JUDGMENT inspires a man to translate good sense into right action. I would not quarrel with the philosopher who describes judgment as an instinct, but I would bid him remember that even an instinct is acquired by “cunning” rather than luck. Let no one think that he can attain to sound judgment without hard work. The judgment of the advocate must be based on the maxim, “He that judges without informing himself to the utmost that he is capable cannot acquit himself of judging amiss.”
A client is entitled to the independent judgment of the advocate. Whether his judgment is right or wrong, it is the duty of the advocate to place it at the disposal of his client. In the business of advocacy judgment is the goods that the advocate is bound to deliver. Yet he is under constant temptation to please his client by giving him an inferior article. The duty of the advocate to give only his best is wisely insisted upon by Serjeant Ballantine, who relates a personal experience that all advocates must be ready to face.
“The solicitor instructing me,” he writes, “was vehement in expressing belief in his client’s innocence. I was of a different opinion. He, acting upon his belief, desired that certain witnesses should be called. I, governed by my convictions, absolutely refused to do so, offering at the same time to return my brief. This, however, was refused, and I was left to exercise my own responsibility. The above question frequently arises, and some counsel have considered themselves bound to obey the wishes of the solicitor. There is no doubt that this is the safest course for the advocate, for, if he does otherwise and the result is adverse, he is likely to be much blamed, and the solicitor also is exposed to disagreeable comments; but I hold, and have always acted upon the opinion, that the client retains counsel’s judgment, which he has no right to yield to the wishes or opinions of any one else. He is bound, if required, to return his brief, but if he acts against his own convictions he sacrifices, I think, his duty as an advocate.”
An advocate of judgment has the power of gathering up the scattered threads of facts and weaving them into a pattern surrounding and emphasising the central point of the case. In every case there is one commanding theory, to the proof of which all the facts must be skilfully marshalled. An advocate with one point has infinitely greater chances than an advocate with twenty points.
Rufus Choate was an advocate of great judgment, and not only was he enthusiastic and diligent in searching for the central theory, or “hub of his case,” as he called it, but having made up his mind what it was, he rightly put it forward without delay, believing that it was the “first strike” that conquered the jury. Parker, his biographer, tells us that “he often said to me that the first moments were the great moments for the advocate. Then, said he, the attention is all on the alert, the ears are quicker, the mind receptive. People think they ought to go on gently, till, somewhere about the middle of their talk, they will put forth all their power. But this is a sad mistake. At the beginning the jury are all eager to know what you are going to say, what the strength of your case is. They don’t go into details and follow you critically all along: they try to get hold of your leading notion, and lump it all up. At the outset, then, you want to strike into their minds what they want—a good, solid, general view of your case; and let them think over that for a good while. ‘If,’ said he emphatically, ‘you haven’t got hold of them, got their convictions at least open, in your first half-hour or hour, you will never get at them at all.’”
Abraham Lincoln had a genius for seeing the real point of his case and putting it straight to the Court. A contemporary who was asked in later life what was Lincoln’s trick with the jury replied, “He saw the kernel of every case at the outset, never lost sight of it, and never let it escape the jury. That was the only trick I ever saw him play.”
Sir Henry Hawkins held the same view. He used to say, “Concentration is the art of argument. If you are diffuse, you will be cut up in detail.” And he was fond of quoting the teachings of Denman on this subject: “Remember also to put forward your best points first, for the weak ones are very likely to prejudice the good ones if they take the lead. It would be better advice to say never bring them forward at all, because they are useless.”
Johnny Williams, who appeared with Brougham and Denman for Queen Caroline, was a man of great sagacity, but much given to strong expletives. He was once induced by an attorney, against his own better judgment, to ask a question, the answer to which convicted his client on a capital charge. The circuit considered he was well justified, when the trial was over, in turning to the attorney and saying with great emphasis (formal expletives omitted), “Go home, cut your throat, and when you meet your client in hell, beg his pardon.”
But an apology was also due from Williams for surrendering his judgment to that of his attorney.
In nothing does the advocate more openly exhibit want of judgment than in prolixity. Modern courts of justice are blamed by the public, not wholly without cause, for the length and consequent expense of trials. To poor people this may mean a denial of justice. No one desires that the judge should constantly interfere with counsel in the discharge of their duties, but it seems to be his duty on occasion to blow his whistle and point out to the combatants that they are offside.
If every one connected with the trial of an action were to train and use his judgment and co-operate with the judgments of his fellow-workers in a policy of anti-waste, a great reproach would be lifted from our courts of justice.
Prolixity is no new disease. Many wise judges have sought to eradicate it. In the time of Charles II. things seem to have been in a specially bad way, and Lord Guildford, though he probably went to dangerous extremes, was well thought of by the public for his endeavour to speed up the legal machine.
