AN ADDRESS.

Delivered before the Medical Alumni

Association of Harvard University by Hon. Moorfield Storey, March, 1903.

We print in part (the balance later) the address of the Hon. Moorfield Storey before the Medical Alumni of Harvard Medical College on the 16th of March, 1903, knowing that it will prove interesting and instructive to our readers, and especially to those who find themselves in court as expert witnesses. The address is full of good advice and suggestions, and we will venture to add only one, or rather emphasize one that may be inferred from those given, and that is-never to try to evade a fair question in cross-examination if the answer is apparently in favor of the opposite side. attempt at evasion will be construed by the court at once as bias in the witness, and weaken, if it does not entirely destroy all the influence of the witness in the minds of the jury.

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Mr. Chairman and Gentlemen :-I have been asked to speak to you tonight on the relation between the legal and the medical professions.

What we are really interested in, I take it, is the relation between the two professions, when they meet in the administration of justice; and there is a large class of cases where we find it impossible to reach any just conclusion, or even to pursue certain lines of investigation, without your assistance. A man, for example, is found dead; and the question arises, what killed him? What is the cause of the death? A man is charged with crime. Stains are found on his clothes. The question is, What is the nature of those stains? Or, when he is brought to trial, he claims

that he was insane; and the question of mental capacity is presented. A will is offered for probate, the question arises whether the testator is of sound

mind, and we are obliged to bring the medical expert into court to help us with his opinion.

A very large class of cases arise from the daily and hourly accidents that happen all through our streets and on every line of transportation. A man is badly hurt-or says he is. Is he speaking the truth? What is the nature of his injury? What is the probable cause of his disease? How much is fact, how much is imagination, how much is pure fraud? Those are questions on which we have to ask your assistance; and how should the law and medicine best co-operate in dealing. with them?

Now, in the first place, there are two important distinctions which you must remember all through any discussion of these subjects. The lawyer is dealing with two things: first, What are the facts? second, What are the the consequences which the law attaches to the facts?

A man is nearly killed by violence; but whether it is murder, whether it is man slaughter, whether it is justifiable homicide,-all those things do not depend on the method of the killing, but depend on the facts outside. The medical man would see exactly the same thing if he examines the body, but whether the law calls it one thing or another depends on the facts. In the same way a man is clearly more or less. affected in his mind. If the incapacity reaches a certain point, he is said to be incapable of making a contract, but capable of making a will. If it goes a little further, he is incapable of making a will. That is a legal distinction, not a medical distinction. The medical

man will tell you exactly how incapable he is. The law will say whether that degree of incapacity unfits him for will or for contract.

Of course the same question arises where you are dealing with criminal responsibility. The question whether a man's mind is affected may be a simple question, but whether his mind is so far affected as to make him an unconscious agent is another question.

I remember a good many years ago reading some article by a distinguished expert in mental disorders, in which he said there was a man among his patients who was very much inclined to kill his keepers; and he threatened. every sort of criminal proceeding, but the man said to him, "You cannot punish me: I am insane." The doctor replied, "I cannot punish you that way, perhaps, but I can stop your tobacco." And after he had done that once he had no trouble with the man. He had mental capacity enough to realize that he was doing wrong, and sufficient power to stop himself when a disagree able consequence was presented.

You will testify what his capacity was; and the law will say whether, on the whole, his mental capacity is such that he ought to be held responsible for his acts or not.

Another case will arise where a man meets with an accident. You will find him very seriously hurt. The question. which he tries to present to the jury is whether somebody else must pay for that hurt and that is a question of law. He may be so far careless himself that the law says, "It is your fault that you are hurt, and not the fault of the man whom you sue; and, consequently, you

cannot recover."

Those are inquiries which present themselves to the lawyer, but need not present themselves to the doctor, be

cause the doctor deals simply with the fact as a fact. He has no concern whatever with the consequences. It is his business to tell exactly what he finds, exactly what he sees, exactly what his opinion is as to the causes of the consequences of the conditions which his examination detects. Beyond that he has no responsibility whatever for the consequences which the law attaches, and that is one great distinction between the attitude of the lawyer and the attitude of the doctor in pursuing investigations where both must cooperate in order to reach satisfactory conclusions.

Now there is another thing. The law supposes that the best method of reaching the truth is to hear both sides. Consequently, whenever any inquiry is presented to the court or jury, each side is represented by counsel. That counsel is an officer of the court. He is appointed or receives his admission to the bar in order that he may act as the representative of one or the other party in any litigated question that arises. It is his business to say all that can be said on his side of the case, and it is the business of counsel on the other side of the case to say all that can be said on the other side; and experience seems to have shown that this, on the whole, is the best way of ascertaining the truth.

But, of course, like other inventions, it has its imperfections. It is almost impossible for a lawyer, employed to represent one side of the case, to forget himself entirely, not to take an interest in the outcome of his case, not to be anxious to present everything,—not only everything that can be said fairly for his client, but a great variety of things that cannot fairly be said; not only to present all the facts that tell his way, but to conceal the facts that

tell against his client. And, consequently, a case may be tried, and, through the great skill of one side and the small skill of the other, only one side of the case may be presented. That is one of the evils which is inseparable from that method of reaching the truth; but, if you were to take any other system, you could probably find just as great evils.

Suppose men came into court without counsel, and the judge merely undertook to do justice between the parties. If a man was poor and ignorant, if he was not skillful in presenting his side of the case, if he was not in the habit of speaking, he would find himself at an enormous disadvantage in dealing with a fellow who had been plausible enough to obtain his money by false pretences or in some other way. The abler man, the more skilful man, the more experienced man, the better-educated man, would have an enormous advantage, which is overcome when each party can draw on, the members of the bar and each man have the assistance of his own counsel, so that, while the system has its abuses, it is probable that no other system would be any better.

The judge whose conscience was not informed by argument of counsel, the man who sat day after day hearing cases, would soon get into a routine way of dealing with them. His own prejudices would count; and it is important that the opposite side of the case should be presented, in order that the judge should be on the alert, and, if he make a mistake, to have it clearly pointed out to him, and therefore be less liable to persist in it. The lawyer, therefore, is necessarily a partisan: the doctor should never be.

The doctor comes into court not to help either side. No matter who calls

him, he is not witness of that party, but he is the witness of the court. He is there to tell the court and the jury exactly the facts, not to make himself, as is sometimes said, "the counsel in disguise" of one of the parties; and it is because doctors forget that, and because they feel, as they sometimes allow themselves to say, that they are retained for one side or the other, that experts have fallen into disrepute, and you find men who believe, and believe on the strength of a great mass of evidence, that you can find a doctor to swear to almost anything, and not merely a doctor, but any expert. It is not the peculiar province of the medical profession. It was that attitude of the expert toward his case which led the distinguished English judge to say there were three kinds of liars,-"liars, damned liars, and experts." (Laughter.)

So much is it the rule that a lawyer is merely the exponent of his side, that a lawyer is never allowed to state to the jury what his own opinion of the case is. He may present the evidence, he may present this view and that view; but he may never say, I think so and so. He is immediately leaving his proper province and undertaking to become a witness, which he has no right to be. The doctor, on the other hand, must always give his opinion. There is that radical difference between us, which you must always bear in mind at every stage of a legal investigation.

Now, bearing in mind this essential difference between the attitude of the lawyer and the doctor toward the investigation that we are both undertaking to pursue, I want to give you a few practical suggestions :—

The first attitude of the doctor toward the case is that of the investigator. He may be called into it in a great variety of ways. He may be the med