DISCOVERY · DOLLARS · DEPOSITIONS || The Milligan Aftermath: A Celebrity Civil Rights Case

The Milligan Aftermath: A Celebrity Civil Rights CaseAuthor(s): Allen SharpSource: Litigation, Vol. 24, No. 4, DISCOVERY · DOLLARS · DEPOSITIONS (Summer 1998), pp.53-56, 70-71Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29760020 .

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Legal

Lore

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\\ 1 1 I/ // ? The Milligan Aftermath:

A Celebrity Civil Rights Case

by Allen Sharp When Alexis de Tocqueville, that ele?

gant young Frenchman, visited the United States during Andrew Jackson's

presidency, he observed that in the United States every political question ended up in a lawsuit. In the Milligan civil rights case, this resulted in a nine? teenth century version of the high profile celebrity trial, complete with famous lawyers, elaborate newspaper coverage and hot-button political and social issues.

An aftermath of Milligan's court martial for treason during the Civil War, the civil rights jury trial was held in the

United States Circuit Court for Indiana in Indianapolis in May 1871. The socio?

political-legal issues involved a replay of the anti-Civil War dissent exactly a decade earlier.

Lambdin P. Milligan, the star of this drama, was a Huntington, Indiana

lawyer who had emigrated from Ohio. Successful as a "scientific farmer," he had railroad interests and a thriving law

practice. Milligan was an old-fash? ioned, states' rights Jeffersonian. He took seriously the views ghostwritten by Jefferson and Madison in the Ken?

tucky and Virginia Resolves of 1798 99, including the rights of states to nul?

lify federal legislation considered by state legislatures to be in violation of the United States Constitution.

In the minds of many, including Mil

Allen Sharp is a United States District Judge for the Northern District of Indiana and an

adjunct professor of history at Butler University in Indianapolis and at Indiana University South

Bend, and an adjunct professor of law at Val?

paraiso University School of Law in Valparaiso, Indiana.

ligan, these concepts led directly to the

right of succession. Known as Copper? heads, these dissidents voiced opposi? tion to President Lincoln. Milligan became involved with the Sons of Lib?

erty and Knights of the Golden Circle. Arthur M. Schlesinger, Jr., calls him "a

venomously pro-slavery conspirator." Milligan spoke to a crowd of between 500 and 1000 on the draft, advising them "to die on their doorstep's hearth stones in resisting." He was arrested in

Huntington by Union Army officers under General Alvin P. Hovey, an Indi? ana politician who became a Union

Army General and then Commander of the Union Army in Indiana.

The Treason Trial In 1864, Milligan was tried before a

military commission of twelve officers in Indianapolis for treason, sedition and

resisting the war effort. Although he was found guilty and was sentenced to death, the sentence was not immedi?

ately administered. The war ended at Appomattox in

April 1865, and Milligan's treason case went to the U.S. Supreme Court the next year. The overbearing and some? times dictatorial Indiana governor

Oliver Perry Throck Morton, an ardent Lincoln supporter, had wanted Milli?

gan dead. Now, an old friend, Henry M. Stanton, intervened with Morton and others to keep Milligan alive. Milli?

gan's wife personally appealed to Stan ton for help. Morton sent the Speaker of the Indiana House on a mercy mis? sion to Washington on Milligan's behalf. The Supreme Court, speaking

Litigation Summer 1998 Volume 24 Number 4



through Lincoln's friend and then administrator of his personal estate, Justice David Davis, decided that a civilian outside of a war zone in a state where the civilian courts were open and

operating could not be tried for civil?

ian-type offenses before a military tri?

bunal, even one with twelve members.

The court divided on whether Congress could authorize such a tribunal. Four dissenters led by Chief Justice Salmon Chase stated that Congress could authorize such trials but had not done so in Milligan's case. Recently, Chief Justice Rehnquist suggested that the

Milligan case was the first great civil

rights decision by the U.S. Supreme Court, laying the groundwork for deci? sions under the post-Civil War consti? tutional amendments and the statutes enacted to implement them.

At the time of the United States

Supreme Court decision in 1866, Milli?

gan was being held in the State Peni?

tentiary in Ohio. He was released

immediately after the Supreme Court acted, and he returned to Huntington, Indiana to a hero's welcome.

