CHAPTER VII

WHICH DO LAWYERS UNDERSTAND BEST?
THE LAW OR THE JUDGE?

Why is it that lawyers of late seem to be at a loss to properly and effectively advise their clients? Is it because they know less, and less, legal questions which confront them, or is it the uncertainty of the attitude which the judge will take on the same questions? Why is there often such wide divergence between lawyers and judges in opinion on legal questions which seem free from doubt? They cannot take it for granted that a judge will agree with them about anything scarcely, and so like the young lawyer who for the first time appeared before the Supreme Court of the United States. He began feeling his way by touching the court on a lot of familiar legal propositions, till the court expressed surprise by asking: "Do you not think, sir, that the court is familiar with all these fundamental principles?" "Well," the young lawyer replied, "I thought the court below understood it all, but I found I was mistaken.'

That but expresses a common experience among lawyers. It would be well if judges were quite as frank in admitting counsel to be right; instead they usually "take time to consider."

Of consequence, counsel will not concede themselves wanting in knowledge of the general principles of law, from which it may be inferred that they consider the judges, especially the Circuit judges, less learned in the law than attorneys who practice in their courts. It is doubtless true that the best legal minds are not on the bench, and one reason for that is that they can make much more in practice than the salary of a judge.

But is would hardly be just to say that our Circuit judges, as a rule are not reasonably good lawyers capable of threading their way, especially by assistance of counsel, through the general

routine of court procedure in so far as the mere question of learning in the law is concerned; in fact many of them, are quite well versed in legal questions, and doubtless there are none who are wholly incompetent, or with any near approach to it, otherwise they had never been admitted to practice the law, and the best lawyers differ, otherwise there would be few, if any lawsuits. The great trouble is not so much lack of ability or knowledge of the law on the part of judges, but, that for some undisclosed reason they will find excuse to differ, which is a mighty leverage in the hands of a man who may reason that he has the power to say, to decide, right or wrong, it settles it in so far as he is concerned. Lawyers differ, courts differ, what about it? He can only be reversed. Other courts are reversed, who can tell where the right is? Let them fight it out. The mere fact that they are reversed about sixty to seventy times out of every hundred with extravagant costs and delays to litigants, gives them not one single pain or pang of remorse. To them the office of judge has just been a means of livelihood. Without judicial pride or judicial temperament, they flounder along, let the chips fall where they will. But they could accomplish the same results with little or no labor by simply guessing off the controversy along the line of the old game of "Odd or even" played by boys with roasted chestnuts.

Recognizing, evidently, the situation referred to as one existing, some would seek to remedy it by larger salaries and longer terms of office. That would make an already bad thing worse, in a political partisan judiciary. The claim for larger salaries implies that thereby better men and better lawyers would be available, that would not otherwise serve. It would be difficult to imagine any salary much less than double the present salary, that would attract that kind of men, and besides that class of men in this state are earning in the practice more money than the state could hope to pay them as judges. Already salaries of Circuit judges have been quite doubled. Eminent lawyers in West Virginia used to serve on the bench for $1800.00 a year, nor has increase of salary given us judges who were their equals. In the next place, an attractive salary is more or less incompatible with the judicial office. If it had been left to money avarice to furnish attraction for judgeships, we might have had

a lot of judicial grandees, but never judges close to, and in sympathy with those whom they would serve, save for those who are immediately responsible for placing them in power. The judges of the Supreme Court of the United States do not get a salary that is any approach, whatever to their learning and ability; nor is it even two dollars out of ten of what they could make in the practice of law. Judges have served on that eminent tribunal for a life-time, for less money than they could have made in practice in from one to three years, and if it were not for the fact that there are men who realize that there are greater and more enduring rewards for the faithful performance of public service than are to be found, merely in money, judges would long since have forfeited the high regard and esteem which the general public have always been ready to manifest towards them.

