Vest’s Dog

June 26, 2011 Final Arguments

Vest's Dog plaqueThe test of a great poet is the ability to craft a delicate sonnet. The structure of a sonnet requires a strict meter and cadence all contained within 14 lines. Great poets are able to construct beautiful images using this form. It reminds me of the final argument. It also is a strict form within which an artist may create beautiful and persuasive images. Unfortunately these artists are few and far between. Today we seemed to have lost the passion to create and perform great arguments.

Clarence Darrow, in Leopold and Loeb, performed the finest forensic speech ever to grace an American courtroom. Darrow took twelve hours over three days to save their lives, but if your taste is more like the simple short beautiful sonnet, there is George Vest and the dog case. Perhaps not the most important piece of litigation, but his short speech is surely a thing of beauty.

Vest was my kind of lawyer. He took on any kind of case and became legendary for his powerful speeches in unpopular battles. In 1853, he had the balls to defend a slave accused of murder. The slave was acquitted, but died at the hands of an angry mob who burned him at the stake. They also sought to kill Vest, but the resourceful lawyer had quickly left town.

He supported secession, and is the only person who was both a senator in the Confederacy and the US Senate. He worked for fair treatment of Native Americans, opposed women’s right to vote, and fought to protect the right of the Mormons to have multiple wives, even though he was personally against polygamy. He fought to protect and preserve Yellowstone National Park. In sum. an interesting and baffling guy.

His most famous speech comes from the case of Burden v. Hornsby. It is called his “man’s best friend” closing. The case involved the killing of a dog, Old Drum, by a farmer who claimed the dog had been killing his sheep. Vest’s argument was unique for it made no reference to any testimony. He fashioned it more like an eulogy for dogs. Only one part of the argument survives:

Gentlemen of the jury: The best friend a man has in this world may turn against him and become his enemy. His son or daughter that he has reared with loving care may prove ungrateful. Those who are nearest and dearest to us, those whom we trust with our happiness and our good name, may become traitors to their faith. The money that a man has, he may lose. It flies away from him, perhaps when he needs it the most. A man’s reputation may be sacrificed in a moment of ill-considered action. The people who are prone to fall on their knees to do us honor when success is with us may be the first to throw the stone of malice when failure settles its cloud upon our heads. The one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him and the one that never proves ungrateful or treacherous is his dog.

Gentleman of the jury: A man’s dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground, where the wintry winds blow and the snow drives fiercely, if only he may be near his master’s side. He will kiss the hand that has no food to offer, he will lick the wounds and sores that come in encounters with the roughness of the world. He guards the sleep of his pauper master as if he were a prince. When all other friends desert, he remains. When riches take wings and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens.

If fortune drives the master forth an outcast in the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying him to guard against danger, to fight against his enemies, and when the last scene of all comes, and death takes the master in its embrace and his body is laid away in the cold ground, no matter if all other friends pursue their way, there by his graveside will the noble dog be found, his head between his paws, his eyes sad but open in alert watchfulness, faithful and true even to death.

How powerful was the argument? When was the last time a plaque was erected quoting from a final argument?  Res Ipsa Loquitur.

When Vest closed, there were few present, the jury included, whose eyes were dry, it is said. The foreman appeared to lead the rest in weeping. Counsel for the defendant knew then that their cause was lost. One of them is said to have whispered facetiously to his partner: “We had better get out of the courtroom with our client, else all might be hanged.”

This is the first in what I envision as a long series of observations on the art of the final argument. There is so much material to cover. The legal literature is packed full of wonderful and brilliant arguments. I look forward to writing about them. Just reading and writing about them gives me a thrill.  Any trial lawyer worth a damn must be able to create and deliver a persuasive final argument. I studied the art form for many years because I kept trying to improve my speaking skills.

I conducted a series of  seminars called “law as a performance art.” The concept was that every time you appear in court it is a performance, at least that is how you should approach it. You are being evaluated every time you open your mouth and, like an artist, it should be a stellar performance. The highest form of the art you can reach. If we think that way, it will enhance what we do. A good example of this is Vest’s final argument. No one thought an obscure civil case over shooting a dog would live on for 150 years and be commemorated by a plaque and statue in the courthouse square. Yet Vest did that by performing at the highest level.

So many trial lawyers make the mistake of leaving preparation of the final argument to the last minute. No legitimate performer is so negligent.  Think of the great performances you have witnessed. One brilliant performance can make a career. No one knew an obscure state senator from Illinois until he gave the keynote address at the 2004 Democratic National Convention. In those 17 minutes he gave one of the great political speeches, a brilliant performance. And it started him on the road to the presidency. How many hours do you think Obama spent writing that speech and practicing it? Vincent Bugliosi says he spends 100 hours preparing each final argument. Winston Churchill claimed he spent 1 hour for every minute of a speech. Preparation for the argument must begin the day you take on the case. Then you keep adding ideas to it until it is in fairly good shape before the trial starts.

Let’s be honest, we are morons off the top of our heads. You can’t stand in front of the jury and expect brilliant arguments to flash into your brain. The brilliance comes from days and months or work. And then practice, practice and more practice. The great speeches are not extemporaneous.

Many urban legends are created around this idea that great speeches were made up in a few moments. A persistent one is that Lincoln wrote Gettysburg on back of a postcard on the train going there. But he gave similar speeches before only this time he edited and polished the language. School kids memorize this speech even today . . . 150 years later.

We need to learn this lesson. We are going to deliver many final arguments in our careers. How many times will we argue reasonable doubt? Or intent? Or credibility of witnesses? We need to polish all these set pieces to a high sheen so they are always ready for use.

I read once that Emerson was asked by his wife what he was writing. He replied a Fourth of July oration. She said but you don’t have any scheduled, and he said that is true, but sometime I will be asked to give one.

I search for ways to learn the art of persuasion, and we can learn even from those who use it for ill. Take Adolf Hitler — yes, that Hitler. I know this will be an unpopular subject, so don’t bother writing complaint letters. After watching the infamous Leni Reifenstahl Nuremberg Rally documentary, I became interested in how Hitler captured the attention of his audience.

Our number one goal is human attention. How to get it, and how to keep it. Hitler was a master at this. He was always on stage. He studied how to dress for effect. Even his mustache was designed to capture attention. He was a terrific actor. Everything he did was theatrical. Every minute detail was planned. His dramatic entrance was set up. When he got up on the stage, he knew he had one thing to do. To play his part. It was all stage craft. The rallies were slick marketing plans. During his speeches, Hitler lost 5 pounds and drank up to 20 bottles of water. He had stage presence. And it was this presence which enthralled his audience. It wasn’t the logic or quality of what he said. He put them under his spell. Of course it didn’t hurt to have the Gestapo backing him up.

We perform in court. We are the great explainers, communicators, and even the entertainers. We tell stories, develop metaphors, craft thrilling lines. We polish our words like a jeweler his precious stones. We are poetry not prose. We seek to make our mark. To leave them wanting more. Every argument begins and ends with . . . The Performance.

Vest Old Johnson County Courthouse









The Old Johnson County Courthouse located in Warrensburg, Missouri, actively used between 1838-1871 and where George Graham Vest’s argument on the Dog was delivered in 1870.