ttorney. Did he forget
something? What was there that he did not remember? Will the case be
dismissed because he forgot to tie a shoe lace or put in a pin? If he
is more experienced in court work he will not be so worried. The law
is that the plaintiff must be given every chance at this stage of the
proceeding. Only when both sides are through does the law begin to
weigh the evidence. At the close of the plaintiff's case everything is
in his favor. Any particle of testimony is sufficient on a particular
point. The theory of the law is that both sides must be heard. If the
motion to dismiss is made on the ground that something has been left
out, the court will usually give an opportunity to prove to whom the
red cow belonged. This motion like many other relics of a by-gone age,
is a matter of custom and tradition. It is usually made on the theory
that the judge may think there is no case and that the plaintiff can
not make out a case. If he so decides, the case is finished, the jury
is discharged, and the client has his feelings hurt by being thrown
out of court.

From a decision of this kind there is also a right of appeal which may
result in a reversal. Then the new jury is impanelled, the witnesses
are recalled, and the proceedings are gone over once more. If the
decision or judgment is affirmed, the case does not usually come up
again; the higher court has said the plaintiff has no case on the
evidence, and unless new evidence is produced he can never recover. In
certain accident cases the appellate courts have stated they would not
give their reasons for dismissing the complaint after the evidence is
all in because, they say, if they did so they were afraid the
plaintiff would supply the missing links by manufactured evidence on
the next trial and not quite honestly. This again is a commentary on
procedure.

Just at this point is where the law of the case comes in so
insistently. Before the case comes to court the lawyer is supposed to
know whether his client has a right of action. Every state of facts or
a breach of those rights does not give rise to an action that can be
maintained in a court of law. If you ask a man to dinner and he
accepts, but does not come, you can not recover your damages for
providing the dinner; or if you fall down your own well, you can not
sue the man who built it. The lawyer is supposed to have carefully
considered what elements of fact make an action. If the facts
themselves do not g