The main characteristic of the jury is that it does not want to be in court. The name comes from the French wordJuré, sworn, or the man who has taken an oath. There is probably no reason to suppose that the word is derived from the state of mind in which a juryman finds himself, nor does it mean the words he has expressed with reference to his duty: more properly it is the men who are sworn to do justice. The implication of the word serve is that there is some punishment or penalty attached to jury duty. It is not regarded as penal servitude by the average man, but it seems near to it. While he is serving, his business goes to pieces, his wife misunderstands why he does not come hometo dinner and his whole life is disarranged. When a man has served on a jury he gets a discharge paper.
Jury duty is one of the obligations of citizenship and its highest duty; at the same time it is one of its privileges. Foreigners and idiots cannot serve. Doctors, soldiers, journalists, clergymen, and others, besides those who are deaf, blind, or otherwise disabled, are exempted. The experience of serving on a jury may be annoying but it is broadening and gives an opportunity of seeing human nature in a way that few appreciate. To serve on a jury is to become a part of the judicial system of the State and for the time being to belong to the governing class.
"All day long," says the court officer, "they do nothing but grumble and grumble at being kept away from their business but when they get chosen on a case, they realize it does not do any good so they settle down to do what is right." The country man may not have much to do and may look onjury duty rather as a diversion or vacation from farm work but the average town man feels the $2 a day he receives is only lunch money compared to the amount he is losing in his business, and so he hates it.
The first warning of trouble that a juryman gets is when he comes home and finds that a policeman has been looking for him. It is to be hoped that he has a guiltless conscience. He inquires further and learns it was only a court officer summoning him to court for the trial term next month. His first concern is to see what can be done in a political way. If he belongs to the local club of the district—but here let the curtain be drawn. Besides he may accomplish very little, so many of the judges do not seem to remember their political obligations. Then he tries to reach the judge through a friend and when that fails he makes his way resignedly to court on the appointed day.
When he comes there for the first time he smiles at the court attendant and tries to make friends, but the court officer who hasbeen there many times before is not at all susceptible. Perhaps he hurries around to the judge's chambers and manages to see the judge's secretary, who is sympathetic over the fact that the month is December and the busy season of the year in the florist business and that there is only one assistant in the shop, but the judge is busy and will only see him from the bench. Finally he goes into court and waits for his name to be called.
After the roll call, he goes timidly up to the rail and stands there waiting until his Honor will take notice of him. His Honor is busy blowing his nose or signing papers. Finally the court officer points him out. The judge scowls and asks him what he wants. Tremblingly he explains his difficulty: that his business needs him or that his wife is sick and that he will serve any other month if he can be let off now. The judge reads him a lecture on the duty of citizenship and the responsibility of jury duty and says he is sorry that he can not excuse him.
Afterwards when the judge finds that there are enough jurymen in court for the needs of the calendar, he may privately send word to the juryman by a court attendant that he is excused for the term or for a few days until the Christmas rush is over or his wife is better. Judges are often humane, but if they were to excuse the juror openly they would find all the others in court clamoring for the same exemption. If the juryman merely wants to dodge the duty he probably does not get excused. The judge seems surprisingly intelligent and discriminating and able to pick the sheep from the goats. The man who merely wants to escape serving usually has to, and the man on whom it is a hardship is sometimes let off. Uniformly the jurymen feel that it is a necessary evil, but not so bad when they are once in court.
Until a case is called for trial they sit about the court-room or walk in the corridors. In the meanwhile, the judge is arranging the calendar, and they have been watching themaneuvers of the lawyers to have their cases put off, or they may have seen the amusing little by-plays when one lawyer crosses the aisle of the court-room, button-holes his opponent, and whispers something to him. The other lawyer motions to his client and the party moves to the hall where there is a secret conference about a proposition of settlement. Something is agreed upon or they may not come to terms and decide to go on with the trial. If there is to be a settlement the two lawyers walk up to the rail and say:
"Will your Honor excuse us if we interrupt and mark the case of Allen against Brewster settled." The judge smiles with pleasure; he does not mind at all being interrupted for that purpose. He is pleased to have one more case off the score.
