USA > Indiana > Courts and lawyers of Indiana, Volume III > Part 17
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It was some months before the case could be brought to trial. One day I was walking up Broadway on my way home, when whom should I meet but my client. He was looking more spruce and cheerful than I had seen him at any time since his calamity. He had with him a stout, florid Hebrew, with a red necktie and a large diamond pin in his shirt. Cris- tolar said to me, "Mr. Foulke, I vant to present you to my friend, Mr. Emmanuel." "Mr. Emmanuel, dis is my lawyer, Mr. Foulke." Mr. Emmanuel seemed to be quite well ac- quainted with the state of affairs in regard to Mr. Cristolar's suit, for, taking me apart just around the corner of a side
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street, he asked me, "Dis case against Mr. Harris Leir and de pawnbroker, ven will it be tried"? I told him probably in a few weeks, when he added, handing me his card. "Now, Mr. Foulke, before dis case comes. up I vant you to tell me shust exactly vot you vants to prove and shust so many vit- nesses you vant, you shall have dem." I made no answer and turned away, at which he seemed greatly surprised. He evi- dently could not understand the conduct of a lawyer who would not avail himself of such opportunities. I soon after- wards settled the case-a settlement on the whole reasonably favorable to my client-but I must confess that my motive in making it was largely the fear that notwithstanding the fact that his claim was, on the merits, a just one, there was a strong probability that it might be supported by evidence that was in whole or in part manufactured. In other words I had now no longer confidence either in my client or in the witnesses he might bring to me.
I had charge of certain pieces of property in Chatham street, leased to Hebrew tenants, and on the first of each month I used to betake myself thither to collect the rent. On one occasion I found the shop of Mr. Samuels, one of these tenants, closed and on the door was the announcement of an assignment in insolvency proceedings. Failing to gain admit- tance, I returned to my office to find Mr. Samuels awaiting me. His first remark was, "Maybe you vas up to de store to get de rent." "Yes, I have just come from there and I found a notice that you have failed in business and have made an assignment." "Yes, ve had a leetle misfortune, but de rent is all right, Mr. Foulke." Here he produced a corpulent roll of bank bills from his pocket from which he counted out the requisite sum. "You will please make de receipt," he added, "in de name of L. Samuels and not in de name of Myer L. Samuels, and if you should ever go up dere again and find de door closed and a notice like dat-a notice of an assignment- you shust give two raps and den three raps like this (showing me) and ve let you in. For de rent is always right, Mr. Foulke."
I grew very fond of my profession. I would sooner try a case before a jury-a case with a fair chance to win-than
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eat the best dinner that ever was set before me. There was a keen delight in preparing new schemes to circumvent the adversary and to convince the twelve honest men and true that all the merits of the universe encircled the cause of the client whom we represented. We lawyers are often accused of saying on behalf of our clients things which we do not believe, of seeking to
"Make the worse appear, the better reason-"
I do not think that our shortcomings lie so much in that direction, as in the line of another frailty of human nature, and that is, the power after one has once become a partisan, to see things only through glasses so strongly colored with that partisanship that the white light of truth will not pass through. I do not remember that I ever accepted a retainer when I suspected that my client was lying to me or was giv- ing me a case filled with fraud or injustice, but it is not a hard thing to believe your client. He can nearly always put his side of the question in the best light and, once having made his cause your own, it is not hard to believe that it is always the other man's contention and the other man's evi- dence which is replete with iniquity. Nor is it easy to aban- don your client in midst of a lawsuit, nor is it honorable, ex- cept in the case of the most flagrant deception.
I recall a trial where our firm had been retained by a wid- ow to collect insurance money on a policy which her husband had taken out a year or two before his death. The insurance company defended the case upon the ground of false repre- sentations and a broken warranty by the insured, who had stated that his heart was in sound condition, whereas he was then suffering from a serious valvular lesion, which subse- quently caused his death. His representations had been made in writing and, upon the policy which we held, the company's physician certified that he had examined the man and found his heart in good condition.
