I am aware that many members of my profession still sneer at
trial by jury. Such men, however, when not among the
unsuccessful and disgruntled, will, with but few exceptions,
be found to have had but little practice themselves in court, or
else to belong to that ever growing class in our profession who
have relinquished their court practice and are building up
fortunes such as were never dreamed of in the legal
profession a decade ago, by becoming what may be styled
business lawyers men who are learned in the law as a
profession, but who through opportunity, combined with rare
commercial ability, have come to apply their learning especially
their knowledge of corporate law to great commercial
enterprises, combinations, organizations, and reorganizations,
and have thus come to practise law as a business.

To such as these a book of this nature can have but little
interest. It is to those who by choice or chance are, or intend
to become, engaged in that most laborious of all forms of legal
business, the trial of cases in court, that the suggestions and
experiences which follow are especially addressed.
It is often truly said that many of our best lawyers I am
speaking now especially of New York City are withdrawing
from court practice because the nature of the litigation is
changing. To such an extent is this change taking place in
some localities that the more important commercial cases rarely
reach a court decision. Our merchants prefer to compromise
their difficulties, or to write off their losses, rather than enter
into litigations that must remain dormant in the courts for
upward of three years awaiting their turn for a hearing on the
overcrowded court calendars. And yet fully six thousand
cases of one kind or another are tried or disposed of yearly in
the Borough of Manhattan alone.

This congestion is not wholly due to lack of judges, or that
they are not capable and industrious men; but is largely, it
seems to me, the fault of the system in vogue in all our
American courts of allowing any lawyer, duly enrolled as a
member of the Bar, to practise in the highest courts. In the
United States we recognize no distinction between barrister
and solicitor; we are all barristers and solicitors by turn. One
has but to frequent the courts to become convinced that, so
long as the ten thousand members at the New York County
Bar all avail themselves of their privilege to appear in court and
try their own clients’ cases, the great majority of the trials will
be poorly conducted, and much valuable time wasted.

Francis Wellman, The Art of Cross-Examination 6 (1919)