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Civil Litigation

This is a very abbreviated overview of the civil litigation
process in Texas. It is intended only as a general introduction to
common concepts and not as a guide to effectively
presenting or defending a civil claim.

A lawsuit is a civil action brought in a court of law in which a “plaintiff,” a party who claims to have incurred loss as a result of a defendant’s actions — which could be for personal injury, breach of contract, or some other type of complaint — demands a legal or equitable remedy, usually meaning either a money judgment for damages or an order from the court for specific performance. The defendant is required to respond to the plaintiff’s complaint.

In some cases, the Plaintiff may be called the “claimant” and the Defendant may be called the “Respondent.”

If the plaintiff is successful, then a judgment will be given in the plaintiff’s favor, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act. Additionally, under the Uniform Declaratory Judgments Act, (which applies in Texas), a declaratory judgment may be issued to settle certain disputes and prevent future ones involving the same issues and parties.

The process of conducting a lawsuit is sometimes called “litigation.”

Rules of civil procedure govern the conduct of a lawsuit in the common law adversarial system of dispute resolution used in Texas. The Texas Rules of Civil Procedure govern civil litigation in Texas state courts. Sometimes, these procedural rules are additionally modified by separate statutory laws, case law, and constitutional provisions that define the rights of the parties to a lawsuit, though the rules will generally reflect this legal context on their face. Often, the Texas Civil Practice and Remedies Code will set out the type, kind and variety of damages and relief a plaintiff may recover, and it sets out a variety of defenses in specific types of cases. Also, many other Codes in Texas set out a variety of deadlines and limitations that apply to specific civil cases.

While the details of procedure differ greatly from jurisdiction to jurisdiction, and often from court to court within the same jurisdiction, the Rules of Civil Procedure govern the basic track of a lawsuit.

Though the majority of civil cases are resolved prior to trial through mediation or by direct settlement negotiations between the parties’ attorneys, they can be very complicated to litigate. Often, discovery must be conducted before the parties are able to meaningfully start to negotiate a settlement of their dispute.

Lawsuits become additionally complicated as more parties become involved. Within a single civil action, there can be any number of claims and defenses (based on different laws and common law rights or defenses) between multiple plaintiffs or defendants, each of whom can bring any number of cross-claims and counterclaims against each other, and even bring additional parties into the suit on either side after it progresses. However, courts typically have some power to sever claims and parties into separate actions if it is more efficient to do so, such as if there is not a sufficient overlap of factual issues between the various claims.

A lawsuit begins when a complaint is filed with the court. This complaint will state that one or more plaintiffs is seeking money damages or equitable relief from one or more stated defendants, and will identify the legal and factual bases for doing so. It is important that the plaintiff selects the proper venue with the proper jurisdiction to bring his lawsuit.

Once the original petition or complaint is filed, the plaintiff will request the Clerk of the Court to issue a Citation. The Citation, along with a copy of the petition, is served on the defendant by either a private process server or a law enforcement officer. Sometimes, service of the Citation and the petition is effected by the Clerk by mail, or by alternative means, such as by publishing notice in a newspaper or posting the Citation on the defendant’s door. Service must be accomplished in the manner governed by the Rules of Civil Procedure and calculated to give actual notice of the lawsuit to the defendant.

The Citation notifies the defendants that they are being sued and that they have a specific time limit to file a response. By providing a copy of the complaint, the service also notifies the defendants of the nature of the claims. Once the defendants are served with the summons and complaint, they are subject to a time limit to file an answer stating their defenses to the plaintiff’s claims, including any challenges to the court’s jurisdiction, and any counterclaims they wish to assert against the plaintiff.

If the defendant chooses to file an answer within the time permitted, the answer must address each of the plaintiffs’ allegations by admitting the allegation, denying it, or pleading a lack of sufficient information to admit or deny the allegation. Some jurisdictions, like Texas, authorize general denials of each and every allegation in the complaint. At the time she or he files an answer, the defendant will also raise all “affirmative” defenses she or he may have. She or he may also assert any counterclaims for damages or equitable relief against the plaintiff, and in the case of “compulsory counterclaims,” must do so or risk having the counterclaim barred in any subsequent proceeding. The defendant may also file a “third party complaint” in which she or he seeks to join another party or parties in the action if she or he believes those parties may be liable for some or all of the plaintiff’s damages. Filing an answer “joins the cause” and moves the case into the pre-trial phase.

