way. As one lawyer expressed himself, it is easier to get a $1,000 fee for trying a case than $100 for effecting a compromise. Therefore do not expect that your lawyer is going to punish himself to do you an unwelcome service. You can try this plan: Ask your lawyer to make you an estimate of what the case will be likely to cost in counsel fees, preparation for trial, court costs, and incidentals. Then inquire as to what amount of your time will be required for consultation, attendance on trial, waiting for the case to be called, etc. Estimate what your time is worth in your business and add to the previous amount. Estimate how much thought and worry you will put into it and how much this will detract from your business efficiency. Assume you get judgment in your favor and the case is not appealed. How does the account stand? You may have a good case and still lose out. Such things have happened. Appeals are possibilities. There is a chance of heavy costs and fees. Consider all eventualities before you decide on your course. Notes: I. 2. 3. Prevention is better than cure. "Beware of en Calculate your costs in advance. This discourages litigation. Tell your lawyer you would rather pay him to keep you out of litigation than to win your case. If he is young at the business he may take you at your word. SUGGESTIONS TO READERS If possible, attend the trial of a civil case before a magistrate. This is the court where suits for small sums are brought; its processes are simple and rapid. But its procedure is typical. Note the function of the magistrate, the counsel, the constable, marshal, or other officer of the court. Note how witnesses are called, sworn, examined, cross-examined. Note the arguments of counsel. Then answer these questions: 1. After hearing the witnesses, how would you have decided the case? 2. After hearing the lawyers argue, would you have decided otherwise? 3. Was the actual decision just? 4. Allowing fair rates of payment for the time of the men engaged in the trial, for the judge, constable, parties, lawyers, and witnesses, how much did the trial cost the community? What was the amount involved in the litigation? 5. Was the suit a fair average as to time, amount involved, number in attendance, etc? 6. Could you devise any better system for settling disputes? REVIEW QUESTIONS 1. Why is legal process to redress a wrong usually unsatisfactory? 2. What is the distinction between "law" and "equity"? 3. In your state are there separate courts of law and equity? 4. Can suit be brought against a person without giving him notice? 5. What is the object of the procedure in a suit before trial? 6. What defects are there in trial by jury? 7. If you were party to a suit, would you rather have it decided by a jury or by a judge? Why? 8. If a party fails to get a verdict or decision can he bring a new suit? 9. What could be done to make justice cost less in time and money? Can you suggest any method of judicial reform? 10. Should a lawyer advise litigation or compromise? What cir cumstances should influence his advice? CHAPTER V CRIMINAL LAW $32. Criminal Procedure Criminal law is administered in a manner different from the usual procedure at law and in equity. The state prosecutes for crime, and, while the accused person is called the defendant, there is no plaintiff save the state. The designation of a criminal case might be: "State of Ohio v. John Doe (name of accused)." In the different states there is more or less variation in the administration of criminal law. Criminal prosecutions are usually instituted by a warrant sworn to by the aggrieved party before a magistrate. The magistrate then summons the accused person to appear or issues a warrant for his arrest. In minor cases the magistrate tries the person, or in some instances the accused may demand a trial by jury. Where the offense is serious, the magistrate has only jurisdiction to commit the accused to await the action of the grand jury. In most cases the accused person is allowed to give bail to insure his appearance when the grand jury meets. Serious crimes must always be prosecuted by indictment; i.e., a written accusation authorized by a grand jury. The grand jury consists of eighteen or more men and is convened from time to time in each county to investigate any charges of crime that may be brought before it. Proceedings before a grand jury are, of course, ex parte, i.e., only one side is heard. These proceedings are under the supervision of the legal representative of the state, the prosecuting attorney. The object of the grand jury investigation is to ascertain what persons should be tried before a trial jury and whether the evidence against people accused of crime is sufficient to justify the state in prosecuting them. If an indictment is found and the person has not been arrested, the authorities try to arrest him. The names of all who are indicted are placed on a criminal docket to await trial before a trial jury. The grand jury system is painfully cumbrous. In darker ages the criminal law was so often used as an instrument of oppression and for the punishment of political offenders and the criminal laws were so cruel, that popular sympathy was with the man accused of crime and gradually he was given various rights and privileges to even up his unequal contention with the powers of the state. It is not unlikely that this process has gone too far. In many states criminal procedure has become so complex and so overridden with technicalities that any criminal who can afford to pay skilful counsel may escape all penalty except the large payments he makes to his own lawyers. The difficulty of convicting a wealthy criminal is the scandal of our legal administration of justice. On the other hand, the criminal law as it exists is incredibly unjust to the poor and ignorant. A widow with a dependent family started to sell fish in New York and failed to cover them over to protect them from the flies. She was arrested and fined two dollars. She did not have so much and was sent to jail for a short term, leaving her family of young children unattended.1 If a wealthy young man is arrested for speeding, he is released on his own recognizance or a deposit of cash. The next day he is fined twenty-five dollars, promptly writes a check and walks away. Meanwhile we marvel at the growth of anarchistic thought! 1 Scribner's Magazine, July, 1919. Page 115. § 33. Classes of Offenses Against the Criminal Law It is well to know that offenses against the criminal law are divided into two classes: felonies and misdemeanors, according to the degree of the offense. A felony is a grave offense, punishable by heavy penalties. A misdemeanor is a lighter breach of the law and is punishable by lesser penalties. Burglary-the breaking into a dwelling house after dark with criminal intent-is a felony and is punished by confinement in a penitentiary. Driving an automobile too fast is a misdemeanor and may be punished by a fine or confinement in the county jail. Criminal offenses are also divided on another basis into two classes: those which are wrong in themselves and those which are wrong merely because the law prohibits them. In order to make this distinction easier to keep in mind, lawyers use the Latin terms "malum in se" (wrong in itself) and “malum prohibitum" (wrong because it is prohibited). At the present time there are a great many naturally indifferent actions which have been made into rimes by the procedure of the legislature, and there is such a multitude of these laws that it is very hard for anyone even with the best intentions to avoid violation of the law at some time. $34. Penalties The penalties for violation of the criminal law are fines, imprisonment, and, for a few offenses, death. In this country the Constitution of the United States prohibits banishment and forbids cruel and unusual punishments. In no direction is there greater room for reform than in our treatment of criminals. Many of these are as they are by reason of environment and lack of training. Others are mental defectives who should be humanely kept from temptations they cannot withstand. It may safely be said that our |