The trial was held at Riverhead, a little country town near the east end of Long Island. My associate and myself were astounded when two witnesses were produced by the defend-
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ant, the physicians of two other insurance companies, who both testified that a few days before the policy was issued, they had examined and rejected the man insured on account of organic disease of the heart. The case seemed pretty dark for us, but we could not abandon the widow whose livelihood depended largely upon the results of this suit. Fortunately, the two doctors who had come from New York City disagreed somewhat in the diagnosis. I cross-examined them thorough- ly about their knowledge of the valves of the heart, the aorta, the tricuspid, the mitral, about the beats of the heart, the sys- tole and the diastole, and a lot of things which are Greek to a jury quite unlearned in medicine. On the whole, the physicians sustained the examination fairly well, though there were trifling inaccuracies in their answers. They did not quite harmonize as to the symptoms and were decidedly conceited as to their own attainments.
In the meantime, a plain-looking country doctor, who hap- pened to be a witness in another case, was sitting near us. He looked rather irritated at the superior airs of his city brethren and pointed out to me some weak points in their tes- timony. It occurred to me it would be a good thing to call him and, after a few preliminary words with him, I did so. The examination was to the following tenor: "Doctor, how long have you been engaged in the practice of medicine?" "Thirty-seven years." "Where have you practiced ?" "Right here, sir, in this immediate neighborhood." "Doctor, I desire to call your attention to the following symptoms and ask what disease of the heart, if any, do they indicate." Here I re- peated all the symptoms testified to by both the physicians called by the defendant. I was very particular not to leave anything out. His answer was, "No disease under the sun." "What do you mean by that?" "I mean that such symptoms as you describe cannot possibly all exist together." "Have you ever examined a man to see if he had any organic disease of the heart?" "Hundreds of times." "How can you tell?" "Well, I just put my ear down to the heart like this (showing the jury), and then if I hear something that sounds like the purring of a cat I know that he has some organic trouble with the heart."
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By this time the jury had pricked up their ears. Here was no stranger, no conceited city man talking about a steth- oscope and a sphygmograph and a lot of other incomprehen- sible things with unpronounceable names, but this was the good doctor who had pulled them safely through their own afflictions, who had brought their own babies into the world, and treated them for the measles, mumps and scarlet fever. There was no humbug about such a man as that.
Now, there had been no evidence anywhere of anything like the purring of a cat. What then could be plainer than the conclusion, that if these foolish city doctors found any- thing wrong at all, it must have been some mere temporary and functional disorder which did not in the least invalidate the written warranty made by the deceased and that the dis- ease which finally carried him off must have been of later origin. The defendant's lawyers tried in vain to shake the: doctor's testimony. The jury seemed to look with disfavor upon any imputations cast upon his professional skill and competency.
I became quite impassioned in my closing address to the: jury. I resented with special bitterness the contention of the other side that we had not offered a word of evidence to con- tradict the facts related by the physicians whom they had called. "When the hand of death," I exclaimed, "has sealed the lips of the only other witness to the transaction in ques- tion, it comes with ill grace for these gentlemen to demand that the dead shall speak." I read to them with great solem- nity the certificate made by the company's own physician that the man was sound, and I was proceeding to demolish the medical attainments of the two city upstarts and to draw the inevitable conclusion for the absence of all purring on the part of the defunct. I knew that the jury was with me and I was filled with great enthusiasm-when I suddenly felt a tap upon my shoulder and heard the word "Stop" from the lips of my partner. I couldn't understand the meaning of an interrup- tion from such a source until he added "The case is settled. They give us seventy-five per cent. of what we ask." "The jury will be dismissed," said the court, and he added, "The
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only thing I regret about this settlement is that I couldn't hear the end of that purr-oration."
Although a large city is the place of widest opportunity for the old and experienced practitioner, it is by no means the best place for a beginner. No one takes any interest in what he is doing. If he has conducted a skillful cross-exami- nation, or made an able and brilliant speech to the jury, the fame of it is not spread abroad as it would be in a country town. The people of a great metropolis commonly take little interest in the ordinary proceedings of their tribunals, al- though some who are actually present when a young lawyer makes a hit may afterwards be of service to him in his career.
