During his long career as a circuit-riding lawyer in Illinois prior to his presidency, Abraham Lincoln won over countless juries with his slow-talking style, his natural wit, and his story-telling ability.
By Charles M. Hubbard
Abraham lincoln spent only four of his 56 years as president of the United States. Yet, given the importance of the events that marked his 1861-65 term of office, the nation’s admiration for him as a man of courage and principle, and the abundance of photographic images that recorded his presidency, it is hard for most people to think of him as anything else.
But there were other facets to the career of this man who led the nation through the Civil War years. Prior to his presidency, Lincoln honed his political skills and aspirations through the practice of law.
In 1837, while serving in the Illinois state legislature, Lincoln completed his legal training and joined the office of John Todd Stuart in the new Illinois capital at Springfield. Except for a sojourn in Washington, D.C., as a Whig Congressman during 1847-49, the law remained the future president’s chief occupation until his election to the White House in 1860.
In his Life of Lincoln, William H. Herndon* stated that his partner was a good lawyer but not a scholarly one. Lincoln, he wrote, was “strikingly deficient in the technical rules of law….I doubt if he ever read a single elementary law book through in his life. In fact, I may truthfully say, I never knew him to read through a law book of any kind.”
This assessment has been disputed or at least modified by those who have since studied Lincoln’s law career. But whether or not Lincoln lost some cases due to a lack of technical expertise on certain points of law, the fact remains that he was a successful trial attorney. He knew, everyone agrees, how to win over a jury.
The bulk of Lincoln’s courtroom work took place away from Springfield as he traveled twice a year with the presiding judge and fellow lawyers to the county seats of Illinois’ Eighth Circuit Court. Since most of those who served on the juries in these small towns were farmers and other country folk, Lincoln–himself a product of a rural environment and by nature a slow talker–recognized the need to argue his cases in the simplest and most straightforward manner. As one observer noted, “his illustrations were often quaint and homely, but always clear and apt, and generally conclusive. . . . His wit and humor and inexhaustible store of anecdotes, always to the point, added immensely to his powers as a jury advocate.”
A medical malpractice suit–Fleming vs. Rogers & Crothers–in which Lincoln represented the physician defendants is a case in point.
Just after midnight, on the morning of October 17, 1855, the sleeping residents of Bloomington, Illinois, awoke to the sound of fire bells ringing throughout the community. Before long a crowd of more than four thousand had congregated to watch firemen struggle to contain the blaze that had begun in the livery stable behind the Morgan House and had spread to neighboring buildings. By the time the fire was extinguished, most of the buildings on the block, including those housing the offices of the Central Illinois Times and Bloomington Pantagraph, had been destroyed; only the bank and a hardware store remained.
There was one fatality–William Green, a local drayman–and among those injured was Samuel G. Fleming, a carpenter from Bloomington who suffered two broken thighs when a Morgan House chimney collapsed on him. Fleming was carried to the home of his brother John, where he was treated by Drs. Thomas P. Rogers, Jacob R. Freese, and Eli K. Crothers. Dr. Freese set and bandaged Fleming’s left leg, while Crothers worked on the right, assisted by Dr. Rogers. The physicians dressed the limb, Freese later said, “with care and in the same manner as I have seen it done by some of the most celebrated Surgeons of this Country, and in the same manner as is recommended by some of the best authors on Surgery.”
At least one of the doctors visited Fleming daily for the next two weeks and each was satisfied with his progress. In fact, Dr. Freese claimed in a deposition taken in August 1857 that Fleming had stated that, “He was getting along first rate, and that, were it not for the confinement, He would scarcely Know that his thighs were broken–so little pain did he suffer.”
That changed about 16 days after the accident, when Fleming began to experience severe pain at the “fracture point of the right leg….” When his sister, who had been nursing him since a week after his injury, ran her hand along the fracture, she thought that she “could discover it misplaced.” The doctors, however, believed the leg was mending as it should and merely ordered an increase in morphine for the injured man. A few days later, Dr. Crothers told Fleming that his pain was a symptom of pleurisy, not anything to do with his leg.
Twenty-four days after the fire, Dr. Rogers, who had been out of town for some time, visited Fleming and removed the bandages. The doctor remarked, according to Miss Fleming, that the legs “were crooked as Ram’s horns.” Rogers sent for the other doctors, and the three measured Fleming’s legs, one of which was found to be almost an inch shorter than the other. They re-dressed the legs, this time changing the arrangement of the splints.
Eight days later, the trio again removed the bandages and found, Dr. Freese stated, “the left one doing well–but the right one had a considerable bend at the point of fracture. The fracture was originally oblique, and now we found the lower Sharp point of the upper Portion of the thigh bone bending outward from a proper line of the bone–when in sound condition.”