When the time comes for the selection of a jury they wait for their names to be called with the thought that the axe is about to fall. As they are examined they answer the questions of their occupations and opinionstruthfully, but if for any reason they are excused, they leave the box with a smile at those impaneled and a sigh of relief as at danger escaped.
Like many honors, the position of foreman of a jury is an empty honor. He has the first seat and he heads the procession when the jury walk in and out of court; he also announces the verdict, but he has no actual power either in the jury-room or in the court. If there is a vote to be taken, he has no deciding voice, but in the deliberations he quickly falls to the level which his attainments justify.
During the trial a feeling of resentment at court procedure grows. It is not the judge any longer who is keeping and delaying them. The witnesses appear like fools it is true, but the lawyers make them act more foolishly than need be. Why does the judge make such absurd rulings? The law must be an unreasonable thing and the judge evidently knows a great deal about it. Why can't the witnesses tell what they know? The mosttiresome parts are when the lawyers begin arguing about the testimony. One side wants the witness to tell something and the other side does not. The judge keeps still and lets the lawyers go on talking as though it were something important, perhaps he can not help it. The lawyers or the judge can not have much to do. The judge it is true is paid to listen, but the lawyers must be pretty hard up when they will go on talking in that way. No juryman would stay here wasting his time during business hours, and afterwards there are the newspapers, supper, and taking the family to the movies, all of which is far more sensible.
"Say, it's like a vaudeville show to see those two go on," thinks the juryman. "You couldn't beat it if you put it in an act. Georgie Cohan or Joe Weber could make their fortunes if they only hired the lawyers as actors or came into court for their material."
Occasionally the judge calls the lawyers up to his desk and together they talk oversomething which the jury can not hear. The jury look as though they did not care. If they want to talk some more—well, let them. Perhaps they are planning some game, and the jury will wait until their turn comes. In the jury-room they can show them what's what; that is where they know their chance is coming. Even if the judge is only trying to find out something about the case, that is a sensible thing to do. Why don't the lawyers come over and talk to the jury like that? In a few minutes they could ask them some questions that would settle the whole matter.
The strange part is when a witness has said something and told how he or she feels about the whole case, which is exactly what the jury want to know, one of the lawyers jumps up and says he moves to strike that part all out and the judge strikes out. The lawyer having scored a hit, then says:
"I ask your Honor to instruct the jury to disregard the testimony just given."
"Gentlemen," says the judge, "theevidence just given has been ruled out by the court and is not relevant to the issue, and I must instruct you to disregard these words of the witness and in arriving at your verdict not to consider them."
Of all the absurdities that happen in court, the jurymen think that is the worst. Does the judge or the lawyer believe for a moment that because they say so the jury are going to forget what the witness said, especially when it was the very thing they wanted to find out? They watch the stenographer and they notice he does not even take the trouble to cross it out of the notebook.
Occasionally a juryman becomes particularly interested and wants to question something. Usually he is too self-conscious to run the risk of being snubbed, but sometimes he is bolder and ventures a question.
"Why," asks the juryman, "didn't the defendant give back the goods if they were not what she wanted?" Both lawyers are on their feet. There is a mute appeal to the court; both sides are afraid to object to thequestion for they think the juryman may have a prejudice if he were stopped. The judge usually comes to the rescue and tells the juryman that he is sorry, but that his question is manifestly improper in form. The evidence should be whether the defendant did a certain thing or did not do it. The reason why he did it is not in point. After two or three attempts of this kind the juryman subsides and sits patiently through the trial without any suggestion. He thinks that there is a hopelessly complicated game being played before him and he does not attempt to interfere.
There may be some truth in the theory of the attorney who says:
"Always look out for the juryman who asks your witness questions. He is against you. If he absolutely believed the witness he would let it pass without questioning." This reasoning may be used as an argument either way, for if the juryman believes the witness he may feel that he should like to have him tell more. Or if he does not accepthim as truthful, he thinks it will not be worth while to ask him other questions. An inference may be drawn as to the juror's attitude for and against.
An inexplicable thing to the jury is when the judge takes the case away from them and directs a verdict or dismissal of the complaint. That the jury should be compelled to listen to all that mass of testimony and then at the end not have a chance to decide is unreasonable. If the plaintiff did not have a case, why did the judge let them go on? He should have found it out earlier instead of wasting all that time.
