Ethics in Service - William H. Taft

I don't mean to say that lawyers do not differ in the force of their statements, in their logical faculty, in their method of arranging arguments, in their fluency and in the cogency with which they present the cause of their respective clients. Of course the man who is fortunate enough to engage the abler lawyer enjoys the advantage of those gifts with which nature has endowed his representative, but that element of inequality can hardly be eliminated from the administration of justice. It has more weight in a jury trial than it has before a court, for the lawyers before a court are matching their acuteness and learning not alone with the counsel for the other side, but with the cold scrutiny of a calm, intellectual and judicial mind, trained to consider argument, and experienced in the elimination of the irrelevant, the emotional and the illogical.

The jury system, though somewhat crude and not always certain, has advantages that outweigh its possibility of injustice in the judicial system of a free government among a free people. It is important that the people shall have confidence in the courts, and it is important that they shall feel that they may themselves be a part of the judicial machinery. The value of popular confidence in the verdict of a jury selected at random from a community is great enough to offset any tendency to error that may at times arise from the undue influence of a jury advocate upholding one side of the controversy before them. If the jury is misled by the histrionic eloquence of counsel so that it clearly violates justice in its verdict, the court may always set aside its decision and give a new trial. Moreover, in any properly adjusted system, the judge should be able to clear the atmosphere of any false emotion that counsel may have created. He can remind the jury in his charge that they are judges, who may not indulge their emotions or their prejudices. He should follow closely the argument of counsel to the jury in order that his charge may clear up the evidence by inviting the attention of the jury to the weakness of proof at critical points of the cause, or by pointing out either the bias of witnesses or their opportunity or lack of it for observation, thereby eliminating those phases of the controversy that the earnestness of counsel may have seized upon to divert the attention of the jury from the real issue.

I have recently heard an arraignment of our present judicial system in the trial of causes by a prominent, able and experienced member of the Boston Bar. (I am glad to call him a friend. I value him highly as such.) He ascribes what he calls the growing lack of confidence in the justice and equity of litigation in the courts to the fundamental error in their procedure. He feels that the procedure now in vogue authorizes and in fact requires counsel to withhold facts from the court which would help the cause of justice if they were brought out by his own statement. To remedy this he suggests that all counsel should be compelled to disclose any facts communicated to them by their clients which would require a decision of the case against the clients. He contends further that the rules of procedure, which exclude hearsay evidence, and prevent the jury from hearing many facts which business men regard as important evidence, make it difficult to reach the truth which is essential to justice.

I set out this view as a possible basis for a discussion of the grounds for popular criticism of the courts. To require the counsel to disclose the confidential communications of his client to the very court and jury which are to pass on the issue which he is making, would end forever the possibility of any useful relation between lawyer and client. It is essential for the proper presentation of the client's cause that he should be able to talk freely with his counsel without fear of disclosure. This has always been recognized and has acted as a most salutary restriction on the conduct of counsel. No litigants, or intending litigants, would employ counsel if the latter were to assume the duty of extracting from their clients all their innermost thoughts with a view to revealing them to the court. The useful function of lawyers is not only to conduct litigation but to avoid it, where possible, by advising settlement or withholding suit. Thus, any rule that interfered with the complete disclosure of the client's inmost thoughts on the issue he presents would seriously obstruct the peace that is gained for society by the compromises which the counsel is able to advise.

The objection to the exclusion of hearsay evidence is equally unfounded. Its uses are said to be threefold, to convince in affairs of the world, to serve as the basis of action for business men, and to prevent opportunity for false witness. Yet it is not admissible in a court of justice to prove or disprove either a cause or a defence. The rules of evidence have been worked out by centuries of experience of courts in jury trials, and are admirably adapted to avoid the danger of error as to fact. I fully agree that in American courts the trial judges have not been entrusted with as wide discretion in the matter of admitting or rejecting evidence as they should have, and judgments have been reversed on technical errors in admitting testimony which should have been affirmed. As time goes on, however, the rule against hearsay evidence, instead of losing its force, is demonstrating its usefulness. The error and injustice that are committed in the public press by inaccurate, garbled and sometimes false statements of facts are increased in their injurious effect by the wider publication that newspapers have today, and the requirement that when a fact is to be proven in court it should be proven by those who have a personal knowledge of it, is one of the most wholesome and searching tests of truth that the whole range of adjective law furnishes. The opportunity for cross-examination, for finding out the bias of the witness, the advantage or disadvantage of his point of observation, the accuracy or inaccuracy in his recollection of the details of what he saw, are all means of reaching the real truth that the introduction of hearsay evidence would entirely exclude.

It is now more than fifteen years since this country was following with bated breath the judicial investigation of the charges against Captain Dreyfus for treason in having sold secrets of the French War Office to Germany. Under the civil law procedure, there is little, if any, limitation upon the kind of evidence which can be introduced to sustain the issue on either side, and the rule against hearsay evidence does not prevail. The shock given to the whole community of the United States by the character of evidence received to help the court determine the Dreyfus issue, was itself enough to show that the confidence of the public in the justice of the rule against hearsay evidence had grown rather than diminished with years.

Yet I am far from saying that we may not have improvement in our laws concerning testimony in court. The protection of those accused of crime contained in some of our constitutional restrictions may be too great. The charge against the administration of justice in the present system is that it is nothing but a game of wits, of cunning, and of concealment, promoted by the rules of procedure. I think this characterization is most unjust and most unwise because it aids the attack on a valuable and indispensable institution without suggesting any real security for such evils and defects as there are. An experience of many years in the trial of all sorts of causes as lawyer and judge and in framing a judicial system convinces me that the present method of hearing causes is correct. The enthusiastic advocacy of counsel when they are properly restrained as above suggested, and the rules of evidence adapted to winnowing out the false from the true, are admirably adapted to bringing about right results.

It is also asked whether members of the Bar live up to these rules restraining their enthusiasm and limiting their proper conduct in the advocacy of their clients' causes. One can reply that counsel differ in that regard, but that generally such rules are fairly well observed. The earnestness of advocacy often blinds them to the proprieties and the requirements of candor and fairness. They fall into the same errors that their clients do, though with a better knowledge of their duties in this regard. They share what has been characteristic of our entire people in the last two decades. The minds of the great majority have been focused on business success, on the chase for the dollar, where success seems to have justified some departure from the strict line of propriety or fairness, so long as it has not brought on criminal prosecution or public denunciation.

More than this, the tendency of legislatures, too often controlled by lawyers engaged in active practice, has been to distrust judges and to take away from them the power to control in the court room, as they do in the English and Federal courts. This has had a tendency to transfer to counsel greater discretion in respect to their conduct of cases and greater opportunity to depart from ethical rules with impunity in the somewhat reckless spirit of the times. The hampered power of the court to prevent the misconduct of counsel in many western states has not been conducive to certainty of justice nor has it been of a character to strengthen public confidence in just results. We find the bitterest attacks upon the administration of justice in those jurisdictions in which the people and the legislatures have themselves laid the foundation for the very abuses they subsequently criticise by taking away the power of the judge.