased offended the accused by 
 insulting a member of his family." That would 
 be going backwards, building the house from the 
 roof down and confusing the jury. He should 
 start at the beginning: "This tragedy has its 
 origin in the year 1901, at which time the de- 
 ceased married the sister of the accused. They 
 lived happily together for six or seven months 
 and then bitter feelings arose between this hus- 
 band and wife and after awhile we find that she 
 commenced complaining to the accused of her 
 husband; later more bitterness developed, etc." 
 In this manner he should carry the sequence 
 right up to the date on which the fatal blow 
 
144 TRIAL TACTICS. 
 
 was given and the jury would grasp the entire 
 affair. 
 
 An instance of a civil case may be given, a 
 complicated case about a contract relating to 
 land. The lawyer should start at the early ne- 
 gotiations ; state that a paper contract was given 
 with reference to them, but that when later 
 somebody else offered to buy the property it was 
 disclosed that the first statement made to the 
 first purchaser back at the beginning was false. 
 Then when he discovered that the first statement 
 made to- him was false he immediately made a 
 demand to have his money returned. This is 
 better than to begin by saying that the plaintiff 
 served a notice on the defendant that he wanted 
 his money back because a statement he had made 
 to him three years before was not true. Going 
 backwards in that manner confuses the jury. 
 The case should be opened clearly and chrono- 
 logically. That as a rule is the best way, for it 
 ends the statement just where it is wanted to de- 
 termine the present issue. 
 
 The statement should be plain, clear, concise, 
 and the language have very few adornments. 
 Anything in the way of oratory or pathos should 
 be reserved for the closing argument. Its value 
 is discounted by bringing it out too soon because 
 it will fall flat when it is most needed. At pres- 
 
THE OPENING STATEMENT. 145 
 
 ent simple logic is all that is wanted, simple in- 
 formation for the jury. 
 
 This is the general principle on which the 
 plaintiff should make his opening, but of course 
 it must be varied in accordance with the nature 
 of the case and it is the duty of the advocate to 
 use his material to the best advantage. So if 
 the plaintiff has a very clear case where the sym- 
 pathies and the evidence are for the plaintiff he 
 should open to the jury fully. But if the client 
 is an aged person or a crippled person with a 
 very slim case prudence would dictate avoiding 
 too closely accurate details and the opening 
 should be more broad. 
 
 The opening for the defense is on very much 
 the same theory. If the defendant has a strong 
 defense, if he has a defense which is logical and 
 clear and which he feels confident he can sup- 
 port with good, honorable testimony, and espe- 
 cially if there is much sympathy in behalf of the 
 defense, it would be well for him to open 
 promptly because he has nothing to fear. Be- 
 sides if the plaintiff has opened his case and the 
 defendant has not it gives the plaintiff the ad- 
 vantage that the statement of his case and of his 
 witnesses comes unimpaired in the first instance 
 to the jury, which tends at the beginning to cre- 
 ate a very strong impression on the jury, one 
 which it is afterwards difficult to overcome. If 
 
146 TRIAL TACTICS. 
 
 after the plaintiff has opened his case and before 
 he has called any witnesses the defendant, if he 
 is sure of his ground, opens his defense and 
 shows to the jury on what he relies, he discred- 
 its, as it were, the plaintiff's case and it does 
 not go to the jury with such force as if the de- 
 fendant had not opened. 
 
 On the other hand it is very frequently a 
 source of danger to the defense to open, because 
 it may expose the defense to the risk of the 
 plaintiff's building up a part of his case from 
 the defense itself, which otherwise the plaintiff 
 could not do or possibly did not have the in- 
 formation to do. There may be some point 
 missing in the plaintiff's own case which the 
 plaintiff really needs from the defense ; and if 
 the defense is good enough to supply that point 
 it helps to build up the case. 
 
 A case where the plaintiff is injured in a piece 
 of machinery may be an illustration. It must 
 be shown that the defendant was negligent in 
 having that particular machine in that particu- 
 lar condition. The plaintiff is frequently help- 
 less in that matter. He has not had the advan- 
 tage of examining the machine in question, 
 whereas the defendant has had that benefit. 
 Now if the defendant opens and discloses the de- 
 fense, conceding, for instance, that the particu- 
 lar piece of machinery was out of order for a 
 
THE OPENING STATEMENT. 147 
 
 long time but claiming as a defense that the 
 plaintiff gave a release or receipt against the in- 
 jury the defense has actually established for the 
 plaintiff the plaintiff's case; something that the 
 plaintiff could not have established for himself, 
 namely, the fact that the machinery was out of 
 order and in what respect it was out of order. 
 
 Therefore, where there is nothing to gain by 
 opening, and only something to lose, the de- 
 fense should not open at all. The defense 
 should not waive the opening but should reserve 
 the opening, because then when the plaintiff is 
 through and the plaintiff's case is all in, the de- 
 fendant may give his opening address and to a 
 great extent demolish the plaintiff's case, which 
 is already in, by weakening the impression it has 
 made with the jury, thus paving the way for the 
 jury to receive more kindly and with more force 
 what the defendant will then put in by his wit- 
 nesses. 
 
 Very frequently the defense has little to gain 
 by the opening after the evidence for the plain- 
 tiff is in. As a general rule the defense gains 
 by reserving the opening, unless his innocence is 
 unquestionable, in which case it is well to tell ttn 
 jury so at once. A practical general rule ic that 
 if the defendant is guilty it is wise to be careful 
 about the opening; to hear all that is possible 
 and lie low. If he is innocent he cannot tell the 
 jury too quickly. „ 
 
CHAPTER X. 
 
 INTRODUCING THE EVIDENCE. 
 
 AN important point in the conduct of a case 
 is the separating or excluding of the wit- 
 nesses, in regard to which the practice 
 differs in different jurisdictions. Some hold 
 that the request to exclude or separate the wit- 
 nesses, to "put them under the rule," as it is 
 technically phrased, must be made immediately 
 at the beginning of the case ; that is even before 
 the opening statements are made. Others have 
 the practice that the motion shall be made im- 
 mediately after the opening statements and 
 before any witness is called. Still others have 
 the practice that either party may make the 
 motion; for instance before the plaintiff puts 
 in his witnesses the plaintiff may move the 
 court that the witnesses be separated and if the 
 ruling is favorable all the witnesses go out, both 
 the plaintiff's and the defendant's, except the 
 chief witness on each side, who remains in. 
 For instance the plaintiff himself remains in, 
 the defendant himself remains in or if one 
 of the parties be a corporation some person 
 stays who represents the corporation. 
 
 148 
 
INTRODUCING THE EVIDENCE. 149 
 
 In some jurisdictions if the motion is not 
 made then by either side the plaintiff puts on 
 his own witnesses; then, when the defendant 
 calls his witnesses the plaintiff may move that 
 they be separated. In other jurisdictions how- 
 ever if the plaintiff or defendant fails to make 
 the motion in advance before the plaintiff's wit- 
 nesses are heard neither party can make the 
 motion after the plaintiff's witnesses have been 
 heard. The Court would not exclude the de- 
 fendant's witnesses if the plaintiff's witnesses 
 were not also excluded. 
 
 If the witnesses are excluded it means of 
 course that each one shall testify without hear- 
 ing the others. Suppose however the witnesses 
 are sent out but the plaintiff who is an impor- 
 tant witness remains in the court room. Now if 
 the plaintiff calls first an outside witness this 
 to some extent overcomes the separation of wit- 
 nesses because if that witness testifies first the 
 plaintiff hears what he has to say and gets the 
 benefit. So if the plaintiff is in the court and 
 his witnesses are out and he is about to call 
 other witnesses the defendant should move that 
 the plaintiff testify first in order to get the bene- 
 fit of the separation of witnesses. The granting 
 of this motion rests somewhat on discretion, 
 and in some jurisdictions the Court will say that 
 he cannot control the manner in which the plain- 
 
150 TEIAL TACTICS. 
 
 tiff shall call his witnesses and will refuse to 
 entertain the motion. In some jurisdictions 
 however it has been held error not to grant that 
 motion for the reason that the separation of wit- 
 nesses has been overcome as has been shown. 
 At all events whether it is error or not error or 
 whether the Court will grant the request or not 
 the defendant ought to make the motion be- 
 cause if the plaintiff insists that he will not tes- 
 tify until his witnesses have testified he thereby 
 weakens himself materially before the jury be- 
 cause this is equivalent to saying to the jury 
 that he is afraid to testify before his witness 
 does for fear he will contradict his witness. 
 
 The separation of witnesses may be of vast 
 benefit, though as with many other things this 
 depends somewhat upon which side of the case 
 a lawyer is on. If he has a case in which he 
 feels that he is undoubtedly in the right and yet 
 fears that the opposition may defeat him by a 
 mass of witnesses most of whom possibly are 
 crooks and perjurers he should by all means in- 
 voke the rule. If he feels clear and strong in 
 regard to his own witnesses, that they are telling 
 the truth and that any one who opposes them 
 must necessarily be false he should see that the 
 witnesses are separated, because in this way he 
 gets the best chance of exposing a liar. Sooner 
 or later those who are telling lies and who do 
 
INTRODUCING THE EVIDENCE. 151 
 
 not hear their confederates' stories will contra- 
 dict each other. Of course under these circum- 
 stances contradictions in the important and 
 essential parts of the story will seldom be found 
 because liars are usually shrewd enough to tell 
 a pretty good story. They have it arranged be- 
 forehand so that to a certain extent it will tally ; 
 but sooner or later they will be caught and there 
 is a better chance of catching them in something 
 if they are kept apart than if they all sit in the 
 court room and listen and learn how those who 
 preceded them evaded the cross-examiner. 
 Even though the liar is not caught directly he 
 will be caught indirectly because those who are 
 outside do not know what is taking place inside 
 and they will be afraid when they come inside 
 to say either yes or no for fear of being con- 
 tradicted. They will say, "I don't remember," 
 or "I ought to know but I don't know," and 
 finally they will say that they do not know some- 
 thing which they must necessarily know if they 
 are telling the truth. If they are not caught in 
 a direct contradiction they will be detected in an 
 indirect contradiction. The more stupid ones 
 will be caught in the indirect contradiction and 
 the more crooked ones who are eager at all 
 hazards to carry their side through will be 
 exposed by the more flagrant contradictions. 
 It is well also if possible to keep the witnesses 
 
152 TEIAL TACTICS. 
 
 in the court room before the case is reached so 
 that they will become accustomed to the sur- 
 roundings. They may see how other cases are 
 tried and overcome the stage-fright which any 
 witness unaccustomed to court-room work suf- 
 fers when first called into the witness chair. 
 The warning may be repeated which has been 
 given before; to instruct the witnesses to tell 
 the plain, straightforward truth and to answer 
 questions as they are put without feeling that 
 they are obliged to be the attorney or the advo- 
 cate. Some witnesses seem to think that because 
 they testify for a side they must help to win the 
 case and in their zeal they do more harm than 
 good. It should be impressed upon them that 
 they are simply to tell the facts and above all 
 that they should not attempt to be smart or glib 
 or anything of that kind. Efforts of this sort 
 make a poor impression and have a bad effect on 
 their side. 
 
 If the witness is badgered too much by the 
 cross-examiner the natural sympathy of the jury 
 will be aroused in favor of the witness. He 
 need not attempt to fence back; a trial is not a 
 fencing match between the witness and the cross- 
 examiner. If the witness is badgered to an un- 
 endurable extent his judgment will usually sug- 
 gest in the most natural manner a pertinent and 
 proper answer without any effort on his part 
 
INTRODUCING THE EVIDENCE. 153 
 
 to be smart or to adopt such language as the 
 lawyer addresses to him. 
 
 The instruction may also be repeated to prove 
 propositions when possible by one's own wit- 
 nesses. The adversary's witnesses should not 
 be called upon unless it is absolutely neces- 
 sary. 
 
 It is well sometimes to have influential people 
 to testify, for instance when a man is being de- 
 fended who is accused of crime. It is advisable 
 to call his friends to the court room to testify 
 that he is a man of good character. This may 
 be an aid to him because according to law the 
 jury may say that if he is a man of good charac- 
 ter it is not likely that he committed the crime. 
 It is an element by way of defense. Directly 
 it may not count for much in that regard because 
 if the evidence is strong that he committed the 
 crime the jury will probably think that he did, 
 character or no character, but indirectly it 
 amounts to a great deal especially in small com- 
 munities. Suppose for instance that in de- 
 fending a man accused of a crime some ten or 
 twelve of the leading citizens of the city, who 
 know the client, come into the court room and 
 testify that he has always been a man of good 
 character. Indirectly this influences the jurors 
 to believe that a man who has so many influ- 
 ential friends must be a pretty good sort of a 
 
154 TRIAL TACTICS. 
 
 man and if the case is close that may decide in 
 his favor; if the case is decidedly against him 
 and it is a question of punishment they may give 
 him a milder punishment. They think a great 
 deal more of him if worthy people believe in 
 him than if he is there without any friends in 
 the world, as a mere tramp and a vagabond. 
 Furthermore among those twelve influential men 
 who are brought into the court room there may 
 be some who are very friendly with some of the 
 jurors. Some of them may be employers and 
 some of the jurors may be working for them. 
 At all events there is a manifest advantage in 
 vouching for the good character of the client 
 and inducing the jury to give him all the con- 
 sideration they possibly can. 
 
 All these things are part of the manoeuvring 
 of lawyers, to which they are obliged to resort, 
 to win their cases. Some of them may appear 
 to be trickery ; they may seem to be taking un- 
 due advantage; but under the present system it 
 is a lawyer's duty to employ them because his 
 opponent is doing the same thing and if he re- 
 frains from doing so he is violating his duty to 
 his client and giving his opponent an unques- 
 tionable advantage. 
 
 Care should be taken to put the evidence in 
 just right ; not too much, not too little but care- 
 fully and to cover each point. A case that re- 
 
INTKODUCING THE EVIDENCE. 155 
 
 cently happened in court is a very good illustra- 
 tion of the careless method frequently employed. 
 A railroad company was being sued and its law- 
 yer had proved the running of the trains and the 
 schedule of the trains between certain stations. 
 He had a small printed pamphlet which the rail- 
 road company issued, giving time tables and 
 various other information, and he was trying to 
 offer the schedule in evidence. Strictly speak- 
 ing it was not evidence and the plaintiff's lawyer 
 objected. The railroad lawyer persisted saying 
 that he was willing to allow the little book in its 
 entirety to be in evidence and the plaintiff's 
 lawyer in an offhand way finally said: "Very 
 well, let the whole book be in evidence," and the 
 whole book was put in evidence. The case was 
 finished and in the argument the plaintiff's at- 
 torney stated that it was a shame that so rich 
 a corporation with $20,000,000 of stock should 
 hesitate to pay this poor victim a few hundred 
 dollars. The defendant's lawyer objected that 
 this was not fair, whereupon the plaintiff's law- 
 yer picked up the pamphlet and referred to the 
 advertisement of the railroad company on its 
 back which stated that the company had 
 $20,000,000 of stock. He had a right to argue 
 this because it was in evidence and it had an 
 undoubted effect upon the jury. 
 When an adversary is putting in his evidence 
 
156 TBIAL TACTICS. 
 
 and does not. know how, he should not be helped 
 with it unless he omits something that the other 
 side needs. Suppose for illustration that a 
 widow and children, who always command the 
 sympathies of a jury, are suing an insurance 
 company. In a case like this any defect in the 
 defense will be turned to the plaintiff's advan- 
 tage because the jury is eager to find in their 
 favor. Suppose that the man committed suicide 
 and that the company claims it therefore does 
 not have to pay. The plaintiff's lawyer will 
 then claim that although he killed himself he 
 was not sane at the time and hence not respon- 
 sible. Under the form of policy if he took his 
 own life without responsibility — being insane, 
 the policy remains good. Now the defendant in 
 such a case puts a medical witness on as an ex- 
 pert and asks him: "Doctor, supposing so and 
 so, then in your judgment was the man sane or 
 insane?" Of course it is a foregone conclusion 
 that the medical expert, being there for the com- 
 pany, will say that he was sane ; whatever ques- 
 tions the plaintiff's lawyer may suggest, his 
 answer will be the same. Suppose now that the 
 important points in the case on which to deter- 
 mine sanity or insanity are six, but the defend- 
 ant's lawyer, in putting the hypothetical ques- 
 tion to this doctor puts in only five points. The 
 plaintiff's lawyer, if he is wise will keep quiet 
 
INTRODUCING THE EVIDENCE. 157 
 
 and let it go at that and then in his final argu- 
 ment for the plaintiff will say : 
 
 "Why, Gentlemen of the Jury, of course Dr. 
 Blank for the defendant testified that in his 
 opinion the man was sane ; but you will remem- 
 ber that the question put to him — and you may 
 read it yourselves if any one disputes me; I 
 will read it from the stenographer's notes — you 
 will remember that the question put to that doc- 
 tor covered only propositions one, two, three, 
 four and five, and on those propositions the doc- 
 tor said he was sane. Suppose, Gentlemen of the 
 Jury, they had put to him the proposition num- 
 ber six. They did not dare to put that to him ! ' ' 
 
 The doctor's testimony is thus overcome. But 
 time and again in such a situation the plaintiff 's 
 lawyer makes the mistake of objecting that the 
 doctor's testimony does not cover the sixth prop- 
 osition. "All right," the defendant's lawyer 
 then answers, "Suppose, doctor, it includes that 
 one also, then what do you say?" And the doc- 
 tor of course says, "I still say he was sane." 
 
 It has been suggested before that it is well to 
 know in advance the nature of the witnesses who 
 are to appear on the other side. In criminal 
 cases it is the rule in most places that they have 
 a preliminary examination. Ordinarily the 
 names can be obtained from the indictment but 
 generally the witnesses are examined before a 
 
158 TRIAL TACTICS. 
 
 magistrate on the preliminary examination. In 
 defending an important case it is desirable to 
 appear and cross-examine all witnesses for the 
 State, the prosecution, because in this way many 
 facts can be learned from those witnesses which 
 are of help afterwards if the case is tried in the 
 trial court, in finding suitable jurors, and of help 
 also in cross-examining those same witnesses in 
 the trial court. By cross-examining them be- 
 fore the justice the nature of the witnesses can 
 be learned and how firm and how truthful they 
 are. Experiments can be tried also in the jus- 
 tice court; they can be asked questions even if 
 they turn out to be harmful because later in the 
 upper court the same questions can be avoided. 
 On the other hand if helpful answers are ob- 
 tained it is safe to put the same questions to the 
 same witness in the upper court. If the witness 
 there testifies differently or does not answer as 
 he did before the justice, the reporter or stenog- 
 rapher who heard him testify in the justice 
 court should be produced to impeach him and 
 show that he has sworn differently before the 
 justice, which will weaken that witness materi- 
 ally and weaken the whole prosecution. 
 