Discovery Procedures in Civil Cases in Texas

Discovery is a process by which the parties to lawsuits explore the facts, circumstances, evidence, and arguments of each other’s case. The purpose of discovery is to provide each side with full knowledge of the facts and documents prior to trial. Contrary to popular belief, the courts frown on “trial by surprise.” Rather, the courts expect each side to come into court knowing as much as possible about the opposing side’s evidence and arguments. As the Texas Supreme Court has stated, cases should be decided on the basis of what the facts reveal, not on the basis of what is concealed. As a result, your answers to discovery sent to you must be complete and truthful.

During discovery your attorney can evaluate the effectiveness of opposing witnesses and counsel, and prepare a strategy. Of course, while your attorney is evaluating the other side’s positions, they are evaluating yours. Information received during discovery can also help you and your attorney determine whether settlement is a viable option, and it can help your lawyer determine what type of settlement is satisfactory if it proves to be the best option.

It is therefore essential that you proceed with discovery in an effective manner. Typically, your lawyer will help you prepare your discovery responses, but will need your assistance in gathering the necessary information and in preparing the responses. Your participation in the discovery process will be vitally important to the success of your case.

The rules that govern lawsuits provide a number of different discovery techniques. For instance, in Texas, there are requests for disclosure, oral depositions, written interrogatories, requests for production, and requests for admission. Some of these devices will require written answers from you, some will require that you provide the other side with documents or other tangible things, and some require that you and other witnesses give sworn testimony before a court reporter. All of these discovery devices require that the answers be truthful and complete, and you will be required to swear to or verify all of the answers that you give. Discovery must be answered unless it is not within the proper scope of discovery or involves a matter that is privileged from discovery, such as communications protected by the attorney-client privilege or trade secret information. Below is a brief explanation of the discovery devices and a discussion of the parties’ duty to cooperate during discovery.

Parties routinely send “requests for disclosure.” Requests for disclosure require the receiving party to provide certain information without objection. These items include: the correct names of the parties to the lawsuit; the name, address, and telephone number of any potential parties to the suit; the legal theories and general factual bases of the responding party”s claims or defenses; the amount and method of calculating damages; the name, address, and telephone number of persons with knowledge of relevant facts and a brief statement of the person’s connection with the case; information on experts expected to testify at trial; all discoverable indemnity, insurance, or settlement agreements; statements of witnesses; and medical information.

A “deposition on oral examination” is similar to giving testimony at a trial, although a deposition does not occur in a courtroom. The person whose deposition is taken, called the deponent, is placed under oath and questioned by the attorney for the party who scheduled the deposition. Any attorneys representing other parties to the case are also entitled to be present and ask questions. Of course, the attorney representing the deponent is also there to protect that person’s interests and to object to any improper questions or tactics. There is no judge, but a court reporter will be present to record the testimony. The deposition may also be videotaped, as well as being recorded stenographically, if the party scheduling the deposition requests.

“Interrogatories” are written questions sent by one party to another. As the case develops, we will probably receive and send “requests for admissions.” Requests for admissions ask the receiving party to admit certain facts, and take them out of controversy.

You will be required to verify the answers to the interrogatories by signing them under oath, with your signature notarized.

“Requests for production” ask that a party produce certain documents or other tangible items relevant to the lawsuit so that the other side can inspect or copy them. Sometimes, document production and review can be a time-consuming process. So, when you are served with discovery such as this, it is important that your attorney get as much of the requested material as possible from you, as soon as possible, so that he will have sufficient time to review it before the deadline.

Lawyers have a duty to cooperate in the discovery process; we can be severely penalized by the court if we do not respond honestly and promptly to reasonable discovery requests or if we abuse the discovery process in any way. In recent years, many judges have lost patience with uncooperative lawyers and clients, and have taken an active approach towards imposing sanctions. Sanctions for discovery abuse can be imposed on both the lawyer and the client, and possible sanctions include monetary fines and, for extremely abusive behavior, pleadings can be stricken from the case and claims can be dismissed or a default judgment can be rendered. You can actually lose your case, regardless of the merits, if the judge determines that we are not conducting or participating in discovery in good faith. We must be sure that we cooperate during discovery, and provide full and complete responses to any discovery we receive. However, let me make clear that this duty to cooperate is not a duty to volunteer. While we will certainly give honest answers to reasonable discovery requests, we will not provide any information that is not clearly requested. Let me also assure you that we will do our best to protect privileged information.

Of course, your lawyer can also demand reasonable behavior during discovery from the opposing party and their counsel. Your lawyer should certainly react strongly to any abuse of the system that is directed at you, and may ask the court for sanctions in appropriate cases.

