Honesty with the public presents a more difficult and uncertain question. What does it require? In criminal law, for instance, many contend that duty to the client surpasses all obligations to the public and justifies counsel in resorting to every means or device, substantial or technical, to clear that client, even though he knows him to be guilty; while others insist that a lawyer should never forget that he is a citizen, and owes a primary duty to the public; that while he may make every substantial defense and present his client's conduct as fully as is consistent with fairness and truth, yet he is not justified in resorting to any technicality. The question is asked, Should he abandon his client's case if, having undertaken it in belief of his innocence, he finds from the developments of the trial that he is in fact guilty? The conduct of the two gentlemen, leaders of the bar in Buffalo, who were appointed by the court to defend the assassin of McKinley, is referred to as illustrating the measure of a counsel's duty to his client. They produced every witness whom he desired, drew out all the facts of the homicide, and then fairly stated the case to the jury. It has been said that Reverdy Johnson, who was a leader of the American bar, employed to defend parties in South Carolina charged with cruelty to negroes, was so shocked by the revelations of the conduct of his clients that in the midst of the trial he abandoned the case and left it to the care of junior counsel. It must be confessed that there is on the part of many engaged in criminal practice a desire to succeed even at the expense of justice—delaying the trial by all the strategy known to the profession until feeling may be supposed to have died out, some of the witnesses have disappeared or their memories become uncertain, striving to get a friendly juror on the panel, seeking in all possible ways to cast some technical error into the trial in order that, if the verdict and judgment be against their client, a reversal may be secured in an appellate court; in short, so conducting the whole trial that justice becomes weary and the guilty escapes. Anything for the sake of acquittal is their motto, and a victory however gained is heralded as their ability.
Much has been said and many articles written in the effort to formulate some rule by which the lawyer shall be limited and guided in his actions in behalf of his client. Can any better rule be given than to be ever thoroughly loyal to honor and honesty? He who is honest with himself is honest with others.
This above all; to thine own self be true,
And it must follow, as the night the day,
Thou canst not then be false to any man.
No lawyer is called upon to do any dishonest or dishonorable thing for his client. If the client demands it, declination is imperative, and if the demand is persisted in, termination of employment is equally imperative. Of course lawyers are subject to all the limitations and weaknesses of human nature, and profitable employment often clouds the vision. And here is where shines one characteristic of the ideal lawyer. His vision is not blinded. He looks above the golden calf and the shouting crowd, and ever sees on the lofty summits of Sinai the tables of stone chiseled with imperishable truth by the finger of God.
Were I called upon to name the one element most important in the make-up of the ideal lawyer, I should unhesitatingly say, Character. And wisely in the economy of life that is also the one element most essential to success. Brains without character may display a brilliancy of achievement. But pyrotechnics are short-lived. That which endures, upon which all rely, is Character. The lawyer who has it has the confidence of the judge and jury; he who has it not is suspected from the moment of his appearance. A story of Abraham Lincoln is an illustration: he was appointed to defend one charged with murder. The crime was a brutal one; the evidence entirely circumstantial; the accused a stranger. Feeling was high and against the friendless defendant. On the trial Lincoln drew from the witnesses full statements of what they saw and knew. There was no effort to confuse, no attempt to place before the jury the facts other than they were. In the argument, after calling attention to the fact that there was no direct testimony, Lincoln reviewed the circumstances, and after conceding that this and that seemed to point to the defendant's guilt, closed by saying that he had reflected much on the case, and while it seemed probable that defendant was guilty, he was not sure; and looking the jury straight in the face said, "Are you?" The defendant was acquitted and afterwards the real criminal was detected and punished. How different would have been the conduct of many lawyers. Some would have striven to lead the judge into technical errors, with a view to an appeal to a higher court. Others would have become hoarse in denunciation of witnesses, decrying the lack of positive testimony and the marvelous virtue of a reasonable doubt. The simple, straightforward way of Lincoln, backed by the confidence of the jury, won. Let me give another illustration coming within my own observation: A lawyer not brilliant but reasonably well informed was prosecuting attorney. He had the confidence of the community. A brilliant and eloquent lawyer was counsel for nearly all the accused in important criminal cases. At the close of a (to him) very disastrous term he said in disgust, "What is the use of my trying to defend? I make an absolutely clear and convincing argument, and after I am through, the prosecuting attorney gets up, and stating a few facts says these show that the defendant is guilty, and the jury go out, and in a few minutes bring in a verdict of guilty, and all because they believe the prosecuting attorney knows and would not ask them to convict unless the defendant was in fact guilty."