 Naturally, on the other hand, in defending a 
 criminal case it is advisable not to put the wit- 
 nesses on at all before the magistrate because 
 this gives the prosecuting attorney the recipro- 
 
INTRODUCING THE EVIDENCE. 159 
 
 cal advantage of cross-examining them. Of 
 course if there is an absolute certainty that a 
 client can be cleared even before the examining 
 magistrate it is well to clear him and save him 
 from the disgrace of being tried and lying in 
 jail and also from the expense of giving a bond. 
 But it is only in a very strong case that it would 
 seem advisable to put in any evidence at all for 
 the defense. As a general rule it is best to give 
 no evidence, to allow him to be bound over in 
 bail and then to formulate the strongest defense. 
 Certainly it may be a disgrace for a man to be 
 bound over to the Grand Jury and to be indicted 
 but for the defense it is safer. It is very much 
 as though the defense were playing cards with 
 the State's Attorney. Before the justice the 
 defendant 's lawyer sees practically all the cards 
 that the State's Attorney holds but the prosecu- 
 tion does not see the cards that the defense holds. 
 Naturally before the trial jury the defendant's 
 lawyer has that advantage ; whereas if the State's 
 Attorney sees his adversary's hand he has an 
 equal advantage. The chances are nine hundred 
 and ninety-nine out of a thousand anyway that 
 the justice will hold the accused over. There 
 are very few cases where the justice releases the 
 accused on the preliminary examination because 
 it is the duty of the examining magistrate to 
 hold him over if there is probable cause, not if 
 
160 TRIAL TACTICS. 
 
 there is guilt beyond a reasonable doubt, or a 
 preponderance of the evidence, but only probable 
 cause. There is probable cause where the pros- 
 ecuting witness swears that the accused com- 
 mitted certain offenses even if the accused 
 swears he did not, because the question who is 
 telling the truth is for the jury and not for the 
 justice to decide. 
 
 In offering evidence, if the question which has 
 been asked the witness is objected to and the 
 Court sustains the objection then the witness is 
 not allowed to answer that question. The Court 
 sustains the objection and the lawyer for the side 
 which has called the witness takes an exception, 
 but that is not enough. It is the general prac- 
 tice in all the jurisdictions that have ever come 
 under the writer's observation that when a law- 
 yer asks a question and his opponent objects, 
 and the Court sustains the objection, he must 
 then go on and indicate to the Court what he 
 expects to prove from that witness with refer- 
 ence to that question: He must indicate that 
 and get it into the record ; the stenographer must 
 take it down, if he has a stenographer. The 
 technical and accurate process is as follows (and 
 some of the reviewing courts are very technical) 
 Question to the witness, objection by opposing 
 counsel, objection sustained, exception by the 
 questioner who says, "And now, your Honor, I 
 
INTKODUCING THE EVIDENCE. 161 
 
 offer to prove by this witness, and expect that, 
 in answer to the question I have put, this witness 
 will testify A. B. plus C. D. Now with my offer 
 of the expected testimony, if your Honor please, 
 I renew the question in the light of this offer." 
 Objection by opposing counsel, objection sus- 
 tained, and again exception by the questioner. 
 If there is an absolutely complete record of this 
 sort so the reviewing court can see that the ques- 
 tion if it had been allowed and had been an- 
 swered in the manner that it was expected to be 
 answered might have produced the result it was 
 expected to produce, if the reviewing court can 
 see that with that material in the record the re- 
 sult might have been different the case will be 
 reversed. 
 
 But if the procedure is simply question to 
 the witness, objection by opposing counsel, ob- 
 jection sustained by the court and exception by 
 questioner who drops the matter there and goes 
 on with the case, if the case is lost and later 
 appealed it will not be reversed because of the 
 court's refusal to allow that question to be an- 
 swered. The reviewing court will say, "We 
 cannot tell that that made any difference. We 
 cannot tell simply from the putting of the ques- 
 tion and the refusal to have it answered that 
 that affected the case in its entirety ; we will not 
 reverse it because it is the duty of the losing 
 
162 TRIAL TACTICS. 
 
 party to persuade the reviewing court that the 
 case in its entirety was affected by the alleged 
 error of the trial court." The reviewing court 
 might well say that the question should have 
 been answered and that for the court to refuse to 
 allow it to be answered was error on the part 
 of the court but it was error without prejudice ; 
 it does not appear that there was any prejudice 
 suffered by the question not being answered be- 
 cause it does not appear what the answer would 
 have been, or might have been; the lawyer put- 
 ting the question has not enlightened the lower 
 court in that regard and hence has not enlight- 
 ened the reviewing court. 
 
 Care should be taken, as has been said before, 
 that the jury is not disappointed in the promise 
 of evidence. If they are led to think that some 
 important matter of evidence is coming, which 
 later fails to come, they think that the case has 
 not been proved although there may be other 
 evidence in the case which should be enough to 
 convince them. An apt illustration of this oc- 
 curred in a trial some years ago. The pros- 
 ecutor stated that he would prove that the 
 accused bought the revolver from a merchant, 
 whom he would produce as a witness. He made 
 such a point of this that everybody was in the 
 utmost suspense when this witness was called 
 and the accused clenched his hands in dread as 
 
INTRODUCING THE EVIDENCE. 163 
 
 lie turned to face him. It was a very unwise 
 thing to rest the entire case on that one proposi- 
 tion because it might be unimportant whether he 
 had bought the revolver or not. There might 
 have been enough evidence to hang twenty peo- 
 ple regardless of that point but a great feature 
 was made of it and when in answer to the ques- 
 tion "Could you say that this is the man!" the 
 witness replied "I could not," the whole case 
 stopped right there. That was enough to dis- 
 appoint at least six of the twelve jurors. The 
 State's Attorney should have had the merchant 
 look at the accused outside of court and unless 
 he had then been able to identify him, he (the 
 merchant) should not have been called as a wit- 
 ness nor should any allusion to him have been 
 made to the jury. 
 
 Sometimes a witness says he can testify to a 
 certain matter, and later in court fails to do so. 
 In that event it is the duty of the prosecutor to 
 tell the jury frankly that that witness has been 
 deceiving him, which is permissible. If the wit- 
 ness tells the prosecutor for instance that he can 
 identify the accused, saying, "He is the man 
 I saw buy the revolver" — and then when that 
 witness is called on trial and says he is not the 
 man it is the duty of the prosecutor to say, "Mr. 
 Witness, did you not tell me in my office that he 
 
164 TEIAL TACTICS. 
 
 is the man?" and to produce a witness to prove 
 that in the office he did so say. 
 
 In regard to the order in which the witnesses 
 are to be called as a general rule it is well, as has 
 been, said, to start with the earliest facts and 
 bring them down to date, like a history or a 
 novel. This makes the matter clearer and 
 plainer to the jury and they follow the case more 
 easily. Begin with the earliest facts thus: 
 "Back in 1850 there was a family living out in 
 the town of Blank and that family had a son 
 James. About 1864 he went to the Civil War 
 and he was not heard from again until 1872 when 
 he was found keeping a tailor shop in Boston," 
 and so on right down to date. The jury follows 
 everything and the witnesses are called in that 
 order to establish the facts. But this general 
 rule admits of a great deal of modification. At 
 times witnesses are stupid and cast more or less 
 ridicule upon themselves, on the direct and cross- 
 examination and it is not well to end a case with 
 a weak witness. The last impression is the 
 strongest, so it is well to keep the clearest, 
 strongest and best evidence until the last, even if 
 this slightly shifts the chronological order. The 
 witness who makes the strongest sympathetic 
 appeal is often left until the last, the widow in a 
 suit by the administrator if her husband was 
 killed or the afflicted mother whose son perished 
 
INTRODUCING THE EVIDENCE. 165 
 
 in an accident. There is not the slightest doubt 
 that the mere presence on the witness stand of 
 the afflicted relative, even if her testimony be 
 upon a comparatively minor question, aids in 
 drawing the kindly feelings of the jury towards 
 that side of the case. Those things must all be 
 borne in mind in arranging the work. 
 
 Sometimes the witnesses must be taken as they 
 can be gotten; possibly they are not always at 
 hand. If there are a good many depositions to 
 be read they should not be read first but should 
 be saved for emergencies if at any time the 
 witnesses give out. Lawyers sometimes make 
 the mistake of reading all the depositions and 
 then run out of witnesses before adjourning 
 time and their other witnesses not having ar- 
 rived they have to take a non-suit. All these are 
 matters of detail but they are important at 
 times. 
 
 It is obviously highly important in offering 
 evidence to see that the evidence is consistent and 
 to know what it is necessary to prove, but it is 
 surprising how many lawyers fail in both 
 regards. 
 
 The issue involved must be known, and the 
 nature of the proof and how much evidence is 
 needed to establish it. In other words the issue, 
 the burden of proof and the quantum of proof. 
 The burden of proof is the necessity to prove; 
 
166 TRIAL TACTICS. 
 
 the quantum of proof, the weight or mass of 
 proof necessary to establish the burden. The 
 quantum of proof varies on different issues; in 
 some it requires the preponderance of evidence, 
 in others satisfactory evidence, which is a little 
 more than preponderance, and in others evidence 
 beyond a reasonable doubt, which is the greatest 
 amount of evidence demanded. Sometimes the 
 plaintiff must prove the proposition ; sometimes 
 he has nothing or little to prove and the defend- 
 ant must do the proving. These questions must 
 be known when preparing a case. 
 
 Suppose the plaintiff sues upon a note; the 
 plaintiff does not have to prove who signed the 
 note unless the defendant, in some jurisdiction 
 by pleas and in other jurisdictions by an affi- 
 davit, puts the signature into issue. In this 
 case the plaintiff has to prove the signature. It 
 would be absurd, if that issue were not upon 
 the plaintiff, for the plaintiff to commence prov- 
 ing the signature as though he were afraid of 
 his own note. If some of his witnesses should 
 be a little weak the jury might become suspicious 
 of the note and if there were some other defense 
 in the ease they would decide for the other de- 
 fense because of their impression that there was 
 something wrong about the note. If the defend- 
 ant did not put the signature into issue it cer- 
 
INTRODUCING THE EVIDENCE. 167 
 
 tainly would be a great mistake for the plaintiff 
 himself to do it. 
 
 It is not always easy to determine what the 
 issues are. For instance in some cases sanity 
 or insanity may be the issue, as in the insurance 
 case which has been cited before. If the plain- 
 tiff sues on a contract and the defendant wants 
 to avoid the contract on the ground that the 
 defendant was insane then the burden is on the 
 defendant. If the plaintiff sues on an insur- 
 ance policy and the defendant claims the de- 
 ceased killed himself, which is admitted, but 
 the plaintiff claims that he was not responsible 
 at the time because he was insane, then the bur- 
 den is on the plaintiff. 
 
 Burden of proof must not be confused with 
 presumption of proof. Sanity for instance is 
 supposed to exist. All human beings are as- 
 sumed to be sane, though it is a violent assump- 
 tion in some cases, and hence in the absence of 
 any evidence at all the individual in question 
 is assumed to be sane and evidence is required to 
 show that he was not sane. Just as in a criminal 
 case the State must prove that the accused did 
 the act and that the accused was capable of doing 
 the act or else there is no crime, while the ac- 
 cused is assumed to be innocent until he is proved 
 to be guilty, so sanity is assumed to exist until 
 it is overthrown by evidence. 
 
168 TRIAL TACTICS. 
 
 One of the most interesting questions of issue 
 and the fixing of the burden arises under the 
 principle of res ipsa loquitur, which applies 
 where the affair tells its own story and no other 
 evidence is necessary. Thus if a man walks 
 along a street and a large bundle falls out of 
 the window of the fourth floor of a store and hits 
 him on the head and injures him, all that he must 
 prove is that he was walking along the street 
 and that the bundle fell out and hit him. After 
 that the affair speaks for itself; it tells its own 
 story, that somebody upstairs neglected some- 
 thing in allowing that bundle to roll out of the 
 window and must be made to pay the damages. 
 The assumption is that the matter is entirely 
 under the control of the owner of the store, which 
 matter, if properly conducted, would ordina- 
 rily not injure people and as this matter has 
 injured somebody it has therefore not been pro- 
 perly conducted. So the burden is on the 
 defendant to prove such matters as indicate that 
 he properly conducted his business and that 
 nevertheless the injury happened. For instance 
 he will say that he had merchandise up there 
 pressed against the window, which is true ; that 
 he needed the space, which is true; that across 
 the window he had put solid iron bars two inches 
 square that would hold thousands of pounds; 
 that he bought these bars from a foundry com- 
 
INTRODUCING THE EVIDENCE. 169 
 
 pany which made the best bars in the United 
 States and paid the highest price for them; but 
 that suddenly and without warning one of the 
 bars broke and his goods fell out of the window 
 and caused the injury; that he went then and 
 looked to the bar which had broken and found 
 that externally it was perfectly sound but inter- 
 nally there was a defect in the casting and that 
 the makers of the bar would say that the best 
 casting in the world might have that defect ; they 
 cannot look into it and they have to take that 
 chance. 
 
 It is barely possible that in such a case the 
 f oundrymen might be liable but the owner of the 
 store has neglected nothing ; he went to the best 
 foundry, paid the highest price, bought the best 
 article and put a light weight against it and still 
 it broke. Under these circumstances the mer- 
 chant would be released ; he would not be liable. 
 
 In this way the doctrine of res ipsa loquitur 
 establishes a case until it is overcome by evidence 
 which thus overthrows it. This principle is 
 very frequently applied in railroad matters. In 
 a typical case the plaintiff was a passenger on 
 a car which ran off the track, fell over and in- 
 jured him. He need prove no more. The doc- 
 trine is that a car properly managed will not 
 ordinarily fall over; hence the inference arises 
 that the car was not properly managed. 
 
170 TRIAL TACTICS. 
 
 This applies where the entire operation is in 
 the hands of the defendant and so if one car be- 
 longing to a railway company crashes into 
 another car belonging to the same company the 
 passengers recover because of this doctrine, 
 unless the railway company can show that the 
 occurrence took place from some reason beyond 
 their control; that is beyond the exercise of the 
 utmost care on their part consistent with the 
 practical conduct of the road; for instance that 
 they examined the brakes, wheels and everything 
 but to their surprise one of them broke by rea- 
 son of an interior defect and thereby caused the 
 accident. In the case however of a car coming 
 from one direction and a team coming in the 
 other direction and injuring a passenger, it is 
 held that it may just as well be said that the man 
 with the team drove it carelessly toward the car 
 as to say that the man controlling the street car 
 drove it carelessly past the wagon. It is not self 
 evident which one was to blame and hence this 
 doctrine does not apply. 
 
 In bringing suit for the injured man against 
 the railroad company where the car ran off the 
 track and the passenger was injured the case will 
 be brought like this. The passenger complains 
 that while he was a passenger the company negli- 
 gently caused the car to run off the track 
 and injured him. It will be proved that he was 
 
INTRODUCING THE EVIDENCE. 171 
 
 a passenger and that the car did thus and so 
 broke his shoulder and he will win unless the 
 company makes satisfactory explanation. The 
 plaintiff may then attempt to say, "But there 
 was something else; the car was coming around 
 a corner too swiftly," but the plaintiff cannot 
 bring that in because it is not rebuttal. 
 
 There is where the evidence must be watched. 
 The plaintiff should have put in that line of evi- 
 dence when he opened his case. If the plaintiff 
 narrows his case to the mere application of the 
 doctrine of res ipsa loquitur and the defendant 
 overcomes that then the plaintiff has lost. The 
 plaintiff can rebut then only upon the point 
 offered by the defense; for instance if the de- 
 fense goes on the theory that the wheel broke, 
 that they had bought the wheel from the best 
 maker, and so on, the plaintiff can rebut and 
 show that instead of buying that wheel from the 
 best maker, etc., it was a poor wheel, a discarded 
 wheel which the company bought from a scrap 
 pile and put on the car. This would be rebuttal 
 of that line of defense and would be allowable, 
 but under those issues that is all that would be 
 allowable. 
 
 So great attention is necessary to show just 
 what the issue is in the case and just exactly how 
 to prove it. 
 
 It may be that under the general count of the 
 
172 TRIAL TACTICS. 
 
 declaration that they negligently ran that train, 
 evidence can be introduced as to the running of 
 the train and of some circumstances attending 
 upon that without a special count in the declara- 
 tion. For instance it has been held in some 
 jurisdictions that under that general count may 
 be introduced the fact that the track was slip- 
 pery from rain, and that the engine or grip car 
 had no sand and did not sand the track, although 
 these specific facts were not specially charged 
 in the declaration. That was held to be one of 
 the circumstances under which the car was run, 
 indicating that it was negligently run. The 
 question however would be doubtful in many 
 instances and in some jurisdictions evidence of 
 that kind would not be permitted to be offered. 
 Certainly it would not be allowed to offer evi- 
 dence of the special violation of a special law in 
 the general count in the declaration, as for in- 
 stance that the company had no flagman 
 stationed there or that the company did not 
 comply with the ordinance with reference to 
 railway gates and such matters. There would 
 have to be a count based on that. 
 
 So the proof under the doctrine of res ipsa 
 loquitur is quite narrow. In the Illinois Court 
 now it is narrower than ever before for they 
 have quite recently — and in the writer's opinion 
 quite erroneously — reversed the decision of the 
 
INTRODUCING THE EVIDENCE. 173 
 
 lower court and the Appellate Court. The per- 
 son injured was standing on a public highway 
 which was crossed by a railway track. A rail- 
 way train went by with cars loaded with tim- 
 ber. The timber had turned on one of the cars 
 so that one of the pieces was at right angles 
 to the car and projected a considerable distance. 
 The man at the crossing was struck by the end 
 of the timber. The Supreme Court held that 
 it was incumbent on the plaintiff to prove how 
 the timber came to turn and to project from the 
 car. 
 