Trial and Resolution of Your Case

At trial, each side presents witnesses and enters evidence into the record, at the close of which the judge or jury renders their decision. Generally speaking, the plaintiff has the burden of proof in making his claims, which means that it is up to her or him to produce enough evidence to persuade the judge or jury that his or her claim should succeed. The defendant may have the burden of proof on other issues, however, such as affirmative defenses.

There are numerous motions that either party can file throughout the lawsuit to terminate it “prematurely”—before submission to the judge or jury for final consideration. These motions attempt to persuade the judge, through legal argument and sometimes accompanying evidence, that because there is no reasonable way that the other party could legally win, there is no sense in continuing with the trial. Motions for summary judgment, for example, can usually be brought before the actual presentation of the case. Motions can also be brought after the close of a trial to undo a jury verdict that is contrary to law or against the weight of the evidence, or to convince the judge that she or he should change his decision or grant a new trial.

Also, at any time during this process from the filing of the complaint to the final judgment, the plaintiff may withdraw his or her complaint and end the whole matter, or the defendant may agree to a settlement. If the case settles, the parties might choose to enter into a stipulated judgment with the settlement agreement attached, or the plaintiff may simply file a voluntary dismissal, so that the settlement agreement is never entered into the court record.

After a final decision has been made, either party or both may appeal from the judgment if they believe there had been a procedural error made by the trial court. Even the prevailing party may appeal, if, for example, they wanted a larger award than was granted. The appellate court in Texas is, first, the Court of Appeals. The Court of Appeals is an “intermediate appellate court” and after reviewing the result in the trial court may affirm the judgment, reverse, or vacate and remand, which involves sending the lawsuit back to the lower trial court to address an unresolved issue, or possibly for a whole new trial. Some lawsuits go up and down the appeals ladder repeatedly before finally being resolved.

After the Court of Appeals decision, a party may petition the Texas Supreme Court to hear a further appeal. However, the Texas Supreme Court has the discretion to decide which appeals it will hear, and hears many fewer cases than are petitioned.

When the lawsuit has finally been resolved, or the allotted time to file an appeal has expired, the matter is referred to in the law as “res judicata.” In other words, that dispute, between those parties, is fully and finally resolved and generally a court in a later action will not, and cannot, change the prior result. The plaintiff is precluded from bringing an action resulting from the same claim again. In addition, other parties who later attempt to re-litigate a matter already ruled upon from a previous lawsuit will be estopped from doing so.

Enforcement of a Judgment

This section is very general, as the manner and means of enforcing a judgment – as well as avoiding enforcement of a judgment – is very extensive and often complex.

If the judgment is for the plaintiff, then the defendant must comply under penalty of law with the judgment, which will usually be a monetary award. If the defendant fails to pay, the court has various powers to seize any of the defendant’s assets located within its jurisdiction, such as:

  • Writ of execution, where a constable or sheriff visits the defendant’s home or place of business and seizes non-exempt property to sell to satisfy the judgment.
  • Bank account garnishment, where the plaintiff applies for a writ of garnishment compelling the bank or other financial institution to pay to plaintiff the funds the institution holds for the defendant.
  • Liens, which are created by the judgment and the filing of the Abstract of Judgment and its appropriate filing.
  • Wage garnishment – does not exist in Texas.

Conclusion

This short overview of the civil litigation process should give you an idea of how much effort is involved in even “small” civil cases. The rules are many and sometimes complex, and very often the stakes are high. Going to court to resolve a claim should be a last resort, and the parties should be prepared to go through the processes necessary to either settle the claim or go to trial. An experienced lawyer is absolutely essential to your success in most civil cases.

Nothing in this memorandum should be construed as legal advice nor is it intended as legal advice to guide you in any specific situation. This is a very abbreviated overview of the civil litigation process in Texas. It is intended only as general introduction to common concepts and not as a guide to effectively presenting or defending a civil claim.

You should ALWAYS consult with a licensed attorney before attempting to represent yourself or make any decisions regarding any civil litigation.

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Asset Forfeiture Cases

You or a member of your family has been detained or arrested and a law enforcement officer has seized your money, your vehicle, or some other item of property and you have no idea how to get it back. Worse, maybe you’ve been served with legal papers, a “Citation” and a “Notice of Seizure and Forfeiture.” What do you do now?

The State of Texas, every year, seeks to forfeit millions of dollars in currency and property seized by law enforcement agencies. Asset forfeiture is “big business” for the State and for many local law enforcement agencies. The statute authorizing this process is very broad and not very protective of your rights. You will almost certainly need competent, experienced legal counsel to assist you in making the right decisions to protect your property.

