The Man in Court Part 5

RULE I. Pleadings must not be insensible or repugnant.

RULE II. Pleadings must not be ambiguous or doubtful.

RULE III. Pleadings must not be argumentative.

RULE IV. Pleadings must not be hypothetical or in the alternative.

RULE V. Pleadings must not be by way of recital, but must be positive.

RULE VI. Things are to be pleaded according to their legal effect.

RULE VII. Pleadings should observe the known forms of expression as contained in approved precedents.

RULE VIII. Pleadings should have their proper formal commencements and conclusions.

RULE IX. A pleading which is bad in part is bad altogether.

These are pleasant rules for a layman to understand, and any time he has a day off or a holiday he should study them.

"Shocking," cries the old-fashioned reactionary lawyer, "What! Do away with pleadings, you might as well do away with the whole case.

Pleadings are like the rails for a train. No one on the train sees them, but take away the rails and the train would not go very far.

Pleadings are the groundwork of the trial."

He grows more and more indignant.

"The trouble with the modern courts is that they do not know what they are about. If this business of loosening the forms of pleadings had not taken place, lawyers would be better prepared when they came into court and there would not be this floundering about. The good old common law pleadings were the thing. It was a great mistake when they were abandoned. Then everyone knew where they were. If there was a mistake in the pleading then the whole case was thrown out of court.

That was as it should be. Men had to be good and careful lawyers in those days. The slipshod methods of the present time are abominable."

"You seem to be a little hard," says the modern lawyer. "Justice ought not to depend on forms."

"You can never have justice without formalizing and shaping the dispute," says the lawyer.

"Quite true," says the modern, "but there has been too much attention paid to the form of justice. Pleadings are the mere mechanics like printing the program or laying the rail."

However, this is all a question that does not come up in the court-room at a trial. Once or twice some reference is made to the pleadings. Perhaps there is some such dispute as this. The defendant attempts to swear that he "paid for the goods then and there." The other lawyer jumps up and says, "I object, your Honor. In his answer he does not plead payment. He only pleads a general denial." The judge puts on his spectacles. The lawyers gather, business stops while everyone looks at the pleadings.

Or again the plaintiff tries to show that when he was thrown from the wagon he bruised his right elbow. The counsel objects there is nothing about injuries to his right elbow in the Bill of Particulars, therefore he can not prove it. The Bill of Particulars says that he hurt his hand, scratched the forearm, and injured the right shoulder, but says nothing about the elbow. Grave consultation by the learned lawyers and the judge ensues. The defendant's lawyer is right, there is nothing in the pleadings about the elbow.

The case can not go on until that important question is settled. There is argument on both sides. The client looks anxious. The jury sit and wonder what that phrase of "the delay of the law" may mean. Finally a bright idea occurs to the lawyer.

"I move to amend, your Honor, so as to include the elbow." The other side looks shocked and disgusted. "What, move to amend in such a casual way as that. The pleading is a serious thing. It has been sworn to, you may not amend a sworn statement in that offhand way." The judge says that he will allow the amendment but if the other side is surprised he will grant an adjournment of the trial to another day.

The other side says, "Pardon me a moment until I consult with my client." The judge smiles. The lawyer goes over to his client and the client says, "For goodness' sake don't adjourn. I've broken up my business for a week to come here now; what's all this fuss about pleadings; let's get on with the case." The lawyer returns to the bar.

"We have decided to proceed."

"Amendment allowed," says the judge. The witness now tells about hurting his elbow.

The preparation of a case goes on behind the scenes and before the drama begins. The attempts to rehea.r.s.e are piece-meal. First one witness is seen, then another, their stories are told, their statements are taken, and they are drilled in their parts. They are told as to what facts they must testify. In one large company that has a quant.i.ty of damage suits, there is said to be a school for witnesses where there are dress rehearsals and they are taught how to behave in court.

The greatest farce that occurs in the court-room is the part of preparation that is involved in getting a case on for trial. There being no limit to the time to examine witnesses, to hear arguments, to listen to objections, it is said to be impossible to tell how long a case is going to take. Consequently the calendar having been called, the cases following are answered ready, by office-boys with no expectation of their being immediately reached.

