Sunday, August 10, 2014


For my entire career as a trial lawyer, I practiced in the Third Judicial Circuit, which covers seven counties in North Central Florida. When the circuits were created in Florida, the state was a sparsely populated frontier-like state which was as wild and woolly as any state in the West of the 1800’s.  For a description of old-time Florida, you can’t do better than to read Patrick  D. Smith's novel A Land Remembered, which describes the free-range cattle industry in early Florida. (My ancestors on my mother’s side free-ranged cattle from Newberry and Olustee down into central Florida.) In such primitive conditions, with so few people scattered over such a large area, it was easier for courts to come to the people rather than for people to come to the court. Each county in a circuit had a fall and spring term of court which lasted one to two weeks. The terms were staggered so that the circuit judge could ride from one county to another in a circuit. Local legend has it that in the Third Circuit, Judge Hal Adams was still riding a mule from county to county as late as the 1950’s.

When I started practicing back in the 1970’s Florida still had terms of court, but there was too much business to hold court as was done in the old days. We held unofficial terms of court every seven weeks. Each week we would hold court in a different county, and on the eighth week we would go back to the first county on the list. This modified form of circuit riding was breaking down under the weight of growing population and had completely disappeared by the 1980’s. But it was fun while it lasted. Every week you were in a different county, and you tried cases one after another for a week. Sometimes you would try as many as four felony jury trials in one day. This gave me and my young colleagues a baptism of fire where you learned quickly or perished. I wouldn’t wish such an introduction to the practice of law on my worst enemy today.   

Can you imagine my surprise (and my pleasure) to discover that Abraham Lincoln’s trial practice was very similar to what I experienced in the 1970’s? He practiced in the Eighth Circuit of Illinois, which at one time encompassed 14 counties. The lawyers of the circuit would ride from county to county with the circuit judge for each term of court and would spend a week or two trying cases one right after another until it was time to go to the next county. They didn’t have cars, and the roads were not good, so when a lawyer embarked on his circuit, he wouldn’t return home until all the business was done in every court he visited. Lincoln was one of the few lawyers who visited every county in the circuit during both fall and spring terms, which meant that he was gone from home for approximately six months of every year.

The lawyers formed a brotherhood which, like Shakespeare’s lawyers, would “strive mightily [in court], but eat and drink as friends.” (The Taming of the Shrew, 1.2.280). Something else the lawyers did mightily was complain about conditions on the circuit—muddy roads, barely passable fords, bedbug infested hotels where they slept two or more to a bed, and food which was near-indigestible were just a few of the hardships faced by Illinois’s aspiring antebellum trial lawyers. Lincoln never complained. He even worked a reference to his being bitten by bedbugs (or maybe it was lice) into his cross-examination of a medical expert in a murder trial.

At the end of a long day in court, Circuit Judge David Davis would sometimes hold an “orgmathorical” court in his hotel room. Lawyers were charged with outlandish offenses and tried before the “orgmathorical” court, and when they were convicted Judge Davis would order that they pay a fine. Even Lincoln himself did not escape being tried before the orgmathorical court. Lincoln was notorious for charging modest fees for his services, and this tendency got the better of his colleagues. They brought him before the orgmathorical court on a charge of ruining their practice by charging such small fees. He was duly convicted and Judge Davis passed sentence. We have no record of whether Lincoln paid the fine, but we can be sure that he harbored no animosity for the conviction. He later appointed Judge Davis to the Supreme Court.

The orgmathorical court once tried a genuine wrongdoer. A man slipped into the women’s sleeping quarters and hid himself under one of the beds. The two ladies who were to occupy the bed that night discovered him and raised an outcry. The lawyers sprang to the rescue and captured the miscreant. Having captured the wrongdoer, they discussed what should be done with him and decided to try him before the orgmathorical court. Despite the fact that Lincoln served as his defense attorney the orgmathorical jury found him guilty, and Judge Davis ordered that he be taken into the back yard and whipped by the women whom he had offended.

Lincoln’s partner, William H. Herndon, would later write that Lincoln was never happier than when he was on the circuit trying cases. If I could avoid the bedbugs, the awful food, and the need for sleeping two to a bed, I think I would have enjoyed riding the Eighth Circuit with Lincoln and Davis.

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