THE EXAMINATION OF WITNESSES.

(Leo B. Cussen, in The Commonwealth Law Review).

From the time the average lay witness hears his name called by the Court orderly till he hears the welcome "That will do, thank you," he feels uneasy, he perspires, his pulse increases, and somehow his nerves are not quite steady. Is all this necessary and unavoidable? The Court has ordered the witness to come at the expense of one of the parties, in order to tell it quietly and disinterestedly what he knows of a certain state of facts, or alleged facts. In theory the witness comes as a sort of friend to enlighten the Court with his knowledge. No liability, no punishment, no blot on his name will he incur provided only he speaks, and speaks the truth. That is the theory; but the treatment meted out to the average witness in practice hardly. conforms to it. The witness knows what he has to go through, and hence his over-strung nerves, his panting heart. In other words, the witness knows that as soon as he pledges his solemn oath he will be regarded as fair game to be bullied and badgered by counsel for the opposing side, and, sometimes too, by the counsel who called him, who seeks to make him, by hook or crook, and what is called the art of examination and cross-examination, tell a story favourable to his contention.

The witness is perfectly honest, but he is just an ordinary layman, unfamiliar with the ways of lawyers. The atmosphere of a law Court, breathed from the bald elevation of the witness box, acts on him like some stimulosedative drug, exciting his brain and dulling his faculty of memory.

Human testimony taken at its very best is by no means infallible. A man may be perfectly honest, and in his own mind quite certain that what he says is correct, but he reckons without taking into account (as indeed it is impossible for him to do), his own unconscious prejudices, his liability to mistake, and the possible failure of memory, even assuming the particular incident did indeed make the

VOL. XXVIII. C.L.T.R.-14

memory-producing impression on his brain. A man's religious views, his political prejudices, his pessimism or optimism, his relation to one of the actors in the drama he is asked to relate, his age, his occupation, and a variety of other matters all affect his impressions, and his memory, and necessarily colour his account.

A man gazing at an object through green glasses necessarily finds it coloured with green, and so eyes governed by a mind clouded with strong religious, social, or political ideas record in the memory a necessarily coloured account.

Some men, like doctors and lawyers, are taught that no incident is unimportant, and they record as far as possible every incident, however small, in the drama enacted before them. The optimistic layman, well satisfied with himself and the world, will take in only the broad outlines, leaving the minor ingredients to inference, or deeming them unworthy of notice, and so he will swear positively that such an incident did not occur.

Sex and age are conditions which also powerfully affect the impressions of every person. There is a vaster difference between a man and a woman than the difference of bodily structure. A woman's mind thinks quite differently from that of a man. With her, love, charity, and maternal instinct play no unimportant part, and her sensibilities are more susceptible to shock. Unlike the man, she has not come to hand-grips with the rough problems of the world, where love and charity find little place; ana ner views of life and her ideals have suffered less blunting. With her, instinct to no small extent plays the part of cold calculation and logic. "A man has great ideas, a woman profound sentiments. To a man the world is his heart; to a woman, her heart is the world."

But perhaps age plays the most influential part in the recording of a person's impressions. The contrast between a man in the prime of life, with every faculty working at full pressure, full of worldly experience, thoroughly accustomed to and fully aware of all worldly ways, and a boy of from ten to fourteen years, or the old man in the sere and yellow leaf, is surely obvious and eloquent.

The boy only past the age of childhood, is just beginning to obtain a glimpse of the hitherto mysterious things of the world, and his capacity to comprehend them is grow

ing. Life for him now holds a hundred and one absorbingly interesting things, which he eagerly devours. He regards his elders, well initiated into these mysteries, with a kind of reverence and awe, and attaches a ponderous significance. to their utterances. He is quick to observe anything extraordinary, and which formerly fell beyond his horizon, and his observations form indelible impressions on his fresh and fertile brain. He regards honour as the soul of life, and would scorn to do anything mean, because it is mean. Tact, shrewdness, and perhaps cunning, he has not yet acquired. He would believe Tennyson struck the keynote of practical life when he wrote:

"And because right is right, to follow right

Were wisdom in the scorn of consequence."

