The Man in Court

by Frederic DeWitt Wells

"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 passions 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 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. 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 circumstances, 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.