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10 - Art of Cross-Examination by Francis Wellman · Art of Cross-Examination

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Speaker 1: Chapter ten of the Art of Cross Examination by Francis Wellman.
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Speaker 1: This LibriVox recording is in the public domain. Chapter ten.
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Speaker 1: Some Famous cross Examiners and their Methods. One of the
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Speaker 1: best ways to acquire the art of cross examination is
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Speaker 1: to study the methods of the great cross examiners, who
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Speaker 1: serve as models for the legal profession. Indeed, nearly every
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Speaker 1: great cross examiner attributes his success to the fact of
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Speaker 1: having had the opportunity to study the art of some
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Speaker 1: great advocate in actual practice. In view of the fact
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Speaker 1: also that a keen interest is always taken in the
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Speaker 1: personality and life sketches of great cross examiners, it has
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Speaker 1: seemed fitting to introduce some brief sketches of great cross examiners,
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Speaker 1: and to give some illustrations of their methods. Sir Charles Russell,
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Speaker 1: Lord Russell of Colohen, who died in February nineteen o one,
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Speaker 1: while he was Lord Chief Justice of England, was altogether
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Speaker 1: the most successful cross examiner of modern times. Lord Coleridge
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Speaker 1: said of him, while he was still practicing at the bar,
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Speaker 1: and on one side or the other in nearly every
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Speaker 1: important case tried. Russell is the biggest advocate of the century.
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Speaker 1: It has been said that his success in cross examination,
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Speaker 1: like his success in everything, was due to his force
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Speaker 1: of character. It was his striking personality, added to his
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Speaker 1: skill and adroitness, which seemed to give him his overwhelming
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Speaker 1: influence over the witnesses whom he cross examined. Russell is
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Speaker 1: said to have had a wonderful faculty for using the
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Speaker 1: brain and knowledge of other men. Others might possess a
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Speaker 1: knowledge of the subject far in excess of Russell, but
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Speaker 1: he had the reputation of being able to make that
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Speaker 1: knowledge valuable and use it in his examination of a
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Speaker 1: witness in a way altogether unexpected and unique. Unlike Rufus Choate,
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Speaker 1: the ruler of the twelve and by far the greatest
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Speaker 1: advocate of the century on this side of the water,
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Speaker 1: Russell read but little. He belonged to the category of
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Speaker 1: famous men who quote neither found nor pretended to find
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Speaker 1: any real solace in books. Unquote. With Choate, his library
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Speaker 1: of some eight thousand volumes was his home, and his
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Speaker 1: authors were the loves of his life. Choate used to
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Speaker 1: read at his meals and while walking in the streets,
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Speaker 1: for books were his only pastime. Neither was Russell a
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Speaker 1: great orator, while Choate was ranked as quote, the first
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Speaker 1: orator of his time in any quarter of the globe
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Speaker 1: where the English language was spoken, or who was ever
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Speaker 1: seen standing before a jury panel. Both Russell and Choate
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Speaker 1: were consummate actors. They were both men of genius in
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Speaker 1: their advocacy. Each knew the precise points upon which to seize.
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Speaker 1: Each watched every turn of the jury, knew at a
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Speaker 1: glance what was telling with them, knew how to use
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Speaker 1: to the best advantage every accident that might arise in
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Speaker 1: the progress of the case. Quote. One day, a junior
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Speaker 1: was taking a note in the orthodox fashion. Russell was
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Speaker 1: taking no note, but he was thoroughly on the alert,
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Speaker 1: glancing about the court, sometimes at the judge, sometimes at
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Speaker 1: the jury, sometimes at the witness or the council on
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Speaker 1: the other side. Suddenly he turned to the junior and said,
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Speaker 1: what are you doing taking a note? Was the answer,
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Speaker 1: What the devil do you mean by saying you are
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Speaker 1: taking a note? Why don't you watch the case? He
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Speaker 1: burst out. He had been watching the case. Something had
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Speaker 1: happened to make a change of front necessary, and he
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Speaker 1: wheeled his colleagues around, almost before they had time to
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Speaker 1: grasp the new situation. Russell's maxim for cross examination was quote,
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Speaker 1: goes straight at the witness and at the point throw
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Speaker 1: your cards on the table. Mere finesse English juries do
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Speaker 1: not appreciate unquote. Speaking of Russell's success as a cross examiner,
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Speaker 1: his biographer Barry O'Brien says, quote, it was a fine
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Speaker 1: sight to see him rise to cross examine. His very
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Speaker 1: appearance must have been a shock to the witness. The
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Speaker 1: manly defiant bearing, the noble brow, the haughty look, the
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Speaker 1: remorseless mouth, those deep set eyes widely opened, and that
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Speaker 1: searching glance which pierced the very soul. Russell said, a
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Speaker 1: member of the Northern Circuit produced the same effect on
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Speaker 1: a witness that a cobra produces on a rabbit. In
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Speaker 1: a certain case, he appeared on the wrong side. Thirty
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Speaker 1: two witnesses were called, thirty one on the wrong side
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Speaker 1: and one on the right side. Not one of the
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Speaker 1: thirty one was broken down in cross examination, but the
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Speaker 1: one on the right side was utterly annihilated by Russell.
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Speaker 1: How is Russell getting on? A friend, asked one of
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Speaker 1: the judges of the Parnell Commission. During the days of
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Speaker 1: Piggot's cross examination, Master Charlie is bowling very straight, was
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Speaker 1: the answer. Master Charlie always bowled very straight, and the
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Speaker 1: man at the wicked generally came to grief. I have
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Speaker 1: myself seen him approach a witness with great gentleness of
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Speaker 1: a lion, reconnoitering his prey. I have also seen him
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Speaker 1: fly at a witness with the fierceness of a tiger.
