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As I reflect back on 30 years of membership in this Association, I count as one of my many blessings the opportunity to have seen true giants of the bar try cases in Montgomery County. This includes the opportunity to have seen Bob Heeney, Jake Stein, Al Brault, Melvin Belli, to name but a few, "do battle" in our courts. Being young and impressionable, I was always struck by the civility and dignity of the lawyers and of the process. As we all know, that was not always the case.
In the early twelfth century King Henry I specifically recognized the right to defend by battle, but the party accused might elect wager of battle or trial by jury. If he chose the wager of battle, he answered the charge before the court by saying that he would be tried by God. This would involve such practices as binding a defendant's arms and legs and throwing him into a river. If he survived clearly he was not welcomed at the "Pearly Gates" and he would thereafter be put to death. On the other hand, if he drowned (which I daresay constituted 99.9% of the cases) he was adjudged to be innocent. This evolved into a process in which two parties in dispute fought in single combat; the winner of the fight was proclaimed to be right. In essence, it is a judicially sanctioned duel. It remained in use throughout the European Middle Ages and gradually disappeared in the 16th century. The last known demand for wager of battle occurred in 1818. The practice was abolished by statute during the reign of George III (1760-1820).
For the first 200 years of American jurisprudence trial by combat was replaced with trial by surprise. The parties hired their respective lawyers, a date was set and each party proceeded to pull their respective rabbits out of the proverbial hat. All of that changed in the mid-20th century, with the advent of "discovery." The concept was plain and the reasoning sound. If both parties knew the strengths and weaknesses of their opponents case, then resolution short of trial (settlement) would occur and 90% of the judges would be sitting idly. For a wonderful discussion tracking the advent of pre-discovery and post discovery trials I would recommend a biography of Edward Bennett Williams titled "The Man to See." Alas, the concerns of judges lacking work appears to have been for naught. Any lawyer engaged in the trial process has seen instances where the discovery process became the engine driving the train. The "search for truth" almost seemed incidental. Indeed, when the discovery process runs amok, it might be accurately compared to trial by combat. Moreover, we have all read about or seen firsthand those unfortunate instances during the protracted discovery process where any modicum of dignity, with respect to both parties and their counsel, has been abandoned.
It is interesting to note that the form indictments issued and Maryland set forth the defendant's name the crime alleged to have been committed and always ends in the language that the offense committed was "against the peace, government and dignity of the State." The Code of Civility of the Bar Association of Montgomery County, states "... that among the fundamental purposes of our professional association are responsibilities to uphold standards of integrity, honor and courtesy." In short, it is apparent that dignity should always be a paramount concern. It certainly has been in the past, and through our diligent application of common sense and good judgment, it will always continue to be a hallmark of our profession. When on occasion, we might see instances of lack of dignity, always bear in mind that good judgment comes from experience... and experience comes from bad judgment. It should be a learning opportunity.
Theodore Roosevelt once said "Far better is it to dare mighty things, to win glorious triumphs, even though checkered by failure... than to rank with those poor spirits who neither enjoy nor suffer much, because they live in a gray twilight that knows not victory nor defeat." As each of us strives for "glorious triumphs" and to "dare mighty things" let us always keep in mind that we owe an unabridged duty to maintain the standard of dignity demonstrated by the many outstanding lawyers who have preceded us, and as also demonstrated by so many of our contemporaries. We are always well served by doing so, both professionally and personally. Of even greater importance, so too are our clients. At the end of any trial, or negotiated settlement, each of our clients must pick up the pieces and move forward with their lives. The more dignity they have retained through the process the more likely they are able to do so sooner rather than later.
E. Joseph Fitzpatrick, Jr.