LESSONS FROM ONE OF AMERICA’S GREATEST TRIAL LAWYERS – EARL ROGERS
Earl Rogers was a famous attorney who died in 1922. He defended 77 murder cases and lost only three. He was one of the greatest trial lawyers in American history. The long running TV series, Perry Mason, was based upon Earl Rogers life. His daughter Della Rogers St. John’s wrote a descriptive book of his trial skills in Final Verdict which is not only enjoyable reading, but educational as well.
We think about Clarence Darrow as a great trial lawyer, but when Darrow was charged with jury bribery in Los Angeles, it was Rogers he selected to be his defense attorney. Darrow had been hired by the labor union to defend the McNamara brothers charged in the 1910 dynamiting of the Los Angeles time buildings in which 21 employees were killed. His trial in 1912 was a national sensation.
As you might expect with two giants of the trial bar and one the client, the trial in Los Angeles was probably one of the more famous lawyer – client disagreements on trial tactics recorded in legal history. Rogers and Darrow argued daily about tactics with Rogers usually prevailing.
His skills in argument were also extraordinary. In Darrow’s case, his argument was that the prosecution was a conspiracy against Darrow. In final argument he said to the jury:
“Will you tell me how any sane, sensible man who knows anything about the law business – and this defendant has been added for 35 years – could make himself go to a detective and say to him: “just buy all the jurors you want. I put my whole life, my whole reputation, I put everything I had been to your hands. I trust you absolutely. I never knew you until two or three months ago, and I don’t know very much about you now; but there you are, go to it.!”
Note how he moved to the first person and painted a word picture that created an image in the minds of the jury to ridicule the idea.
Rogers amazing skill in the courtroom is also described a book by Cohen and Chrisholm entitled Take the Witness. While Melvin Belli was seen as the king of demonstrative evidence, long before Rogers was already using innovative ideas during trial. At a time when there were no easels with butcher paper or digital display, Rogers was using techniques no one else was using.
In his argument during the defense of Darrow, Rogers had a huge chart hung from the judge’s bench to the opposite wall. On it were lettered the names of witnesses who testified for the prosecution, classified under headings according to the nature of their testimony. Rogers would dramatically emphasize his argument by approaching the chart with a long pointer to single out the witness he was talking about.
The jury instructions took 30 minutes and the jurors were back in less than half an hour with a not guilty verdict after a three month trial. However Darrow was re-indicted on a claim of bribery of another juror. Rogers began the defense but withdrew mid-trial from illness and Darrow continued pro se. The result was a hung jury with several jurors holding out for a conviction. The prosecution agreed not to re-and try him on a commitment that Darrow would not practice law in California again. Roger’s daughter claims Darrow failed to pay the agreed fee afterwards.
Rogers frequently used reenactment during trials to his advantage. While defending a man accused of shooting another during a card game, Rogers had the card table set up and the situation reenacted while he cross-examined. In another trial, when the witness claimed he had been able to see what had occurred in the hallway through the transom of the door, he had the door and transom removed and brought to the court room to demonstrate the impossibility of what had been claimed. In exhibits, reenactment and trial demonstration Rogers was brilliant and before his time.
His cross examination skills were one of the more outstanding qualities he possessed as a trial lawyer. In one case the nephews of the deceased sued the estate claiming that when he had signed his will cutting them off without a penny he was not in full possession of his senses. The chief witness for the estate and validity of the will was the attorney who had drawn it and witnessed it. He insisted that the deceased had been in full possession of his senses and knew what he was doing when he went to the man’s house for the signing of the will. Rogers spent a great deal of time with this witness on cross examination recalling the many years of close friendship between the deceased, Patrick Talent, and the lawyer. After a lengthy time of questioning along these lines he asked the witness:
Q. Was there any change in your friendship before he died? A. None
Q. At any time in the past had there been any misunderstanding between you? A. Never, we were always warm friends.
Q. And after you witnessed the will of your old friend, what did you do then? A. I left.
Q. Well, did you say goodbye to your old friend, before you took your departure? A. No, I left as soon as I had witnessed his signature.
Now the court and jury were wide-awake after the dramatic cry of Rogers who had approached the witness and shoved a quivering forefinger into the witnesses face.
Q. You mean to tell this court and jury,(demanded Rogers in a harsh, incredulous tone) that you, the dear friend, the lifelong friend of Patrick Talent, knowing he was dying, did not bid him a last goodbye? A. I don’t think I did, said the dismayed man
Q. You don’t think! If you bade farewell to your lifelong friend on his deathbed, you would not be uncertain about it. You would know! Did you bid him goodbye? A. No, whispered the witness.
Q. If you did not say goodbye to your dying friend, there could only be one reason – and that was that you knew he was mentally incapacitated, that he did not know you! Is that not so? A. ( after a long pause) the witness raised both hands midway to the shoulders and shrugged. – Rogers had no more questions.
During argument Rogers assumed a first person role with the deceased saying:
“Suppose Patrick Talent were to enter this courtroom now. Suppose he came within this rail. He would ask what this was all about and he would be told that it was about his will. He would be astonished. He would say: “Why, I never made a will! (Rogers simulating the voice and mannerisms of the deceased,, turned towards the lawyer who had been cross examined by Rogers, – Dixon Phillips) “Dixon Phillips, you know I never made a will. You know you made that will. I never did! And, gentlemen of the jury, Dixon Phillips would then jump out of that window!”
The jury took no time to find in favor of Roger’s clients on the issue.
I think we too often believe we have thought up a new idea or trial concept that no one else has used before. However, the truth is that in almost every case, the seed of the idea or concept had already been thought about or used by the trial lawyers of past history. I think there is much to learn about trial work from those who have gone before us and by modifying it to the world and jurors of today.
Here’s to two great and unique trial lawyers of yesteryear Clarence Darrow and Earl Rogers.