“In his lordship’s conduct of trials he was very careful of three matters: 1. To adjust what was properly the question, and to hold the counsel to that; for he that has the worst end of the staff, is very apt to fling off from the point and go out of the right way of the cause. 2. To keep the counsel in order; for in trials they have their parts and their times. His lordship used frequently to inculcate to counsel the decorum of evidencing practice. 3. To keep down repetition, to which the counsel, one after another, are very propense; and, in speeching to the jury one and the same matter over and over again, the waste of time would be so great that, if the judge gave way to it, there would scarce be an end; for most of the talk was not so much for the causes as for their own sakes, to get credit in the country for notable talkers. And his lordship often told them that their confused harangues disturbed the order of his thoughts; and, after the trial was over, it was very hard for him to resume his method and direct the jury to comprise all the material parts of the evidence. Therefore he was positive not to permit more than one counsel of a side to speech it to the jury, by way of summing up the evidence; and he permitted that in such a way as made them weary of it. For, in divers sorts of trials, he wholly retrenched it; and where he observed much stiffness and zeal of the parties in a cause, then, after the evidence was over, he would say, ‘Come, make your speeches;’ and then sat him down: and that looked with a sort of contempt of their talents, which gave them a distrust, and discomposed their extempore so much that, for the most part, they said, ‘No, we will leave it to your lordship.’ And thus the abuse, by fastidious talk, wore away; and the practice before him was so well known, as it became at length a pure management of evidence and argument of law.”
The judgment of an advocate may be called upon at any moment for a sudden decision that may mean the victory or defeat of his client. For this reason it is necessary that he should be always alert. The contents of his brief must be already in his mind, and his attention must be fixed on what is happening in court, which has rarely been foreseen in the best-prepared brief ever delivered to counsel.
It was Russell who turned round to his junior and said, “What are you doing?”
“Taking a note,” was the answer.
At which Russell burst out in his uncompromising way: “What the devil do you mean by saying you are taking a note? Why don’t you watch the case?”
“Watch the case!” It is a golden rule.
It was the same when he was playing cards. He would get impatient with a partner shuffling and handling his cards in a state of indecision. “Why are you looking at your cards?” he asked. “Why don’t you watch the game? The game is on the table.”
In the same way an advocate who is always fumbling with his brief when he is examining a witness cannot follow the game that is on the table before him.
Sound judgment is essential to the examination of witnesses. How few advocates know how to examine a witness-in-chief! Birrell tells us that Sir Frank Lockwood had very clear views on the subject. “He believed that the examination of a witness-in-chief, or the direct examination of witnesses, as it was called in Ireland, was very much underrated in its significance and its importance. If they had to examine a witness, what they had got to do was to induce him to tell his story in the most dramatic fashion, without exaggeration; they had got to get him, not to make a mere parrot-like repetition of the proof, but to tell his own story as though he were telling it for the first time—not as though it were words learnt by heart; but if it were a plaintive story, plaintively telling it. And they had got to assist him in the difficult work. They had got to attract him to the performance of his duty, but woe be to them if they suggested to him the terms in which it was to be put! They must avoid any suspicion of leading the witness, while all the time they were doing it. They knew perfectly well the story he was going to tell; but they destroyed absolutely the effect if every minute they were looking down at the paper on which his proof was written. It should appear to be a kind of spontaneous conversation between the counsel on the one hand and the witnesses on the other, the witness telling artlessly his simple tale, and the counsel almost appalled to hear of the iniquity under which his client had suffered.
“It was in this way, and in this way alone, that they could effectively examine a witness.”
There is probably more waste of time and irrelevance in the examination of witnesses-in-chief than in any other procedure of counsel. This is the modern drama of it.
COUNSEL (his eyes glued to his brief): “Your name is Mary Ann Snooks.”
WITNESS (annoyed): “Martha Ann.”
COUNSEL: “Oh, yes, Martha Ann Snooks; and you are the wife of Thomas Snooks, the bookmaker.”
WITNESS (very indignant): “Nothing of the sort.”
COUNSEL: “I beg your pardon—my mistake—bootmaker.”
WITNESS: “And has been this thirty year——”
COUNSEL: “And you live at 139 Doncaster Street, Upper Tulse Hill.”
WITNESS: “We did live there; we’ve moved now, sir.”
COUNSEL: “What is your present address?”
etc., etc., ad lib.
Consider for a moment, if you will, the horrid waste of all this irrelevance standing between the Court and Mrs. Snooks’s version of what she saw of an accident in High Street, Kensington, and reducing her to a state of nervous irritation antipathetic to accurate testimony.
How much more business-like was the method of the eighteenth century! In a State trial in the days of Queen Anne the name of the lady is announced in the oath, and then counsel approaches her, as Sir Frank Lockwood might have done: “Pray, madam, will you be pleased to acquaint my lord and the jury what you know concerning the matter, and what passed between your brother Mr. Colepepper and Mr. Denew at his first coming to him?”
