Frederic DeWitt Wells

“ What that terror of a court of law comes from is difficult to analyze. There is the impressive majesty of the law; always about a court is the inspiring sense of something more than human. Even an empty court-room is not as other rooms. Like an empty theater there remains an atmosphere of glamour, of mystery, and yet equally true there remains a substantial, strong odor of crowds.
It is said that every theater retains its own peculiar smell. The scientific investigation of the psychology of odors is too subtle to be understandable. ”

“ It may be bold, manly, energetic, or soft and persuasive; it may appeal to sympathy or threaten with a battery of accumulated 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. ”

“ The fierce bright light that plays about a throne also makes the judge conspicuous. If he sneezes, if he coughs, if he takes a glass of water he is probably feverish and cross. If he keeps still he is going to sleep and not paying attention. If he gets up or sits down it is noted as indicative of how he is going to decide the case. Every movement is watched. The position of a judge is not enviable. He is the concrete object to which the evils of the court-room attach. To the popular mind he is the court, the law, the method of procedure, the source of all the technicalities, and the delays. ”

“ If a lawyer makes too many Latin quotations, the court thinks him affected. He must be simple, direct, and to the point at issue.
His art in presenting his case consists in drawing the picture of the facts so vividly that they will remain in the jurors' minds. Employing his imagination in forming the concept, he gets it across the rail to the jury by the fine gift of selecting words and incidents. No one, it is said, is ever convinced by argument, but any one can realize a visualized picture of words. ”

“ We are so shockingly frank and matter of fact, that we believe that the conventionality of pomp and circumstance have been too much regarded in courts and court procedure, that dignity is not accomplished by wearing a wig, knee breeches, or gowns of ermine and silk. It is consistent with a plain-spoken people to feel a contempt for state and symbols. Any attempt to return to the conventionalities of Europe is met by the contempt of a democracy. ”

“ 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. ”

“ In politics the judge is recognized as being a "dead one." After a few years on the bench only the exceptional man can fling off the shackles of his profession and get back into real life. He ceases from fighting, he is not energetic.
As a good judge he must be firm but restrained. He may not be too emphatic. Every inducement is toward making him lazy, fat, and easy. Before him everyone bows and waits for him to speak. He is the absolute boss within the four walls of his court-room. The only restraining influences are the reactions from the lawyers and spectators who are before him. ”

“ 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. ”

“ The court-room, his position of authority, the respect of the community, the human drama, the abstract and intangible demand of something above the actual awakens in the judge that passion for justice which is a quality almost divine. The man himself becomes patient, understanding, and humane. Nearly every man, no matter how small he may be at the beginning, rises to the responsibilities of his position. ”

“ The judge has heard many and he has little hope of their being of much interest. The jury make so much allowance for the witness being frightened on the stand and for the fact that she is in the hands of a clever lawyer, that they are not much impressed even if she contradicts herself or is proved mistaken. At best it is only a mistake, not a deliberate lie. The lawyer thinks he owes a moral obligation to his client and to himself to cross-examine. He is compelled to go on. There is a musty tradition of the law that a trial without cross-examination is not a proper trial. ”

“ The deliberations of the jury are always secret, their method of procedure is uncertain, and only the result of their deliberations appears in court. Nevertheless, it is only reasonable to speculate on how they have arrived at their verdict. Their verdict is the climax of the drama, the goal of the race, the award of victory. One side must win and the other be defeated. The psychology of the jury in reaching the verdict is the great mystery and the most intense interest of the trial. The judge does not know, the lawyers are unable to understand. ”

“ 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. ”

“ 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 opinions truthfully, 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. ”

“ 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. ”

“ On the one hand we see the rich woman, the millionaire art dealer, the financial pirate being leniently dealt with, on the other hand we see the little milliner, the Italian fruit vender, and the peddler receiving harsh sentences.
The sharp contrasts make good newspaper stories that are appealing and touching. What the public does not see is the whole picture of all the cases of alleged inequality that come into court. ”

“ 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." ”

“ 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. ”

“ People smile at the dignity of their courts and judges. The modern spirit is for greater frankness, simplicity, and directness.
If he is a sane and reasonably simple man the judge tries to do his duty according to the light that is in him. He knows some law, has seen a quantity of human nature and passions flowing before him. ”

“ 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. ”

“ 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. ”

“ 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 blustering, 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. ”

“ 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. ”

“ The modern court-room is only an adapted continuation of a medieval idea. On the raised dais under an unsanitary and dusty canopy of green plush sits the judge; instead of a sceptre he holds the gavel. ”

“ As the jury listen to the objections and exceptions they become more and more impatient. The restraining influence of the surroundings, the fact that they are impaneled in a box and that they are a part of, the drama keeps them silent. They cannot break out in revolt at the badgering of the witness. They can say nothing about the absurd objections that are interrupting the proceedings or the spiteful little exceptions that are being thrown in, but can only quietly store up an increasing mistrust of the whole method. ”