the truth; and let me say here that a graduate of a school of at least equal standing with the one represented by Professor Sanborn, in trying a case before me not long ago, addressing the court in a most earnest and concerned manner said: "Now, your honor, I move to strike out the witness' testimony; it is absolutely untrue, if it please the court, and it surely should not be allowed to remain in the record." Would it have been better from any standpoint, the name of the school that graduated this man, his own reputation as a lawyer, or the interests of his client, for him to have asked some farcical question in a practice court in law school and have been put right by a lawyer who knows how to practice law and how a moot court should be conducted, or to have waited, as this man did, to make a spectacle of himself while conducting an actual case in court.

This subject has usually been given but scant attention by law school educators. No less an authority than Professor Samuel Williston is quoted as saying: "The cross-examiner of course does not know the limits of the statement given to the witness, and inevitably asks so many questions which the witness cannot answer that the cross-examination is almost always ineffective and often farcical."

This difficulty never arises with us, for the very apparent reason that neither the cross-examination nor the testimony of the witnesses is limited by the statement of facts any more than they would be so circumscribed in a real trial.

Again, it is urged that practice cases cannot be made to come out as you wish them to. That in order to bring out the point desired, it is necessary to direct the steps to be taken by the student and that this takes away all initiative. To be sure, we cannot expect to substitute the moot

court work for all of the courses in substantive law in the curriculum. It has not yet been suggested that the case or text book systems of teaching law be supplanted by the moot courts. It has been our experience that in most cases the purposes for which the practice court is intended will be subserved by leaving it to the student to devise his own remedy. It is of little importance as to what action he brings, just so he institutes some action. On the other hand, there is no merit to the objection that for the instructor in charge to require a case to be brought or defended in a particular way takes away the initiative of the student, and if it did have that effect it would not be worthy of serious consideration as a reason for not maintaining the practice court. The entire legal training of every lawyer through law school and later in his practice is a study of precedent. In one sense you may say that we are all imitators, but it is nearer the truth to assert that the attorney learns to initiate and invent by analyzing the proceinvented. In substantive law we do not dure and logic through which others have hesitate to go back centuries for authority. The rules of evidence have undergone no substantial change from time immemorial, and it cannot be said that the genius to devise avenues of attack or escape for their clients has noticeably diminished among lawyers, even though through generation after generation they have been fitting themselves to try cases by following as nearly as possible in the footsteps of others who have successfully conducted litigation.

The important part of every practice court is trial work. The two chief essentials of successful moot court trials are, first, a correct understanding and use of the statement of facts; and, second

judges should know from experience how a trial should be conducted-practicing lawyers who are also men of education and talent for trial work. These no school situated in a large city will have any difficulty in securing. The college located on a campus should employ them, no matter what it costs, or else cease to advertise themselves as supplying a thorough and complete training for

those who would fit themselves to practice law. I believe that the greatest advancement in the method of instruction in law colleges in the next decade will be found in the development of the moot court. I earnestly recommend it to every law school, and also as sincerely advise that prospective law students attend only those colleges of law which maintain adequate practice courts.

I

PROPOSE to address myself to a consideration of the conduct of the lawyer during the trial, and especially during a trial by jury, considering nothing which has not a distinctly ethical basis, and yet speaking of some things whose ethical sanction is not always borne in mind.

It is not my purpose to discuss the entire course of the trial, or all questions of conduct which present themselves to the trial lawyer. I cannot even claim the merit of novelty for what I am about to say; but it is my impression that these topics I am approaching have received attention more frequently from the standpoint of successful advocacy than from the standpoint of ethical advocacy. Yet there is little difference in the results. It will be found that in the long run at least correct advocacy becomes successful advocacy.

Most deviations from the rules of pro

priety are the result of too great zeal for success in the particular cause, or, if you prefer, too great zeal in support of the client's interest. Great mischief has been done by the frequent quotation of a passage in Lord Brougham's speech in Queen Caroline's case. This passage. standing alone, reads thus:

"An advocate, by the sacred duty which he owes to his client, knows, in the discharge of that office, but one person in the world-that client and none other. To save that client by all expedient means, to protect that client at all hazards and cost to all others, and among others to himself, is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction which he may bring upon the other. Nay, separating even the duties of a patriot from those of an advocate, and casting them, if need be, to the wind, he must go on, reckless of the consequences, if his fate it should unhappily be to involve his country in confusion for his client's protection."

