Chapter 7
"If the object of my cross-examination is to show that the witness is not telling the truth, have I much chance of getting him to confess the fact?" The witness knows something about perjury. He is afraid and he has heard about those pitfalls of cross-examination. Does the lawyer remember his own hopeful son and how only yesterday he could not get him to admit stealing the cake even with the prospect of immediately impending punishment? Only that little rim of chocolate about the ears was the proof. Even the deaf little child, who is not as intelligent as the witness, will not admit that he was untruthful. But still he goes on cross-examining.
If the witness is finally shown a paper which he or she signed when the investigator of the railroad came to see her, and in which she said she was sitting on the sixth seat, there is not such a great deal to be proud of.
"Ha, Ha," thinks the lawyer "at last," "didn't you just now say you were sitting on the fourth seat?" "I don't remember," says the witness. "What," thunders the lawyer, "you don't remember; then your memory is poor. I will read you what you said on your direct examination," and he does. "Now which was it, the sixth or the fourth seat."
The other object of cross-examination is to elicit new facts. This is a dangerous risk for the lawyer, and unless he is sure of his ground, he had better not take it. He will do better to let his own side tell the facts than to bring them out through an unwilling witness who is on his guard and thinking the opposing lawyer is trying to trap him.
The mistake that most lawyers make in cross-examination is to ask the witness to repeat what he said in his direct testimony. Telling the same story over again merely accents the facts in the minds of the jury. The lawyer asks:
"You say that you saw the driver whip up his horses when the car was a block away." The lawyer may doubt the truth of the statement but the mere repetition of the words affects the memory of the jury. Unless he has a distinct object in going over the testimony, either to show the direct contrary strongly, or the fact that the witness has learned the testimony by rote and that the repetition is in exactly the same words, the lawyer would do better to desist.
Strange as it may seem the rules of evidence are actually based upon common sense. The ordinary experience of mankind gave rise to the rules of evidence, but the difficulty is that the further experience of civilization is giving rise to new rules which are not consistent with the old. Nevertheless the present rules when reasonably applied are fairly good. The question really is whether there should be any at all.
Accepting the fact that there should be rules they are based on two principles; the first is that only something which has to do with a case can be proved and second that it can be proved only in a safe and reasonable way. It may seem impossible to the lawyer and equally to the laymen to state the rules of evidence in simple language. But the principles of common sense will govern in the end, as they have in the past, notwithstanding they have been hidden under a mass of verbiage, ancient forms, and obsolete customs.
The theory is that justice wants the highest and best it can obtain, the court insists on the two principal rules; that evidence must be the very best that can be obtained and must be brought out in the safest, clearest, and most authentic manner.
Take, for instance, the rule that conclusions of the witness are not allowed. If the court considered as evidence that the testimony "the defendant brought the goods and they were delivered," and the defendant came on the stand and said, "I did not buy the goods and they were not delivered," the court would have before it merely two contrary beliefs or conclusions. It would be a case of "Katy did, Katy didn't."
The rule of evidence is plain that makes it necessary for the plaintiff to show where he saw the defendant, what was done, and what was said or written by the two parties. If the question is as to the delivery, it is not enough for the plaintiff to say "I delivered the goods." The court must have proof of the history of the goods. The driver of the wagon must be called who can testify where he drove, what package he carried, and what was done with it when he reached the house.
The whole subject of expert witnesses is not so complicated after all. They are merely persons of exceptional experience who are allowed to testify as to something of which they know nothing. They may have never seen nor heard the facts in dispute but because they have had so much experience on similar facts they are allowed to say what they think of facts produced by eye witnesses before the court. As conclusions and opinions may be various, there is at times a great variety in experts, and because the very name of experts implies technicality, there is a feeling in the minds of the jury and the public, that the testimony of experts will befog by a mass of non-understandable terms.
The doctor who testified in a case in which the plaintiff suffered a sore back and had seventy-five dollars damages from the jury is an example. He said:
"The plaintiff was suffering from traumatic sacro-illiac disease, traumatic sinovitis of the knee and wrist and from traumatic myositis of the muscles of the back."
In reality the testimony of expert witnesses is very good evidence. If it is given in plain and understandable English and the jury think the expert a clean-cut, sensible man, it is just what the jury want to learn. An expert's method of reasoning about the facts in evidence is the same as that employed by the jury in the jury-room. It is merely an opinion; for on the opinion of the jury, based on the evidence depends their verdict.
While the witnesses are being examined, called to the stand, sworn, being excused, and being cross-examined, there occur numberless incidents of the trial known as the objections, exceptions, and motions.
