Motions on the Evidence in the Course of a Trial

In every trial there is sooner or later a clash over the admission of evidence. Prepare oneself as one will on both the substantive law of the case and on the law of evidence, there are still many aspects of such clashes that cannot be worked out in advance. One's presentation therefore has to be extemporaneous and calls for presence of mind in high degree. To be effective, one's presentation of the issue of fact or law or both must combine brevity and clarity. Wit and good humor are helpful, but there are many occasions that call for the exercise of all the willpower at counsel's command. If the question is crucial-and, of course, here we are not referring to the scores of useless objections that have a way of intruding themselves into the trials conducted by pettifoggers-one simply must win then and there, or go through the pains of a long trial on a wrong basis, often with disastrous results. Too much attention, therefore, cannot be paid to, and too much effort cannot be expended in preparation for these encounters. The rules are simple, though the execution can be difficult: be prepared, be clear, be as brief as possible, but be tenacious. Tie the particular question to the larger issues of the case, and fight-courteously, of course, but with all the resources of intellect and will at your command.

An even greater difficulty than those encountered over the admission of evidence will sooner or later overtake counsel in his courtroom work, and that is a clash with the court. Sooner or later, too, you will meet up with a judicial bully; a species never quite extinct. Some day a judge in the heat of courtroom controversy will tell you to sit down when you stand up to make an objection. The best advice in such circumstances is to decline to do it. On the contrary, you should stand on tiptoe just to look a little bit taller than ever. If counsel ever surrenders to a bullying judge, the jury will lose all respect for him. Questions from the bench to the witness on either direct or cross-examination should be treated precisely as if they came from opposing counsel. It is not pleasant to have to object to a question from the court and then to have the court rule on its own question, but if the question is improper it is counsel's duty to do so, no matter what the immediate consequences may be. Ordinarily the jury will understand, and in any event you will keep your self-respect, which is indispensable.


There probably never has been an advocate who equaled F.E. Smith, later Lord Chancellor Birkenhead, in the art of dealing with either the court or opposing counsel. One cannot refrain from quoting three samples of his skill: first, in disposing of an adversary, second, in setting straight a talkative but not unfriendly judge, and third, in putting in his proper place an unfriendly jurist. They are all masterpieces of forensic give-and-take that will be hard to match:

Despite his reputation as a witty and ruthless cross-examiner, Smith made it a rule never to score off counsel on the other side except in self-defense. If the other barrister did not interfere with him, Smith left him alone. But if the other barrister began a personal conflict, he regretted it. On one occasion Smith found himself opposed by the late Sir Patrick Rose-Innes, a florid and somewhat pompous K.C., who had taken silk after forty years at the Junior Bar. Smith, in his speech to the jury, referred to Innes' client as "this old scoundrel." "I determined," Innes related afterwards to a friend, "to shut F.E. up. I rose, and F.E. sat down. M'Lud,' I said to the judge, 'my client is a merchant in the city of London. I submit that it is most improper to refer to him as "this old scoundrel." 'Smith got up again when I sat down, and addressing the jury again, said: 'As I was saying, this fraudulent old scoundrel . . .' I didn't dare to interrupt him again, because I didn't know what adjective would come next."

Another good story told of him concerns his opening a case before Mr. Justice Ridley, of whom it may be said that, whatever his merits, he is not the most judicial person who has adorned the Bench. When Smith rose to address the jury, the judge made this remarkable observation: "Mr. Smith. I have read the pleadings, and I do not think much of your case." "Indeed, m'Lud, I'm sorry to hear that" was the instant reply, "but your Lordship will find that the more you hear it, the more it will grow on you!" The judge burst into a roar of laughter, and Smith, duly addressing the jury, won his case.

