( Originally Published 1912 )
The first advice given to the lawyer is to know the law, the facts, the witnesses, and himself. Temptation to speak at too great length is common in the legal profession. The advocate is led, perhaps by over-zealousness for his client's interests, to present his case in all its details. He exhausts all the precedents of the law bearing upon his particular case, and at last reluctantly yields the matter to judge and jury.
It has been well said that a lawyer who has all the evidence on his side does not speak long, and that the best argument in a case is the statement of the case itself. Senator Beveridge says :
"A case properly stated is a case nearly won. Beware of digression. It calls attention from your main idea. It is a fault, too, which is well-nigh universal. I advise every lawyer, as a practise in accurate thought, to demonstrate a theorem of geometry every morning."
Lord Abinger, the great English advocate, made it his habit to state, in the simplest form possible, the proposition and the leading facts to support it. He says he often opened a case in five minutes that would have taken most men nearly an hour.
The tendency to occupy too much time of the court was recently characterized by a New York judge in these words : "It is becoming altogether too common in this city to examine witnesses at undue length, and to introduce long letters and papers. This is more confusing to the jury than it is advantageous to the cause at issue. In the interest of other litigants I regard it as my duty to expedite this case in so far as may be consistent with justice."
The knowledge of a well-equipped lawyer covers a wide range of subjects.
He knows something about everything, and if he be a specialist, everything about something. He knows life, human nature, men, business, books, for no other profession demands as does his such diversity of mind and talent.
But when a client takes a case to him, the client expects him not only to have knowledge of the law, but to be able properly to plead his' case at court-and more important still, to win. No amount of legal erudition, no plausible excuse, not even eloquence itself, will satisfy a client if he lose. The one thing paramount in his mind is that the lawyer must win his case.
The lawyer is in a very different position from that of the preacher. There is ever an adversary waiting to catch him off his guard. Every word and sentence he utters is subject to scrutiny and analysis. The whole atmosphere in which he speaks is one of debate and contention. It is a matching of ideas with ideas, facts with facts, and skill with skill. The loquacious lawyer, therefore, is an enemy to himself. He gives his opponent increased opportunities to refute, ridicule, or embarrass him. His verbosity leads him to say things he did not intend to say, possibly many of them damaging or fatal to his case. In short, he is a man described by the familiar phrase : He talks too much.
How often a lawyer begins well, makes a favorable impression, seems to be winning his case, but by talking too long wearies the court and every one within hearing of his voice. All the vitality and snap are taken out of his case, a prejudice is aroused against him, and ten chances to one he argues—to lose!
The successful advocate is a man of poise. His calmness and self-confidence inspire similar qualities in his hearers. He does not bluster or browbeat a witness ; he is slow to resent smartness and even insult; he is not tempted "to give back in one's own coin" ; he is sparing in his use of sarcasm and denunciation; he never knowingly takes an unfair ad-vantage. Personalities are not arguments. The real lawyer does not threaten, but persuades ; does not "play to the gallery," but speaks directly to judge and jury; does not spend his time upon trifles and quibbles, but gives his best abilities to the law and facts.
When a lawyer has prepared his case, let him closely examine it to see how much is substance and how much merely words. Has he placed his feet firmly upon facts? If so, it will require a strong adversary seriously to disturb him. If not, what chance has he against an opponent who, in addition to having the facts, may also be a trained speaker? A few points clearly and concisely stated, and prest home with proper emphasis and earnestness, are likely to be more effective in winning a favorable verdict than an over-detailed and lengthy exposition.
When a successful clergyman was asked to indicate which sermon he considered his best, he said he was unable to say, because he endeavored to make every sermon his best. Herein is a valuable hint for the lawyer—especially the young lawyer. To every case he will give the best that is in him. At the time it will absorb his mind and attention. Nothing will be left undone that should be done.
Everything possible to the winning of his case will be anticipated. He will be equal to emergencies if they arise ; but, in the preparation and presentation of his case, premeditation, not accident, will govern him.
