Fox, Edward J.

English

Penn State Dickinson Law: IDEAS

Volume 122Issue 1 Dickinson Law ReviewFall 2017Address of Justice Edward J. Fox of the SupremeCourt of PennsylvaniaEdward J. FoxFollow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlrPart of the Judges Commons, Law and Society Commons, Legal Ethics and ProfessionalResponsibility Commons, and the Legal Profession CommonsThis Section V is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in DickinsonLaw Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact lja10@psu.edu.Recommended CitationEdward J. Fox, Address of Justice Edward J. Fox of the Supreme Court of Pennsylvania, 122 Dick. L. Rev. 229 (2017).Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol122/iss1/19Address of Justice Edward J. Fox of theSupreme Court of Pennsylvania*I feel greatly honored at being invited to speak on this auspi-cious occasion as it is one in which I have a very great interest. I amespecially interested, and have been for a great many years, in thework of legal education. It was my very great pleasure in the earlyhistory of the Pennsylvania State Bar Association to be associatedwith Dean Trickett as a member of the Committee of Legal Educa-tion. Before my elevation to the Supreme Court, I was a member ofthat most unpopular body, the State Board of Law Examiners, for along period of years and my interest, therefore, in legal education isa very deep and sincere one. I recognize what splendid work theDickinson School of Law has done. Both the Law School and Dick-inson College have an established place in the history of the nation.Chief Justice Roger B. Taney is a graduate of the law school, andDickinson also gave to the country James Buchanan, President ofthe United States, and a long line of distinguished men who havebeen educated in the law here.When Dean Trickett wrote me inviting me to come here withthe modesty that is thoroughly characteristic of him, he did not indi-cate in any way that the hall to be dedicated was known as TrickettHall, but simply wrote me that it was to be the dedication of “aHall.” He did not indicate either just what topic I should treat in myaddress, but left that entirely to my discretion, and I confess that Iam somewhat embarrassed to determine just what should be mythought on this occasion.I have too recently become a member of the highest appellatecourt of the state to feel that I am qualified to speak for the Su-preme Court of Pennsylvania, but the limited experience which Ihave already had upon the Bench indicates to me that the work ismost interesting, and at the same time I may say that this experi-ence teaches me that you gentlemen who are members of the Barshould feel that the court wishes to have all the assistance that itcan from the members of the Bar. I recall an anecdote told by ChiefJustice White of the Supreme Court of the United States which,while it illustrates what I mean, perhaps goes further than is neces-* Originally published in 23 DICK. L. REV. 11 (1918).229230 DICKINSON LAW REVIEW [Vol. 122:229sary. The Chief Justice said that upon one occasion a young lawyerfrom Virginia was arguing a case in the Supreme Court of theUnited States and he was proceeding to state with great precision anumber of very elementary principles of law. Finally the Chief Jus-tice interrupted him and said, “Mr. —, do you not think it safe toassume that the members of the Supreme Court of the UnitedStates have some knowledge of the elementary principles of law?”,when the counsel interrupted and said, “No Sir, that is just the mis-take which I made in the lower court.”Before proceeding to discuss what I have in mind, there is onematter in connection with the appellate courts of Pennsylvania towhich I would like to refer, and I trust that what I say will not bemisunderstood or misinterpreted. The events of the past few weekshave served to draw my attention particularly to this fact, and withthe profession so largely represented in this gathering, I feel that itis an opportune time to suggest to them this thought in the hopethat they will do what they can to rectify what I believe is a seriousmisapprehension in the mind of the public. I believe that the ordi-nary business man and citizen of Pennsylvania has comparativelylittle interest in the personnel of the appellate courts. When itcomes to the election of a local judge they will probably know per-sonally the candidates who are presented and they are sufficientlyinterested to vote at the election for a local judge. But when thequestion involved is the election of a judge to the appellate courtthey do not know the men who are candidates, and they either donot vote at all or vote blindly for the first or last man on the ticket,and content themselves with the discharge of their duties as a citi-zen in that way. I talked recently with a man who said to me thatalthough he had lived in Easton for ten years he had never regis-tered as a voter, and he seemed completely indifferent not only tothe judicial elections but to all elections, and I endeavored to pointout to him how vitally he was interested in the members of the ap-pellate court.Out of the large number of men convicted of crimes in ourcourt every year there must of necessity be a considerable percent-age of innocent men convicted. My friend had never stopped to re-flect upon this, and in order to bring the argument home I said tohim, “Suppose you are charged with some serious crime, and whilethe circumstances are such that they indicate your guilt, you knowthat you are innocent of the crime charged. You are tried in thelower court and you are convicted unjustly. You wish to take everyopportunity of setting aside that conviction and you take an appealto the appellate court. The appellate court is composed