 Many elements are assumed to exist until 
 proved to the contrary. Sanity is supposed to 
 exist; sobriety is supposed to exist; carefulness 
 is supposed to exist in regard to parties who are 
 otherwise deprived of their proof. An illustra- 
 tion of the latter assumption may be found in 
 this case: A man was found dead; nobody had 
 seen how it happened; he evidently had been 
 killed by an engine or a car on the railroad; 
 there were no witnesses ; there was evidence that 
 he usually was careful and hence the court held 
 it might be presumed that at the time being he 
 was also careful. However care must usually 
 be proved affirmatively; that is, all the circum- 
 stances must be related to the jury by those ac- 
 quainted with them and the jury may infer 
 care or lack of care. 
 
174 TEIAL TACTICS. 
 
 The various kinds of cases must be carefully 
 studied to find out where the burden of proof 
 is and the manner of proof. Suppose for in- 
 stance a client has sold the defendant a great 
 many articles of merchandise. His lawyer must 
 prove that the contract was made and that the 
 articles were delivered and what the market or 
 agreed price of such articles was, which is not 
 always easy. If the client has a large establish- 
 ment, employing thousands of persons, salesmen 
 and clerks and shipping clerks it is often diffi- 
 cult to prove a sale and delivery where the sys- 
 tem of jurisprudence requires it to be proved. 
 The better way would be to require the de- 
 fendant to deny under oath that the goods had 
 been delivered. In most cases he could not deny 
 it but under some systems he is allowed to plead 
 the general issue and under it deny that he got 
 the goods. Then the plaintiff must prove that 
 he did get them which is very difficult and it 
 would be well for the lawyer to instruct his client 
 how to make proof of that. One of the ways is 
 for the client to send a statement to the defend- 
 ant of the items and amounts when the goods 
 are sent or soon after. The defendant at that 
 time probably admits the justice of the state- 
 ment, or if he denies it he will deny only one or 
 two particular items. It has been held that this 
 is sufficient proof; the sending of the statement 
 
INTRODUCING THE EVIDENCE. 175 
 
 and the receipt of it and the acquiescence there- 
 in or failure to write back that he did not receive 
 the goods. 
 
 Also it is necessary to learn how to prove book 
 entries. The entries may be wrong or the man 
 who made the entries may be dead. The statute 
 must be consulted in the particular jurisdiction 
 to see the manner of proving such entries. The 
 general principles however underlying this are 
 about the same everywhere. It must be proved 
 that the books were kept in the usual course of 
 business, that they were honestly and correctly 
 kept and the inability to produce the man who 
 made the entries, either on account of his death 
 or for some other cause must be proved. And 
 the original entries must be proved. It is the 
 original entries that count not the subsequent 
 entries and it is very difficult sometimes to know 
 just what are the original entries. Suppose in 
 a large lumber concern a man goes out into the 
 yard and makes a small list of items on a slip of 
 paper which he gives to the book-keeper who 
 enters the items in a day-book and later tran- 
 scribes them into the ledger. The ledger is not 
 a book of original entry at all. Back of the 
 ledger is this journal or day-book which many 
 deem to be the book of original entry while 
 others hold that the little slips which the man 
 brought in from the yard are the original entry. 
 
176 TKIAL TACTICS. 
 
 The journal is simply a copy of those slips. 
 There is a great deal of conflicting authority on 
 these matters and it must be examined very 
 carefully. 
 
 Another difficult class of cases is mechanic's 
 lien cases. A great deal of law must be exam- 
 ined there concerning how to prove for instance 
 that the client's lumber went into a certain build- 
 ing. 
 
 It must be learned exactly what kind of evi- 
 dence is admissible and what is not. The dis- 
 tinction must be noted between hearsay evidence 
 and other evidence, evidence relative to the res 
 gestae-, evidence which is the best evidence and 
 that which is secondary evidence. How to 
 bring evidence into court must be learned; 
 whether by notice to the opponent to produce 
 a document or if it is in the possession of a 
 witness by a subpoena duces tecum. If the 
 opponent has the document, notice must be 
 served on him to produce it in court. If he fails 
 so to do the lawyer has the right to have any 
 of the witnesses who possess a copy produce it 
 or if the witnesses have no copy but know what 
 was in the original the witnesses may testify as 
 to the contents thereof. He has made a rea- 
 sonable endeavor to bring the document into 
 court, and if it is not brought in he has a right 
 
INTRODUCING THE EVIDENCE. 177 
 
 to give secondary evidence. If the document in 
 question is not in the control of the opponent in 
 the litigation but is in the possession of a third 
 person, the third person may be a witness the 
 same as anyone else, and if he is wanted in court 
 as a witness to produce the document he must 
 be subpoenaed under a subpoena duces tecum. 
 Then he is required to come into court and bring 
 the documents. If he is in the jurisdiction and 
 does not appear he may be compelled to come by 
 attachment and a continuance must be obtained 
 until he does come. But if he is out of the juris- 
 diction the court cannot compel his attendance 
 and that is ground for secondary evidence. 
 Some courts hold that if the witness is outside 
 of the jurisdiction an attempt must be made to 
 take his deposition. Other courts hold that it is 
 not necessary to make the effort in such cases at 
 all ; the mere fact that he is beyond the power of 
 the court allows secondary evidence to be intro- 
 duced. 
 
 Every step should be taken in time and fol- 
 lowed with diligence so that when the case is 
 announced for trial, if it should happen that the 
 witnesses are not present it can be shown that 
 it was through no fault of the lawyer. In that 
 way the basis for a continuance will be laid and 
 the case will be heard later. 
 
CHAPTER XI. 
 
 EXPERT EVIDENCE. 
 
 IT is not well to have too many experts on a 
 side. Sometimes it is not well to have more 
 than one. Sometimes one expert is better 
 than two because occasionally although in their 
 general conclusions they agree in favor of a cli- 
 ent yet they give such different reasons for their 
 opinions that they practically contradict each 
 other. Suppose that two experts testify that a 
 certain party involved in a transaction was not 
 sane at the time. On cross-examination one 
 expert will give his reasons for deeming the man 
 insane as a, b, c, while the other expert on cross- 
 examination gives his reasons as d, e, and f, 
 quite different from those the first expert gave. 
 The opponent will not fail to make the argument 
 that neither opinion amounts to anything be- 
 cause if a, b, c, are good reasons on which to 
 found insanity it is very singular that the second 
 expert did not put them down as his reasons ; the 
 fact that the second witness did not give them 
 would indicate that they are not good reasons; 
 likewise if d, e, and f, are good reasons it is 
 singular that the first expert did not give them. 
 
 178 
 
EXPERT EVIDENCE. 179 
 
 Therefore, both experts base their opinions on 
 reasons which are not sound. In other words 
 the witnesses defeat one another and it fre- 
 quently happens that the more experts there are 
 on the same side of the case the weaker the case 
 gets because as witnesses they are as a class opin- 
 ionated and will persist in their individual rea- 
 sons although they reach the same conclusions. 
 
 On the other hand it is well to have a number 
 of witnesses, provided they are consistent and 
 can stand the test of inquiry, because if an 
 attempt is made to establish a proposition with 
 only one expert and the opponent has six who 
 are consistent and make a good impression, 
 naturally the jury will find with the six rather 
 than with the one. To some extent they are 
 compelled to do so. 
 
 The forms of questions to be put to the expert 
 are rather difficult to determine. They vary so 
 much in different jurisdictions that the law must 
 be looked up wherever a man is practicing and 
 it must be verified from time to time because the 
 courts are shifting. 
 
 But this much is safe in any jurisdiction ; the 
 medical witness after he has stated that he is 
 experienced, has attended college, and has had 
 so many years' experience, can be asked directly 
 what in his judgment was the result of the acci- 
 dent ; that is, what in his judgment was the re- 
 
180 TKIAL TACTICS. 
 
 suit of the blow, describing it, if the man did re- 
 ceive such a blow. In this way he is giving his 
 positive assertion that the blow, as such, resulted 
 in the present condition of the plaintiff what- 
 ever his condition is. The doctor has a perfect 
 right to give that as a fact because he gives it 
 as a fact based on his opinion and on his experi- 
 ence and knowledge as a physician. He has a 
 right to answer that, because it is based on his 
 judgment as a physician but all things which are 
 based simply upon deductions of knowledge and 
 observation are to some extent a conclusion, a 
 point that has been explained before. 
 
 No forms that have been given thus far can 
 be followed unvaryingly but they must be adap- 
 ted to the particular case. Great care must be 
 exercised in preparing cases to get these ques- 
 tions just right. Some of the best results have 
 been made worthless by a slight inaccuracy in 
 the question. A judgment for $15,000 was 
 reversed recently simply because of a slight 
 error in the wording of a question which prob- 
 ably did not affect the jury in the least but it 
 was deemed a flaw in the record. 
 
 There are some instances where it would be 
 a proper question to ask the doctor to state 
 whether or not in his opinion or in his judgment 
 as an experienced physician or surgeon the 
 present condition of the plaintiff resulted from 
 
EXPERT EVIDENCE. 181 
 
 the above described blow. This would apply for 
 instance in a case where there is no contradic- 
 tion as to the nature of the blow, or of the state- 
 ment that nothing else happened to the man. In 
 other cases it might be denied that any blow 
 happened at all or it might be argued that some- 
 thing else affected the man. There the ques- 
 tion in the form above would not be allowed. 
 All the contingencies have to be taken into 
 account before the question is formulated. 
 
 When experts are put in they should be given 
 to understand that they should make themselves 
 plain to the jury. In a recent case a physician 
 was called to give evidence in regard to a cer- 
 tain injury and the testimony of the physician 
 was as follows: "Anterior to the right parietal 
 eminence, r unn ing parallel with the coronary 
 suture into the squamous portion of the tem- 
 poral bone, there is a fracture of the bone as 
 long and as wide as the finger. Its edges run 
 parallel to each other and are slightly arched 
 with the convexity posterior; the anterior is 
 sharp, the posterior depressed. On the inner 
 surface of the skull the vitreous table is de- 
 tached and the dura lacerated. In addition 
 there are found between the latter and the inter- 
 nal meninges a thick layer of blood coagula." 
 It appeared that the subject had been kicked in 
 the head by a horse. To put it to the jury in 
 
182 TRIAL TACTICS. 
 
 that way was not only meaningless to the jurors 
 but it perhaps brought ridicule on the witness 
 who employed the stilted phraseology. The 
 expert must use plain English to the jury. If 
 he means that the man was kicked in the head 
 by a horse at the right temporal bone he can say, 
 "The man was kicked in the head just about 
 half an inch back of the outer corner of the right 
 eye, between that and the ear, in what we physi- 
 cians call the temporal bone." The jury can 
 understand that. It is well to describe a thing 
 if possible in ordinary language and also in 
 medical language ; to describe it in the ordinary 
 language to the jury so that the jury will under- 
 stand it and in medical terms for the sake of the 
 record. Suppose some of the medical witnesses 
 have been on the stand, have described the injury 
 and have left the court room and afterwards the 
 medical expert is brought in and is asked for his 
 opinion on the case. He reads or has someone 
 give him the testimony of the other medical 
 witnesses and if they gave their testimony in 
 medical terms the expert can deal with it under- 
 standingly because anatomy is as exact as the 
 geography of a country or city. One medical 
 witness used for instance the< terms, "Anterior 
 to the right parietal eminence," another medical 
 witness coming into the court room six days later 
 knows exactly what is meant because he can 
 
EXPERT EVIDENCE. 183 
 
 locate perhaps within a tenth of an inch where 
 the pressure took place on the skull. The exact 
 location may be very important because if the 
 skull is depressed at one point it affects certain 
 nerves and may have certain results, paralysis 
 of certain organs or members, or thought func- 
 tions, whereas if it is a trifle removed, entirely 
 different symptoms and entirely different results 
 may be expected. So for the sake of making 
 a record and for carrying on the investigation 
 accurately in the future stages it is highly im- 
 portant that the medical witnesses deal with 
 precision with the medical terms no matter how 
 long they are. However they should avoid the 
 appearance of wishing to display their knowl- 
 edge and avoid giving the impression that they 
 are dealing in matters too learned for the jury. 
 A physician in a recent case said "levator labii 
 superioris et alique nasi," which in plain Eng- 
 lish means a small muscle which tends to raise 
 the upper lip under the base of the nose. To the 
 ordinary juror it would be better to say, "This 
 small muscle, which raises the upper lip was the 
 one which was cut or affected," though it might 
 be necessary to give also in accurate medical 
 phraseology, the technical name of that muscle 
 in order that it could be definitely described to 
 later witnesses. This may be done in such a 
 manner that the jury will understand the rea- 
 
184 TRIAL TACTICS. 
 
 son ; will understand that these names are used 
 to insure accuracy, not to display a great amount 
 of learning. 
 
 Where questions of opinion figure, the lawyer 
 must see that his witness has a tangible reason 
 on which he bases his opinion. A railroad com- 
 pany for instance takes the client's real estate; 
 he is entitled to recover its value and a witness 
 is called to testify to its value. The witness's 
 valuation has weight simply in accordance with 
 his ability to give a convincing reason on which 
 it is founded. If other real estate similarly 
 situated and in the same locality for instance 
 has recently found a ready market at a certain 
 figure, that would be a good reason to infer that 
 the real estate in question is worth the same 
 amount of money. 
 
 The practice in this respect differs in differ- 
 ent jurisdictions. In some when a witness is 
 offered he is confined to stating the value. The 
 opponent then cross-examines him and the wit- 
 ness should be able to sustain himself on cross- 
 examination and to give reasons to confirm the 
 estimate of value which he gave. The lawyer 
 who produces the witness is not allowed to ask 
 him why he finds that value. In other jurisdic- 
 tions the lawyer is allowed to ask him what in 
 his opinion the value is and also allowed to ask 
 him why he reaches that opinion. It will be 
 
EXPERT EVIDENCE. 185 
 
 readily seen that if it is permitted to ask him 
 why he reaches that opinion it should he done, 
 because if he gives simply his judgment of the 
 value and the opponent does not cross-examine 
 him and if the opponent then comes on with his 
 witnesses who give their opinions of the value 
 and give also strong, sound reasons for their 
 belief, the opponent has the advantage. His 
 witnesses will weigh more with the jury. So 
 where it is allowable for a witness to give not 
 only his opinion but also the reason for it he 
 should be called upon to do so. 
 
 Concerning medical witnesses the same thing 
 may be said. They give their opinions and they 
 should be asked to give reasons for the faith that 
 is within them based upon experience, their ob- 
 servation of similar cases and in some States 
 upon their learning from the books of their pro- 
 fession, although in other States they are not 
 allowed to give their learning from the books 
 at all and are allowed to give only their own 
 experience; the results that they as physicians 
 have obtained or noted, irrespective of what the 
 writers of books have said in regard to the mat- 
 ter. 
 
 Again in regard to the testimony of experts 
 on handwriting the practice differs. Whether 
 a note is genuine or a forgery, whether a will is 
 genuine or a forgery, whether contracts are 
 
186 TRIAL TACTICS. 
 
 genuine or forged, whether writings were made 
 by the party charged or, if the signature is his 
 whether there have been some changes in the text 
 over the signature — all these things are fre- 
 quently the subject of expert testimony and 
 various methods are adopted. For example in 
 a contest in regard to the validity of a signa- 
 ture to a note a comparison may be allowed be- 
 tween that and other signatures of the same 
 party; but in some jurisdictions the other sig- 
 natures have to be first admitted to be genuine 
 because if the other signatures are themselves 
 disputed there will have to be another trial on 
 them, and if they are again disputed and some- 
 one else has some other signature to be com- 
 pared, another comparison has to be made. 
 So a chain of links would be formed each one 
 dependent on the other. The theories differ in 
 regard to what extent and under what circum- 
 stances the, disputed signatures can be aided by 
 comparing with other signatures made or 
 claimed to have been made by the person charged 
 with having written the signature in dispute. 
 
CHAPTER XII. 
 
 THE CROSS-EXAMINATION. 
 
 THE cross-examination of witnesses is per- 
 haps the most difficult part of a lawyer's 
 duty — so difficult that it is doubtful 
 whether any rules can be given telling what to 
 do or what not to do with reference to it. There 
 are however some things upon which lawyers 
 agree and a few of them may be suggested. 
 
 The first observation often made about cross- 
 examination is much like' Punch's famous advice 
 to one contemplating matrimony — don't. That 
 is one way of solving the difficulty and where 
 there is no other it is a good way ; at all events it 
 is better than making a misguided attempt that 
 ends disastrously. To experiment with the sub- 
 ject is very much like playing with fire-arms. 
 It is better not to touch them unless thej^ are 
 thoroughly understood because they are very 
 apt to injure the one who holds them quite as 
 much as anyone else. Still by the same token 
 that the poor cross-examiner does a great deal 
 of mischief at times, a good cross-examiner may 
 do a wonderful amount of good to his side of the 
 
 187 
 
188 TRIAL TACTICS. 
 
 case. Hence it is well to know something about 
 the subject. 
 
 One of the first admonitions to give is that 
 when a cross-examiner happens to bring in some- 
 thing that helps him he should stop right there. 
 He should not try to improve his disclos- 
 ures but should file it away for future refer- 
 ence in the final argument and pass along to 
 something else. Any practitioner who has had 
 court experience can tell dozens of incidents by 
 way of illustration of the advisability of follow- 
 ing this rule. A typical one occurred recently 
 in a street car controversy. A woman claimed 
 that the dispute started because the conductor 
 gave her only three nickels in change out of her 
 quarter instead of four; that led to an alterca- 
 tion and to her ejectment from the car and of 
 course much hinged upon the fact whether the 
 conductor was in the right or in the wrong. The 
 examination' proceeded like this; the car was 
 crowded and it was a little dark; the woman did 
 not claim that she really counted the nickels, 
 what she said was, "I am sure there were only 
 three because I heard them go in my hand click, 
 click, click." Then the cross-examination con- 
 tinued, "Where did you get on?" "Where did 
 you get off 1 ?" etc.; then she left the stand. 
 
 Now of course three clicks meant four nickels, 
 the first nickel making no click. An inexper- 
 
THE CROSS-EXAMINATION. 189 
 
 ienced young lawyer conducting the cross- 
 examination would doubtless have said, "Ah!" 
 "Three clicks, were there. Doesn't that make 
 four nickels'?" and she would probably have 
 replied, "The first click was on my wedding 
 ring." But the experienced examiner who 
 dropped the matter right there saved up refuta- 
 tion of her testimony for the last speech. 
 