Has anger ever been known to win a cause? It is so unmistakably a sign of weakness that it repels rather than convinces an intelligent listener. Does impatience win a respectful hearing from others? We believe not, judging from our own observation. It savors too much of prejudice and small-mindedness. It exacts from others what it is unwilling to give. Does haste argue well for thoroughness and favorable results? Warren in his "Attorneys and Solicitors," says
"No one in a hurry can possibly have his wits about him; and remember that in law there is ever an opponent watching to find you off your guard. You may occasionally be in haste, but you need never be in a hurry; take care-resolvenever to be so. Remember always that others' interests are occupying your at tention, and suffer by your inadvertence —by that negligence which generally occasions hurry. A man of first-rate business talents—one who always looks so calm and tranquil that it makes one's self feel cool on a hot summer's day to look at him—once told me that he had never been in a hurry but once, and that was for an entire fortnight at the commencement of his career. It nearly killed him; he spoiled everything he touched; he was always breathless and harassed and miserable. But it did him good for life; he resolved never again to be in a hurry-and never was, no, not once, that he could remember, during twenty-five years' practise ! Observe, I speak of being hurried and flustered-not being in haste, for that is often inevitable; but then is always seen the superiority of different men. You may indeed almost. define hurry as the condition. to which an inferior man is reduced by haste. I one day observed, in a committee of the House of Commons sitting on a railway bill, the chief secretary of the company, during several hours, while great interests were in jeopardy, preserve a truly admirable coolness, tran quillity, and temper, conferring on him immense advantages. His suggestions to counsel were masterly, and exquisitely well timed; and by the close of the day he had triumphed. `How is it that one never sees you in a hurry?' said I, as we were pacing the Iong corridor, on our way from the committee-room. `Because it's so expensive,' he replied, with a significant smile. I shall never forget that conversation; and don't you."
The successful lawyer must be mentally alert. He is continually called upon to form quick judgments, and the more he trains himself in advance to "think on his feet," the better will he acquit himself in court. Webster and Lincoln early in life were members of debating clubs, and so had frequent practise in the art of extemporaneous address. Every lawyer should join a speaking club of some kind, or if there is not one in his neighborhood, he should organize one.
Assertions are not proofs. A lawyer is judged, not only by what he says, but by what he does. Let him proceed to his proofs promptly and unequivocally. If he can not win by a fair presentation of the facts, he has no right to win. A reputation for sterling integrity is one of the strongest arguments a lawyer can possess. Such a man has much in his favor even before he utters a single word. It is said of Lincoln that the simple fact of his being on a particular side of a case gave to it a distinct advantage.
A. fund of good illustrations, pointed anecdotes, and facts drawn from actual experience, are valuable auxiliaries to the legal advocate. He must, however, be sure to use them opportunely. They arouse special attention and this causes the listener closely to observe their particular application to the subject under discussion. If the analogy be not good, they quickly notice it, and the illustration falls flat.
We have said that the lawyer should speak concisely, but it is equally important that he use plain and simple language. An argument may be wholly obscure to the average jury, if overloaded with technical, unfamiliar, and high-sounding words. The style known as "legal phraseology," to be found in formal documents, need not be imported to any large extent into the lawyer's speech. He should seek to reach and impress the mind of his hearer in language that is common to that hearer, be he carpenter, mechanic, teacher, or physician.
Does emotion plan any part in modern legal pleadings It does. With very rare exceptions, where Only the baldest facts are set forth, a man speaks with feeling. He can not help doing so if he be in earnest. Thought aid emotion are almost inseparable. The degree of the speaker's belief in what he utters colors the tones of his voice surely tho often unconsciously. Without really attempting to do so, he reaches his listeners through the heart as well as through the mind.
Should he affect a dramatic style of speaking in court? Should he purposely play upon the emotions of a jury? Very seldom. Should he suggest by word or action the thought either of "elocution" or oratory"? It would be better if he did not. For the most part he should aim to be a plain, straightforward, earnest speaker, a man speaking to other men, with voice and manner appropriate to the subject and occasion. He may rise to unusual heights in the earnestness of his appeal, he may be completely carried away by his overmastering sincerity, but if he be well trained he will at no time violate the principles of natural speech.
There are cases where sympathy undoubtedly plays an important part in the advocate's appeal for clemency or acquittal. But emotion to be effective must be real. If it is overwrought, or hollow, or excessively dramatic—if, in other words, it does not ring true, it may do more harm than good. The best appeal is that which springs unexpectedly and spontaneously out of the speaker's heart. No premeditation, no pretense, no empty "working on the feelings," but a strong, deep, sincere desire for justice. The advocate should state nothing he can not prove. A writer has well said :
"Nothing is gained, but, on the contrary, a great deal is lost, by stating to the jury anything you can not prove. The jury are not convinced by your speech, but by the evidence. You, can not hope to achieve more with the most impressible juryman than to bring him to this : `Well, if you prove what you say, you will have my verdict.' In accordance with this state of feeling on the part of the jury, your course will be only to describe your testimony in the course in which it will least disturb the order of the story, as it already exists in their minds. You will take the witnesses, therefore, in order of time, and shortly repeating that portioin of the narrative which is spoken to by the witness you are about to introduce, state who and what he is, and the circumstances, if any, that give peculiar value to his testimony, or that enabled him to depose to the particular facts, and then, very shortly repeat the facts he will prove. If he speaks also to a subsequent part of the transaction, when you have said all you have to say of the former part, and not before, refer to that latter part with the like introduction and the like brevity."