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Speaker 1: But gentle or fierce, he must have always looked a
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Speaker 1: very ugly object to the man who had gone into
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Speaker 1: the box to lie rufus. Choate had little of Russell's
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Speaker 1: natural force with which to command his witnesses. His effort
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Speaker 1: was to magnetize. He was called the wizard of the
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Speaker 1: court room. He employed an entirely different method in his
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Speaker 1: cross examinations. He never assaulted a witness as if determined
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Speaker 1: to browbeat him. Quote. Commenting once on the cross examination
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Speaker 1: of a certain eminent counselor at the Boston Bar, with
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Speaker 1: decided disapprobation, Choate said, this man goes at a witness
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Speaker 1: in such a way that he inevitably gets the jury
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Speaker 1: all on the side of the witness. I do not,
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Speaker 1: he added, think that is a good plan. His own
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Speaker 1: plan was far more wary, intelligent, and circumspect. He had
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Speaker 1: a profound knowledge of human nature, of the springs of
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Speaker 1: human action, of the thoughts of human hearts. To get
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Speaker 1: at these and make them patent to the jury, he
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Speaker 1: would ask only a few telling questions, a very few questions,
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Speaker 1: but generally every one of them was fired point blank
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Speaker 1: and hit the mark. His motto was, never cross examine
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Speaker 1: any more than is absolutely necessary. If you don't break
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Speaker 1: your witness, he breaks you. He treated every man who
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Speaker 1: appeared like a fair and honest person on the stand,
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Speaker 1: as if upon the presumption that he was a gentleman.
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Speaker 1: And if a man appeared badly, he demolished him, but
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Speaker 1: with the air of a surgeon for forming a disagreeable amputation,
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Speaker 1: as if he was profoundly sorry for the necessity. Few men,
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Speaker 1: good or bad, ever, cherished any resentment against Choate for
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Speaker 1: his cross examination of them. His whole style of address
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Speaker 1: to the occupants of the witness stand was soothing, kind
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Speaker 1: and reassuring. When he came down heavily to crush a witness,
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Speaker 1: it was with a calm, resolute decision, but no asperity,
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Speaker 1: nothing curt nothing tart unquote. Chot's idea of the proper
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Speaker 1: length of an address to a jury was that quote.
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Speaker 1: A speaker makes his impression if he ever makes it
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Speaker 1: in the first hour, sometimes in the first fifteen minutes.
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Speaker 1: For if he has a proper and firm grasp of
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Speaker 1: his case, he then puts forth the outline of his
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Speaker 1: grounds of argument. He plays the over which hints at
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Speaker 1: or announces all the heirs of the upcoming opera. All
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Speaker 1: the rest is mere filling up answering objections, giving one
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Speaker 1: juryman little arguments with which to answer the objections of
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Speaker 1: his fellows, et cetera. Indeed, this may be taken as
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Speaker 1: a fixed rule that the popular mind can never be
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Speaker 1: vigorously addressed, deeply moved and stirred and fixed, more than
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Speaker 1: one hour in any single address. What Choate was to America,
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Speaker 1: and Erskine and later Russell to England, John Philpot Curran
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Speaker 1: was to Ireland. He ranked as a jury lawyer next
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Speaker 1: to Erskine. The son of a peasant, he became Master
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Speaker 1: of Rods for Ireland in eighteen o six. He had
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Speaker 1: a small, slim body, a stuttering, harsh, shrill voice, originally
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Speaker 1: of such a diffident nature that in the midst of
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Speaker 1: his first case, he became speechless and dropped his brief
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Speaker 1: to the floor. And yet by perseverance and experience he
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Speaker 1: became one of the most eloquent and powerful forensic advocates
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Speaker 1: of the world. As a cross examiner, it was said
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Speaker 1: of Kurran that he could unravel the most ingenious web
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Speaker 1: which perjury ever spun. He could seize on every fault
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Speaker 1: and inconsistency and build on them a denunciation terrible in
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Speaker 1: its earnestness. It was said of Scarlet, Lord Abinger, that
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Speaker 1: he won his cases because there were twelve Sir James
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Speaker 1: Scarlets in the jurybox. He became one of the leading
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Speaker 1: jury lawyers of his time so far as winning verdicts
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Speaker 1: was concerned. Scarlet used to wheedle the juries over the
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Speaker 1: weak places in his case, would rush them right over
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Speaker 1: with that enthusiasm which he put into everything. With fire
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Speaker 1: in his eye and fury on his tongue, Scarlet would
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Speaker 1: level himself right down to each juryman while he flattered
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Speaker 1: and won them in his cross examinations. He would take
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Speaker 1: those he had to examine, as it were, by the
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Speaker 1: hand made them. His friends entered into familiar conversation with them,
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Speaker 1: encouraged them to tell him what would best answer his purpose,
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Speaker 1: and thus secured a victory without appearing to commence a conflict.
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Speaker 1: A story is told about Scarlet by Justice Whiteman, who
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Speaker 1: was leaving his court one day and found himself walking
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Speaker 1: in a crowd alongside a countryman whom he had seen
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Speaker 1: day by day serving as a juryman, and to whom
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Speaker 1: he could not help speaking. Liking the look of the man,
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Speaker 1: and finding that this was the first occasion on which
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Speaker 1: he had been at the court, Judge Whiteman asked him
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Speaker 1: what he thought of the leading council. Well, said the
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Speaker 1: countryman that Lawyer Brahm be a wonderful man. He can talk,
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Speaker 1: he can, but I don't think nowt of Lawyer Scarlet. Indeed,
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Speaker 1: exclaimed the judge. You surprise me, for you have given
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Speaker 1: him all the verdicts. Oh there's not in that was
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Speaker 1: the reply. He be so lucky, you see, he be
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Speaker 1: always on the right side. Chot also had a way
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Speaker 1: of getting himself into the jury box, and has been
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Speaker 1: known to address a single juryman who he feared was
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Speaker 1: against him for an hour at a time after he
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Speaker 1: had piled up proof and persuasion altogether. One of his
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Speaker 1: favorite expressions was, but this is only half my case, gentlemen,
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Speaker 1: I go now to the main body of my proofs.