The grave and reverend judge looks over his desk and calls the case of Bowring _vs._ Bowring. "Ready for the plaintiff," answers a rosy-cheeked boy. "Ready for the defendant," answers another. They look rather young to be trying a case. It is marked ready and the office-boys sit about the court and telephone to the lawyers when they think there is a chance of being nearly reached. This often takes several days. In the meanwhile the cases ahead of the Bowring case have been dragging out their slow and weary performance on the court stage. Matters of fact that should have taken five minutes to bring out by the present usual laborious system of proof, have taken two hours. Argument of counsel on abstruse questions of law have worn and confused the jury and the clients, who have become exhausted and impatient.

The clients and witnesses may have been sitting, trying to understand and becoming more and more mystified.

The dealings of open-handed Justice ought to be plain, prompt, and understandable; instead to the spectator she seems a mysterious jade with no understanding of everyday life. She keeps them waiting there without reason. If the case is marked ready it ought to be ready. The business man feels that Justice is extremely tardy in keeping her appointments.

His natural reverence for abstract Justice prevents him formulating these thoughts, but he continues to wonder. Not understanding the cause he becomes dissatisfied and his experience in court leaves a profound contempt for the system of jurisprudence. He thinks that if any man conducted his own business on the method and plans on which the courts are being run he would soon be bankrupt.

"Why," he says, "does not the court get in an efficiency expert on this calendar evil and have it arranged on a business basis?"

During the days the case has been on the calendar the lawyer has had to hold himself in readiness to try the case. The managing clerk has been sending out for his witnesses. They have been served with subpoenas and paid their fees to come to court on the day the case was first marked ready. They arrive and are told to come again the next day. They also have a respect for the court and are glad to come to do their duty and tell the truth. The truth is mighty and will prevail; but in court she can only speak through witnesses. Unless the witness be treated with consideration it would seem that she will not speak very willingly.

In place of having them return and return again, some system soon will be devised of giving them timely notice when the case is to be reached. Exhausting the patience of the men who are the props and mainstays of truth does not seem reasonable, and after a few visits to court they are not anxious to come again. If possible they will escape the process server.

A man who has witnessed an accident to a woman by a street car, in spite of his humanitarian instincts will run around the corner for fear of being called as a witness. The man who hears at night the call of "Police! Police!" in the street, jumps out of bed and begins to put on his clothes, but thinks better of it for the same reason. If a man is in a taxicab that is run into by an express wagon, and the resulting suit is brought by the taxicab company for $110 damages, he may have to attend court five separate days as a witness and the case may not be called. He has to leave the State to avoid being annoyed by the subpoena server, who dogs him at his club and at his home. The witnesses have lost their time and their patience.

Each lawyer knows this and a petty game of playing for delays and adjournments sometimes goes on. Suppose there is a good claim which nevertheless the defendant denies, knowing how lengthy and wearisome is the game of reaching a case, he often succeeds for years in preventing its collection. The game is simply to tire out the opponents, clients, and witnesses. A clever and unscrupulous lawyer can throw so many obstacles in the way of a plaintiff that, unless he have a strongly developed streak of obstinacy, he will give up in disgust or be glad to compromise.

Unless both sides are anxious to be reached it is practically certain a case will be adjourned two or three times. A sworn affidavit is presented with the doctor's certificate that the client or witness is sick, or the sworn statement that a witness can not be found, or that the lawyer is engaged in the trial of another case. The excuse may be valid and the reasons may be sound, but the adjournment of the day for trial occurs again and again. This is one of the causes for the complaint as to the law's delay. Naturally calendars have to be made and called. Cases have to be tried and others have to be reached in order, but at least there should be sufficient and intelligent planning of the order.

It seems rather a weak answer to say that no one can tell how much time will be occupied in the trial of a case. If any systematic or scientific method of regulating the calendar were devised, one of the evils would be avoided.