I remember a small case I once had in one of the district courts against a publisher. The man had attempted some trifling deception and, in an impassioned appeal to the jury, I held up his conduct to withering scorn, denouncing him with all the vehemence I could muster and I won my verdict.
That afternoon I saw him walking into my office. My first impression was that he had come to commit some act of violence and I rose rather quickly from my chair so as to be ready for him. But no! In the friendliest manner possible, he laid before me the facts in two other cases much more im- portant than the one in which I had just defeated him, in which he claimed that he had been wronged and he wanted me to "pound" the other fellow in the same manner in which I had just "pounded" him.
But it was not long that I continued in the practice of the law at New York. In 1876 I moved to Richmond, Indiana, where I had a favorable offer of partnership with Jesse P. Siddall, a leading lawyer of the place and then attorney of the Pan Handle Railway Company.
The change from practice in a large city to that of a coun- try town was greater than I had imagined. And yet the life and the people had a certain charm which soon compensated for the loss of the more exciting attractions of the metropolis. The inhabitants of this western community seemed to me at the outset decidedly crude. In the first place, they dressed very plainly and appeared to regard that as the only proper
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thing to do. Indeed, many of them were quite too careless in their personal habits and appearance, and one who ven- tured to be an exception to the rule confided to me his belief that a man's popularity was in inverse ratio to the cleanness of his shirt. Very few of them had had the advantage of a college education. They knew nothing of Greek or French or Italian, and very little Latin except a few words of the barbarous jargon (often mispronounced), which they had extracted from the musty volumes of old law books. Even the English tongue was mingled with occasional dialectic variations which grated very harshly upon the ears of a new- comer. When a fellow member of the bar would say to me, "It looks like it is goin' to rain," or, of a man in jail, "He wants out," I could not at first so far disassociate the speaker from his rustic phrase as to believe that he could really be a man of learning and ability. But after daily contact with such companions-after that competitive trial in court which is the surest indication of what a man is worth-I must say that I found the average of professional skill in this Indiana town considerably higher than the average in New York City. And this is not true merely of technical attainments. For the man of the West, though he shows less of the orna- ments of learning, has a better perspective of life and of the things that are useful in life than his Eastern brother. He understands more thoroughly his country's history and the nature of her institutions. He knows the leading things in science and English literature and, most important of all, he has shrewd sense, keen knowledge of human nature, the power of clear thinking and of fluent and forcible, if not elegant speech.
The bar of the county seemed to me much like a large family. We all met together at the court room every morn- ing at eight o'clock to make up the issues and dispose of other matters preliminary to trial. At nine the jury was called. The criminal trials came first in the term, then the civil suits, and while the various lawyers waited for the calling of their respective cases, they would often spend the time convers- ing together in one of the consultation rooms adjoining the
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court room. Here the joke and the story circulated and here 'strong friendships were formed. A great waste of time it seemed to me at first and some of it was, but it was much such schooling as this that trained our incomparable Lincoln to gauge so well the temper of our people and to meet so skill- fully the manifold emergencies of his difficult position.
Let me recall some of my brethren of the bar. There was my partner, Mr. Siddall, short of stature, clean shaven, portly, venerable, mopping his well-rounded bald head when the weather was hot, with a many-colored silk bandanna. He talked little, but every word counted. He never loaded his legal arguments with a mass of authorities; one or two cases right to the point were enough. Sometimes there was not a citation. But I have rarely known his equal in the power of convincing the court by well-ordered, luminous thought, ex- pressed in a few clear, simple words. It was he who often presided (quite informally, of course) over our reunions in the court room or the library adjoining. He was a good lis- tener-as a chairman ought to be-to the tales and jests of the others, whose bon mots he rewarded with a benevolent smile. Yet he had a shrewd eye for the main chance and had acquired a comfortable competence by his profession. He was wise, not only in winning his clients' cases, but in pre- senting to them a bill proportionate to the good service he had rendered.