As to longer terms of service, people, apparently, are more ready to take risks on the judgeships than with any other public functionary. Congressmen serve two years, the President four, and United States Senators six, Governors of states, two to four years, and at that many people get very tired of them. An eight year term for a judge is more or less a risk; more than less. An indeterminate sentence to the bench would be much better. Give a judge, for instance, a trial of four years, along with the President of the United States. If he justly earns promotion, most people would find it out, insuring his re-election. Promotion for meritorious services has long been a fixed rule in the business world. It is a practical Referendum and Re-call. The reason it is so practicable, is that there is no politics in it. It is a kind of Civil Service rule.

WHEN A JUDGE FAILS TO FUNCTION
AS A JUDGE

For some reason or other, a judge, like a jury fails to function in a judicial sense to such an extent that it amounts, for the time being, in affect, to an abdication of office.

This may be attributable to one of several causes. For instance, it often occurs that there is lack of good understanding between judges and counsel in a cause. The judge may, and may not, be to blame for this, but wherever the truth lies it

certainly does occur that there will be lack of vision in advance on the part of counsel or client, to devine just what a judge may do under given circumstances, to both counsel and client.

I have known it to occur, that both counsel and client on going into a trial, were about in the same position as a Commanding General, whose dispatch carrier, and dispatches had been captured by the enemy. A client in such position is always beaten in a suit, before the test of the writ;

The

I recall this sort of circumstance;-two circumstances. first was that the court seemed disinclined to concede that either counsel or client were entitled to any notice on account of the merits in a cause, whether for or against them. In the case referred to, the client was clearly entitled to have his motion. granted then and there. It would have retired the client from the case on an important issue, and saved him time and trouble. The motion was peremtorially refused. It would have been reversable error, if the refusal had gone into the final order. The client finally got his motion; but the court went all around Robin Hood's barn, and gave it to him in such disguise that it could not be seen from the record or order that the particular attorney had ever raised the question which was in no wise referred to in the order, though in effect, the relief prayed for, which dropped out like a rag out of a wash-tub, at the end of a labored opinion. It was much like the hanging of Haman, instead of Mordecai. It was a scene and drama not on the bill-board. It was a test of skill on the part of the court to accomplish what was coming to the client, and yet keep it a secret from him, for he could not have seen it.

It will appear all the more strange, that, in another case then at the bar of the court in which the same kind of motion was made on the same ground, was readily granted, the court remarking that it was in accord with the practice in all such cases. But it was a different attorney and a different client.

In the one case the court had acted like the judge in the parable, who had avenged the widow to get rid of her; in the other, he acted just as the judge ought. In the one case it was like a weather forecast; "it would rain, or shine, be hot or cold, West, or South Westerly winds," and leaves one in doubt of whether to take an overcoat or an umbrella.

Here is a case in which the enemy may have captured the dispatch carrier and dispatches; We do not know that they did. They often occur, and are very difficult, sometimes to dispose of. They are such as cannot be avoided in advance, perfectly legitimate at the outset, and if ever, test the judicial ethics of a judge, and professional ethics of counsel when least expected, and in some way thwart the administration of justice in a way for which no one is morally to blame, after making due allowance for frailties of human nature, because there are perhaps, few of us who do not have somewhere in our make up,

"Little flees upon our backs to bite us

and little fleas, still lesser fleas

and so on, ad infinitum"

The judgment of the court, in case referred to was clearly, palpably, erroneous, even to the mind of the laymen; a friend said to the plaintiff, "Rube, how did your case go?" "Oh" he replied, "the judge cast it out"; Counsel for defendant had been a former partner of the judge before he came to bench; no harm in that; counsel for defendant had also been, now a quandum Democrat, now a quandum Republican; some very decent people may well be so one time or another, for reasons sufficient with politicians; the law firm of counsel for defendant had married the blood kin of the judge; it had a right to do that. "When self the wavering balance shakes,

Its rarely right adjusted."

Few judges, if any, be they never so eminent, seem to shun criticism for this or that. John Marshall the great Chief Justice, and expounder of the Constitution, it is said, got himself in on contradictory rulings on the trial of Aaron Burr, for treason. Abraham Lincoln, a wise and just man, criticised, in unmeasured terms the Supreme Court of the United States in the Dred Scott case, for having, as Lincoln contended, postponed, for purely political reasons, its judgment in that celebrated case till after the inauguration of President Buchanan. Lincoln's argument on that point is exceedingly persuasive: