The Man in Court

by Frederic DeWitt Wells

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 documents. 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 subp[oe]naing 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 title 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 class 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 class. There is a natural class 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.