 This was a very small incident but it is a 
 matter of observation that nearly every jury 
 case sooner or later turns on some small inci- 
 dents which though it may not convince the 
 twelve jurors will cause one juror to hesitate. 
 It may produce a small verdict instead of a large 
 one or produce a hung jury. For the very rea- 
 son that it is small it passes by the lawyer's at- 
 tention but the jury are twelve men of quite or- 
 dinary intelligence who have no experience with 
 the technicalities of the law and who deal with 
 the commonplace everyday matters and a very 
 small thing may affect them. So it is the small 
 incidents that count and in the last speech they 
 are often used effectively. 
 
 At times if a point is overlooked and then 
 developed in the last speech the court will stop 
 the speeches and allow a party to offer more ev- 
 idence but this is a matter of grace and favor 
 with the court. It is a very difficult position 
 for a lawyer to be put in because frequently the 
 
190 TRIAL TACTICS. 
 
 witnesses are gone beyond recall from the court 
 room and the court will not stop the case long 
 enough to allow them to be sent for and brought 
 back. So the small incidents must be watched 
 as the case proceeds, in every part. 
 
 If there are questions on the cross-examina- 
 tion care must be taken to see that they are put 
 in the proper order. It may be important 
 which question comes first and if they are re- 
 versed the point may be utterly lost. Suppose 
 for instance that a man is attempting to prove 
 that another man had insulted his wife, and the 
 time when the alleged insult took place is im- 
 portant, the husband stating that it occurred on 
 a New Year's day. The lawyer on the other 
 side of the case has a letter which the husband 
 wrote to his client on the following June first — 
 a friendly letter. If the plaintiff had heard 
 this story on New Year's day he probably would 
 not subsequently write a friendly letter to the 
 defendant, so as the matter is being examined 
 and the plaintiff testifies that his wife has told 
 him this story if the defendant's lawyer should 
 ask "How does it happen, sir, that you wrote 
 this friendly letter on the first of June?" he 
 would probably answer, "My wife did not tell 
 me about it until after that." It is incumbent 
 upon the defendant's lawyer to show that the 
 wife told it to him before that if she told it at all, 
 
THE CROSS-EXAMINATION. 191 
 
 because if she did tell it before that, it did not 
 amount to much otherwise he would not after- 
 wards have written a friendly letter. If the 
 complainant is dishonest he will try to make the 
 date as late as possible. So the defendant's 
 lawyer should proceed in this way, "Your wife 
 told you this thing?" "Yes, sir." "Well now 
 it didn't amount to very much because she didn't 
 tell it to you for some time after it happened?" 
 "O yes, it amounted to a great deal because she 
 told it to me immediately." This commits him. 
 It is unlikely that he should have heard his 
 wife's tale on the first of January and should 
 have written the defendant a friendly letter af- 
 ter that date, so his story is shown to be incon- 
 sistent and incredible. In this way the se- 
 quences must be carefully watched. The illus- 
 tration gives a wide range of several months but 
 it may be a matter of only days or hours. 
 
 The truth must often be elicited by indirection, 
 supposing that the purpose of the examination is 
 to break down a liar. If the other side is tell- 
 ing the truth and things happened just as they 
 have stated the chances are that they are in the 
 right and it is altogether likely that they will 
 win the suit and that they should win it. It is 
 not the duty of a lawyer to maintain a suit or 
 defense for his client who is in the wrong. It 
 is his place simply to do his full duty to his cli- 
 
192 TRIAL TACTICS. 
 
 ent, and everything that has been said hereto- 
 fore is merely to aid in finding out whether the 
 other side has the right of the case or not, which 
 cannot be ascertained until these various tests 
 that are being explained have been tried. 
 
 Suppose a witness states among other things 
 that B. and C. were present on a certain occa- 
 sion and it is important to the other side to have 
 him admit that W. also was present. If he is 
 asked point blank "Was W- there?" he will say 
 no. The cross examiner is satisfied that W. was 
 present and that the witness knows it but the 
 truth must be elicited from him indirectly. So 
 he is carried along with the details of what he 
 has said, that B. was there, that C. was there, 
 and so forth and he is then asked, "It was quite 
 stormy, was it not f " " Why yes, it was chilly. ' ' 
 "A blizzardy day, as you were standing out there 
 at the corner at the end of the field?" "Yes, 
 sir. " "And B. was quite wrapped up in a large 
 coat?" "Yes." "And W. He had his heavy 
 coat on?" or "Was it W. that said, 'I wish I 
 had my coat; I didn't think it was so cold?' " 
 "No, W. didn't say that; it was C. said that; W. 
 had his coat." In some such way he can prob- 
 ably be cornered into an admission that W. was 
 present, whereas if he had been asked directly 
 "Was W. there?" he would have answered 
 "No," because on direct reflection he would rec- 
 
THE CROSS-EXAMINATION. 193 
 
 ognize well enough the importance of throwing 
 W. out. 
 
 A question should not he asked on cross-exam- 
 ination unless it has heen balanced carefully but 
 quickly. A cross-examiner's mind, like light- 
 ning, must cover a great deal of territory in a 
 flash and he must be able to foresee instantly, 
 first, what the answer is likely to be; second, if 
 the answer is such as is wanted will it do him 
 any good; third, if the answer is not what is 
 wanted will it do him harm; and fourth, what 
 are the probabilities and had he better keep 
 quiet. Sometimes the answer is bound to injure 
 the examiner whether it is yes or no, as in the 
 following case where it had been better if he had 
 refrained from asking the question at all. A 
 woman was suing a railroad company for in- 
 juries and there was the usual claim that she 
 was greatly disabled at the date of the trial as a 
 result of the accident into which the defendant 
 company had cast her. The defendant com- 
 pany claimed that the woman was not affected 
 by the accident at all but that she had been a 
 sufferer for years from various ailments and 
 that her condition on the day of the trial was 
 the result of those ailments and was not caused 
 by the accident in question. She had been at- 
 tended by her family physician, who could not 
 come to court on the day of the trial because he 
 
194 TEIAL TACTICS. 
 
 was ill, so it was arranged to go to his house and 
 take his deposition for the defence. He was 
 asked whether he had treated this woman prior 
 to the accident and for what and he made some 
 answers in his deposition. The question mis- 
 takenly asked on cross-examination was this. 
 "Doctor, this deposition is being taken at your 
 house while you are sick?" "Yes." "Doctor, 
 is your memory now as good as it was while you 
 were well?" a question to which the. answer 
 either way would hurt the plaintiff. If the 
 doctor said "Yes, my memory is as good as it 
 was," it would strengthen him as a witness be- 
 cause a witness with a good memory is always 
 entitled to respect. But if the doctor said "No, 
 it is not so good," the argument of the defend- 
 ant's counsel would be that the witness remem- 
 bers so much as he has given, but that if he were 
 well he would probably remember more. So 
 either way the answer yes or no was bound to be 
 injurious to the plaintiff. The way he actually 
 answered was. "If I were well I think I could 
 recall still further treatments I gave to this 
 woman in former years." But this illustrates 
 a case where the question should not have been 
 put at all. 
 
 Generally speaking it is much easier to tear 
 down and criticize than it is to build up, so it is 
 much easier to criticize another man's cross-ex- 
 
THE CBOSS-EXAMINATIOK 195 
 
 amination than it is to conduct one. In the gen- 
 eral plan of cross-examination however there 
 should be some sort of a basis. Then in follow- 
 ing this general logical plan more liberties can 
 be taken if one has the last speech than if the op- 
 ponent has the last speech. More experiments 
 can be tried because minor injurious matters 
 can be smoothed away or explained away in the 
 last speech, whereas this would not be possible 
 if the opponent had a speech following. 
 
 A witness on cross-examination may be taken 
 through his testimony again from beginning to 
 end, step by step, which generally is a bad plan 
 if his story is true because he makes it more em- 
 phatic with the advantage of telling it twice, 
 but it may be a good plan if his story is false, es- 
 pecially if it is a long and elaborate story, be- 
 cause his second version may be quite different 
 from the first one. There may be some incident 
 that occurs in his story which did not occur in 
 actuality — because the whole thing is a fabrica- 
 tion — which he may imagine on the second occa- 
 sion somewhat differently. It is an old saying 
 that a liar must have a good memory. If a 
 thing actually happened a man may tell it a hun- 
 dred times in the same way, getting it every time 
 correctly because he has the mental picture of it 
 and that picture is always the same. But if he 
 never had the experience he may be caught on 
 
196 TRIAL TACTICS. 
 
 some incidental feature which shows that he is 
 either fabricating or that he is ready to fabri- 
 cate, and either case weakens him with the jury. 
 A witness asked questions by his own lawyer 
 will answer every question promptly. But put 
 through the cross-examination and asked pre- 
 cisely the same questions, which are however 
 mixed in with other things which he has not con- 
 sidered he will not answer promptly if he is tell- 
 ing a lie or if part of his testimony is false. He 
 will not answer the question to the cross-exami- 
 ner as promptly as he did the same question to 
 the lawyer on his side of the case unless he is an 
 absolutely truthful man who does not care for 
 consequences. If he is inclined to lie and wants 
 to help himself or his friend to win the case he 
 stops and considers what to answer to a question 
 in order to produce the best results in the case. 
 The moment he does that he reveals himself as 
 dishonest. Even though the answer turns out to 
 be true the mere fact that he is waiting, hesitat- 
 ing to give it and that he finally gives it, not as a 
 fact but as the result of a deduction on his part 
 shows that he is not telling the absolute truth, 
 that he is there to swear for the party that calls 
 him and that he so understands it. So when he 
 stops and waits on a very simple question which 
 is apparent to the jury the skillful cross-exam- 
 iner will say, "Why don't you answer?" "What 
 
THE CROSS-EXAMINATION 197 
 
 are you waiting for f " " Why do you hesitate V ' 
 and in three or four phrases which will get into 
 the record indicate to the reviewing court this 
 witness's manner of testifying. He will indi- 
 cate that this man who answered readily on his 
 own side could not answer readily on the oppo- 
 nent's side, thus showing that he was groping 
 for an answer which might seem advantageous. 
 
 The primary importance in having some gen- 
 eral plan, some object in the cross-examination 
 cannot be too strongly emphasized. To simply 
 call the witness again and remark, "Remember 
 you are under oath," and "What do you say?" 
 and have him repeat with emphasis what he has 
 already told obviously does more harm than good 
 because it merely intensifies his previous story. 
 
 If the theory of the case or defense is in a 
 certain direction it is a mistake to cross-examine 
 in another direction. It would be very absurd, 
 if an alibi is relied upon for defense, to cross-ex- 
 amine the witnesses of the prosecution upon 
 some other theory of defense. If the witnesses 
 for instance have testified that the assailant 
 struck the prosecuting witness with a club it 
 would be senseless for the defense to say, "Now 
 did you not see the prosecuting witness reach to 
 his pocket as though to draw a gun, and did 
 you not at that instant and not sooner see the 
 other man strike him with a club?" when his 
 
198 TRIAL TACTICS. 
 
 real defense is that his client was not there at 
 all but was a thousand miles away. It would 
 not make any difference under these circum- 
 stances whether the man who was there, was 
 first threatened or not. Under circumstances 
 like these the prosecuting attorney, in his last 
 speech, would be justified in saying that the de- 
 fense of an alibi was all fabrication, something 
 to which the defendant had been driven by the 
 desperation of the case after his attempt to 
 prove self-defense had failed. He will argue 
 that this is plainly to be seen from the cross-ex- 
 amination of the State's witnesses when they 
 were asked so carefully if it were not true that 
 the man who swung the club was first threatened 
 by a revolver and he will go on to assert that the 
 defense, being unable to establish that point, 
 "Now like a drowning man grasping at a straw 
 tries to prove that this man was not here in town 
 but was in Cincinnati when this thing occurred,' ' 
 which makes the whole defense perilously weak. 
 So the necessity of having some sort of a plan 
 on which to work cannot be emphasized too 
 strongly. 
 
 The previously given precept may be repeated 
 that it is well to keep back statements of the de- 
 fense until the direct examination is all in, be- 
 cause if the early statement of defense is for in- 
 stance the theory of insanity it may be a check 
 
THE CROSS-EXAMINATION. 199 
 
 afterwards to taking advantage of a very strong 
 case of self-defense, which may exist, or if it be 
 self-defense it may be a hindrance to taking ad- 
 vantage of a strong plea of insanity; or if it is 
 an alibi it may prevent making use of some other 
 line. A strong defense must not be weakened or 
 confused with an attempted development of 
 something else. When, as sometimes happens, 
 two defenses exist, insanity and self-defense, for 
 instance, the wiser course is to take the stronger 
 of these rather than to work them both when 
 there is danger that each one may weaken the 
 other. 
 
 Of course it is not always possible for a law- 
 yer to adhere unvaryingly to his pre-arranged 
 plan. At times he must change his base as the 
 case requires, just as many a good general who 
 has started a campaign on a certain plan is re- 
 quired by the exigencies of the case to change it 
 and adopt an entirely different one, but so far as 
 possible he must have in mind some general 
 method of procedure. In the celebrated May- 
 brick case for instance in which the accused was 
 convicted of having poisoned her husband by 
 giving him arsenic, her attorney's claim was that 
 the husband had died of arsenic but that he him- 
 self had been an habitual user of the drug and 
 had taken too much. When the prosecution put 
 in its evidence in such a case the line of cross-ex- 
 
200 TRIAL TACTICS. 
 
 animation of the defense would be to encourage 
 the witnesses for the prosecution as much as 
 possible to prove the presence of arsenic, because 
 the more arsenic they proved the more it would 
 help to indicate an habitual and excessive use 
 of the poison. Whereas if the defense had ulti- 
 mately expected to rely upon the fact that the 
 deceased did not die of arsenic at all but that his 
 death had been caused by natural causes the line 
 of cross-examination should have been towards 
 getting witnesses to diminish the testimony as 
 to the presence of an abundance of arsenic. 
 
 Again in a case of forgery if the line of cross- 
 examination were on the theory that the accused 
 had authority to write the paper it should indi- 
 cate a line of defense of that kind ; and if the de- 
 fense should later swing about and insist that 
 the accused did not write the paper at all the two 
 positions would be so manifestly inconsistent as 
 to give to the prosecution a very strong argu- 
 ment that the defense was trying to lie either on 
 one end of the investigations or on the other. 
 
 So in injury cases the questions to be devel- 
 oped are ; Was the defendant company negligent 
 in the character of the machinery? Was the 
 plaintiff careful in his use of it % Was the ma- 
 chinery defective long enough for the plaintiff 
 to know that it was defective ? To some extent 
 these are inconsistent positions and a blind ques- 
 
THE CROSS-EXAMINATION. 201 
 
 tioning and cross-examining of the witnesses 
 without any fixed plan of action is very apt to 
 produce disastrous results and weaken the side 
 that undertakes so aimless a task. 
 
 If it be clearly seen that the line of cross-ex- 
 amination for the defense indicates the idea that 
 the plaintiff had assumed the risk this is prac- 
 tically an admission by the defense that the de- 
 fect existed. If then the defense afterwards at- 
 tempts to assert that the defect did not exist at 
 all the argument would be that that is a subse- 
 quent expedient because it was shown during 
 the trial that the defense knew the defect had 
 existed, knew it to such an extent that they tried 
 to prove that the plaintiff had assumed the risk 
 of the defect. 
 
 Unless a lawyer is on his guard he can be per- 
 suaded into such inconsistent positions. In a re- 
 cent murder case, the body of the victim had 
 been discovered devoid of clothing in a sort of 
 cesspool or cistern with a heavy lid or cover over 
 the top. The attorneys for the defense put 
 many questions in regard to the condition of the 
 liver of the deceased as indicative that death 
 might have been caused from a disordered liver. 
 The prosecuting attorney allowed undue promi- 
 nence to that point by resuming the re-direct ex- 
 amination of the physicians and calling other 
 physicians to testify to the condition of the liver 
 
202 TRIAL TACTICS. 
 
 thereby almost giving the impression that the 
 test of the question of guilt or innocence de- 
 pended upon the condition of the liver; which 
 was plainly misleading and inconsequential. 
 The prosecutor should not have re-examined his 
 own physicians or cross-examined the defend- 
 ant's physicians; he should have waited for the 
 final argument, in which the prosecution has the 
 advantage with the last speech and then he 
 should have ignored the question of the disor- 
 dered liver. He should have concentrated him- 
 self upon the question of the identity of the mur- 
 derer, taking it for granted that murder had 
 been committed and that the only question was 
 by whom and in his last speech he should simply 
 have said in one or two sentences, "Well now, 
 about this liver, gentlemen. I assume that one 
 or two of you may have been influenced to be- 
 lieve that the deceased, lingering with a disor- 
 dered liver finally died and being dead took off 
 his clothes, walked two or three miles, threw 
 himself into the cesspool and covered himself 
 over with the lid. Now some of you may be- 
 lieve that but I don't think so," which would 
 have been more effective than two or three days' 
 cross-examination in regard to the liver. 
 
