Illustrations in advocacy

Preface

As Experience is the severest school, so mistakes are its hardest lessons. My business is not to teach, but to give the result of my observations, and my observations have been principally directed to the leading men (nominally) in the profession. Were I ever so great a teacher I could never hope to teach my leaders, nor could I expect them to condescend to be taught. But if I could not induce them to be learners, it is no reason why I should not compel them to be teachers. Many of them are so full of instruction, to say nothing of amusement, that it would be a thousand pities to let it flow away, without so much as sprinkling the thirsty inquirers for knowledge, who sit watchful and gasping on the banks of this bountiful stream I

The world is full of teachers do not let it be supposed that I wish to add to their number let me rather be the entertaining companion of an idle hour. By this means my book will not be confined to the limited number of aspirants to Forensic honors, but will extend its circulation to the world of readers, who sometimes require a change from the tideless deep of philosophy, or the gushing rivulets of romance.

RICHARD HARRIS.

LAMB BUILDING, TEMPLE,

London, July 2 at, 1884,

TABLE OF CONTENTS,

CHAPTER I. Introduction

CHAPTER n. In Actions for Breach of Promise of

Marriage, 1

CHAPTER HI. In Actions on Covenants in Bills of

Sale, 22

CHAPTER IV. In Cases of Recovery of Stolen Goods

and How to Challenge Jurors, 40

CHAPTER V. In Actions against Railroad Companies

for Negligence, - 61

CHAPTER VI. In Actions against Street Railway Companies, - 72

CHAPTER VTI. In Actions against Directors of Corporations, - 85

CHAPTER VIH. In Actions against Insurance Companies, - 98

CHAPTER IX. In Actions on Contracts, 111

CHAPTER X. In Murder Trials, - 122

CHAPTER XI. In cases of Robbery, - 136

CHAPTER XII. Illustrations of a Man Conducting His

Own Case, 144

CHAPTER XIIL Peeping into a Juryman's Mind, - 161

CHAPTER XIV. Several Modes of Cross-Examination, 103

CHAPTER XV. Cicero's Defense of Roscius for Murder, 181

CHAPTER XVI. The Story of the Tichborne Claimant, 196

CHAPTER XVII. Mr. Hawkins' Cross -Examination

in the Tichborne Case, - - 244

CHAPTER I.

PRELIMINARY.

In writing these illustrations I have endeavoretf to effect three objects: first, to give the young advocate some warning of the dangers that lurk in his path, without alarming him; secondly, to indicate the means of escape, without involving an inglorious retreat; and, thirdly, to entertain him on his journey, without frivolity.

In surveying a wide expanse of country we obtain glimpses of beauties as well as blemishes; but the beauties are not always to be courted, nor the blemishes to be avoided. In advocacy, I observe rather its mistakes than its perfections. The

11 PRELIMINARY.

former you may fix as landmarks to guide your course; the latter you can scarcely hope to appropriate as possessions. Moreover, the blunders are common property, which everyone has a right to deal with as he pleases. Perfections are the inheritance and birthright of the few. We may toil on towards perfection, and even approach its enchanting confines; but the way is rugged and wild, strewn with the errors of those who have preceded us, and dangerously near the treacherous quagmires, towards which the spectral dazzle of cross-examination, lures us to destruction.

If I presumed to set up an adviser of reckless youth, I should say seek only to avoid blunders; take no thought for perfections, they will take care of themselves ; they are not necessary to your existence ; and even, if they should stimulate your ambition, they should never divert your attenion from its duty. Labor not to be rich in display, but" to be competent in your homely requirements.

