CHAPTER 4

“LEAVE NOTHING FOR TO-MORROW WHICH CAN BE DONE TO-DAY”

Lincoln’s Preparation for Trial

Lincoln told aspiring lawyers that they would have to work hard if they expected to succeed in the study and practice of the law. As a lawyer, Lincoln was widely reputed for being a diligent worker. His second law partner, Stephen T. Logan, remembered what Lincoln was like when he first met him and how Lincoln worked to prepare for a case:

Lincoln’s knowledge of law was very small when I took him in. There were no books out here in those days worth speaking of. I don’t think he studied very much. I think he learned his law more in the study of cases. He would work hard and learn all there was in a case he had in hand. He got to be a pretty good lawyer though his general knowledge of law was never very formidable. But he would study out his case and make about as much of it as anybody.

Logan’s somewhat disparaging remarks may have been an overstatement. But even Lincoln could be modest and introspective about his own skills and abilities. In the lecture he drafted on the law, Lincoln opened humbly:

I am not an accomplished lawyer. I find quite as much material for a lecture in those points wherein I have failed, as in those wherein I have been moderately successful. The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done. When you bring a common-law suit, if you have the facts for doing so, write the declaration at once. If a law point be involved, examine the books, and note the authority you rely on upon the declaration itself, where you are sure to find it when wanted. The same of defenses and pleas. In business not likely to be litigated,—ordinary collection cases, foreclosures, partitions, and the like,—make all examinations of titles, and note them, and even draft orders and decrees in advance. This course has a triple advantage; it avoids omissions and neglect, saves your labor when once done, performs the labor out of court when you have leisure, rather than in court when you have not.

One of the most important lessons Lincoln could teach young attorneys was to know exactly which fact or point of law was most important to convey to the judge or jury. In 1848, he advised a fellow Illinois attorney:

In law it is good policy to never plead what you need not, lest you oblige yourself to prove what you can not. Reflect on this well before you proceed.

E. M. Prince of Bloomington, Illinois, heard Lincoln argue more than a hundred cases in court. He recalled that Lincoln “had a genius for seeing the real point in a case at once, and aiming steadily at it from the beginning of a trial to the end.” While a “mediocre advocate” might be “apt to miss the crucial point in his case” and be “easily diverted with minor matters,” Lincoln “instinctively saw the kernel of every case at the outset, never lost sight of it, and never let it escape the jury.”

Another important lesson was to know his opponent’s side better than his own. During the Civil War, Lincoln told Speaker of the House Schuyler Colfax that “a peculiarity of his own life from his earliest manhood had been, that he habitually studied the opposite side of every disputed question, of every law case, of every political issue, more exhaustively, if possible, than his own side. He said that the result had been, that in all his long practice at the bar he had never once been surprised in court by the strength of his adversary’s case—often finding it much weaker than he had feared.”

Along these lines, one of Lincoln’s most powerful tactics in court was to concede points that he knew he could not win. His goal was to win the trust of the jury, all the while proving his most important points. “His perfect frankness of statement assured him the confidence of judge and jury in every argument,” wrote private secretaries John Hay and John G. Nicolay. “His habit of fully admitting the weak points in his case gained him their close attention to his strong ones.”

Many recognized this strategy in Lincoln’s approach as a litigator, but some saw it as duplicitous. One Illinois lawyer noted that Lincoln had

the manner of treating his antagonist with such perfect fairness, as to make the jury and bystanders think that he could not be induced to take advantage of him—a manner which was the hell-firedest lie that was ever acted, because the very fairness he assumed was an ambuscade to cover up a battery, with which to destroy the opposing counsel, and so skillfully laid, too, that after it had done its work, only occasionally would the defeated party, and almost never would the uninitiated, discover the deception.

This lawyer concluded that Lincoln’s ability to persuade a jury in this way was “his very strongest weapon in the trial of a case.”

Lincoln’s friend Leonard Swett concurred:

As he entered the trial, where most lawyers object, he would say he “reckoned” it would be fair to let this in, or that; and sometimes when his adversary could not quite prove what Lincoln knew to be the truth, he would say he “reckoned” it would be fair to admit the truth to be so and so. When he did object to the court, after he heard his objections answered, he would often say: “Well, I reckon I must be wrong.”

Now, about the time he had practiced this way about three-quarters through the case, if his adversary didn’t understand him, he would wake up in a few moments, finding he had feared the Greeks too late, and wake up to find himself beaten. He was “wise as a serpent” in the trial of a case, but I have got too many scars from his blows to certify that he was “harmless as a dove.” When the whole thing is unraveled the adversary begins to see that what he was so blandly giving away, was simply what he couldn’t get and keep. By giving away six points and carrying the seventh, he carried his case, and, the whole case hanging on the seventh, he traded away everything which would give him the least aid in carrying that. Any one who took Lincoln for a simple-minded man would very soon wake up on his back, in a ditch.