After the whole case is in, it may happen that both sides move for a direction of the verdict and then the jury have nothing to do. The judge says:
"Gentlemen of the Jury, I direct you to find a verdict for so-and-so." Before they have a chance to say whether they will or will not, the clerk announces a verdict for so-and-so. This is very annoying and discouraging, especially when the jury were going tofind a verdict directly contrary to the way the judge decided. Technically they have a right to refuse to find a verdict as the judge directs, but if they did, only a mis-trial would result.
It is an illustration of the difference between the function of a judge and a jury. The jury pass on the facts, the judge on the law. When the judge dismisses the case, he is saying that the facts may be so and what happened may be truly stated, but even then it does not make any difference. The law is that those facts do not make out a case. Only when the facts make out a case do the jury have any function. Then it is for them to find out whether the facts are as the plaintiff claims them to be or as the defendant. The jury are usually puzzled and do not understand the distinction. In certain cases the judge determines both the facts and the law and decides the whole matter. In those cases, and in what is known as equity, there are no jury, but a judge may always ask for a jury if he wishes one to determine the facts.
A jury is supposed to be advantageous to the defendant in a criminal action and to the plaintiff in a civil action.
"One judge is better than twelve," says the advocate of the non-jury system. "Law is a technical thing and you can not put a technical case plainly enough so that twelve men could thoroughly understand it."
A discussion of the jury system is not in place. The jurymen have already been summoned and are in court and until the structure of the law is changed they will remain. They are ready to try any case that may come before them. The judge feels a sense of relief at not having to pass upon the facts. The law being laid down, all that remains for him to do is to see that the facts are fairly and plainly presented to the jury, that both sides conduct the case in a reasonable manner and that the trial be as open-minded as possible. The anxious attitude of mind toward the jury is that of the parties who are to be judged, the lawyers and their clients.
The jury do not become very excited over the wrongs of one side or the other. They certainly do not enjoy the trial or look upon it as an example of a good fight although under the present system of procedure that is what it is supposed to be.
Of equal importance in the cast are the lawyers. They play the parts that represent action. The judge and jury are the heavy characters. The clients who make their entrances and exits as they take or leave the witness chair are of minor importance. The lawyers occupy the center of the stage the greater part of the time. Their clients sit watching, the judge and jury keep silent and listen to them.
In order to make a trial or a contest there must be two sides. There may be three or more lawyers, but usually they divide themselves into two groups and take sides. The attacking party,—the plaintiff, complainant, or prosecutor,—naturally the moreaggressive, and the man who is defending himself.
The latter's lawyer is the one who is wary and alert. Sometimes the attacking lawyer having gained a position sits down and defends it. During the trial there is a constant change of attack, the taking of a redoubt, charges and countercharges, trenches captured and forsaken again. The intellectual and legal battle is as bitter as any physical one. To the understanding observer and the participant it is momentous and intense.
While the contest is waging there is no intermission. The fight is always hot, keen, bitter. Quietly as the lawyer may handle himself, underneath his calm exterior he is ready to fight, bite, scratch, shoot, kill, slash, but always he must do so under the rules of the game, never hitting below the belt. What the battle is about is the issue, the result is called the verdict, or the decision, and the formal statement of the court as to the result the judgment.
The contest is so real it soon ceases to be aplay. It is too much in earnest and whatever humorous quality it may possess never loses the underlying intensity of human conflict. One noted trial lawyer says that he always feels the loss of a case in the pit of his stomach, another that he can never begin a trial without mopping his forehead for fear that beads of perspiration might be apparent. However ordinary and accustomed court trials may become to the participants, there will always remain the deep underlying stress of human passions.
As lawyers are watched, they may appear alternately as jumping up and sitting down like jacks-in-the-box or those weather figures, where if one goes in the other comes out. Their appearance differs in the different courts from the higher courts where the well-groomed eminent leader of the bar, with thin lips and white side whiskers debates in a frock coat before the appellate court, questions of international importance, or the anxious-eyed little attorney where in one of the lower courts with a showydiamond ring and a handkerchief sticking out of his pocket in the shape of an American flag, argues, while chewing gum, whether his client shall pay the fourteen dollars rent or not.
