Year: 1859

The courts ANA tne Lawyers.


A bill has Just been introduced into the
House of Representatives. which requires the
charge Of the Court, under all circumstances, to
be reduced to writing and read to the jury
before it is passed, it ought to be amended by
adding provision to protect parties against the
improper and unfcir practices of attorneys. This
is important, as the parties suffer more from the
untairness ofattorneyS than OF courts.


In every trial in a court Of justice there
should be perfect impartiality in the niodegp,o.
cee,ling Every mind must assent to this prop
osition. Neither party should have any adyan-
tage arising from the manner Of conducting the
trial.


Now let us sec whether attorneys do not a.
buse the present mode OF proceeding, obtain un-
fair advantages by it, and often deprive honest
men of their rights.


The present rule is, that the party holding
the affirmative has the opening and closing argu-
ment, and the rule is obviously right 1t
would work no injury if it was not abused; in
other words, if obeyed in letter and spirit.


What is contemplated by the rule? Obvious
ly that the party holding the affirmative, shall
in the opening fully present his case, and that
the opening argument shall be the main argu-
ment in his behalf so that the adverse party
may be fully informed ofthe claim Of the plain
tiff, and the grounds upon which he rests it.
The closing argument should be confined TO an.
swering the defendant and should not advance
new propositions or new views of the case. If
the pract:te conformed to this explanation of
the rule, there would be no unfairnesss and no
advantage in the mode Of proceeding.


There are many attorneys who carry out in
their practice the intention of the rule. They


look upon judicial proceedings, as means ofas-
certaiDlng and establishing right, and regard it
violation their oaths, to procure a verdict by
unfair means. So far as they are concerned,
the present rule is sufficient indeed no wrong
would be done by thcm in the absence of any
rule. There are Others who look upon success as
gilmore consequence than the establishment Of
right; who will pervert testimony, and miSlead
the coult if they can, when they know they
cannot be followed and exposed by opposing
counsel This latter class needs the attention
OF the legislature.


In most trials, there are two lawyers employ
ed on each side. Everything is conducted with
fairness, rat least no advantage is given to eth.
er side, until the testimony is closed. Then
the junior of the plaintiffs attorneys opens the
case to the jury. He states some Of the obvi-
GUS grounds on which recovery is asked claims
generally that the plaintiffs testimony is all
reliable, and the defendants inacurate; then
splurges and scatters until no one can make head
or tail Of the case. In this process of be logging
himself and the jury, the attorney occupies from
ttoenty to thirty minutes. P" .".37a7 e".sa


The attorneys for the defendant then present
their side of the case. They know nothing of
what the plaintiff relies upon, except as they
may anticipate the points and the views Of the
testimony on which verdict will be claimed
This no one can do so as to meet fully the clo-
sing argument. The opening argument does not
aid them at all. 1t rather misleads, than aids
them. They are there foie fighting in the dark,
and the darkness is produced by the unfair prac
tice of the plar tif's attorneys. Under these
disadvantages, they present the defendants case
as best they can. They are defending against
an attack which has not yet been made. They
are answering what las never been said.


While the attorneys for the defendant are
thus embarrassed, the principal counsel for the
plaintiff sits by watching them, and smiling
over his advantage, and contriving modes for
testimony and presenting the case in
now lights which have not been suggested or an
tcipated. When they close the bland and smil-
ing Mr.. Amtidexter rises and pretaces his ar
gunent with the remark that his colleague has
SO fully and ably presented the case in the open
ing, that it hardly seems necessary to say any
thing, and he will content himselfwith q very
few brief remarks. Then will follow protesta-
tioGs OF his d S Inclination to mislead the jury,
and Of his fairness in argument, and begging
of the jury to correctany errors he may fall in
to. CIn this part of the argument he reminds
the hcarer Of a woman going through the street
and proclaiming her Chastity He will then
turn the attention of the jury to the beginning of
the controversy and trace the stream of events
down to the commencement Of the action, argue
every point, pervert the testimony, torture its
meaning by shading it, Interweave facts which
are not proved, maintain plausible but unsound
positions, because there is no one to follow him;
make appeals to the predjudicos Of a jury; and,
in short, all the arts and tricks of which such
men are so fruitful, to obtain verdict whether
right or wrong. Notwithstanding his state
ment that the cause had been luninously argued
by his colleague, he generally employs about tho
hours, sometimes three or tov in closing


Now, every attorney in the Legislature, and
every man conversant with legal proceedings,
recognizes the above as true representation Of
the trial of many cases. An AmbideAter or a
Dodson & Fogs may be found in many of the
counties ofthe State, and when either has the
close in an argument there is no security that
right and truth will prevail.


This practice is not tolerated in any other
discussions. In legislative bodies the members
are never denied the right to answer new argu.
nlents or new positions In political debates it
is generally arranged, so that the party opening
shall be allowed an hour and half, the other
party two hours, and then the first re plies in
half an hour. II more time is allowed, this pro-
portion is observed The unfairness which is
permitted in court is never tolerated IN religious
literary or political discussions. When the lives
and property of men are at stake, one party is
given an advantage, which is not tolerated in
a literary or political discussion involving neth.
er life, limb, or property.


To this every member must assent; but
what is the remedy? To my mind this ia
very obvious Several modes may be adopted
The evil would be partially remcded by provid.
ing that but one attorney should argue the case
on either side. A more effec:ual remedy would
be to provide that the closing argument Shall oc.
cupy only one third the time of tho opening. -
better rule still would be to specify the
time which the parties may occupy; giving
to each party two hours, and only a half an
hour in the close; with authority to the Court
10 We more time in given case if it shall be ex
pedient. Or authority might be given to the
court in its discretion, to permit the plaintiff re-
ply 10 the additional matter introduced into the
closing Argument. .4s s.i.E ~.


Every one knows that long speeches is the
pest Of our courts They are restricted in the
Supreme Court Of the United States. The priv
ilege Of argument is abused unless restricted,
and therefore j: is best to specify the time which
shall be allowed to each party,


If it is thought best to throw around the
Courts additional rules and regulations which
will secure impartiality and fairness on their