Part 10 (1/2)

The plaintiff's lawyer now takes the floor, the jury s.h.i.+ft their feet and glance at the clock. ”Gentlemen of the jury,” he begins. He probably leaves out the judge. The plaintiff now having the attack is more direct. It is rather significant of the change in all procedure that the language of all court addresses is becoming more and more simple. The old days when the lawyers delivered homilies of Latin have disappeared. No longer does the lawyer refer to _nunc pro tunc_, or make facetious jokes in a language the layman and probably the court does not understand. If a lawyer makes too many Latin quotations, the court thinks him affected. He must be simple, direct, and to the point at issue.

His art in presenting his case consists in drawing the picture of the facts so vividly that they will remain in the jurors' minds. Employing his imagination in forming the concept, he gets it across the rail to the jury by the fine gift of selecting words and incidents. No one, it is said, is ever convinced by argument, but any one can realize a visualized picture of words.

The counsel starts to storm and abuse his opponents and his opponents'

client, and in his wrath also forgetting that persuasion is not accomplished by denunciation. The majority of the jury are rather easy-going, kindly men, who do not care to hear others made too vile.

Just as satire is more effective than direct abuse the tolerant juryman prefers to have the other party laughed at than called names.

The clients become worked up over their wrongs and excited by their lawyers' oratory. When the case is over they are extremely surprised to see the men who have been shaking their fists and ready to spring at one another's throats, quietly lock arms and go out to lunch together. It is all in the day's work and they must fortify themselves for the next trial. The shock is something like that when, after a melodrama, the heroine having jumped over the bridge and died in a whirlpool, comes out quietly and, in spite of her suffering, bows smilingly before the curtain.

The judge and the jury know that the lawyers are coming to life again and are not really trying to kill each other. This is one of the pleasantest aspects of the life in court. There is a good fellows.h.i.+p between the two lawyers who have been so keenly struggling. They even have a kindly feeling toward the judge when he is off the bench.

The court attendant calls the attention of the lawyer to the time, who with a sidelong look at the clock, also ”Confidently leaves the case in your hands, gentlemen.”

The two lawyers sit down and the judge puts on his spectacles, gathers up the notes he has been making of the main points of the trial, and turning to the jury begins his charge.

XIV

THE HEAVY CHARGE

No, madam, the charge of the judge does not mean his bill for expenses or his salary for trying the case. A charge implies something grave, heavy, and aggressive. It is what the judge tells the jury about the case. It is never light or humorous, but ponderous and hard to understand. The court-room doors are locked, no one must come in or go out during the charge.

The judge looks solemnly at the jury, the jury straighten up from the desponding att.i.tude they gradually have a.s.sumed during the address of counsel.

The end is near and they begin to have hope. They appear interested and a gleam of awakened intelligence is in their eyes. Now at least they are going to hear what they wanted to know about the case. The judge will probably tell them something new and clear up the points they did not understand. It may be even he will explain why he made those strange rulings during the trial and what that mysterious conference was when he called the lawyers to his desk and they talked together for so long.

The judge begins: ”Gentlemen of the jury, the plaintiff in this case seeks to recover,” and then he goes on to tell them what the plaintiff wants, which is just what the plaintiff's lawyer has been telling them. The judge must have been asleep while he was talking for he is saying the same thing over again, only in a little different language.

After that the defendant's case is set forth. There again that is what the defendant's lawyer was saying. It does not appear reasonable that they are compelled to hear six times what the case is about. There were the two openings of counsel at the beginning, the two summing up at the end, and now the two explanations of the judge. There ought to be an allowance made for the jury possessing a little intelligence.

The judge then tells again what the witnesses have said, in not quite so many words, but covering the main points. There is no use in that.

The jurymen think they ought to remember fairly well what was said.

The judge admits it after he is through by saying himself: ”Gentlemen, you are to be governed by your own recollection of the testimony rather than by what is said by either side in summing up or by the Court.” If he means that he should have kept still and let them have their own recollection.

Then he goes on: ”If you believe any witness has wilfully testified falsely as to a material fact, you may disregard that witness's whole testimony.” Of course, is that not the reason for their being there?

Why, the judge in the beginning made them swear to decide the case ”according to the evidence.” The jury is going to do exactly that.

They are going to decide which side is lying and which side is telling the truth. They are not quite so stupid as not to know that. There seems no need in insulting them by telling them that they need not believe a witness unless they want to. Why are they there?

The judge tells them that the function of the jury is to decide the facts and for him to decide the law. That is fortunate, for they could not understand the law, even if they wanted to; it is a silly business and it is not common sense. What the jury feels is that the judge's charge is leaving it to them without any trouble about the law. But wait a moment, the judge is going on to tell them about the law as applied to the particular facts before them.

The important principle of law they are being told is what is known as the preponderance of evidence and the burden of proof. The judge goes on at great length about the weight of evidence. The weight of evidence, he says, is the preponderance of proof and the preponderance of evidence is the weight of evidence, and the man who has the burden of proof must have the weight of evidence and the weight of evidence being the preponderance of evidence is also upon the man who has the burden of proof. And the preponderance of evidence does not mean proof beyond a reasonable doubt, as in criminal actions, but that the proof must be heavier on one side than the other and the one who has the burden of proof must sustain the preponderance of evidence. That is the law; the judge has said it. What it means the jury give up. The lawyers nod their heads wisely. The judge has stated the law correctly.

The judge may go on a little further and tell them more about the burden of proof and the preponderance of evidence. He may say that the weight of evidence does not mean the number of witnesses. The mere fact that one side has six and the other side only two does not mean that the jury are to believe the side who has six. The jury know that when probably they are all exaggerating somewhat they are going to decide the way the thing happened. Then the judge tells them, having seen the witnesses, ”That they may consider their bearing on the stand and their manner of giving testimony.” Surely they are going to do that. Is not the best way of knowing whether a man is telling the truth to look at him and watch him while he is talking? There is little sense in the judge advising them to consider his bearing on the stand.

Another thing the judge says is that they are not to be governed by sympathy or prejudice in arriving at their verdict. This is a caution that the judge thinks necessary. He forgets that when they are in the jury-room, with locked doors and no one to disturb them, they are going to do exactly as they are inclined. Prejudice and sympathy are for unintelligent people who do not know what they are about. Both lawyers have been telling the jury what intelligent men they were and it seems unnecessary for the judge to say that they are not to be governed by prejudice and sympathy. Suppose the defendant is a rich corporation, they are not going to find against it because it is rich.

The company can stand the loss of a few dollars out of its pocket better than the poor man anyway. Not that they are going to decide for that reason.

As these acc.u.mulating evidences of the judge's misunderstanding of their att.i.tude of mind pile up, the jury sink back into their seats.