Day in Court, Or, The Subtle Arts of Great Advocates

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Chapter I

The term ^'advocate*' is commonly used to designate the lawyer engaged in the trial of cases in court, and whose special business and chief function is to deal with' facts, either to elicit them from the witnesses or present them to the judge or jury. I shall have but little to say as to the duties of the office lawyer in his office practice as distinguished from the advocate in his court or trial praaice.

The two branches of the profession require not merely different but opposite faculties, which, it seems, cannot well coexist in the same individual.

The distinction is one which many members of the legal profession are loath to admit. It wounds a lawyer's vanity to know that there is little or no hope of his becoming great both as an advocate and as an office lawyer.

If a man has a decided talent for court work, he is slow to admit that he is less profound as a lawyer than his contemporary at the Bar who has devoted his time

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...iSWy • IN COURT

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and anentioff'.sVnctly to his office practice and who

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can citef 'eases by the hour and can dictate the most

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io^poftant legal papers almost with closed eyes.

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. ''^.*-On the other hand, the successful and learned office

•/•- '• ' ^ •.••{•.//' lawyer often secretly believes that he could shine as

well in court and might have achieved quite as great a

reputation as an advocate had only circumstances or

opportunity so decreed.

How seldom has it been found in the history of the profession that one personality has combined such conflicting qualifications as are required by these dis-^ tinct branches of professional work!

Nature seems almost to forbid that this should be so.

How can one expect to combine, for example, the rapidity of thought, the promptitude of decision, the large knowledge of the world required of the advocate, with the slow judgment, the patient study of the books and of the statutes, the laborious plodding over papers and accounts, and the tedious attention to detail that is required of the office lawyer ?

If we picture to ourselves the spectacle of some studious, painstaking, learned, staid, conservative, old-fashioned lawyer transplanted into an exciting court room by the side of his anxious client, amidst a crowd of eager listeners, and at a moment's notice called upon to play the part of a great advocate, with '"hands charged with electricity and face all ablaze with miignetism " on behalf of his quivering client — it becomes at once apparent that nature forbids the same man to play the two roles successfully.

This law of nature, as it were, has been always appreciated in the English courts. There the profession is divided into two branches. Barristers and Solicitors. The Barristers alone are allowed to speak in court. The Solicitors have the monopoly of office practice. The two branches of the profession are entirely distinct.

Already there is a growing tendency in this country to adopt, perhaps unconsciously, the English methods in court. Perhaps when our young men are mature at the Bar, some of these customs will have become well established, and it may be of interest to describe them.

There are. at the present time about ten thousand Barristers in London, eight thousand of whom are not in active practice. Of the two thousand in active practice, there are about two hundred King's Counsel or Leaders, as they are called (because in England every important case has to have a Leader), and the remaining eighteen hundred are Juniors, who are not allowed to "wear the silk."

Only the King's Counsel are allowed to wear a silk gown, and, in order to become a King's Counsel, application must be made to the Lord Chancellor.

Recently, out of ninety applications in one year, only fourteen were granted, and at the present time there is considered to be a scarcity of King's Counsel in active practice.

Indeed, out of the two hundred Leaders actively at work, at least fifty devote their time exclusively to Parliamentary work, fifty to the Chancery Courts, about fifteen to the Admiralty Court, and a few entirely to divorce matters, leaving only about twenty-five King's Counsel now in active practice in the City of London. As a consequence, these twenty-five, or the majority of them, are so busy that they are often required to conduct two or three cases at a time.

Being themselves Leaders, they always have a Junior barrister associated with them.

The Junior sees all the witnesses, prepares the written issues, opens the case, and examines every other witnessin-chief, alternating with the Leader.

The Leader, on the other hand, cross-examines all witnesses, argues questions of law, and sums up to the jury.

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The Junior barristers cannot practise in the higher courts without a Leader, and the Leaders, on the other handy according to the etiquette of the profession, cannot go into the lower courts.

Some Junior barristers, therefore, long before they are successful in obtaining their silk gown, enjoy a very large practice and income through their work in the lower courts.

The Leaders never see a client or any witness, and even the Juniors are merely consulted by the Solicitors all through the early stages of the case prior to the actual trial in court.

The Solicitors, therefore, are the only lawyers who come in close contact with the witnesses themselves.

When an important case is to be reached for trial, a brief of all the statements of the witnesses, case gossip, material for cross-examination, law points, etc., is submitted to some one of the twenty-five King's Counsel, with the price that will be paid for the trial marked upon the brief.

