Million, Elmer M.

English

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Washington University Law Review Volume 1958 Issue 2 January 1958 Review of “Pay the Two Dollars: Or, How to Stay out of Court and What to Do When You Get There,” By Alexander Rose Elmer M. Million New York University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Recommended Citation Elmer M. Million, Review of “Pay the Two Dollars: Or, How to Stay out of Court and What to Do When You Get There,” By Alexander Rose, 1958 WASH. U. L. Q. 241 (1958). Available at: https://openscholarship.wustl.edu/law_lawreview/vol1958/iss2/8 This Book Review is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. BOOK REVIEWSethical strand in this fabric. Perhaps three points made by the au-thor, however, are worth summarizing: (1) since Soviet morality isin the service of industrial productivity, it combines "elements fromthe ethics of Calvinism and Puritanism, enlightened absolutism andliberalism, nationalism, chauvinism, and internationalism, capitalistand socialist values"; (2) Soviet ethics are instrumentalistic and ethi-cal values are regarded as "'external' to any specific individual actionor thought, the latter being instruments for attaining an ethical goalwhich is that of society"; (3) the preoccupation with technologicalvalues forces Soviet writers to attack such diverse exponents of"bourgeois irrationalism" as Nietzsche, Schopenhauer, existentialistsand Freud. With qualifications, Marcuse offers the prediction thatideological pressure in the sphere of ethics "seems to tend in the samedirection as technical-economic pressure, namely, toward the relaxa-tion of repression."Clearly, Marcuse's evaluation of Soviet Marxism is sufficiently pro-vocative to invite protracted debate, and the issues do not readily lendthemselves to condensed analysis. But there is much, for all seriousstudents of Soviet society, to ponder in this volume. Few books legiti-mately can stake off the same claim.MERLE KLINGtPAY THE Two DOLLARS: OR, How To STAY OUT OF COURT ANDWHAT To Do WHEN You GET THERE. By Alexander Rose. NewYork: Simon & Schuster, 1957. Pp. 225. $3.50.Unbelievably, this delightful book, written by a non-lawyer, is atonce entertaining to the layman, invaluable to the inexperienced pro-spective witness, amusing to the seasoned trial lawyer, and both in-teresting and instructive to the law student. A genuinely witty bookrather than a reprinting of hackneyed gags, it abounds with highlypractical, earthy advice for layman, witness, and leaglet.1 It is alsoappropriate for a lawyer's waiting room.The curse of the author being a non-lawyer is removed when it isnoted that he served for more than twenty years as a court reporter("for courts ranging from New York Magistrates to the Unitedt Associate Professor of Political Science, Washington University, St. Louis,Missouri.1. Another reviewer characterized the book as informative and entertaining,"a lighthearted, do-it-yourself legal primer." N. Y. Times, Oct. 6, 1957, p. 28. Theself-help suggested is, however, largely of the preventive law variety and limitedto that appropriate for prudent laymen. Hereinafter, unless otherwise indicated,page references are to the book being reviewed.Washington University Open ScholarshipWASHINGTON UNIVERSITY LAW QUARTERLYStates District Court").2 He therefore is not without legal trainingand experience of a highly practical-although limited-sort, whichgreatly enriches this book. On the other hand, the book does not pur-port to be a law book. Its occasional references to formal legal prin-ciples are usually oversimplified into terms palatable to laymenA Anunfortunate example reads:If you go into a diner for a cup of coffee and say to the man onthe adjoining stool, "Mister, it's people like you who give thiscountry a bad name," and he suddenly pulls a murderous knifeand goes after you-you are not defending yourself, you aremerely finishing up a little transaction that you initiated and youare strictly on your own. (See chapter on Silence and Longevity-under the subheading Your Mouth and What It Means to You.) 4The foregoing quotation is preponderantly wrong when comparedwith judicial pronouncements on the point, and considerably exces-sive as an expression of the actual operation of the legal rule.The value of the book to the law student lies principally in its pertbut pertinent examples of the right and, even more important, wrongways to examine witnesses. In a lesser degree, its discussion of judgeand jury is also helpful.6The title is editorial, rather than promotional (the book lists at$3.50) as the author counsels against rushing fool-long into litiga-tion.7 His emphasis, however, is on