Looking around, then, from our little hillock of observation ; and, permitting the eye to rove unchecked over the vast field before us, we perceive that many persons regard advocacy as a rough and tumble Scramble, and not as a delightful and fascinating Art; as a Game, boisterous and rude; in which you are supposed to pick up what you can ; as a Football match ; in which the Cause is kicked about, amidst much unnecessary confusion, from pillar to post, from hedge to ditch; where nobody's

PRELIMINARY. Ill

shins are spared and no one's susceptibilities regarded. Advocacy is not this ; it is more a matter of nice calculation and foresight, where one move may affect many; where the object of the mover is not always visible, till its success is assured; and where your probable move is calculated upon the possibilities of your opponent's.

No one can go through the Courts without seeing that cross-examination often proceeds without method, order or system; as though it were a haphazard kind of business that has to be done mechanically, as the officer administers the oath to the jury. You may see everyday advocates cross-examine as though their object were to develop, not their own case, but their opponent's. They ask questions which the other side cannot, or dare not, ask; and, instead of breaking down their opponent's case, they build it up in the strongest possible manner, as though they had been retained on the other side. Nor is this unskillful mode of proceeding by any means confined to juniors.

I daresay everybody thinks he could "do a breach of promise of marriage;" and wishes he only had the opportunity of "bringing himself out" with one. It looks so remarkably easy, and is so full of excitement and fun ! Fancy reading the love letters ! So, anybody could drive a locomotive, in the sense of pulling the lever and setting the machine in motion. But what if you don't understand the gradients of the line, or the signals? What if you don't know how to regulate pace and put on and

IV PRELIMINARY.

shut off the steam? and how to apply the brake when necessary? Where, I wonder, will your passengers be, should a goods train or an excursion be a trifle late? Why, you will come into collision with the judge and jury before you can sound your whistle. Advocacy is not quite pulling a handle and going ahead. I make these observations, because I intend to take, as my first illustration, an action for Breach of Promise of Marriage; and, without attributing blame to anyone except the client, I intend to show how the defence in a breach of promise may collapse from want of proper treatment, even with the tender nurturing of an experienced nurse. The course of advocacy does not always run smooth. For the sake of my illustration the case must be one, where, albeit the lady was pretty and the promise broken ; no substantial damages, under the circumstances, could have been secured without some untoward event. There might have been a farthing or a withdrawal of a juror. I have chosen a curate of High Church proclivities, as the defendant, because it will make the case more interesting, and lend an additional charm to the fascinating scene. It is not often we get a clergyman to play the part of defendant in such a case ; but, when we do, the excitement becomes intense and the action religiously picturesque.

ILLUSTRATIONS IN ADVOCACY.

Chapter II. In Actions For Breach Of Promise Of Marriage

FROM a somewhat careful observation, I have reluctantly come to the conclusion that in five cases out of six I would back the advocate and not the case. This may sound-rather like sporting phraseology, but it is not the less expressive or true on that account. I would not compare the ordinary advocate to the great jockey who, as a rule, gets the best "mounts," for the ordinary advocate cannot always choose his mounts, and often gets put on a rank outsider. Nevertheless, it is the advocate after all that I would put my money on. An utterly bad case is good for a young counsel, but a great one will hardly 'ever entertain it. He picks the cases he will conduct, and likes something that "has a leg to stand on," something that will "go."

His chief power, when he is compelled to fight a bad case, lies in attack, and if he can break down the good cause of his opponent he is a long way on the road to establishing his own. Suppose then we start with an interesting action for breach of promise of marriage. A good advocate will almost win a case of this kind before he begins, while an indifferent one will sometimes lose it even if the jury give him a verdict, for in all probability the damages will be so small that his client will be left in debt to his solicitor for costs.