For instance, if it is proposed to defend an ordinary damage suit, the custom is to mark about ;C20 on the brief, and the* King's Counsel accepts or rejects it as he likes. If he accepts it, he agrees to the fee, which is to cover the first five hours in court. If, for example, c 17 a case begins at two o'clock one day, the £20 retainer i& supposed to cover all services until two o'clock on the following day, when the King's Counsel is supposed to make an arrangement for a "'refresher/' which in a ;C20 retainer would be about ;Cio for the second five hours.

The Solicitors, on the other hand, are only allowed to charge fixed fees; that is, fees arranged by statute, and there can be no deviation from these fees unless by a special agreement with the client, which agrees ment must be in writing and signed by the client himself; and even then, so great is the protection of the public against overcharges by Solicitors, the agreement with the client can later be submitted to the court, and, if considered by the court excessive, reduced, and the original contract in writing abrogated.

The Solicitor is allowed to charge ten shillings for an interview with any client who brings a case to him, and he can charge no more unless under a special contract in writing.

H€ is allowed to charge three shillings six pence for

each letter; so many shillings for an interview with a

witness, according to the time occupied, etc. He charges

for each filing of a paper, and, although the price of

everything he does is regulated by statute in as much detail as the price of groceries would be, yet there is so much red tape in a solicitor's office in preparing a case for trial that in the most ordinary litigation, even in a plaintiff's suit for an accident, the statutory fees will run up to about £So, or ^(400.

Of course, among Solicitors of the first rank, these fees are often disregarded by the Solicitor's apprising his client at the outset that his opinion ^^will cost 100 guineas," or 500 guineas, as the case may be, and by the client agreeing to pay this sum in advance. In such a case the provisions of the statute are altered by mutual agreement. But in the great majority of cases the statutory fees are strictly adhered to. It should be noted, however, that in England these fees of Solicitors as well as Barristers are part of the taxable costs of a case and are added to the judgment, the losing party having to pay his adversaries' expenses as well as his own.

In important cases, when it comes to submitting the brief to the Barrister, the fees often run up to a thousand guineas, or more, according to the nature of the case and the amount involved.

It is considered in England against the etiquette of the profession to take any contingent fee whatsoever, and any Solicitor making a bargain with his client to accept a percentage of his recovery in lieu of his rightful fee would be immediately struck off the rolls, and any Barrister guilty of such conduct would be disbarred.

In medieval times the theory of the law was that the Barristers would charge nothing for their services. In those days there was a pocket in the rear of the gown in which the client would deposit such moneys as he chose for the Barrister and his Clerk. Even to this day the Barrister has no standing in court as a plaintiff suing for his fees. He either receives them in advance or he trusts to his Solicitor. Neither can a Barrister be sued for any erroneous opinion he may give.

In the height of the court season in London, as already stated, there are so few King's Counsel in active practice that oftentimes a Barrister will find himself obliged to conduct two and three trials at a time. His habit, therefore, is to allow his Junior in each trial to proceed without him as far as possible in the unimportant parts of the case while he travels from one court to another trying to keep abreast of all his different litigations.

This, however, can always be avoided by any client who wishes to pay double or treble fees to be sure of having his Counsel remain in court throughout the entire trial.

In order to become a Barrister in London, one mpst be proposed and seconded by a Bencher with the same formality as to join a social club.

The Societies of Barristers are made up practically of graduates of the law schools, and most of the Barristers are graduates from Oxford and Cambridge. A knowledge of both Latin and Greek are required in the examination for the Bar.

Attention has been called to these customs of the profession in England somewhat in detail because, as already stated, some of these methods are gradually being introduced into the practice of our profession in the large cities in our own country, especially in New York.

In New York City there are about twenty-five or more advocates who devote themselves almost exclusively to trial work ; many of these seldom see any of their witnesses, but for this purpose have junior trial lawyers associated with them. These junior trial lawyers do all or most of the work of the preparation for the trial itself.

In this way by far the best results are obtained both for the client and for the courts. Causes are more speedily and correctly tried, and the outcry against the so-called "delays of the law" is gradually subsiding.

In London it is now often possible to try a case within a few weeks after the joinder of issue.

