The Art of Advocacy

A Plea for the Renaissance of the Trial Lawyer

Lloyd Paul Stryker

• Publisher: Muriwai Books
• Year: 2019
• Topic: Law
• eBook ISBN:
  9781789123593
• Subtopic: Arbitration, Negotiation & Mediation in Law
• Index: Law

In this book, which was first published in 1954, U.S. defense attorney Lloyd Paul Stryker takes the reader through every step of a case: the first meeting with the client, the questions to find the facts, the arrival in court on the first day of the trial, the selection of jurors, the carefully collected information about the characters of the judge and the prosecuting attorney, the importance of the opening address and the summation. Above all, he reveals the fascinating art of cross-examination which he considered to be the greatest weapon in the arsenal of a trial lawyer.
The author clears up for all time the matter of legal ethics, of a defense attorney's responsibility to undertake a defense, and under what circumstances he must refuse it. Also, he tells wonderfully exciting stories about the famous trial lawyers of an earlier day—Martin W. Littleton, Daniel Webster, Rufus Choate—as well as such modern greats as Robert Jackson and John W. Davis.

PART ONE—THE TRIAL

CHAPTER I—A. Case Arrives

THOSE OF YOU fortunate enough to have witnessed the fine acting of Paul Muni in Counsellor-at-Law will remember the last scene. One misfortune after another has befallen the lawyer—hero of the piece. His wife has left him, and he feels himself a hopeless man. Planning self-destruction, in his despair he climbs out onto the window ledge preparatory to a fatal leap. But as he is about to jump, the telephone bell begins to ring. The ringing interrupts his suicidal purpose. He decides to answer it. And as he answers it, he undergoes a sudden change; his back stiffens, his eyes flash, his voice loses its dull tone. The son of a great industrialist has just been arrested, charged with murder! Disconsolate and without hope a moment back, the lawyer suddenly has become like a spirited fire horse eager to throw his whole weight into the collar. His troubles are forgotten, a new case has arrived!

In the great law offices, with their innumerable partners, countless law clerks, and unfailing corporate retainers, a new case, I imagine, excites no such emotion. But for the lawyer who devotes himself to advocacy and nothing else, a new and interesting case is always an event. Perhaps it may arrive in the turmoil of other preparations or it may be during the trial of some other case or, as is sometimes the case with even the most successful advocates, it may punctuate a long drought. For while there is nothing comparable in interest, so there is nothing similar to the uncertainties of a trial counsel practice.

Webster once said that lawyers work hard, live well, and die poor. Martin Littleton fulfilled the first two parts of this apothegm; he worked hard, lived well, but he did not die poor. He had periods of feverish activity, and yet when he was at the very top of his career, there were days or even months when he was not busy. Lunching with him one day I said: “Martin, are you busy? I have not seen your name in the newspapers recently.” “No,” he said, “just now I am not busy at all; indeed it is so long since I have had an incoming call that yesterday I rang up the telephone company to inquire if there were any mechanical defect that prevented people reaching me. But they told me that my line was in perfect order.” “Martin,” I said, “in times like this do you ever worry?” “No,” he answered, “I trust to the law of averages, and Old Man Average will soon come around.”

But if Martin Littleton at the summit of his fame thus found himself, what of the young advocate just beginning? He will have long uninvited hours of idleness that undermine his hopes, yet these hours may be employed to cultivate the two most important essentials of success: courage and the constant improvement of the mind. By his desk Martin Littleton had built a small attractive bookcase, and it was always lined with good books. He turned to these when he was not engaged with legal work. Like John Marshall, he was convinced that “no lawyer is entitled to the honorable and conventional epithet of ‘learned,’ if his reading is confined to statutes and the law reports.”

And this is especially true of the young lawyer in his early struggles. The legal neophyte has been a favorite of the novelists, and has not been forgotten even by the poets. Remember the Judge’s song in Gilbert’s Trial by Jury:

When I, good friends, was called to the bar,

I’d an appetite fresh and hearty,

But I was, as many young barristers are,

An impecunious party.

I’d a swallow-tailed coat of a beautiful blue—

A brief that I bought from a booby—

A couple of shirts and a collar or two,

And a ring that looked like a ruby.

But even this equipment seemed inadequate, as the Judge pointed out to the amusement of the crowded courtroom, crowded as all Gilbert and Sullivan’s operas are with charming girls who sing well. Encouraged by their smiles he sang on:

In Westminster Hall I danced a dance,

Like a semi-despondent fury;

For I thought I should never hit on a chance

Of addressing a British Jury—

But I soon got tired of third class journeys,

And dinners of bread and water;

So I fell in love with a rich attorney’s

Elderly ugly daughter.

