The backward glance is almost always fatal to the living spirit. If the best has already been thought, said and done, what's the point of struggling forward? If all is but mere faint repetition of never-to-be-repeated excellence, why struggle face-first against the chaos of our days. Nostalgia, I say kills.
But I cannot help this morning but wish to have lived in a different time and in a different era. I would have liked, for example, to have spent time with Lloyd Paul Stryker. He was a literate lawyer, as facile with literary allusion as with a a difficult witness. If trials are vanishing, so too are trial lawyers. Was Stryker the last of a dying breed?
I say not. I say that because in the wee hours of the morning when I finished a book he published in 1954 about the state of legal advocacy in the United States, I did not feel as though I were reading stale history. I felt as though I had met a friend, someone muttering under his breath about the same things that make me weary. The Art of Advocacy: A Plea for the Renaissance of the Trial Lawyer,
was first published in 1954. It was just reprinted by Equinox Publishing. I say this is must reading for every lawyer who walks into a courtroom and dares stand up for another person.
A friend who himself is growing long in the tooth recommended the book to me. Although I am old enough to know better, I am still a rebellious mare. I listen with reluctance, and always with a fight. But I know a few great lawyers. When they toss me a bone I gnaw on it. Stryker was such a bone. I read his book with stunned regret: Where has he been all of my life? Answer? Sitting on a bookshelf somewhere waiting to be discovered. That I had been but wise enough to look and listen.
Stryker calls for a divided bar: Let trial lawyers form a separate caste, a separate calling, called advocates. Those lawyers who darken no doors but the doors to their office should remain in their offices. The division between courtroom and office lawyers is intended to mirror the divide between barristers and solicitors in England. As Stryker notes, that division has eight centuries of history behind it. We would be wise to follow Great Britain's lead in this, as we did in adoption of the common law.
Why do we in the United States permit men and women who have never tried cases to serve as judges? Stryker notes of England: "An English judge, therefore, is a man who has been an advocate, and through advocacy has learned how a case should be conducted before a court and jury. A solicitor could no more be made a judge than he could be made an admiral of the fleet. A law teacher or writer would have as much chance of mounting to the bench as would of becoming the chief surgeon of a great hospital," he writes.Were he living today, I am sure he'd have a few choice words about our recent Supreme Court nominees, almost all mere novices in advocacy. And what of the dismal state of our District Courts? Where are the trial lawyers?
The English model makes barristers a breed apart: To these warriors falls the conduct of battle in open court. Clients and cases are prepared by solicitors; the solicitors, in turn, retain barristers. It is a model Stryker rightly admires, although he thinks the barrister's limited involvement of contact with clients deprives the barrister of much necessary to effective advocacy. He may be right there, but he did not live to see the day of a professional code of ethics modeled on informed consent. A busy trial practitioner now must spend his days in the well of a court, and his evenings offering counsel to the grieved and unstrung. Sleep is optional; time for reading? Few lawyers seem any longer to read for pleasure, and the profession suffers for it.
Stryker at times inspires. I sat up in my bed at 2 a.m. ready to go to court when I read these words: "[T]here is indeed a place for good advocates who are unafraid, and who know how to stand their ground on all the battlefields of justice, including that most bloody one that every day is found in our criminal courtrooms. When that day comes, as in a declining Rome and in Revolutionary France it came, where there are none left able or brave enough to engage in this unending warfare, the liberties of American citizens will perish, and tyranny will reign supreme even as it now reigns in Moscow and in every dastard totalitarian outpost."
This not a perfect book. From time to time it descends into mere recitation of anecdote, but the stories instruct, and you can construct a perfectly fine reading list by taking notes in the margin. (A fault of the editors is the failure to index this volume. My copy of the book is littered with scrawled notes about authors to read and books to find. I will read Styker on Erksine, defender of Tom Paine, if I can find a copy. And I want to know more about Rufus Choate.) Even so, the book is good instruction on story telling, handling witnesses and even appellate advocacy. It can be read and studied with profit by any lawyer.
I know trial lawyers who read this page. Do not take my word for it. Buy this book, and read it, and then go out and wage war on complacency and the smug certainties that choke liberty. You can find the publisher at www.EquinoxPublishing.co
Thank you Lloyd Paul Stryker, and thank you to the aging warrior who recommended this volume. I'll be calling soon for more reading. The best may not be behind us, but there are gems in our past that need retrieving and are worthy of appreciation.