 So at times the art of the cross-examiner is to 
 intensify the very things that have been brought 
 out and then by a quick turn to use them to his 
 
THE CROSS-EXAMINATION. 203 
 
 own advantage where he can see that that is the 
 only thing to do. There was an illustration of 
 this in a case that happened a few years ago. 
 The creditors had sold merchandise to a trades- 
 man who may be called the debtor and the credi- 
 tors found that the debtor had transferred his 
 whole stock in trade to his wife, a very prepos- 
 sessing woman. The creditors attached the 
 merchandise, claiming that it still belonged to 
 the debtor and that the transfer from the debtor 
 to the debtor's wife was a fraud. The wife of 
 course replevied and thus the case was tried, the 
 wife claiming the goods on a replevin. It was 
 an extremely dangerous case because the wife 
 was the plaintiff and her lawyer had the last 
 speech. The creditor's lawyer in order to prove 
 that the transaction was a fraud from beginning 
 to end produced a witness who testified that he, 
 the witness, had aided the debtor in secreting 
 the goods at midnight and this witness devel- 
 oped the method of the entire plan whereby the 
 fraud was conceived and executed. Naturally 
 this witness in turn was contradicted by the 
 debtor. Not only that but the debtor's attorneys 
 brought a dozen reputable citizens of the highest 
 standing to impeach the character of this princi- 
 pal witness. Now the creditor's lawyer exerted 
 himself to exasperate those witnesses in order to 
 make them testify as forcibly as they could 
 
204 TRIAL TACTICS. 
 
 against this witness, his own witness, because he 
 knew that his witness was necessarily damaged 
 in reputation anyway by their testimony. On 
 cross-examination he led them on to paint the 
 witness's character in the worst possible light 
 and the observers thought the creditor's lawyer 
 was making a mistake. But this was not the 
 case, as the sequel showed. When the argu- 
 ments came on, the wife's lawyer of course said 
 that she had bought the goods; then the cred- 
 itor's lawyer spoke, knowing that the wife's law- 
 yer would speak last and knowing also that in 
 his last speech he would demolish this witness; 
 so the creditor's lawyer contented himself with 
 the following little speech, the facts and circum- 
 stances of which could not be contradicted, "And 
 it is all explained to you, gentlemen of the jury, 
 by the testimony of my witness (naming him, 
 this principal witness), but now you have heard 
 twelve of your esteemed fellow citizens affirm 
 that they would not believe this witness under 
 oath. I tell you frankly, gentlemen, I would not 
 either and I trust you won't believe him under 
 oath unless you find him corroborated by pretty 
 strong circumstances." And then he repeated 
 some of the circumstances, "And further, gen- 
 tlemen of the jury, you have heard these twelve 
 citizens say that this witness (naming him 
 again) has been guilty of many misdemeanors 
 
THE CROSS-EXAMINATION. 205 
 
 and that he is a man of bad reputation. Now, 
 gentlemen, I haven't any doubt that he is a man 
 of bad character and he is just the kind of a 
 man that this party here (naming the debtor) 
 would ask to aid him in perpetrating this fraud. 
 Isn't he*?" The jury thought so too as there 
 was nothing left for the opposing lawyer to talk 
 about. He could not overcome the effect because 
 he himself and his own witnesses had done their 
 utmost to blacken the witness. In that case it 
 would have been a colossal mistake for the cred- 
 itor's attorney to have tried to impeach the tes- 
 timony of those reputable witnesses or to bolster 
 up his own witness as though he were being 
 wronged, because the odds were too greatly 
 against him. The only possible plan was to turn 
 the adversary's own weapon against him. 
 
 So the issues in the case must be clearly within 
 grasp and the prospects of the success of the 
 general plan. In a case which recently passed 
 through the courts, a woman who had been in- 
 jured brought suit for damages and won a large 
 verdict which was later reversed on a technical 
 error and then the woman died. Her adminis- 
 trator was substituted in her place. The case 
 came on for trial and the plaintiff and his at- 
 torneys and his physician of course saw it to 
 their interest to aggravate the condition of the 
 woman as much as possible to show how much 
 
206 TKIAL TACTICS. 
 
 she had suffered and how terribly injured she 
 had been. The defendant's attorney quietly en- 
 couraged them to do so until they proved to the 
 satisfaction of themselves and of the jury that 
 the injury to the woman had resulted in her 
 death. The judge for a moment thought that the 
 defendant 's attorney was making a mistake, the 
 usual mistake of cross-examiners. But having 
 convinced everybody that the accident had caused 
 the death of the woman the defendant 's attorney 
 then asked that the jury be excluded that he 
 might say a few words confidentially to the 
 court. The jury went out and the defendant's 
 attorney reminded the judge that the Appellate 
 Court had very recently decided — so recently 
 that it had not yet been published — that inas- 
 much as the woman died of the injury an en- 
 tirely new cause of action was created known as 
 a cause under Lord Campbell's act, as it is gen- 
 erally termed, namely the act of the legislature 
 which allows a recovery where death ensues, 
 where at common law there is no such right of 
 action. The courts have held that that action 
 displaces the first action or in technical terms 
 causes the first action to abate. When the court 
 was persuaded of that he recalled the jury and 
 ordered in the existing action a verdict of not 
 guilty and judgment on the verdict. The at- 
 torney for the plaintiff, who then for the first 
 
THE CROSS-EXAMINATION. 207 
 
 time had looked into the thing, found that he had 
 to commence a new suit based upon the death 
 and unfortunately found that he was just four 
 days too late. The truth in this case happened 
 to be that the woman's injury did not result in 
 her death at all, but these parties being encour- 
 aged to overdraw the matter, though they per- 
 haps did not directly lie about it, simply 
 stretched themselves most effectively out of 
 court. 
 
 The same things which it is advisable to as- 
 certain -with reference to the jurors to see 
 whether they are fit as jurors, it is also advisable 
 to find out with reference to the witnesses ; to see 
 whether there is anything which might tend to 
 influence the witnesses either to exaggerate their 
 testimony or to imagine things or to lie deliber- 
 ately; whether for instance they are relatives, 
 whether they belong to the same society or are in 
 the same line of business and so on. If a witness 
 is on the stand, whose testimony is strongly un- 
 favorable, and the importance of impairing it to 
 some extent is felt, something of that kind may 
 be elicited from him which will at least give an 
 argument. Some facts may be found in regard 
 to him from which, in accordance with the gen- 
 eral motives of humanity, it may be argued that 
 he was tempted to swear falsely or mistakenly 
 
208 TRIAL TACTICS. 
 
 or that his prejudice induced him to say things 
 perhaps not purposely false, but biased. 
 
 Some witnesses of course will adhere to the 
 strict truth even though they feel a friendship 
 for or an interest in the parties ; but many things 
 in the testimony are not of the mathematical 
 kind and they rest more on estimations ; the wish 
 is father to the thought and if the witness 
 wishes a certain result he commences to think in 
 that direction, especially in all matters relative 
 to opinions. If the witness feels interested in 
 getting a large amount of money for his prop- 
 erty he will swear — and swear conscientiously — 
 to a high value for that property and will believe 
 he is telling the truth when he is saying it. 
 
 Actuating motives of friendship or hatred can 
 usually be easily disclosed in the witnesses. Hu- 
 man nature is such that, generally in a sensa- 
 tional matter such as a very acrimonious family 
 fight concerning inheritance or the breaking of 
 a will, bitterness of feeling is always manifest. 
 People will take sides, and especially in small 
 places, the controversy becomes a very bitter 
 matter which may even find its way into politics. 
 The feuds in Kentucky and Tennessee where 
 families have been fighting each other for gen- 
 erations, lying in wait to kill, are well known. 
 Naturally if there is any feeling of that sort in 
 a court room the witnesses will manifest it, par- 
 
THE CROSS-EXAMINATION. 209 
 
 ticularly the women who are usually more ex- 
 pressive of emotion. An emotional woman wit- 
 ness asked on cross-examination, "Didn't you, 
 when you spoke to Mr. McLaren, etc. — " naming 
 the leader of the other side — will probably as- 
 sume an expression of hatred and scorn as much 
 as to say, "I wouldn't speak to that man in my 
 life." If such a witness's account is flatly con- 
 tradicted by another witness who in demeanor is 
 placid, betraying no feeling either when speak- 
 ing for the plaintiff or for the defendant the 
 jury can see that the latter witness is, probably, 
 as he says, entirely disinterested; whereas the 
 first witness although she claims to be entirely 
 disinterested is betrayed by her expression. If 
 it comes to a question of veracity between the 
 two witnesses the jury will probably believe the 
 one who appears disinterested. 
 
 So if any circumstance is found which might 
 naturally be expected to influence the witness, 
 of course it should be brought out but care must 
 be taken to see that the point is well made. A 
 client will sometimes give erroneous informa- 
 tion to his lawyer; he will say for instance, 
 "Why of course the fellow is lying. He mar- 
 ried the plaintiff's sister. Of course he will lie 
 about it." Then when the witness is asked, 
 "You married the plaintiff's sister, didn't you?" 
 and he answers "No, I didn't," his story has 
 
210 TRIAL TACTICS. 
 
 been simply intensified, because to attempt to 
 break down a witness is an admission that his 
 testimony was important. 
 
 Great care should be taken not to inadvert- 
 ently piece out an otherwise defective examina- 
 tion. If the witness, for instance, has not cov- 
 ered a certain point he should not be given an 
 opportunity to do so nor should his attorney be 
 made to realize the fact of his omission and thus 
 be prompted to take the witness and cover it. 
 Here is an illustration. It is charged that a 
 railroad engine ran over the plaintiff; that the 
 engineer did not ring the bell as required by the 
 ordinance ; that the company did not have a flag- 
 man at the street crossing to wave the flag as re- 
 quired by another ordinance. The railway com- 
 pany produces a witness who stood near the spot 
 and who for the defense gives testimony that the 
 bell was ringing and with that is dismissed. He 
 has shown' himself to have been at the place the 
 same as the plaintiff's witnesses were; perhaps 
 he was' standing conversing with one of the 
 plaintiff's witnesses. The plaintiff's witnesses 
 testified that the bell was not rung and the flag- 
 man was not there. The defendant's witness 
 testified only that the bell was rung. Now he 
 has given the strongest possible evidence for the 
 plaintiff because in the argument to the jury that 
 the plaintiff's witness was telling the truth when 
 
THE CROSS-EXAMINATION. 211 
 
 he said the flagman was not there the attorney 
 will say, "Gentlemen of the Jury, if the flagman 
 had been there why did not the defendant's own 
 witness, whom they themselves called and 
 thereby held out to be a truthful party — why 
 did he not say the flagman was there?" The 
 mere absence of testimony on the part of the de- 
 fendant 's witness on that point is strong corrob- 
 oration of the plaintiff's witnesses who say the 
 flagman was not there. And it is enough for the 
 plaintiff to win on one count of the declaration. 
 He does not have to win on every count. 
 
 Some cross-examiners under the circumstances 
 above would make the mistake of taking the 
 railroad's witness and questioning him until 
 they got him to say the flagman was there ; or if 
 he was a little too conscientious to directly lie 
 about it he would say that he thought the flag- 
 man was there or that the flagman might have 
 been there or that he stood with his back to the 
 tracks the whole time and could not say whether 
 the flagman was there or not. So the effective 
 argument that the plaintiff might use from the 
 mere silence of the man would be lost if the 
 plaintiff himself cross-examined him into a 
 statement, which to some extent at least over- 
 came that silence. 
 
 In general terms the object of the cross- 
 examination should be to ascertain whether the 
 
212 TEIAL TACTICS. 
 
 account which the witness gave is a reasonable 
 account, whether it fits in with the facts and cir- 
 cumstances which have either been given by cred- 
 ible witnesses or have been admitted to exist in 
 the case beyond dispute; to learn whether the 
 witnesses corroborate each other or contradict 
 each other; to learn whether or not the witness 
 is telling a deliberate lie. If there is strong sus- 
 picion that he is a deliberate liar some entirely 
 different method must be used from the one to 
 be employed if he is believed to be perfectly con- 
 scientious but mistaken. Only experience and 
 intuition can be guides in this regard and even 
 they are frequently at fault. Some of the 
 smoothest liars in the world will put up the best 
 appearance and some of the most honest wit- 
 nesses will be so embarrassed and shambling in 
 the witness chair that almost anyone would be- 
 lieve them to be lying. About the only reliable 
 general rule for detecting falsehood is the one 
 that has been brought out before. If the wit- 
 ness is telling a drilled story he will be apt to be 
 glib in reciting the story but will be much in- 
 clined to hesitate in giving anything else not in 
 the direct part of his drilled story. The mo- 
 ment he is asked something not connected with 
 his memorized story he is at a loss, whereas if 
 the occurrence actually happened as he stated he 
 would have seen all the surroundings and could 
 
THE CROSS-EXAMINATION. 213 
 
 tell them as well as the main incidents. Wit- 
 nesses at a loss will resort to the constant repe- 
 tition of, "I don't know," and "I don't remem- 
 ber," whereas if their main story were true they 
 must know those surroundings and must remem- 
 ber them. 
 
 Many things, as has been stated before, must 
 be discovered by indirection, especially if the 
 witness is shrewd in following the lawyer's 
 moves and if he is inclined either to pervert or to 
 allow his opinions to be strained on his side of 
 the case. Suppose that in a damage suit the de- 
 fendant is attempting to prove that the plaintiff 
 assumed the risk; that he had such familiarity 
 with the defective engine in question as to well 
 understand its peculiar dangers, and that thus 
 knowing and understanding he nevertheless re- 
 mained in the employment for weeks, perhaps 
 months. If the plaintiff is asked directly such 
 questions as "Didn't you know that this was de- 
 fective % " " Weren 't you told about it weeks be- 
 fore?" he will immediately say, "No, I didn't 
 know anything about it. ' ' That may be the only 
 chance the defendant has to prove the fact on 
 which the law predicates the assumption of risk 
 because the defendant may have no other wit- 
 ness. So in order to make that proof, when the 
 witness is commencing to give evidence that the 
 engine is defective, the defendant should draw 
 
214 TRIAL TACTICS. 
 
 him out in an indirect manner, indicating that 
 the defendant did not believe that the plaintiff 
 knew that the machine was defective. He should 
 proceed something like this: "Now, you think 
 this wheel was too small in diameter. That can- 
 not be, because all these engines have, as I under- 
 stand it, exactly the same kind of wheel, have 
 they not?" and the witness will answer, "O no, 
 sir, others don't have it." In this way the wit- 
 ness instantly indicates a wide familiarity with 
 machines in general, by comparing this engine 
 with other engines that have come to his exper- 
 ience and observation, which is one of the ele- 
 ments of the assumption of risk. As a matter 
 of law it is much easier to prove the fact that the 
 man who has had experience with machinery in 
 general did assume the risk of a certain engine, 
 than to prove it concerning a man who never 
 saw another engine in his life. Great care must 
 be exercised that the cross-examination does not 
 open the door for damaging evidence which 
 would not be allowed on direct examination. 
 Sometimes in the re-direct examination a whole 
 flood of matter is thrown before the jury. There 
 was an illustration of this in one of the Luetgert 
 trials. The cross-examiner asked a police cap- 
 tain a question indicating that he thought the 
 police captain had been attempting to fix or 
 tamper with the jury, and hinging upon that 
 
THE CROSS-EXAMINATION. 215 
 
 was revealed the whole story of how the cap- 
 tain went to New York and among other things 
 how he made an examination there to prove that 
 Mrs. Luetgert was not there. Part of the de- 
 fense had been that Mrs. Luetgert had not been 
 killed at all but had gone away, either because 
 she was insane or because she had some hatred 
 for her husband and was holding herself in hid- 
 ing in New York in the hope that her husband 
 would be hanged. But the entire research of 
 the police in New York came out in the redirect 
 examination, provoked by the cross-examina- 
 tion, whereas there might have been some doubt 
 in the case and the jury might possibly have 
 thought the woman was in New York, if some- 
 thing that the state could not have introduced at 
 all as direct original evidence had not been 
 brought out in the redirect examination. 
 
 The jurors will sometimes entertain a doubt 
 from the defense and from things- brought to 
 the jury's attention that the state cannot really 
 contradict because they are not in the case. 
 That possibly is a defect in our jurisprudence. 
 For instance the attorney for the defendant is 
 allowed to say things to the jury, which should 
 not be said because they are not law, but which 
 have their effect on the jury. If the jury then 
 returns a verdict of not guilty, that ends the 
 prosecution, because the State is not allowed a 
 
216 TRIAL TACTICS. 
 
 new trial, but if the accused is found guilty he 
 may move for and obtain a new trial if the 
 State's Attorney has said improper things to the 
 jury. 
 
 So it may well be imagined that the defend- 
 ant's attorney may have said in that case that 
 Mrs. Luetgert was hiding in New York just for 
 a trick upon her husband; some of the jurors 
 may even have believed it although no evidence 
 was offered to prove it and it might have left an 
 impression, but the little impression it might 
 have made was swept away by the statement of 
 the police captain who said that she was not in 
 New York, because he was down there himself 
 and had investigated. That testimony, based 
 on hearsay he would not have been allowed to 
 give unless the door had been opened during the 
 cross-examination. 
 
 The Luetgert case furnished also another in- 
 stance of the way in which cross-examiners fre- 
 quently spoil a point by trying to over develop 
 it. The cross-exariiner in that case had obtained 
 some apparent contradiction from the medical 
 expert in regard to an internal sesamoid bone. 
 He was not satisfied with that but persisted until 
 he had shown that the doctor had called that 
 same bone external sesamoid. Then instead 
 of stopping there he insisted upon question- 
 ing further "Now doctor this bone exhibit 
 
THE CROSS-EXAMINATION. 217 
 
 A is an internal sesamoid?" "Yes," "Now 
 doctor, don't you remember that four days ago 
 you called it the external sesamoid?" "Well 
 yes, I did." And then the doctor gave a plaus- 
 ible explanation for the apparent inconsistency. 
 The skillful thing on the part of the cross-exam- 
 iner would have been not to say a word about 
 the contradiction until the argument when he 
 could say, "Gentlemen of the Jury, you remem- 
 ber in the session of the 18th of May the doc- 
 tor called this exhibit A the internal sesamoid; 
 now I have here the reporter's minutes — you 
 will correct me if I am wrong because I paid par- 
 ticular attention to it — where on the 12th of May 
 he called the same bone the external sesamoid. 
 Now what do you think of a doctor like thatf 
 This would weaken the doctor's entire testimony 
 because he could not then get up and explain 
 himself. 
 
 As a matter of fact there is sometimes a dif- 
 ference in technical nomenclature and apparent 
 inconsistencies can be explained if the witness 
 is given a chance but the shrewd examiner will 
 not give him a chance. It may be considered 
 contemptible to resort to tactics of this sort but 
 unfortunately it is part of a lawyer's calling and 
 frequently as in many other things his methods 
 are judged by his results. If he wins a case he 
 is a great lawyer ; if he uses the same trick and 
 
218 TRIAL TACTICS. 
 
 loses the case he is a pettifogger caught in the 
 act. There is nothing that succeeds like suc- 
 cess. There is small doubt that Rufus Choate 
 in cross-examining a man who a week before 
 had said, "external sesamoid," and to-day said 
 "internal sesamoid," would have stopped there 
 and used this against him on the final argument. 
 
 A friendly witness must not be driven too far. 
 If on the cross-examination it appears that 
 the opponent's witness is inclined to be friendly 
 this must not be over-emphasized for fear the 
 jury will get the impression that he is a spy. 
 If the jury gets an idea that a witness called by 
 one side is overly friendly to the other side they 
 may think that he has been bribed and though 
 he may be a truthful and conscientious man, if 
 driven too far his testimony will have the oppo- 
 site of the desired effect. 
 