There is never any peace between them. Occasionally there is a truce when they come together to agree on a certain state of facts, or conclusions of law, but essentially they are at war; otherwise they would not be in court. The only reason for their being there is an issue to be decided.
Often so eager do they appear that physical violence seemed impending. It is as though they were on the point of breaking into fisticuffs. The judge says: "Gentlemen, gentlemen." They appear like two naughty schoolboys who have to be controlled by their master. First one is restrained and rebuked, then the other is held strictly to the rules of the game. Like schoolboys, although they may be fighting one another, they appear at times to be in league against the judge. As in a baseball game, both sidesjoin against the umpire. There is a common class feeling between the lawyers leaguing them against the judge. This may be explained perhaps by a rather subtle psychology.
The lawyers are primarily in court to please their clients. Every ruling of the judge against them on even minor points of evidence, any adverse decision is fatal to them from the point of view of retaining the client for the next litigation. They watch the judge with lynx-like eyes. Is he going to drive the client away from them? Should he reprimand them or speak severely, their client would think that they had angered the judge and so they had lost the case. Defeat in a case is so important that if a lawyer loses a case he probably loses his client.
In one of the lower city courts on the East Side, a young attorney came in one morning with a scar across his cheek, a scratch on his nose, and sticking plaster on his chin. The judge had often seen him before. After thecase was over he called him to the bench and said that he was sorry he had an accident, and asked him what had happened. "Oh, not much," said the lawyer, "last week I simply lost a case for a client."
The complaint of the lawyer against the judge is always that he has forgotten that he was a lawyer once himself. He does not realize how important it is that the lawyer should make a good impression on his client. His feeling is, if the judge cuts him off when he is arguing, the client will think that he is talking foolishly. The judge overrules his objection. The client thinks the judge does not like him. The judge denies his motion to strike out, he evidently does not look on the lawyer favorably. The lawyer's chance of display is in talking. If he is not allowed to go on he feels the judge is unreasonable in not listening to him.
The nice lines to be made by the judge between consideration for the feeling of the lawyers and insisting that justice be fully and speedily accomplished, are hard to draw.On the one hand there are the courts where no limit is put to the digressions of attorneys and where they may wander on and on, apparently merely to display their oratory to their clients, and other courts where the undoubtedly bad manners of the bench to the bar are unforgivable.
Control of the trial is necessary because it is a struggle in a court on a defined area. It is an intellectual ordeal by battle, a capping of intellects. It is like a game of chess in which luck is eliminated, the board is free, the pieces are equal, the way in which they may move is fixed by the rules of the game of court procedure. The element of chance is made not by the court or the procedure, but by the fact that the pawns, the castles, and the knights are not of ivory, but are human and mutable.
The lawyers are discontented with the courts, while the judges feel that the deficiencies are the fault of the lawyers. The lawyers, they say, do not coöperate with the judges in the administration of justice,and are too busy with their own game. Here enters that academic question of whether a lawyer's duty is first to the court and justice, or first to his client,—should he defend a man he knows to be guilty. The dispute is sophomoric. He is the advocate of his client first, foremost, and all the time. That is the reason for his existence. He is the agent for his client; his tongue, brain, and energy belong to his client. He is undoubtedly justified in whatever he does, if he keeps to the rules. Justice is best promoted by heeding the rules of justice to the utmost.
It is to be remembered that the lawyer occupies an uncertain position. As an officer of the court he is sworn to promote justice; as a champion in the battle he is under the deep obligation of performing his utmost for his client. At times the conflict between his duties seems real. As an officer of the court he has the privilege of the floor. He can be heard and is admitted to the court. It is as though he had joined a club in whichdueling or gaming is permitted. The obligation resting upon him is to act as a gentleman and obey the rules and not to cheat. If he keeps to the rules he is presumably a gentleman and can do what he pleases for his clients.
If there is any complaint about the courts it is held to be the fault of the lawyers, if there are criticisms of the lawyers it is the fault of the courts. They are interdependent and indissoluble. If a club house is not suitable for its purposes, is old-fashioned, rickety, and dirty, it is the fault of the members. If the members do not behave the club house gets a bad reputation.