Much public time could be saved by more economical methods of examination-in-chief, and greater efficiency would be ensured.
Cross-examination, too, is almost entirely a matter of judgment. Two golden rules handed down from the eighteenth century, and maybe from beyond, are still unlearned lessons to each succeeding generation of advocates:
Serjeant Ballantine has some just observations on the art of cross-examination and the use and abuse of it.
“The records of justice,” he says, “from all time show that truth cannot, in a great number of cases tried, be reasonably expected. Even when witnesses are honest, and have no intention to deceive, there is a natural tendency to exaggerate the facts favourable to the cause for which they are appearing, and to ignore the opposite circumstances; and the only means known to English law by which testimony can be sifted is cross-examination. By this agent, if skilfully used, falsehood ought to be exposed, and exaggerated statements reduced to their true dimensions. An unskilful use of it, on the contrary, has a tendency to uphold rather than destroy. If the principles upon which cross-examination ought to be founded are not understood and acted upon, it is worse than useless, and it becomes an instrument against its employer. The reckless asking of a number of questions on the chance of getting at something is too often a plan adopted by unskilful advocates, and noise is mistaken for energy. Mr. Baron Alderson once remarked to a counsel of this type, ‘Mr. ——, you seem to think that the art of cross-examination is to examine crossly.’”
How few advocates have the capacity to let well alone! They must repeat and emphasise, and emphasise and repeat. In a case tried before Sir Henry Hawkins, a junior, not content with his own witness’s answer, continues:
JUNIOR (emphatically): “And you are quite sure of this?”
WITNESS: “Yes.”
JUNIOR: “Quite?”
WITNESS: “Quite!”
JUNIOR: “You have no doubt about it?”
WITNESS: “Well, I haven’t much doubt, because I asked my wife.”
SIR HENRY (pouncing on his prey): “You asked your wife in order to be sure in your own mind?”
WITNESS: “Quite so, my lord.”
SIR HENRY: “Then you had some doubt before?”
WITNESS: “Well, I may have had, my lord.”
It is part of the advocate’s rôle to make the jury believe in his infallibility, and every question he asks that gives the witness an opportunity to score off him and belittle him in their eyes is an error of judgment. Serjeant Buzfuz, who conducted his case with fine judgment, was guilty of a grave error in his examination of Sam Weller. Brow-beating is always a dangerous policy; it antagonises the jury and leads to reprisals. There is an old story of the counsel in an assault case who asked the witness at what distance from the parties he was at the time of the assault. Not content with the reply of “A few feet,” but pressing for greater accuracy, he was answered by the witness: “Just four feet five and a half inches.”
“How do you come to be so very exact, fellow?” asked counsel sternly.
“Because I expected some fool or other would ask me, so I measured it.”
A good story, too, is told against Lord Coleridge in Mr. O’Brien’s Life of Lord Russell. He appeared in a libel action for a young lady who had been expelled from a college. His case was that the breaches of discipline were trivial, and he pressed Mrs. Kennedy, the mistress of novices, asking what his young client had done. Mrs. Kennedy said, as an example, that she had eaten strawberries.
“Eaten strawberries!” exclaimed Coleridge. “What harm was there in that?”
“It was forbidden, sir,” replied Mrs. Kennedy simply.
Coleridge should have accepted her answer, but he retorted with a contemptuous question, not foreseeing the reprisal, “But, Mrs. Kennedy, what trouble was likely to come from eating strawberries?”
“Well, sir,” replied Mrs. Kennedy, “you might ask what trouble was likely to come from eating an apple, yet we know what trouble did come from it.”
Coleridge’s cross-examination dissolved in laughter, in which, of course, he joined good-naturedly.
The art of re-examination, which is a task often as futile as the endeavour to set Humpty Dumpty on the wall again, can be learned only by the experience of watching the game on the table and playing any few remaining cards in your hand with rapid judgment.
A wise student will take Lord Halsbury’s advice and go to the Old Bailey to study cross-examination; and, if Lockwood’s view still holds good, he might attend the Chancery Courts to learn how not to re-examine. Birrell tells us that “once, in the Court of Chancery, a witness was asked, in cross-examination by an eminent Chancery leader, whether it was true that he had been convicted of perjury. The witness owned the soft impeachment, and the cross-examining counsel very promptly sat down. Then it became the duty of an equally eminent Chancery Q.C. to re-examine. ‘Yes,’ said he, ‘it is true you have been convicted of perjury. But tell me, have you not on many other occasions been accused of perjury, and been acquitted?’”
Most re-examination intending to rehabilitate the character of a witness is apt to make matters worse.
These stories of actual happenings, trivial in themselves, teach us the necessity of judgment in advocacy. And I pray the young advocate not to rejoice too merrily over the errors of judgment of his seniors or lament too grievously about his own. Bear in mind that by acknowledged error we may learn wisdom, and that the only illuminant for the lamp of judgment is the oil of experience.