of seven2017] ADDRESS OF JUSTICE EDWARD J. FOX 231judges. Suppose the court divides as to the propriety of the convic-tion by a vote of four to three. One man therefore determines yourfate.” I think my friend realized after this presentation of the matterthat he was interested in the composition of the appellate court andthe citizens of Pennsylvania are all interested and they cannot tellwhen they will be vitally and personally affected by the decision. Ifeel, therefore, like urging upon this body of lawyers that they en-gage in a campaign of education. I venture to say that few businessmen in Pennsylvania can name the Chief Justice of Pennsylvania.The Secretary of the Board of Trade of my home town who is a manof education and intelligence was in my office recently and I askedhim if he knew who the Chief Justice was, and he was unable to tellme. And this is not a singular experience but one which I think canbe duplicated in any town.I would like to direct your attention for a few moments, how-ever, to some popular fallacies that exist as to the profession of lawand lawyers. That they are fallacies there can be no question, andthat a prejudice does exist in the community against lawyers isequally true. Long ago, Jack Cade exclaimed, “First let us kill all thelawyers,” and this simply typifies the sentiment that still exists inlarge part among the people generally, namely, that lawyers are notto be trusted, and that they are untruthful and that in many waysthey are unworthy of confidence. Some years ago a good old ladyinquired about a young man just leaving college, and when she wastold that he was about to enter the profession of the law, she ex-pressed great surprise and dismay because she was under the im-pression that he had intended to enter the ministry, and endeavoredto sustain her attitude by saying that her father had originally in-tended to study law and when he was converted to Christianity hefound that it was impossible for him to be a lawyer, and then heentered the ministry. I think this impression lies only on the surface,and that really, as lawyers all know, there are constant instances inwhich the people at large manifest their confidence in theprofession.One of the fallacies is that the term “lawyer’” is synonomous to“liar.” We all know that this is not true. As long ago as in the Stat-utes of Edward III, it was a penal offense for any servant to indulgein deceit, and the penalty was a year’s imprisonment. In no otherprofession except the clerical profession is there any vow or oathtaken, but when the lawyer begins his practice, he swears not onlyto support the Constitution of the United States and the Constitu-tion of Pennsylvania but also that “he will use no falsehood and thathe will delay no man’s cause for malice or lucre.” I have had a long232 DICKINSON LAW REVIEW [Vol. 122:229experience at the Bar and I am glad to say that in that long experi-ence I have encountered comparatively few instances in which alawyer’s word could not be absolutely depended upon.  It is theconstant practice of the courts to recognize the unsworn statementof a lawyer as absolute verity. One of the reasons which perhapsgives rise to this impression is the fact that in the trial of cases thelawyer is engaged in an attempt to elicit the truth, and instead ofrecognizing this fact, the public believes that the effort is made toobscure or hide the truth and to bring out only facts that will assistthe particular litigant. I believe that most witnesses on the standintend to tell the truth, and yet in a great many instances, withoutintending to do so, they are guilty of perverting and distorting thetruth to a very great extent. This is due to the fact that a witness isobliged to exercise not only his memory but his powers of observa-tion. We all know how fallacious human memory is, but I think wedo not all appreciate fully how little we exercise our powers of ob-servation. Did you ever make the experiment of walking by a showwindow in a department store, noticing the articles in the windowand then determining after you left how many of them you canwrite down or call to memory? This simply illustrates the fact thatwe are all of us prone to make inaccurate observations and the re-sult is that when it becomes a matter of testimony in court, it isdifficult to give accurate testimony because of the lack of accurateobservation. The art of examination and of cross-examination, if Imay so speak, is a perfectly legitimate method to use for the pur-pose of eliciting the truth. It may aid the honest witness by develop-ing his knowledge, and it is equally true that the dishonest witnessought to be exposed.  I recall an instance that occurred in the trialof a case in our local courts when Judge Scott was the cross exam-iner. A witness was undertaking to tell that he had delivered a cer-tain number of loads of wood, and he gave the days and dates onwhich the deliveries had been made. Judge Scott, with an accountbook in his hand, induced this witness who was not frank and truth-ful, to testify that he had delivered the wood on a large number ofdays when there had been no actual deliveries and the witness wasmisled simply because he believed that the entries were made in thebook which Judge Scott held in his hands. There were no such en-tries and the witness was completely discredited when Judge Scottcame to make his address to the jury.Another fallacy with regard to our profession is that a lawyer isconstantly defending people whom he knows to be guilty and thatthis is discreditable. I have not been in the criminal courts for agood many years so far as the active trial of cases is concerned, but2017] ADDRESS OF JUSTICE EDWARD J. FOX 233I have kept in close touch with them and I think I know where