 Care must be used in wording a question be- 
 cause hostile witnesses are shifty, they are 
 evasive, they are watchful. For instance in a 
 certain case an attempt was being made to prove 
 that the defendant had made threats against the 
 prosecutor. The witness was friendly to the 
 defendant and the State's Attorney had been 
 informed that the defendant had said in the pres- 
 ence of his friend that he would attack the pros- 
 ecuting witness, and the examination proceeded 
 something like this: "Mr. Witness, you know 
 
THE CROSS-EXAMINATION. 219 
 
 this defendant ? " " Yes. " ' ' Did you ever have 
 any conversation with him in which he said that 
 he would slug this man the first chance he got?" 
 "No." That was all that was said and the wit- 
 ness told the absolute truth but the weakness 
 was this: the witness had heard that threat 
 made, but not in the course of a conversation. 
 Both must participate to make it a conversa- 
 tion. The witness had answered truthfully and 
 could not be convicted of perjury because he had 
 said no to that particular question, but if the 
 prosecutor had understood his business he would 
 not have narrowed his question. As a generally 
 applicable rule it is well not to act on narrow 
 principles. If a witness is asked the question, 
 "Did you in a conversation in the Holland Hotel 
 about three o'clock in the afternoon, hear the 
 defendant say thus and so?" the witness may 
 say no, because he heard this said about eleven 
 o'clock and not about three o'clock. The way to 
 ask such a question is, "Did you at any time or 
 place hear this accused speak in any manner 
 with reference to this prosecuting witness?" and 
 then after locating the act of speaking, ask for 
 the details thereof. It would take a very clever 
 liar to evade that. Of course he may commit 
 perjury but he cannot evade safely. So the 
 question must be carefully worded in order that 
 it may be comprehensive. 
 
220 TRIAL TACTICS. 
 
 Cross-examination, it has been stated before, 
 admits of no fixed rules. In the long run the 
 practitioner must learn for himself by con- 
 stant and close attention ripened by experience. 
 From an article by one of the greatest prosecu- 
 tors in New York City, a man who has handled 
 thousands of cases and who has given some val- 
 uable matter in print on this subject, an illus- 
 tration may be taken to show how one lawyer's 
 method may seem open to criticism by another 
 practitioner. 
 
 The accused had put up a false defense and 
 an attempt was being made to break it down. 
 
 "In the Kennedy murder case in which Ken- 
 nedy shot and killed 'Big John' Keating the is- 
 sue hung upon threats to kill Kennedy which it 
 was averred had been publicly made by Keating. 
 A friend of Kennedy's testified that while sit- 
 ting in a barber shop he had heard Keating say 
 that he would kill Kennedy on sight and had 
 seen him show a revolver." Here were the two 
 conditions, memory and action. The prosecutor 
 asked this witness, "Were you a friend of Ken- 
 nedy's?" "Yes." "Did you tell him about 
 this threat?" "No." Then the prosecutor 
 said, "Do you mean to say that hearing such a 
 threat against a dear friend of yours, seeing him 
 afterwards you said nothing whatever about it?" 
 The witness was in such a false position that 
 
THE CROSS-EXAMINATION". 221 
 
 finally, being hopelessly entangled, he asserted, 
 "I did tell him." To compel the witness to con- 
 tradict himself in that way was very clever but 
 in the writer 's opinion that last question should 
 not have been asked. When the witness said 
 that he heard the threat against his friend Ken- 
 nedy and when he said that he did not tell Ken- 
 nedy about it the prosecutor should have stopped 
 there and used these conflicting statements in 
 the final argument. As it was he gave the wit- 
 ness an opportunity to explain and it was only 
 his good fortune that the witness was not wise 
 enough or slippery enough to avail himself of 
 the chance. The prosecutor succeeded in this 
 instance, but he did not rest there ; he went still 
 further. According to the account: "This de- 
 stroyed this prepared lie but the prosecutor, on 
 the track of the truth, carried him further and 
 showed that at the time he told Kennedy, accord- 
 ing to his evidence, Kennedy instead of being at 
 the place sworn to was actually locked up in the 
 Tombs." 
 
 The prosecutor, then, had still more good luck 
 in a very dangerous and needless experiment 
 because if this witness was telling a lie and 
 wanted to go on with it, it would have been easy 
 for him to invent a plausible explanation of his 
 apparently inconsistent statements. He met the 
 man frequently at various times and places and 
 
222 TRIAL TACTICS. 
 
 although he happened to stumble on a date when 
 the man was in prison it was not an irretrievable 
 blunder, because witnesses are very often con- 
 fused by minor matters as to the exact date when 
 or place where a thing happened. So the last 
 questions though they happened to result fortu- 
 nately were a dangerous experiment and a need- 
 less one because they gave the witness an op- 
 portunity to explain away the inconsistencies 
 and it was merely a fortunate chance that he 
 was too stupid to avail himself of the oppor- 
 tunity. 
 
 An incident occurred in a recent case to show 
 the unfavorable results that sometimes attend 
 upon questioning a witness too far. The wit- 
 ness, according to his account, had tramped 
 through the night, come to a switch station and 
 was sitting there warming himself at the time 
 of an accident. He was brought in by the rail- 
 road company to prove that a certain signal was 
 displayed which the plaintiff claimed was not be- 
 ing displayed at that time and place. The wit- 
 ness made a very poor impression and the plain- 
 tiff's attorney should have allowed him to be 
 taken at his face value because the jury had an 
 idea that he was a tramp and probably thought 
 that he had been bought for a few dollars to 
 come in and tell a lie. But the plaintiff's at- 
 torney, not satisfied with that, harassed him 
 
THE CROSS-EXAMINATION. 223 
 
 with questions until the fellow rallied himself 
 and told a story which appealed to the sympa- 
 thies of the jury. 
 
 The story he told was that he had come from 
 a distant point to go out to a farm expecting a job 
 out there; that when he arrived at the place he 
 found somebody had reached there two hours 
 before and gotten the job and that he had no 
 money left except a few cents which he did not 
 want to pay out in railroad fare because he did 
 not want to commence begging as soon as he 
 reached the city. The jury got the impression 
 that he was a pretty good sort of fellow and 
 believed his testimony. That was another case 
 where the questions went a step too far. 
 
 After the witnesses have all testified it is some- 
 times necessary to impeach them, to attempt to 
 break down their testimony, showing that they 
 are not to be believed under oath, disclosing 
 perhaps that they have been convicted of crime 
 somewhere, or something else that reveals their 
 bad characters. But this also is a dangerous 
 experiment which must not be tried until it has 
 been calculated just what the result is apt to be. 
 The question of sympathy is always a great 
 factor. A witness may have made a poor im- 
 pression upon the jury, but if sympathy is 
 aroused for him, even though it be a false sym- 
 pathy the jury may turn to his support. 
 
224 TRIAL TACTICS. 
 
 There is nothing gained in attacking a wit- 
 ness for the mere satisfaction of attacking him, 
 though a client usually urges his lawyer to do 
 that, and it may do more harm than good. As 
 a general rule if the testimony of a witness is 
 not all-important or, though it is important, if 
 it can be safely overcome with other testimony 
 stronger than his, with writings, matters of pub- 
 lic record, etc., it is not advisable to impeach a 
 witness's character or veracity. It may give 
 false sympathy to him ; he may be a very decent 
 fellow. And it is especially dangerous if the 
 witness happens to be a woman. The jury may 
 think the whole fight is to determine the char- 
 acter of a particular witness and if there is sum- 
 pathy for the witness they will decide for his 
 side. For instance to prove that a highly re- 
 spected and well known witness, when he was 
 fifteen years old committed some offense and 
 served a short term in prison will often cause 
 the jury only to sympathize with him. Even 
 though he was indiscreet in the freshness of 
 youth and committed some offense, or though he 
 was guilty of a recent offense but one which had 
 some mitigating circumstances, the jury will 
 trust him. Of course if the witness is shown to 
 have been an habitual thief the jury will not pro- 
 tect him because this indicates a dishonest dis- 
 position, but if it is revealed that under some 
 
THE CROSS-EXAMINATION. 225 
 
 great excitement or provocation a witness com- 
 mitted an act of violence, the jury may still give 
 full credit to that witness and to his testimony. 
 An illustration of the danger of arousing sym- 
 pathy was shown in a recent case. A nine year 
 old child had been killed by a street-car. He 
 had stumbled off the platform and the car had 
 run over him. The administrator, the plaintiff, 
 had only one witness who was a colored boy 
 about sixteen or seventeen years old, a playmate 
 of the deceased child who also had been on the 
 platform. The case came on for trial and this 
 little black boy was brought out of the jail to 
 give the facts for the plaintiff. The railroad 
 company had the advantage, as they always 
 have, because when the accident happened they 
 went through the cars and took the names of 
 the passengers. So the railroad company came 
 with at least ten witnesses each one giving his or 
 her version of the matter. They probably had 
 enough evidence to win but they were not satis- 
 fied ; they impeached the character of the colored 
 boy and asked him where he came from to at- 
 tend the trial and he answered that he came from 
 the county jail. They asked him what he was 
 doing there and he said that he had been sent 
 there by one of the justices, naming the justice. 
 Things looked pretty bad for the plaintiff but 
 the plaintiff's attorney asked the boy just two or 
 
226 TRIAL TACTICS. 
 
 three questions. He said, "How did it come 
 that you were sent to jail?" "Well," he said 
 "I took an old overcoat. It was an awfully cold 
 day and I thought the man didn't care for it." 
 That was one question. "Who prosecuted you 
 when you went to jail?" "That man there," 
 said the witness, pointing to the railroad com- 
 pany's lawyer. The jury gave the highest ver- 
 dict that had ever been given in that county for 
 the death of a child. There is not the slightest 
 doubt that they would have given a moderate 
 verdict — possibly none — if it had not seemed to 
 the jury that the witness was being unnecessa- 
 rily assailed, and that the railroad company's 
 lawyer had prosecuted him just to destroy his 
 evidence before the jury on this trial. 
 
 Of course there are instances where it is a 
 lawyer's duty to his client to demolish the op- 
 posing witness's testimony, to show that he is 
 telling lies. But he must be very sure of his 
 ground, sure of his weapons and that they will 
 not act as do boomerangs when thrown by the 
 unskilled. 
 
CHAPTER XIII. 
 
 THE INSTRUCTIONS. 
 SPECIAL FINDINGS AND SPECIAL VERDICTS. 
 
 IN regard to instructions the practice varies 
 in different jurisdictions and in different 
 court rooms in the same jurisdiction. In 
 some places instructions must be offered before 
 the case commences; in others they are offered 
 after the ease is closed. A lawyer must ac- 
 quaint himself with the practice in his jurisdic- 
 tion. 
 
 Under the title of instructions may be included 
 holdings of law, special findings and special ver- 
 dicts. In a case tried before the court without 
 a jury the instructions are called propositions 
 or holdings of law, which the lawyer must offer 
 the judge for him to establish as being the law 
 of the case or reject as not being the law of the 
 case. These are very important because in the 
 absence of a jury the judge himself is the jury 
 and if he finds unfavorably the reviewing court 
 will say that anything that he found is conclu- 
 sive unless he made some mistake in the law of 
 the case for he saw the witnesses and had a right 
 
 227 
 
228 TRIAL TACTICS. 
 
 to believe them. The reviewing court is not 
 justified in saying that he made some mistake 
 in the law unless he has been asked to estab- 
 lish the law in these holdings or propositions 
 and has refused, indicating that he had a wrong 
 theory of the law in his mind. 
 
 In special findings and special verdicts the 
 jury is asked to establish certain points in the 
 case specially, not simply to say, "We find for 
 the plaintiff," or "We find for the defendant," 
 or "We find the defendant guilty," or "We find 
 the defendant not guilty." There is a distinc- 
 tion between a special finding and a special ver- 
 dict. The special finding will be considered 
 first. 
 
 By special finding is meant that the jury is 
 asked to establish a particular fact. In some 
 jurisdictions they allow evidentiary facts to be 
 specifically found; in other jurisdictions they 
 allow only the ultimate facts and not the evi- 
 dentiary or detailed facts which led up to the 
 ultimate facts. In some it may be asked that 
 the jury show, "Was the plaintiff himself at the 
 time of the accident in question in the exercise 
 of ordinary care on his part?" which the jury 
 will answer by saying yes or no. But in the 
 same court it probably could not be asked "Was 
 the plaintiff when he approached the crossing 
 of A. and B. streets lashing his horse and mak- 
 
THE INSTRUCTIONS. 229 
 
 ing it go at a gallop?" because that is one of the 
 subordinate or evidentiary facts which go ulti- 
 mately to show that he was not in the exercise of 
 ordinary care. 
 
 In Indiana, for example, the most detailed 
 facts may be asked and the verdict might be 
 read as follows: "We, the jury, find that on or 
 about four o'clock on the morning of the 15th 
 of April the plaintiff was driving northerly on 
 the A-B highway and at that point when he was 
 about seventy yards away from the railway track 
 he commenced lashing his horses vigorously," 
 etc. 
 
 If special findings are wanted it must be seen 
 what the practice is in regard to getting them. 
 In some places for instance the lawyer, before 
 the argument commences, must serve upon his 
 opponent a list of the special questions that he 
 is going to have the jury answer and perhaps 
 give a copy also to the judge; at all events he 
 must give his opponent a copy. The reason for 
 this is that the opponent has a right to know 
 what the questions are, so that he also may argue 
 to the jury what in his view the evidence indi- 
 cates on them. 
 
 Whether or not it is advisable to put these 
 special questions or under what circumstances it 
 is advisable to put them is a subject for consid- 
 eration. The question may first be viewed from 
 
230 TRIAL TACTICS. 
 
 the standpoint of the defense. There are times 
 when the defense ought to ask special findings 
 and other times when the defense should not ask 
 special findings. Suppose the common injury- 
 case in which a railroad company is sued for 
 damages. The plaintiff was driving his wagon 
 across the track on the public highway and the 
 train struck and injured him. There are three 
 counts in the declaration, first that the defend- 
 ant company was running this train at the rate 
 of 30 miles an hour whereas the ordinance at 
 that time required that it run no faster than ten 
 miles an hour; second, that they were running 
 without a bell or whistle sounding, which were 
 required by the law; and third, that they did not 
 have a flagman there to warn people when 
 driving towards the tracks. It may be seen at a 
 glance that in this case the defendant ought to 
 ask special findings. The evidence being all in, 
 four of the jurors may think that the train was 
 going thirty miles an hour ; the other eight may 
 think it was going only five miles an hour. Four 
 other jurors may think the bell was not ringing 
 and the whistle not sounding; the other eight 
 may think the bell was ringing and the whistle 
 was sounding. Again another four of the jurors 
 may think the flagman was not there and the 
 other eight think he was there. So if special 
 findings have not been asked for, all twelve of 
 
THE INSTRUCTIONS. 231 
 
 the jurors vote guilty though each one acts from 
 an entirely different reason. If however the de- 
 fendant's attorney has asked the jury to find 
 specially on the three questions; as to the rate 
 of speed of the train, whether the bell was ring- 
 ing and whether the flagman was there, when 
 these disagreements on the special questions 
 come up either the verdict will be for the defend- 
 ant or there will be a hung jury. So it would be 
 a great mistake under these circumstances for 
 the defendant not to ask special findings. Also 
 the advantage that the plaintiff has in the last 
 speech to the jury, especially if he is a powerful 
 advocate and appeals to their emotions is some- 
 what diminished if the jury must stop to delib- 
 erate and analyze. 
 
 If the plaintiff, on the other hand, has a case 
 which practically proves itself and the defense 
 is double or treble, — if there are two or three 
 propositions by way of defense, — the plaintiff 
 should ask for special findings. For example 
 one defense may be that the plaintiff settled the 
 case and gave a release, and another defense 
 may be that the defendant did not own the rail- 
 road train in question. These two rather di- 
 vergent ones may be taken for the sake of sim- 
 plicity. Six of the jury may believe that the 
 plaintiff gave the release and if they so believe 
 they must find for the defendant. The other six 
 
232 TRIAL TACTICS. 
 
 may not believe that but they may believe that 
 the defendant did not own the railroad, a ques- 
 tion which was involved in the inquiry, so they 
 must find the defendant not guilty. And so as 
 before the first six may say not guilty because 
 they believe there was a settlement, and the other 
 six say not guilty because they believe there was 
 no liability at all. If however the plaintiff had 
 put special questions they would disagree and 
 the plaintiff would get at least a hung jury if 
 they failed to reconcile on one question or on 
 the other. At least he would have a better 
 chance than if there were no separate questions 
 in which case they would all say "Not guilty," 
 though six answered from one motive and the 
 other six from a different motive. 
 
 Special findings is only another example of 
 the old truth "Divide and conquer," commonly 
 illustrated by the bundle of fagots, which tied 
 tightly together cannot be broken, but one at a 
 time can be readily snapped. 
 
 A special verdict is different from a special 
 finding. It is applicable to civil cases as well as 
 to criminal cases but it is more common in crim- 
 inal cases. A special verdict is a verdict on 
 each count of the declaration or indictment. 
 For instance in a criminal case, a man is in- 
 dicted for stealing a horse and the prosecutor, to 
 make the matter safe, puts five counts in the in- 
 
THE INSTRUCTIONS. 233 
 
 dictment, not knowing precisely which one will 
 be fitted by the evidence. The defendant has a 
 right to ask a verdict on each count separately : 
 "We the jury as to the first count find the de- 
 fendant not guilty." "We the jury as to the 
 second count find the defendant guilty," or "Not 
 guilty," and so on. He may possibly be guilty 
 under all five of the counts because each one of 
 them might fit the particular case. Of course 
 he could receive only one punishment as it is 
 the same thing although described in different 
 ways; but they may find him guilty under the 
 special counts. 
 
 In a civil case, the case of the railroad com- 
 pany, with three counts — that the train was run- 
 ning too fast, that there was no bell ringing, and 
 that there was no flagman at the crossing, the de- 
 fendant may be guilty under two counts. It 
 may be true that the cars were going too fast, 
 and that they had no bell. The defense may ask 
 for a separate verdict on each count and then 
 the verdict would be, "We the jury, on the first 
 count of the declaration find the defendant 
 guilty." "We the jury, on the second count 
 of the declaration find the defendant guilty. ' ' It 
 may be that they actually had a flagman there 
 or that at least this statement was not disproved 
 and so they would follow with, "We the jury, on 
 the third count of the declaration find the de- 
 
234 TRIAL TACTICS. 
 
 fendantnot guilty." "And we assess the plain- 
 tiff 's damages at $7,000. ' ' 
 
 The request for separate verdicts may come 
 by a request for an instruction as to the form of 
 the verdict, and if so it may come with the other 
 instructions after all the arguments are closed, 
 if that is the practice on instructions, and need 
 not be put like special findings of facts before 
 the arguments are commenced, even if that is 
 the practice as to special findings. 
 