But there were some exceptions to this rule. William H. Herndon recalled an 1859 case during which Lincoln apparently lost his temper. The judge refused to accept Lincoln’s view of the law and overruled Lincoln’s objection. But Lincoln refused to let the matter go.

Lincoln prepared himself well with law, came into court with an armful of books, and read the authorities plainly sustaining his view of the case… Lincoln could not stand the absurd decision, for it was absurd and without precedent in the broad world; and in his anger he rose up and seemed inspired with indignation, mingled with a feeling of pity and contempt for the judge’s decision. He actually was fired with indignation and spoke fiercely, strongly, contemptuously of the decision of the Court. Lincoln kept, in his anger and contempt, just inside the walls of the law, did not do anything, say anything, that would be a contempt of court; he was careful and yet the scoring that he gave the Court, through its foolish decision, was terrible, blasting, crushing, withering. I shall never forget the scene. Lincoln had the crowd, the jury, the bar, in perfect sympathy and accord. The Court’s decision was ridiculed, scoffed, and kicked out of court. Lincoln was mad, vexed, and indignant. When a great big man of mind and body gets mad he is mad all over, terrible, furious, eloquent, etc.

The judge finally relented and was either “convinced or driven to pretend to believe” that he had been wrong. Lincoln now “had the field his own way, went to the jury, was able, eloquent, powerful” and won the case.

This last episode underscores the importance of never assuming that the judge or jury shares a common understanding of the law. Herndon recalled once doubting Lincoln’s approach to an argument before the Illinois Supreme Court:

I heard him once argue a case and it was argued extremely well, it was logical, eloquent. In making his argument he referred to the history of the law, a useless part as I then thought. I know better now. After the speech was through and Lincoln had come into the law library room where the lawyers tell stories and prepare their cases, I said: “Lincoln, why did you go so far back in the history of the law as applicable to this case?” and to which he instantly replied: “I dare not trust this case on the presumptions that this court knows all things. I argued the case on the presumption that the court did not know anything.”

Sometimes Lincoln sought to discern the opinion of the judge on a matter of law before entering the courtroom. Lincoln argued many cases in the Eighth Illinois Circuit before his close friend Judge David Davis—a man whom Lincoln would later appoint to the U.S. Supreme Court. Once when they were riding the circuit, Lincoln and Davis and several other lawyers were gathered together, chatting before a session of the court. Lincoln asked the group “a novel question regarding court practice” and was careful not to address the question to anyone in particular. Davis naturally gave his views on the subject. As one person who was present remembered:

Lincoln thereat laughed and said: “I asked that question, hoping that you would answer. I have that very question to present to the court in the morning, and I am very glad to find out that the court is on my side.”

Ultimately, William H. Herndon maintained that the keys to Lincoln’s success as a litigator could be summed up as follows:

Two things were essential to his success in managing a case. One was time; the other was feeling a confidence in the justice of the cause he represented. He used to say, “If I can free this case from technicalities and get it properly swung to the jury, I’ll win it.” But if either of these essentials were lacking, he was the weakest man at the bar.

If Lincoln had one other weakness as a lawyer, it was that he could be disorganized at times. He allowed his sons to run wild around his Springfield law office. Herndon later claimed, “If they pulled down all the books from the shelves, bent the points of all the pens, overturned inkstands, scattered law-papers over the floor, or threw the pencils in the spittoon, it never disturbed the serenity of their father’s good nature… Had they s—t in Lincoln’s hat and rubbed it on his boots, he would have laughed and thought it smart.” The Lincoln boys got away with such hooliganism, Herndon said, because their father was so “frequently absorbed in thought” that “he never observed their mischievous but destructive pranks.” Herndon did, but he chose to bite his tongue.

The disarray around Lincoln’s office sometimes led him to fall behind on his correspondence with clients and fellow attorneys. As many people know today, he famously used his top hat as a file cabinet. In 1850, he once confessed to another lawyer:

I am ashamed of not sooner answering your letter, herewith returned; and, my only appologies are, first, that I have been very busy in the U.S. court; and second, that when I received the letter I put it in my old hat, and buying a new one the next day, the old one was set aside, and so, the letter [was] lost sight of for a time.

Fortunately, filing systems have improved over the past century and a half. Nevertheless, and despite these shortcomings, Lincoln proved a diligent advocate for his clients. He was always well prepared when he walked into the courtroom.

The Coles County Courthouse in Charleston, Illinois, in which Lincoln argued many cases. Courtesy of the Library of Congress.