Hints on Advocacy: Conduct of Cases Civil and Criminal : Classes of Witnesses, and Suggestions ...

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Preface To The Sixth Edition

In this edition various alterations have been made, which, I hope, are improvements, and I have added Five Witnesses to that part of the work which treats of Cross-examination. They are ^^ The Awkward Witness ;^^ ^^ The Convict;'^'* " The Private Detective i'^^ ^^ The Surveyor ;^^ ^'The Expe^'t in Handwriting ;" all of which may be of some use, however small, as suggestions for the study of character. Weaknesses are general, and belong (I mean the same weaknesses) to whole classes, but strength of character is almost always individual. It is obvious, therefore, that a knowledge of human nature will consist mainly in an acquaintance with its weaknesses. I have often been asked whether my witnesses are intended for living individuals, or whether they are evolved. To both questions I answer no, and yet their prototypes are everywhere I The same

IV PREFACE TO THE SIXTH EDITION.

remark applies to those now added to my collection. You will not see the ^'expert in handwriting " everywhere in the shape of an expert^ but I have often seen him with the same class characteristics under a different form. These witnesses are not individualities, but types : and although particular features may sometimes be recognised by those who are fond of comparisons, the impress I have endeavoured severally to give them, is the general likeness of the class, and not the characteristics of the individual.

RICHARD HARRIS.

Lamb BuiLDiNa»

Temple, London.

December ^ 1881.

PEEPACE TO THE FIEST EDITION.

There is no School of Advocacy : there are no Lectures on Advocacy ; and so far as I have been able to ascertain, there is no book on the subject. The newly-called Barrister has to find his way as he best can, very often to the sacrifice of important interests and many unfortunate clients. As he has never learnt anything of the Art of Advocacy, he is no more fitted for the task of advocating their rights than the clients themselves, except in so far as his knowledge of law will assist him in the purely legal aspects of the question. It seems to me lamentable that no instruction should ever be given in an ait which requires an almost infinite amount of knowledge. Tact cannot be taught, but it will follow from experience, and a good deal of experience may be condensed into the form of rules. " / never felt so much in want of a leader as I did when I had to cross-examine that doctor,'' said a talented junior of considerable standiug. Why should this have been? What he had to crorsexamine about was simple enough, although the question involved was the sanity or insanity of an

VI PREFACE TO THE FIRST EDITION.

individual at a particular time. But he had no rule or principle to guide him, and was simply adrift. It is with the hope that some of the observations I have made in the course of my experience may be of some little service to beginners in the profession, and whose want of knowledge of this great practical branch of it is no fault of theirs, that I have ventured to offer them the following *' Hints."

THE AUTHOR.

Temple,

September 17th, 1879.

Contents

OHAPTXR PAOI

I.— Opening the Plaintiff's Case . . . . l

II.— Examination-in-Chief 29

Chapter I. As To Opening The Plaintiff's Case

It was with considerable diffidence that I placed the following '* Hints on Advocacy '* in the hands of the publisher. It seemed at first somewhat presumptuous on my part to offer any remarks on such an important subject. On further consideration, however, I came to the conclusion that one need not arrogate to himself the character of a great advocate, merely because he offers, for the benefit of students, a few observations which are the result of a careful study of the modes pursued by the leaders of the profession. It is not necessary to possess the highest qualities of a writer in order to criticise a book ; or of a painter, to treat with discriminating ability the productions of the greatest masters displayed from time to time on the walls of the Royal Academy. It did not i-equire an artist, but a very common-place individual, to perceive that a great painter had produced a live red lobster in a basket of newly-caught fish. Why then should it be presumed that I claim anything more than an ordinarily observant mind to detect a blunder or perceive a grace, in the exercise of the profession, by those whose skill it

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I have seen very many excellences to admire, and> if haply, to profit by ; and I have seen many a red lobster, painted by young artists, which I am afraid has not deterred me from producing some myself of the most beautiful vermilion. And it is because I do not know of any book which may be considered as a guide to the youthful aspirant to the honours of the profession (the greatest of which is to be a master of advocacy), that I have taken upon myself to offer the following remarks for his consideration. They are not put forward in a dogmatic spirit, but, on the contrary, with a full consciousness of their imperfections and of their incompleteness when the great subject of which they treat is considered in its vastness and sublimity : but if they should be useful in discovering to the young advocate a dangerous pitfall, or in giving a direction to his unpractised energies, I shall be pleased that I overcame my scruples as to publishing them.