 In a special finding in the Illinois practice 
 only a definite, ultimate question may be asked 
 and one that can be readily answered by yes or 
 no, though there are times when a question may 
 possibly be asked that can be answered in some 
 other way. It might be possible that the jury 
 would be required to answer this question, "At 
 what rate of speed was the train going at such 
 a time and such a place?" Some courts allow 
 this, and the jury might answer the rate of 
 speed. This is a thing much discussed but 
 which probably would not be deemed an ultimate 
 fact. The ultimate fact would be whether the 
 train was violating the speed ordinance, and the 
 question can be put directly, "Was the train at 
 the time indicated going in excess of thirty miles 
 an hour?" that being the rate stated in the or- 
 dinance, and the jury will answer yes or no. 
 
 How to put instructions must be well under- 
 
THE INSTRUCTIONS. 235 
 
 stood, especially by counsel for the plaintiff be- 
 cause if he gets a verdict he wants it to be sus- 
 tained, and if his instructions are not accurate 
 the verdict will be set aside either by the trial 
 court or by the reviewing court. The advice is 
 sometimes given that it is the safest thing for 
 the plaintiff not to ask any instructions at all, 
 which may be applicable where the plaintiff has 
 a very strong case, one that is carried by the ar- 
 gument, but good cases for the plaintiff have 
 been lost where the plaintiff offered no instruc- 
 tions and where the defense came in with a se- 
 ries of very strong instructions. The plaintiff's 
 attorney made an able and convincing argument 
 but the court practically made the last speech by 
 reading the instructions, which seemed to the 
 jury like a strong argument for the defendant. 
 "Then and under such circumstances your ver- 
 dict will be not guilty," or "This and that, A. B. 
 plus C. D. and then your verdict will be not 
 guilty." After the court had said this fifteen 
 or twenty times the jury had forgotten nearly all 
 the speech of plaintiff attorney and found for 
 the defendant because, as a juror afterward 
 when asked explained, "All the law was with 
 the defendant, the judge told us everything for 
 the defendant but the plaintiff had no law; how 
 could we find for him % " If there are a few good 
 instructions for the plaintiff — even if they cover 
 
236 TBIAL TACTICS. 
 
 only the rules for computing the plaintiff's dam- 
 ages, when the jury read them they say, "Why, 
 the plaintiff has a case here." 
 
 Of course if a lawyer does not know how to 
 draw instructions it is better not to attempt 
 them. He cannot always copy an instruction 
 just because he has found it approved even by 
 the supreme court, because sometimes the next 
 case with the same instruction is reversed and 
 if it is argued that it was approved of last year 
 they may say that the point of objection that 
 is now being argued was not at that time urged 
 by the lawyers trying that case. So he must 
 know the law when he deals in it or tries to ap- 
 ply it. The instruction in the particular case 
 under the circumstances of that particular case 
 may be a very sound one, whereas the same in- 
 struction in another case may be unsound. 
 
 Care must be taken in regard to the indirect 
 effect of an instruction. In the railroad case 
 for instance with the three counts in the decla- 
 ration suppose there is no evidence at all about 
 the speed of the train. The defendant's at- 
 torney is entitled to an instruction and if he asks 
 it the court will give it, "The jury is instructed 
 that there is no evidence sustaining the first 
 count in the declaration." That is the count 
 which relates to the violation of the speed law 
 and therefore the jury is not allowed to con- 
 
THE INSTRUCTIONS. 237 
 
 sider that count and cannot find the defendant 
 guilty n that oouut. The defendant's attorney 
 may think he .las made -. good move, but there 
 is a doubt about its advisability because to ask 
 the jury to : ' .row out one count seems to them 
 almost equivalent to acknowledging the defend- 
 ant guilty on the other counts. The jury thinks, 
 "The court throws out one count but doesn't 
 that leave the other two counts?" These men 
 were never in a court room before ; none of them 
 know what is un< erstood by jurisprudence or a 
 technical system of right and wrong. They are 
 ordinary, commonplace men of only a general 
 understanding and they draw the natural deduc- 
 tion that the exclusion of one thing assumes the 
 inclusion of the other. At all events the def end- 
 ant 's attorney would have a good deal of trouble 
 in explaining to he jury that merely because 
 they arc told not to find on tho first count it does 
 not follow that they must find on the second and 
 third; that it i^.sans only that those are open for 
 argument and that he now proposes to argue and 
 show tL.3LL that tLey should not find on the sec- 
 ond or third. He has assumed an extra burden. 
 Possibly this would be the solution of the dif- 
 ficulty. When the defendant asks for and gets 
 the instruction that the jury cannot find on the 
 first count, there being no evidence, it might be 
 well for the defendant to ask another instruc- 
 
238 TRIAL TACTICS. 
 
 tion — though it is not certain that he is entitled 
 to it — that the mere fact that the court has in- 
 structed the jury that there is no liability as to 
 a certain count in the declaration does not imply 
 that there is or is not a liability on the other 
 counts. It means simply that those counts are 
 still for the consideration of the jury under the 
 evidence and the law as given in the instruc- 
 tions. 
 
 The plaintiff should ask an instruction as to 
 the amount of the damages. The defense should 
 ask an instruction that no damages can be re- 
 covered except through a preponderance of the 
 evidence and can always obtain another instruc- 
 tion, namely : that the fact that the court has ad- 
 vised them how to compute damages does not 
 imply that they must give damages, that it is 
 merely the way to estimate the amount, and that 
 the jury must still determine from the evidence 
 and the other instructions whether there is or 
 is not any guilt at alLin order to get to the point 
 where they could give damages. Without that 
 secondary instruction the jury often thinks that 
 because they are informed as to how to compute 
 the damages all they have to do is to go out and 
 compute the damages. They take that instruc- 
 tion as an indication of liability. 
 
 A pertinent case on special findings was a re- 
 cent suit on an insurance policy. The deceased 
 
THE INSTRUCTIONS. 239 
 
 was found dead, shot through the head. If he 
 was sane when he killed himself the policy could 
 not be collected, but if he was insane he was not 
 responsible for killing himself and the policy 
 could be collected. Only in case he was sane 
 and killed himself could the policy not be col- 
 lected. There the special findings would be, 
 "Was the man sane?" "Was he killed by the 
 accidental discharge of the gun? " Six jurors 
 might believe that he was insane and that would 
 induce them to vote for the plaintiff. Six other 
 jurors might believe he was perfectly sane but 
 that his death was an accident, and that would 
 induce them to vote for the plaintiff. At all 
 events in such a case special findings should be 
 asked. The defense requires all twelve of the 
 jury to unite on one proposition and by asking 
 for special findings the defense compels them to 
 do so, or to disagree. In this case the defend- 
 ant 's attorney failed to ask for a special finding 
 and the jury went out and found for the plain- 
 tiff though as was afterwards shown the twelve 
 jurors did not get the same idea or act from the 
 same motives. 
 
 The subject of peremptory instructions may 
 be considered, by which is meant that when the 
 plaintiff has put in his case and the defendant 
 believes that the plaintiff's evidence does not 
 make a case at all the defendant asks the court 
 
240 TRIAL TACTICS. 
 
 at that point to instruct the jury in a peremp- 
 tory manner to find for the defendant. It is 
 not always advisable to ask that instruction at 
 the end of the plaintiff's case. Of course if the 
 defendant's own testimony is of such a nature 
 that there is danger that some of the points 
 which it may develop may strengthen the plain- 
 tiff's case it is well for the defendant to ask for 
 the peremptory instruction at the end of the 
 plaintiff's case; but if there is no danger that 
 the defendant's testimony may aid the plain- 
 tiff and if it is altogether towards defeating the 
 plaintiff's case, then it is the part of wisdom not 
 to ask for the peremptory instruction until the 
 end of the defense for the following reason. At 
 the end of the plaintiff's case the judge, though 
 it seems to, him that the plaintiff has no case, 
 is in doubt ; it is an arbitrary action for Tn'm to 
 take a case from the jury, to interfere with the 
 function of the jury and to direct them what 
 their verdict shall be. So although the plain- 
 tiff 's evidence may be weak the judicial intellect 
 balances in favor of the rights of the jury and 
 the judge is very apt to refuse the instruction, to 
 say, "The plaintiff has enough case here to go to 
 the jury," and to require the defendant to go on 
 with his defense. Furthermore, in some juris- 
 dictions, as soon as the defense goes on with its 
 case, it waives the right to object in the review- 
 
THE INSTRUCTIONS. 241 
 
 ing court or to raise as error in the reviewing 
 court the action of the trial court in refusing the 
 peremptory instruction. So the defense has 
 gained nothing by the refusal and cannot even 
 claim it as an error in the reviewing courts On 
 the other hand the defense has compelled the 
 court to exercise his judicial intellect against the 
 defense and as a psychological fact it is difficult 
 for him afterwards to come back and say that 
 there is no case for the plaintiff ; whereas if the 
 court had not been asked at that point for a per- 
 emptory instruction but had heard a strong, con- 
 vincing defense the judicial intellect, which was 
 already wavering at the end of the plaintiff's 
 case would be carried clear for the defense and 
 the judge would instruct for the defendant. 
 
 Again if the motion is asked at the end of the 
 plaintiff's case and denied, the jury gets the 
 idea that the court thinks there is a case for the 
 plaintiff and they will carry that impression to 
 the end. Even though the jury is excluded 
 from the court room while the matter is being 
 argued they may know exactly what is going on 
 because they are in attendance at the court and 
 have been in the room while other similar cases 
 were being argued. 
 
 There is one more point against asking for 
 peremptory instructions too soon. Suppose the 
 defendant is very fortunate and at the end of the 
 
242 TRIAL TACTICS. 
 
 plaintiff's case the motion is granted. The 
 court instructs for the defendant, there is a ver- 
 dict and judgment for the defendant. The 
 plaintiff's evidence has all been preserved at that 
 point. The case then goes to the upper court, is 
 reversed and comes back for a new trial. The 
 plaintiff's evidence has been taken and can be 
 used again though his witnesses may be gone, 
 but the defendant's evidence has not been taken. 
 So as a mere practical safeguard the defendant 
 should be glad to put his evidence in and then 
 ask for a peremptory instruction for the de- 
 fense. Then if the case goes up and is reversed 
 and if, as sometimes happens it comes back five 
 or six years afterwards to be tried over again 
 the defense is on an equal footing with the plain- 
 tiff. 
 
 The objections and the exceptions in the va- 
 rious practices must be learned from the books. 
 If the opponent has instructions which are not 
 satisfactory the practice differs very greatly. 
 For instance in some courts the exceptions must 
 be filed and the motion for a new trial argued 
 and if it is shown that the opponent's instruc- 
 tions are wrong a new trial can be obtained. In 
 other courts the exceptions to the instructions 
 must be taken before the jury leaves the room. 
 The opposing counsel must listen to the instruc- 
 tions, then step to the bar and object to them 
 
THE INSTRUCTIONS. 243 
 
 before the jury retires to consider of their ver- 
 dict, this gives the court an opportunity to cor- 
 rect the error immediately ; if the attorney fails 
 thus to object he waives the error. 
 
CHAPTER XIV. 
 
 THE ARGUMENTS. 
 
 SIMPLE, direct language should be used in 
 the arguments. It must be remembered 
 that the jurors are seldom men of more 
 than average mentality and that intricacies of 
 speech and rhetoric tend only to confuse them 
 and becloud in their minds the main issues. As 
 a general rule the less pretentious and erudite 
 the English employed, the more convincing and 
 effective will the arguments be. A few other 
 suggestions may also be offered which though 
 not invariably applicable will be found ad- 
 vantageous in the great majority of instances. 
 
 If suppositions are made the supposition must 
 be complimentary not derogatory to the audi- 
 ence. Assuming that the accused committed a 
 forgery or stole a horse or beat his wife it is 
 not well to say, "Gentlemen of the jury if one 
 of you should be charged with beating your 
 wife," or "If one of you should be accused of 
 committing a forgery," but it is better to say, 
 "If one of you jurors should see a man beating 
 his wife." Jurors are very easily offended by 
 tactlessness in that regard. 
 
 244 
 
THE ARGUMENTS. 245 
 
 As a mere matter of policy it is best to be hon- 
 est with the jury for they are quick to detect 
 sham. The fundamental principles of right and 
 wrong that they all can understand must be ad- 
 hered to. If there is an exception upon which 
 the advocate relies he must see that the jury 
 clearly understands it. If, for instance, he re- 
 lies upon the statute of limitations he must see 
 that the jury understands that there is reason 
 and justice in the statute of limitations. Other- 
 wise they will think it merely a shrewd techni- 
 cality and will disregard it. 
 
 In many jurisdictions the time for argument 
 is greatly limited. The court has been known 
 to limit the argument in which the death of a 
 human being was involved, to ten minutes on 
 each side, although it was undoubtedly an out- 
 rageous thing to do and would perhaps have 
 been found to be error. But in such a case nec- 
 essarily time must be spent only on the essential 
 points and those of less importance must be 
 omitted. 
 
 Much has already been said about the advan- 
 tage of having the closing speech. If a lawyer 
 has not the last speech he must anticipate what 
 his opponent will say in answer and he must be 
 careful to leave no vulnerable points and espec- 
 ially careful to say nothing which may be sub- 
 jected to ridicule. If a speech is successfully 
 
246 TRIAL TACTICS. 
 
 and properly ridiculed by the opponent's last 
 speech the entire effect of the argument has 
 been lost upon the jury. Of course the lawyer 
 who has the last speech may take more liberty 
 because there is nobody to contradict him, no- 
 body to expose the fallacy of his argument, but 
 even then he must be fair because if he is un- 
 fair the jury will notice it and if they think that 
 he is trying to advance an unjust argument they 
 probably will defeat him. 
 
 It must not be forgotten either that the posi- 
 tion which has the first and last evidence and 
 consequently the first and last speech has also 
 a corresponding burden, namely the burden of 
 proof. The jury will be instructed to this ef- 
 fect and the opponent will probably lay much 
 emphasis upon it. He will insist with great ve- 
 hemence that the plaintiff has the burden of 
 proof, and he must sustain it by a preponder- 
 ance of the evidence, which frequently impresses 
 the jury greatly, and he will reverberate the 
 word "pre-pon-der-r-r-ance" adown the corri- 
 dors of the Court House, as though the very 
 term itself weighed a ton. 
 
 But this "preponderance of the evidence,'' 
 and "the burden of proof," is not an alarmingly 
 serious matter because as has been already indi- 
 cated, where much sympathy is with one side or 
 the other, the jury does not as a rule stop to- 
 
THE AKGUMENTS. 247 
 
 count witnesses or to nicely weigh their evi- 
 dence. They act upon their general convictions 
 of the abstract right in the case. So it is well 
 to claim the first and last speech even subject to 
 the apparent burden of the preponderance of the 
 evidence. It is a double advantage if the op- 
 ponent has the burden of proof, in an affirmative 
 defense for instance, and the plaintiff can still 
 keep the first and last speech. 
 
 Even the lawyer with the last speech, how- 
 ever, must anticipate that the court is going to 
 charge the jury, and in general what he will say. 
 For instance an instruction is very apt to be 
 given that preponderance of the evidence de- 
 pends not alone upon the number of the wit- 
 nesses but upon the credibility of the witnesses 
 and other circumstances in the case. That is a 
 very important instruction for a lawyer who 
 happens to have two witnesses against his oppo- 
 nent's six and he should not only see that it gets 
 into the case but should argue upon it and im- 
 press upon the jury the reason why the two wit- 
 nesses may be as strong as the six. The jury 
 generally pays attention to the utterances of the 
 court because they understand that the court is 
 impartial and is endeavoring to do his duty to 
 both sides. 
 
 The argument should be emphatic when 
 needed but not emphatic throughout. Many 
 
248 TRIAL TACTICS. 
 
 speakers make themselves tiresome by continual 
 over-emphasis. Jurors have been heard to com- 
 plain that they were tired out by the lawyer's 
 shouting. The general argument should be in 
 an ordinary conversational tone with emphasis 
 only on the important points. Unjust abuse on 
 the part of a speaker, either of the opponent's 
 lawyer or of the witnesses or of anyone else us- 
 ually results only in raising sympathy for the 
 object of abuse in the jury. But if rebuke is 
 merited so that there is not the slightest doubt 
 of its justice it should be given emphatically and 
 directly. Even then the retaliatory possibilities 
 of the last speech must be considered because, 
 no matter how just the chastisement, if the op- 
 ponent follows he may be able to put the matter 
 in such a light as to make it appear that a vic- 
 tim has been undeservedly abused. Even when 
 a rebuke is called for it is seldom safe to repri- 
 mand one who will inherently arouse sympathy, 
 for instance, a cripple or a woman, or even a 
 drunkard. 
 
 Frequently the advice is given a lawyer to 
 address himself to one juror, to pick out one 
 strong man in the jury box and convince him be- 
 yond question, relying upon him to carry the 
 other jurors. It is barely possible that this is a 
 good plan for the defense to follow because it 
 may result in a hung jury, but as a general rule 
 
THE ARGUMENTS. 249 
 
 it is not advisable for the plaintiff, for even if 
 that one man is convinced and made the advo- 
 cate with the jury it will make the other jurors 
 jealous, feeling that they have been slighted and 
 the chances are that it would do more harm than 
 good. The plaintiff must have the whole twelve 
 jurors and not one. 
 
 Care must be taken not to couple a weak argu- 
 ment with a strong one. If a weak argument 
 and a strong one are joined the opponent will 
 cast ridicule upon the weak argument to such 
 an extent that the jury will ignore the strong 
 one. They will forget it and in a general way 
 get the impression that the entire speech and 
 that side of the case are weak. If there is a 
 good, clear, strong point that and nothing else 
 should be insisted upon and emphasized to the 
 jury. They will take that with them into the 
 jury room and even if the opponent has the last 
 speech he will not be able to overcome it. But 
 if two arguments are put in, a strong one and a 
 weak one, the opponent will gloss over the strong 
 one and emphasize the inaptness of the weak 
 one until the jury will retire to the jury room 
 with the impression that that side of the case has 
 no argument at all. 
 