The course followed by the Judge as an impecunious young barrister has respectable authority, and yet it is one that I would hesitate commending, for even though, as it seems from the remainder of this tuneful autobiography, it appeared to bring success, the engagement nonetheless lacked much attraction:

The rich attorney, he jumped for joy,

And replied to my fond professions:

“You shall reap the reward of your pluck, my boy,

At the Bailey and Middlesex Sessions.

You’ll soon get used to her looks,” said he,

“And a very nice girl you’ll find her!

She may very well pass for forty-three

In the dusk, with the light behind her!

With all its drawbacks the marriage undoubtedly possessed some advantages, for

The rich attorney was good as his word;

The briefs came trooping gaily,

And every day my voice was heard

At the Sessions or Ancient Bailey.

All thieves who could my fees afford

Relied on my orations,

And many a burglar I restored

To his friends and his relations.

For the young barrister not choosing this easiest way, there may be many third-class journeys and dinners of bread and water, but I think he will enjoy them better than a life with “a rich attorney’s elderly ugly daughter.” For those who choose the harder road, there lie many black hours ahead; if one quails at meeting these, he has made a cardinal mistake in choosing advocacy.

That important case is coming! On the most uncomfortable day of a long dry spell, Old Man Average will surely put in his appearance. Let us imagine the scene of his arrival, and let us suppose that you are a lawyer, at a stage in your career when your reputation and experience entitle you to expect important cases. The telephone rings, an attorney is calling you! It may be one whom you know well or one whom you hardly know, or it may be a stranger’s voice. But in any event he is telling you that he is the attorney for Mr. Smith, and that he would like to discuss retaining you in this case in the United States District Court, now working its way upward on the calendar.

The “Smith case” may be one of which you have never heard, or it may be one that has already had wide attention in the press; let us suppose it is the latter. You tell the gentleman on the other end of the wire that you would be pleased to see him and his client.

Your interest is aroused, your faculties alerted, as you wait impatiently for the hour to come. Finally the appointed time arrives. You greet an old friend or perhaps a new acquaintance, and he introduces you to the man whose problem will engage your waking and your sleeping hours for many days, perhaps for many months to come. You look upon the face of the man whose liberty it will presently be your duty to defend. Yes, it is the face that you have often looked at in the press. And you are surprised how much more favorable is your impression as you see it now without the dark surroundings of hostile printer’s ink.

A new case has arrived! A new planet has swum into your ken! There have been hundreds of others recorded in the books; they have some similarities but in greater or less degree they differ all from this one. Your new case stands on its own feet—alone!

After a few introductory remarks, you ask your potential client to state his case, to tell his story in his own way, and you settle back to listen. You will have in mind Quintilian’s advice, as timely now as when it was given nearly two thousand years ago: “Let us allow plenty of time and a place of interview free from interruption to those who shall have occasion to consult us, and let us earnestly exhort them to state every particular off hand, however verbosely or however far he may wish to go back; for it is a less inconvenience to listen to what is superfluous than to be left ignorant of what is essential.”

With the background of such knowledge as the radio, the television, and the newspapers have previously supplied you, you watch him as he talks. You let him talk without interruption. You encourage him to talk more. You make a note here and there as he goes along, but you do not interrupt him; you encourage him to open his whole heart to you, and still you listen. There is an art in listening. We all know that a good listener is the most sought after of all conversationalists. But it is not the accolade of a good conversationalist that you now seek; what you are looking for are the facts. And as the only way you can learn them is to listen, with every faculty alert you listen, and listening you still listen on.

What you want at this time above all else in the world are the facts. The facts, all the facts, and nothing but the facts. And the man seated now before you is the best person on earth to give them to you. The facts! Would that there were some way over and beyond italics with which I might stress, might shout aloud that word: facts!

After an hour or two you will have learned much. You will have learned much not only about the facts but about your prospective client. You may begin to see in all its stark significance not only the difficulties but the unpopularity of the cause that you are now being asked to undertake. But you will be a poltroon and not a man if you decline to represent him on the sole ground that he has been prejudged by the world. “In my practice at the English Bar,” Lord Norman Birkett once said, “I have frequently had to undertake murder cases of the greatest complexity and difficulty, not because I wanted to, but because of the unwritten law that I would not refuse.” The American advocate has more liberty of choice, but he is unworthy of the name if he declines a case on the sole ground that it is unpopular. For in the law unpopularity often is the post of Honor.