Courts are institutions, and not persons; the lawyers are the individual stockholders. If by his actions in court or in the club he brings disgrace on himself as a lawyer or upon his club, there is very little to be done about it. The club membership may be more limited and select, but the building will not be improved except that it may be swept a little cleaner.
The judge as the president of the clubmust see that the lawyers observe the rules, he can not rebuild the club house or materially change the rules. The only persons who can effect a change are the lawyers. As members, they are agents for their clients who are the public at large. Occasionally the public awakes to a realization of their power over both courts and lawyers, that they are their creatures; then happens a revolution in procedure and something is accomplished.
The lawyer waits about the courthouse for his case to be reached. It may take days or even weeks before it is marked ready. He wastes his time. The witnesses have been subp[oe]naed. They have to be told to come again the next day. There is little money in it for the lawyer. Office practice pays better than court work and except for the eminent pleaders there is but small honor.
During the trial the lawyer seems to be sparring. He takes the attitude of saying: "I want that point of law decided; it is such a nice point, it ought to be settled." As amatter of fact he only wants it settled in his own favor. It is not the abstract interest but the concrete fact in which he is interested.
The lawyer is vigilant from the beginning of the trial to the end. After the case is marked ready he watches the jury, the other side, and the judge; any movement may be of importance; if it escapes his notice he may lose his whole case. It is not safe for him to go on the assumption that the other side is as honest as he is. If they should attempt to put in some evidence that is not proper, to offer a paper that is not duly authenticated, to try by some trick or device to take an unfair advantage, he must be ready to pounce upon the incident. If he is quick he may turn it to the advantage of his own side.
The other lawyer among a bundle of letters offers one that is only a copy or is not signed. The lawyer notices it but keeps still and when at the proper time calls the attention of the judge and the jury to the fact,the plain implication is that the other side must have a very weak case if it needs bolstering up by such methods as this. The argument is that he let the paper go in without objection because he thought the matter trivial anyway, and he wanted the jury to see the underhand method of the other side.
The indefinable quality of personal magnetism is of much vaunted importance. It is like that horrid word, charm; no one knows what it means and seems to have a supernatural quality. The trial lawyer does not need either charm or magnetism. They are both nonsense. Like actors or fighters if they are sufficiently trained in their parts or know how to use their weapons, the lawyers' personal magnetism over judge and jury will come of itself. The judge is a fairly hard-hearted person. The jury may be governed by sentiment but they are an example of the average man and neither are going to be caught by smile or mannerisms. Sound qualities will prevail.
A fine-looking trial lawyer who thoroughly knew his business once had a hard case. His appearance and manner impressed the jury. They followed his every motion. The trial was long and tiresome. It was the days of those little iron puzzles to get two rings or anchors apart; occasionally he would take one out of his pocket and begin playing with it. The jury would follow him with their eyes to see whether he could do it. Whenever he thought the evidence for the other side was getting too interesting, out would come the little iron puzzle and the jury would pay more attention to its solution than to the witness on the stand. He won his case but that is no reason to recommend the playing of "Pigs in Clover" in the court-room. The reason he won the case was because he was the capable man and on the job.
The lawyers' profession is not a creative one but the value in the social structure is cohesive. He brings together the investor and the manufacturer, he amalgamates capital and labor on a sound legal basis. Headjusts conditions to the laws and laws to the conditions. His is the most large-minded of the professions. He is theoretically the layer of the law. In every community the eminent lawyer is the eminent citizen. No one commands greater respect. But there is no doubt that the inefficient administration of justice is the fault, to a large extent, of the legal profession.
The fine, kind face of the lawyer who, ripe in years and understanding, beams a genial smile is a living reproach to the detractors of his profession. Painstaking, scrupulous, broad-minded, and intelligent, with a twinkle of humor for the frailities of humanity, he looks on the pettiness of men with a wise tolerance. Beneath his ease of manner and cordiality of intercourse there lies a world of experience, of battles fought and won, of inherent force of character, of public honors received and gracefully borne. There are no limits to the admiration and love to which he is entitled.
Beside the lawyer, and watching him withworried eyes, sits the client, who unless he is in the wrong really wants the lawyer to bring out the facts in the case rather than to have him exhibit his qualities as a fighter.