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Speaker 1: Like Scarlett, Erskine was of medium height and slender, but
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Speaker 1: he was handsome and magnetic, quick and nervous. His motions
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Speaker 1: resembled those of a blood horse, as light as limber,
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Speaker 1: as much betokening strength and speed. He too, lacked the
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Speaker 1: advantage of a college education, and was at first painfully
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Speaker 1: unready of speech in his maiden effort. He would have
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Speaker 1: abandoned his case had he not felt, as he said,
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Speaker 1: that his children were tugging at his gown. In later years,
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Speaker 1: Chote once said of him he spoke the best English
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Speaker 1: ever spoken by an advocate. Once, when the presiding judge
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Speaker 1: threatened to commit him for contempt, he replied, your lordship
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Speaker 1: may proceed in what manner you think fit. I know
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Speaker 1: my duty as well as your lordship knows yours. His
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Speaker 1: simple grace of diction, quiet and natural passion was in
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Speaker 1: marked contrast to rufus Choate, whose delivery has been described
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Speaker 1: as a musical flow of rhythm and cadence, more like
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Speaker 1: a long, rising and swelling song than a talk or
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Speaker 1: an argument to one of his clients, who was dissatisfied
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Speaker 1: with Erskine's efforts in his behalf, and who had written
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Speaker 1: his counselor on a slip of paper, I'll be hanged
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Speaker 1: if I don't plead my own cause. Erskine quietly replied,
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Speaker 1: You'll be hanged if you do. Erskine boasted that in
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Speaker 1: twenty years he had never been kept a day from
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Speaker 1: court by ill health. And it is said of Curran
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Speaker 1: that he has been known to rise before a jury
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Speaker 1: after recession of sixteen hours, with only twenty minutes intermission,
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Speaker 1: and make one of the most memorable arguments of his life.
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Speaker 1: Among the more modern advocates of the English Sir Henry
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Speaker 1: Hawkins stands out conspicuously. He is reputed to have taken
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Speaker 1: more money away with him from the bar than any
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Speaker 1: man of his generation. His leading characteristic when at the
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Speaker 1: bar was his marvelous skill in cross examination. He was
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Speaker 1: associated with Lord Coleridge in the first Tickborne trial, and
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Speaker 1: in his cross examination of the witnesses Bannier and Carter,
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Speaker 1: he made his reputation as the foremost cross examiner in
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Speaker 1: the world. Sir Richard Webster was another great cross examiner.
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Speaker 1: He is said to have received one hundred thousand dollars
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Speaker 1: for his services in the trial before the Parnell Special Commission,
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Speaker 1: in which he was opposed to Sir Charles Russell Rufus.
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Speaker 1: Choate said of Daniel Webster that he considered him the
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Speaker 1: grandest lawyer in the world, and on his death bed
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Speaker 1: Webster called Choate the most brilliant man in America. Parker
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Speaker 1: relates an episode characteristic of the clashing of swords between
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Speaker 1: these two idols of the American bar. Quote. We heard
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Speaker 1: Webster once in a sentence and a look, crush an
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Speaker 1: hour's argument of Choate's curious workmanship. It was most intellectually
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Speaker 1: wire drawn and hair splitting, with Grecian sophistry and a
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Speaker 1: subtlety the Leantine Georgius might have envied. It was about
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Speaker 1: two car wheels, which to common eye looked as like
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Speaker 1: two eggs. But mister Choate, by a fine line of
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Speaker 1: argument between tweedled dumb and tweedledee, and a discourse on
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Speaker 1: the fixation of points so deep and fine as to
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Speaker 1: lose itself in obscurity, showed the jury there was a
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Speaker 1: heaven wide difference between them. But said mister Webster, and
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Speaker 1: his great eyes opened wide and black, as he stared
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Speaker 1: at the big twin wheels before him. Gentlemen of the jury,
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Speaker 1: there they are look at him. And as he pronounced
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Speaker 1: this answer in tones of vast volume, the distorted wheels
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Speaker 1: seemed to shrink back again into their original similarity, and
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Speaker 1: the long argument on the fixation of points died a
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Speaker 1: natural death. It was an example of the ascendancy of
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Speaker 1: mere character over mere intellectuality, but so much greater, nevertheless,
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Speaker 1: the intellectuality Jeremiah Mason was quite on a par with
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Speaker 1: either Chote or Webster before a jury. His style was
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Speaker 1: conversational and plain. He was no orator. He would go
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Speaker 1: close up to the jury box and in the plainest
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Speaker 1: possible logic, force conviction upon him his hearers. Webster said
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Speaker 1: he owed his own success to the close attention he
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Speaker 1: was compelled to pay for nine successive years, day by day,
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Speaker 1: to Mason's efforts at the same bar as a cross examiner,
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Speaker 1: he had no peer at the New England Bar. In
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Speaker 1: the history of our own New York bar, there have
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Speaker 1: been probably but few equals of Judge William Fullerton. As
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Speaker 1: a cross examiner, he was famous for his calmness and
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Speaker 1: mildness of manner, his rapid repeated questions, his sallies of
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Speaker 1: wit interwoven with his questions, and an ingenuity of method
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Speaker 1: quite his own. Fullerton's cross examinations in the celebrated Tilton
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Speaker 1: versus Henry Ward Beecher case gave him an international reputation
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Speaker 1: and were considered the best ever heard in this country.