After listening to your prospective client for a long time, however, you may discern other grounds that adequately support your declination of the retainer. You may have heard enough to satisfy you that his position is totally dishonest, or you may decide that the case though honest is a hopeless one. In such a case, says Mr. John C. Reed, “I am clear that you should decline to make a fool of yourself.” And I agree.

But assume that you have decided to espouse his cause. With unfailing patience you will have listened to his every word, and your natural tact has not permitted you to show weariness at his many repetitions. Tact, that sensitive perception and nice discernment of what is appropriate to do and say in dealing with others without giving offense, is a quality for which you will find much use. The absence of this gift has been the downfall of many otherwise predestined for success. You will be patient therefore, totally patient, and will never let the client think that you are bored or that your interest for one moment flags. Do not shut him off. “Do not,” Bacon once said, “snub a client.”

In what has passed in the case before it came to you, you may find that many things have been done that you wish had not been done, but you will never be so tactless as to say so. And above all, you will never criticize the lawyer who has brought his client to you. Nothing could be more ungracious or more useless, and, from the practical standpoint, such conduct on your part will certainly insure that no other case will ever come to you from that source.

As the client goes on with his narrative, you will bend every effort conscientiously to follow him, but you will do more than study what he says, you will study him. You will form opinions (tentative, let us hope) as to his veracity and the kind of witness he will make should you ultimately decide to call him. And the process will be mutual; he will be studying you as well. The impression that you begin to make upon him will tend to dictate your future relationship. For it is essential not only that the lawyer trust his client but that the client have abiding faith in the man who is to represent him on the battlefield of justice.

As he talks, you will make many notes, dates, names of potential witnesses, addresses, and telephone numbers, and you will dictate to your secretary after each interview a full memorandum of all you have learned. Before he leaves, however, you will ask him to bring next time all the letters, diaries, or other papers he has mentioned and, as he is taking his departure, you will exude such honest hope as you can muster.

On his return the next day you will ask him to repeat again all that he has already told you and you will listen with renewed interest and attention, noting whether he now contradicts himself, and how and in what respect the repeated narrative may differ from the first, or whether the two are so mechanically identical as to suggest that all his story has been learned by rote. And then you will invite him once more to tell his whole story over again.

You have become familiar with it now, and as you begin to question him more closely, new facts will emerge. You repeat this process day after day until you know his narrative as well as he does. Long before this, however, your associates, especially the younger ones who served upon the law reviews, have begun plying you with “the law.” Some, indeed, start telling you about it long before you have attained anything like a mastery of the facts, ignoring the simple truth that there is no law in your case in the abstract. What statutes and decisions are in point depend upon the peculiar facts and circumstances of your case and nothing else.

The really difficult problem in the preparation of the case is to learn what the facts are, and no matter how long or conscientiously you work, you will never know them all. The law seldom decides the issue, the facts do; and as contrasted with the ascertainment of the facts, the law is relatively easy to discover. There are a hundred good researchers of the law to one who has a genius, I may say a nose, for the discovery of the true facts.

Some young lawyers have a tendency not only to minimize the study of the facts but to treat them as of inferior importance to what they are pleased to call the “law.” Such young gentlemen I think regard the facts as a field beneath them, a department belonging to the lesser brains of a detective bureau, or the untutored labors of a private operative. But the experienced advocate has learned that facts are the foundation, the only sure foundation, of his case and he has found out, too, how complicated and how difficult it is to dig them out.

“More and more,” Judge Cardozo once observed, “we lawyers are awaking to a perception of the truth that what divides and distracts us in the solution of a legal problem is not so much uncertainty about the law as uncertainty about the facts—the facts which gen...

Table of contents

• Title page
• TABLE OF CONTENTS
• DEDICATION
• INTRODUCTION
• FOREWORD
• PART ONE-THE TRIAL
• PART TWO-ADVOCACY IS INDEED AN ART
• PART THREE-GOOD ADVOCACY-A CRYING NEED
• PUBLISHER’S NOTE ABOUT LLOYD PAUL STRYKER
• “KNIGHT WITH THE RUEFUL COUNTENANCE” -A Profile by Alexander Woollcott
• BIBLIOGRAPHY
• REQUEST FROM THE PUBLISHER