Our firm was once engaged in a matter of some import- ance which we settled out of court upon satisfactory terms. When we came to fix the fee Mr. Siddall suggested that a thousand dollars would be reasonable. The amount seemed to me rather large, and I remarked to him that it was only a matter of a few days' work and that perhaps they would regard it as excessive. He turned to me his most benevolent face and said with a smile. "But think of the responsibility !" The bill was sent and no complaint was made. Ever since that time, whenever I had difficulty in screwing up my cour- age to demand adequate compensation for my services, I have always tried to "think of the responsibility."
Then, there was Judge Perry, who had lived in the county
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for upwards of seventy years, and who although brought up . in a community of log houses amid the roughest surround- ings, bore the unmistakable lineaments of the old-fashioned gentleman. He had a slender form, clad in an old broadcloth suit, a little threadbare; a long neck, encircled by a high, black stock ; finely cut features, soft grey hair and a resolute mouth. His cheeks were inflamed sometimes by righteous anger and on such occasions he would use language of the most forci- ble and reprehensible character, but it never degenerated into vulgarity. There was no member of the bar who ever sus- pected Judge Perry's absolute probity or sincerity. As we jogged along the turnpike together one day, he called my at- tention to some fences which encroached upon the highway and told me he hoped to live long enough to make those ras- cally deacons put them back upon their own lines again. As he was descanting upon the iniquities of church members in general (the Judge was sadly tinctured with heretical notions) he noticed that his old grey horse was apparently falling to sleep. Pulling his whip from the socket and giving him a sharp cut, he exclaimed, "Damn you, you thought I had left my whip at home, did you? A thing I never do, sir;" and he aroused the animal into a fine gallop. Every morning at five o'clock he went out to the pump and pumped himself a tub of cold water for a bath. Sometimes the ice had to be broken and salt poured down the pump for that purpose, but even after he was eighty years old, that cold bath in the early morning was never omitted. His regard for truth was so great that even his metaphors had to be exact. Once when addressing a jury, he began, "Never on God's green earth"; then, looking out of the window and seeing there was still snow upon the ground, he added "or which shortly will be green, was a more unjustifiable offense committed than that whereof the defendant stands accused." He had served two terms as Judge of the Common Pleas and died at last at a very ripe old age-nearly ninety-greatly honored and loved by his associates. The tale was told of him that once when he bought a horse for which he was to give a note in payment, the seller asked for security. The Judge thereupon passed the
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note to a lawyer who was sitting next him, who subscribed his name and passed it to the next until it was signed by all the attorneys in the county, whereupon the man to whom it was tendered declined absolutely to receive it, saying, "If all you lawyers are upon that note how am I ever to collect it?"
The most "eloquent" man among us, in the Hoosier sig-
nification of the word, was Colonel B .- The Colonel seemed to be the creature of instinct rather than of reason. He once told me that when a case was presented to him his conclusion came like a flash and that no amount of thinking ever made it more clear to him. His logical processes as set forth in some of his judicial opinions (for the Colonel was at one time Judge of our Superior court) were quite incom- prehensible to others. It was undoubtedly to such as he that the advice was once given, "Decide, but do not give your reas- ons, for, although your decision may be sound, your reasons never will be." He was the creature of instinct, too, in other things, irregular in his life, and at times a hard drinker. Yet he had one instinct which predominated over all, the instinct of getting and keeping money, and even during his dissipation, no one ever succeeded in emptying his pocket of its cash. As lawyer he was great in one thing only, in his impassioned appeals to the jury in cases which awakened sympathy. None could paint more vividly in a suit for criminal conversation, the charms of virtue and the sanctity of the home. His imagery was superb and his words, "descending like snowflakes of the winter," enveloped the delighted imaginations of the hear- ers with their white mantle. No man who invaded another's household could escape if the Colonel prosecuted; no man who shot the suspected assailant of his honor could ever be con- victed if the Colonel defended him. He was a wonderful raconteur and it was always his stories, which were some- times none of the choicest, that aroused the greatest laughter in our gatherings. Whatever he wanted to say, the appropri- ate words always came-words in such abundance, poetic, idiomatic, rhythmical,-that sometimes they almost suffocat- ed the thought, if thought there were, beneath them.