XI
THOSE TECHNICAL OBJECTIONS
These are the stage tricks and little incidents that give variety to the performance. No drama would be complete without a few diversions. So far as the drama itself goes, they are of no great importance except to give pungency and interest to the action.
The lawyer asks an apparently good question. "I object," says the other lawyer, "on the ground that it is incompetent, irrelevant, and immaterial." The judge has to rule. He may not exactly have heard the question. The stenographer reads it again. The other lawyer leans forward in a frenzy of fear lest the question be ruled out. He begins to argue.
"The question is perfectly proper; the witness ought to be permitted to answer it." "No," says the other lawyer, "it is improper in form, calls for a conclusion, and should not be allowed." The judge looks puzzled. "Read that again," he says. The question is, "What kind of a cow was it you saw in the plaintiff's garden?" "I still object," says the lawyer. "The witness has not been shown to be an expert. If my learned friend is going to attempt to qualify him as an expert, I desire an opportunity to cross-examine him concerning his experience in cows." "Not at all," answers the lawyer. "The question is entirely proper and I stand on my legal rights." The judge hesitates; if he does not rule correctly the lawyer will take an exception and the Appellate Court may not like it. So he says, turning to the witness, "You may answer, but I will reserve the question and decide it later on a motion to strike out." "I except," says the lawyer. The jury look relieved. The witness straightens up, the opposing lawyer sits back in disgusted contempt at such a loose method of procedure. "Well," says the witness, "it was a red cow."
This may go on for some time.
"I move to strike the answer out," says the lawyer; and the argument begins all over again.
Throughout the trial the client and the jury are waiting for these objections and exceptions. The nature of an exception is a notice served on the judge that his rulings are wrong. The theory is that if he wants to change them he had better do so before the case goes to appeal. It is a covert threat to the judge. There is a principle in some courts that no ruling that is not excepted to can be considered on appeal; consequently a lawyer is careful to preserve his rights by exceptions.
A young lawyer once had this principle so firmly fixed in his mind that when he went to court he began taking exceptions to everything, even rulings in his favor. He would make an objection; the judge would sustain it. "I except," said the lawyer. He would make a motion; the judge would grant it. "I except," said the young lawyer. The other side would make an objection; the judge would rule against them and in favor of the lawyer, "I except," said the lawyer. Finally the situation grew so strained that the judge called the young man to the bench and spoke to him confidentially. His explanation was: "This is my first case and the head of my firm told me to be sure and take exceptions to all rulings."
Some lawyers are so in the habit of excepting, it sounds as though they were hiccoughing. "Overruled"; "I except"; "Allowed"; "I except"; "Denied"; "I except"; "Granted"; "I except." It becomes a custom as constant as the refrain in a comic opera.
Theoretically it may have a sound basis under the law, but so little practical value has it that it seems ludicrous. The lawyers and the judges consider it a matter of course. If the judge after all the argument finally decides to let the testimony as to the red cow stand, he will not be inclined to change his mind because the lawyer interjects that threatening exception. The sound of the word is spiteful and seems to express the resentment of the lawyer at the ruling of the judge.
No example could be found in the thousand volumes of law reports where the judge changes his mind on account of an exception. The object in this particular direction is vain.
With regard to appeal; the Appellate Court that attempts to decide a case on the exceptions taken at the trial would have a difficult time. They would have to disentangle the mesh of evidence and find out whether that important piece of testimony on page 204 was excepted to or not, then whether there was a proper ruling; refer to the stenographer's minutes and look at the important exception on page 59 and again on page 106. Unless the question decided was excepted to, the Appellate Court can not decide it. It is hard to imagine that any court could be so rigorous and narrow-minded that they could hang justice on such little pegs of exceptions, which the stenographer in the hurry of the moment may have forgotten to insert.
In the criminal courts there are no exceptions on the part of the people, because there are no appeals on behalf of the State. The defendant continues to repeat "I respectfully except." "I must insist on my exception." Think of a man being jailed for seventeen years because his case was not reversed on account of the failure to except. The court could not believe Justice to be so blind-folded that she can not understand the evidence as a whole.
Exceptions are the tacks and pin pricks of a trial. They are of so little value in the main structure of the drama that if they are forgotten by either side, the court should provide them with a bushel basketful which could be distributed by the handful wherever the lawyers thought they would be useful or pleasant.