This site is dedicated to introducing you to asset forfeiture in Texas and helping you understand the issues you face when the police seize your property and seek to forfeit your ownership of it.

Whether you are charged with a crime or not, or whether you are an “innocent owner” or lienholder in property the State seeks to forfeit, you should understand the issues involved in this legal process and seek competent, experienced legal counsel to assist you in protecting your rights.

The author of this website practices mainly in Houston and Harris and Montgomery Counties in Texas, and the issues of State-sponsored seizure and forfeiture are general to the practice of this hybrid criminal-civil procedure.

Asset forfeiture in Texas is generally covered by the provisions of the Code of Criminal Procedure in Chapter 59, titled “Forfeiture of Contraband.” The law provides for the definition of property subject to forfeiture (called “contraband” in the statute), who may claim the property, and the procedure for the state to seize the property and forfeit it. While forfeiture cases involve issues concerning criminal law, a forfeiture case is a “civil case” in Texas.

Article 59.01 of the Code of Criminal Procedure defines “Contraband” as “property of any nature, including real, personal, tangible, or intangible, that is used in the commission of any first or second degree felony under the Penal Code, any felony listed in the statute, along with a litany of other statutes which may justify forfeiture. And, there are other situations leading to forfeiture that may or may not apply to your situation. Forfeiture cases can arise whether you are charged with a crime or not, and the justification can range from driving while intoxicated to money laundering to evading arrest – and many other offenses in between.

“Contraband” also includes the proceeds gained from the commission of a felony listed in the statute or a crime of violence; or acquired with proceeds gained from the commission of a felony listed in the statute.

Even if you are an “innocent owner” of property, the State can still seek to forfeit it, and the burden is on you to prove that you did not know of the property’s unlawful use and that your interest is free of the taint of criminal activity.

This site has a number of articles that you may find helpful concerning Texas forfeiture law. However, this site is not legal advice – it is designed to help you understand the issues involved in this area of the law and to assist you in choosing a lawyer to help you with your case. You should always consult a competent licensed attorney before taking any action, or making any decision, about your rights in this area of the law.

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Clarence Darrow, “How to Pick A Jury” (1936)

Whether a jury is a good one or a bad one depends on the point of view. I have always been an attorney for the defense. I can think of nothing, not even war, that has brought so much misery to the human race as prisons. And all of it so futile!

The audience that storms the box-office of the theater to gain entrance to a sensational show is small and sleepy compared with the throng that crashes the courthouse door when something concerning real life and death is to be laid bare to the public.

Everyone knows that the best portrayals of life are tame and sickly when matched with the realities. For this reason, the sophisticated Romans were wont to gather at the Colosseum to feast their eyes on fountains of real blood and await breathlessly the final thrust. The courtroom is a modern arena in which the greatest thrills follow closely on each other. If the combat concerns human life, it presents an atmosphere and setting not unlike those cruel and bloody scenes of ancient Rome. The judge wears the same flowing robe with all the dignity and superiority he can command. This sets him apart from his fellow-men, and is designed to awe and intimidate and to impress the audience with seeming wisdom oftener than with kindliness and compassion.

One cannot help wondering what happens to the pomp and pretense of the wearer while the cloak is in the wash, or while changing into a maturer, more monarchial mantle, as his bench becomes a throne, or when he strolls along the street in file with the “plain clothes” people.

When court opens, the bailiff intones some voodoo singsong words in an ominous voice that carries fear and respect at the opening of the rite. The courtroom is full of staring men and women shut within closed doors, guarded by officials wearing uniforms to confound the simple inside the sacred precinct. This dispels all hope of mercy to the unlettered, the poor and helpless, who scarcely dare express themselves above a whisper in any such forbidding place.

The stage, the arena, the court are alike in that each has its audience thirsting to drink deeply of the passing show. Those playing the parts vie for success and use whatever skill and talent they possess. An actor may fumble his lines, but a lawyer needs to be letter-perfect; at least, he has to use his wits, and he may forget himself, and often does, but never for a moment can he lose sight of his client.

Small wonder that ambitious, imaginative youths crowd the profession of law. Here, they feel, they themselves will find the opportunity to play a real part in the comedies as well as the tragedies of life. Everyone, no matter how small his chance may be, tries to hold the center of some stage where the multitudes will scan his every move. To most lads it seems as though the courts were organized to furnish them a chance to bask in the public eye. In this field the adventure of life will never pall, but prove interesting, exciting and changeful to the end. Not only will he have the destinies of men to protect and preserve, but his own standing and success to create.

