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THE GREEN BAG

A PHILADELPHIA LAWYER IN THE LONDON COURTS IN THREE PARTS, ILLUSTRATED BY THE AUTHOR

By THOMAS LEAMING PART II COURT NOTES A jury trial strikes one as more cut and dried in an English than in an American court. Apparently so much has transpired beforehand in the exchange of copies of documents and is known to opposing counsel, solicitors, and judge, that the element of surprise is largely eliminated. If all litigants were honest and law were an exact science, this might conduce to a deliberate con sideration of the questions involved, but what American advocate, having experienced the effect of confronting a disingenous plaintiff or defendant with his own forgotten letter, utterly at variance with his previous testimony, would be prepared to say justice would have been advanced if he had been apprised of the fact that the letter would be produced and thus have had a chance to regulate his testimony accordingly? And what American lawyer would not feel that half the fun of life were gone? During the examination of witnesses, not withstanding rapidity of articulation, the American ear is struck by the great deliber ation and long intervals between questions, affording too much time for reflection — especially to a dishonest witness under cross-examination — and by a certain lack of snap. This impression may be due to difference in national temperament and the examination may even seem rapid to an English witness. A kind of confidence in the veracity of witnesses appears to per vade the court and they are indeed, as a rule, uncommonly frank, but perhaps the chief cause of the hesitancy is the fact that the examiner has obtained his information at second hand, from his client the solicitor, or his junior or devil, and has to feel his way. English barristers do not know their

cases as well as American lawyers, for they have not conducted the preliminaries, nor become acquainted with and advised the parties they are to represent — in other words, they have not "grown up with" the case, which is more like an abstract proposition placed in their hands to be ad vocated shortly before trial. It is not unusual to see, when some unexpected sit uation arises during trial, evidence of a want of thorough familiarity with the whole surrounding circumstances, requiring in stant reference to the solicitor. The judge takes more hand in the trial than in most American courts — a thing much to be commended, which is increas ing on this side of the water. An Ameri can lawyer will say: "I tried a case before Judge So and So." — An English barrister says: "I conducted a case which Lord So and So tried." He decidedly restrains counsel, often examines the witnesses, and his influence is quite openly exerted to guide the jury and cause them to avoid absurd ities and extremes. Yet the crucial ques tions of fact really to be determined — of which there are usually but one or two — are left absolutely to the jury's unfettered decision. Objections to questions by opposing counsel, which cut so large a figure in an American trial, are rarely made. One is told that the barristers know the rules of evidence too well to ask improper questions, and have too much respect for the court to hazard a rebuke. This is a very pretty explanation but hardly satisfactory. Ob servation of many trials rather conveys the impression, first that great laxity prevails as to what is a proper question; and second, that the party aggrieved by an objection able one prefers to rely upon the reaction in his favor produced in the judge's mind which