The Civil Rights Case For reasons obscure, Milligan waited

almost two years to file a civil lawsuit in the local courts of Huntington County where he sought common-law

damages against 22 defendants he claimed were responsible for his illegal incarceration. His case in Huntington County was "transferred" to the United States Circuit Court that sat regularly at

Indianapolis. Procedural machinations followed, including the emergence of two highly visible lawyers. Milligan had filed the law suit pro se.

Thomas A. Hendricks represented Milligan when the case reached the Federal Court in Indianapolis. Hen? dricks had been practicing in Shelby County but had recently moved to

greener legal and political pastures in

nearby Indianapolis. Hendricks was a first-rate litigator who appeared at least a dozen times before the United States

Supreme Court.

Hendricks's political success was

extraordinary. At the time he took on the Milligan case, he had served in both houses of the Indiana General Assem?

bly and had acted as Administrator of the Federal Land Office during the administration of James Buchanan. By the late 1860s, Hendricks had been elected to both houses of Congress and had been an unsuccessful Democratic

candidate for governor. He later sought the vice presidency twice and was elected once. From his first legislative race in 1848 to his death in 1885, no one had more political success in Indi? ana and held a wider range of public offices than had Thomas A. Hendricks.

Most of the defendants Milligan had sued were well known. They included Governor Morton, who by the late 1860s was a powerful member of the

United States Senate and the dominant

figure in the Republican party in Indi? ana. The defendants also included for? mer generals and officers in the Union

Army including General Hovey and a Union officer named Spooner, who was the United States Marshal for the Dis? trict of Indiana. Spooner had lost an arm in the battle at Kenesaw Mountain.

In response to Milligan's lawsuit, another celebrity lawyer-politician entered the picture. Benjamin Harrison, who would later become President of the United States [1888-1892], was retained to represent the defendants. Harrison had illustrious ancestors. His

great-grandfather namesake was a

Governor of Virginia who signed the Declaration of Independence.

His grandfather, William Henry Har?

rison, was President of the United States for approximately 30 days in 1841. His father, John Scott Harrison, had served as a Whig from Ohio in the U. S. House of Representatives. Harrison had arrived in Indiana after his graduation from

Miami College in Ohio. He was an early adherent to the

newly formed Republican Party, and he was elected as a Reporter of the

Supreme Court of Indiana, a political plum, in the 1860 election. Harrison was a tenacious, uncompromising, and

highly competent lawyer able to

manipulate the intricacies of substan? tive and procedural law. A General in the Union Army, he had returned to Indiana as a patriot and was elected

again as a Reporter of the Supreme Court in 1864. A Harrison biographer suggests that it was Ulysses S. Grant who suggested Harrison to represent this array of defendants brought into federal court to answer to Milligan's claims of mistreatment.

Harrison already had a connection to the case. When Andrew Humphrey, who had been tried with Milligan before the same military commission in Indianapo? lis, had sued for false imprisonment damages in Sullivan County, Indiana, and obtained a $25,000 verdict, Harri

son succeeded in having it reversed in the Supreme Court of Indiana.

The stage was set in Indianapolis two weeks before Memorial Day 1871 for a trial that was reported on the front page of two leading Indianapolis papers and that caught the attention of the national

press. The presiding judge was Thomas Drummond, a federal judge from Illi? nois. After jury selection was completed, the Democratic press organ in Indi?

anapolis complained that at least 10 of the 12 jurors were known Republicans.

In representing Milligan, Hendricks

attempted to keep the trial focused on the common law claim for so-called

"trespassing" damages to the person and indignities suffered by Milligan during his illegal incarceration. Harri? son persuaded the judge to rule that all but a small slice of Milligan's claims were foreclosed by the application of a

congressionally enacted statute of limi? tations. This was a significant victory, but Harrison did not rest on it.

The dramatic high point of the case came when Harrison directly con? fronted Milligan in cross-examination.

QUESTION (By Harrison): State whether you, in the years 1863 and 1864 or a part of those years, held any office, or appointment, as a Major General, in connection with some society or organization known as the Order of the Ameri? can Knights or Sons of Liberty? ANSWER (By Milligan): No sir, I never did and I never was elected to

any such office to my knowledge.

Milligan admitted attending a meet?

ing presided over by Harrison H. Dodd in 1863.

