Written by: Mark S. Caldwell, JD
National Institute of Trial Advocacy
Public Program Development & Resource Director
Daniel McHugh, NITA’s Director of Sales and Marketing, and I were in the NITA kitchen chatting about the blog. We went back and forth about ideas for future articles, debating what may generate the most interest. Daniel suggested a month’s worth of postings about the history of the law. My response was I did not know who would write those articles and who would care to read them. We talked about other topics and developed some interesting ideas for the summer. Just the same, the topic of legal history kept returning to me. I recalled a presentation by NITA teacher Tina Habas that quoted Clarence Darrow and his advice on jury selection. Darrow’s suggestions sounded so biased and different from current thinking. This distinction gave me the idea that a single article that pointed out the major changes in advocacy philosophy might be interesting.
I started my research by reading the article Darrow wrote for Esquire Magazine in May 1936. (You can find it here ) Here is a sample of Darrow’s advice on selecting jurors:
An Irishman is called into the box for examination. There is no reason for asking about his religion; he is Irish; that is enough. We may not agree with his religion, but it matters not, his feelings go deeper than any religion. You should be aware that he is emotional, kindly and sympathetic. If he is chosen as a juror, his imagination will place him in the dock; really, he is trying himself.
Darrow goes on to suggest: no Presbyterians – your client is most likely guilty; no Scandinavians—they are always sure to convict; no Mediterraneans—too hot-blooded and emotional; no wealthy people—too carefree with money; no poor people—too tightfisted with money; and no women. Such generalities and banal stereotyping are enough to make any of today’s trial lawyers cringe.
Initially, it appeared I was on to what could be an interesting comparison of past and present techniques and strategy decisions. As I dug deeper I found references to the fact that Darrow may actually have been writing with his tongue firmly in his cheek. Anne Reed, a trial attorney and jury consultant based in Milwaukee, Wisconsin, believes the essay is supposed to be comical and there is some wisdom in Darrow’s words – “a subtlety of observation there that we could all do better at” picking up on, she said. “But it’s marred by the slapping of the label across each observation.” [http://articles.baltimoresun.com/2009-06-15/news/0906140094_1_jury-selection-black-jurors-jury-candidates]
Even if Darrow was poking fun he included some wisdom that continues to apply when selecting a jury.
Explanations must not be too fantastic or ridiculous. It does no harm to admit the difficulty of the situation, to acknowledge that this circumstance or that seems against him. Many facts point to guilt, but in another light these facts may appear harmless.
Finding my first attempt to be flawed I decided to go back further in time to see if trial scholars of the late 19th and early 20th centuries had differing opinions than our contemporaries. I found several treatises to test my theory—only to find solid advice on a range of topics.
In his work A Treatise on American Advocacy, Central Law Journal Company (2nd Ed. 1913), Alexander H. Robbins talks about case theory at page 38:
The theory thus constructed lies at the foundation of the advocate’s case. His pleading outlines his theory; his evidence fills it in and gives it shape; and the principles of law which he cites must support the result which his theory has produced.
A party cannot make indefinite and uncertain allegations in his pleadings and then enter a trial aimlessly, permitting the evidence to carry him where it will, and finally insist on one or the other of the different phases of his case which seem to him at that time most desirable.
As we teach case analysis we, likewise, tell participants to determine the legal elements to be proved, match them with supporting and detracting facts, select the most persuasive witness to deliver the facts, and see if there are exhibits that provide additional confirmation. Woe to the participant who has no case story or who offers multiple explanations.
When we teach cross-examination we offer guidance that questions should be short—no longer than seven words—should contain a single fact, and offer no conclusions. We should save argument on the answers for closing. Compare our advice to Robbins’ on page 171:
He should get little answers to little questions, and he will then find as a rule that answers are strung together like a row of beads within the man; and if he draw gently, so as not to break the thread, they will come with the utmost ease and without causing the patient the slightest pain. In fact, till he hears the advocate sum up his evidence, he will have no idea of what he has been delivered.
We teach young trial lawyers to prepare the witness. It is our job to help them succeed as they testify. We want to put the witness at ease. Start with simple questions so the witness becomes accustomed to testifying. Then we hear, “State your name and spell it for the record” as the first words in a direct examination. Our fix is to suggest beginning the examination by asking the witness to introduce themselves to the judge and jury.