of Ispeak when I say that so far as my experience goes it is a very rareexperience for a lawyer to know that a client is actually guilty of acrime, and when he does discover this he usually advises that theclient shall plead guilty. There is nothing discreditable in using yourknowledge of the law and your skill as a practitioner in defending aman who is accused of crime. There is always a possibility that hemay be innocent and it is his constitutional privilege to be defendedby one who is learned in the law and there should be no criticismfor this reason. In the trial of Queen Caroline, Lord Brougham thusstates his conception of his duty to the client, “I once took occasionto remind your Lordships, which was unnecessary, but there aremany whom it may be needful to remind, that an advocate by thesacred duty which he owes to his client, knows in the discharge ofthat office but one person in the world, that client and none other.To save that client by all expedient means, to protect that client atall hazards and costs to all others, and among others to himself, isthe highest and most unquestioned of his duties; and he must notregard the alarm, the suffering, the torment, the distraction whichhe may bring upon any other, nay, separating even the duty of apatriot from those of an Advocate. He must go on reckless of con-sequence if his fate it should unhappily be to involve his country inconfusion for his client’s protection.”This is perhaps an exaggerated statement of the duty which alawyer owes to his client, and indeed Lord Brougham subsequentlyconfessed that the statement which was made was partially for theinfluence which he hoped it would exercise upon the King, but, nev-ertheless, the real basis of the relation which all lawyers sustain toclients is contained in this excerpt.Another fallacy is that lawyers are not to be trusted. It is con-stantly exemplified in our practice that our clients and the peoplegenerally do not really feel in this way. A client will confide in hiscounsel the most sacred family secrets which he would not divulgeto any other person. He will commit his interests wholly and abso-lutely to the care and custody of his counsel in a way that exhibitsthe greatest possible confidence. He will deposit securities that hewould not leave with the banker under similar circumstances with-out the most careful receipts. If you will pardon a personal illustra-tion, I recall that some years ago I was engaged in a litigation withreference to a divorce in New York where, in order to effect a set-tlement, it became necessary for my client and his wife, who werethe parties to the divorce proceedings, to make a conveyance of alarge amount of real estate to me. The deeds were executed and to234 DICKINSON LAW REVIEW [Vol. 122:229my amazement when I proposed that I should give some indicationof the fact that I held this property only in trust, my client demurredand said that it was totally unnecessary. Of course I was unwillingto permit the matter to stand in that way, but it exemplified thethought that I have in mind that our clients are constantly entrust-ing to our care substantial interests with absolute confidence thattheir trust will not be abused.Again there is the popular idea that lawyers are not ahardworking profession, that their money is made easily and thatthey grossly overcharge for their services. There are so many prac-ticing lawyers here present today that it seems idle to say that this isa fallacy. The work of the legal profession is most exacting and on-erous. The constant multiplication of reports is one item alone thatillustrates the immense amount of labor involv[ed] in keeping upwith the work of the profession. We have almost 260 volumes ofPennsylvania State Reports and a large number of Superior Courtreports, not to mention the United States Reports, and the reportsof other states to which resort must constantly be had in aid of thesuccessful work of the practicing lawyer. A lawyer’s work is neverdone. He may be engaged in the trial of a case during the entire dayand perhaps nervously and physically exhausted from the work andyet he must go to his office and prepare for the continuance of thework of the next day by unremitting toil, industry and study. Thecompensation which he receives for work of this kind is not exces-sive and is often inadequate, and it has been my experience thatmost lawyers are absolutely honest and fair in their endeavors tomake the charges proper and satisfactory.I have thus briefly indicated some fallacies that obtain as to ourprofession. The legal profession is a glorious one and we must seeto it that there is nothing done that will tend in the slightest degreeto tarnish it or take away the lustre to which it is properly entitled. Iam very glad to participate in the ceremonies attending upon thededication of this Hall to Dean Trickett, and think that it is fittingthat the Hall should be so named. Dean Trickett can well exclaim“exegi monumentum aere perennius.” He has indeed erected amonument more lasting than bronze in the hearts of men who havegone out from this splendid school of law. You who have sat thereat the feet of the Gamaliel have enjoyed a rare privilege and whichI can well see you all prize most highly. If we wish to keep the lustreof our profession untarnished, may all of us, both you and I, mouldour professional lives upon this life of the great teacher here who isso eminent and so justly distinguished in the world of legal educa-tion as a Master in the profession.

Address of Justice Edward J. Fox of the Supreme Court of Pennsylvania

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Address of Justice Edward J. Fox of the Supreme Court of Pennsylvania

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