But let me pass on. While the ideal lawyer must be an honest man, the converse is not true. An honest man will not always make an ideal lawyer. He must be a constant student. The law reaches in every direction, touching every branch of knowledge and life. The doctor may be sued for negligence or malpractice, the editor be called upon to answer the charge of libel; the inventor may sue or be sued for infringement, the writer charge or be charged with a violation of the law of copyright. One claiming to be an artist may be brought into court to show whether he is an artist or a mere copyist. Every transaction of the merchant or manufacturer may be the subject of litigation. Even the preacher may be called upon to answer a charge of heresy. The alleged criminal's sole defense may be insanity. In this and similar cases expert witnesses may be produced for or against the defendant, and the lawyer must be so familiar with the details and reach of the scientific facts and theories in respect to which these witnesses are examined as to make clear to the jury the accuracy of his own witnesses and the mistakes of his adversary's. Every increase in civilization, making as it does the social and business life more complex, increases the demands for a larger storehouse of knowledge on the part of the lawyer. Two men living alone on an island, with no dealings save between themselves, require little but the simple rules of barter and sale; but one living and dealing in the whirl of New York business life has a right to expect from his counsel familiarity with varied branches of knowledge. A boy may use a jack-knife skillfully, but put him into a large manufacturing, transportation, or telegraphic office, and he is lost. So a lawyer may draft a good deed, but fail when consulted concerning the rights and obligations growing out of the complex bank or other business transactions of to-day.
Specialization in the law as elsewhere has become necessary. There are patent lawyers, admiralty lawyers, real estate lawyers, corporation lawyers, criminal lawyers, etc.; and yet even with this specialization and the restriction of one's work to a particular branch of the law, constant study is necessary to keep pace with the ever-increasing and diversified questions which are arising in practice. Inspiration is a lost art in the court-room. No true lawyer advises, prepares documents, or tries a case without careful preparation. Forensic oratory has passed away. No longer does the crowd gather in the county court house to listen to and be moved by the wit, pathos, and eloquence of the advocate, as for hours or days he addresses the jury. The courtroom may be filled, but it is largely with the ubiquitous reporters, many of whom are as destitute of tears as Sahara of water, and as callous to emotion as the mummied sleepers of Egypt. No longer is it true that weeping men, and women with handkerchiefs to their eyes, are moved by the eloquence of counsel. Rather may it more truly be said that distant Texas and the far Pacific slope hang breathlessly on the reporter's imagination and manufactured eloquence. Time is a pressing factor. Facts rather than eloquence is the demand. "Are you going to talk all day? I want to go home and milk my cows," was the sudden appeal of a juror in my court to a counsel who was endeavoring eloquently, as he thought, to impress the jury. The rapidity manifested in other proceedings in life asserts itself in the court-room. The stagecoach and the canal boat have given way to the automobile and the palace car. Even the post-office is too slow. Transactions of weightiest import and involving millions are settled in a moment by telegraph or telephone, and the law must keep pace with this demand for speed, and it does strive to keep pace with it,—except when the interests of the client seem to the counsel to call for as much delay as possible. Arguments in the appellate courts are generally mere colloquies between court and counsel, the one seeking to obtain and the other to give the essential facts and the controlling principles.
One of my early experiences illustrates the change from the old to the new way. After the passage of the Union Pacific act, making large grants in land and money, the possession of the Leavenworth, Pawnee & Western Railroad, one of the beneficiaries of that grant, became a matter of large concern. The right of the one in actual possession was challenged by another, and suit brought in the Federal court by the latter to acquire possession. The former, unwilling to trust local counsel, went to Ohio and employed the venerable Thomas Ewing (familiarly known as "the salt boiler"), paying him a retainer of one thousand dollars and promising four thousand dollars more. When the case came on for hearing and quite a volume of depositions had been read, counsel for the plaintiff talked for a day or more, then Mr. Ewing rose, spoke twenty-five minutes, and sat down. His client, the one in possession, was as furious as man could be. He employed all the vocabulary of denunciation known to a New York broker—and even imagination is exhausted by that illustration—in denouncing the profession in general and Mr. Ewing in particular, emphasizing every clause with a profanity that would have made a sailor or a cowboy blush for shame at his incapacity. "Five thousand dollars for twenty-five minutes' talk." The monstrosity of such robbery was to him appalling, and he was only partially reconciled when the court decided the case in his favor upon the single proposition made by Mr. Ewing.