QUESTION: Did you have any official connection with the Soci?

ety (American Knights or Sons of

Liberty)? ANSWER: None whatsoever, I never was at but one meeting at that Lodge.

QUESTION: Were you also con? nected with the Sons of Liberty? ANSWER: Never.

Hendricks also used the case to settle old political scores, especially with

Brigadier General Harry B. Carrington, Hovey's predecessor as Commander of the Indiana Military District. Carring? ton was responsible for assembling a force to run the Confederate invader John Hunt Morgan out of Indiana in 1863. Hendricks, on cross-examination,




demonstrated that Carrington had remained safely in the rear during the entire war. Morgan escaped to Ohio while Carrington was fortifying him? self with liquid courage, causing his later removal from command.

Harrison also won some major evi?

dentiary coups, especially with the for? mer Grand Secretary of the Sons of

Liberty, William M. Harrison. Before the Commission, W. M. Harrison testi? fied that he had avoided telling Milli?

gan of their projected revolution. How? ever, at this trial, he did a complete turnaround and said he told Milligan everything. Harrison also exploited the

testimony of Joseph J. Bingham, editor of The Daily Sentinel and State Demo? cratic chairman, that Washington, Har? rison, and Floyd counties in southern Indiana were on the verge of insurrec? tion in 1864. Horace Heffron testified

StN I

11~b -4 1lI

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that he had seen a military commission for Milligan from Confederate Presi? dent Jefferson Davis.

Framed for common-law trespass, false arrest, and false imprisonment, this case was, in reality, a claim for

money damages tried to a jury for a vio? lation of constitutional rights. It was the first. The evidence presented by Milli? gan, through lawyer Hendricks, about

Milligan's health and his confinement in Indiana and the Ohio Penitentiaries, has a modern ring when one considers the way in which constitutional issues are now presented. Milligan claimed

physical injuries and emotional pain and suffering. He originally sued for $500,000 in compensatory damages.

When the case went to trial, the dam? ages were reduced to $100,000.

From the original 23 defendants, at least a dozen were dismissed from the suit. Milligan did not seek punitive

damages. Hendricks claimed damages for physical and emotional injuries because of Milligan's constitutionally illegal confinement. For two days, Hen? dricks led Milligan through a list of

alleged inhumane treatment and per? sonal indignities suffered while he was held in custody from September 1864 to

April 1866. Hendricks had the advan?

tage because the U.S. Supreme Court had decided in his favor in Ex parte Mil?

ligan. He constructed his case around that decision. His tactic was simple.

Early in the trial, Judge Drummond reinforced the application of the Milli?

gan precedent by taking judicial notice that the civil courts, both state and fed? eral, were open in Indiana throughout the Civil War. This spiked Harrison's efforts to show that Milligan was sub?

ject to military jurisdiction. Harrison's tactics were more complex

because he had to avoid the heart of the Ex parte Milligan decision. He, like

Judge Drummond, had to accept the

Supreme Court's pronouncement in the

majority opinion of Justice Davis. Harri? son launched a procedural barrage even while conceding Milligan's validity. His tactic was to attack the amount of dam?

ages. He made at least three technical attacks. Most importantly, he sought and secured a favorable ruling based on the 1863 Habeas Corpus Act, enacted by

Congress, involving a two-year statute of limitations. Judge Drummond agreed and instructed accordingly. This limited the damages sustained by Milligan to a narrow slice of time between March 13, 1866, and April 10, 1866. This was a

devastating defeat for Milligan. Most court observers, including later

comments by Judge Drummond, indi? cate that Harrison was able to wring lit? tle in the way of damning admissions

from Milligan. Milligan held his own with the bombastic Harrison.

Harrison paraded most of the wit? nesses who had testified as to Milli?

gan's treasonous and seditious activi? ties before the Military Commission. The most interesting was Felix Grundy Stidger, who came north from Ken?

tucky and infiltrated the secret organi? zations. He provided damning testi?

mony against Milligan in both

proceedings. Stidger provided an

example of the use of informant testi?

mony. Around the end of the century, Stidger related his experiences in a book which many historians have sug? gested should be read with skepticism.