The problems of the world as yet he has not seized, or only imperfectly comprehends, and to the most trivial acts of his elders in pursuance of these problems he attaches undue importance. He is a child yet, but a child eager, alert, and hungering to be a man.

Again a boy is the old man, but he lacks the boy's alertness and eagerness for the world. His passions are dead, his faculties dying. According as life has used him kindly or harshly he becomes an optimist or a pessimist: either not noticing or anxious to pass over disagreeable events, or seizing on them ravenously and magnifying them into hideous proportions.

The girl differs from the boy in that she is the embryo of a woman, and all her views, and notions of life are coloured by her sex. The graces of tenderness, sympathy, modesty she has learned from her mother, but she is , human, and palpitating with life. Unlike her brother, she has not gone through the rough and tumble of a boy's early school days, where infirmities of a body and ugly thoughts and conduct are openly exposed and denounced, and, if denunciation is resented, followed by a blow as a physical argument. She cannot and must not quarrel, since it is forbidden as unmaidenly, and so she becomes more artful, tactful, and at the same time more deceitful. She feels her sex already, and matters of affectionate sentiment quickly impress her. She is alert to perceive and note incidents shewing its existence between

others, and longs for the day when she will observe it in regard to herself.

Unlike her brother, she will secretly hate and concoct schemes and seek to substantiate them by lying against the objects of her hatred. She, too, is extremely imaginative, frequently mistakes the shadow for the substance, or flies to quite unreasonable conclusions from unimportant acts, and, letting her imagination get the better of her, positively asserts the existence of her conclusion, because of acts which she thinks are indicative only of that conclusion.

But, it may be said, thinking men are all familiar with these various idiosyncrasies of particular persons, and that may be admitted as probably true. The unfortunate point, however, is that counsel fail to make a proper use of their familiarity with them when a witness is in the box under their cross-examination, and immediately his story varies from what the concensus of previous witnesses have sworn, they frequently adopt an attitude that suggests to the witness the belief that he is lying, till, awed by his surroundings, he becomes excited and, in his anxiety only to vindicate his veracity, he makes some wild and ridiculous assertions. The man is not in his normal condition, and some of his faculties are necessarily dulled.

One cannot help thinking that if counsel only remembered that incidents impress people differently, and that a line of examination or cross-examination which is highly successful with one man is not to be indiscriminately applied to another, the result would be better testimony and seemingly contradictory statements would be easier to reconcile.

INCREASED COUNSEL FEES.

In Bryce v. Canadian Pacific Railway Company, the following judgment dealing with increased counsel fees was delivered on the 14th June last by Hon. Mr. Justice Martin:

"I am asked by the defendants' counsel to grant a fiat for increased counsel fees on the trial of these six consolidated actions. Seeing that applications of this kind are of late becoming more frequent (probably in view of the recent greatly increased cost of living which doubtless compels solicitors to brief leading counsel correspondingly), it seems opportune, for the information of the profession, to give my reasons for granting the application so that it may be some guide on future occasions.

These cases, though tried together, yet involved some distinct issues, so I decided that it would be proper to allow each side to be represented by three counsel, regarding, for the purposes of taxation, two of them as seniors and one junior. The Court was assisted by two nautical assessors, and the matters in issue were of unusual importance and of a nature to require sustained close attention. The Court sat on eight days, five of which were long sittings, generally from 10 to 5, with one hour's adjournment for lunch, and the three others were from to as long, these broken days being caused by the usual Saturday half-holiday, and the unexpected detention en route of a witness from a great distance. I mention this because no delay was caused by any oversight on the part of counsel or solicitors.

Now the mere fact that a case lasts many days is not to be taken as a ground for increased counsel fees-because cases are but too often, at great expense to the litigants and the inconvenience of all concerned, regrettably protracted by unpreparedness, unpunctuality, long unnecessary adjournments, and unduly short hours of sitting. But on the other hand, where a case is conducted, as was the one at bar, with skill, punctuality and exception, there results a great saving of expense and valuable time, not to speak of the minimizing of inconvenience to a large number of persons, which should be recognized by the Court, because what should primarily be regarded is not the mere time taken up by a trial, but the