This time, the physicians recommended that Fleming allow them to “break up” the adhesions, reset the thigh, and let the leg again begin the knitting process. After careful discussions with the three doctors, the patient and his family agreed to this procedure.
Dr. Freese administered chloroform to Fleming. He was assisted by Isaac M. Small, a cabinet maker and medical student who was present on this occasion only out of curiosity. Once Fleming was thought to be unconscious, Small stated, Dr. Crothers began “manipulating the limb–That is to break up and re-adjust the fracture, [and] Dr. Rogers took hold of the foot with a view to produce the proper amount of extension.”
As it happened, however, Fleming had not felt the full effects of the chloroform and soon began to scream in pain, ordering the doctors to stop. Dr. Crothers, explained to the patient that if they did not continue, his leg would always be deformed and he would suffer permanent damage, with the possibility of continuing pain and discomfort. Nonetheless, Small remembered, Fleming once again screamed at the doctors to “let him alone, he had suffered enough.” Relatives present in the room reinforced Fleming’s decision, so the doctors discontinued the procedure. Crothers, according to Small, told Fleming “that he would not be responsible for the result, unless [they continued], but acceding to his wishes, they again bandaged the right leg.”
By spring, the leg had healed, but, as Dr. Crothers had expected, it was badly misshapen, causing Fleming to have limited mobility and to walk with a limp. Fleming blamed the doctors for the condition of his leg and, after securing the services of a team of six lawyers, filed suit on March 28, 1856, in the McLean Circuit Court against Drs. Crothers and Rogers.
In his declaration, Fleming alleged that his attending physicians had deliberately failed “to use due and proper care, skill and diligence” in caring for his broken thighs. As a result of this negligence, the suit claimed, Fleming had “thereby suffered and underwent great and unnecessary pain and anguish and…is much reduced and weakened in body…,” and his legs, having healed in an “unsightly and unnatural a manner,” were “crooked, misshapen and useless.” As compensation for his suffering and the expenses incurred during his convalescence, the plaintiff demanded payment by the defendants of $10,000.
To plead their case, Crothers and Rogers turned to attorneys David Brier, Jessie Birch, L. L. Strain, and Andrew W. Rogers, all of Bloomington. To counter the presence on the plaintiff’s legal team of lawyer Leonard Swett, who was known for his grasp of medical issues and the subject of anatomy, Crothers also sought the counsel of Abraham Lincoln and John Stuart.
The former partners, who took the lead in the doctors’ defense, had only a week to prepare their case before the Circuit Court’s spring term opened in Bloomington on April 7, 1856. They requested a continuance from Judge David Davis on the grounds that Dr. Rogers, “the major physician, is now so unwell as to be unable to attend the present term of court, and…his personal presence at the trial is necessary to enable them to conduct the defense of the case properly….” Rogers, they stated, had “visited said plaintiff much more frequently than did said Cerothers [sic.] and…has the more intimate acquaintance with, and perfect knowledge of the whole case.” Judge Davis, having been assured that Dr. Rogers would be able to attend the Court’s fall term, continued the case until then but required the defendants to pay the court costs.
Judge Davis and Lincoln enjoyed a close working relationship, as well as a personal friendship. Lincoln traveled with other attorneys who followed Davis’s circuit in a “circus like caravan,” often entertaining the judge and his fellow lawyers after hours with his humorous stories and anecdotes. The judge respected the future president’s legal opinions and his skill as a hardworking, frontier lawyer and occasionally asked Lincoln to take the bench in his absence. As a result of this interaction, Judge Davis became one of Lincoln’s mentors.
This apparent conflict of interest was not uncommon on the circuit and rarely aroused objections from other lawyers familiar with the rigors of travel within the Court’s jurisdiction. Younger attorneys on the trial circuit often sought the services of Lincoln, whose experience and presence in the courtroom had earned their respect.
When the Fleming case was called before Judge Davis in September, the defendants again requested a postponement. Dr. Freese, it seemed, had moved to Cincinnati on short notice and had not been able to give his deposition to the attorneys before leaving Bloomington. His testimony was considered vital to the defense because he was present “when plaintiff’s limb was first set, and knows that it was [done] properly . . . .” Likewise he was there when the leg was examined several days later and “saw that it was right then . . . .” Freese had also taken part in the consultation at which the doctors decided not to take immediate action in the hope that the bone “would improve without rebreaking.” And no other witness, the deposition concluded, could so knowledgeably testify to the correctness of the doctors’ efforts on the day that the attempt was made to break the bone’s adhesions. Judge Davis–assured that Freese’s testimony would be available at the next court term and that “this application is not made for delay, but that justice may be done”–again granted the continuance at the defendants’ expense.