There is no more popular action than that for breach of promise of marriage ; none more distasteful to a judge or interesting to a jury, and I trust it will never be abolished, because it at least acts as a check to artless and fickle prowlers after beauty, who make a mock at the feelings of the too trustful and confiding fair one, whose chief prospect in life is a happy marriage. Abused this form of action unquestionably is, and so is every other form ; but it has mainly been brought into contempt by the ridiculous handling which it has undergone by unskillful advocates. In a business-like manner it is seldom managed. Sometimes counsel think it an occasion for humor ; but if it were, how many advocates are there who possess this quality ? What humor is there in the ordinary speeches that too often transform the luckless plaintiff into a laughing stock before ever she comes into the witness box? What of such an observation as this:

"Gentlemen, it has been well said that the course of true love never did run smooth." There is nothing humorous in the saying, yet it provokes a laugh ! And why ? Because everybody knows that the learned gentleman is about to lay bare some of the tenderest feelings of the human heart, and to wound its most delicate susceptibilities he is about to dress up pure sentiment in the raiment of unseemly language, and to present a tawdry picture of a living passion. It is the forseen incongruity that provokes a smile, and not the humor of the counsel. The same laughter is produced when he attempts the sentimental. He unconsciously, and in a mild and shadowy form, imitates Sergeant Buzfuz. He is Buzfuz without his power. He does not reach the hearts of the jury, but unconsciously provokes their sense of the ridiculous: "Gentlemen, what money can compensate for injured feelings, for blighted hopes, for blasted prospects, for the loss of all that happiness that she fondly believed was in store for her? You cannot place her in the position she once occupied with her heart at her own disposal, for that heart is already given a way, although given to one who is unworthy of it ; but you can do this, gentleman, you can give her such compensation as you think her entitled to, and you can punish this man in the only way in which he can be punished, and that is by making him pay." It comes to this: "How much for this heart, gentlemen?"

That is an eloquent speech, truly ; I have heard it scores of times, but it begets no sympathy it brings no damages. If damages are obtained they are obtained by the facts and not by the speech which generally reduces them. Moreover, it is an incorrect mode of putting the case, as the judge will by and by point out. Punishment is not the object nor intention of the action for breach of promise of marriage. Punishment is inflicted for a crime or misdemeanor. A breach of promise is neither the one nor the other. And although the advocate probably intended his remark to be figurative, the judge will so strip it of its figurativeness that it will appear as a naked untruth at last, or worse, as a legal deformity. "The measure of damages," the j will say, "is what the plaintiff has lost by the performance of the contract, and anything you may award as compensation for injured feelings. No punishment to the defendant." Cases are too frequently opened as the boy opened the bellows to> see where the wind came from.

With these prefatory observations I will introduce the reader to the court where this exciting action is about to take place.

I observe that there has been a desire to settle, so as to prevent the scandal which must arise from the proceedings being gone into ; and no wonder, for the whole country will read the report of this ecclesias tical romance. The action is brought by a very interesting and strong-minded lady against an interesting High Church curate. Some talk there has been of a settlement to this effect, that there shall be no damages and each party pay his own costs. But a breach of promise is not repaired like that. The case looks as neat and capable of winning as beauty ever is ; so all overtures of this kind are scornfully rejected. The parties might have arranged matters before a penny had been spent in litigation, if the fair promisee had been so minded. But so minded she was not, and is not disposed to haul down the flag when victory is waiting her. High Church, therefore, looks contemptuously down from its frowning height and waits result.

It is a great satisfaction to the eager public who have come so far to see the conflict. People came from all directions like the throngs who went to witness the tournament at Ashby-de-la-Zouch in the olden days. Every inch of court was filled up. Rosy-cheeked country lasses beamed with excitement and modesty. Fair country ladies pressed up to his Lordship's chair. His Lordship peeped out from the centre of a living radiant bouquet. It was a pity that the young curate sat in court, for he was the centre of at least four hundred yearning eyes. He would hardly have been more attractive in his vestments. The dear young things quite gloated on him. What a sweet little suppressed titter and rustle of expectation there is in the galleries ! You can almost hear the beating of their tender hearts, as the well-dressed crowd is speculating upon the interesting particulars that will be revealed of curate life and curate love, and wondering whether anything in the shape of scandal will be disclosed. We may even find out, think the male portion of the audience, what is that mystic religious influence which makes the curate so attractive to female minds and so penetrative to female hearts.

