Transcriber's Note: Italic text is denoted by _underscores_ and bold
text by =equal signs=.
THE ART OF CROSS-EXAMINATION
BY
FRANCIS L. WELLMAN
OF THE NEW YORK BAR
WITH THE CROSS-EXAMINATIONS OF IMPORTANT
WITNESSES IN SOME CELEBRATED CASES
New York
THE MACMILLAN COMPANY
LONDON: MACMILLAN & CO., LTD.
1904
_All rights reserved_
COPYRIGHT, 1903,
BY THE MACMILLAN COMPANY.
Set up, electrotyped, and published December, 1903.
Reprinted January, twice, February, 1904.
_Norwood Press
J. S. Cushing & Co.--Berwick & Smith Co.
Norwood, Mass., U.S.A._
To my Sons
RODERIC AND ALLEN
WHO HAVE EXPRESSED THEIR INTENTION
TO ENTER THE LEGAL PROFESSION
THIS BOOK
IS AFFECTIONATELY DEDICATED
"Cross-examination,--the rarest, the most useful, and the most difficult
to be acquired of all the accomplishments of the advocate.... It has
always been deemed the surest test of truth and a better security than
the oath."--Cox.
PREFACE
In offering this book to the legal profession I do not intend to
arrogate to myself any superior knowledge upon the subject, excepting in
so far as it may have been gleaned from actual experience. Nor have I
attempted to treat the subject in any scientific, elaborate, or
exhaustive way; but merely to make some suggestions upon the art of
cross-examination, which have been gathered as a result of twenty-five
years' court practice, during which time I have examined and
cross-examined about fifteen thousand witnesses, drawn from all classes
of the community.
If what is here written affords anything of instruction to the younger
members of my profession, or of interest or entertainment to the public,
it will amply justify the time taken from my summer vacation to put in
readable form some points from my experience upon this most difficult
subject.
BAR HARBOR, MAINE,
September 1, 1903.
CONTENTS
CHAPTER PAGE
I. INTRODUCTORY 11
II. THE MANNER OF CROSS-EXAMINATION 21
III. THE MATTER OF CROSS-EXAMINATION 37
IV. CROSS-EXAMINATION OF THE PERJURED WITNESS 55
V. CROSS-EXAMINATION OF EXPERTS 79
VI. THE SEQUENCE OF CROSS-EXAMINATION 101
VII. SILENT CROSS-EXAMINATION 111
VIII. CROSS-EXAMINATION TO CREDIT, AND ITS ABUSES 119
IX. GOLDEN RULES FOR EXAMINATION OF WITNESSES 133
X. SOME FAMOUS CROSS-EXAMINERS AND THEIR METHODS 143
XI. THE CROSS-EXAMINATION OF RICHARD PIGOTT
BEFORE THE PARNELL COMMISSION 173
XII. THE CROSS-EXAMINATION OF DR. ---- IN THE
CARLYLE W. HARRIS CASE 195
XIII. THE CROSS-EXAMINATION OF THOMAS J. MINNOCK
IN THE BELLEVUE HOSPITAL CASE 213
XIV. THE CROSS-EXAMINATION OF JEREMIAH SMITH
IN THE WILLIAM PALMER CASE 247
XV. THE CROSS-EXAMINATION OF RUSSELL SAGE IN
THE LAIDLAW-SAGE CASE 267
CHAPTER I
INTRODUCTORY
"The issue of a cause rarely depends upon a speech and is but seldom
even affected by it. But there is never a cause contested, the result of
which is not mainly dependent upon the skill with which the advocate
conducts his cross-examination."
This is the conclusion arrived at by one of England's greatest advocates
at the close of a long and eventful career at the Bar. It was written
some fifty years ago and at a time when oratory in public trials was at
its height. It is even more true at the present time, when what was once
commonly reputed a "great speech" is seldom heard in our
courts,--because the modern methods of practising our profession have
had a tendency to discourage court oratory and the development of
orators. The old-fashioned orators who were wont to "grasp the
thunderbolt" are now less in favor than formerly. With our modern
jurymen the arts of oratory,--"law-papers on fire," as Lord Brougham's
speeches used to be called,--though still enjoyed as impassioned
literary efforts, have become almost useless as persuasive arguments or
as a "summing up" as they are now called.
