The Unfortunate Fate of the Law
I sometimes think that it is the fate of the world to become boring. Consider modern litigation. To be sure, judges (along with soldiers and police) are the only government bureaucrats who get to wear special clothes and engage in formalized rituals, but I can’t help but feel that when it comes to legal spectacle, we have come down in the world.
“Court day” was an important civic ritual in nineteenth-century America. Few towns had permanent magistrates above the level of justices of the peace, and more complicated cases were handled by circuit courts that met – usually twice a year – at county seats. These gatherings were major social, economic, and political events. During the colonial period, they served to enact social hierarchies, with genteel magistrates decked out in the regalia of royal authority. In Massachusetts, for example, traveling justices were met at the county line by the sheriff, who would accompany them to the court house, where “[t]rumpets and drums or firearm volleys announced the justices’ arrival in town.” After independence, court day continued to enact social hierarchies, but it also developed into a rollicking democratic carnival. Court sessions were accompanied by peddlers on the courthouse square hawking their wares, which generally included a generous amount of alcohol. Drunken fights were common. Indeed, they were part of the appeal of court day, as one diarist complained in 1807 “a very Poor Court, no fighting or Gouging, very few Drunken people.” One veteran lawyer described Illinois court days in the 1840s and 1850s, noting that “the local belles came in to see and be seen” and the work continued in the court house “from ‘early morn till dewy eve’” while ribaldry in the tavern continued “from dewy eve to early morn.”
George C. Cooke’s 1834 painting Patrick Henry Arguing the Parson’s Case in the Hanover County Courthouse (above right) anachronistically provides an image of the kind of communal drama associated with a nineteenth-century court day. The lawyer stands in a small but packed courtroom. The spectators, who are intently focused on his oratory, crowd around a rough-hued bench where the lawyers sit. They spill out the open door into the square beyond. In the foreground is a pair of children playing in the courtroom with a hoop and stick, while in the background we see the sign for a tavern that waits to refresh the crowd of thirsty spectators. Indeed, there was a symbiotic relationship between courthouses and taverns. Many frontier courts sat in the public rooms of taverns in the absence courthouses. Likewise, in some cases taverns were purposefully established close to courthouses to service the people who gathered to watch the judges and lawyers. In short, as one scholar has written:
Courtroom trials . . . provided prime entertainment for the community. . . . [C]ourtrooms were always crowded because the drama, tragedy, and comedy of real life occurred there. With judges and lawyers as the star actors, the courtroom substituted for theater, concert halls, and the opera. Spectators in the courtroom expected a good show from the lawyers, the judges, the witnesses, and the other participants.
Of course given the American love affair with lawyer shows on television, one would assume that modern litigation has the same entertainment value. Modern lawyers know better. Laboring through discovery requests in practice, I couldn’t help but think wistfully of how much more fun it would be if the odd drunken brawl broke out during a deposition.