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8. We have next to consider how a case should
be studied, since such study is the foundation of
oratory. There is no one so destitute of all talent
as, after making himself thoroughly familiar with all
the facts of his case, to be unable at least to communicate those facts to the judge.
[2]
But those who
devote any serious attention to such study are very
few indeed. For, to say nothing of those careless
advocates who are quite indifferent as to what the
pivot of the whole case may be, provided only there
are points which, though irrelevant to the case, will
give them the opportunity of declaiming in thunderous tones on the character of persons involved or
developing some commonplace, there are some who
are so perverted by vanity that, on the oft-repeated
pretext that they are occupied by other business,
they bid their client come to them on the day preceding the trial or early on the morning of the day
itself, and sometimes even boast that they learnt up
their case while sitting in court;
[3]
while others by
[p. 429]
way of creating an impression of extraordinary talent,
and to make it seem that they arc quick in the uptake, pretend that they have grasped the facts of
the case and understand the situation almost before
they have heard what it is, and then after chanting
out some long and fluent discourse which has nought
to do either with the judge or their client, but
awakens the clamorous applause of the audience,
they are escorted home through the forum, perspiring
at every pore and attended by flocks of enthusiastic
friends.
[4]
Further, I would not even tolerate the
affectation of those who insist that their friends, and
not themselves, should be instructed in the facts
of the case, though this is a less serious evil, if the
friends can be relied upon to learn and supply the
facts correctly. But who can give such effective
study to the case as the advocate himself? How
can the intermediary, the go-between or interpreter,
devote himself whole-heartedly to the study of other
men's cases, when those who have got to do the
actual pleading do not think it worth while to get
up their own?
[5]
On the other hand, it is a most
pernicious practice to rest content with a written
statement of the case composed either by the litigant
who betakes himself to an advocate because he finds
that his own powers are not equal to the conduct of
his case, or by some member of that class of legal
advisers1 who admit that they are incapable of pleading, and then proceed to take upon themselves the
most difficult of all the tasks that confront the pleader.
For if a man is capable of judging what should be
said, what concealed, what avoided, altered or even
invented, why should he not appear as orator himself,
since he performs the far more difficult feat of making
[p. 431]
an orator?
[6]
Such persons would not, however, do so
much harm if they would only put down all the
facts as they occurred. But as it is, they add suggestions of their own, put their own construction on
the facts and insert inventions which are far more
damaging than the unvarnished truth. And then
the advocate as a rule, on receiving the document,
regards it as a crime to make any alteration, and
keeps to it as faithfully as if it were a theme set for
declamation in the schools. The sequel is that they
are tripped up and have to learn from their opponents the case which they refused to learn from their
own clients.
[7]
We should therefore above all allow
the parties concerned ample time for an interview in
a place free from interruption, and should even
exhort them to set forth on the spot all the facts in
as many words as they may choose to use and allowing them to go as far back as they please. For it is
less of a drawback to listen to a number of irrelevant
facts than to be left in ignorance of essentials.
Moreover,
[8]
the orator will often detect both the evil
and its remedy in facts which the litigant regarded
as devoid of all importance, one way or the other.
Further, the advocate who has got to plead the case
should not put such excessive confidence in his
powers of memory as to disdain to jot down what he
has heard.
Nor should one hearing be regarded as sufficient.
The litigant should be made to repeat his statements
at least once, not merely because certain points may
have escaped him on the occasion of his first statement, as is extremely likely to happen if, as is often
the case, he is a man of no education, but also that
we may note whether he sticks to what he originally
[p. 433]
said.
[9]
For a large number of clients lie, and hold
forth, not as if they were instructing their advocate
in the facts of the case, but as if they were pleading
with a judge. Consequently we must never be too
ready to believe them, but must test them in every
way, try to confuse them and draw them out.
[10]
For
just as doctors have to do more than treat the
ailments which meet the eye, and need also to
discover those which he hid, since their patients
often conceal the truth, so the advocate must look
out for more points than his client discloses to him.
After he considers that he has given a sufficiently
patient hearing to the latter's statements, he must
assume another character and adopt the rôle of his
opponent, urging every conceivable objection that a
discussion of the kind which we are considering may
permit.
[11]
The client must be subjected to a hosthe
cross-examination and given no peace: for by enquiring into everything, we shall sometimes come
upon the truth where we least expect it.
In fact, the advocate who is most successful in
getting up his case is he who is incredulous. For
the client promises everything: the people, he says,
will bear witness to the truth of what he says, he can
produce documentary evidence at a moment's notice
and there are some points which he says his opponent
[12]
will not deny. It is therefore necessary to look into
every document connected with the case, and where
the mere sight of them is not sufficient, they must
be read through. For very frequently they are
either not at all what the client alleged them to be,
or contain less, or are mixed up with elements that
may damage our case, or prove more than is required
and are likely to detract from their credibility just
[p. 435]
because they are so extravagant.
[13]
Further, it will
often be found that the thread is broken or the seal
tampered with or the signatures unsupported by
witnesses. And unless you discover such facts at
home, they will take you by surprise in court and
trip you up, doing you more harm by forcing you to
abandon them than they would have done had they
never been promised you. There are also a number
of points which the client regards as irrelevant to
his case, which the advocate will be able to elicit,
provided he go carefully through all the “dwelling places” of argument which I have already described.2
[14]
Now though, for reasons already mentioned, it is
most undesirable that he should hunt for and try
every single one of those, while actually engaged in
pleading his case, it is most necessary in the preliminary study of the case to leave no stone unturned to
discover the character of the persons involved, the
circumstances of time and place, the customs and
documents concerned, and the rest, from which we
may not merely deduce the proofs known as artificial,
but may also discover which witnesses are most to be
feared and the best method of refuting them. For
it makes a great difference whether it be envy,
hatred or contempt that forms the chief obstacle to
the success of the defence, since of these obstacles
the first tells most against superiors, the second
against equals, and the third against those of low
degree.
[15]
Having thus given a thorough examination
to the case and clearly envisaged all those points
which will tell for or against his client, the orator
must then place himself in the position of a third
person, namely, the judge, and imagine that the
[p. 437]
case is being pleaded before himself, and assume
that the point which would have carried most weight
with himself, had he been trying the case, is likely
to have the greatest influence with the actual judge.
Thus he will rarely be deceived as to the result of
the trial, or, if he is, it will be the fault of the judge.
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