Several volumes might be written on the fine art of cross-examination. Here all the skill, tact, and patience of the lawyer are often required. Witnesses vary widely in temperament and mental capacity. They are reluctant or defiant. But the lawyer takes them in hand, and kindly but persistently leads them along toward the facts he seeks to establish. This requires rare discretion, good temper; definiteness of aim, and adaptability.
We have emphasized the importance of the most thorough preparation in the conduct of a legal case. The advocate must be ready, however, for many emergenies, and for new. and difficult problems that will be disclosed only at the trial itself. A trial has well been called "a legal battle," upon which both sides enter believing they are in the right.
Frequently a man doesn't know whether he is in the right or not. He thinks he is, but his opponent thinks otherwise. Only a contest can determine who is right. The counsel on either side receives many a surprize during a protracted trial—a new piece of evidence, an uncertain witness, a concealed letter or agreement, an unexpected discovery—whatever it may be, the skilful lawyer must know instantly how best to meet it.
How much may turn upon even a single incident is illustrated in the case of Gray-son, charged with Ole murder of Lock-wood. The principal witness, Sovine, testified that he saw Grayson run away immediately after firing the fatal shot. Interest in the trial was intense, and feeling ran high against the prisoner. When the prosecution rested, the lawyer for the defense, who had been very quiet throughout the trial, stood up and said :
"And you were with Lockwood just be-fore and saw the shooting?"
"And And stood very near them?" "No; about twenty feet away." "May it not have been ten feet?" "No; it was twenty feet."
"In the open field?"
''No; in the timber."
"Beech timber. Leaves on it are rather thick in August?"
"And you think this pistol the one used?"
"It looks like it."
"You could see defendant shoot—see how the barrel hung, and all about it?" "Yes."
"How near was this to the meeting-place? Three-quarters of a mile away?" 66Yes."
"Did you not see a candle there, with Lockwood or Grayson?"
"No! what would we want a candle for?"
"How, then, did you see the shooting?"
"By moonlight !"
"You saw this shooting at ten at night —in beech timber, three-quarters of a mile from the lights—saw the pistol barrel—saw the man fire—saw it twenty feet away—saw it all by moonlight? Saw it nearly a mile from the camp lights?'
"Yes; I told you so before."
Then the lawyer slowly took an almanac from his pocket, offered it in evidence, and read from it that on the night in question the moon was not visible but arose at one o'clock the next morning.
The witness, Sovine, who was subsequently arrested as the real murderer, broke down and confest.
The lawyer was Abraham Lincoln.
It is sometimes advisable to show your recognition of the other side's arguments, and even to concede them. Lord Abinger, in his autobiography, says :
"Very often, when the impression of the jury and sometimes of the judge has been against me on the conclusion of the dePendant's case, I have had the good for-tune to bring them entirely to adopt my conclusions. Whenever I observed this impression, but thought myself entitled to the verdict, I made it the rule to treat the impression as very natural and reasonable, to acknowledge that there were circumstances which presented great difficulties and doubts to invite a candid and temperate investigation of all the important topics that belonged to the case, and to express rather a hope than a confident opinion that upon a deliberate and calm investigation I should be able to satisfy the court and jury that the plaintiff was entitled to the verdict. I then avoided all appearance of confidence, and endeavored to place the reasonings on my part in the clearest and strongest view, and to weaken that of my adversary; to show that the facts for the plaintiff could lead naturally but to one conclusion, while those of the defendant. might be accounted for on other hypotheses; and when I thought I had gained my point I left it to the candor and good sense of the jury to draw their own conclusion. This course seems to me not to be the result of my consummate art, but the plain and natural course which common sense would dictate. At the same time it must be observed that he who would adopt it can only expect success when it is known that he can discriminate between a sound and a hopeless case, and that his judgment is sufficiently strong to overcome the bias of the advocate and the importunity of the client, and to make him at once surrender a case that can not and ought not to be sustained."
The lawyer will still find scope for eloquence in the law court—not rhetorical claptrap and offensive bombast—but genuine man-to-man talking. He can not do better than keep in mind Dr. Johnson's definition of oratory as "the power of beating down your adversaries' arguments, and putting better in their places."
There must not be more force than is required, lest he appear like one who "wields a huge, two-handed sword to extricate a fly from a spider's web."
Concise rules for the lawyer:
1. Be dignified.