Objections are of three main kinds: irrelevant, immaterial, and incompetent. They are like the magic words that open or unlock the doors of evidence and let it in or keep it out. They have three distinct meanings which lawyers understand. A thing may be immaterial, but not incompetent, or incompetent and not immaterial, or irrelevant and not immaterial, or irrelevant and not incompetent, or incompetent and not irrelevant, or one or both or not at all. Any student of law can fully explain the difference, but the distinction is immaterial and irrelevant, and if the reader is in doubt let him ask any lawyer friend to tell him in plain words, without insulting his common sense, what the distinction between immaterial and irrelevant is.
The confusion of one young man found expression finally in the terms "irreverent, impertinent, and--and--and--no--matter."
The lawyer, when he objects, usually attempts a few other suggestions which may be considered by the judge, such as "the question is leading and suggestive; grossly improper; calling for a conclusion; objected to as argumentative or because of its ambiguity."
Whatever the trouble with objections may be, it is neither the fault of the lawyer, the judge, nor the witness. When certain evidence is not allowed by law it is proper that it be objected to. Unreasonable and often comical as objections sound, the basis of their existence in law is that the court wants the best possible proof.
Instead of a copy of a letter the judge and the jury ought to see the original. Instead of the copy of a will the paper actually signed by the testator is wanted. Suppose a question arises as to the payment of a bill. The defendant says that he went into the store and paid it. The best proof is to be given by someone who saw him pay it. A witness to whom he came afterward and said that he had been down to the store and had paid the bill is not so accurate a witness as the man who was in the store and saw the money paid over. It is to keep out this poorer proof that objections are made.
If the objection is good, the judge says "Objection sustained," or if he thinks the evidence the best he allows it and says "Objection overruled," then the witness may proceed and answer the question. Unless the lawyer objecting states the ground or reasons for his objection, the objection is not supposed to be valid for the other side ought to be apprised of the reason so that he may supply the proper proof, that is why the objection is named as irrelevant, incompetent, and immaterial, so as to cover all possible grounds.
The reasons given for the objections: incompetent, irrelevant, and immaterial might, so far as the average man is concerned, read "incontepent," "irrevelant," and "immature." The words when repeated together seem like that old legal term "incorporeal hereditaments." They are imposing and add tone to the trial. The solemnity of repetition is always a valuable asset. The real value of the word irrelevant is shown by repeating irrelevant, "irrevelant," irrelevant, "irrevelant." In a short time one sounds as valuable as the other.
When he makes the objection the lawyer rises and when he is through sits down. This gives the appearance of constantly jumping up but is only a question of etiquette, like taking off the hat or making a bow. Some people like the formality but there is a question how much is due to the dignity of a court and how much form and manners must be sacrificed to efficiency of business. The judge who said that he did not hear the constant objections of the lawyer because he made his objections sitting down was not so much an adherent of good form as a protestor against the absurdity of professional objections.
The mooted question is the same and goes back to the one on evidence. Shall everything be allowed in and a photographic picture of numerous details be given to the court? If that is the correct idea, a general knowledge and atmosphere may be derived from all the surrounding circumstances and then there would be no objections. If the strict interpretation of the law be followed limiting evidence to only what is seen and heard, objections are proper and sensible.
The modern tendency is to do away with all restrictions of the past. There has been too great severity in interpreting the law of proof and the pendulum is bound to swing far in the opposite direction. A medium may not easily be reached, and the only test is the common sense of the average.
On the question of time and whether the abolishing objections and letting in all evidence would not be shorter, there is much to be said. It might take less time for the witness to recount the death-bed scene of his wife's sister's brother-in-law's aunt, than for the court to hear and pass upon all the objections and arguments as to the admission of the testimony on the red cow.
As the jury listen to the objections and exceptions they become more and more impatient. The restraining influence of the surroundings, the fact that they are impaneled in a box and that they are a part of, the drama keeps them silent. They cannot break out in revolt at the badgering of the witness. They can say nothing about the absurd objections that are interrupting the proceedings or the spiteful little exceptions that are being thrown in, but can only quietly store up an increasing mistrust of the whole method. When the lawyer objects so strenuously the jury thinks he must have something to conceal. Yet when the objections are made they have a certain effect which is not at first realized. A question is asked that is to the juryman perfectly sensible, but which is absolutely inadmissable under the rules of evidence. For example, the lawyer asks, "What did you tell your wife about the accident when you got home?" Any reasonable man knows that what he tells his wife is very important and bears on the question of his veracity. The other lawyer very properly objects. The jury thinks there must be something in it. The lawyer asks again, "Didn't you tell your wife the horses were going very fast?" The other lawyer is on his feet. "I object," he says, "and I must ask your Honor to instruct the counsel not to ask questions that are manifestly improper." The Court rules in favor of the objecting lawyer. He admonishes the lawyer and instructs the jury to disregard the question. Yet what is the effect? The jury believes unless the lawyer thought the answer would be most unfavorable to his side he would not have objected to it so strenuously. The impression remains on the minds of the jury that there was a good deal to that question of what he told his wife.