A single question and partial answer from Stidger's May 22 testimony shows the flavor of his slashing verbal attack on Milligan:

QUESTION: (By Harrison) State what you know, if anything, of the plaintiff's connection with the order of the Sons of Liberty in the State of Indiana; the objects and purposes of that order, and

particularly the positions said Millikin [sic] held in said organi? zation and the part he took therein. State fully all you know about the organization. ANSWER: (By Stidger) I met the plaintiff Lambdin R Milligan in the city of Indianapolis, Indiana at a meeting of what was termed the Grand Council of the State of Indiana of an organization known as the "Sons of Liberty," in the month of June 1864. He was there known as an officer of the organi? zation with the rank and title of

Major General. His name was read in the meeting of the Council in his presence as such officer. I think he was a member of some committees appointed by said Council on that day but cannot

give the name of that Committee. There was considerable discus? sion had on that day by the said Council in regard to the purposes and objects of the said order. I know that Milligan was present but do not remember that he par? ticipated in the discussion. The said organization was exclusively a secret organization. None were allowed to be present at its meet?

ings except known members thereof. The objects of the said

organization as discussed in said




Council on that day was: The sup? posed tyranny of the Federal Gov? ernment and the means to be used to remedy the evils complained of. A part of the program then dis? cussed as aforesaid was: The

releasing of rebel-prisoners at

Indianapolis and Rock Island and other points; Seizing United States Arms and Supplies, and

arming and supplying said Rebel Prisoners and such citizens of the State as could be induced to join them and to operate as might be

thought best for the assistance of the Rebel Army.

This Kentuckian also described the mak?

ing of "Greek Fire," an explosive used to

destroy Union military and governmen? tal property in such places as St. Louis and Louisville. G. R. Tredway, a close observer, says of Stidger as a witness: "He had a natural liking for espionage. He gave an impressive performance on the witness stand, giving testimony against Dodd and weeks later against other prisoners. He also stood up well under a searching cross-examination."

Although most of Harrison's testi? monial ammunition hit the target, there was an occasional backfire. Another

spy witness, Edmund Klamroth, did not fare well when cross-examined by Hendricks, who trapped him in false? hoods and literally drove him from the witness chair in disgrace.

For two weeks, Harrison and Hen?

dricks retried the Civil War not only on the battlefield but regarding the support for it and opposition to it by Milligan and others in Indiana during its execu? tion. This approach was brilliantly summed up in Harrison's final argument to the jury on the eve of Memorial Day in May 1871. He made reference to

United States Marshal Spooner and his loss and wound at Kenesaw Mountain.

Yonder, on the bloody sides of Kenesaw, he gave an arm, almost a

life, for the country which he, and these his comrades, loved so well.

While he lay upon the field, bleed?

ing, almost dying, here in Grand Council in the State of Indiana Mil?

ligan and his associates were plot? ting treason; and now they seek to rob him of the little savings from the office which a grateful country, and a President who honors his valor, have conferred upon him, in order to enrich the traitors.

Gentlemen, I feel sure that it will

not be so. On the morrow when the booming gun shall salute the

rising sun, and . . . maidens come

to hang floral offerings upon the head-stones of our dead, may your returning feet vindicate the living.

Hendricks attempted in his closing argument to stay with his basic tactic while responding to the patriotic rhetoric of Harrison:

The dignity and importance of the

questions involved in this case you can estimate somewhat when you consider the language of the

Supreme Court thus used in respect to them. They are not whether Mr.

Milligan is a good or bad man, nor whether the defendants were gal? lant soldiers and able officers, but

whether a man can be arrested without authority of law; held month after month in prison; put upon trial before a tribunal having no jurisdiction or authority over

him, and sentenced to ignominious death; and for all to be denied the ancient remedy and redress of the law. The struggle today is to main? tain some of our cherished constitu? tional rights; the right to trial by jury; freedom from unlawful arrest and imprisonment; and exemption from all trial and condemnation

except in accordance with the

usages of the courts.

Hendricks distanced himself from some of Milligan's extreme states'

rights positions. He also tried to under? mine Harrison's rhetoric by saying:

I shall not say one word against any appeal that has been made to

you; I am entirely satisfied that the

eloquent gentleman who repre? sents the defendants shall address the most earnest sentiments of

patriotism that can dwell in your bosoms; but when I saw the tears

spring to the eyes of some of you at the eloquent descriptions given by General Harrison this morning of the hardships upon the front, and the desolation in many homes of the country, I thought those tears sprung from a noble and

manly sentiment. I have no objec? tion to your entertaining such sen?

timents; indeed, I would not

respect you if you did not.

