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.

He adjusts 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 ent.i.tled.

Beside the lawyer, and watching him with worried 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.

VI

THE WORRIED CLIENT

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 word client is significant. It does not mean the princ.i.p.al, but a follower. It is derived from the Latin word _cluere_ and the Greek _+klyein+_, 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 only partially 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 lawyer would find a loophole to get out of it." Yet the fact is that the world does require legal doc.u.ments. 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 subpoenaing 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 willing to 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 t.i.tle 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 landlord should 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 of suits 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, though composed, 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 went to 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 cla.s.s 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 cla.s.s. There is a natural cla.s.s 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 pa.s.sed 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 the best 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 lawyer can 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 perfect case 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, make up 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.

VII

PROGRAMS AND PLEADINGS

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 n.o.body 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 to understand 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 from _Alice 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, reb.u.t.ter, and sur-reb.u.t.ter.

On the other hand the clear, concise technical statement of a case is not a matter to be laughed at; no clear thinking is possible without 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 on _Common Law Pleading_, reprinted in 1897, chapter thirteen is devoted to rules which tend to prevent obscurity and confusion in pleading.