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Speaker 1: And yet these very examinations, laborious and brilliant, were singularly
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Speaker 1: unproductive of results, owing probably to the unusual intelligence and
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Speaker 1: shrewdness of the witnesses themselves. The trial as a whole
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Speaker 1: was by far the most celebrated of its kind the
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Speaker 1: New York courts have ever witnessed. One of the most
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Speaker 1: eminent of Christian preachers was charged with using the persuasive
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Speaker 1: powers of his eloquence, strengthened by his religious influence, to
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Speaker 1: alienate the affections and destroy the probity of a member
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Speaker 1: of his church, a devout and theretofore pure souled woman,
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Speaker 1: the wife of a long loved friend. He was charged
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Speaker 1: with continuing the guilty relation during the period of a
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Speaker 1: year and a half, and of cloaking the offense to
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Speaker 1: his own conscience and to hers under specious words of piety,
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Speaker 1: invoking first divine blessing on it and then divine guidance
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Speaker 1: out of it, and finally of adding perjury to seduction
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Speaker 1: in order to escape the consequences his accusers. Moreover, mister
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Speaker 1: Tilton and mister Moulton were persons of public reputation and
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Speaker 1: honorable station in life. The length and complexity of Fullerton's
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Speaker 1: cross examinations preclude any minute mention of them here. Once,
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Speaker 1: when he found fault with mister Beecher for not answering
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Speaker 1: his questions more freely and directly, the reply was frankly made,
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Speaker 1: I am afraid of you. While cross examining Beecher about
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Speaker 1: the celebrated ragged letter, Fullerton asked why he had not
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Speaker 1: made an explanation to the church if he was innocent.
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Speaker 1: Beecher answered that he was keeping his part of the
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Speaker 1: compact of silence, and added that he did not believe
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Speaker 1: the others were keeping theirs. There was audible laughter throughout
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Speaker 1: the courtroom at this remark, and Judge Nilsen ordered the
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Speaker 1: court officer to remove from the courtroom any person found offending,
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Speaker 1: except the council spoke up, mister Fullerton. Later, the cross
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Speaker 1: examiner exclaimed impatiently to mister Beecher that he was bound
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Speaker 1: to find out all about these things before he got through,
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Speaker 1: to which Beecher retorted, I don't think you are succeeding
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Speaker 1: very well, mister Fullerton, in a voice like thunder. Why
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Speaker 1: did you not rise up and deny the charge, mister Beecher,
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Speaker 1: putting into his voice all that marvelous magnetic force which
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Speaker 1: so distinguished him from other men of his time, Mister Fullerton,
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Speaker 1: that is not my habit of mind, nor my manner
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Speaker 1: of dealing with men and things, mister Fullerton. So I
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Speaker 1: observe you say that Theodore Tilton's charge of intimacy with
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Speaker 1: his wife, and the charges made by your church and
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Speaker 1: by the committee of your church, made no impression on you,
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Speaker 1: mister Beecher. Shortly, not the slightest. At this juncture, mister
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Speaker 1: Thomas G. Sherman, Beecher's personal counsel, jumped to his client's aid,
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Speaker 1: and remarked that it was a singular coincidence that when
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Speaker 1: counsel had not the record before him, he never quoted correctly.
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Speaker 1: Mister Fullerton, addressing the court impressively, when mister Sherman is
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Speaker 1: not impertinent. He is nothing in this case. Judge Nielsen
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Speaker 1: to the rescue. Probably counsel thought, mister Fullerton, interrupting, what
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Speaker 1: mister Sherman thinks your honor cannot possibly be of sufficient
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Speaker 1: importance to take up the time either of the Court
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Speaker 1: or opposing council. Are you in the habit of having
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Speaker 1: your sermons published, continued mister Fullerton. Mister Beacher acknowledged that
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Speaker 1: he was, and also that he had preached a sermon
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Speaker 1: on the nobility of confession. Mister Sherman sarcastically, I hope
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Speaker 1: mister Fullerton is not going to preach us a sermon.
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Speaker 1: Mister Fullerton, I would do so if I thought I
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Speaker 1: could convert Brother Sherman. Mister Beecher quietly, I will be
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Speaker 1: happy to give you the use of my pulpit, mister Fullerton, laughing,
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Speaker 1: Brother Sherman is the only audience I shall want. Mister
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Speaker 1: Beecher sarcastically, Perhaps he is the only audience you can get,
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Speaker 1: mister Fullerton. If I succeed in converting brother Sherman, I
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Speaker 1: will consider my work as a Christian minister complete. Mister
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Speaker 1: Fullerton then read a passage from the sermon, the effect
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Speaker 1: of which was that if a person commits a great sin,
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Speaker 1: and the exposure of it would cause misery, such a
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Speaker 1: person would not be justified in confessing it merely to
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Speaker 1: relieve his own conscience. Mister Beecher admitted that he still
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Speaker 1: considered that sound doctrine. At this point, mister Fullerton turned
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Speaker 1: to the court and, pointing to the clock, said, nothing
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Speaker 1: comes after the sermon, I believe, but the benediction. His
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Speaker 1: honor took the hint, and the proceedings adjourned. In this
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Speaker 1: same trial, the Honorable William M. Evarts, as leading counsel
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Speaker 1: for mister Beecher, heightened his already international reputation as an advocate.
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Speaker 1: It was mister Evarts's versatility and the Beecher case that
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Speaker 1: occasioned so much comment. Whether he was examining in chief
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Speaker 1: or on cross, in the discussion of points of evidence,
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Speaker 1: or in the summing up, he displayed equally his masterly talents.
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Speaker 1: His cross examination of Theodore Tilton was a masterpiece. His
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Speaker 1: speeches in court were clear, calm, and logical. Mister Evarts
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Speaker 1: was not only a great lawyer, but an orator and
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Speaker 1: statesman of the highest distinction. He has been called the
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Speaker 1: Prince of the American bar. He was a gentleman of
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Speaker 1: high scholarship and fine literary tastes. His manner in the
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Speaker 1: trial of a case has been described by someone as
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Speaker 1: all head, nose, voice, and forefinger. He was five feet
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Speaker 1: seven inches tall, thin and slender, with a face like parchment.
