A thousand cases of the same sort might be suggested, where an old practitioner, though on his guard, (as he must be against one whom he has provoked to retaliation,) would, from a mere defect of memory, or the established influence of vicious practice, fall into blunders which would place him at the mercy of an adversary who has his learning more fresh about him. How many, for example, will remember where to stop the defence, in drawing a plea in abatement, or to the jurisdiction of the court? How many ever think of the necessity of entitling their pleadings? How many know how to take advantage of this defect, even when it occurs to them?
But though you should escape the attack of any illiberal practitioner, yet cases will occur, in which the nature of the controversy will require great accuracy in drawing out the pleadings to a precise and well defined issue. In such cases, no disposition to mutual or self-indulgence in the bar, can prevent the necessity of pleading correctly. In such cases, opportunities will be offered you of reciprocating the kindness of your seniors, by lending them the aid of your pen, and assisting them to recall forgotten technicalities. The value of such aids will raise you in their esteem, establish you in their regard, and ensure you their good offices. Out of such circumstances grow alliances which are strength and honor to both parties. A well read young lawyer, associated with one of less learning but more experience, sagacious, vigilant, and versed in human nature and the established though irregular routine of business, is like the lame man mounted on the shoulders of the blind. Their powers are not merely united; they are reciprocally multiplied; they fall together habitually. Their joint success commands confidence and practice, and finally the fruit of all their triumphs enures to the benefit of the survivor.
But there is another point of view in which an intimate knowledge of the rules and principles of pleading is of permanent advantage, notwithstanding all the looseness which our practitioners habitually indulge. It has been well said, that "the record is the lock and key of the law." You will often find that without this interpreter, the ancient books are sealed to you. It is by this alone that you will sometimes be able to discover the point really decided. The concise notes of the old reporters taken for the use of those already familiar with the great principles and leading maxims of the science of pleading, are perfectly unintelligible to the mere sciolist.
It often happens too, that a lawyer undertakes a suit or defence which cannot be sustained, and thus involves his client in unnecessary expense. Such blunders would often be avoided by a ready familiarity with the science of pleading. The attorney has but to ask himself, "how shall I frame the declaration or plea?" and the answer shows him the impossibility of making good his case. He advises accordingly; and, though the advice be at the moment unpalatable, it will be afterwards remembered with gratitude and respect. No reproach is keener or more just, than that of a client who has been decoyed into expensive litigation by the rapacity of the disingenuous, or the blunders of the unskilful. A place among those whose advice may be relied on, is the safest and most honorable at the bar. It cannot be lost without some great error. It gives a lien on posterity. The father hands down to the son a respect for his constant and faithful adviser. Friend communicates it to friend; neighbor to neighbor. The showy qualities which are the gift of nature to others, are neutralized by it. The plain man, destitute of such endowments, becomes the patron, the dispenser of business and benefits to him whose eloquence shakes the court—commands his gratitude, secures his friendship, and, on all admissible occasions, makes this envied talent his own.
There is another subject on which an ever ready preparation is even more indispensable than on the subject of pleading. I mean that of evidence. On this, of necessity, we have touched but lightly. It would be properly, one of the principal subjects of a second course. To stop short between a cursory notice of it and a thorough investigation, such as we have not had time to make, might mislead the student. He might overrate his knowledge if he found himself as well acquainted with that as with other branches of the law; and supposing he had enough, might venture to the bar without acquiring more. But this is a topic of which a superficial knowledge will not do, even at the beginning. It must be understood perfectly; it must be understood distinctly; it must be wrought into the very texture of the mind, and ever present there. The occasions on which this knowledge is wanted, can rarely be anticipated. They start up like fire from the ground, and he whose information is not various, exact and ready, is liable to be disconcerted, embarrassed and disgraced. They often occur in those apparently plain cases, which the partiality of friends sometimes intrusts to the sole management of an untried lawyer. To be baffled, through want of skill in such cases, is to injure those who have sought to serve you. It mortifies and discourages your friends, and what is worse, it disheartens you.
You will be often employed too, to set aside an office judgment, and plead, pro forma, in a case admitting of no defence on the merits. In such a case, where nothing is expected, your adversary, however able, may be unprepared through some neglect of his client. Relying on your rawness and want of skill, he may venture to trial. You strike at the gap in his armor with the dexterity of a veteran; he is nonsuited, and your success is the immediate source of honor and emolument. You find yourself gazed at, followed, and employed by those who never saw you before, and who know nothing of you but that, in a plain case, admitting of no meritorious defence, you had just baffled one of the first men at the bar. The consequence is, you are presently engaged in business of more consequence, and if you acquit yourself well in it, your practice is established and your fortune made.
To these two subjects then, of pleading and evidence, I advise you to apply so much attention as to make you feel sure that you understand them thoroughly. Having done this, let them be again revised immediately before you go to the bar, and let them, in all the early stages of your practice, be the constant objects of your attention and study. You can never understand them too well, and your knowledge of the last especially, can never be too ready. It is by ignorance on these topics, that men lose causes they ought to gain. Such defeats are disgraceful and ruinous. When the right of the case is against you, it is your misfortune; but you are never blamed. But to be defeated with law and fact both on your side, is to be weighed in the balance and found wanting.
And here let me say a word of the cases which you lose, because the law is against you. For these there is one short rule. "Though you lose your case, do not lose your temper." It is easy for a young man to argue himself into a conviction of the justice of his client's case; but if you do not make others see it too, you must learn to distrust that conviction. Remember that the argument which has convinced you, without convincing others, came to you through the favorable medium of self-love. A young man who doubts the justice of his first cause just after having argued it, must be either very dull, or very philosophical, or the case must have been utterly desperate. On the other hand, remember that the judge is rarely exposed to any undue bias. He can scarcely ever have a motive to do wrong; and he is a man of tried integrity, practised to resist and overcome the influence of such motives. Then remember that he is old, learned and experienced, selected from among his fellows for his endowments; and thus learn to acquiesce in his decisions with that cheerful complacency which so well becomes a young man, distrustful, as all young men should be, of his own judgment.
Above all things, never stimulate the dissatisfaction of your client. You tell him he is wronged. He believes you. You blame the judge. He divides the blame between the judge and you. Was the judge prejudiced against you? Do not say so, or men will not employ you to practice before him. Was he ignorant? was he dull? was he inattentive? You had the same chance to awaken his attention, to rouse his dulness, to enlighten his ignorance, as your adversary. If you did not succeed, another might, and your client will try another the next time. Let him believe, if he can bring himself to do so, that he only failed because the law was against him, and there is nothing to prevent his trying you again. Better so, than to gratify him for the moment by catering to his evil passions, at the risque of injustice to another, and injury to yourself. Apart too from the injustice, prudence forbids that any blow be struck at men in power, which is not well aimed, and sure to take effect. He that throws up stones, endangers his own head. "He that spits against the wind," said Dr. Franklin, "spits in his own face."
There is another consideration to be regarded here. The profession is a unit. Its respectability depends on that of the head. It is an arch, of which the bench is the key-stone. Let them who should uphold it, withdraw their support, and all will fall together. Would you degrade the seat to which you aspire? Would you dim the lustre of that honor, which is to be the brightest reward of a life spent in the labors of your profession? Hardly more unwise is the youth, who would revoke the prerogatives of age, forgetting that he shall himself be old.