It has frequently been pointed out that Lord Brougham was not speaking as

broadly as the excerpt indicates, but that this characteristic outburst of eloquence was simply a threat to establish the marriage of George IV with Mrs. Fitzherbert.

It is entirely true that no selfish considerations should deter the advocate from performing his full duty toward his client. It is true that toward his client he owes his most direct and important duty. Having accepted a retainer, he is bound in honor as well as in law to see that his client's case is presented in its strongest and most favorable aspect. The client is entitled to have the law of his case determined finally by the court, and, in a law action, the facts by a jury. The advocate has no right, upon doubtful questions of fact or of law, to usurp the vocations of jury and judge, and finally and irrevocably determine such questions against his client, by refusing to submit them for consideration.

On the other hand, the lawyer must never forget that he is an officer of the court, and in that relation has as grave a public responsibility as the judge himself. He is trying the case with the object of winning it, and not of losing it, but of winning it in accordance with the facts and the rules of law, and not by perverting facts or by distorting the law. He is not the servant of his client, employed to win if he can by any expedient, but the servant of the law, retained by the client to secure the lawful adjustment of his rights.

The trial of an issue either of fact or of law is essentially a contest, and I have scant sympathy with those doctrinaires who would attempt to eliminate the contentious element from litigation. Litigation is in its very nature contentious, and must be carried on by contentious methods. This means that in its very nature the trial of an action must tend

to arouse what is known as "fighting blood," and without fighting blood to be aroused no advocate can hope for success or hope to do his client justice. But in all contests, from war to marbles, there are fair methods and foul methods, and the advocate must be ever on guard lest the excitement of the fray lead him beyond the domain of the fair. I suppose no lawyer can hope on all occasions to confine himself within the bounds of strict propriety. Those of us who have had any considerable experience in trials, I am sure, have lingering in our memories various courtroom scenes for which we were responsible, which we regret and would like to forget. The best safeguard I know against such lapses is in moments of temptation and excitement to remind yourself that you are in a court of justice, that you are of a court of justice, and that you are an officer of the law.

You will find, as you become familiar with the courts, that there are certain conventions, some general and some local. You will find that in some courts it is customary for the bar to rise as the judge enters, and to remain standing until he takes his seat. You will find that in other courts no such custom prevails. If you are used to the custom, I believe you will experience something of a shock when you witness the opening of court where this trifling tribute of respect to the judicial office is not shown. By rule of court in this state, counsel is required to stand while addressing the court or examining a witness. No such rule should be necessary. Some lawyers snap out objections to testimony without rising from their chairs and with an abruptness that savors of rudeness. With a quick witness objections must be promptly interposed; but many advocates manage to interpose them with suf

ficient promptness and without any apparent violation of the rules of courtesy or good manners.

You will not infrequently observe lawyers within the bar, and not engaged in the case on trial, conferring togetherperhaps to the disturbance of the proceedings, and certainly in disregard of the dignity of the court. The lawyer should bring his manners into the courtroom. If he possesses none, he should borrow a set for courtroom use.

Sometimes, when motions are on hearing, there is a scramble about the judge's desk not altogether unsuggestive of a football scrimmage. The court attendants should take care of that, and the judge should see that they do so. What is less readily handled is the habit of some lawyers who seem to take literally the phrase "to get the ear of the court," and whose applications are made in whispers. Such lawyers should be taught to hand up their papers in silence or to stand back and talk like men and law

yers.

Such things relate to courtroom etiquette, but they have their ethical aspect. A respectful and dignified demeanor in court accompanies and evidences respect for the law and for its ministers. Can it be expected that jurors, witnesses, litigants, or casual spectators will feel a due respect for the law or its officers if the lawyers themselves fail in manifestations of respect. In these days when the demagogues have discovered a certain popularity in reverting to the tactics of Jack Cade, it is especially important that lawyers should avoid, even in their slightest acts, all things which may tend to encourage disrespect for the courts, and therefore for the law itself.

