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THE

OKLAHOMA
LAW JOURNAL

VOLUME X

Edited and Published by
D, H, Fernandes Guthrie, Oklahoma

THE

OKLAHOMA LAW JOURNAL

EDITED AND PUBLISHED MONTHLY BY
D. H. FERNANDES, GUTHRIE, OKLAHOMA.

CORO

Vol. 10.

July, 1911.

No. 1.

A POINT IN LEGAL ARGUMENT. The first conception that should enter the mind of the lawyer preparing to argue a case before a jury should be the difference between the nature of his audience, the twelve jurors, and the audience of an actor. The actor's audience expects to be amused, and even deceived, by the cleverness of the actor; but the audience of the lawyer, the moment it sees the efforts of the actor overshaddowing its sense of right and justice, the cause for which he speaks is injured. In the theater men enjoy the art of the actor, but in the jury box, the juror resents it as an insult to his intelligence. An able legal writer speaking of the purpose of legal argument before juries says:

"A great argument is the argument that carries the jury. It is made for the purpose of securing the verdict and only for that purpose, that the sensible advocate speaks at all. The argument is the means, not the end. The argument is but an instrument used to bring about a desired result.” It is not for the purpose of affording an advocale a field for displaying his learning :or hig rhetoric that his client employs him, but for the purpose of convincing or persuading the jury that the law and the evidence, or that justice and right, entitle him to their verdict. For as Daniel O'Connell once said, “A great speech is a very fine thing, but, after all, the verdict is the thing."

All honorable things that tend to secure the verdict it is the duty of the advocate to do, and to do them with: out seeking fame for himself, except, such as comes to the successful verdict-getter. Learning and eloquence may often be brought into the argument, but they should be brought into it because they will benefit the client's cause, and not merely because of praise and applause. The argument must be adapted to the case and framed with the single purpose of securing the verdict of the jury in that particular case. In thinking out the line of his discourse the wise advocate will strive to so construct arguments so as to present facts that the jury will be convinced or persuaded that his cause is just; he will sink all considerations of self benefit in the determined resolution to speak for his cause and for that alone. If his resolution be firmly made and determinedly adhered to, his words, and illustrations will fit his cause, provided he be not a blunderer or a man ignorant of human nature and the secret springs that put it in action.

It is generally believed, that like the poet, that the orator is born and not made, yet to a great extent this is a mistake. If the lawyer thoroughly understand his case, knows what is essential to prove and has proved it, is able to express himself, and can yield everything to the success of his case, he will prove an able orator in that case. If the cause is to him above all other considerations he will adapt the means to the end desired, with such clearness and force that the jury will be convinced, and if honest, and impartial at the outset will give him its verdict. But the discourse to them must not have a shaddow of deception-it must appear real. The power to make it appear real, is that power which has been described as possesse by Rufus Chote, when a juror expressed himself as disliking hin, was told, "why, you have been giving him all your verdicts dur. ing this whole term!” “Yes, I know, and regret it." replied the juror, “but in all of his cases he is so lucky, that by the time he presents them, you can't help but see that he is on the right side, and what are you going to do about it?”

The jur irs must have nothing else appealing to them but the merits of the cause-it must be the cause that speaks. In fact this so forceably operates upon the jury as to be dangerous for the advocate to use the flowers of rhetoric which would be appropriate and delightful with any other audience and under other circumstances; for jurors are themselves human, and many of them vain, and slow to admit that the words and arguments of other men brought them over. The tact of so presenting your points so plain and clear that that the juror ferls that he cand under the facts as presented, he himself, could win the case, is one of the greatest arts of the trial lawyer-to get the jury to feel that the case is so strong that it needs no extraordinary lawyer to win it. Counsel having shaped a winning theory, surrounding it by winning facts, and braced the facts by reasonable, credible evidence-evidence that is in harmony with human experience; and closing his efforts in a sincere, straightforward manner, with nothing but the justness of his cause before them, what unbiased.jury will withhold from him the verdict?

The suggestion, however, of the lawyer sacrificing self for the cause does not mean that he must forego eloquence, but simply that he must avoid every tinge of vanity in all his demeanor before the jury, and its place given to the cause; for in no field of human effort can eloquence be of more avail than before a jury, if it be so skillfully used as not to exhibit the least shaddow of ostentation. To our conception, the kind of eloquence that should be used is the one that our memory recalls, but which was applied to another subject. It is a poem writ:en by William Cullen Bryant, entitled "The Poet." By the change of two words in its reading it describes the best specimen of the kind of eloquence that an ad

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