But knowledge of the law is not alone sufficient. Making the brain a mere storehouse of information duly arranged and labeled, as a library is full of books properly marked and shelved, is not all. There must be that mental power which enables the possessor to apply his knowledge to the facts of the case and determine the controlling principles. Benjamin R. Curtis was in his day the leading lawyer of the nation and one of the greatest this country ever produced. I have heard one who was a Justice of the Supreme Court during the years of his practice before that tribunal say that Mr. Curtis never took over twenty or thirty minutes in the argument of a case, never had but one or, at the outside, two books from which he quoted; and while he did not win all his cases, every one was decided upon the principles which he discussed and presented as controlling.
I know there are many lawyers who do not realize how true this is. Some will throw at an appellate court a volume of three or four hundred pages, facetiously calling it a brief, making every conceivable point suggested by an examination of the record, in the hope that if unable to catch the court on one hook they may succeed on another. The modern digest is a great help to this kind of practitioner. It enables him to load down his propositions with a multitude of citations, without ever looking to see whether they are pertinent or not. This is purely mechanical law, which may be a bonanza to the printer, the clerk, and the lazy lawyer, yet is a burden and a curse to the client and the court.
The court-room is the place where the lawyer is seen, and the common opinion of him is based on what he there displays. The ideal lawyer is there often made manifest. In a trial his learning, his skill, his knowledge of human nature, are disclosed. His work is open. He cannot conceal his mistakes. There is a great fascination in seeing how he conducts himself and manages his case. It is not to be wondered at that the court-room used to be so crowded, and is now so frequently full. Some speak of it as a loafing place, but the many are really drawn by a not unnatural curiosity respecting the trial and the actors therein. How often have I from the bench watched with interest the adroitness of counsel, their knowledge of human nature, the skill with which they select jurors favorably disposed to their clients. I have many times asked a counsel why he rejected a juror, and been astonished at the accuracy of his discernment of something in the juror suggesting prejudice. The desired juror varies with the character of the case and the question to be decided, and the lawyer is often gifted with what seems like an instinct which enables him to select and reject according to the interests of his client. No place in life calls for a more frequent manifestation of that most uncommon possession, common sense. President McCosh, of Princeton, a canny Scot, once said to a group of students, "If you wish knowledge of the languages, of mathematics, philosophy, medicine, law, or theology, come to us and we can give it to you, but if you want common sense, God pity you, we cannot help you." So the lawyer whose common sense enables him in the varying and unexpected contingencies of a trial to adjust himself to the calls upon him is the successful and in this respect the ideal lawyer, while the one who cannot so adjust himself, who is, to use the familiar illustration, trying to put a square peg into a round hole, is almost always a failure. Not alone in the selection of a jury but in the examination of witnesses is the skill of counsel manifested. There is no better test of a lawyer's ability than a cross-examination. Too often in his eagerness he overdoes the matter and only makes stronger the testimony given by the witness-in-chief.
The following story illustrates the exceeding cleverness of one of our leading counsel in this respect. A wealthy family in the West had an only son who came to an Eastern city and engaged in business. He left the West an unmarried man and lived for some years in the East. So far as his family knew he never married, but on his death a woman claimed to have been his wife, and sought a widow's share of his property. She had no certificate of marriage nor was there any registry of it. Most of the family, in order to avoid publicity, were willing to allow her something in compromise of her claim, but the mother, proud of the honor of her family, repudiated the idea of her son's clandestine marriage, and determined to fight the claim. On the trial it was shown that although the son frequently visited his home in the West, he never brought his alleged wife, never spoke of her, never suggested the fact of marriage; and the mother, testifying to all these facts, insisted that it was impossible that her son could have married without informing her, with whom he had been all his life on the most confidential terms, of the fact. After she had finished her testimony in chief she was turned over to the opposing counsel for cross-examination. She faced him with an air of determination as though she expected a protracted and bitter cross-examination and was ready to contest every inch. With the utmost deference and courtesy he said, "I understood you to say that your son was an honorable man." Quick as a flash the proud mother straightened herself up and replied, "The soul of honor, sir; the soul of honor." "That is all," was the counsel's comment, and the mother left the stand, astonished at his brevity. It appeared, however, in the case that the son had introduced this woman into the society of the city where he lived as his wife, had taken her to a hotel, registering himself and wife, and when counsel came to argue the case to the jury, the burden of his successful argument was that this man was the soul of honor and could not have done such a thing unless it was true, as she claimed, that they had been married.