The defendant's lawyer rises and says, "I move to dismiss on the ground that the plaintiff has not made out a cause of action. He has not shown that the cow was owned by the defendant, or he has not shown that the driver of the plaintiff was free from contributory negligence, or he has not made out any kind of case at all."

This is an anxious moment for the young attorney. Did he forget something? What was there that he did not remember? Will the case be dismissed because he forgot to tie a shoe lace or put in a pin? If he is more experienced in court work he will not be so worried. The law is that the plaintiff must be given every chance at this stage of the proceeding. Only when both sides are through does the law begin to weigh the evidence. At the close of the plaintiff's case everything is in his favor. Any particle of testimony is sufficient on a particular point. The theory of the law is that both sides must be heard. If the motion to dismiss is made on the ground that something has been left out, the court will usually give an opportunity to prove to whom the red cow belonged. This motion like many other relics of a by-gone age, is a matter of custom and tradition. It is usually made on the theory that the judge may think there is no case and that the plaintiff can not make out a case. If he so decides, the case is finished, the jury is discharged, and the client has his feelings hurt by being thrown out of court.

From a decision of this kind there is also a right of appeal which may result in a reversal. Then the new jury is impanelled, the witnesses are recalled, and the proceedings are gone over once more. If the decision or judgment is affirmed, the case does not usually come up again; the higher court has said the plaintiff has no case on the evidence, and unless new evidence is produced he can never recover. In certain accident cases the appellate courts have stated they would not give their reasons for dismissing the complaint after the evidence is all in because, they say, if they did so they were afraid the plaintiff would supply the missing links by manufactured evidence on the next trial and not quite honestly. This again is a commentary on procedure.

Just at this point is where the law of the case comes in so insistently. Before the case comes to court the lawyer is supposed to know whether his client has a right of action. Every state of facts or a breach of those rights does not give rise to an action that can be maintained in a court of law. If you ask a man to dinner and he accepts, but does not come, you can not recover your damages for providing the dinner; or if you fall down your own well, you can not sue the man who built it. The lawyer is supposed to have carefully considered what elements of fact make an action. If the facts themselves do not give him a right of recovery his case is dismissed; or if he has a cause of action but has not proven the facts, it is also dismissed.

But as was said above, if the train of facts or those in the pleading is imperfect, the modern spirit is to allow them to be made perfect.

The only theory of law that is contrary to this spirit is what is known as the theory that every man is ent.i.tled to his day in court and the day being had it is unfair to bring the other side in again on account of some defect or forgetfulness on the part of the other.

The reconciliation is that there should be no surprises on a trial, the modern tendency is to bring the case away from the idea of an ordeal by battle. The little advantages that are gained by sorties and surprises and which are usually taken advantage of by motion, are after all not of great moment.

An anomalous situation shows the absurdity of these motions, for when the plaintiff rests, unless the defendant makes a motion to dismiss the plaintiff's case, he is supposed to admit that the plaintiff has made a good _prima facie_ case, and if he does not move he is forever after, on appeal or otherwise, prevented from claiming that the plaintiff did not make out a good case. The result is that at the close of the plaintiff's case the motion is usually made as a matter of form to preserve the defendant's right.

Usually this motion is denied if there is a possibility of making a case, but suppose the judge either through ignorance or to be obliging should say, "Well, the plaintiff has made out a good case, but if you ask it, the blood be upon your own shoulders, and I will dismiss the case." The defendant does not want it dismissed but he has asked for it and he has got what he asked for. The result is an anomalous situation. The case will undoubtedly be reversed and he will be mulcted in costs for being compelled to ask, because of the formalism of the court procedure, for what he did not want.