Experience smooths the way in all professions ; but I have seen so many accidents brought about for want of it, that it may be useful to note some of those principles which seem to guide the best advocates, and which have presented themselves by virtue of their constant applicability and usefulness, to my mind, in the form of rules, unwritten, but nevertheless capable of being codified, and certainly deserving of obedience.

I suppose no one will deny that many a good case has been lost by an inexperienced, and many a bad one gained by a skilful advocate. There is a good deal " in the play,'* even when you hold an indifferent hand. Anything, therefore, in the shape of a rule which may be useful to a young advocate either by preventing him

"HUMAN NATUEE. 3

from committing a blunder, or assisting him to conduct his case in a fairly creditable manner^ must be worthy of some consideration.

I shall begin with a proposition, which I do not think will be seriously disputed, namely, that Common Sense is the foundation of good advocacy. A man may be brilliant as an advocate, and even successful, but the mere dazzle of his splendour will be no light to lighten the path of the inexperienced. On the contrary, it may mislead him by its fascinations, and conduct him into dangerous errors. A brilliant advocate may be bold and win by it ; or, if he fail, may cover his defeat by masterly and striking eflforts, whereas an ordinary person, failing in his attempted imitation, would present but a clumsy appearance in his overthrow. Common Sense, invaluable in all human pursuits, is of the utmost importance in advocacy. It is the one quality without which all others are useless, and with which almost all others are superfluous.

An advocate is always dealing with human nature. It is not only the instrument he works with, it is also the field of his labours. Whether he measures his opponent, or estimates the qualities of the jury, or probes the mind and character of the witness, a knowledge of human nature or human character is the key to success. To treat mankind as mere machines, as some advocates occasionally do, is to show an utter absence of that knowledge which is often the last acquirement but always the first necessity of an advocate. The worst thing a man can do is to treat the jury as though they were so many fools. And this mode of treatment is by no means exceptional. Young advocates, fresh from the glories of their debating societies, are prone to tmdervalue the commoner knowledge of business men. It is a mistake of youth. Whatever may be their

B 2

4 AS TO OPENING THE PLAINTIFF'S XSASE.

mental capacity, whether you have a stupid or a wise jury, to treat them as unworthy your respect is probably to lose your case, and to discover yourself a man of very little wisdom. There are almost sure to be one or two shrewd men on the commonest of common juries and inasmuch as they will lead the rest, you must beware of making them your enemies, as you undoubtedly will, if you let them suppose, by word or manner, that you consider them of little understanding.

A jury is at all times a difficult body to handle, and the more experienced an advocate becomes, the more delicately will he treat the men who have to decide the fate of his cause.

A temperate style is always more effective than a noisy one. I have never known a verdict obtained by noise : foam has no weight, fury of language no force. I do not intend for a moment to suggest that a conversational style is powerful ; on the contrary, you might as well attempt to fire a bed of growing rushes with a piece of tinder as rouse a jury with a feeble speech. Bad speaking is infinitely woi*se than silence. Let the facts speak at all events. But a roaring style never persuades, only astounds if it does not stun. I have never known a bawling advocate successful in getting verdicts, — I mean for his client.

Juries generally endeavour to do what they believe to be right, and to decide justly : it is inherent in human nature that they should : but the danger of this excellent quality is, that their desire to do what is just often leads them to an unjust conclusion. They set up, as they think, a kind of natural justice amongst themselves, as though they should have a common standard of height for all mankind, which would produce, undoubtedly, much painful stretching, or undue stooping if all were forced to meet it. This natural justice, unfortu-

FLATTERING THE JURY. 5

nately, is neither law nor equity, and generally inflicts injury on both parties to the action, as the boys did who divided the bellows that each might have a share.

The advocate who knows that his clients* rights are inconsistent with this natural theory must convince the jury of their error and bring them to a more accurate perception of the merits of the conflicting claims. This is not to be accomplished by declamation, but by the exercise of the reasoning faculties. You must clear away not only the theory which they have constructed, but the basis on which it rests. Here is work for — first your perceptive faculties and then your argumentative. And beyond question you must clearly ascertain what their idea of the merits of the case is. Among charlatans this process would be called " thought-reading : " with advocates it is merely the exercise of common sense — a process of reasoning based on a knowledge of human nature. You may never touch the right point ; if you do, and are skilful in your mode and matter of address, you will overcome it ; if you do not, so much the worse for your client ; your knowledge of human nature is at fault, and you may as well sit down, for you are very much in the situation of Tony Lumpkin's mother — driven round and round in the dark without getting a step farther on the road.