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Speaker 1: Mister Joseph H. Choate once told me he considered that
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Speaker 1: he owed his own success in court to the nine
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Speaker 1: years during which he acted as mister Evarts Junior in
25:47
Speaker 1: the trial of cases. No one but mister Choate himself
25:51
Speaker 1: would have said this. His transcendent genius as an advocate
25:56
Speaker 1: could not have been acquired from any tutelage under mister Evarts.
26:01
Speaker 1: When mister Choad accepted his appointment as ambassador to the
26:05
Speaker 1: Court of Saint James, he retired from the practice of law,
26:10
Speaker 1: and it is therefore permissible to comment upon his marvelous
26:13
Speaker 1: talents as a jury lawyer. He was not only easily
26:18
Speaker 1: the leading trial lawyer of the New York Bar, but
26:22
Speaker 1: was by many thought to be the representative lawyer of
26:25
Speaker 1: the American bar. Surely, no man of his time was
26:30
Speaker 1: more successful in winning juries. His career was one uninterrupted success.
26:37
Speaker 1: Not that he shown, especially in any particular one of
26:41
Speaker 1: the duties of the trial lawyer, but he was pre
26:44
Speaker 1: eminent in the quality of his humor and keenness of satire.
26:49
Speaker 1: His whole conduct of a case, his treatment of witnesses,
26:53
Speaker 1: of the court, of opposing counsel, and especially of the jury,
26:57
Speaker 1: were so irresistibly fascinated and winning that he carried everything
27:03
Speaker 1: before him. One could emerge from a three weeks contest
27:07
Speaker 1: with Choate in a state almost of mental exhilaration despite
27:12
Speaker 1: the jury's verdict. It was not so with the late
27:16
Speaker 1: Edward C. James. A contest with him meant great mental
27:21
Speaker 1: and physical fatigue for his opponent. James was ponderous and indefictigable.
27:28
Speaker 1: His cross examinations were labored in the extreme. His manner
27:32
Speaker 1: as an examiner was dignified and forceful, his mind always
27:36
Speaker 1: alert and centered on the subject before him. But he
27:40
Speaker 1: had none of mister Choate's fascination or brilliancy. He was dogged, determined, heavy.
27:48
Speaker 1: He would pound at you incessantly, but seldom reached the mark.
27:53
Speaker 1: He literally wore out his opponent and could never realize
27:58
Speaker 1: that he was on the wrong side. Of a case
28:01
Speaker 1: until the foreman of the jury told him so. Even
28:04
Speaker 1: then he would want the jury polled to see if
28:07
Speaker 1: there was not some mistake. James never smiled except in
28:11
Speaker 1: triumph and when his opponent frowned. When mister Choate smiled,
28:16
Speaker 1: you couldn't help smiling with him. During the last ten
28:20
Speaker 1: years of his life, James was found on one side
28:23
Speaker 1: or the other of most of the important cases that
28:26
Speaker 1: were tried. He owed his success to his industrious and
28:31
Speaker 1: indefatigable qualities as a fighter, not I think to his art.
28:37
Speaker 1: James T. Brady was called the current of the New
28:40
Speaker 1: York Bar. His success was almost entirely due to his
28:44
Speaker 1: courtesy and the marvelous skill of his cross examinations. He
28:49
Speaker 1: had a serene, captivating manner in court and was one
28:53
Speaker 1: of the foremost orators of his time. He has the
28:57
Speaker 1: proud record of having defended fifty men on trial for
29:01
Speaker 1: their lives, and of saving every one of them from
29:05
Speaker 1: the gallows. On the other hand, William A. Beach, the
29:10
Speaker 1: Hamlet of the American Bar, was a poor cross examiner.
29:15
Speaker 1: He treated all his witnesses alike. He was methodical, but
29:19
Speaker 1: of a domineering manner. He was slow to attune himself
29:23
Speaker 1: to an unexpected turn in a case he might be conducting.
29:28
Speaker 1: He lost many cases and was not fitted to conduct
29:31
Speaker 1: a desperate one. It was as a court orator that
29:36
Speaker 1: he was preeminent. His speech in the Beecher case alone
29:41
Speaker 1: would have made him a reputation as a consummate orator.
29:45
Speaker 1: His vocabulary was surprisingly rich, and his voice wonderfully winning.
29:51
Speaker 1: It is said of James W. Gerrard the Elder that
29:54
Speaker 1: quote he obtained the greatest number of verdicts against evidence
29:59
Speaker 1: of any on one who ever practiced at the New
30:02
Speaker 1: York Bar. He was full of expedients and possessed extraordinary
30:07
Speaker 1: tact in his profound knowledge of human nature, and his
30:11
Speaker 1: ready adaptation in the conduct of trials to the peculiarities, caprices,
30:17
Speaker 1: and whims of the different juries before whom he appeared.