how to stay out of court and whatto do (including what for-Gosh-sakes not to do) in court and beforereaching court. More effectively than a weightier tome could, the book2. From the publisher's blurb on the book jacket. The publisher's publicitydepartment advised this reviewer that the author had never attended law school,was not a member of the bar, had served also as court reporter for the FederalTrade Commission and Board of Tax Appeals, and, from 1936-38, had written aweekly column "Ring Around the Rose" in the Plainfield, N. J., Sunday Post.3. See, e.g., his discussion of the fine print provisions in insurance contracts(pp. 190-202), typified by his statements that a policy provision insuring against"all stated hazards" means "only stated hazards," and that "fidelity insurance per-tains to your cashier, not your husband." His discussion of the fine print in anapartment lease makes its point entertainingly, but glosses over the statutoryand judicial restrictions against the lessor's omnivorous words. Pp. 203-06.4. P. 87. The final sentence is another whimsy of the author. Similar shamcross references appear when he mentions drunk driving ("See chapter on Boozeand Your Future") (p. 85) and giving away money like drunken soldiers ("SeeStatistics on Military Personnel, Revised") (p. 41). See also pp. 174, 180.5. 1 Wharton, Criminal Law and Procedure 503 (12th ed. 1957) ("The mereuse of language does not forfeit the right of self-defense, except that in SouthCarolina and Texas, where they are designed to provoke a combat .... 1"). Cf.Prosser, Torts 88-91 (2d ed. 1955).6. C. 4.7. Pp. 34-37 (traffic ticket), 212-24 (the law's delays).https://openscholarship.wustl.edu/law_lawreview/vol1958/iss2/8BOOK REVIEWSexplains to laymen why to read-before-signing, 8 how to pay a debt incash without getting a receipt or losing a friend," how to give a clerkor cashier a ten dollar bill, 10 and that in a minor automobile accident,the question of (immediately ascertaining) the extent of damage orinjuries may be far more important than the assessment of fault. Themotorist is advised that if the other driver, while still at the scene,refuses to sign a written memo of the nature of the damage, a police-man should be asked to notice the extent of the damage. The authorforecasts this colloquy:"What's goin' on here?""Officer, we've just had a little--""You got this party's number?""Yes, but-""Then on your way. You're blockin' traffic.""But, Officer, I want someone to have a look at the damage.""Is that what you called me for?""Exactly. You see, sir-""Look, mister, I ought to pull you in. I'll bet you're one of themtaxpayers says we ought to be out chasing thieves. You got thisparty's number. What more do you want? Now, get them ve-hicles outa here, the both of you."(Well, the officer has a point there, but if you can keep yourshirt on and convince him you are merely trying to prevent anunwarranted claim for property damage or personal injury, hemay at least look the situation over, however briefly. Then youcan subpoena him at the trial and even his reluctant testimonywill help a lot to defeat an outlandish claim.) 11The greatest usefulness of the book lies in its instructions to pro-spective witnesses. They are told how to make a good impression,12how to avoid various mantraps, and how to answer questions re-sembling: "Have you discussed this case (or your testimony) withanyone?"'"- "Are you being paid to testify?" and "Have you quit beat-ing your wife?"4 Typical of such advice is this illustration of a wit-ness discrediting herself by exaggerating:Q: Mrs. Strech, do you mean to tell us that you remember everyword of this conversation?A: Every word.Q: A fifteen-minute conversation!A: Eighteen minutes.8. C. 6.9. P. 20.10. Ibid.11. Pp. 11-12.12. Pp. 187-89.13. Pp. 165-68.14. Pp. 158-61.Washington University Open ScholarshipWASHINGTON UNIVERSITY LAW QUARTERLYQ: Why, at an average of 150 words per minute that would be2700 words. You remember every word?A: Every word.Q : Getting back to the injuries for a moment, the plaintiff washurt pretty badly?A: He was practically killed.Q: He was bleeding?A: From every pore.Q: Come now, not from every pore! Surely that's just an ex-pression-A: From every single pore. I was there and I saw it.Q: What about the car-A: Wrecked.Q: Well, you mean the front end, the left front-A: I mean the whole car. A complete wreck. I know a wreckwhen I see one. This car was wrecked. There, was no car.Q : Well, surely some of the parts-A: No parts, no car. A wreck.Q: Why, Mrs. Strech, you heard these other witnesses say thatright after the accident this car was driven-A: All lies.Q : Eleven witnesses?A: All of them...15In 1941 the author