Nothing makes a jury more keenly sensitive of your contempt for their mental capacity than flattering them. When I say flattering, I mean the coarse and fulsome style exhibited in such expressions as an " intellectual jury," a "jury of Englishmen," and kindred phrases : feeble epithets which tend only to prove that " nature abhors a vacuum." There is a flattery that is soothing and winning ; but to flatter well is an art and a gift which very few possess. It consists in the employment of language which does not itself directly flatter, but induces the hearers to flatter themselves. It is subtle and imperceptible as it is delightful and irresistible.

If you watch a jury while an advocate is trying to convince them that they are something out of the common run of human nature, you will perceive the same expression on their features that you observe in the faces of the crowd that listens to a " cheap Jack " while he is praising his wares. In both cases the hearers know as well as you do that they are, to use a common phrase, being humbugged. But in the latter case they are amused without being annoyed ; in the former they are generally disgusted, and contemn you as a shallow impostor, who would cheat them if you could. Nothing can be achieved at the bar by artifice, except a contemptible reputation. But you may accomplish everything by earnestness and an honest employment of those arts without which Genius itself would be but a brilliant failure.

The most effective way to secure the attention of the juiy is to be in earnest, or at least appear to be. If you are really so, you will communicate something of your own feeling to them. This is the art of speaking : the carrying your hearers with you in mind and sentiment.

The next thing to observe is to be logical ; without this you will not be even intelligible. Some things you say may be understood, but your address generally will be a jumble of words and a confusion of ideas.

I do not by any means imply that you must put both aides logically ; by so doing you may reason yourself out of Court. It is your ovm case that I speak of, and it matters little whether you are addressing an educated or an uneducated audience : the mind is a reasoning machine, and it will the more readily grasp arguments that ai'e put logically than those which are presented with unnatural distortions of premiss and sequence

FINE LANGUAGE. 7

Your object is not to excite their wonder, but to convince their reason.

A skilful and experienced advocate will quickly perceive the master mind of the jury, and to him he will first address himself. Nor will he be long in ascertaining whether he has made an impression or not. If he succeed, he need not trouble himself very much about the rest, unless there are those on the jury who have prejudices against his case. If there are, these prejudices must be attacked, and if possible beaten down, for it will not be sufficient to enlist the intelligence of one or two minds against the prejudices of others. Intelligence and prejudice are the two master influences on the jury. If there be no prejudice you win by convincing the best mind. If you cannot gain the strongest try and secure the weakest, for if you succeed here you will not lose your case. When trumps are out, the weakest card may take the trick, and you have as much right to win with an uneducated Hodge as with a philosophical Mill. The jury are there for you to gain over to your side if you can by fair and legal argument, and by presenting your case agreeably to their minds and sentiments. I do not say you should appeal to the passions or sympathies of a jury, but it is perfectly allowable to induce the jury to make that appeal for themselves. The man who directly solicits compassion is a poor advocate, but he who presents the facts of his case so that the jury may regard his client with that sentiment is a great one. The one knows human nature, the other does not. The one awakens your sympathy, the other rouses your contempt.

One great evil to avoid, if you would be understood and appreciated, either by a common jury or a special, is fine talking. Fine language will not stand the wear and tear of an ordinary niai priua contest, and nowhere

(except in the ears of a romantic female) is it so powerful and eflfective as good well-chosen homely words. It is as unnatural as the spangled dress of the acrobat, and as utterly unfitted for the ordinary business of a work-aday life. One has often seen advocates mystify their meaning in phrases which were more like a girlish novelist s hysterical utterances than the sound language of a man and a scholar. It will take a good and gifted speaker a long time, and will require a great deal of practice, before he can venture to embellish his address with the figures or the fancies of rhetoric ; indeed, the most gifted and the most finished speaker will only use them in a limited manner ; prof useness of ornamentation, like a redundancy of words, being at all times more calculated to obscure the meaning than to elucidate it. Above all things affectation should be avoided : every listener detests it, and cannot help feeling some degree of contempt for the person who indulges in it. Affectation is a weakness even with strong minds, and although it is sometimes tolerated in a clever man it is never admired ; when an ordinary individual indulges in it — ^he is simply despised.

