On The Art of The Smack-Down

by Eric Walton on March 24th, 2012

Though the term “smack-down” is a fairly recent addition to the American vernacular, the smack-down itself is of course nothing new. It could even be argued that the smack-down is older than civilization itself, in which case, one has to wonder why it took so long for the term “smack-down” to emerge. Synonyms for it abound and mostly take the form of gerunds (beating, hurting, bruising, etc.), but none of them possesses the satisfying onomatopoetic quality of “smack-down” and no substitute for the word even comes close to its economy and clarity. Describing the outcome of a confrontation as a “crushing defeat” or a “debilitating loss” conveys nothing that “smack-down” does not. It only remains in most cases to clarify who delivered the smack-down and to whom.

It may not be to the credit of men that the smack-down is generally associated with the masculine gender, though I see nothing especially manly in the smack-downs administered in the world of  professional wrestling, from which we inherit the term itself. Personally, I have always been much more impressed with the rhetorical and oratorial smack-down, such as that delivered by Winston Churchill in response to an admonition from his political rival, Bessie Braddock. As the story goes, Churchill encountered Braddock outside the pub in which he had spent the evening drinking and discerning at once that Churchill was intoxicated and eager to upbraid him for it, Braddock remarked, “You, sir, are drunk!” In response, Churchill offered the now legendary riposte, “And you, madam, are ugly. But in the morning, I will be sober.” Oh, snap.

Impressive though Churchill's rejoinder was, and as much as I admire his wit and pugnacity, the greatest, the smackiest smack-down that I have ever heard takes the form of a closing argument delivered in San Fransisco, California in 1890 in The State of California v. Unknown Defendant.

The attorney who delivered this smack-down nonpareil was none other than the redoubtable Clara Shortridge Foltz. In addition to being California's first female attorney, Foltz was also the first female deputy district attorney in the United States; the founder and publisher of the San Diego Daily Bee, and New American Woman Magazine; the first woman named director of a major bank; a member of the Bar of New York; a gifted lecturer; a tireless advocate for women's suffrage; and, a devoted (and single) mother of five children. And she also introduced the idea of the Public Defender. She was, by any standard whatsoever, a total bad-ass. I urge you to read all you can find about this extraordinary woman and then aspire to be more like her. If you can accomplish even a quarter of what she accomplished in her lifetime, you will have achieved much.

By the time of the trial in question, Foltz had been practicing law for ten years and her reputation as an intelligent and capable attorney was well established. Foltz's reputation, however impressive and well-deserved, was either unknown to or simply ignored by the opposing counsel in the case, a certain Colonel Thetas Stonehill, a former captain in the Confederate army who went by the moniker “Colonel”. Perhaps the good Colonel felt that his case as the prosecuting attorney simply wouldn't prevail on its own merits, or perhaps he believed that Foltz would simply demure in the face of a direct insult to her and to her sex, but whatever his motivation may have been, he took his summation as an opportunity to deride the reasoning faculties of women in general and to inveigh against Foltz specifically. Addressing the all male jury, Stonehill explained that, “[Foltz] cannot be expected to reason; God Almighty decreed her limitations, but you can reason and you must use your reasoning faculties against this young woman...” And as if the point were somehow in dispute, Stonehill bellowed, “SHE IS A WOMAN!”
The Colonel would find out soon enough that though he had correctly identified Foltz's gender, he had failed to ascertain something much more important about her: what kind of woman she was. Foltz was the kind of woman who handily out-classed him and readily out-performed him. Superior to him in intellect, character, and much else besides, she was the kind of woman that an arrogant turd like Colonel Stonehill had no business trifling with. The following are excerpts from Clara Shortridge Foltz's closing argument in the case, in which she immobilizes her opponent on the mat, ascends to the metaphorical top rope of the ring and then delivers the coup de grace in the form of a rhetorical Ram Jam that would incapacitate even the indomitable Hulk Hogan himself. Ladies and gentlemen, one of the greatest smack-downs in the history of the smack-down:

If Your Honor please and gentlemen of the jury:

You well know that I am not before you by my own choice! That in obedience to time-honored rule I am here by order of this court trying as best I can to represent this despairing man. Is it not strange then that the district attorney should make me an object of his displeasure and challenge my presence at this bar because only that I am a woman? The kind indulgence of the court has permitted counsel to range over much matter that is neither of record nor part of the evidence in this case. I would rather the immaterial and irrelevant part of his speech had remained unspoken, for I take no pleasure in the wanton abuse of a jury's patience nor in burdening them with matter wholly foreign to the case...

