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defy you to lead them, by the cleverest and closest argument, to be convinced, as a cultivated thinker is convinced.
Make large use of illustrations; they will be readily accepted as substitutes for argument, and often, I am sorry to say, for facts. But you must not travel for them beyond the circle with which your jurymen are familiar. You will not throw light on one obscurity by comparing it with another. Refer to their own knowledge and experience whenever you can, and make your client's case their own, if the slightest chance opens to you.
THE ORATORY OF THE BAR (CONTINUED).
It has been often to me a matter for regret that lawyers are excepted from liability to serve on juries. I am sure that to all of us who aspire to be advocates there could be nothing more instructive than to act as a juryman occasionally. When I have seen the twelve heads laid together in debate upon the verdict, I have felt the most eager curiosity to learn what view each one had taken of the case, and by what process they arrived at their decision. I have thought that, if I could but be among them through a dozen trials, to witness what most moved each, to what extent some were governed by others, and how the unavoidable conflict of opinion was conducted and finally closed, I should possess a knowledge that would be of inestimable value to me in dealing with other juries whom it was my business to persuade. That source of knowledge has, however, by the policy of the law, been closed against us, and we can only guess what goes on in the jury-box from the verdicts that we hear, and slight intimations occasionally given by a question or a look.
But although it has never been my good fortune to sit upon a jury, an intelligent friend of mine, who is not a lawyer, was compelled lately to serve at the sittings of one of the courts at Westminster. I was curious to learn what were the results of the experience thus obtained. It was a common jury, but almost all who were upon it were men of average intelligence and respectability—in intellect far above the average of the juries in the country.
His report of them is startling. He tells me that the most striking characteristic which he discovered on the very first day of his attendance (and it was confirmed by subsequent experience) was the hastiness with which they formed their opinion of a case. The opening for the plaintiff, when clearly and plausibly stated by a counsel whose manner pleased them, almost invariably so prejudiced their minds in the plaintiff's favour, that only the strongest case on the part of defendant sufficed to disturb the judgment thus prematurely formed. He says that the speech always weighed with them much more than the evidence, and that, as a rule, they accepted the statement of the case by counsel as the very fact, without waiting to see if it was sustained by proof; and even though the proofs failed, the connected story that had been first conveyed to their minds was rarely permitted to be disturbed by contradictions or failure in evidence ;-as if they had not the power of comparison, or were reluctant that their clear conceptions of the case should be disturbed by difficulties which they wanted the wit to solve.
My own impression had been that juries were very little led by the speeches of Counsel, but very much by the summing-up of the Judge. I was surprised to learn that, according to my friend's experience, it is otherwise. His. juries, he said, appeared to be more led by the Counsel than by the Judge. The weariness of a day in the jury-box was relieved by the speeches. They were heard because they were amusing, when, perhaps, a great deal of the evidence had scarcely entered at the ear, and had never reached the mind. Many of his fellows paid no attention whatever to the evidence, as if they wanted the wit to put it together and extract the truth from it, and they seemed to rely upon the speeches for all their information, unconscious that they were distortions of some points of the case, and suppressions of others. The Judge's summing-up carried very little weight indeed with them. In almost every case their minds had been made up before it had reached this last stage ; and unless the Judge put to them some question of law, they paid little heed to his impartial representation of the facts as proved.
Then, he says, the prejudices were enormous, and the bias they occasioned was frightful. The justice of a case was the
other existed, the preference was given to it. If one of the parties had a friend or a friend's friend in the box, the influence was perceptible at once. If the subject matter was one in which even a few of the jurymen were concerned, as similarity of trade, or consciousness of being open to the same complaints, the issue was certain. The majority being tradesmen, it was useless to dispute a tradesman's bill, or the amount of his charges. A Company had no chance with them, whatever the merits of their defence. If it was objected, by the more intelligent and fair-minded, that the right was with the Company, it was always answered that they could afford
to pay, while a verdict against the poor plaintiff would ruin him. When a difference arose about the verdict, he found that among the twelve were always some whose minds were not to be moved by any argument or remonstrance : such was their opinion, and they would not listen to the views of their colleagues ; and frequently, though a minority, they succeeded, by simple persistency, in bringing the more yielding round to their own side, and thus carrying the verdict.
As a rule, the majority of the jury were stupid men, utterly incompetent to form a judgment upon the questions submitted to them, and who were led by the first statement of the case for the plaintiff ; or, if that was beyond their comprehension, by the leaning of the judge ; or, if that was too difficult for their understandings, they simply acquiesced in whatever the more intelligent among them dictated, unless it ran counter to a prejudice or a partiality, for these always carried the day against counsel, judge, justice, reason, and their fellows.
When such is the experience of London juries, which are certainly far above the average of intelligence, it may be well imagined what sort of justice is dispensed at the assizes, where the average of intelligence is immensely lower, and you will now cease to wonder why the suitors in the County Courts, where a jury is optional and not compulsory, shun it so eagerly that it is demanded only in one case in nine hundred, and then by a suitor who is conscious that his case is a bad one, and whose only chance is the injustice of a jury. It is there observed, that whenever a man has a good case, he prefers that it should be tried by the Judge alone.
The general result of my friend's experience was thus