At the bar, except in rare cases, the higher gifts of oratory are out of place ; it is a limited field ; it has its beaten tracks, and along these men must travel. Oratory is not one of its paths ; in other words attempts at what is commonly called oratory are to be avoided. What a figure an advocate would present who should attempt the flights of Burke or Sheridan in a " running down " case ! The Empire is not at stake in every trial ; and a British pickpocket may be defended, at least up to conviction, without a severe onslaught on the British Constitution. What is really required is a simple well-told narrative of the facts in opening your case to the jury ! The fewer words the better, and the

ARGUma TOO SOON. 9

less argument the more likely is your statement to be believed. It must seem a strange story to the juiy if it requires arguing upon before the other side have had a syllable to say in contradiction ! An advocate will sometimes in his opening, as though he were stumbling among improbabilities at every step, assert that the plaintiff was on his proper side of the way, and that he will convince them that that must have been so, because, &c., &c. This is as bad as an opening can be, because it casts a doubt at the very commencement upon the truth of his own story. I was about to fall into the same error by saying if any one doubt my assertion, let him go to Westminster Hall and listen ; but it is too great a blunder to require further comment.

The best reason for the jury's believing your story before contradiction is that your witnesses swear to it. When the other side shall have brought facts in conflict with it, your time of argument will have arrived, and your arguments will have a freshness which, if used before, they would not possess; they will work as if their edge had not been taken off by a clumsy exhibition when there was nothing to cut. When there is no grist the miller stops his mill.

Another advantage from not arguing too soon will be, that your adversary will not be able to turn your arguments against yourself, or to adapt his own in accordance with your theories. In other words, you had better obtain some knowledge of your opponent's hand before throwing away your best cards.

At the expense of repetition, I have endeavoured to impress this point upon the student's attention, because it seems to me of the greatest importance ; a good cause may be thrown away by a weak and indiscreet opening.

The first thing to be done in opening a case is to

B 3 impress the jury with the idea that at least you believe in it yourself. This may seem almost too obvious a truism to mention, and no doubt it is present to the mind of every advocate. We all know it, or believe we do. The youngest student will say, "Of course you must make the jury believe that you think your case is an honest one. Everybody knows that." Granted; but it is not the simply knowing it that I am inculcating, but a very different thing, viz., the making the jury believe this. Knowledge is a very excellent thing, but it may be perfectly useless of itself, as the captain of your eleven will tell you. Everybody knows a great deal, and, generally speaking, the younger a man is the more he knows. I have seen advocates whose manner was such that they scarcely ever seemed to believe in their own case. A want of seriousness has characterised their tone and language. This is a fatal blunder of style. There is nothing which a jury so much detests in the person addressing them as an air of jaunty frivolity. One need hardly say it is quite a distinguishable quality from humour, for which it is often intended. Humour, when it can be introduced with propriety, is one of the most insinuating of qualities ; is almost always acceptable, and is one of the most fascinating as well as successful of an advocate's gifts. But you must have the genuine article and not the spurious imitation, between which there is .as much difference as between a hearty laugh and the grin of a dog that runs about through the city.

There is another evil — not the least under the sun in advocacy — ^which consists in constantly anticipating your opponent's case. It is a similar fault to that of arguing in defence of your assertions before they are attacked, but a trifle perhaps more dangerous. Some advocates think it proper to anticipate the defence and

SLAYING GOLUTH. 11

demolish it at once. This would doubtless be an excellent mode of warfare if you could accomplish it : but it is not given to every one to be a David and to catch his opponent "on the hop." The law now-a-days does not permit it : convenience must be sacrificed to justice, and you must fight your opponent fairly if at all : he has the right to present his case, and it will be your duty, if you can, to demolish it afterwards. Even if you know the exact line he is going to take, it is not always advisable to meet him half-way. But in ninety-nine cases out of a hundred you do not know the manner in which his case will be presented, although you may know what his defence is. After he has opened it and employed his arguments, you know the exact line he has taken ; and if you cannot beat him then, it is quite certain you could not have done so before. Do not spring at your adversary before he is over the ditch, otherwise you may find yourself uncomfortably landed in the middle.

