david hoffman and fifty resolutions and professional deportment and address

**David Hoffman's Fifty Resolutions VIII**

Bill Long 12/14/05

Resolutions 38-42

38. "Should it be my happy lot to rank with or take precedence of my seniors, who formerly endeavored to impede my ownward course, I am firmly resolved to give them no cause to suppose that I remember the one, or am conscious of the other. When age and infirmities have overtaken them, my kindness will teach them the loveliness of forgiveness. Those, again, who aided me when young in the proession shall find my gratitude increase in proportion as I become the better able to sustain myself."

COMMENT: If we read this in the context of Resolution 17, where he talks about the "inconsiderate or rude and arrogant deportment of some of my seniors" he faced as a young man, we are tempted to ask biographical questions of Hoffman at this point. All of us face the slings and arrows of others, but the way we respond to them is the measure of our character. I often thought that some teachers subjected students to verbal harassment in law school or played "hide the ball" because they were harassed as a student and never learned the lesson Hoffman here presents. Lest we forget, Hoffman is consciously a Christian lawyer, and we can see behind these words Jesus' exhortations on forgiveness and turning the other cheek from the Sermon on the Mount.

39. "A forensic contest is often no very sure test of the comparative strength of the combatants, nor should defeat be regarded as a just cause of boast in the victor, or of mortification in the vanquished. When the controversy has been judicially settled against me, in all court, I wil not "fight the battle o'er again," coram non judice; nor endeavor to persuade others, as is too often done, that the courts were prejudiced, or the jury desperately ignorant, or the witnesses perjured, or that the victorious counsel were unprofessional and disingenous. In such cases, Credat Judaeus Apella!"

COMMENT: The tendency to 'replay' defeats over and over again in our minds is the subject of this Resolution. 'If only I had done this' or 'Opposing counsel did X wrong,' or 'The jury was unduly prejudiced for this reason,' etc. Leave the corpses on the battlefield. He uses two Latin phrases that may not be clear. Coram non judice means "in presence of a [person] not a judge" and is an old phrase used to describe a court's lack of jurisdiction over a matter. If a court lacks jurisdiction, the matter is said to be coram non judice; you were, in fact, arguing your case before a person not a judge. Thus Hoffman is saying that by "fighting the battle o'er again," you are as it were arguing your case before someone who can't do anything about it. Keep it to yourself. The other phrase is a bit more tricky. The full sentence from the Latin poet Horace runs, "Credat Judaeus Apella, non ego," and is literally translated, "Let the Jew Apella believe it, not I." Modern idiom dictionaries render it something like "Tell it to the Marines!," which I suppose means that you will get nowhere if you continue on this line of speaking. This is the way it is to be understood in Hoffman's phrase. Isn't it too bad that we have lost Latin phrases from our talk? Oh, well, "requiescat in pace."

40. "Ardor in debate is often the soul of eloquence, and the greatest charm of oratory. When spontaneous and suited to the occasion, it becomes powerful. A sure test of this is when it so alarms a cold, calculating and disingenous opponent, as to induce him to resort to numerous vexatious means of neurtralizing its force, when ridicule and sarcasm take the place of argument, when the poor device is resorted to of endeavoring to cast the speaker from his well-guarded pivot, by repeated interruptions, or by impressing on the court and jury that his just and well-tempered zeal is but passion, and his earnestness but the exacerbation of constitutional infirmity, when the opponent assumes a patronizing air, and imparts lessons of wisdom and of instruction! Such opponents I am resolved to disappoint, and on no account will I ever imitate their example. The warm current of my feelings shall be permitted to flow on; the influences of my nature shall receive no check; the ardor and fullness of my words shall not be abated--for this would be to gratify the unjust wishes of my adversary, and would lessen my usefulness to my client's cause."

COMMENT: This Resolution is one of the clearest examples that Hoffman really wants to impart a general perspective or philosophy of lawyering to his readers rather than "rules" that say "gotcha" when you break them. What he points out here, probably with excessive elaboration, is how people try to set you off guard. They sometimes try to turn your best argument into nothing. I recall a former colleague, an opponent, who, after I gave what I felt was a stirring commencement address, come up to me and say, "Well, Long, that is fine, but no one believes a word of it."

41. "In reading to the court or to the jury authorities, records, documents, or other papers, I shall always consider myself as executing a trust, and as such bound to execute it faithfully and honorably. I am resolved, therefore, carefully to abstain from all false or deceptious readings, and from all uncandid omissions of any qualifications of the doctrines maintained by me, which may be contained in the text or in the notes; and I shall ever hold that the obligation extends not only to words, syllables, and letters, but also to the modus legendi. All intentional false emphasis and even intonations in any degree calculated to mislead, are petty impositions on the confidence reposed, and whilst avoided by myself, shall ever be regarded by me in others as feeble devices of an impoverished mind, or as pregnant evidences of a disregard for truth, which justly subjects them to be closely watched in more important matters."

COMMENT: No one is a straight shooter all the time. We always frame the debate in a way that makes it easier for us to understand or talk about. Hoffman was unaware of the "postmodern" insight that every communication/conversation is a "power event," where conversation is our attempt to impose our understanding of things, to further our world, sometimes at the expense of others. Nevertheless, he has a point, a point that goes to the heart of how we represent ourselves. Will we attempt to be transparent in what we do, in the nature of our representations, or do we wind about, giving labyrinthine explanations of things? It is so easy not to be clear. One verbal note. He uses the word "deceptious," which means, as one might imagine "deceptive." In 1836 both were used; both vied for preeminence; the former dropped out of English usage in the 170 years since he wrote it while the other triumphed. Who could have guessed?

42. "In the examination of witnesses, I shall not forget that perhaps circumstances and not choice have placed them somewhat in my power. Whether so or not, I shall never esteem it my privilege to disregard their feelings, or to extort from their evidence what, in moments free from embarrassment, they would not testify. Nor will I conclude that they have no regard for truth and even the sanctity of an oath, because they use the privilege accorded to others, of changing their language and of explaining their previous declarations. Such captious dealing with the words and syllables of a witness ought to produce in the mind of an intelligent jury only a reverse effect from that designed by those who practice such poor devices."

COMMENT: We really are getting to know Hoffman by patiently studying his Resolutions. What this one stresses above all is his belief in the dignity of people, even those who you have "in your power."A lawyer is at liberty to abuse witnesses verbally; to make them look bad; to twist their words. Rather than arguing the principle that many in 2005 might argue (the "Karmic" principle that it your bad acts will catch up with you), he simply points out that a jury won't be fooled by your antics.

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