Modern juries, especially in large cities, are composed of practical
business men accustomed to think for themselves, experienced in the ways
of life, capable of forming estimates and making nice distinctions,
unmoved by the passions and prejudices to which court oratory is nearly
always directed. Nowadays, jurymen, as a rule, are wont to bestow upon
testimony the most intelligent and painstaking attention, and have a
keen scent for truth. It is not intended to maintain that juries are no
longer human, or that in certain cases they do not still go widely
astray, led on by their prejudices if not by their passions.
Nevertheless, in the vast majority of trials, the modern juryman, and
especially the modern city juryman,--it is in our large cities that the
greatest number of litigated cases is tried,--comes as near being the
model arbiter of fact as the most optimistic champion of the institution
of trial by jury could desire.
I am aware that many members of my profession still sneer at trial by
jury. Such men, however,--when not among the unsuccessful and
disgruntled,--will, with but few exceptions, be found to have had but
little practice themselves in court, or else to belong to that ever
growing class in our profession who have relinquished their court
practice and are building up fortunes such as were never dreamed of in
the legal profession a decade ago, by becoming what may be styled
business lawyers--men who are learned in the law as a profession, but
who through opportunity, combined with rare commercial ability, have
come to apply their learning--especially their knowledge of corporate
law--to great commercial enterprises, combinations, organizations, and
reorganizations, and have thus come to practise law as a business.
To such as these a book of this nature can have but little interest. It
is to those who by choice or chance are, or intend to become, engaged in
that most laborious of all forms of legal business, the trial of cases
in court, that the suggestions and experiences which follow are
especially addressed.
It is often truly said that many of our best lawyers--I am speaking now
especially of New York City--are withdrawing from court practice because
the nature of the litigation is changing. To such an extent is this
change taking place in some localities that the more important
commercial cases rarely reach a court decision. Our merchants prefer to
compromise their difficulties, or to write off their losses, rather than
enter into litigations that must remain dormant in the courts for upward
of three years awaiting their turn for a hearing on the overcrowded
court calendars. And yet fully six thousand cases of one kind or another
are tried or disposed of yearly in the Borough of Manhattan alone.
This congestion is not wholly due to lack of judges, or that they are
not capable and industrious men; but is largely, it seems to me, the
fault of the system in vogue in all our American courts of allowing any
lawyer, duly enrolled as a member of the Bar, to practise in the
highest courts. In the United States we recognize no distinction between
barrister and solicitor; we are all barristers and solicitors by turn.
One has but to frequent the courts to become convinced that, so long as
the ten thousand members at the New York County Bar all avail themselves
of their privilege to appear in court and try their own clients' cases,
the great majority of the trials will be poorly conducted, and much
valuable time wasted.
The conduct of a case in court is a peculiar art for which many men,
however learned in the law, are not fitted; and where a lawyer has but
one or even a dozen experiences in court in each year, he can never
become a competent trial lawyer. I am not addressing myself to clients,
who often assume that, because we are duly qualified as lawyers, we are
therefore competent to try their cases; I am speaking in behalf of our
courts, against the congestion of the calendars, and the consequent
crowding out of weighty commercial litigations.
One _experienced_ in the trial of causes will not require, at the
utmost, more than a quarter of the time taken by the most learned
inexperienced lawyer in developing his facts. His case will be
thoroughly prepared and understood before the trial begins. His points
of law and issues of fact will be clearly defined and presented to the
court and jury in the fewest possible words. He will in this way avoid
many of the erroneous rulings on questions of law and evidence which are
now upsetting so many verdicts on appeal. He will not only complete his
trial in shorter time, but he will be likely to bring about an equitable
verdict in the case which may not be appealed from at all, or, if
appealed, will be sustained by a higher court, instead of being sent
back for a retrial and the consequent consumption of the time of another
judge and jury in doing the work all over again.[1]
[1] In the Borough of Manhattan at the present time thirty-three
per cent of the cases tried are appealed, and forty-two per cent
of the cases appealed are reversed and sent back for re-trial as
shown by the court statistics.