Hendricks attempted to play a reverse racial card by commenting on the provisions that "Africans" were

specifically excluded from membership in the Sons of Liberty. Hendricks did not let the oration of General Harrison in his closing about the honoring of the soldiers' graves on May 30 go without an answer. He described his own visit to Arlington Cemetery:

Fame's eternal camping ground is the resting place of the dead soldier, and glory guards that resting place. And do these gentlemen ask you on tomorrow to decide that which is

contrary to your sacred pledge and

carry with you a burden through life that will stand your stooping shoul? ders down to the grave?a false ver?

dict? Can you visit the graves of the true and the brave and cast flowers

upon them, because they fought for the integrity of the Union; to main? tain the authority of the govern?

ment; and for the safety and author?

ity of law, just after you have returned a false verdict into this court? Can you go there tomorrow, with the consciousness of having failed to discharge one of the high? est duties that a citizen is ever called

upon to perform? The ceremony will be no honor to the dead soldier, and the flowers no ornament to his

grave if strewn by hands that have defiled the law in court. It may be

you have to maintain a fight in this case against prejudice and popular opinion. I neither know nor care

anything about that. You have to maintain the laws?the laws which stand by you in every right you pos? sess.

At the end of this bruising legal battle and after deliberating all night, on

Memorial Day at approximately 11 a.m., the jury returned a damage verdict of $5 in favor of Milligan. Historian

Wood Gray stated the obvious when he called this "a paltry sum." Milligan was awarded costs which, according to the

papers retained in the Federal Archives, he was again pro se trying without suc? cess to collect late in the 1870s.

In a biography of Harrison in 1892 by esteemed Hoosier writer and former Civil War General Lew Wallace, Harri? son's final argument is elaborated. Con?

versely, in a campaign biography of Hendricks for the 1884 vice-presidential run, there is no mention of this case.

The massive publicity these two

lawyer-politicians generated from par? ticipating in this highly visible jury trial

(Please turn to page 70)




when one of us might make a mis? take that we will have to correct

later, just to save a few hours. We'll stop now, I'll take you to a

good dinner, we'll talk about

political scandals and Hollywood movies, and tomorrow we can

wrap it all up when we're both fresh and ready to go. One final note. Opposing counsel

always lie about how much more they have left to do. They say they can finish in an hour, and they have two hours.

They say two hours, and they go over to the next day. Few are so foolish as to

guarantee that they will wrap up in sixty minutes. They will "try," or they "think," or it "looks like." Don't expose your tired witness (or your tired mind) to more

questioning on hollow promises. Finally, in preparing a witness to be

deposed, tell the witness explicitly that she will have several opportunities to

clarify or correct any matters that she believes require it. Do not say she can "correct mistakes" because that just raises that old cognitive dissonance

problem again. Instead, talk about "matters that need clarification" or

"things that you want to add." Tell the witness that if she thinks of something she wants to add to an answer, she can do it right then, by saying, "Let me go back and add something to my answer a moment ago about the patient's status on that Monday." Tell her that she can also add to the answer later on, if that is when the need occurs to her. She can

say, "This morning we talked about the effects of deep anesthesia. There is

something I want to add to that." She can also make additions or clarifications after the questioning by opposing coun? sel is complete, and you and the witness have had a chance to talk about matters to be addressed in follow-up question? ing. "Ms. Faber, yesterday afternoon

you were asked about experience with the Rheinsolt heart valve in 1993. Is there anything you would like to add to

your answer?" And, finally, the witness can make any changes that she thinks are appropriate after you and she have reviewed the transcript (an opportunity that you must expressly reserve under the Federal Rules of Civil Procedure).