Like the financial backer of a play, the client does not figure largely on the stage. If he does appear as an actor he may have a small speaking part, but he is not a star. He owns the show, and if it does not pay he loses, or if he wins he gets a proportion of the profits. Consequently he hires the best talent he can afford. The star performer is the lawyer, but as the producer the client has not only the choice in picking the theme, but the play is about him and his troubles. Great drama consists in a conflict of emotions. The emotions of the two opposing clients make a court drama. The acting and the staging is the art of the lawyer.
The philology and derivation of the wordclient is significant. It does not mean the principal, but a follower. It is derived from the Latin wordcluereand the Greekκλυειν, meaning to hear; one who listens, a follower.
An ordinary man has a horror of the entanglement of the law. A hard-headed man of business says he would rather pay a claim of $250 or less, although he had never seen the claimant, and the suit was utterly unfounded, than go to court. He would rather lose the same amount than bring a suit involving the trouble and expense of hiring a lawyer, requiring witnesses to waste their time, and wasting his own in waiting for a trial, which might possibly result in a judgment against him on a perfectly just debt, either through the miscarriage of justice, or the chance of not collecting the judgment. The typical feeling is that of the stockbroker who said: "Only blackmailing suits go to court, for if sensible men have a dispute they know it is easier and cheaper to settle it outside."
The client is in a darkened room. He onlypartially sees what is going on. If the whole case is thrown out of court on a question of law or a technicality he feels more than resentful against the judge; he is revengeful; he will spend every cent he has in the world appealing and showing that judge how wrong he is. In the first place, it is a disgrace.
"Why," he says, "the judge just kicked us out of court. We didn't have a chance; the judge must have been friends with the other side. Do you call that justice? I'd like to get that judge outside and talk to him man to man. No one can get a square deal in court."
The feeling of the client toward the courts and the lawyer is one of distrust, mingled with respect. He will say:
"I would rather take a friend's word as a gentleman that he would do something than to have it put in the form of a forty-page contract drawn by the best lawyer in the country. I could rely on the word of a gentleman, but if any question on that contract came into court, some clever lawyerwould find a loophole to get out of it." Yet the fact is that the world does require legal documents. An interesting speculation would be to consider what proportion of the world's business affairs is conducted on a basis which could be provable or have the authority of enforcement in a court of law. The proportion of the business transacted in a so-called legal manner is insignificantly small.
The numberless transactions of the retail stores in a great city; such cases of proving that a pair of gloves were sold, delivered, and not paid for are extremely difficult to prove. The expense and trouble involved of subp[oe]naing the different departments and of breaking up the routine of the store, would prevent the stores becoming clients. The enormous transactions on the New York Stock Exchange, where a hundred million dollars' worth of business is reputed to be done in one day, is entirely on the basis of personal honesty. So far as the court goes, should one party to a stock sale not be willingto complete, there would be little possibility of enforcing it. Therefore the Stock Exchange makes its own rules and has its own method of settling disputes. The world at large is not a client in the court. The man who becomes a client in the sense of litigant is an exception. The courts would seem to be unrelated to the demands of actual business affairs.
Times have changed since the Victorian days when a solicitor was the client's deferential servant, the steward and custodian of the landed gentleman's legal affairs. Then the lawyer had a profession which he carried in his head. Law reports contained a few thousand, not a million decisions, and there were no title insurance companies to make a business of determining the ownership of real estate. Yet in those days the legal adviser was not a very exalted person, ranking beneath the soldier and standing hat in hand before the gentleman of property, to whom he owed his living. The citizen who wished to learn whether he or his landlordshould clear away the snow on the sidewalk, went gravely to a lawyer's office and paid a fee for the information. It is obvious that lawyers do not make their living through small fees for giving advice. As a matter of fact, those whose work is more remunerative than a street-car conductor's or a carpenter's, make their living through business and not in small litigation.
To-day lawyers complain that their profession is slipping from them. But they have gained the prestige of business.
"I am a business man, not a lawyer," says the elderly leader at the bar, and scarcely knows whether he is, on the whole, gratified or regretful.
