Most of my work was great fun; visiting with other lawyers during the course of a trial, learning the interesting occurrences in other cases in other courts and enjoying the confrontation as the facts of a case were fought before a jury. A constant stream of new cases flowed into the office. Lawyers from Grayson, Fannin, Cooke, and Collin counties referred clients to our office. There were new and interesting problems to study and to try to solve. Spearman had told me that the office would solve my problems. There were some and it did. Almost all of the era of my practice occurred before the evolvement of the discovery rules.

The discovery rules were developed in the hope that all lawyers would become competent trial lawyers. This was wishful thinking. The discovery rules made the trial of cases so expensive that only the rich can use the courts. Even some of the rich clients now use arbitration because of the long delay and expense of a court trial. In an earlier day lawyers in the inner cadre could appraise the value of almost all cases after a short deposition or two. Once the value was established settlements generally followed, reducing expenses and time.

For 800 years the legal profession using the structure of the common law of England has constantly tried to make the trial of cases fair. History proves that justice, which is our stated goal, is not within our grasp. There is no conceivable way to remove prejudices from the human mind and as long as they exist they can influence the judgments of our courts. The era of my practice has seen changes which the profession hopes improves the fairness of trials:

1. The Hall Sandwich Shop no longer exists and it can be said that jury panels in Grayson County are more randomly selected.

2. I guess it is true that everything is more complicated today. Back when the general charge was in vogue there were complicated corporate organizations, financial instruments, tax disputes, acts and omissions which damaged others and acts of greed which caused others to suffer. Some of these early judgments were wrong. Are they more correct today? The profession thought it to be improper to let the jury know the effect of its verdict for it was thought that the jury might disregard or not understand the court’s statement of the law and improperly render its verdict. Undoubtedly this occurred on some occasions and Special Issue submission flourished, attempting to limit the jury to findings of fact. However, all competent trial lawyers know how to argue a case so that an intelligent  jury knows the effect of their answers and the proliferation of issues has caused some juries to render improper answers, resulting in miss-trials. Progress in this area is questionable.

3. As my era of trial court experience was ending the discovery procedure flourished. The cost of litigation exploded. I have seen Henry Strasburger spend twenty minutes taking the deposition of my client (a typed transcript of my client’s sworn testimony) and with the investigation in his file (a manila folder no more than a quarter of an inch thick) evaluate the claim without any further discovery. Today’s lawyers enter the courtroom pulling a cart which contains a cardboard box which is needed to contain their file. The discovery rules have caused lawyers to try their cases to death. It is true that Mr. Strasburger might have overlooked a bit of information which would have been helpful to the defense. It is also true that the lawyer with the cardboard box of papers might have overlooked the same information or failed to introduce some bit of information in the mass of documents acquired from the discovery procedure. The discovery rules were not needed for those of us in the inner cadre. The trial of a case is meant to be the final settling of a dispute. Mistakes are always made during the course of a trial and they are to be expected. The fact that a lawyer avoided a mistake by using these rules does not compensate for the fact that they have made the trial of cases so expensive that even the rich have been known to avoid the courts by seeking arbitration. During the era of my practice there may have been lawyers whose clients were harmed because their attorney was not experienced and could have been helped had the discovery rules been in place and used. My opinion is controversial; I believe more people are harmed today because the courts are too expensive to use than would have occurred without the use of discovery rules.

Today at 90 years of age, looking back on a long legal career which began in 1938, I am forced to admit that I made no great or grand contribution to my profession or the legal system. My trials were of a local nature, mostly important only to the litigants involved. During my practice Grayson County never grew to a population of 100,000 and no town exceeded 35,000. The office served local citizens drafting wills, probating estates, handling real estate deals and domestic problems. To me the most enjoyable part was helping people with claims and the resulting trial work. I loved the office so much that I never retired. By mutual agreement my clients and I have gradually ceased working together; first trial work ceased, then real estate and title work and then probate proceedings.

Certain memories are vivid. A jury trial in the great Randolph Bryant’s federal district court (the Eastern District of Texas extended from north-central Texas, along the Red River, south through East Texas to the Gulf of Mexico) occurred early in my career. This court was feared by most attorneys who represented a plaintiff because of the conservative jury panels and the hurried trials. Bryant was the most overworked judge I have ever known. He was the only judge the district had and with a small clerk and marshal staff, he presided over a huge trial docket (he would set 4 workers compensation cases a day and at the end of the week dispose of twenty cases by either settlement or trial). I represented the widow of a Railway Express employee whose husband had been found shot to death in a closed Railway Express car. The defendant (Railway Express) was represented by Johnny Lancaster of Dallas, Texas (a competent lawyer, almost an icon in the profession because of the statements he made before, during or after trials – statements made by him in an Amarillo district court would be repeated by lawyers in the inner cadre in a courthouse in Sherman and elsewhere within a week).

No other person was in the Railway Express car when my client’s husband was shot. At the next railway stop he was found lying on the floor of his locked car. The pistol, issued by his employer for the protection of their cargo, had been discharged and was found on the floor beside him. The proof which I offered was circumstantial evidence and consisted of a witness who qualified as an expert on guns who testified that the pistol was dangerous because with its safety engaged it would fire if it was dropped and landed on the back of its handle. The floor of the Railway Express car was painted yellow, there was a flake of yellow on the back of the handle and the direction the bullet traveled through the deceased’s body indicated that it had traveled from the floor. The plaintiff’s evidence was contested by the defendant whose primary contention was that he had committed suicide or that I had not offered sufficient proof of the defendant’s negligence.

The most tense portion of a trial is the long period while the jury is deliberating on its verdict. There was a small room in the basement of the building which housed the federal court which was furnished with a small table, two or three chairs and a set of dominos. During the trial I knew that on occasion Judge Bryant and Johnny Lancaster would go down there and play dominos. This was the first federal district court case which I had tried without Spearman’s help and I am sure it was apparent to everyone that I was nervous, worried, scared and a bit suspicious. While the jury was deliberating Judge Bryant invited me to come down to the basement and watch the domino game, which I did. It was obvious that the judge and Johnny were good friends and enjoyed each other's company. However, during the trial Judge Bryant had made fair rulings, many of them contra to the contentions of the defendant. When the bailiff came down to inform the judge that the jury was ready to report Judge Bryant stood up and said: “Lets go up and see how much Johnny’s client will have to pay.” He obviously believed I had won the case and wanted to ease my tension. Later his court reporter told me that the Judge had stated that I had done a good job trying that case. This insignificant instance was more cherished by me than had I been the recipient of the Congressional Medal of Honor.

 Neilson Rogers practiced law in Sherman for almost 60 years, from 1938 until 2002, except for the five years he was in the U.S. Army during World War II. In 2007 he was recognized by the Grayson County Bar Assn. for seven decades of service to the legal and judicial communities. In retirement he wrote this memoir, which will be serialized in the North Texas e-News. Before his death, Mr. Rogers asked Dr. Jerry Lincecum to edit the memoir and gave him literary power of attorney to make decisions about publishing his writings.