The very call of the calendar in some courts occupies to an unreasonable extent the time of the judge who might as readily be engaged in the real work of the court. The aggregate value of the time of the judge, the lawyers, the witnesses, and the jurymen who have all been sitting about waiting, for the call of the calendar is, for one hour's delay a large sum. The waste might be saved by an intelligent bureau for the administration of court business which would have absolute control over all calendar practice.

That the judge should delay a whole court-room full of people by being late in opening court should not only be a matter of apology, but is reprehensible to the extent of being multiplied by the number of people he has kept waiting. On the other hand, the usual course of proceeding being apparently with the object of dragging out the business of the court, makes the tardiness of the judge seem only an incident.

Fortunately there are few attorneys who make appearances in court merely for the sake of adding another item on their bill to the client, and the real delay in reaching a case is due more to the confusion of administrative methods; until some more practical system is devised it will continue. Then witnesses and clients will not be loath to go to court.

The weary work is finished, all the tiresome facts have been gathered, and the rehearsals have been had. The play is written, the parts are cast. The disappointments and delays have been forgotten, the months of preparation have pa.s.sed. At last the bell for the performance rings and the case is finally to be tried.

VIII

PICKING THE JURY

The clerk calls the case again for trial, not this time to inquire whether both sides are ready but to announce that it is about to begin. The lawyers, their a.s.sistants on both sides and their clients move forward to within the rail. There is a certain amount of commotion as they arrange their papers, their portfolios, law books, hats, and coats, and take their places at the counsellors' table opposite the jury-box. In the dignified courts in this country this rather uncomfortable disposition of overcoats and hats is arranged in an adjacent room. The opposing parties in the battle to be enacted are now facing each other. Matters become at once more serious and formal. What was once avoidable is now inevitable.

The stage has still in a measure to be set. Twelve important actors are to be selected. The jury have not yet been chosen. The jury for the sake of comparison take the part of a Greek Chorus, a silent one it is true, until the final word is to be said. They nevertheless are as important and essential a part of the drama as the Chorus, without which in the background no tragedy or comedy was complete.

No curtain divides the theater and the arrangement of the stage goes on before the eyes of the spectators. The choice of the jury const.i.tutes an interesting part of the performance. In this preliminary play the lawyers having important parts, their manner, bearing, tones of voice, their courtesy or discourtesy, repose or nervousness, are watched and unconsciously noted by the jurors. As the jury-box gradually fills, even the slightest idiosyncracy may have some effect on the outcome of the case.

Trial lawyers are careful of their actions even before the case is called to trial. It may be that among the spectators who have been sitting beside the lawyers in the back of the room, waiting for the case to be called, are those who may afterwards be called as jurors.

Any affectation of manner or pomposity is quickly detected.

Experienced lawyers immediately they are observed by their tribunal, fall into the parts they are to play during the trial. One lawyer may be jovial and radiate a cheerful confidence. Another has a superior, detached, and academic air which promises a sarcastic cross-examination.

Yet another takes on a bl.u.s.tering, brow-beating, intimidating manner, a kind of overmastering virility. Each kind has its own particular advantages, according to the nature of the parts to be played. The most efficient is the manner of the lawyer who is direct, business-like, and consistent with his own personality.

As on the modern stage, there is a return to simplicity of acting.

Naturalness and a constant regard for actuality is the only safe rule. Simplicity and naturalness, even if studiously affected, usually prove convincing. The aim is toward consistency and a non-elaborate manner.

Above all the lawyer remembers that the jury admire the good fighter, and it is with a certain obvious subtlety that one successful advocate in New York lets his a.s.sistant carry his coat, books, and papers, but he himself always carries his hat--a derby, by the way, for a high hat would be over important. The great man knows that the jurors are aware of the importance of the occasion and that their eyes will follow his every movement. As he walks up to the counsel table and deposits his derby it may well become a gage of battle.

The clerk at the side of the judge's desk begins turning a large hollow wooden wheel; within it are cards on each of which is written the name of a juror who has been served by the sheriff to attend on the panel for the trial term of the court. The number summoned naturally is larger than the twelve needed for any one case. Often those who have to attend at a term of court sit about with nothing to do until they are actually drawn on a case, although they receive their fees for attendance. There is the story of the ignorant workman who was serving his first time on a panel.