Lincoln, William Herndon noted, possessed a “keen sense of justice, and struggled for it, throwing aside forms, methods, and rules, until it appeared as pure as a ray of light flashing through a fog-bank. . . . [W]hen he had occasion to learn or investigate any subject he was thorough and indefatigable in his search. He not only went to the root of the question, but dug up the root, and separated and analyzed every fiber of it.” For this kind of effort, Lincoln, who was always handling several cases simultaneously and who was, during the mid-1850s, heavily involved in politics, required the time that the two continuances provided.
Before Fleming vs. Rogers and Crothers finally came to trial in the spring of 1857, Lincoln had sought instruction from Dr. Crothers in the more technical medical aspects of the case. Using chicken bones to demonstrate his points, Crothers described the chemistry of bone growth and the organic changes that take place in bones during the aging process.
Lincoln found that Crothers’ use of the chicken bones made the technical medical evidence completely comprehensible, and he immediately decided to adopt the same technique in the courtroom. It would not be the only time that the frontier-bred Lincoln would use farm-related metaphors to make his points to a jury or, as president, to Congress and the American people.
During the well-attended, week-long trial, 15 doctors and 21 other witnesses testified on behalf of the plaintiff. The defendants also called upon a bevy of medical men to buttress their claims. Many years after the trial, Dr. Crothers’ daughter Lulu wrote that she had been told of an exchange that took place during Lincoln’s cross-examination of Fleming on the witness stand. When Lincoln asked the plaintiff if he were able to walk, she related, Fleming answered that he could, “but my leg is short, so I have to limp.” At that, Miss Crothers continued, Lincoln dramatically replied: “Well! What I would advise you is to get down on your knees and thank your Heavenly Father, and also these two Doctors that you have any legs to stand on at all!”
Lincoln saved his lesson on how bones heal for his summation to the jury. Then, holding up two chicken-leg bones–one from an old chicken and the other from a young one–he demonstrated to the jury their respective texture and resilience. The bones of the young bird were supple, while those of the old chicken were brittle and broke easily. Fleming, being in middle age, Lincoln pointed out, would have bones more closely resembling the latter than the former. Unable, according to Lulu Crothers, to “remember about the lime or calcium deposited in older peoples’ bones,” Lincoln told the jurors that the bone from the older chicken, “has the starch all taken out of it–as it is in childhood.”
This graphic demonstration had the desired effect on some of the jurors, a majority of whom probably entered the courtroom predisposed toward Fleming and prejudiced against the more affluent defendants. After 18 hours of deliberation, the jurors failed to reach a decision. Judge Davis put the case over to the fall term of court.
By September, the doctors had suffered the loss of another vital witness from the Bloomington area. Isaac Small, who had helped to administer the chloroform to Fleming at the time the attempt was made to re-break his right thigh bone, had moved to Nashville, Tennessee. Judge Davis’s decision to grant this latest continuance in the Fleming suit, however, was based more on Lincoln’s preoccupation at the time with an important regional case involving the Rock Island Bridge–the first built over the Mississippi River–and the importance of east-west transportation to the expanding United States.
Just before 1857 came to an end, Brier and Birch, two of the other attorneys for the defense, asked the judge for a change of venue for the case on the grounds that Fleming had “undue influence over the minds” of the people of McLean County, where the first trial had been heard. The plaintiff’s lawyers not objecting, Davis ordered the case transferred to the Logan County Circuit Court, whose county seat of Lincoln was, ironically, named for opposing counsel.
The retrial of the case never took place, both sides having agreed to a settlement before the March 1858 court term began. The doctors named in the suit agreed to pay the fees incurred by Fleming, whose expense probably totaled less than a thousand dollars.
The “Chicken Bone Case” illustrates the great communicative skills of Abraham Lincoln, who understood his audiences–in this case, the jury–and used wit and metaphor to explain complex issues. Soon after the Fleming suit was settled, Lincoln became preoccupied with the race for U.S. senator from Illinois. Nominated by the new Republican Party in June, Lincoln engaged in a series of debates with the Democratic incumbent, Stephen A. Douglas, that propelled him onto the national political stage.
Although Lincoln lost that election, the campaign was an important step on his road to the White House. Once elected president, he used his language skills to craft carefully worded public statements that rank among America’s greatest expressions of political philosophy. And to a great extent, he used the talents that he had honed as an Illinois circuit lawyer to maintain popular support in the North for the war effort and to develop a political constituency that sustained the army in the field.
Charles M. Hubbard is the Dean of Lincolniana and Associate Professor of History at Lincoln Memorial University.
*Four years after John T. Stuart, who had encouraged Lincoln’s legal studies, took him in as a partner in 1837, Lincoln joined the firm of Stephen T. Logan, again as a junior partner. In 1844, Lincoln teamed up with William H. Herndon, this time as a senior partner.
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