312 DUBOIS— OBSERVATIONS ON THE [April 23. 



the extent of damaging a cause — for it is a fact that a verdict or a 

 disagreement is not seldom a slap at a lawyer's course. Many a 

 case is undone by overdoing. This is a hard lesson for lawyers to 

 learn. In his reminiscences of a long life at the bar Theron G. 

 Strong {The Outlook) notes this danger of time-wasting excess and 

 overdoing. He says : 



" The man who can say the most good sense and sound law in the shortest 

 time has a decided advantage. Juries are not much influenced by outbursts 

 of eloquence, and appellate tribunals will not tolerate them. A tired and 

 yawning jury will not be likely to take the most favorable view of an 

 advocate's case, and when the attention of an appellate tribunal is lost and 

 the judges begin to converse in whispers or bury themselves in the record, the 

 oral argument is little more than a waste of time. When you have lost at- 

 tention, you have probably lost your case. Juries and judges have become 

 so accustomed to business-like methods that they appreciate a simple and 

 clear presentation of the essential facts, each argument in its support clearly 

 stated in a few well-conceived sentences, with no baitings and no revertings 

 to things inadvertently omitted, no fumbling of documents, and no reading 

 from authorities .... 



" One of the most important arts of the court lawyer is to know when to 

 keep still, and be able to exercise the self-command to do so. Many a case 

 has been won by paying due regard to the attitude of the judge when he 

 essays to combat the views of opposing counsel. The lawyer is indeed want- 

 ing in tact and discretion who then assumes any other role than that of a 

 spectator of the proceedings. By all means let the judge do your arguing 

 for you if he is so inclined, and if in this way he indicates that he is favorably 

 disposed it is folly to attempt to reinforce his views; even though they could 

 probably be reinforced to advantage, they do not need reinforcement so long 

 as he adheres to them. The moment the court appears favorably inclined 

 to your side of the case is the time to preserve discreet silence. This is 

 equally true with juries, and if in the course of the trial there is the slightest 

 leaning in your favor, then is the time to do as little as possible by objections 

 or long cross-examinations, which can only have a tendency *to lead the court 

 and jury to think that you consider it necessary to strengthen your case when 

 it needs no strengthening, the only effect being to counteract the favorable 

 impression that has been made. Many a case has been spoiled by an inability 

 to recognize the appropriate time to say nothing." 



I quote this at some length because few lawyers are so discern- 

 ing of the juror's point of view. I confess to the feeling of an 

 oncoming bias against the lawyer who is working too hard. Too 

 much repetition of evidence, too many witnesses, too great detail in 

 the pleading, too much swelling molehills to mountains, too noisy 

 oratory — all these excesses tell on the juror's temper. He does not 