At the end of the defendant's case, when both sides have rested, the defendant again moves to dismiss. Here again it is a formal motion, which he may not altogether mean, but which the lawyer often makes as a matter of form. If the judge really believes there is not enough evidence to let the case go to the jury, he ought to say so without the necessity of a motion. Suppose there is not, he dismisses the case "on the merits" and the trial is over. But suppose there is and the judge does not know his business and the fine point of law is not entirely clear to his Honor, and he makes a mistake and the case is dismissed. The result is that although he has granted the motion of the defendant to dismiss and given the defendant what he wanted, he has in reality penalized him, for the appellate court will reverse his decision and the defendant have to pay all costs and stand the expense of a new trial. The judge is in a quandary, which he may get out of in two ways. One is to let the weak case of the plaintiff go to the jury with the hope that they will see what a poor showing the plaintiff has made and find a verdict for the defendant, in which event he will be safe. But if the jury should make a mistake and find for the plaintiff, then the judge has the intention of setting that verdict aside, nullifying all the work of the jury, the witnesses, the clients, and the lawyers, and ordering a new trial. This is rather a weak-minded proceeding and shows the necessity of having a man in the referee's chair who knows how to decide.

The second alternative for the judge is to reserve decision on the motion and to let the jury go into the jury-room and worry about the verdict for an hour or two, while the judge has the hidden intention of perhaps deciding that they need not spend any time at all about the matter.

The principle on which the judge pa.s.ses on this motion to dismiss is, that after all the case is in and all proof had, that on the proof and evidence there is not enough on the part of the plaintiff from which any reasonable man could ever find a verdict for him. The motion differs from the one at the close of the plaintiff's case in that the latter is based on there being no proof at all, while the one after the case is entirely in is based on the theory that there is no possibility of a verdict.

This sounds again like a metaphysical discussion, but is ill.u.s.trative of the futility of formal motions, so that actually the decision depends upon the good plain common sense of the judge. The tendency is that if the case has gone to the length of a full trial and there is any question of fact involved, that the jury should determine the question of fact and exercise their functions. It must be a poor weak case of the plaintiff and evidently unsound, in which the judge or the appellate court interferes.

Throughout the trial the little motions that occur bear the same relation to the main issue as do the objections and exceptions.

"I tried to stop the car," says the motorman.

Up jumps the other lawyer. "I move to strike out as a conclusion."

The witnesses have testified to slightly different facts than what were stated in the pleadings. "I move to amend the pleadings to conform to the proof," says the lawyer.

"I move for an adjournment on the ground of surprise," says the other.

Of course the statement of the conductor is a conclusion of fact. But if the other side wants to find out how he tried to stop the car, let him ask what was done. "Did he turn on the brake handle? Did he switch on the emergency?" A man does not have to be an expert to say that the car was going fast; he may be examined as to what he considers to be fast. Nor does he have to be an expert to say that eggs are rotten, that b.u.t.ter is rancid, that there has been a war in Europe, that a man has a broken leg or looks sick or acts queerly, that the fish is stale or the cow was red.

The motion to strike out does not affect the jury, the testimony still remains on the jurors' minds. The verbal memory stays. Neither does the motion to amend the pleadings affect the jury. What have they got to do with it? If the papers are amended it is not important from their standpoint. Should the plaintiff have written a letter that he was going to sue for something, to the jury that seems better than any pleading.

These motions are insignificant and examples of a formalism which, however valuable it may be as defining the methods of the legal battle, are not consistent with the modern spirit of investigation into facts. It is rather significant that the laws creating Public Service Commissions and Legislative Investigation Committees in some States go to the length of stating that there shall not be any rules of evidence such as are employed in the courts of law.

The other motions, such as to direct a verdict, which is usually the same as a motion to dismiss, and the motions after a verdict has been rendered, are also formal statements of a request for the disposition of the case.

They may be all very good and useful in their way, but are merely the incidents and measures by which the truth of the matter is reached.

The client looks puzzled at the argument and the decision, the jurors have a not very clear conception of what is going on, the lawyers have a meretricious feeling that perhaps they are cheapening themselves a little by making so many motions, yet they, nevertheless, have a legal right to do so and they must take advantage of every legal right for the protection of their clients.

After all the witnesses have been called, the plaintiff and the defendant have proved their sides, the plaintiff has contradicted the new evidence of the defendant, everybody has been examined, the interruptions of the objections and motions, exceptions have been had, the judge asks if both sides are through and the presentation of the case is ended.

The course of justice has been on a rough and rather narrow road. The popular revolt at the method of arriving at the truth is, in fact, at the narrowness of the way. The presentation of a case and the means of reaching the truth ought to be on a well-defined and orderly system.

It would seem natural that the crooked and ill-paved streets of an old town should give place to the open, smooth, and broad avenues of the modern spirit.

XIII

ELOCUTION

At last when both sides rest and the judge has pa.s.sed on the latest motions, the intense action of the drama begins. For this the clients have been waiting, the lawyers have been training. It is the opportunity for them to display their attainments, to show their clients what brilliant lawyers they have retained; to let the judge know how well they have understood the case; to move and sway the jury to their side; to unravel the mysteries and by the power of oratory to bring justice where she belongs. When his lawyer is talking, the client watches him with admiration, but while the opposing lawyer speaks the client can hardly conceal his contempt. He feels that his case is secure and he does not understand how there can be anything to be said on the other side. Yet he is fearful there may be some court trick which he does not understand and the case may be lost.

"Your Honor and gentlemen of the jury," begins the defendant's lawyer.

Including the judge in his address, although it is a matter of courtesy for the eloquence of the summing up, is meant solely for the jury. The judge is only supposed to listen and restrain the attorneys if they go too far afield in their attempts to influence the jury by their efforts. The judge is the time keeper or referee and holds the lawyers to the point.

The object of the attack is the jury. As the burden of proving a case is on the plaintiff, he is supposed to have the first and the last word; therefore, the defendant begins to sum up. After he is through, it is the turn of the plaintiff. The tactical position is in favor of the plaintiff. The advantage, as in all verbal disputes, is reputedly with the man who has the last word. In all debates the proponent has the right of opening and closing. The plaintiff began the case with his opening, and after it is over he is permitted to close.

"Gentlemen," says the judge, "how long will you take in your address?"

Both sides agree upon a certain time, which usually proves too short, but which is acquiesced in with alacrity because each side thinks their case is so plain and convincing that it will not be difficult to explain. The lawyer girds up his loins, the court-room quiets, the struggle of conflicting evidence is over, the clients and witnesses retire from the foreground, the other counsel sits down and the lawyer steps close to the jury-box.

"The jury is yours," says the judge, as though he were abandoning the jury. Indeed the summing up is an attack, a vivid, keen, masterly struggle in which wit and brain is pitted against wit and brain: where facts and pa.s.sions are to be marshalled in the most intelligent and plausible way, where imagination and oratory are to be employed in their finest capacities. It may be bold, manly, energetic, or soft and persuasive; it may appeal to sympathy or threaten with a battery of acc.u.mulated facts. Forensic oratory is the highest type of art, the most powerful of human gifts. The only trouble with most court oratory is that it is only fit for the market-place. The lawyer begins with the firm impression that he must win the jury. His voice is bland and soothing, he feels that he must be soft and persuasive. He rubs his hands and remembering the old adage, that laugh and the world laughs with you, attempts a little joke. There is nothing so good as to get a smile for his side. Perhaps the joke does not go very well and the laugh does not come; the point has missed. He will try what flattery can do.

"Men of your intelligence can readily see," he says.

"When I was examining you," he explains in a subtle way. "I knew at once how unprejudiced and fair-minded you were."

"You gentlemen are practical men and can understand." Yet somehow the jury are impervious. They sit back in their chairs and stare.

Then the lawyer begins to forget the object of ingratiating himself.

Hypnotized by the memory of his client's wrongs, he works himself into a frenzy of feeling. He swings his arms, pounds with his fist, raises his voice, and thunders his denunciation. His speech takes on a threatening tone. He shouts and bawls; the jury must be waked up. They sit stolid and unmoved. He tries to catch their eye, there is no gleam of interest. Perhaps he has rather a hopeless feeling that the art of oratory is not what it is reputed to be. The jury look particularly unresponsive. Even that one little juror, with the clever, smart face, who is leaning forward with such an expression of enjoyment may not be altogether trustworthy. The lawyer has seen that kind before and the one juror who seemed the most interested in the last case he argued was the very one who held out against him in the jury-room as he found afterwards. It seems a difficult matter to stir the jury and the men in the box are not at all a warm or enthusiastic audience.