published a book for prospective witnesses.10 Itwas a good book. This one is better.1 7 It supersedes the earlier bookbut is not merely a revision, although containing a great deal of thesame material.18Thirty-nine hilarious drawings by Paul Coker sprinkle the book.The best one depicts litigants in a small-claims action, in which a ladysued a barber for $4.50, "contending that he was active in many direc-tions and had sold her a defective device; the barber denying thisclaim and counterclaiming for $5 for piccolo lessons given the ladyon the side."'19 Four runners-up picture a lawyer browbeating a wit-15. Pp. 152-53. This reviewer changed the gender of the witness, correctingeither an obvious error or excessive timidity.16. Rose, So You Are Going To Be A Witness! (New York: Institute Press1941).17. The later book polishes some of the phrases and drops some attempts toexplain principles of law-e.g., patent searches (pp. 96-101 of the earlier book).18. The following pages in the work now being reviewed correspond with, orreprint, the pages (shown in parentheses) from the earlier book: pp. 18-21(144-47), 31-33 (137-39), 46-48 (48-52), 51-68 (149-66, 201.04), 71-77 (205-07,187-91), 111-13 (94-95), 131-36 (176-82), 138-46 (81-89), 148 (13), 158-77(14-21, 36-44), 186-89 (59-62), 212-24 (217-23).19. P. 19. By showing the barber holding a violin, the drawing might seemto imply that he had been fiddlin' around. The author probably substituted"piccolo" for "violin" after the illustration was drawn, the earlier book havingsaid "violin." Rose, op. cit. supra note 16, at 145.https://openscholarship.wustl.edu/law_lawreview/vol1958/iss2/8BOOK REVIEWSness,2 0 smiling at the witness he is about to demolish (two versions) ,21and looking hyperotic after receiving an annihilating answer to theincautious question "Why?122A table of contents lists the seven chapter titles and most of thesubheadings, and in two instances places the subheadings under theright chapter titles.2 3 The book contains no other tables and no index,appendix, footnotes, or preface. None is needed.The book has been criticized as seeming to suggest "that a defen-dant in need of a defense should simply make one up.''24 A betterstatement is that the author (1) stresses the importance to the liti-gant or other witness of giving responsive answers rather than eva-sions ;25 (2) stresses the perils both of the unrehearsed lie and thememorized lie ;26 and (3) concludes facetiously by suggesting that ifone is determined to lie, his best chance is to memorize three differentversions, all agreeing on the main essentials but each varying ade-quately in less important details. 2 7ELMER M. MILLIONtTHE OFFENDERS. By Giles Playfair and Derrick Sington. NewYork: Simon and Schuster, 1957. Pp. viii, 305. $3.95.In this small volume of 305 pages, the authors advocate the over-throw of a foundation thesis of Anglo-American criminal law-thatone must be punished who intentionally does an act forbidden by law."20. P. 120.21. Pp. 40, 132.22. Pp. 169-70. Similarly, Joseph H. Choate reportedly asked a witness, "Isn'tit true that you are the modern Munchausen?" and received the angry retort,"You're the second blackguard that has asked me that in a week." The Choate StoryBook 41 (1903). In a murder trial in England a prosecuting attorney saw theaccused whisper to the attending policeman, and unwisely insisted that the police-man divulge the remark. The latter refused; then, after being sternly commandedby the judge, haplessly admitted that the prisoner, referring to the judge, hadwhispered, "Who is that hoary heathen?" Morton & Malloch, Law & Laughter56 (1913).23. Subheads listed under chapter 4 belong to chapter 5; those listed underchapter 5 belong to chapter 6; those listed under chapter 6 belong to chapter 4(p. viii).24. 25 Kirkus 507 (1950).25. "Whether you are lying or telling the truth, the surest way to be a goodwitness is to answer the question directly." P. 149.26. Pp. 181-83. Cf. p. 96.27. P. 183.t Professor of Law, New York University School of Law.1. "Historically, our substantive criminal law is based upon a theory of pun-ishing the vicious will. It postulates a free agent confronted with a choice betweendoing right and doing wrong and choosing freely to do wrong." Pound, Introduc-tion to Sayre, Cases on Criminal Law (1927).Washington University Open Scholarship

Review of “Pay the Two Dollars: Or, How to Stay out of Court and What to Do When You Get There,” By Alexander Rose

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Review of “Pay the Two Dollars: Or, How to Stay out of Court and What to Do When You Get There,” By Alexander Rose

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