“If you have a case where the law is clearly on your side, but the facts and justice seem to be against you,” said an old lawyer to his son, who was about to begin the practice of the law, “urge upon the jury the vast importance of sustaining the law. On the other hand, if the law is against you, or doubtful, and the facts show that your case is founded in justice, insist that justice be done though the heavens fall.” “But,” said the young man, “how shall I manage a case where both the law and the facts are dead against me?” “In that case,” replied the old lawyer, “talk around it,” and “the worse it is, the harder you pound the table,” adds a modern commentator.
– 1911, The Work of the Advocate: a Practical Treatise, Second edition, Footnote 17, Page 390, Bobbs-Merrill Company, Indianapolis, Indiana, quoted in “Legal Advice: Pound the Facts, Pound the Law, Pound the Table” by Garson O’Toole on Quote Investigator, July 4, 2010 (site last visited August 24 2012)
I originally went looking for a quote I vaguely remembered as “If the law and the facts of the case are on your side, calmly explain this to the jury; if the facts are on your side but the actual wording of the law is not, raise your voice and emphasize the facts to the jury while avoiding questions of the law; if both the facts and the law are against you, take off your shoe and pound the table with it while yelling at the top of your lungs.”
Instead, I found the (much more authoritative) versions listed at O’Toole’s Quote Investigator article, of which I cited the earliest one.
For those of you wondering — like I would have been at one time, before I spent nine years in a field that was all about reading and applying regulations, with a few semesters of local business-college paralegal classes I took in the evening and online — how the law, justice and facts could be in conflict with each other, situations like that can happen more than you would expect.
For instance, under common law there were certain types of contracts which weren’t legally binding unless the contract was written. Contracts involving marriage, anything lasting more than a year, land, debts on an estate that the executor must pay out of their private funds, debts over a certain amount, and anyone promising to pay someone else’s debts are all types of contracts that are only legally binding if the contract is in writing. If someone entered into that type of contract but only verbally, not realizing that those contracts are unenforceable if unwritten, and then the other party broke the contract, that would be a case where the law would say the contract was unenforceable so there’s no recourse, while the facts of the case might make an onlooker say “the law was followed, but justice was not done”.