Their abilities are used in directing the conduct of business from a legal standpoint and protecting it from those who are ready to prey upon it. Business needs protection from other business, from accident cases, and libel cases. These frequently get into the courts. Citizens need protection from business and seek it in the aggressive form ofsuits for damages. Big business looks on the courts as instruments of blackmail, and the small citizen feels that the courts are inadequate to protect his rights. It makes a deal of difference which side they are on. But in any case the present-day successful lawyer is primarily a business man.
A corporation is a legal creation; a lawyer is its mother and nurse. The stockholders having the curious relation of being partners, one not liable for its debts—if its legal affairs are properly handled. And so the company retains a lawyer at a yearly salary to give them advice and that legal protection. Prominent lawyers are taken in as partners of the big banking firms. The large industrial companies have the highest priced lawyers exclusively attending to their affairs. Accident Insurance Companies have enormous legal plants as efficiently organized as factories for handling damage suits and against whom is opposed the inexperienced lawyer of the individual citizen.
Furthermore, the corporation, thoughcomposed, in reality, of individuals, is less personal than any one of its members. It is a client without keen emotions, without too distracting hopes, fears, or suspicions. Law is an exacting science, arduous and complex. The lawyer, to do his best, should work quietly, disturbed as little as possible by the human interests at stake. If then the lawyer is correct in preferring the soulless corporate client, it must be that the ordinary individual is either too poor, or too human. Naturally, the corporations are not only the most satisfactory, but the most desirable clients.
The client, although he is the originator of the drama is in reality only a listener. The client in court has so little to say and the lawyers have so much, that it seems unexplainable. The reason is that the lawyers are the fighters, the champions, the knights in the tournament. A legal battle is only enacted because the lawyers are expert fighters. The client having hired them, has little to do but watch. When men first wentto law they had no champions; they fought and took what they could, but as civilization advanced men became too busy to engage in legal or actual battles and there grew up a specialized class of fighting men. The lawyers are the hired mercenaries of the commercial structure; and the clients are the ordinary business men. True, some of the lawyers are free lancers, but the majority have the sentiments and standards of their class. There is a natural class antagonism between the client and the lawyer. The client is afraid and mistrusts the lawyer; and the lawyer feels that he must act for an unintelligent client who is ignorant and inexpert. So long as the courts continue to exist on their present plan the difference between client and lawyer will be marked.
An example of a return to formalism and a reactionary development has been the change in what is known as the Poor Man's Court of New York City. It was originally planned as a court where the client or man unlearned in the law could come in to sue in a simple way.They were simple justice courts. The limit for which he could sue was $100, then $250, then $500, now $1000. Formerly the judges need not be lawyers. A trial was an informal affair. The judge would line up both the parties at the rail. One side would tell their story, the other side would interrupt and finally get a chance to tell theirs. The judge would figuratively pat them on the head, decide the case, and tell them to go home and be good.
The New York Legislature recently passed a law making the court a court of record, and making all the provisions of the Code of Civil Procedure applicable. The code with its half million words is therefore a part of the procedure. So that the client now before he goes into court without a lawyer ought to familiarize himself with the code. Formerly these courts may not have been dignified. Pandemonium would break loose and the litigants begin screaming at and abusing each other. Often the judge was obliged to apply a somewhat arbitrary and paternal rule.Now the courts are more dignified and formal, but the clients are disappearing from view. They are in fact afraid to come into court without a lawyer.
While the dignity and efficiency of the court have been increased, it has almost ceased to be a court for the poor man; indeed the procedure is so technical that, although possible, it is rather unusual for a man to come without a lawyer. Of course, the attorneys who make their living by appearing in small suits where the fee is often a contingent part of the small amount recovered, or a fixed charge of $5 or less for trying a case, do not present examples of the best legal ability.
The point of view of the client is that he is loath to spend the money to hire a lawyer for defense. One litigant stated in court, when asked if he had not admitted the debt: "Well," he said, "I just went around to see the plaintiff to find out if I could not save a few dollars instead of hiring a lawyer." It is an open question which brand is thebest for the client, the rough and ready justice or the formal and orderly kind.
While the jury are being examined and during the opening of the counsel, the client sits quietly, but a trifle self-consciously, at the counsels' table. The talk is about him and frequent references are made to him and what he has been doing. He tries to look as though he did not care and was accustomed to the surroundings, and when the taking of testimony and the wrangles over objections and motions begin, he falls quietly into the background.
