68o
THE GREEN BAG
general plan of campaign, not held to at all hazards, as a fetich, but lending coherence to the facts; but which the skilled advocate is ready instantly to abandon without changing a muscle, should need appear for doing it. The rules of evidence, especially those relating to cross-examination, become invested with a new and vital interest when so considered. The conduct of a competent master in this art, so hard to realize except in its effects, would be illuminating to the future member of the Bar in a high degree — not from the standpoint of the story teller, who chuckles at a misled jury, but in order that one may notice why the master saw fit to do as he actually did; what results followed and what might reasonably be expected to have happened had he seen fit to adopt a different course. This would be to study the rules of evidence algebraically — to gather from cases not only and not so much what the "rules" are (for this ques tion is so confused with local practice, rules of court, and the like, in any particular jurisdiction, as to be of comparatively slight value), but in order that the student may learn the more difficult and far more valuable lesson of how they should practically be applied; wliatever they may, speci fically, be, within certain general principles of judicial administration. It may be said that this may be done by the pupil by observing for himself the action of suitable models, when, later on, he un dertakes the practical work of his profession. The objection overlooks the important fact that typical modern methods afford no time for such a course. The head of a modern law office cannot take time to give personal attention to this or any other branch of perfected professional training of his young associates. His needs demand from the modern law school a furnished product. It is, therefore, the duty and privilege of the law schools to furnish it to the profession. Dean Wigmore recognizes the practical
value of this training and suggests it as a proper element in a complete instruction in evidence. In the preface of his present case-book, after consideration of other prac tical methods in which this instruction may properly be carried on, the dean proceeds to offer the following suggestion and confes sion : "Two complete trials may be taken, one English and one American, both to be of classical merit as examples and of great interest in their facts. The class is first to peruse the trial as a whole; then to take it up in parts, and to analyze and discuss the various problems of management of proof; asking, first as to the plaintiff or prosecutor and then as to the defendant, what were from his point of view the strong and the weak points of his case, what the proper features of emphasis, what the preparatory caution, and what the best order of present ing the witnesses. Then the testimony of individual witnesses is to be examined and discussed, the need or utility of specific ques tions, and the total effect of his testimony. Then the proper lines of closing argument on the testimony would be considered, and the actual arguments compared therewith. In these and other ways the analysis would develop in useful fashion a comprehension of the strategy and the tactics necessary in some degree or other in every trial, and practiced with more or less conscious skill by every experienced trial-advocate. But there are two almost insuperable obstacles in the way of this valuable adjunct to a course in evidence; first, it must be con ducted by a practitioner who unites a warm interest in the art as such and a large ex perience in trials, and this combination is rare; secondly, two suitable trials must be found, and a reprint must be in the hands of each member of the class. The present compiler had hoped to include in this vol ume two such trials, with a view to making feasible this branch of the work; but no American trial, suitable in compass and in other necessary features, and fully reported, has thus far met his search. The plan is mentioned here in the hope that it will attract the attention of some one interested in the subject, who may be more fortunate." It may be doubted whether the difficulties here found or suggested are, in themselves.