These facts are being more and more appreciated each year, and in our
local courts there is already an ever increasing coterie of trial
lawyers, who are devoting the principal part of their time to court
practice.
A few lawyers have gone so far as to refuse direct communication with
clients excepting as they come represented by their own attorneys. It is
pleasing to note that some of our leading advocates who, having been
called away from large and active law practice to enter the government
service, have expressed their intention, when they resume the practice
of the law, to refuse all cases where clients are not already
represented by competent attorneys, recognizing, at least in their own
practice, the English distinction between the barrister and solicitor.
We are thus beginning to appreciate in this country what the English
courts have so long recognized: that the only way to insure speedy and
intelligently conducted litigations is to _inaugurate a custom_ of
confining court practice to a comparatively limited number of trained
trial lawyers.
The distinction between general practitioners and specialists is already
established in the medical profession and largely accepted by the
public. Who would think nowadays of submitting himself to a serious
operation at the hands of his family physician, instead of calling in an
experienced surgeon to handle the knife? And yet the family physician
may have once been competent to play the part of surgeon, and doubtless
has had, years ago, his quota of hospital experience. But he so
infrequently enters the domain of surgery that he shrinks from
undertaking it, except under circumstances where there is no
alternative. There should be a similar distinction in the legal
profession. The family lawyer may have once been competent to conduct
the litigation; but he is out of practice--he is not "in training" for
the competition.
There is no short cut, no royal road to proficiency, in the art of
advocacy. It is experience, and one might almost say experience alone,
that brings success. I am not speaking of that small minority of men in
all walks of life who have been touched by the magic wand of genius, but
of men of average endowments and even special aptitude for the calling
of advocacy; with them it is a race of experience. The experienced
advocate can look back upon those less advanced in years or experience,
and rest content in the thought that they are just so many cases behind
him; that if he keeps on, with equal opportunities in court, they can
never overtake him. Some day the public will recognize this fact. But at
present, what does the ordinary litigant know of the advantages of
having counsel to conduct his case who is "at home" in the court room,
and perhaps even acquainted with the very panel of jurors before whom
his case is to be heard, through having already tried one or more cases
for other clients before the same men? How little can the ordinary
business man realize the value to himself of having a lawyer who
understands the habits of thought and of looking at evidence--the bent
of mind--of the very judge who is to preside at the trial of his case.
Not that our judges are not eminently fair-minded in the conduct of
trials; but they are men for all that, oftentimes very human men; and
the trial lawyer who knows his judge, starts with an advantage that the
inexperienced practitioner little appreciates. How much, too, does
experience count in the selection of the jury itself--one of the "fine
arts" of the advocate! These are but a few of the many similar
advantages one might enumerate, were they not apart from the subject we
are now concerned with--the skill of the advocate in conducting the
trial itself, once the jury has been chosen.
When the public realizes that a good trial lawyer is the outcome, one
might say of generations of witnesses, when clients fully appreciate the
dangers they run in intrusting their litigations to so-called "office
lawyers" with little or no experience in court, they will insist upon
their briefs being intrusted to those who make a specialty of court
practice, advised and assisted, if you will, by their own private
attorneys. One of the chief disadvantages of our present system will be
suddenly swept away; the court calendars will be cleared by speedily
conducted trials; issues will be tried within a reasonable time after
they are framed; the commercial cases, now disadvantageously settled out
of court or abandoned altogether, will return to our courts to the
satisfaction both of the legal profession and of the business community
at large; causes will be more skilfully tried--the art of
cross-examination more thoroughly understood.