Law of the YahoosAuthor(s): Jonathan SwiftSource: Litigation, Vol. 10, No. 3, THE SMALL CASE (Spring 1984), pp. 60, 53-54Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758891 .

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Literary

Trials

Law of

theYahoos

by Jonathan Swift

The following discourse between Gulliver, a Yahoo, and his master, a

Houyhnhnm, appears in Travels Into Several Nations of the World, by Lemuel Gulliver (London 1726).

There was another point which a little perplexed him at present. I had informed him, that some of our crew left their country on account of being ruined by Law; that I had already ex?

plained the meaning of the word; but he was at a loss how it should come to pass, that the law which was intended for every man's preservation, should be any man's ruin. Therefore he desired to. be farther satisfied what I meant by law, and the dispensers thereof, according to the present practice in my own country; because he thought nature and reason were sufficient guides for a reasonable animal, as we pretended to be, in show? ing us what we ought to do, and what to avoid.

I assured his Honour, that law was a science wherein I had not much con? versed, further than by employing ad? vocates, in vain, upon some injustices that had been done me: however, I would give him all the satisfaction I was able.

I said, there was a society of men among us, bred up from their youth in the art of proving by words multiplied for the purpose, that white is black, and black is white, according as they are

paid. To this society all the rest of the people are slaves. For example, if my neighbour hath a mind to my cow, he hires a lawyer to prove that he ought to have my cow from me. I must then hire another to defend my right, it being against all rules of law that my man should be allowed to speak for himself. Now in this case, I, who am the right owner, lie under two great disadvan? tages. First, my lawyer, being practised almost from his cradle in defending falsehood, is quite out of his element when he would be an advocate for justice, which as an office unnatural, he always attempts with great awkward

ness, if not with ill-will. The second

disadvantage is, that my lawyer must

proceed with great caution, or else he will be reprimanded by the judges, and abhorred by his brethren, as one that would lessen the practice of the law. And therefore I have but two methods to preserve my cow. The first is, to gain over my adversary's lawyer with a double fee; who will then betray his client, by insinuating that he hath justice on his side. The second way is for my lawyer to make my cause appear as un?

just as he can, by allowing the cow to

belong to my adversary: and this, if it be skillfully done, will certainly bespeak the favour of the bench.

Now, your Honour is to know, that these judges are persons appointed to decide all controversies of property, as well as for the trial of criminals, and picked out from the most dexterous lawyers, who are grown old or lazy, and

having been biassed all their lives against truth and equity, are under such a fatal

necessity of favouring fraud, perjury, and oppression, that I have known several of them refuse a largebribe from the side where justice lay, rather than

injure the faculty, by doing any thing unbecoming their nature or their office.

It is a maxim among these lawyers, that whatever hath been done before,

may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities, to justify the most iniquitous opinions; and the judges never fail of directing accordingly.

In pleading, they studiously avoid entering into the merits of the cause; but are loud, violent, and tedious in dwell? ing upon all circumstances which are not to the purpose. For instance, in the case already mentioned: they never desire to know what claim or title my adversary hath to my cow; but whether the said cow were red or black; her

(Please turn to page 53)

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would defeat a motion for summary judgment.

Use depositions when affidavits and

interrogatories cannot ferret out the facts. For example, in a dispute involv?

ing common-law fraud, the defendant raises the issue of limitations. If the so called discovery rule applies (the cause of action arises when the plaintiff knew or should have known that the wrong occurred), interrogatories could not ef?

fectively bring out the facts. During depositions, the defendant discloses correspondence in which the plaintiff complained that the roof was leaking, telephone messages in which the plain? tiff discussed bills about correcting various defects, and meetings in which the plaintiff suggested suspicious con? duct by the builder. The documents could then be woven, with testimony, into a motion for summary judgment. For example, you claim that as a mat? ter of law, a reasonably prudent person would have been on notice that the builder had intentionally used defective material, which began the running of limitations.

The rules of the court in which you file your motion will tell you how to

prepare the papers, but a few sugges? tions may help you win. First, make the

motion itself as short as possible ? two

or three pages, at the most ? with the formal language appropriate in mo? tions. Include in your motion a state?

ment of propositions that outline your case. What you want to produce is a series of logical assertions that march the trial judge through your case and rivet his attention on the legal questions. Remember, a trial judge will not be accustomed to extended legal argument the way an appellate court is, so you need to move him out of the realm of fact, in which he usually holds sway, and onto your ground.

