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stated to me :-“From what I have seen of juries, I should be sorry to commit to them any matter in which I was interested, and in which I was satisfied that I had right on my side. Knowing what I now know, I would make large sacrifices, and submit to much extortion, rather than trust myself to that which I had been accustomed to look upon as 'the palladium of British justice -until I had tried it."
The general unfitness of the jury system for the trial of civil suits will probably not be unknown to you, for you could not have sat as a disinterested spectator in a Nisi Prius court for a week without learning that lesson. But the directions which that unfitness takes will doubtless be as new to you as they certainly were to me. not prepared for the extraordinary value of the opening statement of the plaintiff's case, nor for the comparatively small regard paid to the summing-up of the Judge. Somehow I had assumed, without reflection, that the Judge's influence would be decisive, not merely on account of his position, but because his is the last word addressed to the Jury. Knowing now what is the fact, I can see reasons for it that had never occurred to me. The mind unaccustomed to reflect, to compare and to judge, is moved only by the facts presented to it; the story that is first told to it is first written there ; when a conflicting story is afterwards told, it is rejected, because the wind wants the capacity to go through the process of comparing, and judging, and extracting the truth from the opposing statements, and therefore it gladly takes refuge in adherence to the narrative first addressed to it, and thus escapes the bewilderment caused by having the ears opened to both sides.
But whether this solution be right or wrong, the fact remains, and the lesson to be learned from it is, that the opening speech is of far greater moment than Advocates have deemed it to be ; and that you should study this portion of your practice with more care than is commonly given to it.
Your aim should be to state your case so clearly that, as presented by you, it shall carry conviction with it to those minds—and they are usually the majority—in the jury-box which, being unable to entertain two ideas at once, and incompetent to compare or to reason, are satisfied to be thus easily filled, and refuse to be puzzled by contradictions too subtle for their comprehensions, that are afterwards presented to them.
A Special Jury is, of course, less subject to these disturbing influences. But precisely in proportion to its intelligence does the probability of differences increase. Twelve men who are competent to form an independent judgment, and who desire to discharge their duty faithfully, according to the dictates of their consciences, are not likely to take the same views of questions upon which the most astute lawyers have found such differences that they have counselled the parties to contest them in a court of law. To require the unanimity of twelve sensible men upon doubtful questions is so absurd, because so impossible, that one is amazed such an attempt should ever have been made, and ashamed that it has not been abandoned long ago. Nor could it have been persisted in for twenty years, but for the necessary addition of a detestable tyranny to an irrational folly. So long as the law consistently sought to compel an apparent unanimity, by the torture of imprisonment in cold and hunger, the unreflecting public presumed that the machine they had been taught to venerate worked as well as sentimentalists asserted. But no sooner had unanimity ceased to be compelled by torture than the truth appeared. Juries, in rapidly increasing numbers, were discharged without a verdict, by reason of hopeless disagreements.
Therefore, in dealing with a Special Jury, you have two aims : first, to win the verdict, if you can; and failing that, to produce such a difference of opinion as may lead to their discharge without a verdict. In addressing a Special Jury, you should assume a tone and manner and form of speech different from those with which you talk to a Common Jury. You should raise yourself to them : you may venture upon argument; you may use choicer language, without fear of speaking
over their heads;" you may appeal to many motives that would be unfelt by a Common Jury. But a Special Jury is not without prejudices of its own—
-class prejudices which your own instincts ought to tell you to avoid, or to enlist on your side, as the need may be. It will be unnecessary to resort to the repetitions that are essential where it is your task to beat ideas into minds, slow, because unaccustomed to thought; the same arts are not required to fix their attention.
The style best adapted for a Special Jury is indicated by your office. You are a gentleman, talking to gentlemen who are your equals in position, and therefore it should be free without being familiar, and deferential without humility. You have the advantage in this, that you have something to tell them which you know, and it is your business to impart your knowledge to them; but, also, they are to be your judges, and therefore you treat them as men whose goodwill you are desirous to conciliate. And, with all Juries, whether special or common,
remember the precept I have already urged upon you ; do not weary them by saying too much ; but, even if you have more to say, on the instant you perceive the first unmistakeable symptoms of weariness in your audience, bring your speech to a close, and sit down ; for, from that moment, you are not merely wasting the best argument and the most artistic eloquence—you are undoing whatever advantage you may have gained before, and every sentence is a step backwards from victory.
THE ORATORY OF THE BAR (CONCLUDED).
WHEN you address the Court, you should adopt a style, a manner and a tone different from those with which you address a Jury, whether special or common. When speaking to a Jury, you address men not learned in the law, for the most part not well accustomed to the mental work of rapidly following a compact argument. Alike with a Special and a Common Jury, it is necessary to elaborate your argument, that they may keep pace with it, and to repeat it, or the more important part of it, even twice or thrice, for assurance that the slowest mind among the twelve shall have taken hold of it. But when you address the Court you appeal to intelligence greater than your own, to a mind or minds practised in argument, trained to its pursuit, comprehending instantly the meaning of every word you use, and the more technical your talk the more intelligible it is to the listeners. Therefore you need none of the arts required to win the ears of a Jury. You should condense your thoughts and language, devoting your entire attention to the logical array of your argument, and the