Sunday, March 20, 2016

CAREFUL PLEADING AND A SURGICAL CROSS-EXAMINATION

Among the legends that grew up after Lincoln’s death, there is a story of Lincoln persuading a jury to ignore the law in a case which he handled in 1847. According to the traditional story, an elderly gentleman named either Cass or Case sold a “prairie team” to two brothers named Snow. A prairie team consisted of a heavy duty plow for breaking never-before cultivated prairie land and a team of oxen to pull it. The Snow brothers signed a note for the team, which they refused to pay when it came due. Cass hired Lincoln to sue on the note. The lawyers defending the Snows interposed a plea of infancy and thus the issue was joined. At the trial it was readily admitted that the brothers signed the note, but the defense called a witness to testify that they were both under the age of 21. 

Stymied and enraged by the hyper-technical defense that the brothers’ crooked lawyers had interposed, Lincoln supposedly gave a rousing final argument which convinced the jury to ignore the law and find for the plaintiff in spite of the fact that the boys were not legally obligated to pay the note. Lincoln accomplished this feat by putting the brothers’ lawyer on trial.  Lincoln’s argument to the jury went something like this:

Gentlemen of the jury: are you willing to allow these boys to begin life with this shame and disgrace attached to their characters? If you are, I am not. The best judge of human nature that ever wrote has left these immortal words for all of us to ponder:

    Who steals my purse steals trash;‘tis something,       nothing;

    ‘Twas mine, ‘tis his, and has been slave to            thousands;
    
         But he that filches from me my good name,
     
         Robs me of that which not enriches him,
     
         And makes me poor indeed.

These poor innocent boys would never have attempted this low villainy had it not been for the advice of these men [their lawyers]. It was bad advice in morals and in law. The law never sanctions cheating, and a lawyer must be very smart indeed to twist the law so that it will sanction fraud.

After finishing a scathing rebuke of the boys unscrupulous lawyers Lincoln concluded by saying “And now, gentlemen, you have it in your power to set these boys right before the world.” The jury was allegedly so moved by Lincoln’s tongue lashing of his opposing counsel that they returned a verdict for the plaintiff without leaving their seats; and the brothers were so repentant that they willingly paid the purchase price.  It is a pretty story of how the saintly Lincoln achieved substantial justice, defeated the efforts of unethical shysters, and set two wayward children on the path to an honorable life by persuading the jury to ignore the law, but there is likely little truth in it.

What really happened, however, demonstrates that Lincoln was not only a surgical cross-examiner but also a careful pleader.

Mr. Cass did sell a prairie team to the Snow brothers; they were under age at the time they signed the note promising to pay for the team; Lincoln did file suit on Cass’s behalf; and the brothers’ attorneys interposed the defense of infancy to defeat Cass’s claim for payment of the note. Cass, however, had patiently allowed the Snow brothers ample time to pay the note and only filed suit after going for two years without being paid. All the defense had to do to defeat the claim on the note was to produce a witness who could testify that the Snows were under 21 when they signed the note.

As the defense witness testified on direct examination, the presiding judge, Samuel H. Treat Jr., immediately saw the flaw in the defense. At the time of the trial the brothers were undoubtedly over 21 and fully responsible for debts incurred as adults. If they still had Cass’s prairie team, and they had not paid for it, they could be compelled to pay the purchase price. A legally binding contract consists of an offer and an acceptance. Cass offered to sell the team for a set price when the boys were under age. They may not have been able to accept the team at the time they took possession, but they made a legally binding acceptance of Cass’s offer when they kept the oxen after coming of age. They owed Cass the money for goods sold and delivered, but they did not owe money on the note they executed when still under 21.

Treat saw that the case would rise and fall on how Lincoln had worded the complaint. Common law pleading was very strict. If Lincoln had filed a one count complaint simply alleging money owed on the note, Judge Treat would be required to direct a verdict for the defense. If, however, he had included a second count for goods sold and delivered, he could collect the price of the prairie team notwithstanding his inability to collect on the note.

When the defense witness finished testifying on direct examination Treat asked Lincoln “Is there a count in the declaration [complaint] for oxen and plow sold and delivered?”

Lincoln, ever the careful pleader, replied “Yes, and I have only two or three questions to ask the witness.” On cross-examination Lincoln then proceeded to prove that the brothers still had the prairie team:

Q: Where is the prairie team now?
A: On the farm of the Snow boys.
Q: Have you seen anyone breaking prairie with it lately?
A: Yes. The Snow boys were breaking up with it last week.
Q: How old are the boys now?
A: One is a little over twenty-one, and the other is near twenty-three.

So we see that Lincoln won his case through careful pleading and a surgical cross-examination; not by using his considerable oratorical skill to convince the jury to ignore the law. We can see that the heart and soul of Lincoln’s final speech did not come when he allegedly castigated the defense lawyers, but when he said:

The judge will tell you what your own sense of justice has already told you—that if those boys were mean enough to plead the baby act when they came to be men, they at least ought to have taken the oxen and plow back to Mr. Cass. They ought to know that they cannot go back on their contract and also keep what the note was given for.

The supposed tongue-lashing of the Snow boys’ lawyers is more likely legend than fact. In the unlikely event that Lincoln said anything unkind about the opposing lawyers, he must have said it with his tongue in his cheek.


It is plain that the lawyers defending the Snows did not persuade two innocent boys to make use of a sleazy dodge to evade payment. The Snows were deadbeats. They had refused to pay the bill for the oxen for two years before they got sued; and they certainly didn’t hire or consult their lawyers until they got sued. Lincoln knew as well as anyone that the lawyers interposed a valid legal defense when they pled the “baby act;” and he knew that defense lawyers are ethically required to use every lawful means to defend their clients.

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