Second, prepare a supporting memorandum in the form of an ap? pellate brief. Do not just hand him two or three cases or a typewritten document or two with your trial authorities laid out on it. Give him a full-fledged legal argument, questions presented, facts, procedural history, and argument. A long brief will be no better here than in an appellate court, but you seek to leave the impression that the case has already passed into the region of pure argument.

Third, put all the evidence together in the form of a bound exhibit, if you

can. That will also be helpful as an ad?

junct to the appellate record. Get this all to the judge a week or

(better) two weeks before motion day. Let him have at least one weekend to catch up. Chances are he will have read and understood your argument by the time you stand up to talk, which will carry you a long way toward convinc?

ing him. The same tactic will work well if you

have to oppose a motion. Try not to scatter papers all over the motion. Pick out the main weaknesses in the argu? ment on the facts and hand the evidence that contradicts your adversary to the judge in bound form. Then point out his errors with a short reply brief. Remember that you have two issues in

opposition: the first is whether there are

any fact issues, but the second is whether your adversary deserves to win as a matter of law. Reply to his legal argument with a strong brief that ex?

poses his errors and you will lend weight to your argument that the jury ought to hear the evidence.

A final point bears thought. You may wish to bring on the whole case by fil?

ing a cross-motion for summary judgment. While many courts will hold that cross motions dispense with any fact issues, it is possible that you will have a good motion for summary judg? ment and there can still remain a fact issue in your opponent's case.

But even if there are no fact issues, make sure your document of opposition places you in position to seek full relief from an appellate court even if you lost in the trial court. Texas now requires you to have raised all issues in writing before the trial court or you waive them on appeal. But you should also give careful attention to the idea of filing a cross-motion every time your adversary moves for summary judgment.

There are a few unusual points to

keep in mind on appeal. Most impor? tant, the appellate court will find itself free to disagree with the trial court en?

tirely (a power it does not have in most

cases) and turn the summary judgment upside down. There will be no presump? tions that accompany a jury verdict or even a bench trial when you appeal a

question of pure law. That offers yet another reason to file a cross motion if

you are defending the motion. On the other hand, many appellate

courts carry a lingering prejudice

against summary judgments. The judges of your court may specialize in

finding triable issues, and if you find yourself defending a weak case on the law, you may wish to throw yourself on the appellate court as a defender of the

jury system. This all leads to one last tactical con?

sideration. The courts will all impose strict requirements on summary judgments because they do sidestep the

jury system. If you move for summary judgment and fail, you have rarely lost much. The worst you will do is take up some of the judge's time and show your best case to your adversary.

Winning may be the greatest danger. Then you commit yourself to a year or more of delay while the case makes its way through an intermediate court and a court of last resort. But if the appellate judges find a fact issue lurking in your evidence, they may send you back to jail without passing Go and without collect?

ing $200. You need to decide whether your case

can stand any delay before you move for summary judgment. But then, jury verdicts can find themselves reversed, too.

Literary

Trinis

(Continued from page 60) horns long or short; whether the field I graze her in be round or square;

whether she was milked at home or

abroad; what diseases she is subject to, and the like; after which they consult

precedents, adjourn the cause from time to time, and in ten, twenty, or thirty years, come to an issue.

It is likewise to be observed, that this

society hath a peculiar cant and jargon of their own, that no other mortal can

understand, and wherein all their laws are written, which they take special care to multiply; whereby they have wholly confounded the very essence of truth and falsehood, of right and wrong; so that it will take thirty years to decide whether the field left me by my ancestors for six generations belongs to me, or to a stranger three hundred miles off.

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In the trial of persons accused for crimes against the state, the method is much more short and commendable: the judge first sends to sound the

disposition of those in power, after which he can easily hang or save the criminal, strictly preserving all due forms of law.

Here my master interposing, said it was a pity, that creatures endowed with such prodigious abilities of mind as these lawyers, by the description I gave of them, must certainly be, were not rather encouraged to be instructors of others in wisdom and knowledge. In answer to which, I assured his Honour, that in all points out of their own trade, they were usually the most ignorant and

stupid generation among us, the most

despicable in common conversation, avowed enemies to all knowledge and

learning, and equally disposed to

pervert the general reason of mankind in every other subject of discourse, as in that of their own profession.

