Pre-Trial Examination is Form of “Smearing”

Westbrook Pegler

Rome News-Tribune/February 17, 1954

NEW YORK—I call to the attention of all those who have raised a sanctimonious howl against the “smearing” of traitors and the political patrons and protectors thereof, an institution created by the Roosevelt party which has been used with impunity to smear and harass litigants in some of the federal courts and to put them in fear of these courts.

I refer to the practice known as the examination before trial which, as all lawyers in New York and Washington know and many of them privately admit, is a weapon for blackmail, blackguarding, harassment and intimidation and is wantonly abused every court day of the year.

In this process, both parties to a civil suit are exposed to an ordeal of questions which need not have the remotest bearing on any issue and any honest lawyer will admit off the record that the whole thing is now a disgrace to the bar and the federal jurisprudence. One may hear an otherwise decent fellow engaged in the practice of law admit with mischievous delight that he has put his client’s adversary to torture for months and months and book upon book of expensive typed record.

Blackmail Enters

At this point, the element of blackmail enters with each side deliberately loading it down with hundreds of pages of artificial disputation and harangue and with each litigant, in his turn, artfully or innocently running up the other one’s hill by stalling, fencing and soaring off into meaningless bloviation.

If one side runs hp the cost, the other does the same to get even and the judges tell the lawyers to go ahead, have their fun and then bring the trash to court where most of it is rejected. These enormities are pulled off in the lawyers’ offices with neither judge nor referee present to keep counsel within canonical bonds to say nothing of the bounds of honor which, to the legal profession, lie beyond the last horizon, anyway. For no other craft or racket to which man has ever resorted for a not necessarily honest dollar is quicker to invoke its “honor” as a badge of immunity from learned reprobation and none is less deserving of the minimal respect that must be paid a trafficker in women who frankly admits his loathsomeness and waives all claim to any human being’s good opinion.

There never was a grand fraud but had a lawyer’s guidance in the writing of the papers to rob the victims and thwart the law nor any foul design of government against the people that wasn’t wrought and polished by an attorney-general and a brain-trust. Their colleagues spurn them only for failure, however, never for the evil of a low design.

It would be too bad if the decent lawyers suffered for the villainy of the worst, including, incidentally, some of the most successful. But they don’t. On the contrary, the rascals share the fair renown of the pure in heart.

It is a strange fact that this abused corrupt practice is pretty well localized in the eastern districts. An Arizona lawyer was aghast on learning that in New York a litigant could be put to malicious harassment with not the slightest prospect of termination even for the benefit of unseen and uncommitted principals hiding in the background. He was accustomed to the western ways and the sensitiveness of western judges, even Democrats, to the normal inhibition of ethics and honor.

To be sure, he had taken a few depositions in the east but, according to the Arizona practice, had gone right to the issues, sought information which would be legitimately his, zipped his briefcase and hopped the plane for home within two or three days. In most such cases, a few hours suffice. A federal judge sitting in the northwest, although he sometimes takes a trick in New York, said that in his district, any attorney who couldn’t get through in two court days would be hailed into the courtroom and made to finish it up in the judge’s presence.

One need not go into the original good intention of this spot of corruption in the federal system in a discussion of its practical viciousness. The fact is, and the portion of the press which bewails “McCarthyism” ignores it, that unscrupulous lawyers habitually use this license to put unverified, untrue, scandalous and degrading stuff on a sworn, privileged court record which may thereafter be invoked to blackmail the victim or wantonly published as though it were proven.

I am not even sure that the press which deplores the smearing of Reds is even aware of this foul condition in the federal courts. Possibly the fact that, like much other evil, it is hidden from the physical eye of the reporters is an excuse for this neglect. But, whatever the reason, this discussion is the first one ever offered for the daily press so far as I know, although the vilification of citizens simply because some low character or pro-Communist association has filed a lawsuit certainly is within the purview of a press so alert to defamation by official agencies.

Degrading Course

A public man who became defendant in a political suit and won was warned a few months ago by an ex-convict of the Bugsy Siegal gang that if he persisted in a certain patriotic course, the entire record of his examination would be published to his constituency. The victim had been put through a terribly degrading course of insinuations without a grain of proof and the record thus was established and covered with “privilege” for any rogue to print.

On the other hand, normally decent lawyers, knowing that their blameless clients will be fouled up with filthy passages in a sworn record under a system fostered by federal courts, may resort to the same abuses to even things up.

This system is such that nobody knows what questions have a legitimate bearing on the issues and counsel, therefore, delight in persecuting litigants with the frequent result that opposing counsel does the same. Forged and fraudulent documents may be introduced. Scandalous defamation is actually encouraged under the auspices of the United States Department of Justice. Yet memory recalls not a single syllable of protest by the New York Times or Herald-Tribune, the Washington Post of La Boca no Chica, amid their incessant lamentations for Alger Hiss and the mincing elves of the State Department.

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