PHYSICAL ENDOWMENTS

Chapter II Physical Endowments

Whenever a young man thinks of entering the legal profession, I would urge upon him, before making up his mind whether he will direct his energies toward becoming a great advocate or fix his choice on the less arduous duties of the office practitioner, to subject himself to the closest self-inspection to see whether he possesses the proper physical and mental endowments [that are so essential to success in this branch of this profession.

Nature has not cast all individuals in the same mould, and it is vain to struggle against her decrees ; for a pursuit that is distasteful is never prosperous. On the other hand, where there is a natural fitness for any occupation, success is almost certain to follow industry and perseverance.

First of all, have you the physical requirements of

the advocate? Have you the healthy frame capable

of enduring the long-continued exertion of mind and

body, the confinement of study, the excitement of public

speaking, the long day of labor, the work by night, the excited, broken sleep that follows a prolonged trial in a stifling court room? It is almost impossible to exaggerate the physical strain of court work. Without these strong physical endowments, therefore, abandon all idea of becoming a successful advocate, and choose for yourself the less strenuous and more placid work of the office lawyer.

Next, have you the requisite voice for the work of the advocate? A thin, small voice, womanish and weak, will fail to impress the soundest arguments upon an audience over whom the show of things has more influence than the substance it hides.

It is difficult not to associate a sniall voice with a feeble intellect. One may have a rasping voice, disagreeable to the ear. This is a defect, but not a fatal one, and is capable of being cured by modulation and training. Many men have succeeded with extremely harsh and squeaky voices.

The hopeless voice is the small voice — the effeminate voice. This is a natural barrier which industry cannot remove and which no amount of capacity in other respects can overcome.

On the other hand the voice that '* reaches the real

melody of a song" is a wonderful weapon of the advocate

and exerts a mighty influence both upon witnesses

PHYSICAL ENDOWMENTS

and juries. It lends the greatest variety to the trial. It commands the attention both of the court and jury. It is a part of the advocate's charm which endears him to .his hearers and often slurs over and makes amends for glaring defects in his arguments.

Thomas Jefferson was a striking example of a great lawyer who was obliged to become an office lawyer because he had a voice so weak and husky that he could not succeed as an advocate.

John T. Morse, Jr., in his life of Jefferson, says that the weakness of Jefferson's voice, more than any other thing, prevented him from becoming successful in trial work.

Henry Clay, on the other hand, was a great advocate, one of the chief reasons being that he had a voice that was marvellously musical and of rare power.

The voice, as has been truly said, is a gift that is born in a man, like speed in a race-horse.

Much, however, can be done by practice to overcome defects in the voice.

Everybody knows that Demosthenes, in order to overcome an impediment in his speech, used to declaim by the seashore with pebbles in his mouth.

The young advocate should early learn to adopt **Iow tones to reason," "strong ones to denounce,'* and ''words full of feeling to move the sympathies";

whereas tones that capture the judgment and overcome prejudice are full of kindness and music.

In ad4ition to having a suitable voice to become a good advocate, one must have an attractive personality.

Most great advocates have been noted for some marked physical attraction or personal magnetism.

Daniel Webster's personal presence was one of the great elements of his success. It was a fit companion and even a part of his genius and was the cause of his influence and of the wonderful admiration which followed him. ''When still in college, he had so developed his physical frame that he had a most conxmanding presence, although as an infant he was weak and sickly and was deemed to be too weak and delicate for manual labor. He was tall, quite thin, with high cheek bones and a dark skin. Those who heard him never forgot the look of his deep-set eyes and the sound and solemn tones of his voice, his dignity of mien and his absorption in his subject."

In speaking of himself, he said that he was ''known in the village where he taught school as 'all eyes,' and there was never a time in his life when those who saw him did not afterwards speak of his looks, generally either of his wonderful eyes or of his imposing presence.^'

Dunning is one of the most remarkable instances on

PHYSICAL ENDOWMENTS

record in England of the triumph of genius over physical defects. He is said to have labored under the disadvantage of a singularly unprepossessing exterior. He was the ugliest man of his day, without being in any way what would be called deformed. His figure was short and stumpy, his complexion was sallow. He had a snub nose, giving a remarkably plebeian expression to his countenance. His whole frame was uniformly weak. He labored also under an affection of the nerves, which occasioned his head to be in a state of perpetual oscillation. His voice was almost repulsive. His throat was always half choked with phlegm, as though laboring under a chronic catarrh. Yet, in spite of all these drawbacks. Dunning became the first orator of his day.