He appeared one day for a tramway company sued for damages for injuries caused to a boy who had been run over. The plaintiff's counsel pitifully explained that the boy had gone blind as; result .of the accident. "Blind? Poor boy!" said the judge. Judge Willis, much affected; "stand him on a chair, and let the jury see him!" This extraordinary unjudicial suggestion roused Smith's wrath. "Perhaps," he suggested icily, "Your Honor would like to pass him round the jury-box." "That is a most improper observation," said the judge. "It was provoked," retorted Smith, "by a most improper suggestion." The judge was furious. "Mr. Smith," he cried, "you remind me of a saying by Bacon, the great Bacon, that 'youth and discretion are ill-wedded companions." ' Now Smith had had up his sleeve for years one of Bacon's sayings, which he had often wanted to quote while never dreaming that so perfect an opportunity would be afforded him. He remembered it. "You remind me," he said, "of a saying by Bacon, the great Bacon, that 'a much-talking judge is like an ill-tuned cymbal." "You are offensive, sir!" cried the judge. "We both are," Smith replied; "the difference is that I'm trying to be, and you can't help it. I who have been listened to with respect by the highest tribunal in the land am not going to be browbeaten by a garrulous old county court judge."

One must learn not to be impatient and also to laugh when the tables are turned against him. This is well illustrated in an incident which the late Emory R. Buckner, a great trial lawyer, told at his own expense:

I remember when offering a bill of lading in a prosecution . . . it was objected to because I described the paper as a bill of lading, whereas the paper spoke for itself; I, impatient and not waiting as I should have for a ruling, promptly broke in with "Why, your Honor. I have a perfect right to describe generally the paper I am introducing, otherwise the jury might think it is a barn door." My opponent immediately replied, "I beg to disagree with the learned District Attorney, as I am sure the jury will consider the paper a darn bore." This caused a laugh at my expense and diverted the mind of the jury from the main facts which was altogether a mistake. The objection was overruled.''

One more example must suffice. Mr. A and Mr. B were arguing a case in which Mr. B appeared for Mr. C. At the end of Mr. B's summation one of Mr. C's partners arose and made the extraordinary statement that when the case came into their office he and his young associates had studied it and had become convinced of" its merits. Then they referred it to Mr. C himself, who likewise reached the same conclusion, and Mr. C would be trying it himself were he not engaged elsewhere. Mr. A arose and then instead of objecting, as he well might have to this extraordinary statement on the ground that it violated the Canons of Professional Ethics, contented himself by repeating in mock seriousness the offensive remarks, adding that when he heard them he thought he had better retire from the case, but suddenly he recalled that he had learned in his college days that sometimes even Homer nods. These few words, uttered with impish gravity, made Mr. C and all the members of his law firm seem quite ridiculous, as indeed they deserved to.

It is these unexpected encounters that give zest to a trial. Men of great wit like Joseph II. Choate have a great advantage. It is a question of wondering if anyone today could have matched him when there were women on the jury. He was once asked if he had another life to lead what he would like to be and he instantly replied, "Mrs. Choate's second husband." His wit was always effortless, an outpouring of a lively mind. There can be no doubt but that a large part of the success of the masters of the forensic arena is due to the fact, not that they have keen minds, but that they know the rules of the game so thoroughly that they never have to worry about what is to be done next. All they have to do is to keep their minds on the play and remember the power of brevity and clarity, of wit and humor, of tenacity and courage.

Training for Advocacy

In analyzing the component parts of the several types of forensic persuasion, we have to do what the botanist does when he pulls apart a beautiful flower in order to describe it scientifically. No analysis or description of forensic address or of a flower can catch the full spirit of the living thing. A knowledge of its component parts, however, is an indispensable preliminary to knowing the living whole. We progress best, moreover, if we know the science before we attempt to learn the art. How does one go about being an advocate?

Though styles may change, the prerequisites for advocacy do not-high ideals of personal conduct, the development of all of one's faculties to a state of coordinated perfection, an abiding interest in one's fellow man and in the solution of the great problems of the day, a willingness to accept the call to public service and to go through the arduous work of preparation therefore for years before the call comes, an appreciation of the great thoughts and aspirations of the past and the present, and of course practice, practice, and then more practice.