30:21
Speaker 1: He was almost without arrival. Any One who witnessed the
30:26
Speaker 1: telling hits made by mister Gerard on cross examination, and
30:30
Speaker 1: the sensational incidents sprung by him upon his opponents, the
30:35
Speaker 1: court and the jury would have thought that he acted
30:38
Speaker 1: upon the inspiration of the moment, that all he did
30:42
Speaker 1: and all he said was impromptu. In fact, mister Gerard
30:47
Speaker 1: made thorough preparation for trial. Generally, his hits and cross
30:52
Speaker 1: examination were the result of previous preparation. He made briefs
30:57
Speaker 1: for cross examination to a large extent. His flashes of wit,
31:02
Speaker 1: and his extraordinary and grotesque humor were well pondered over
31:08
Speaker 1: and studied up beforehand. Justice Miller said of Roscoe Conkling
31:14
Speaker 1: that he was one of the greatest men intellectually of
31:17
Speaker 1: his time. He was more than fifty years of age
31:22
Speaker 1: when he abandoned his arduous public service at Washington and
31:26
Speaker 1: opened an office in New York City. During his six
31:30
Speaker 1: years at the New York Bar, such was his success
31:33
Speaker 1: that he is reputed to have accumulated, for a lawyer
31:37
Speaker 1: a very large fortune. He constituted himself a barrister and
31:42
Speaker 1: adopted the plan of acting only as counsel. He was
31:46
Speaker 1: fluent and eloquent of speech, most thorough in the preparation
31:51
Speaker 1: of his cases, and an accomplished cross examiner. Despite his
31:55
Speaker 1: public career, he said of himself, my proper play is
32:00
Speaker 1: to be before twelve men in the box. Conkling used
32:05
Speaker 1: to study for his cross examinations in important cases with
32:09
Speaker 1: the most painstaking minuteness in the trial of the Reverend
32:14
Speaker 1: Henry Burge for murder. Conklin saw that the case was
32:18
Speaker 1: likely to turn upon the cross examination of doctor Swinburne,
32:22
Speaker 1: who had performed the autopsy. The charge of the prosecution
32:27
Speaker 1: was that missus Burgee had been strangled by her husband,
32:30
Speaker 1: who had then cut her throat. In order to disprove
32:34
Speaker 1: this on cross examination, mister Conkling procured a body for
32:39
Speaker 1: dissection and had dissected in his presence the parts of
32:44
Speaker 1: the body that he wished to study. As the result
32:48
Speaker 1: of doctor Swinburne's cross examination at the trial, the presiding
32:52
Speaker 1: judge felt compelled to declare the evidence so entirely untrustworthy
32:59
Speaker 1: that he would declined to submit it to the jury,
33:02
Speaker 1: and directed that the prisoner be set at liberty. This
33:07
Speaker 1: studious preparation for cross examination was one of the secrets
33:11
Speaker 1: of the success of Benjamin F. Butler. He was once
33:15
Speaker 1: known to have spent days in examining all parts of
33:19
Speaker 1: a steam engine, and even learning to drive one himself,
33:23
Speaker 1: in order to cross examine some witnesses and an important
33:27
Speaker 1: case in which he had been retained. At another time,
33:30
Speaker 1: Butler spent a week in the repair shop of a
33:33
Speaker 1: railroad part of the time with Kotoff and hammer in hand,
33:38
Speaker 1: ascertaining the capabilities of iron to resist pressure, a point
33:43
Speaker 1: on which his case turned. To use his own language, quote,
33:47
Speaker 1: A lawyer who sits in his office and prepares his
33:51
Speaker 1: cases only by the statements of those who are brought
33:54
Speaker 1: to him will be very likely to be beaten. Lawyer
34:00
Speaker 1: in full practice, who carefully prepares his cases must study
34:05
Speaker 1: almost every variety of business and many of the sciences.
34:11
Speaker 1: A pleasant humor and a lively wit, coupled with wonderful
34:14
Speaker 1: thoroughness and acuteness, were Butler's leading characteristics. He was not
34:20
Speaker 1: a great lawyer, not even a great advocate like Rufus Choate,
34:25
Speaker 1: and yet he would frequently defeat Choate. His cross examination
34:29
Speaker 1: was his chief weapon. Here he was fertile in resource
34:33
Speaker 1: and stratagem to a degree attained by few others. Choate
34:38
Speaker 1: had mastered all the little tricks of the trial lawyer,
34:42
Speaker 1: but he attained also to the grander thoughts and the
34:45
Speaker 1: logical powers of the really great advocate. Butler's success depended
34:51
Speaker 1: upon zeal combined with shrewdness and not over conscientious trickery.
34:58
Speaker 1: In his autobiography, Butler gives several examples of what he
35:03
Speaker 1: was pleased to call his ledger domain and to believe
35:07
Speaker 1: were illustrations of his skill as a cross examiner. They
35:11
Speaker 1: are quoted from Butler's book, but are not reprinted as
35:15
Speaker 1: illustrations of the subtler forms of cross examination, but rather
35:21
Speaker 1: as indicative of the tricks to which Butler owed much
35:24
Speaker 1: of his success before country juries. When I was quite
35:29
Speaker 1: a young man, I was called upon to defend a
35:31
Speaker 1: man for homicide. He and his associate had been engaged
35:35
Speaker 1: in a quarrel which proceeded to blows and at last
35:39
Speaker 1: to stones. My client, with a sharp stone, struck the
35:43
Speaker 1: deceased in the head on that part usually called the temple.
35:48
Speaker 1: The man went and sat down on the curbstone, the
35:51
Speaker 1: blood streaming from his face, and shortly afterward fell over dead.
35:57
Speaker 1: The theory of the government was that he died from
35:59
Speaker 1: the war wound in the temporal artery. My theory was
36:03
Speaker 1: that the man died of apoplexy, and that if he
36:07
Speaker 1: had bled more from the temporal artery, he might have
36:10
Speaker 1: been saved. A wide enough difference in the theories of
36:14
Speaker 1: the cause of death, of course, to be enabled to
36:17
Speaker 1: carry out my proposition. I must know all about the
36:21
Speaker 1: temporal artery, its location, its functions, its capabilities to allow
36:26
Speaker 1: the blood to pass through it, and in how short
36:29
Speaker 1: a time a man could bleed to death through the
36:31
Speaker 1: temporal artery. Also how far excitement in a body stirred
36:36
Speaker 1: almost too frenzy in an embittered conflict, and largely under
36:41
Speaker 1: the influence of liquor on a hot day, would tend
36:44
Speaker 1: to produce apoplexy. I was relieved on these two points
36:49
Speaker 1: in my subject, but relied wholly upon the testimony of
36:53
Speaker 1: a surgeon that the man bled to death from the
36:56
Speaker 1: cut on the temporal artery from a stone in the
36:59
Speaker 1: hands of my client. That surgeon was one of those
37:04
Speaker 1: whom we sometimes see on the stand who think that
37:07
Speaker 1: what they don't know on the subject of their profession
37:11
Speaker 1: is not worth knowing. He testified positively and distinctly that
37:16
Speaker 1: there was and could be no other cause for death
37:20
Speaker 1: except the bleeding from the temporal artery, and he described
37:25
Speaker 1: the action of the bleeding and the amount of blood discharged.