If it is a real case, criminal or civil, it usually is tried by a jury with the assistance and direction of the judge. In that event, every moment counts, and neither the lawyers nor the audience, or even the court, goes to sleep. If it is a criminal case, or even a civil one, it is not the law alone or the facts that determine the results. Always the element of luck and chance looms large. A jury of twelve men is watching not only the evidence but the attitude of each lawyer, and the parties involved, in all their moves. Every step is fraught with doubt, if not mystery.

Selecting a jury is of the utmost importance. So far as possible, the lawyer should know both sides of the case. If the client is a landlord, a banker, or a manufacturer, or one of that type, then jurors sympathetic to that class will be wanted in the box; a man who looks neat and -trim and smug. He will be sure to guard your interests as he would his own. His entire environment has taught him that all real values are measured in cash, and he knows no other worth. Every knowing lawyer seeks for a jury of the same sort of men as his client; men who will be able to imagine themselves in the same situation and realize what verdict the client wants.

Lawyers are just as carefully concerned about the likes and dislikes, the opinions and fads of judges as of jurors. All property rights are much safer in the hands of courts than of jurors. Every lawyer who represents the poor avoids a trial by the court.

Choosing jurors is always a delicate task. The more a lawyer knows of life, human nature, psychology, and the reactions of the human emotions, the better he is equipped for the subtle selection of his so-called “twelve men, good and true.” In this undertaking, everything pertaining to the prospective juror needs to be questioned and weighed: his nationality, his business, religion, politics, social standing, family ties, friends, habits of life and thought; the books and newspapers he likes and reads, and many more matters that combine to make a man; all of these qualities and experiences have left their effect on ideas, beliefs and fancies that inhabit his mind. Understanding of all this cannot be obtained too bluntly. It usually requires finesse, subtlety and guesswork. Involved in it all is the juror’s method of speech, the kind of clothes he wears, the style of haircut, and, above all, his business associates, residence and origin.

To the ordinary observer, a man is just a man. To the student of life and human beings, every pose and movement is a part of the personality and the man. There is no sure rule by which one can gauge any person. A man may seem to be of a certain mold, but a wife, a friend, or an enemy, entering into his life, may change his views, desires and attitudes, so that he will hardly recognize himself as the man he once seemed to be.

It is obvious that if a litigant discovered one of his dearest friends in the jury panel he could make a close guess as to how certain facts, surrounding circumstances, and suppositions would affect his mind and action; but as he has no such acquaintance with the stranger before him, he must weigh the prospective juror’s words and manner of speech and, in fact, hastily and cautiously “size him up” as best he can. The litigants and their lawyers are supposed to want justice, but in reality there is no such thing as justice, either in or out of court. In fact, the word cannot be defined. So, for lack of proof, let us assume that the word “justice” has a meaning, and that the common idea of the definition is correct, without even seeking to find out what is the common meaning. Then how do we reach justice through the courts? The lawyer’s idea of justice is a verdict for his client, and really this is the sole end for which he aims.

In spite of the power that the courts exercise over the verdict of the jury, still the finding of the twelve men is very important, sometimes conclusive. It goes without saying that lawyers always do their utmost to get men on the jury who are apt to decide in favor of their clients. It is not the experience of jurors, neither is it their brain power that is the potent influence in their decisions. A skillful lawyer does not tire himself hunting for learning or intelligence in the box; if he knows much about man and his malting, he knows that all beings act from emotions and instincts, and that reason is not a motive factor. If deliberation counts for anything, it is to retard decision. The nature of the man himself is the element that determines the juror’s bias for or against his fellow-man. Assuming that a juror is not a half-wit, his intellect can always furnish fairly good reasons for following his instincts and emotions. Many irrelevant issues in choosing jurors are not so silly as they seem. Matters that apparently have nothing to do of the personality and the man. There is no sure rule by which one can gauge any person. A man may seem to be of a certain mold, but a wife, a friend, or an enemy, entering into his life, may change his most vital views, desires and attitudes, so that he will hardly recognize himself as the man he once seemed to be.

It is obvious that if a litigant discovered one of his dearest friends in the jury panel he could make a close guess as to how certain facts, surrounding circumstances, and suppositions would affect his mind and action; but as he has no such acquaintance with the stranger before him, he must weigh the prospective juror’s words and manner of speech and, in fact, hastily and cautiously “size him up” as best he can. The litigants and their lawyers are supposed to want justice, but in reality there is no such thing as justice, either in or out of court. In fact, the word cannot be defined. So, for lack of proof, let us assume that the word “justice” has a meaning, and that the common idea of the definition is correct, without even seeking to find out what is the common meaning. Then how do we reach justice through the courts? The lawyer’s idea of justice is a verdict for his client, and really this is the sole end for which he aims.

