The Better Chancery Practice Blog

I try to jot down droll things that people say in the course of their testimony.

Here are two from just last week:

“It was her lies. That was the icing that broke the camel’s back.”

and

“I spend every penny on my children. It takes the cake to support them.”

My all-time favorite, reported here previously:

“Of course, you realize that the flip side of that coin is a two-edged sword.”

And a note that a defendant enclosed with his temporary alimony:

“I heard that your lawyer had a heart attack. I hope the little grease spot dies.”

That note was admitted into evidence along with several alimony checks with the entry “Fat cow extortion” on the memo line.

In a case I tried, a witness testified that the force of impact in a car crash was so great that her neighbor was “almost decapacitated.”

A woman testifying in a custody case repeatedly referred to her daughter as being “bi-polo.”

Pardon me for this one, but a woman earlier this week told the chancery clerks that she needed some papers “masturbated.” A clerk asked her if she meant notarized or certified. “No,” she said, “masturbated.”

And, finally, this actual exchange in my court:

Atty 1: Objection, irrelevant.

Court: How is that relevant?

Atty 2: I don’t know. I was just throwing up a Hail Mary hoping to hit something.

Court: Well, the pass is incomplete; call another play.

Justice can be pretty complicated today, what with mass torts, experts, voluminous discovery, digital information, and on and on. One of the banes of the judicial process is how to properly instruct the jury so as to avoid error and expensive reversal.

It wasn’t always this way. In a jury trial involving the death of a doctor’s horse in Butler County, Ohio, in 1905, Judge Squire Sprigg instructed the jury as follows:

Gentlemen of the Jury: This is a hoss case. We make quick work of hoss cases in this court. These people killed Doc’s old hoss; if Doc’s hoss was worth anything, then he is entitled to recover; if he wasn’t worth anything, then he ain’t. Some hosses are worth something and a good many more are worth nothing. So, it is for you to say, whether this hoss was worth anything or not. You are to be governed by the preponderance of testimony. Preponderance is a big word, which I must explain to you. It means this: If one side has fifty witnesses and you think they are all liars, and the other side has one witness, and you don’t think he is a liar, or at least as big a liar as the other fifty, then the testimony of the one will preponderate over that of the others, and will knock the socks off of the other fifty. Now, if by a preponderance of the testimony, as I have explained it to you, you think the Doc’s old hoss was worth anything, find what that is and give it to him; if you think he was worth nothing, why say so. Doc will think this is pretty hard on the medical profession, but he will have to take the medicine which the law prescribes. The law provides for just such cases; it calls this damnum absque injuria, which means, as I interpret it, that a man is usually hurt a damned sight less than he thinks he is.

Now, gentlemen, I believe I have covered the whole case. You have heard the evidence and the law as I have given it to you. Remember that you are under oath in this business and that the court expects quick verdicts, especially in hoss cases.

[Note: lest anyone get too bent out of shape, back then only men were allowed to serve on juries. That’s just the way it was.]

Doc won the case.

We don’t have many jury trials in chancery, but when we do, for some reason, the law has limited them to will contests, which can involve undue influence, competency, outright fraud, and other issues that can rank among the most complicated concepts in the law. So instructing the jury about those kinds of concepts can present quite a challenge.

I’m not advocating a return to a Judge Spriggs-esque form of jury instruction, but there is some charm in simplicity, isn’t there?

Thanks to Futility Closet.