One often hears a youthful (and sometimes a not youthful) advocate say, " he cannot conceive what defence his learned friend can have " — that "it's really, gentlemen, an undefended case." And yet, very often these remarks are followed, more often than not, with a verdict for the learned friend who has no case or no defence. It is impossible to conceive of anything more unskilful and ineffective than this. Such assertions are worse than useless. They are no part of the opening ; they are not argument ; they lend no emphasis to the statement ; and they are not true. They impress neither judge nor jury ; but they sometimes make the counsel who utters them look extremely disappointed. If the learned gentleman on the other side has no case, it will appear without your saying so. If he has a case, your saying he has none will not alter the fact. This is nothiog more than an old, worn-out " dodge " of an almost extinct school of advocacy. It is a selfish assumption and an overbearing piece of arrogance on the part of the advocate employing it, as though he would not only proclaim himself judge and jury in his own cause, but even deprive his opponent of the right of being heard in his defence.

It would be out of place to say anything further with regard to redundancy of expression, were it not a prominent fault with many young advocates. It is a pleasant thing no doubt to air one's eloquence in public, but it reminds one of the process of airing other articles — it shows a good many weak places. The fewest words, as a rule, make the best speech. All the language not required to convey ideas is surplusage, and if used at all, should be of the very best ; if not required for use, it should be employed for the purpose of lending dignity or embellishment. It may be said that baldness of expression is not compatible with excellence. That may be true, and I am not unaware that the graces of eloquence lend a charm to the speaker as well as the speech. These doubtless should be cultivated and employed when in a state of cultivation, but not before. Redundancy, however, is not a grace, but a deformity, and the way to cultivate that is to cut it off altogether. Poverty of language is one thing, selection of words another, and there may be the greatest poverty of language with the greatest redundancy of words. One has often heard speakers talk for half-an-hour without making a single sentence, reminding one of a muddy rivulet after a deluge, winding its way wherever it can find an outlet or an inlet, making a great fuss, and never coming to a single stop or a conclusion.

Of course no one would say that ornamentation is to

ABRANGEMENT AND ORD£R. IS

be ignored. On the contrary, it should be carefully used, but not so as to smother that which it should render more attractive. There is, however, little cause to warn the majority of speakers against a too profuse ornamentation. I have never seen this quality going about in any great abundance. But even diamonds, scarce and valuable though they be, are frequently out of place by way of embellishment.

Illustration sparingly employed is an eflfective ornament ; and so much so, that there is often a danger of even truth and reason being sacrificed to it. Minds are apt to be earned away by a beautiful simile, and because that is true, are prone to consider that the argument illustrated must be true also. But in an opening speech illustration should be utterly abandoned. Fact, and fact alone, is the strength of an opening speech ; although when I come to deal with the examples further on, I will endeavour to point out how the facts may be commented upon when necessary by way of explanation, connection, or emphasis.

The principal thing in an opening speech is arrangement and order. No really good statement can be made without this ; and time will never be wasted in noting up and arranging a case so as to present it chronologically to the jury. A fine example of arrangement — indeed, one of the finest on record — is presented in the famous trial of Palmer, the Rugely poisoner^ referred to hereafter.

It may be said no one doubts that order and arrangement are necessary to make a good opening statement. It is so true, that almost every one knows it and no one denies it; but so long as so many advocates act as if they did not know it, and not only neglect all order, method, and arrangement, but confuse facts and dates to the annoyance of judge and jury and to the disparagement of their client, it seems not unnecessary to insist that the strictest attention should be paid to the order of time, the order of facts, and the arrangement of causes and effects. Eveiy statement should be as free from confusion as if the facts had been mapped out on paper with the utmost faithfulness. Every series of facts should be brought down in the strictest otder ; and if there be many series operating apart, but exer* cising an influence upon the main action of the drama, they should be brought down in their natural order and sequence until they are all centered upon the common point. In the most complicated and tangled circumstances there should be no confusion. It is the business of the advocate and the art of advocacy to separate them, and to show their relations to one another, their bearings upon each other, and their influence upon the main action. Irrelevant matter therefore should be carefully excluded — by no means so easy a task as at first sight appears, and only to be accomplished by diligent study and thoughtful practice.