If it is a criminal action he is not on the stand during the People's case. When his side is presented his lawyer does the best he can to keep him from the stand, whether he be innocent or guilty. The well-known expression is that the defendant hangs himself by taking the stand. In civil trials the client may be a corporation or the owner of the injured automobile or wagon, but not a witness to the accident. He sits silent by his lawyer if he is wise, realizing that his lawyercan fight better without being annoyed. If he is nervous, he keeps plucking at his sleeve and whispering advice. It is difficult for him to restrain himself. There have been months of preparation. The drama is being produced; to him it is vital. He knows more about the case than the lawyer. He wants to advise, suggest, and instruct. Why doesn't the lawyer ask the witness that question about what he told Smith or what he told his wife?
The client might be surprised if he knew what the lawyer was thinking of him. If asked, the lawyer would moisten his lips, draw a long breath, and then pause, not for lack of thoughts however. The best client in court for the lawyer is the silent client. One of the greatest calamities from the lawyer's point of view is when the client is on the witness stand and begins to get confidential with the judge and to tell him exactly how he feels about the whole matter.
"Why," said a lawyer, "I had a perfectcase and then the judge asked a question and spoiled the whole thing. I think it was outrageous, the judge had no right to interfere."
The attorney's feeling toward his client is contained in the wish that he wasn't there. The legal aspect of the case, the real point at issue, is probably something very different to what the client has in mind. The lawyer has an uneasy feeling that, in the client's eyes, he will not do the case justice.
"How outrageous," thinks the defendant, "that I should be sued when I've been over-generous for years. And the jury ought to know exactly what these people are who said they'd call off the suit if I'd pay them a hundred dollars." The lawyer is aware of these views, because he has been told them more than once; he also knows that he cannot try the case in that way.
The counteraction of emotions and feelings between the lawyer and the client, the judge and the jury, the undercurrents that are constantly moving from one to another, makeup the drama of the court. The characters are laid, the theme is selected, the actors are chosen, and it remains for the play to be prepared.
Pleadings are the programs of the performance. They are printed beforehand and everybody gets a copy. Preparation consists in the rehearsal and the carpentry of setting the scene. Any lawyer knows how important the pleadings are, but nobody else does. The judge does not pay any more attention to them than he has to. Juries hardly ever see them; if they did, they could not understand them. The witnesses never hear of them, the clients have sworn they have read them and have sworn that they are true. Yet not one client in a thousand could give an explanation of them other than, "My lawyer told me to sign it, so I did."
Whenever anyone gets anxious tounderstand a pleading, there are so many volumes about the subject and so many bookcases of decisions they would furnish a house. All this may appear flippant, but the subject is so absurd, abstruse, and abnormal to a man of business, that it is almost impossible to make it understandable. A partial list of authorities on the subject sounds like a chapter fromAlice in Wonderland: Pepper on Pleading; Perry on Pleading; Pollock on Pleading; Pound on Pleading; Puterbaugh on Pleading; Phillips on Pleading; Pomeroy on Pleading. The number of court decisions in which this branch of the proceeding has been reverently and gravely dealt with reads like a metaphysical discussion in the dark ages. The names formerly used were superb. Complaint, demurrer, confession and avoidance, traverse, replication, dilatory pleas, peremptory pleas, rejoinder, rebutter, and sur-rebutter.
On the other hand the clear, concise technical statement of a case is not a matter to be laughed at; no clear thinking is possiblewithout it. No plain understanding of what the drama is about, nor what the issues of the battle are, can be grasped. Good lawyers are good thinkers and usually plain talkers. The present-day revolt against the confused pleadings may go to the opposite extreme and abolish them all, leaving the case to be presented as formless and loose. The vexed question of the proper form of a pleading may delay justice until it is determined on appeal from the City Court to the Supreme Court, then to the Appellate Division, then to the Court of Appeals. In the meanwhile the clients may die, the money in suit may be lost, while the audience is waiting merely for the programs to be printed.
In Perry onCommon Law Pleading, reprinted in 1897, chapter thirteen is devoted to rules which tend to prevent obscurity and confusion in pleading.