Counsel tells you that I am a woman. I wonder that the planets did not stand still in their course and rivers cease to run to the sea at the announcement of this startling discovery. I am amazed that His Honor did not faint upon the bench and that you gentlemen of the jury have survived this awful shock to your nervous systems.

Let me kindly admonish the learned counsel that in a matter of great pith and moment like this he should break the news gently and not plunge such an original thought upon an unprepared jury. A few more such thoughtless revelations and your nervous forces will be destroyed and your reason dethroned. Counsel should beware how he heedlessly enlightens an unprepared jury on such a vital topic.

Again he tells you that I am a woman. By a natural antithesis I presume he would have you infer that he is not. I suppose he wants me to tell you that he is a man and he takes this hurried opportunity and adroit method of testifying to the fact. Though nobody has yet denied it, he seems to be in a fever of anxiety to emphasize that he is a man. I don't know why he should make such unseemly haste in announcing it. He should remember that a swift and willing witness to a point not controverted is a herald of suspicion. Useless denial has caught more criminals than has silence a long way...

I am that formidable and terrifying object known as a woman—while he is only a poor, helpless, defenseless man, and he wants you to take pity on him and give him a verdict in this case. I sympathize with counsel in his unhappy condition. True, the world is open to him. He is the peer of all men—he can aspire to the highest offices, he can carry a torch over our streets during a political campaign and sell his vote for a dollar and half on election day, and yet he isn't satisfied. Like Alexander, who wanted more worlds to conquer, he wants verdicts, and in order to awaken your sympathy for him, he tells you that I am a woman and he is only a man.

I confess I do not clearly see the relevancy of the statement to this case. The logic is, I am a woman; therefore, you should find this defendant guilty. The conclusion is rather sudden. We are hurried across the river of dispute without bridge or ferry or fording place. In the chain of his logic an important link seems wanting. There is a weakness somehwere, but mothers are always weak after such extraordinary births, and we presume we ought to be lenient. "Be to his faults a little blind, be to his virtues very kind."

But counsel insists that I am a woman. Gentlemen of the jury, of the atrocious crime I plead guilty. Into this world I have broght five healthy children. By my industry I have supported them them till some are even now stepping from youth and maidenhood into the broader estate of manhood and womanhood. And I repel the covert slur and innuendo that came with the words, "She is a woman," words intended to depreciate me and my efforts before you in this cause, words none the less obnoxious because spoken under the cloak of a honeyed compliment. In the name of the mothers who nursed you, and of the wives and maidens who look love into your eyes, I resent this hidden appeal to a supposed prejudice of this jury. I resent this ill-concealed slur and covert innuendo that the presence of a woman in a lawsuit contaminates her and that her sex must militate against her client...

Counsel intimates with a curl on his lip that I am called the lady lawyer. I am sorry I cannot return the compliment, but I cannot. I never heard anybody call him any kind of lawyer at all.

And now let us take it all together. I am a woman and I am a lawyer—and what of it? It is not so new or wonderful a thing. I am practicing law in this city; I have offices in one of its largest buildings, and I go daily to and from those offices in my right mind. I am certainly not unknown to the bench and bar of California. And gentlemen, I came into the practice of my profession under the laws of this state, regularly and honestly, and not by the certificate of another state that required no learning to secure, and I have come to stay. I am neither to be bullied out nor worn out. I ask no special privileges and expect no favors, but I think it only fair that those who have had better opportunities than I, who have had fewer obstacles to surmount and fewer difficulties to contend with should meet me on even ground, upon the merits of the law and fact without this everlasting and incessant reference to sex—reference that in its very nature is uncalled for and is as unprofessional as it is unmanly...

Counsel thought I was too timid to resent this miserable inference against women in courts of justice. I am descended from the heroic stock Daniel Boone, and never shrunk from contest nor knew a fear. I inherit no drop of craven blood. If I have remained silent when others would have retorted, it is because of my respect for the courts and the halls of justice, which I grieve to see become the arena of personal encounter. But the patience which at first may have been a virtue would become criminal by longer exercise. This controversy was not of my seeking—a long series of abuses has forced it upon me.

When I so forget the dignity of my profession, when I so trample upon its courtesy, when I so shut my eyes to the honor and respect due this bench as to introduce such irrelevant matter, I hope that I may be barred the profession and banished the country.

Ladies and Gentlemen of The Jury: The Greatest Closing Arguments in Modern Law

Posted in not categorized    Tagged with Eric Walton, smack-down, Clara Shortridge Foltz, Winston Churchill, Ram Jam, Colonel Thetas Stonehill, Bessie Braddock, hulk hogan


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