I can promise the eager crowd that they will find out nothing of this from the opening of the case, or from the examination-in-chief ; and the most that will ever be learned from those sources of information, unless I greatly mistake the advocates, is that if you want to catch a curate you must warm his feet, that is, begin Avith the slippers. I do not predict that this is how the counsel will open the case. He was far too shrewd an advocate to make a clumsy jest of a serious contract. Contract or no contract was the first point. The pleadings said the promise was conditional, and the condition had not been fulfilled. The condition set out was that the curate would not marry until he was in a position to do so. The position aimed at was a snug, comfortable living. So there was business to be done in this opening ; and the business was to show fulfillment of the condition, or waiver of it by the defendant, or a subsequent unconditional contract. To the latter part mainly the counsel's efforts were directed, although, by means of an interesting correspondence, they endeavored to establish not only this point but the waiver. So you see there was something of art here. The one point held in reserve as the decisive trump card, not to' be thrown away or played too soon; and another card or two, likewise held well in hand, capable of taking tricks. A good hand it certainly is, and might be thrown away very easily. But not by Mr. Longfellow, the plaintiff's counsel. Bless you, he knew the value of his opponent's cards by one or two inadvertent observations.

"Not necessary," says High Church Counsel, "to read all the letters."

That immediately raises the suspicion that he is afraid of them. They are certainly not in his favor, and therefore it is best to see every page of this delightful correspondence. Every letter must be read after this ; there may be a waiver in some and a fresh promise in others. Very few sensible men are afraid of ghosts nowadays, so there is something more than a suspicion that in the mind of the defendant there is substance in the letters objected to. First point, reader, which "having found make a note of."

It was not a sentimental opening. Sentiment is generally out of place in the construction of a contract, so the learned counsel postpones sentiment, and deals at present with hard concrete facts. It will be time enough to touch up the feelings of the jury when he replies. You may sometimes advantageously excite the compassion of a jury in your opening; but you will not be wise to do so if there are to be many witnesses and a number of letters

ILLUSTRATIONS IN ADVOCACY.

submitted to their judgment. Let us have the business first, and if that can be satisfactorily settled, the time may come when sentiment maybe invoked as a powerful auxiliary to increase the damages.

Let the facts speak. If they are ambiguous you have argument; if they are clear you want none. When proved you have your measure of damages to consider, and then will be the time to estimate the conduct of the defendant, the position of the plaintiff, and the injury to her feelings, all which topics must be handled without maudlin sentimentality or exaggeration. Manhood must prevail.

So Mr. Longfellow, Q. C,, opened the case in a very business-like, unromantic, and common-place manner, much the same as he would open a case for damages for non-delivery of goods. What mattered that the goods were a curate? There was the promise and there was the non-delivery. It was enough, as will be seen by the progress of the case, and yet it was but a little, as was shown by the evidence. If you promise you must perform, or pay. The defendant promised a curate, and did not deliver him. That's the simple case.

I am not going to write the tittle- tattle of the trial for the amusement of the lay reader. I leave that to the newspapers, and content myself with giving the real points of the case for the information of the advocate, with such extras, or, as the Americans would say, fixings, as may be necessary to enable the general reader to appreciate the circumstances.

There was an absence of all that flimsy jocularity in the opening, which so often damages a plaintiff's case, and there was no attempt at ridiculous pathos. The injured feelings were left in the background like an ambuscade, ready at the right moment to spring out and deliver a deadly fire just when it was the least expected; no concealment of facts by maudlin sentimentality, but the sentimentality left to be discovered by the facts. If your facts can do this you need not, if they cannot you cannot.