In spite of the power that the courts exercise over the verdict of the jury, still the finding of the twelve men is very important, sometimes conclusive. It goes without saying that lawyers always do their utmost to get men on the jury who are apt to decide in favor of their clients. It is not the experience of jurors, neither is it their brain power that is the potent influence in their decisions. A skillful lawyer does not tire himself hunting for learning or intelligence in the box; if he knows much about man and his making, he knows that all beings act from emotions and instincts, and that reason is not a motive factor. If deliberation counts for anything, it is to retard decision. The nature of the man himself is the element that determines the juror’s bias for or against his fellow-man. Assuming that a juror is not a half-wit, his intellect can always furnish fairly good reasons for following his instincts and emotions. Many irrelevant issues in choosing jurors are not so silly as they seem. Matters that apparently have nothing to do with the discussion of a case often are of the greatest significance.

In the last analysis, most jury trials are contests between the rich and poor. If the case concerns money, it is apt to be a case of damages for injuries of some sort claimed to have been inflicted by someone. These cases are usually defended by insurance companies, railroads, or factories. If a criminal case, it is practically always the poor who are on trial. The most important point to learn is whether the prospective juror is humane. This must be discovered in more or less devious ways. As soon as “the court” sees what you want, he almost always blocks the game. Next to this, in having more or less bearing on the question, is the nationality, politics, and religion of the person examined for the jury. If you do not discover this, all your plans may go awry. Whether you are handling a damage suit, or your client is charged with the violation of law, his attorney will try to get the same sort of juror.

Let us assume that we represent one of “the underdogs” because of injuries received, or because of an indictment brought by what the prosecutors name themselves, “the state.” Then what sort of men will we, seek? An Irishman is called into the box for examination. There is no reason for asking about his religion; he is Irish; that is enough. We may not agree with his religion, but it matters not, his feelings go deeper than any religion. You should be aware that he is emotional, kindly and sympathetic. If he is chosen as a juror, his imagination will place him in the dock; really, he is trying himself. You would be guilty of malpractice if you got rid of him, except for the strongest reasons.

An Englishman is not so good as an Irishman, but still, he has come through a long tradition of individual rights, and is not afraid to stand alone; in fact, he is never sure that he is right unless the great majority is against him. The German is not so keen about individual rights except where they concern his own way of life; liberty is not a theory, it is a way of living. Still, he wants to do what is right, and he is not afraid. He has not been among us long, his ways are fixed by his race, his habits are still in the making. We need inquire no further. If he is a Catholic, then he loves music and art; he must be emotional, and will want to help you; give him a chance.

If a Presbyterian enters the jury box and carefully rolls up his umbrella, and calmly and critically sits down, let him go. He is cold as the grave; he knows right from wrong, although he seldom finds anything right. He believes in John Calvin and eternal punishment. Get rid of him with the fewest possible words before he contaminates the others; unless you and your clients are Presbyterians you probably are a bad lot, and even though you may be a Presbyterian, your client most likely is guilty.

If possible, the Baptists are more hopeless than the Presbyterians. They, too, are apt to think that the real home of all outsiders is Sheol, and you do not want them on the jury, and the sooner they leave the better. The Methodists are worth considering; they are nearer the soil. Their religious emotions can be transmuted into love and charity. They are not half bad; even though they will not take a drink, they really do not need it so much as some of their competitors for the seat next to the throne. If chance sets you down between a Methodist and a Baptist, you will move toward the Methodist to keep warm.

Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty and go down the docket. He learns about sinning and punishing from the preacher, and dares not doubt. A person who disobeys must be sent to hell; he has God’s word for that.

As to Unitarians, Universalists, Congregationalists, Jews and other agnostics, don’t ask them too many questions; keep them anyhow, especially Jews and agnostics. It is best to inspect a Unitarian, or a Universalist, or a Congregationalist with some care, for they may be prohibitionists; but never the Jews and the real agnostics! And do not, please, accept a prohibitionist; he is too solemn and holy and dyspeptic. He knows your client would not have been indicted unless he were a drinking man, and anyone who drinks is guilty of something, probably much worse than he is charged with, although it is not set out in the indictment. Neither would he have employed you as his lawyer had he not been guilty.