The jury are not particularly keen about the oratory of the lawyer, they look upon him as paid to do his part. It is the portion of the trial they can understand; they have not clearly comprehended what went before. When the objections were being made and there were the cross-examination and badgering of witnesses, they could not separate in their minds the functions of the lawyer and the personality of the lawyer. It seemed as though he were doing a good many unfair things and not acting quite up to the mark, but now the atmosphere has cleared. They can realize that he is only the paid talker for his client, that he is only making all this noise because that is his business. To the jury he is the pleader employed as an actor. The position is simple; if any one would pay them for acting and gesticulating at so much per day or per hour, they would be very glad to earn the money.

The client watches the lawyer with affectionate admiration. True, he did not do exactly as he was wanted during the trial. He should have asked those questions he suggested, but now he is doing grandly. When the lawyer is through the client feels splendidly. He sees but one side of the case and believes in it absolutely. With such a good talker the jury cannot fail of being convinced.

When the lawyer sits down the client shakes him by the hand and tells him how well he has done. He might have been willing to settle the case for a thousand dollars before, but now he wouldn't pay a cent, not one cent. Later, should the jury find against him, even to the amount of the thousand dollars which he was willing to pay, he feels terribly disappointed. There must have been something very much amiss in the jury-room.

The judge while the summing up is going on, is not very attentive.

His part of the case is over. While the proof was being given he was alert. True, the charge is coming afterwards, but he knows fairly well what he is going to say, and it is going to be formal. It is the function of the judge to control the address of counsel, but the counsel are sometimes very hard to control.

In the criminal trials, reference is made to the emotions of the defendant's family; the devoted, anxious wife, the poor little children who may bear the stigma of their father's disgrace, should the verdict go against him. Since the domestic life of neither party to the trial has appeared in evidence, such things being entirely "irrelevant and immaterial," it does not make a great deal of difference whether the picture is accurate or wholly fanciful. The defendant may be a drunkard, a burden to his wife, and a horror to his children; he may have abandoned his family to their own resources; it is possible that he has never had any family at all. The lawyer has no right to refer in his summing up, or otherwise, to anything that has not been properly submitted in evidence. He is guilty of unfair practice in telling the jury about the defendant's family or circ.u.mstances, unless this has been part of the case, which is improbable. He knows this well; so does his opponent and the judge.

And should the opposing lawyer protest, the judge will say, looking up, "Be careful, counselor, be careful." The counselor bows respectfully and probably goes on in the same vein. The judge has not heard exactly what was said and feels that the lawyers, if they are not too blatant and noisy, may say what they please. There must not be too much talk about the wicked, money-grabbing, soulless corporation, not too much appeal for the down-trodden poor, nor an over indulgence in personalities. The lawyers must not call the other side liars and thieves too openly. That is, they may say they are untruthful, but liar is too strong. The denunciation must be a little restrained.

The judge throws out a rather mild admonition. "The counsellor must keep to the evidence. You may not refer to matters which are not before the court." The lawyer says, "Yes, your Honor." The judge withdraws again into a contemplation of the high cost of living and his diminishing bank balance. The shouting and vociferation grow louder. The jury are long-suffering, but they cannot object. The other lawyer jumps up, and after an insistent effort makes himself heard.

"The witness did not say that; you are stating something that is not so. I ask to have the stenographer read the minutes." The stenographer begins turning over the pages of his stenographic book. The exact testimony of the lady in the car is hard to find. "Heavens," think the jury, "are we going to have the whole case over again?"

The lawyer who is talking complains, "If my friend is going to keep on with his objections I shall never get through in my fifteen minutes."

The stenographer has not been able to find the exact spot. It is apparently not in the testimony. Then the lawyer objecting says, "I ask your Honor to instruct the jury to disregard the statement of counsel." The lawyer must have a sarcastic vein of humor. Such an instruction does not seem necessary. The judge says, "I will cover that in my charge, but I must ask the counsel to be careful," and he looks warningly at the clock.

Finally the hands point to the agreed time. The judge says, "Your time is up, counselor." "Just one minute more," says the lawyer and then he goes on for three. The judge raps on his desk. The lawyer winds up his speech in a hurried peroration. "Therefore, gentlemen, with the utmost confidence in your ability as men of experience and affairs, with the sure belief in the justness of my defense, I leave the matter in your hands."