An amusing story is told of him. One evening a client called upon him at his chambers ; he was not in, and his clerk directed the client to a coffee house where he said the learned advocate generally spent his evenings. When the client reached the coffee house, he inquired for Mr. Dunning; the waiter declared he did not know any such person. ''Then go upstairs and see if there is a gentleman there with a face like the knave of clubs, and if so, tell him he is wanted." The waiter

went upstairs and immediately returned with Dunning.

I have laid stress upon the physical qualifications of the advocate because so much depends in court upon the personal presence and magnetism of the speaker, especially in jury trials. Juries soon become attached to or repulsed by the personality of the advocate conducting a trial before them. The advocates become the principal actors in the drama, as much as though they were playing the same roles on the stage.

Personal magnetism, therefore, is one of the most important of all the attributes of a good trial lawyer* Those who possess it never fully realize it themselves, and only partially perhaps when under the influence of a large audience. There is nothing like an audience as a stimulant to every faculty. Under such a stimulus the magnetic force of the advocate becomes almost irresistible. He seems to be able to concentrate all the attention of his hearers upon the vital points in the case; he imparts weight and solidity to all he touches; he unconsciously elevates the merits of his case; he comes almost intuitively to perceive the elements of truth or falsehood in the face itself of the narrative, without any regard to the narrator, and new and undreamed-of avenues of attack and defence seem to spring into being almost with the force of inspiration.

Chapter III

Perception, keenness of observation, clearness and quickness of comprehension have always been spoken of as the most essential mental endowments in the advocate.

They are born with an advocate, else he was born for another calling.

In the trial of a case each phase of it must be seen and understood in its entirety and in its detail almost at the same instant and with the rapidity almost of intuition. There is no time for an advocate to ponder upon a thought and turn it over in his mind and master it by degrees. He must grasp it faster than speech can convey it.

It is by this faculty of intuitive perception that the advocate reads the thoughts of the witnesses. It shows him the bearing of every fact as it is developed at the trial and enables him to adopt suddenly a course of action although it may be entirely different from the one he originally started out with. Perception has been D 33 called the corner-stone of the mental faculties of an advocate.

Next to it, and always rated as second only in importance, is the faculty of sound and prompt judgment. Perception and judgment have been called partners for all practical purposes, perception supplying the material upon which the judgment operates.

Good judgment is less frequently found, and alas, is usually less cultivated.

It is seldom, if ever, that an actual trial proceeds along the exact lines that have been mapped out before the court opens. The witnesses tell a different story in the witness-box from that which they have repeated to counsel. Cross-examination brings new phases into a case, develops new facts, and often gives an entirely different turn of the scale balance, where some little thing said or unsaid may unite or divide a jury.

It is the advocate that can quickly perceive these changes and who has the experience, wisdom, and sound judgment to avail himself of their advantages or defend himself against their apparent consequences, who makes the successful trial lawyer.

It is this little difference in skill (watching with alertness for the lucky turn) that clients pay for, and, I am sorry to add, the average trial lawyer usually learns

3+ after the verdict what would have benefited his case if seen in time.

An advocate, of all men, must think, and think con* stantly and quickly through every stage of his case, and train his mind for adverse turns of evidence.

This quality of knowing just what to do and when to do it is sometimes called the sixth sense of a counsel.

It comes to him only through long practice.

The sense of fine work in law suits is a cultivated gift that increases with use like the skilled hand of the surgeon or the supple fingers of the trained musician.

It is not too much to say that it is almost invariably the case that some little turn in the evidence makes for victory or defeat, and it is this power of the advocate to meet this turn instantly, to perceive its effect, and the good judgment to turn it to his own advantage, that leads every experienced trial lawyer to place perception and judgment among the first mental prerequisites for success in court work.

To a rapid and clear perception and a ready and accurate judgment is usually added the power of imagi-< nation.

Imagination gives shape to thought, and infuses a glow and color into expression and makes word pictures.

It is not enough for an advocate to have in his own mind an accurate vision of a place or a person or an event. He needs to convey to other minds the picture painted on his own. He has to convince judgments for the most part slower than his own, and must impart ideas to persons to whom words do not always have the same meaning as that which they present to himself.

How often have we observed the difference with which some speakers will hold the attention of their audiences. We listen with admiration to the discourse of some learned advocate whose composition is perfect, whose language is scholarly^ whose rhetoric seems flawless^ whose manner is dignified , whose phrases are carefully rounded, whose tones are solemn, and at the end it seems to have been an able speech. But nothing has brought conviction to our minds. We can hardly recollect the different steps of the argument. The impression finally left upon our minds is that it was all words. The words have entered at our ears, but with all our desire to receive them understanding^, they do not write themselves on our memories.

