r
trial, that he can not proceed. But suppose the defendant by his
lawyer makes the trial unfair. His lawyer keeps asking those improper
questions which imply so much to the minds of the jury. The judge may
speak severely to the lawyer and caution him not to keep on putting
suggestive questions. That is all that he can do. It would be plainly
unfair to order the withdrawal of a juror. The trial according to the
opinion of the judge may be unfair. The plaintiff's counsel is afraid
to ask for a mistrial, first on account of the trouble and expense to
his client, and second, if it be denied, the jury will believe he
thinks them unfair and does not want them to try the case. The judge
is in a curious position with regard to objectionable questions and
testimony, he ought not to penalize the plaintiff by punishing the
defendant. The loosening of the laws of evidence might do away with
quandaries such as these.

XII

THE MOVEMENTS IN COURT

Motions imply movement and action especially in a drama, but in a
court motions are the reverse and occupy the place of dramatic pauses
which delay the real movement of the play. They are of great interest
to the lawyers, of some interest to the judge, because he has at once
to pass upon them, of but little interest to the client, who does not
understand them, and of no interest whatsoever to the jury, except
when they result in the disposal of a trial.

Before the case begins the defendant makes a motion. When the
plaintiff's lawyer has finished his opening, the other side makes a
motion to dismiss the case. When he ends his evidence, the other
lawyer moves to dismiss. When both sides are through, each moves.
When the jury bring in the verdict either side may move, or both when
neither is satisfied. All through the trial there are quantities of
little motions. Motions to strike out, motions to instruct, motions to
make the witness answer a question, motions to make the other lawyer
behave. Except for pointing the finger or raising the voice in
talking, they are not movements, they are only verbal, the action
comes in the play of emotions of the parties in court. Motions are
merely saying what either side wants; the formal asking for something.

The first important motion is on the pleadings themselves or when the
plaintiff has opened. If the judge does not believe that the plaintiff
has stated a case in law, he dismisses it on a motion of the defendant
and the judgment is "