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He was a great believer in spiritualism and in fiat money. He was much in demand at Fourth of July celebrations, at the political rallies of his party, at temperance meetings and even revivals, at which he became suddenly converted, made edify- ing confession of his past sins and relapsed again as soon as the fever was over. The good people of the community used often to denounce him soundly, but so genial and good natured was he that their righteous hatred could not long endure and they bore with him with more than Christian tolerance.
The Judge of our Circuit court (John F. Kibbey, 1873-85) was a man quite the very antithesis of the Colonel. He was not in the least fluent in speech. His charges to the jury were always given in writing, were concise to a fault, stating the law in very few words and with surprising accuracy. He was a man of the most impeachable integrity, diligent and prompt, but arbitrary in his treatment of the bar, which he disciplined as if he were a schoolmaster. He held the most extreme theories in politics and sociology, theories which never had the slightest influence over his own conduct or po- litical affiliations. Government had not the right, he said, to tax men for any other purpose than the maintenance of justice. Public schools, fire departments, postoffices, national currency, all such things, were iniquities which, however, he supported with the utmost good will, voting the Republican ticket con- sistently at every election. The dangers from the vast accu- mulation of property might be avoided if men would refuse to perform servile acts one for another, yet he never thought of dismissing the servants of his own household. He always believed in woman suffrage until he passed the threshold of the hall of a woman's suffrage convention ; there he remained an unbeliever until he was out in the street again. Indeed, he always took the opposite side on everything to that sup- ported by the man with whom he was talking, and those at the bar who were shrewdest, used to find that the best way to get a decision from Judge Kibbey was to say as little as possi- ble and let him argue the case himself with the opposite coun- sel. He had a way (not to be imitated by every Judge) of talking to the lawyers about their cases out of court, but it never gave those of us who knew him, the least anxiety to
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find the Judge talking with the lawyer on the other side, for we well knew that the harder the man argued, trying to con- vince him, the less likely he was to succeed.
It used to be great fun to cross-examine the medical ex- perts. The science of medicine is infinite in its details and it goes without the saying that if the cross-examiner will only load himself with information enough on some particular sub- in the world questions which the latter cannot at the moment answer. But it is odd to note the change in deportment of the division of a special subject, he can ask the ablest physician medical expert under the manipulation of the cross-examiner. He comes upon the stand confident and self-satisfied, con- scious of the possession of vast stores of recondite knowledge. He goes through the direct examination swimmingly; the hypothetical questions are propounded and he answers them with all the cocksureness of an oracle. When he is handed over to the counsel for the opposite party, there is perhaps a flash of defiance in his eye which says, "You poor, unlearned layman! ask anything you can, I am ready for you." If the cross-examiner begins by asking him directly about his own qualifications, he is quite as apt to strengthen the witness as to weaken him, for it is a rather poor physician who cannot call up stores of experience undreamt of by his questioner. But let the lawyer ask about the detailed structure of the nerves or the muscles producing certain symptoms, and ten chances to one the doctor will soon find himself at fault. A shade of doubt steals over his features. He tries to explain why he doesn't know and involves himself still deeper, or, more fatal still, he may assume a knowledge he does not pos- sess and thereby lead to the general collapse of his whole evidence. I once cross-examined a doctor who had testified against my client, a rather eminent surgeon, in a malpractice case. The question at issue was the proper method of making a certain amputation of a foot. The witness was anxious to impress upon me the variety of his attainments and the extent of his knowledge. The examination ran somewhat thus : "Doctor, is it not true that these tarsal bones you are speaking of are somewhat difficult to identify when separated?" "Not in the least." "Could you always tell the bones of a right
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