Contrary to popular belief, the wit? ness's right to make changes to the

transcript is not limited to correcting the reporter's errors. She can change a

"yes" answer to "no"; a "certainly" to a

"maybe"; and an "I don't know" to a

"14.7 percent." She can even change

questions, if she believes that the

change will more accurately reflect what occurred at the deposition. Of course, extensive changes may lead to a

reopening of the deposition or even, in extreme cases, a striking of the changes and a direction that the deposition will stand as originally reported. There seems little reason to tell this to the wit? ness in advance of the deposition, or to let her know that the court or jury can

compare her original answer with any changes and decide for itself which to believe. There is time enough for that discussion after the deposition, during the review. Such talk during prepara? tion will only undo all the other hard work you have done to reduce the wit? ness's anxieties. 10

Legal

Lore (Continued from page 56)

served them well. The next year, in

1872, Hendricks was elected governor of Indiana and served one term. He missed becoming Vice-President with Samuel J. Tilden in the highly con? tested election of 1876 by a single elec? toral vote. He was elected Vice-Presi?

dent, however, with Grover Cleveland in 1884 and died in office after serving in every major political office that he

sought other than the presidency itself.

Notwithstanding this long list of elec torial successes, Professor Thornbrough comes down hard on Hendricks:

Most prominent among Indiana Democrats in the post-war years was Thomas A. Hendricks, who served in the United States Senate until 1869, was nominated and defeated for the governorship in 1868, and finally elected governor in 1872. Hendricks' popularity

must be attributed to his amiabil?

ity and his conciliatory disposition rather than any positive program or profound convictions. His record in the Senate was largely negative, as he unnecessarily opposed every radical move and

deplored the treatment of the southern white. On issues not

immediately connected with

Reconstruction, Hendricks was what was known as a "trimmer,"

following an opportunistic course. His opponents characterized him as the "American Talleyrand," and as a "bundle of very convenient

negatives, with a private character of negative excellence." But in his

public life they said he was "art? ful" and "impure." His amiability was ascribed to the fact that he had not enough sincerity to be irritated

by opposition. During the War, Hendricks had opposed conscrip? tion, emancipation, the issues of

greenbacks, and the Thirteenth Amendment, but he did vote for

supplies necessary to carry on the war. He also opposed the Freed man's Bureau, the Civil Rights Act of 1866, as well as the Four? teenth and Fifteenth Amend?

ments. He opposed the impeach? ment of Andrew Johnson.

Harrison's record was more check?

ered. He was nominated for the gover? norship in 1876 and lost. He was elected to a single term in the United States Senate from Indiana in 1880. He failed to be reelected in 1886 by a sin?

gle vote. Two years later, he was nar?

rowly elected President of the United States on a Republican ticket including Alvin P. Hovey as governor of Indiana.

Hovey died in office. As a footnote, Milligan, who lived to

the end of the nineteenth century, came in contact late in life with Thomas Riley

Marshall, a lawyer then practicing in

Whitley County, Indiana, who became an Indiana governor and United States Vice President. In his autobiography, Hoosier Salad, Marshall condemns Mil

ligan's abandonment of the Democratic

Party. According to future Vice Presi? dent Marshall, Milligan supported James A. Garfield for president in 1880 and remained a thorn in the party's side for the rest of his life.

There is no doubt that the legal pro? ceedings involving Lambdin P. Milligan involved a wide array of the famous. In

fact, future President James Abram Garfield was one of the lawyers who

successfully argued Milligan's case before the U.S. Supreme Court, and such legal luminaries as David Dudley Field as well as Jeremiah Black, a for? mer United States Attorney General, participated in that landmark case.

Chief Justice Rehnquist is correct that the Milligan decision was the first great civil rights case decided by the U.S.

Supreme Court. He is supported by ear? lier comments about the Milligan case by




Chief Justice Earl Warren, who described Milligan as a landmark deci? sion which "established firmly the prin? ciple that when civil courts are open and

operating, resort to military tribunals for the prosecution of civilians is impermis? sible." This celebrity-studded jury trial in the Federal Court in Indianapolis in 1871 was the first great civil rights jury trial. It

proved in the area of civil rights that, indeed, de Tocqueville was correct that

most, if not all, major political questions do find their way into a lawsuit in the United States of America.