Let such a speaker be followed by another, of different character, not quite so classic or correct in language, so close in argument, but we listen, and gradually, instead of an effort to keep the attention alert, we cannot choose but hear. We become ourselves witnesses to the events narrated and all our sympathies are kindled. We see, we comprehend, we are convinced, and, as the speaker sits down, we are satisfied that he has the right on his side.

The faculty by which this triumph is effected is the art of the advocate's imagination.

In addition to perception, judgment, and imagination, there should be the further faculty of sincere emotion. Our minds are so constituted that any emotion in another, strongly and naturally expressed, excites a corresponding emotion in ourselves.

If the advocate himself does not feel 9trongly and sincerely, by no art can he excite through sympathy the feelings of his audience. It is his sense of rights his indignation of the wrong, enlisted in the cause he is advocating, making themselves visible even on his face, uttering their own natural and appropriate language, that kindles sympathy in the minds of the audience.

An advocate needs also undaunted courage and resolute energy in attack or defence. He needs self-confidence and unflinching firmness. He needs the ability to concentrate his whole mind on the matter immediately before him, and above all, he needs the power of clearness and simplicity of expression.

In advocacy, facts are always the foundation of argumenty and the force of his argument depends upon the clearness with which the advocate presents his facts.

I shall have something to say on the subject of clearness and simplicity when we deal with the opening and closing speeches to juries, but clearness is equally important in all branches of a trial, especially in the direct examination of witnesses, in developing the facts in such good order and with such simplicity as to be grasped and retained by the most ordinary minds.

One of the great secrets of the success of Lincoln, who, before he became President, won nearly all of his jury trials, was because he was such a master of clearness and simplicity. It was one of the chief great mental endowments of Lincoln, but it was a power which he carefully cultivated in his boyhood, and highly developed only by hard labor.

Years later he related his experience to an acquaintance who had been surprised by the lucidity and simplicity of his speeches and who had asked him where he was educated. He said, **I never went to school more than six months in my life, but I can say this, that among my earliest recollections I remember how, when a mere child, I used to get irritated when anybody talked to me in a way I could not understand. I do not think I ever got angry at anything else in my life, but that always disturbed my temper and has ever since. I can remember going to my little bedroom after hearing the neighbors talk of an evening with my father and spending no small part of the night walking up and down and trying to make out what was the exact meaning of some of their to me, dark sayings. I could not sleep, although I tried to. When I got on such a hunt for an idea, and until I got it, or I thought I had got it, I was not satisfied until I had repeated it over and over, until I had put it in language plain enough, as I thought, for any boy I knew to comprehend. This was a kind of passion with me. It has stuck by me, for I am never easy now when I am handling a case until I have bounded it north, and bounded it south, and bounded it east, and bounded it west."

It was perhaps this solid training of Lincoln's natural faculty for clearness and simplicity of statement that accounts for his ability to deliver that immortal Gettysburg speech which is regarded as one of the finest passages and models in all literature for simplicity, clearness, brevity, and beauty, both in matter and in form.

It is with this clearness of expression that the advocate is able to write his own '* convictions on the hearts of the jurymen" and ** engrave them on their bones."

Another rich gift to a trial lawyer is a good memory. This is something which cannot be over-cultivated. The simplest trial has so many little details that must always be kept in mind, and often it is the smallest detail that points the finger to the truth of the contention.

I have also said something of the need of ability in an advocate to concentrate his whole . mind upon the matter immediately before him. This power of becoming absorbed in his subject must not, of course, be developed to such an extreme degree as to put him asleep as to other equally important matters.

An amusing story is told of Mr. Sergeant Hill who

was not only the most eccentric but also one of the most

learned of the English lawyers of his time. He had the

habit of becoming so absorbed in his profession that

it rendered him perfectly insensible to all objects around

him. He was engaged to an English heiress, and on

the morning appointed for the wedding, went down

to his chambers as usual; but, becoming immersed

in business, forgot entirely the engagement that he had

for that morning. The bride waited for him so long that a messenger was despatched to his chambers. He obeyed the summons, and, having been married, returned to his work. At about dinner time, his clerk, suspecting that the Sergeant had entirely forgotten the proceedings of the morning, ventured to recall them to his recollection, and sbnt him home to dinner !