It is for this reason that when the lawyer keeps on asking objectionable questions, the judge will sometimes declare a mistrial or allow one side to withdraw a juror, which is only a polite way of saying that the present jury in the particular case can not be fair.
Here arises one of the prettiest dilemmas of the law on the trial of a case. Suppose the case has been going on all day or for several days. The plaintiff is very anxious to have it finished. He has been at great expense and trouble to get his witness and the lawyers' time is valued at so much per trial day. On the other hand the defendant at the worst can only have a judgment against him, which may as well happen at another time. He is willing to have the case declared a mistrial and start anew; he knows it will take a long time for the trial to come up again. It has been a dull grilling proceeding, but he does not care so long as there is a chance of postponing the judgment against him. It is on the whole better and easier to put it off.
Now if the judge declares a mistrial, on the motion of the plaintiff, that is his own look out. He believes that he can not have a fair trial, that he can not proceed. But suppose the defendant by his lawyer makes the trial unfair. His lawyer keeps asking those improper questions which imply so much to the minds of the jury. The judge may speak severely to the lawyer and caution him not to keep on putting suggestive questions. That is all that he can do. It would be plainly unfair to order the withdrawal of a juror. The trial according to the opinion of the judge may be unfair. The plaintiff's counsel is afraid to ask for a mistrial, first on account of the trouble and expense to his client, and second, if it be denied, the jury will believe he thinks them unfair and does not want them to try the case. The judge is in a curious position with regard to objectionable questions and testimony, he ought not to penalize the plaintiff by punishing the defendant. The loosening of the laws of evidence might do away with quandaries such as these.
XII
THE MOVEMENTS IN COURT
Motions imply movement and action especially in a drama, but in a court motions are the reverse and occupy the place of dramatic pauses which delay the real movement of the play. They are of great interest to the lawyers, of some interest to the judge, because he has at once to pass upon them, of but little interest to the client, who does not understand them, and of no interest whatsoever to the jury, except when they result in the disposal of a trial.
Before the case begins the defendant makes a motion. When the plaintiff's lawyer has finished his opening, the other side makes a motion to dismiss the case. When he ends his evidence, the other lawyer moves to dismiss. When both sides are through, each moves. When the jury bring in the verdict either side may move, or both when neither is satisfied. All through the trial there are quantities of little motions. Motions to strike out, motions to instruct, motions to make the witness answer a question, motions to make the other lawyer behave. Except for pointing the finger or raising the voice in talking, they are not movements, they are only verbal, the action comes in the play of emotions of the parties in court. Motions are merely saying what either side wants; the formal asking for something.
The first important motion is on the pleadings themselves or when the plaintiff has opened. If the judge does not believe that the plaintiff has stated a case in law, he dismisses it on a motion of the defendant and the judgment is "without prejudice." The trouble is that a judgment of this kind does not finally dispose of the dispute. The plaintiff may bring the action over again.
He may appeal from the decision or judgment and the appellate court may rule that the trial judge was wrong and then after an interval the case goes to a new trial just the same. By this time the plaintiff or his lawyer may believe he has no case and desists, but the course depends upon whether the parties have not died, grown tired, gone into the hands of a receiver, or moved to Borneo. The jury know little as to this state of affairs and are not interested in the preliminary motions. The clients do not understand but think the lawyers are good talkers.
The lawyers are interested in the point of law and believe so strongly in their case that if an adverse ruling comes they are shocked and surprised. The judge knows that although he grant the motion to dismiss, he will probably allow an amendment. He is not greatly concerned unless he foresees a possibility of settling the dispute definitely and going on to the next case. He is anxious to try the present action and get down to the meat of the matter but really if they are going to insist on all technicalities he feels a little impatient.
He knows that even if the defendant is right and the pleadings are defective because the stenographer forgot to insert a date, it can still be put in. Recent legislation has found it necessary to say that the courts should allow amendments of pleadings where "Substantial Justice" will be accomplished thereby. It is a commentary on the system of the courts that the people through its legislatures should find it necessary to pass a law that judges should amend paper pleadings in furtherance of justice. If justice and right depend upon pieces of paper to such an extent, the dry formalism of the courts is a matter of regret.
The next important motion is when the plaintiff has put in his evidence and has rested. "The plaintiff rests," the lawyer says.
The judge and the jury say to themselves, "Well it is half over."