37:29
Speaker 1: Upon all these questions I had thoroughly prepared myself. Mister Butler, doctor,
37:35
Speaker 1: you have talked a great deal about the temporal artery. Now,
37:39
Speaker 1: will you please describe it and its functions? I suppose
37:43
Speaker 1: the temporal artery is so called because it supplies the
37:46
Speaker 1: flesh on the outside of the skull, especially that part
37:51
Speaker 1: we call the temples with blood. Witness. Yes, that is so,
37:56
Speaker 1: mister Butler. Very well. Where does the temporal artery take
38:01
Speaker 1: its rise in the system? Is it at the heart? Witness? No?
38:06
Speaker 1: The aorta is the only artery leaving the heart which
38:10
Speaker 1: carries blood toward the head branches from it carried the
38:14
Speaker 1: blood up through the opening into the skull at the neck,
38:17
Speaker 1: and the temporal artery branches from one of these, Mister Butler.
38:22
Speaker 1: Where does it branch off from it? On the inside
38:25
Speaker 1: or the outside of the skull? Witness on the inside,
38:30
Speaker 1: mister Butler. Does it have anything to do inside with
38:33
Speaker 1: supplying the brain? Witness no, mister Butler. Well, Doctor, how
38:40
Speaker 1: does it get outside to supply the head and temples? Witness? Oh?
38:45
Speaker 1: It passes out through an appropriate opening in the skull,
38:48
Speaker 1: Mister Butler. Is that through the eyes? Witness No, mister Butler.
38:53
Speaker 1: The ears Witness no, mister Butler. It would be inconvenient
38:59
Speaker 1: to go through the mountain, would it not, Doctor? Here
39:02
Speaker 1: I produced from my green bag a skull. I cannot
39:06
Speaker 1: find any opening on this skull which I think is
39:09
Speaker 1: appropriate to the temporal artery. Will you please point out
39:13
Speaker 1: the appropriate opening through which the temporal artery passes from
39:17
Speaker 1: the inside to the outside of the skull. He was
39:21
Speaker 1: utterly unable so to do. Doctor, I don't think I
39:26
Speaker 1: will trouble you any further. You can step down. He
39:29
Speaker 1: did so, and my client's life was saved. On that point.
39:34
Speaker 1: The temporal artery doesn't go inside the skull at all.
39:39
Speaker 1: I had a young client who was on a railroad
39:42
Speaker 1: car when it was derailed by a broken switch. The
39:45
Speaker 1: car ran at considerable speed over the cross ties for
39:49
Speaker 1: some distance, and my client was thrown up and down
39:52
Speaker 1: with great violence on his seat. After the accident, when
39:56
Speaker 1: he recovered from the bruising, it was found that his
40:00
Speaker 1: nervous system had been wholly shattered, and that he could
40:04
Speaker 1: not control his nerves in the slightest degree by any
40:07
Speaker 1: act of his will. When the case came to trial,
40:11
Speaker 1: the production of the pin by which the position of
40:14
Speaker 1: the switch was controlled two thirds worn away and broken off,
40:19
Speaker 1: settled the liability of the road for any damages that
40:23
Speaker 1: occurred from that cause, and the case resolved itself into
40:27
Speaker 1: a question of the amount of damages. Only. My claim
40:31
Speaker 1: was that my client's condition was an incurable one arising
40:36
Speaker 1: from the injury to the spinal cord. The claim put
40:40
Speaker 1: forward on behalf of the Railroad was that it was
40:42
Speaker 1: simply nervousness, which probably would disappear in a short time.
40:48
Speaker 1: The surgeon who appeared for the Road claimed the privilege
40:51
Speaker 1: of examining my client personally before he should testify, and
40:55
Speaker 1: did not care to object to that. And the doctor
40:58
Speaker 1: who was my witness, and the Railroad surgeon went into
41:02
Speaker 1: the consultation room together and had a full examination in
41:06
Speaker 1: which I took no part, having looked into that matter before.
41:11
Speaker 1: After some substantially immaterial matters on the part of the defense,
41:16
Speaker 1: the surgeon was called and qualified as a witness. He
41:19
Speaker 1: testified that he was a man of great position in
41:22
Speaker 1: his profession. Of course, in that I was not interested,
41:26
Speaker 1: for I knew he could qualify himself as an expert.
41:30
Speaker 1: In his direct examination, he spent a good deal of
41:33
Speaker 1: the time in giving a very learned and somewhat technical
41:37
Speaker 1: description of the condition of my client. He admitted that
41:41
Speaker 1: my client's nervous system was very much shattered, but he
41:44
Speaker 1: also stated that it would probably be only temporary. Of
41:48
Speaker 1: all this, I took little notice for, to tell the truth,
41:52
Speaker 1: I had been up quite late the night before, and
41:54
Speaker 1: in the warm court room felt a little sleepy. But
41:58
Speaker 1: the Council for the Road put this question to him, doctor,
42:02
Speaker 1: to what do you attribute this condition of the plaintiff
42:05
Speaker 1: which you describe hysteria? Sir? He is hysterical? That waked
42:12
Speaker 1: me up? I said, doctor. Did I understand I was
42:16
Speaker 1: not paying proper attention to what did you attribute this
42:20
Speaker 1: nervous condition of my client hysteria? Sir? I subsided, and
42:25
Speaker 1: the examination went on until it came my turn to
42:29
Speaker 1: cross examine, mister Butler. Do I understand that you think
42:33
Speaker 1: this condition of my client wholly hysterical? Witness, Yes, sir, undoubtedly,
42:41
Speaker 1: mister Butler, and therefore won't last long, Witness, No, Sir,
42:46
Speaker 1: not likely to mister Butler. Well, doctor, let us see.