The plaintiff was as ptepossessing in appearance as any plaintiff need be ; but I should say she was a lady of strong will and considerable mental capacity far to heavily freighted, one would think, for the wife of a curate more adapted, perhaps, for the consort of a bishop. Her capacity for letter-writing was known by its fruits, of which there was an abundant harvest. How the love-making began need not be written. Everybody knows that with the Church it must begin humbly with the slippers. It is a malady, as young ladies are well aware by unmistakcable diagnostics, which quickly develops, and when it reaches the heart the patient is gone. There was plenty of talk, you may be sure, in the progress of this love-making, about cassocks, stoles, albs, altar-frontals, chasubles, and the rest of the gaudy ecclesiastical millinery so dear to the female heart; and there was much interesting evidence of endearments that sometimes spring from the sweet harmony of souls iii a state of grace, through all of whk-h sweet Love threaded her silent course, all unobserved and unobtrusive, gently spinning her mystic toils in quiet strength around the heart of the beautiful curate.

The story came out well in the examination-inchief there was not a gap discoverable anywhere. It was like a charming piece of ecclesiastical embroidery where the pattern is graceful and complete and you see the golden thread everywhere in its simple and tasteful beauty. Still, there was an impression throughout the Court that the superior mind was in the witness-box, and the weaker under the counsel for the defence, and that the mind and passions were in harmony. The plaintiff unquestionably was the possesser of strong feelings ; in fact, she was what you might call "clinging" in her loveliness. The attitude she assumed in her devotion reminded one of the position of the confiding female in the picture clinging with rapturous agony to the rock, which is in the shape of a rough-hewn cross, while the billows are breaking around and above her. Now, I would observe that a strong-minded lady in an action for breach of promise is not always a good witness. She is generally too emphatic and too certain too absolutely there. Juries glance at her and think what would be their domestic freedom under such a government. No witness makes less impression than a hardened scientific female; the next to her is the strong, confiding, clinging, sentimental, religious, creature, who throws herself into every adventure as if she were taking a header from a boat. Her case is too absorbingly good, and she is always too much injured.

Not a great deal of damage was done by the story of the love-making, the taking up by the defendant of his abode in th$ house of mamma "for the sake of companionship and convenience," the having some one to care for and to comfort him, the slipper-working and the slipper-warming; the gettingup of evening classes, the discussion of abstruse doctrines of divinity, the reading together in the Greek Testament, the discourses upon the Athanasian creed and the colors of the curate's vestments. All these and a hundred other pious incidents of ecclesiastical life in a country town, were but common-places which might have been compatible with platonic friendship. What an artless, innocent question was now put in faltering accents, and with suppressed emotion.

"And after all this treatment are you excuse my asking you but are you fond of him still?"

The plaintiff looks at the downcast, helpless curate with longing, yearning eyes for a minute and-a-half , and then, clasping her pretty, delicate hands on the ledge of the witness-box, exclaims:

"Oh, yes very, very fond of him!" and then she puts her lace bordered handkerchief to her eyes, and plainly visible in her whole form is the deep emotion which stirs within her, as though some volcanic eruption were imminent. This touch of genuine sentiment does really make the jury look up for a moment, and every bucolic eye beams with sympathy. It was splendidly done, and you could not for the life of you tell whether it was real or the quintescence of acting. At this supreme moment every female eye, moist with sympathy, was turned upon the defendant. Every fenjinine heart palpitated with an indefinable yearning ; and every gentle bosom heaved with tender emotion. At this ecstatic moment what an interesting creature the high Church curate was ! Never in any Court was produced such a delicate and delicious sensation ! What a real living drama was being enacted ! Then once more those lustrous, dangerous eyes of the plaintiff beamed at the faithless clerical swain over the damp handkerchief, and from their innermost depths welled out the passion of those bygone days ; and, oh ! what a depth it was ! Very, very deep !

As the learned counsel for the defendant artistically arranges his papers, and with ceremonious dignity rises to cross-examine this heart-broken plaintiff, what breathless emotion there is in the galleries ! Every lady readjusts herself, for the long anticipated treat is coming. They all expect her to be cut up, and her innermost heart laid bare. The scene will be nothing without this scientific anatomical dissection. AH depends upon the cross-examination. The Church can hardly go into the witness-box and deny the promise or the breach. She may sit in Court and suggest questions, expose secrets, and otherwise assist the plaintiff; but there is no certainty about her submitting herself to the ordeal of cross-examination. The counsel needs to be subtle, acute and skillful, for he has to deal with a clever, self-possessed, albeit heart-broken, woman, who can see right through him, as though he were made of the most translucent glass.