Opening

Statement

(Continued from page I) nominally directed against lawyers and the legal profession, is in no small measure a backlash

against the use of the law as an in? strument for social change.

In Chief Justice Burger's Las Vegas speech deprecating lawyer advertising, there was first cited current polls that purportedly placed lawyers and jour? nalists at the bottom. In the polls relied on by the Commission on Advertising of the American Bar Association, which I assume had been made available before the speech, lawyers not only were not "at the bottom of the barrel," but rather in the upper ranks of those pro? fessionals who had more positive than

negative ratings. On the subject of advertising, the

Chief Justice's reference to "the

Supreme Court which declared that the First Amendment allows advertising by lawyers" gives the impression that somehow or other that Court was not related to the speaker and that the Court that granted First Amendment

privileges to commercial speech, in?

cluding lawyer advertising, and the same Court that made it clear that any prohibition against advertising had the effect of depriving the public of

knowledge concerning the need for legal services, was somehow or other disassociated from the author, who had concurred in part and dissented in part in the landmark case of Bates v. State

Bar of Arizona, 433 U.S. 350 (1977). Nowhere in that case do I find issue be?

ing taken with the majority opinion when it stated:

But advertising by attorneys is not an unmitigated source of harm to the administration of justice. It

may offer great benefits.

Although advertising might in? crease the use of the judicial machinery, we cannot accept the notion that it is always better for a person to suffer a wrong silent?

ly than to redress it by legal action.

Decided cases reinforce this view. The Court often has recognized that collective activity undertaken to obtain meaningful access to the courts is protected under the First Amendment. See United

Transportation Union v.

Michigan Bar, 401 U.S. 576,585, (1971);... It would be difficult to understand these cases if a lawsuit were somehow viewed as an evil in itself. Underlying them was the

Court's concern that the aggrieved receive information

regarding their legal rights and the means of effectuating them.

Chief Justice Burger's repetition of the oft-repeated charge of the high percentage of courtroom incompetence not only finds no verification among the trial judges of this country, but serves to give ammunition to those

malcontents who seize every opportuni? ty to denigrate the dedication of profes? sional advocates.

The Chief Justice's only reference cited in what is perceived to be an in?

adequacy of disciplinary enforcement

by the Bar is that of a 1970 report by Justice Tom Clark. Scant, if any, recognition is given to the remarkable strides made in the 13 years since that

report. The enforcement of discipline procedures has been almost universal?

ly expanded to include participation by laymen and has resulted in a much

higher degree of acceptance by the

public of the modern-day disciplinary procedures.

While citing the 1983 amended rules

designed to curb abuses of discovery, the impression Chief Justice Burger gives is that the order of the day was for

lawyers to exploit pretrial discovery to the point of "something approaching its use as a tool of extortion," "filing a com?

plaint based on almost a rumor," and

directly charging lawyers with using the court system as a means of enriching themselves at the expense of their clients. The authors for these charges, described as unnamed "responsible lawyers and judges," employed uni?

formly extravagant generalities in the condemnation of lawyers, and indeed of the whole system, so as to make one

seriously wonder whether they were in? deed "responsible."

No mention is made that the very rules involved in discovery abuse were the direct result of a study undertaken at the direction of a former president of the American Bar Association, Justin

Stanley, and were the product of a

special committee of the Section of

Litigation, which in its report advocated to the Judicial Conference rules even

more far-reaching than those adopted. The litigator has long been in the forefront of those seeking to weed out abuses in discovery and seeking to make the courts available in the most ex?

peditious way possible. The contumel? ious reference in the Chief Justice's

speech to "a few carefully considered

well-placed $5,000 or $10,000 penalties" is neither necessary nor appropriate to

"help focus attention on the matter of abuses by lawyers."

While reference to the possible strengthening of Rule 68 of the civil rules, which would involve considera? tion of cost shifting, will help in calling attention to this most important issue, it is unfortunate that the proposal is set forth as an affirmative remedy without

calling attention to the serious cautions that must be considered before adopt? ing this rule as a panacea for all of the

problems of court congestion. The council of the Section of Litiga?

tion has pointed out that before any method for cost shifting can be con?

sidered, one must fully evaluate the

chilling effect such a rule would have on the innumerable legitimate claims that might never see day because of the deterrent effect the rule would have on

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