I have never experimented with Christian Scientists; they are much too serious for me. Somehow, solemn people seem to think that pleasure is wicked. Only the gloomy and dyspeptic can be trusted to convict. Shakespeare knew: “Yon Cassius has a lean and hungry look; he thinks too much; such men are dangerous.” You may defy all the rest of the rules if you can get a man who laughs. Few things in this world are of enough importance to warrant considering them seriously. So, by all means, choose a man who laughs. A juror who laughs hates to find anyone guilty. Never take a wealthy man on a jury. He will convict, unless the defendant is accused of violating the anti-trust law, selling worthless stocks or bonds, or something of that kind. Next to the Board of Trade, for him, the penitentiary is the most important of all public buildings. These imposing structures stand for capitalism. Civilization could not possibly exist without them. Don’t take a man because he is a “good” man; this means nothing. You should find out what he is good for. Neither should a man be accepted because he is a bad sort. There are too many ways of being good or bad. If you are defending, you want imaginative individuals. You are not interested in the morals of the juror. If a man is instinctively kind and sympathetic, take him.

Then, too, there are the women. These are now in the jury box. A new broom sweeps clean. It leaves no speck on the floor or under the bed, or in the darkest comers of life. To these new jurors, the welfare of the state depends on the verdict. It will be so for many years to come. The chances are that it would not have made the slightest difference to the state if all cases had been decided the other way. It might, however, make a vast difference to the unfortunates facing cruel, narrow-minded jurors who pass judgment on their fellow-men. To the defendants it might have meant the fate of life rather than death.

But what is one life more or less in the general spawning? It may float away on the tide, or drop to the depths of oblivion, broken, crushed and dead. The great sea is full of embryo lives ready to take the places of those who have gone before. One more unfortunate lives and dies as the endless stream flows on, and little it matters to the wise judges who coldly pronounce long strings of words in droning cadence; the victims are removed, they come and go, and the judges keep on chanting senseless phrases laden with doom upon the bowed heads of those before them. The judge is as unconcerned about the actual meaning of it all as the soughing wind rustling the leaves of a tree just outside the courthouse door.

Women still take their new privilege seriously. They are all puffed up with the importance of the part they feel they play, and are sure they represent a great step forward in the world. They believe that the sex is co-operating in a great cause. Like the rest of us, they do not know which way is forward and which is backward, or whether either one is any way at all. Luckily, as I feel, my services were almost over when women invaded the jury box.

A few years ago I became interested in a man charged with selling some brand of intoxicant in a denatured land that needed cheering. I do not know whether he sold it or not. I forgot to ask him. I viewed the case with mixed feelings of pity and contempt, for as Omar philosophized, I wonder often what the vintners buy one-half so precious as the stuff they sell.” When I arrived on the scene, the courtroom looked ominous with women jurors. I managed to get rid of all but two, while the dismissed women lingered around in the big room waiting for the victory, wearing solemn faces and white ribbons. The jury disagreed. In the second trial there were four women who would not budge from their seats or their verdict. Once more I went back to the case with distrust and apprehension. The number of women in the jury box had grown to six. All of them were unprejudiced. They said so. But everyone connected with the case was growing tired and skeptical, so we concluded to call it a draw. This was my last experience with women jurors. I formed a fixed opinion that they were absolutely dependable, but I did not want them.

Whether a jury is a good one or a bad one depends on the point of view. I have always been an attorney for the defense. I can think of nothing, not even war, that has brought so much misery to the human race as prisons. And all of it so futile!

I once spent a winter on the shores of the Mediterranean Sea. In front of my windows, four fishermen were often wearily trudging back and forth, and slowly dragging a long net across the sand. When it was safely landed, a few small flopping fish disclosed the results of their labors. These were scattered dying on the beach, while the really worth-while fishes were left in the sea. It somehow reminded me of our courts and juries, and other aims and efforts of optimistic men, and their idle undertakings and disheartening results.

Judges and jurors are like the rest of humans. Now and then some outstanding figures will roll up their sleeves, as it were, and vigorously set to work to reform the courts and get an efficient administration of justice. This will be ably seconded by the newspapers, lashing courts and jurors, past, present and prospective, into a spasm of virtue that brings down the innocent and guilty together, assuming always that there are innocent and guilty. Then, for a time, every defendant is convicted; and soon the campaign reaches the courts; after ruining a few lives and reputations, the frenzy is over, and life goes on smoothly and tranquilly as before.