On page 24, William L. Murfree writes in his revisions to Richard Harris’ Hints on Advocacy: In Civil and Criminal Courts, William H. Stevenson Publishers (1881):
He knows, too, that every word he says will probably be disputed, if not flatly contradicted. He has never had his word disputed before perhaps but now it is very likely to be suggested that he is committing rank perjury. This is pretty nearly the state of mind of many a witness, when for the first time he enters the box to be examined. In the first place then, he is in the worst possible frame of mind to be examined—he is agitated, confused, and bewildered. Now put, to examine him, an agitated, confused and bewildered young advocate, and you have got the worst of all elements together for the production of what is wanted, namely, evidence. First of all the man is asked his name, as if he were going to say his catechism, and much confusion there is often about that, the witness feeling sometimes that he is blamed by the judge for not having a more agreeable one, or for having a name at all.
The concept of “head notes” or foundational statements that direct the witness to a specific topic often seems a foreign concept to advocacy students. We counsel participants that these statements help guide and control the witness while helping the fact finder track important concepts. Is this a new concept to advocacy? In his 1889 two volume treatise The Law of Trials in Civil and Criminal Matters (T.H. Flood and Company 1889), Seymour D. Thompson suggests using leading questions to draw a witness to a topic.
Nor is it always available error that introductory questions, designed to draw the mind of the witness to the scene or fact of the controversy, are put in such a manner as to assume the existence of a fact. Thus, in a criminal trial it was held that a witness might be asked whether “he had examined the place designated by H. as the place where he was shot,”—the object being merely to introduce further questions. [emphasis added]
Thompson goes further to explain, on page 322, what would be “leading the witness” on direct examination:
A leading question is one which may be answered by Yes or No, or which suggests the desired answer. It is a question which puts the answer into the mouth of the witness. All questions put to a witness, which assume the existence of facts material to the issue which have not been proved, are said to fall within the definition of leading questions. But a question which merely directs the attention of the witness to the fact in controversy, about which his testimony is desired, is not leading. [emphasis added]
Even communications theory is not a new concept for trial lawyers. In 1893, Professor William C. Robinson published Forensic Oratory: A Manual for Advocates (Little Brown and Company 1893).
As we teach Opening Statement we encourage participants to begin with a statement that “grabs the attention” of the fact finder and makes them want to hear more of the case story. Many considered this a major change from the traditional “civics lecture” opening where the lawyer let the jury know that what she said was not evidence—and in doing so immediately put them to sleep. Here is what Professor Robinson counsels:
Second only to the necessity of adapting the evidence to the comprehension of the jury, is that of offering the evidence in such a manner that it will move their minds and dispositions unceasingly toward the judgment which the advocate desires. In accomplishing this purpose, it should be his first endeavor to secure attention and excite good will toward his client and his cause, either by the character of the opening evidence itself, or by the witness through whom such evidence is given.
How often have you seen a direct examination go bad because the examiner is afraid of what the witness may say? We counsel participants they must trust their own witnesses until they have reason to take more control. We advise not to suggest answers. Read what Professor Robinson recommends:
The thoughtless and impetuous advocate defeats the purposes of evidence in an equally effectual manner. He is convinced that nothing can be well done unless he does it, that no witness can relate a fact unless aided by his inquiries, and that no story can be completed unless he secures the insertion of each minute particular in its proper place, whenever that place in the narration is attained. He constantly interrupts the witnesses to emphasize some special point, or to call attention to some fact which he assumes the witness has forgotten. He asks misleading questions by which the witness is perplexed, and when the answer is not prompt and pertinent rebukes him in a manner that puts to flight all his remaining recollections. If an answer is of doubtful import, instead of making a different inquiry which may produce a more complete reply, he repeats the doubtful answer to the witness and demands an explanation, —a demand with which the witness, having forgotten what he did say or having spoken without full consideration of his words, is naturally unable to comply.
Certainly, not every pronouncement in these aforementioned books is correct. Times have changed the nature of trial practice – inserting codified versions of evidence and procedural rules, giving new statutory interpretations, etc. The books also may offer advice that no longer fits in current society. For example, Seymour Thompson tells us that it is not reversible error in refusing to compel a female witness testifying upon an indelicate subject to couch her answers in indecent language, although, if so expressed, her answers would be more direct, though, not necessarily more intelligible (at page 320). Likewise, the prose once used in providing guiding fledgling lawyers is a bit stilted by today’s standards. Just the same, it is still sound.
Perhaps what this all proves is—there are few new ideas about trying cases; we simply recycle.
For those of you itching to read these historic texts you may find them at: http://www.ebooksread.com.