X
No picture of Kern would be complete which did not delineate him in his professional character. While actively engaged in political activities from the hour of his admission to the bar until his election to the senate in 1911, he never abandoned the practice of the law, or lost his love for the profession. No one knew him more intimately in this rôle than Leon O. Bailey, now engaged in the practice with former United States Senator Charles A. Towne in New York City, with whom he was associated during the first ten years of his residence in Indianapolis. It will be observed that in the portrait presented in the analysis of Mr. Bailey there is nothing that does not harmonize in a general way with the pictures we have had of the Man, the Companion, the Campaigner, and the Student:
“‘Was Kern a great lawyer?’ I would not justly record my own knowledge of the man’s mental qualities, or give response to my own judgment, did I not answer this query in the affirmative.
“As a boy he possessed a thirst for knowledge and certainly up to the time of my intimate association with him terminated, was one of the most consistent, energetic and untiring students within my knowledge of men. He was logical, of retentive memory, a voracious reader of good literature, always delving and digging into his law books, with which he was ever surrounded, and thorough to the last word in his analysis of questions submitted for his investigation. It is very easy to see that with his mental habits above mentioned, when combined with the qualities of humanity and personal magnetism for which the world best knew him, Kern was, in the very nature of things, a great lawyer. It was my extreme good fortune, during my twenty-odd years in Indiana, to have enjoyed an intimate acquaintance with such great lawyers as Thomas A. Hendricks (in whose office I was a student for three years), Major Jonathan W. Gordon, Daniel W. Voorhees, David Turpie, Joseph E. McDonald, Conrad Baker, Byron K. Elliott, Addison C. Harris, William A. Ketcham, all judges of the Supreme Courts, and scores of brilliant members of the Indiana bar; and it is in comparison with these men that I rate Kern well up in the list. He was forceful before a jury, not only because of his eloquence and pleasing personality, but because of the candid and scrupulous manner with which he explained every principle and applied every fact of importance to be taken into consideration. His presentation, always manifestly trustworthy, carried conviction that always follows a logical and consistent development of the truth. Kern never could or did resort to tricks or pretense of any sort, but in every important battle met his enemy in the open and planted his batteries upon the rock foundation of truth and of the legal principles fairly applicable to the facts established. Like Oscar B. Hord, of the great firm of Baker, Hord and Hendricks, he was one of the most adroit cross-examiners at the Indiana bar. His skill in this particular constituted one of his most potent weapons in the court room. One of his rules was: ‘We have little to fear from our friends in a lawsuit. The danger usually lies behind the armor mask of falsehood or deception worn by the enemy. If this can be destroyed or penetrated we are safe.’ His method of handling an unfriendly or unwilling, timid or refractory witness was an interesting study. In this his quick and accurate judgment of men was of the greatest assistance. A perfect knowledge of his case, the exact line to be developed, and danger points to be avoided, were the first essentials, and absolute self poise the second. He never prejudiced a jury by an attitude of brutality toward an adverse witness. His affability at the beginning was usually rewarded with important admissions, then came the rapid-fire questions, a method commonly adopted by him, which in most instances brought confusion and often anger to the witness. Kern’s experience lead him to assert that ‘a witness that loses his temper loses his influence.’ He did not include in this rule those whose resentment was justly aroused by the ill treatment of counsel. Kern regarded this feature of his trial work as a distinct art and almost felt contempt for a lawyer who failed to appreciate its great value or possess the necessary skill for obtaining the best results. So much of interest did he feel in, and real importance attach to, this question that he often spoke of his intention, at some time, of giving his observations to the profession in a suitable book to be entitled ‘The Ideal Cross-Examiner.’ Master as he was of the subject, it is unfortunate he never found time to put this purpose, which would have been a distinct pleasure to him, into execution.
“I recall a very amusing instance of Kern’s cleverness in the cross-examination of witnesses, which I may be excused for relating. It well demonstrates his ability for quickly and accurately taking the measurement of a witness. We were appearing for the defendant in a damage suit for personal injuries. While having reason to know that the claim of the plaintiff was based on fraud, the truth being difficult of establishment, we realized our client’s danger. The extent and nature of the plaintiff’s injury had been elaborately and with much exaggeration, presented by a bombastic and pretentious doctor, whose use of big words and highly technical scientific terms, with little knowledge on his part as to their meaning, were poured out in a flood before the jury. The appearance of the witness, nevertheless, was impressive, and his statements, freed from the slightest appearance of doubt, were calculated to convince a jury not only of the speaker’s wisdom, but the complete reliability of the conclusions he had reached. We both knew the witness personally and were well aware of his real status among the members of his profession. We not only knew that he was a ‘quack,’ and to a large extent illiterate despite his bold assurance, but were convinced that he was deliberately attempting to establish the plaintiff’s claim by falsehood. How to best show the character of this man to the jury was Kern’s purpose, quickly formed. He must wait until the ‘Doctor’ should be turned over for cross-examination. Mr. Kern began with a few flattering observations calculated to throw the witness off his guard and then, as if to further exploit the scholarly attainments of the witness (knowing full well he possessed none), the examiner quickly asked:
“Doctor, in describing the sphincter muscles, please explain to the court and jury the difference, if any, between the functions and location in the human body of the “oribucularis oris” and the “orbicularis ani.”
“The doctor, bewildered and as far at sea as a mortal can ever be, overlooking the possibility of any trap, but thinking only of keeping up his front to the jury, replied in his most affable and composed manner:
“‘Practically none, Mr. Kern, practically none. The terms are used quite interchangeably.’
“That question and answer removed the mask and was the end of the plaintiff’s case. The doctor’s usefulness had been destroyed. As the real meaning of the answer reached the presiding judge and filtered through the minds of the jury, the dignity of the court for the time was wholly lost. In thus exposing the ignorance and presumption of his opponent’s chief witness, Kern had employed a means not only expressive of his contempt for so great an impostor, but one also gratifying to his own sense of humor.
“He was unselfish and never employed money as a standard in measuring the ability, honor or integrity of men. He earned good fees, but was never able to save, and like many public men of his type and greatness, was seldom free from the worry and anxiety of debt. Had his splendid talents and untiring energies been dominated by greed or open to employment by class interests for corrupt purposes, Kern might have amassed a fortune, instead of ending his life a poor man, but such opportunities never attracted him and his contempt for those who would lend their influence to base purposes because of the profit involved was well known to his friends. Much of his time was devoted without pay to the advancement of party, and this, together with his professional work, made for him a full and busy life. It was a clean, open and honorable one. He threw his entire soul into every engagement and much of his best energies were devoted to the interest of those who had grievances to remedy, but little or no money for compensation. If worthy, and possessing a just cause, this made little difference to Kern, and I have heard him say: ‘I am too busy with the things I believe in and am doing for the betterment of mankind to follow the sordid schemes of the mere money-grabbers, and I am happier that it is so.’ How true this philosophy of Kern, a man developed from the people, and yet how difficult for most men to understand.”