When I was a boy in the country, one of the standard occupations was whittling. It became as mechanical as breathing. Since then I have decided that this is as good a way to live as any other. Life depends on the automatic taking in and letting out of breath, but in no way is it lengthened or made happier by deep thinking or wise acting. The one big word that stands over courts and other human activities is FUTILITY.

The courts may be unavailing, lawyers stupid, and both as dry as dust, but the combination makes for something interesting and exciting, and it opens avenues that seem to lead somewhere. Liberty, lives, fortunes often are at stake, and appeals for assistance and mercy rend the air for those who care to hear. In an effort to help, often a casual remark may determine a seemingly vital situation, when perhaps the remark, of all the palaver, was the least important one breathed forth. In all questions men are frequently influenced by some statement which, spoken at the eventful time, determines fate. The most unforeseen, accidental meetings sometimes result in seemingly new and strangely fateful family lines. In fact, all that occurs in life is an endless sequence of events resulting from the wildest chance.

Amongst the twelve in a jury box are all degrees of alertness, all sorts of ideas, and a variety of emotions; and the lawyers, too, are important factors in the outcome. They are closely observed by the jurors. They are liked or disliked; mayhap because of what they say, or how they speak, or pronounce their words, or part their hair. It may be that a lawyer is disliked because he talks too little or too much, more often the latter. But a lawyer of subtlety should know when to stop, and when to go on, and how far to go. As a rule, he must not seem to be above the juror, nor below him. He must not too obviously strive for effect. He often meets baffling situations not easily explained. Sometimes it is better for him to talk of something else. Explanations must not be too fantastic or ridiculous. It does no harm to admit the difficulty of the situation, to acknowledge that this circumstance or that seems against him. Many facts point to guilt, but in another light these facts may appear harmless.

Lawyers are apt to interpret deeds and motives as they wish them to appear. As a matter of fact, most actions are subject to various inferences, sometimes quite improbable, but nonetheless true. Identifications show common examples of mistakes. Many men are in prison and some are sent to death through mistaken identifications. One needs but recall the countless errors he himself has made. How many have met some person whom they believed to be an old-time friend, and have found themselves greeting a total stranger? This is a common mistake made in restaurants and other public places. Many identifications in court are made from having seen a person but once, and under conditions not critical. Many are made from descriptions and photographs, and urged on by detectives, lawyers, and others vitally interested in the results. From all of this it is easy to see that many are convicted who are guiltless of crime. In situations of strong agitation, acquittals are rare, and sentences made long and barbarous and inhuman.

The judge is, of course, an important part of the machinery and administration of the court. Like carpenters and lawyers, brick-layers and saloon-keepers, they are not all alike. No two of them have the same fitness for their positions. No two have the same education; no two have the same natural understanding of themselves and their fellow-man, or are gifted with the same discernment and balance.

Not that judges are lacking in knowledge of law. The ordinary rules for the administration of law are rather simple and not difficult to follow. But judges should be students of life, even more than of law. Biology and psychology, which form the basis of understanding human conduct, should be taken into account. Without a fair knowledge of the mechanism of man, and the motives and urges that govern his life, it is idle to venture to fathom a situation; but with some knowledge, officers and the public can be most useful in preserving and protecting those who most need such help. The life of almost any unfortunate, if rightly understood, can be readjusted to some plan of order and system, instead of left to drift on to ruin, the victim of ignorance, hatred and chance.

If the physician so completely ignored natural causes as the lawyers and judges, the treatment of disease would be relegated to witchcraft and magic, and the dungeon and rack would once more hold high carnival in driving devils out of the sick and afflicted. Many of the incurable victims of crime are like those who once were incurable victims of disease; they are the product of vicious and incompetent soothsayers who control their destinies.

Every human being, whether parent, teacher, physician, or prosecutor, should make the comfort and happiness of their dependents their first concern. Now and then some learned courts take a big view of life, but scarcely do they make an impression until some public brainstorm drives them back in their treatment of crime to the methods of sorcery and conjury.

No scientific attitude toward crime can be adopted until lawyers, like physicians and scientists, recognize that cause and effect determine the conduct of men.

When lawyers and courts, and laymen, accept the scientific theory which the physicians forced upon the world long years ago, then men will examine each so-called delinquency until they discover its cause, and then learn how to remove the cause. This requires sympathy, humanity, love of one’s fellow-man, and a strong faith in the power of knowledge and experience to conquer the maladies of men. The forum of the lawyers may then grow smaller, the courthouse may lose its spell, but the world will profit a thousandfold by a kindlier and more understanding relation toward all humankind. ( Esquire Magazine, May, 1936.)