ADDRESS OF GEORGE GORDON BATTLE

(of the New York Bar)

MR. CHAIRMAN AND LADIES AND GENTLEMEN: I was interested in Mr. Conboy's reference to advocates or trial lawyers as "premières danseuses." It is a very good term because there is a very large and essential element of the histrionic art in advocacy. A trial lawyer, an advocate, is of necessity an actor because it is his function to express in court the feelings which appeal to the heart and the intellect, as does the actor from the stage, and the efficiency with which he does that will depend very largely upon his histrionic ability. Mr. Conboy himself is a danseur of no mean ability. He has put me through some very high paces indeed, and if any of you should ever come in contact with him you will find in him a very apt illustration of the "premier danseur" in court. I listened with immense interest to Mr. Bouvier's striking and unusual address. I have never heard a more polished speech. I have never heard matters with which we are more or less familiar in court expressed in a manner more interesting. He seemed to go to the very essence of things and to show us the fundamentals of some of the phenomena with which we are familiar in court. I regard it as a great privilege to have heard his address, and I feel embarrassed at following him, because I can offer you no such treat. However, I have this consolation: that I know you will be interested. They say that lawyers and ministers are equally fortunate in having audiences that cannot get away, but a lawyer, speaking to a gathering of lawyers on legal matters, is sure of an interested audience, because nihil legale ab advocato alienum

est. Lawyers have always devoted to matters relating to their profession their most intense interest. That is one of the great solaces and one of the great pleasures of our profession; that it is so intensely interesting. It is so versatile. It is so constantly changing. None of us know when we go to our offices in the morning what are going to be the events of the day. None of us know when we undertake a trial of a case what are going to be the determining features of that case; and so we have in our profession a constant change which makes it to my mind by far the most delightful of all the occupations of men.

Now, I wish particularly to-night and very briefly to talk to you about some rather practical features of trials in the manner which seems to me to be most useful. To the old war horse, to the old legal hands, as they would say in England, I shall not try to address myself because they know already far more than I could tell them. To Mr. Digney of White Plains, whom I see before me, and to other experienced members of the bar who have been appealing to juries for any length of time, I can say nothing that can be novel; but there are some, especially the students from the law schools, who have not as yet had any lengthy experience, and I shall venture to call their attention to some features in the art and procedure of preparing and trying cases that I have found useful. I know that you will all be interested in them because, as I say, anything legal is interesting to lawyers.

In the first place, we belong to a very curious profession, and ours is a very strange business, if you should ever analyze it in your thoughts. We are priests of justice. We are supposed to, and it is our duty to, develop and try our cases so as to promote the ends of justice and so as to bring out the truth and so that the truth may prevail and triumph in each controversy. We have distinctly a controversial system of jurisprudence where we act upon the theory that the spark of truth is elicited by the stroke of steel, as distinguished from the French, or rather the con

tinental system in which the trial is in effect an investigation conducted by the judge. I don't know which is the better system. My own belief is that ours is. But ours is a controversial system and we occupy the anomalous position of being at the same time priests of justice having it for our purpose to elicit the truth, and, on the other hand, of being an advocate. The truth in a law case must lie on one side or the other. One or the other should prevail and consequently one of the two advocates must be with the right side and the other with the wrong. Then, we have the anomaly that while we are supposed, and while we should, and while we do try to conduct our cases so as to promote justice, at the same time we must conduct them so as to promote the cause of one side or the other, the case of the client by whom we are engaged. And that gives rise to many strange situations, and a lawyer is constantly trying to reconcile these two more or less conflicting duties, the duty which he owes on the one hand to justice and the truth, and on the other hand to the cause of his client. Like most Anglo-Saxon institutions, the result is a compromise and it works very well, although, logically, it may seem difficult, if not absolutely impossible. The great majority of cases are decided as they should be decided, and almost all lawyers, I assume all lawyers who are worthy of their profession, do at the same time strive to reconcile these two more or less incompatible duties, and on the whole work for the cause of justice and at the same time work for the cause of their client. So that when you are engaged either on one side or the other of a case and you begin the trial, or you have the trial before you, the first step is the preparation for the trial, and to my mind that is the one most important thing of all. It is important because it is so easily shirked the preparation for the trial. It is the most difficult thing in the world, as we all know, for a busy lawyer to take the time and the trouble necessary to prepare his case properly. It is a matter which he puts

off time and again, and when he becomes more or less experienced in the trial of a case, it is a matter which he leaves to the last moment, trusting in his skill and readiness that experience has given him, and hoping that he will make his own cleverness atone for the lack of preparation. But it can't be done, my friends. There is no way in the world to prepare a case properly except to see your witnesses beforehand and examine them yourself. The English system by which a solicitor prepares a case and hands the trial brief to counsel is better than our own procedure in many cases, because many of us try our cases without any adequate preparation at all. We try our cases from hasty conversations with our client, reading over some of the documents in the case, and for the rest trust to our readiness in court and to good fortune. But the English system is not by any means the best. It is my experience, and I am sure that all will agree with me, that no reading of trial briefs or statements, no reading of affidavits by witnesses will take the place of the actual examination of the witnesses. You cannot get at the actual truth of the story without hearing it by the voice. You cannot go over the printed page and get at the real, rock-bottom facts of the case. True, these statements help, but what you really want can be obtained only through the spoken word, and so I say that there is no substitute for the examination by the trial counsel himself of the witnesses in advance. It is highly necessary and highly important upon the trial to have statements of witnesses before you and to refresh your memory from them as to the salient and essential points, but they by no means take the place of the actual oral examination of the witnesses.

And the same thing is true as to the documents of the case. They must be, of course, read and studied so as to be properly appreciated and so that their true significance may be known to you before the case can be properly prepared, and no amount of cleverness, no amount of skill,

no amount of readiness, can take the place, according to my experience, of this preparation of the case in advance. I have seen so many trial lawyers jeopardize and sometimes destroy the causes of their clients through not knowing some essential point which they would have discovered if they had examined the witnesses or had studied the documents beforehand. The average witness does not know what the legal significance of his story is and the essential points must be drawn from him by questions. Unless you have examined him yourself so that you know the extent of his knowledge, so that you know the facts that lie within his intelligence, it is absolutely impossible for you to elicit to the best advantage the facts which are material and which are necessary for your client's cause. And without elaborating that point any further I should like to emphasize the great and indeed essential necessity of the oral examination of all witnesses and the study of all documents before the trial actually begins if a case is to be properly and fully and thoroughly tried.

Then, after you have prepared your case-after you have examined the witnesses, after you have studied the documents and the propositions of law which are involved so that you can have your facts fit your law and the law fit your facts-then you begin the actual trial. The first step is the examination of the talesmen, the selection of the jury, assuming, of course, that it will be a jury case. Now, that is done ordinarily more or less perfunctorily, but it is nevertheless important. You must remember all the time that the jury are twelve men in a box sitting there to pass upon the merits of a case. They are not twelve machines. They are twelve human beings. They are twelve men who have the same feelings that you all have, and it is necessary to treat them from the very beginning to the end of the case with a recognition of the fact that they have the qualities of humanity. I have seen many lawyers, either through inattention or through