Historians' Comments

Twentieth-century historians who

argue about the extent of opposition to the Civil War in Indiana focus on Milli?

gan. In the 1940s, Wood Gray wrote The Hidden Civil War: The Story of The Cop? perheads, in which he adamantly sup? ported the antiwar activities of Milligan and others. Allan Nevins, in contrast, called Milligan a "copperhead zealot" and suggests "a little group in which Mil?

ligan was prominent edged close to trea? son in its opposition to recruiting and its

discouragement of material and moral

support of the war effort." In the 1960s, historian Frank Klement

entered the revisionist fold. He suggested that Governor Morton and his pro-Lin? coln compatriots greatly overstated the seriousness of this dissent, suggesting that much was talk that never resulted in action. Even under the law, it does take some overt act to prove a conspiracy. Eminent Indiana historian Emma Lou

Thornbrough was greatly influenced by Klement but did not cite Gray. More

recently, James M. McPherson in his Battle Cry of Freedom gently chided Klement for ignoring undisputed evi? dence of extensive antiwar activities. The

Milligan debate continues. Q

Preparing a Witness

(Continued from page 15)

become exasperated with the question? ing attorney and wonder when the attor?

ney was going to ask something the wit? ness did know.

The phases of preparation overlap.

Issues that merit active listening may surface during the role play. A mini-role

play may answer a concern that surfaces

during the listening phase. The key to an effective preparation is flexibility. The

lawyer must control, but not over-con?

trol. The lawyer must seize all opportu? nities for teaching, while covering the

necessary rules and substantive material.

In recent years, court decisions, cou?

pled with amendments to court rules, codes of civil procedure and rules of pro? fessional ethics, have transformed the

landscape of depositions. The trend is to conclude that zealous advocacy cannot

justify improper coaching tactics or

overly aggressive deposition conduct.

The growing view is that the lawyer has a duty to learn the truth and to protect the integrity of the court. In an article on

"Rediscovering Discovery Ethics," 79

Marq. L. Rev 895 (1996), W. Bradley Wendel summed up this trend:

Lawyers have an obligation to be advocates for their clients . . . but

this duty does not apply with full force to discovery. The function of

discovery within the litigation system requires that lawyers assist the court in adjudicating the dis?

pute on the merits by disclosing the facts necessary for the court to

make an informed decision. With limited exceptions, advocacy comes into play only after the facts are fully disclosed. . . .

Courts are beginning to recognize that the discovery system is

designed to facilitate truth-find?

ing, and they are involving lawyers in this search for the truth.

They are imposing public duties

upon lawyers in discovery that are not merely rhetorical fluff, but have content and carry severe

sanctions for their violation.

When the client has finished the

preparation, she should feel confident that she will be able to tell the truth with? out fear of being "wrong" or humiliated

by her own counsel. She should under? stand that, despite what J.R believes, the

deposition is not about "kicking butt." It is not even about winning or losing. It is not about zealous advocacy. It is about

exchanging relevant information before the trial starts. It should not be competi? tive or adverse. There is plenty of time to do that in the courtroom when the facts,

having been fairly exchanged, are pre? sented to the factfinder competitively and yes?zealously. 10

Opening

Statement

(Continued from page 2)

ourselves in the garb of the law, reading carefully every word and searching for

every nuance. The protection the law affords even the guilty is the same pro? tection the law affords the innocent, and we need to talk publicly about that. As Sir Thomas More argues to his son in-law in A Man for All Seasons,

And when the last law was down, and the Devil turned round on

you?where would you hide, Roper, the laws all being flat? This

country's planted thick with laws from coast to coast?man's laws,

not God's?and if you cut them down . . . d'you really think you could stand upright in the winds that would blow then? Yes, I'd

give the Devil benefit of law, for

my own safety's sake.

See Bolt, A Man for All Seasons (Vin? tage Books 1990 ed.) 1.66 (Sir Thomas

More to William Roper).

Fair and Ethical Advocacy If the public condemns criminal

defense lawyers along with their clients

simply because we are their advocates and seek for them the protection the law affords, then the public misses the

point of our system, and we must do all we can to make the point.

Are we criticized because we "play games" and avoid merits? Sometimes we do such things and these criticisms are

justified, such as when we take unfair

advantage of our opponents, allowing obvious typographical errors to justify rounds of discovery objections for no

purpose other than delay. That is wrong and we should say so, but we should

explain, without remorse, our adversary

system, which makes us responsible not for the ultimate outcome, but for the

vigor of fair, ethical advocacy. Public opinion polls also indicate that

the money we make and the fees we

charge are further causes for the low esteem in which we are held. Starting salaries for new associates and summer associates have skyrocketed, billable hours requirements have consequently




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DISCOVERY · DOLLARS · DEPOSITIONS || The Milligan Aftermath: A Celebrity Civil Rights Case