The first and third of the Canons of Ethics deal specially with the relations

between the lawyer and the judge. The first enjoins upon the lawyer a respectful attitude toward the court, "not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance." The third warns the lawyer against "marked attention and unusual hospitality on the part of a lawyer to a judge, uncalled for by the personal relations of the parties." It is not that there is serious danger of a judge being cajoled by such cheap flattery into extending undue favors to the fawning lawyer, but because such attentions place the judge in a false position, and subject both him and the lawyer to suspicion.

In court an advocate must be always respectful, but never sycophantic or servile. He must sustain, not only the dignity of the court, but the dignity of the advocate. The judge rests under the same duty. History affords, it is true, occasional instances of arbitrary, overbearing, or insolent judges. You may be called upon to appear before men of that type, but judicial bad manners must not tempt you into behavior of a retaliatory character. A dignified and respectful assertion of your own rights is the only proper rebuke. Fortunately the instances are rare when the lawyer is called upon to withstand this supreme test of his temper.

Courtesy toward one's opponent is not so nearly universal as courtesy toward the court. Your opponent may assume a contemptuous attitude. He may provoke you by ridicule or by sneers. He may sometimes be openly and grossly insolent. It is hard under these circumstances to deal with him with good-natured courtesy. It is true he does not deserve it. But again your duty to the court and to the law demands that you observe your own good manners. It may be add

ed that your duty to your client lies in the same direction. The jury has no sympathy with a rowdy. You are under no obligation to prevent its sympathy from drifting your way by convincing the jury that there are rowdies on both sides of the counsel table. If your opponent assumes untenable positions and advances absurd arguments, their character in that respect will impress itself upon the court or the jury, or you can at the proper time demonstrate their character. The method of doing so is not by open manifestations of ridicule or contempt.

Serjeant Harris, Mr. Wellman, and I believe all others who have undertaken to instruct us in the art of advocacy, have dwelt on the general policy of treating witnesses with frankness, respect, and amiability. It is not only good policy, but it is your moral duty to do so. You will naturally be well disposed toward your own witnesses, at least unless they prove stupid, or surprise you by testifying otherwise than as they have led you to believe. Still one's own witness Still one's own witness sometimes tries one's patience. With your opponent's witnesses the trial is greater. Indeed, it seems to be the uniform method of some cross-examiners to proceed upon the theory that an adverse witness is necessarily a perjurer, to be bullied and threatened into self-contradictions. I again leave the policy of this system to Mr. Wellman, whose books should be read by every student.

But again policy and duty go hand in hand. Sometimes a witness commits deliberate out-and-out perjury. If you are sure the witness has done so, you owe him no duty of considerateness. Few witnesses, on the other hand, tell the complete and exact truth. They have not observed accurately. Their inferences, based upon what they did observe, have not always been correct. Their

memory has not been perfect. For these reasons, their testimony may depart very far from what you believe to be the truth. And yet the witnesses have been honest, and they are entitled to be treated as honest men. You must remember that the witness is at a disadvantage. You have the sole power of directing the line of inquiry and determining its scope. He may do nothing but answer the questions you put. You should confine yourself to putting questions, and to putting them fairly. In most cases he is not there because he wants to be there. Often he is not interested in the result. Presumably he is in attendance in furtherance of justice, and you have no right to treat him as if he were engaged in a conscious and deliberate effort to pervert justice, unless his own language and conduct have demonstrated this to be the fact.

I have spoken of putting questions fairly. You have no right skillfully to design questions to elicit from a witness -especially one unaccustomed to nice diction-answers which are literally false. You have no right to devise a question, and insist upon an answer which leaves the witness in a false position. You have doubtless heard of the advocate who said to a hostile witness, "Have you left off beating your wife?" and tried to compel him to answer it "Yes" or "No." The witness is entitled to fair treatment, not only during the examination, but in the argument. You must not put into his mouth words he did not utter, and you must not give to words he did utter a construction which you know he did not intend.

In thus dealing with the examination of witnesses, I have not meant to imply that you must show your hand before asking a question. In cross-examination it is frequently of great importance that