 In the main part of the argument where time 
 permits a general outline should first be given 
 of the matter to convince the jury of the gen- 
 
250 TRIAL TACTICS. 
 
 eral principles of right on which the claim is 
 based. Then the particular facts and law of the 
 particular contention should be applied. They 
 must first be given a clear idea that what is asked 
 for is just in order to prepare the ground for 
 the subsequent argument. 
 
 In criminal cases for instance the defendant's 
 attorney may with profit dwell upon the consti- 
 tutional guarantees which surround the accused, 
 upon the fact that the prosecution must prove 
 guilt beyond a reasonable doubt and upon simi- 
 lar propositions, explaining the importance of 
 each and showing that they are not merely tech- 
 nical but also equitable. The prosecution on the 
 other hand will dwell upon the necessity of ad- 
 ministering and enforcing the law as the only 
 means of protecting the public in property and 
 in person. 
 
 In a will controversy the contestants may 
 speak of the injustice of disinheriting the wife 
 or children who have by a lifetime of assistance, 
 of self-denial and economy aided the testator in 
 accumulating the estate, while the proponents on 
 the other hand may dwell upon the importance 
 of the power of disinheriting. They will show 
 that it stands as an inducement to the direct 
 heirs to treat the testator kindly and properly, 
 if not actuated by affection at least under fear 
 of disinheritance, for filial gratitude and devo- 
 
THE AKGUMENTS. 251 
 
 tion alone are not always sufficient to insure re- 
 spect and attention. 
 
 To a layman, particularly the small wage 
 earner the demand by a plaintiff for a brokerage 
 "commission" of a large amount, say $50,000, 
 especially where the negotiations were carried 
 through in a comparatively short period seems 
 so enormous that his mind must be thoroughly 
 prepared in advance for a comprehension of the 
 merits and the justice of the demand. It should 
 be pointed out to him that a broker is not like a 
 merchant or a professional man ; that these have 
 a somewhat steady stream of daily business, the 
 moderate profits from which pay the current 
 expenses and yield th^e net profit. But the 
 broker, while under a similar current expense 
 may have but an occasional success in his nego- 
 tiations and long periods must intervene in 
 which he has no income whatsoever, hence the 
 necessity and consequently the justice of the 
 larger compensation on the successful negotia- 
 tion. Moreover, the party who benefits from the 
 broker's efforts is in this way and this way only 
 enabled to find a market at perhaps a very great 
 profit for his large holdings. Unless he were 
 through the agent to dispose of them or even 
 to carry them further, he might be deprived of 
 them at a ruinous sacrifice. 
 
 The contestant who has the closing speech 
 
252 TEIAL TACTICS. 
 
 should first demolish his opponent's argument 
 and get it out of the way, and then build up his 
 own argument so that the jury will retire with 
 the strength of it the last thing in their minds. 
 
 When one has the intermediate speech, as has 
 been said before, he must anticipate everything 
 that his opponent is apt to say so that the jury 
 will have some answer to it when he does say it. 
 In addition he must call attention to the fact that 
 the opponent does speak last and of the great ad- 
 vantage that this gives him. As the great ma- 
 jority of humanity loves fair play the jury 
 should be given to understand that it would have 
 been the part of fairness for the opponent to 
 have advanced in his first argument every prop- 
 osition that he expects to advance in his last ar- 
 gument and that it would not be fair for him in 
 his last speech to advance any argument to an- 
 swer Which no opportunity is given. 
 
 Every phase of the case that the opponent ad- 
 vances should be covered. No point should be 
 left unanswered or unprotected because some- 
 times even a very small point that may seem 
 trivial may have its effect upon either the whole 
 jury or upon some member of the jury. If it 
 is trivial its weakness should be shown. 
 
 At all times it must be borne in mind that 
 mere abuse is not argument, mere rhetoric is not 
 reason, and that eloquence is not evidence. 
 
THE ARGUMENTS. 253 
 
 They may all be very useful but the substantial 
 frame-work and foundation of the case must be 
 argument, reason, and evidence. 
 
 Where there is a sharp conflict of evidence the 
 lawyer must by summary show that his own evi- 
 dence is most consistent with the possibilities or 
 the probabilities, or the actualities of the case. 
 Of course that line of evidence is most convinc- 
 ing which is fully in accord with the conceded 
 circumstances. Next comes the probable and 
 last the possible. 
 
 One of the most skillful moves in a case is to 
 harmonize everything as much as possible. It is 
 much easier to swim with the current than 
 against it. So the lawyer must try to turn so 
 much of the evidence as he can into the channel 
 leading to his side of the case rather than try to 
 oppose it. 
 
 The jury is more apt to believe witnesses if 
 they want to believe them. The lawyer must, 
 therefore, lay such a train of logic as will predis- 
 pose the jury in favor of his client and witnesses. 
 Take, for instance, a suit where the city has dug 
 a tunnel to bring water into the city and in the 
 course of the work has done an injury which re- 
 sults in a suit for damages. The plaintiff is a 
 tradesman and his lawyer will show how his 
 business was interrupted and will develop to the 
 jury the importance of protecting a man in his 
 
254 TRIAL TACTICS. 
 
 industry. He will assert that his family is de- 
 pendent on his success, that he wants to rear his 
 children to be self-supporting and that it is for 
 the benefit of the public as a whole to protect 
 every man in his business and that hence there 
 should be compensation to the plaintiff for the 
 damage done. This will be effective and the jury 
 will probably give damages because they feel 
 that it is only right and just. The defendant's 
 lawyer on the other hand in his speech will tell 
 about the importance to all citizens of a pure 
 water supply and the necessity of allowing the 
 city to dig the tunnel and to dig it with economy 
 without being swamped with debts. He will try 
 to persuade the jury that damages should not be 
 awarded against the city on that account. 
 
 Again the city is liable under the law if it al- 
 lows a mob to do any damage. The property 
 owner's lawyer advances the same argument that 
 has just been given. On the other hand the city 
 attorney, defending the suit, urges the hardship 
 to the city if heavy damages should be given. 
 He contends that each individual should take 
 care of himself and thus prevent mobs. 
 
 In questions about master and servant, whether 
 or not the master is liable for an injury to the 
 servant the attorney on the one side will show 
 how the servant must be protected ; he is depend- 
 ent upon his industry and he ought to have pro- 
 
THE ARGUMENTS. 255 
 
 tection of life and limb while he is at work. On 
 the other hand the attorney for the employer will 
 show how the employer himself is dependent 
 upon the servant's care; how the carelessness of 
 the servant or of his fellow servant may not 
 only injure his master's business but may injure 
 the entire community; it may result in a boiler 
 explosion or similar catastrophe in which many 
 innocent people are killed. The attorney for the 
 master should explain to the jury that it is im- 
 portant for the servant to be held to these rules. 
 In other words one sympathy must be over- 
 come with the opposite sympathy; one general 
 trend of justice with the opposite trend of jus- 
 tice. Each one must exert himself in his own 
 direction. Nothing appeals more strongly to the 
 jury than the very common case of a child that 
 has been injured by a railroad train. Of course 
 the general sympathy is at once raised for the 
 child, ruthlessly run down by the train and the 
 jury is more than ready to find for the child. 
 On the other hand the defendant will bring out 
 that the train was carrying people who were 
 travelling ; that people must travel and that rail- 
 road service is a beneficent institution. One of 
 the passengers might be hastening to a sick bed ; 
 another one may be hurrying home to attend to 
 some important industry; a physician might be 
 hurrying to the bedside of a person who needs 
 
256 TRIAL TACTICS. 
 
 his immediate attention. The train is going rap- 
 idly in response to a public demand for speed. 
 This is the justification which overcomes to some 
 extent the idea of a train as a ruthless and de- 
 structive monster, and at least gives the defend- 
 ant some chance before the jury. 
 
 Another difficult position for the plaintiff is 
 that of a bank suing on a note against some small 
 tradesman; the attorney for the small debtor 
 pleads that he should not be burdened with this 
 unjust debt, assuming some defense or other. 
 The attorney for the bank however starts in by 
 saying that he feels as though the jury has a 
 general idea that the bank is a corporation which 
 grows rich upon the industry of people, but he 
 passes on to the justification of a bank. He 
 brings out the fact that trade could not continue 
 if it were not for banking facilities, that trades- 
 men themselves are dependent on banks, and 
 the smaller the tradesman the more necessity for 
 a bank. He must deposit his money and the 
 safety of the banks is of the utmost importance 
 to these small tradesmen. But the bank cannot 
 be safe and strong unless the jury protects it in 
 its right; sees that when it lends out money it 
 gets the money back again, and so on. 
 
 There are strong natural equities which are 
 developed on one side of the case or on both 
 sides. One of the strongest natural appeals is 
 
THE ARGUMENTS. 257 
 
 what is called a common-law marriage, especially 
 where there are children born of the union. A 
 woman claims that a man is her husband though 
 no marriage ceremony was solemnized. The 
 jury is more than eager to sustain the marriage, 
 more than eager to sustain the children as legal 
 and legitimate. In a case of that sort a very 
 strong counter argument would be required for 
 the defense. 
 
 Again, a will may seem unreasonable and un- 
 just in its terms. The parents have left a con- 
 siderable estate, in the accumulation of which 
 the sons have helped in the business and the 
 daughters in the household. If it is found that 
 the father has willed all his property to strang- 
 ers or perhaps to distant relatives or even for a 
 commendable charitable purpose it strikes the 
 jury as unreasonable for the man to ignore his 
 own flesh and blood and they are ready, when 
 that is pointed out to them, to follow the natural 
 equity and defeat the will if there is the slightest 
 chance to do it. They will ignore the weight of 
 the evidence and the preponderance of the evi- 
 dence and everything else if possible in favor of 
 natural equity and therefore it is the duty of the 
 lawyer to point this out to them. 
 
 Criminal cases have their natural equities on 
 each side very strongly marked. Sometimes the 
 only defense is the reliance upon constitutional 
 
258 TRIAL TACTICS. 
 
 privileges or upon the common law that the de- 
 fendant must be not only found guilty but must 
 be found guilty beyond a reasonable doubt. 
 Sometimes the jury may think that that is only 
 a shadowy thing and it is the lawyer's duty to 
 emphasize its importance. 
 
 In regard to insurance again the jury may 
 think that the clauses in a policy are very se- 
 vere and technical and that they should not be 
 enforced against the plaintiff who has suffered 
 a loss by fire ; 'or by accident or death, if it is a 
 life insurance matter. The advocate for the 
 defendant company may then remind the jurors 
 of what is very apt to be the case, that some of 
 them are themselves component parts of insur- 
 ance companies for in nearly every jury will be 
 found a number of men who belong to some 
 brotherhood or society, to the Knights of Pyth- 
 ias, United Workmen, or to one of the organiza- 
 tions of that sort which are to some extent insur- 
 ance societies. He may request them when they 
 go home to read their policies which are the con- 
 stitutions and by-laws and they will be found 
 a great deal more technical than the clauses in 
 this policy. So they begin to see that these 
 clauses are necessary to protect the funds of 
 such a society against unjust and improper 
 claims. 
 
 Apt allusions and imagery are very helpful in 
 
THE ABGUMENTS. 259 
 
 argument and a practitioner does well to store 
 his mind with material for that purpose which 
 he may gain from reading history, science, meta- 
 physics, — from nearly everything. The day of 
 the jury advocate has passed in which the legal 
 giants of the old school would argue for days 
 about a case involving a hog or a coat, and use 
 every power of pathos, ridicule and oratory in 
 establishing their side of the case. Time is lim- 
 ited now, and brief, emphatic arguments must 
 be employed, but apt illustrations and quotations 
 may still be used if they are short and strong. 
 
 Shakespeare is an abundant source of illus- 
 tration; the Bible an even greater one. In ar- 
 guing a case for a laboring man the jury may 
 be reminded that he who sows the seed is entitled 
 to a share of the harvest, a doctrine as old as 
 Holy Writ and universally acknowledged as 
 just. 
 
 As a simile for slander the old tale may be 
 told: that one found guilty of slander was or- 
 dered by the judges to go to the top of a tower 
 with a handful of thistle down which he must 
 allow the wind to blow away, and then as a pen- 
 alty ordered to go down and pick each fibre up 
 again. Defamatory words which are spoken or 
 printed are scattered to the four winds of heaven 
 and it would be an impossible task to recall them, 
 to pick them up and bring them back. Not only 
 
260 TRIAL TACTICS. 
 
 that, but they are a very noxious seed which pro- 
 duces a prolific crop. 
 
 To impress upon a jury the extent of a client's 
 sufferings from an injury is a simple enough 
 matter where the injured party sits before the 
 jury with his hand sawed off and with the un- 
 sightly stump of an arm protruding. It does 
 not take much argument in a case of this sort, 
 but there are injuries quite as grievous though 
 not so apparent, which the untrained intellect, 
 not only of jurors but of judges, will fail to ap- 
 preciate unless their imaginations are stimu- 
 lated. For instance the affliction of insomnia or 
 impaired sleep as the result of an accident must 
 be brought home to the jury in some effective 
 way and Shakespeare may avail — 
 
 "The innocent sleep; 
 Sleep, that knits up the ravell'd sleeve of care, 
 The death of each day's life, sore labor's bath," 
 
 or 
 
 "Balm of hurt minds, great Nature's sec- 
 ond course, 
 Chief nourisher in Life's feast." 
 
 In damage suits the plaintiff's lawyer must 
 not forget to let the jury know something about 
 the amount of damages that he thinks his client 
 is entitled to because if he does not allude to that 
 
THE ABGUMENTS. 261 
 
 and demonstrate to them how they may compute 
 the amount they may not come to any satisfac- 
 tory conclusion in the matter. 
 
 It is wise to harmonize apparent controver- 
 sies whenever possible, to try to make the jury 
 understand that both sides want the same out- 
 come. Take for instance the case of the hus- 
 band who is suing his wife for adultery. It may 
 readily be argued by the defense in such a case 
 that both sides want the defendant to win. Cer- 
 tainly the wife wants to win to vindicate her 
 name and the complainant wants the defendant 
 to win to prevent his own children from going 
 through life disgraced. The jury are told that 
 the husband would be only too glad to find that 
 he had been misinformed or mistaken and that he 
 would be the first to welcome a verdict of not 
 guilty and to know that his wife was innocent. 
 Under these circumstances the jury would find 
 for the wife if they possibly could. They would 
 reason, "Of course we are glad to tell this man 
 that his wife is innocent and to remove this cloud 
 from the family." It would require a very 
 strong case against the wife for the jury to over- 
 come that argument. 
 
 Suppose in another case the husband is on trial 
 accused of murdering his wife and his defense 
 is that she committed suicide. The counsel for 
 the accused will here plead how much more con- 
 
262 TEIAL TACTICS. 
 
 soling it is for the children to retain the father's 
 care rather than to have him executed and be 
 deprived of both parents; to retain the father's 
 good name rather than be branded as the chil- 
 dren of a murderer ; and to assume that this poor 
 woman in a demented condition, for which no- 
 body is responsible, killed herself. There are 
 indeed cases and this unfortunately may be one 
 of them, where guilt is so clear and unmistakable 
 that the jury must find the defendant guilty ; but 
 the duty of the advocate is plain, he must make 
 use of whatever material he has. 
 
 Quite a common occurrence is a suit on a fire 
 insurance policy in which the fire insurance com- 
 pany claims that the party set the property on 
 fire himself. The company's lawyers will say 
 in a magnanimous spirit in order to gain favor 
 with the jury, that the company does not care 
 very much for the amount but that they never- 
 theless must insist upon an example being made 
 in order that such crimes may not become too 
 prevalent. The plaintiff's attorney answers, 
 "Of course the defendant does not care about 
 this small amount of money and therefore a ver- 
 dict for the plaintiff will make both sides happy, ' ' 
 and with a right argument and a slight amount 
 of evidence the jury will find against the insur- 
 ance company if it can be shown that the client 
 
THE ARGUMENTS. 263 
 
 has paid his premiums and is entitled to be pro- 
 tected when disaster comes. 
 
 In cases of great moment, cases involving the 
 trial of life and death the prosecutor must work 
 the jury up to the point where it will do its duty. 
 Humanity is exceedingly reluctant to deprive a 
 fellow being of life and a jury is very slow to 
 find the accused guilty of murder and condemn 
 him to death unless the jurors are worked up to 
 the point where their duty is unmistakable. The 
 prosecution will call their attention to the rule in 
 the old Greek trilogy which has existed for un- 
 told time. "Blood for blood and blow for blow. 
 Thou shalt reap as thou dost sow," or will appeal 
 to Scripture "An eye for an eye, a tooth for a 
 tooth," or again "Whoso sheddeth the blood of 
 man by man shall his blood be shed, ' ' which has 
 stood the test for six thousand years. The in- 
 terest of the juror must be lifted to that height 
 where he can disregard individuality and give 
 his attention only to doing his full duty regard- 
 less of any consequence or any sentiment. 
 
 But the defender in the intermediate speech 
 should anticipate this last speech, and in a meas- 
 ure provide against it. He should caution the 
 jury that they must be dispassionate, that they 
 must not allow themselves to be worked up into 
 a fury by the mere heinousness of the offense 
 because it would only be a double wrong if the 
 
264 TRIAL TACTICS. 
 
 jury should make an innocent person suffer. 
 He should remind them that even if crime was 
 committed the safety of society requires only a 
 punishment commensurate with the offense and 
 nothing more; that it is not their province to 
 thirst for blood or to do vengeance. They are not 
 there to execute someone simply because an of- 
 fense has been committed but to investigate and 
 to see beyond a reasonable doubt where the guilt 
 is. He also should remind them of the biblical 
 injunction "Vengeance is mine, I will repay, 
 saith the Lord," which is some check against 
 their being swept to extremes by the last stirring 
 speech of the prosecution. 
 
 So each case has its own illustrations and in 
 each case something may be said in a general 
 way of what has been called natural equity 
 which may be developed by the plaintiff's at- 
 torney on the one side or brought to the atten- 
 tion of the jury by the defendant's attorney on 
 the other side. 
 
 The admonition must be repeated that what 
 has in any instance been said is not to be re- 
 garded as a rule to be unvaryingly adhered to 
 but only as a suggestion to be worked out and 
 made applicable to the particular case.