42:51
Speaker 1: Is not the disease called hysteria and its effects hysterics?
42:56
Speaker 1: And isn't it true that hysteria, hysterics, hysterical all come
43:00
Speaker 1: from the Greek word witness? It may be, mister Butler,
43:06
Speaker 1: don't say it, may doctor, isn't It isn't an exact
43:11
Speaker 1: translation of the Greek word the English word womb witness.
43:17
Speaker 1: You are right, sir mister Butler. Well, doctor, this morning,
43:22
Speaker 1: when you examined this young man here pointing to my client,
43:26
Speaker 1: did you find that he had a womb? I was
43:29
Speaker 1: not aware of it before, but I will have him
43:32
Speaker 1: examined over again and see if I can find it.
43:35
Speaker 1: That is all, doctor, you may step down. Robert Ingersoll
43:40
Speaker 1: took part in numerous noted lawsuits in all parts of
43:43
Speaker 1: the country, but he was almost helpless in court without
43:47
Speaker 1: a competent junior. He was a born orator, if ever
43:52
Speaker 1: there was one. Henry Ward Beecher regarded him as the
43:56
Speaker 1: most brilliant speaker of the English tongue in any land
44:00
Speaker 1: on the globe. He was not a profound lawyer, however,
44:04
Speaker 1: and hardly the equal of the most mediocre trial lawyer
44:08
Speaker 1: in the examination of witnesses. On the art of cross
44:12
Speaker 1: examining witnesses, he knew practically nothing. His definition of a lawyer,
44:18
Speaker 1: to use his own words, was quote a sort of
44:22
Speaker 1: intellectual strumpet quote. My ideal of a great lawyer, he
44:27
Speaker 1: once wrote, is that great English attorney who accumulated a
44:32
Speaker 1: fortune of a million pounds and left it all in
44:36
Speaker 1: his will to make a home for idiots, declaring that
44:40
Speaker 1: he wanted to give it back to the people from
44:43
Speaker 1: whom he took it. Judge Walter H. Sanborn relates a
44:47
Speaker 1: conversation he had with Judge Miller of the United States
44:51
Speaker 1: Court about Ingersoll. Quote. Just after Colonel Ingersoll had concluded
44:57
Speaker 1: an argument before mister Justice Miller, while on circuit, I
45:01
Speaker 1: came into the court and remarked to Judge Miller that
45:04
Speaker 1: I wished I'd got there a little sooner, as I
45:07
Speaker 1: had never heard Colonel Ingersoll make a legal argument. Well,
45:12
Speaker 1: said Judge Miller, you never will. Ingersoll's genius lay in
45:17
Speaker 1: other directions. Who but Ingersoll could have written the following.
45:24
Speaker 1: A little while ago, I stood by the grave of
45:26
Speaker 1: the old Napoleon, a magnificent tomb of guilt and gold,
45:31
Speaker 1: fit almost for a dead deity, and gazed upon the
45:35
Speaker 1: sarcophagus of black marble, where rest at last the ashes
45:40
Speaker 1: of that restless man. I leaned over the balustrade and
45:44
Speaker 1: thought about the career of the greatest soldier of the
45:47
Speaker 1: modern world. I saw him walking upon the banks of
45:51
Speaker 1: the Seine, contemplating suicide. I saw him at Touloon. I
45:56
Speaker 1: saw him putting down the mob in the streets of Paris.
46:00
Speaker 1: I saw him at the head of the army in Italy.
46:03
Speaker 1: I saw him crossing the bridge of Lodi with the
46:06
Speaker 1: tricolor in his hand. I saw him in Egypt, in
46:09
Speaker 1: the shadows of the Pyramids. I saw him conquer the
46:13
Speaker 1: Alps and mingle the eagles of France with the eagles
46:16
Speaker 1: of the Crags. I saw him at Marengo, at Ulm
46:20
Speaker 1: and at Austerlitz. I saw him in Russia, where the
46:23
Speaker 1: infantry of the Snow and the cavalry of the wild
46:27
Speaker 1: Blast scattered his legions like winter's withered leaves. I saw
46:33
Speaker 1: him at Leipzic, in defeat and disaster, driven by a
46:37
Speaker 1: million bayonets, back upon Paris, clutched like a wild beast,
46:43
Speaker 1: banished to Elba. I saw him escape and retake an
46:47
Speaker 1: empire by the force of his genius. I saw him
46:51
Speaker 1: upon the frightful field of Waterloo, where chance and fate
46:55
Speaker 1: combined to wreck the fortunes of their former king. And
46:59
Speaker 1: I saw him at Saint Helena with his hands crossed
47:03
Speaker 1: behind him, gazing out upon the sad and solemn sea.
47:08
Speaker 1: I thought of the orphans and widows he had made,
47:12
Speaker 1: of the tears that had been shed for his glory,
47:15
Speaker 1: and of the only woman who had ever loved him,
47:18
Speaker 1: pushed from his heart by the cold hand of ambition.
47:22
Speaker 1: And I said, I would rather have been a French
47:25
Speaker 1: peasant and worn wooden shoes. I would rather have lived
47:30
Speaker 1: in a hut with a vine growing over the door,
47:33
Speaker 1: and the grapes growing purple in the kisses of the
47:36
Speaker 1: autumn sun. I would rather have been that poor peasant,
47:41
Speaker 1: with my loving wife by my side, knitting as the
47:44
Speaker 1: day died out of the sky, with my children upon
47:47
Speaker 1: my knees and their arms about me. I would rather
47:51
Speaker 1: have been that man and gone down to the tongueless
47:55
Speaker 1: silence of the dreamless dust, than to have been that
47:59
Speaker 1: imperial burial impersonation of force and murder known as Napoleon.
48:06
Speaker 1: The Great end of Chapter ten