"Now," he asks, with placid and gentle tones, "did you frequently converse with him about marriage ?' '

"Oh, yes," answers the plaintiff; "frequently frequently. It was his constant theme."

"You liked it I suppose?

"Oh, yes. It was agreeable." (A sigh.)

"You were desirous of marrying him?"

"Certainly. Why should I not be? I loved him."

No bashful reserve you see; no insipid hesitation. All was business-like and straightforward ; pure as the stream and open as it course. So far so good. And the jury think she was pretty well up to her work.

"Did he tell you that his income would not permit him to marry ?' '

"Oh, yes; many times." (How she helps the learned counsel in his cross-examination. !)

"And said he would not marry until he had a living of his own?"

"Hedid. Oh, yes; many, many times."

"What did you say to that?"

"That I would try and get him one, of course?"

Here there was considerable laughter ; the learned judge himself moderately and judicially sharing the merriment. The javelin men and ushers all laughed, and all shouted "Silence !" and then gave way to their feelings again, all placing their hands in front of their mouths.

"Well," continues the counsel, "you never got him one, did you?"

"Not actually got it, because he refused to accept it."

"But did you get him one?"

This was a question too many, the answer was "Yes," and it necessarily led to further and better particulars. Having been put in cross-examination, it must be cross-examined upon, and that is one danger of a question too many. You have to try and get rid of it, to qualify or alter it, which you seldom can. It is like the letting out of water the stream increases, and of its own force widens the breach.

"Where did you get him a living?"

"At St. Swithin's."

"Do you mean to say St. Swithin's was ever offered?"

"Oh, yes; and I have the letter to prove it !"

"We'll have that letter in," says Mr. Longfellow. "Oh, yes, we'll have it in. I don't wish to conceal anything," says the High Church counsel, with charming innocence.

And then comes the letter, carefully preserved by the plaintiff, who valued every scrap of paper that bore the defendant's handwriting. It was a simple letter enough ; one would have thought not worth preserving ; but it turned out to be valuable in this way, that if the promise of marriage had ever been conditional, the letter proved that the condition had been faithfully performed.

The case, therefore, was well on its legs, such as they were, but a tottering sort of creature it nevertheless appeared, quite incapable of bearing any appreciable weight of damages. There had been too abundant spiritual excitement; too much slipper warming. The mystical union of souls had been too frequently insisted upon ; and it was somewhat difficult to ascertain whether the attachment had been the highly sublimated process of spiritual attraction, or the more worldly and more generally understood proceeding called "courtship." It will be tested, perhaps, by-and-by. and its true nature revealed.

As a rule, a defendant in a breach of promise should not be in Court, unless his personal appearance is a good defence to the action. In the present case, the defendant unfortunately was present, the silent and downcast spectator, as well as the object of intense admiration to all the female portion of the audience. He was at once a hero, a champion, a conqueror and a martyr. Up to this moment I envied him. It was curious to notice how, when any interesting question was asked, all the beaming female eyes were fixed on the pretty plaintiff ; and how, when the answer was given ( equally interesting) all those eyes immediately turned and riveted themselves on the reverend defendant. It must have been like sipping honey to the gushing fair ones in the gallery ; and I believe the case was so exciting that the young ladies would alternatively have liked to be now the plaintiff and now the defendant. It was so inexpressibly sensational. At present, however, there seems but a remote chance of any damages that could be termed substantial. But now a phenomenal question shoots across the legal firmament, arising, no doubt, from special instructions, which gives importance to the case ; the whole atmosphere, in fact, is ablaze.