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

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  Speaker 1: Chapter fifteen of the Art of cross Examination by Francis Wellman.
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  Speaker 1: This libribox recording is in the public domain. Chapter fifteen
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  Speaker 1: the cross examination of Russell Sage by mister Joseph H.
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  Speaker 1: Choate in the Laidlaw Sage case. One of the most
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  Speaker 1: recent cross examinations to be made the subject of appeal
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  Speaker 1: to the Supreme Court General Term and the New York
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  Speaker 1: Court of Appeals was the cross examination of Russell Sage
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  Speaker 1: by mister Joseph H. Choate in the famous suit brought
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  Speaker 1: against the former by William Ard Laidlaw. Sage was defended
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  Speaker 1: by the late Edwin C. James, and mister Choate appeared
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  Speaker 1: for the plaintiff, mister Laidlaw. On the fourth day of
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  Speaker 1: December eighteen ninety one, a stranger by the name of
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  Speaker 1: Norcross came to Russell Sage's New York office and sent
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  Speaker 1: a message to him that he wanted to see him
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  Speaker 1: on important business, and that he had had a letter
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  Speaker 1: of introduction from mister John Rockefeller. Mister Sage left his
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  Speaker 1: private office and going up to Norcross, was handed an
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  Speaker 1: open letter which read quote, this carpet bag I hold
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  Speaker 1: in my hand contains ten pounds of dynamite, and if
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  Speaker 1: I drop this bag on the floor, it will destroy
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  Speaker 1: this building in ruins and kill every human being in it.
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  Speaker 1: I demand twelve hundred thousand dollars or I will drop it.
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  Speaker 1: Will you give it? Yes or no? Mister Sage read
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  Speaker 1: the letter, handed it back to Norcross and suggested that
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  Speaker 1: he had a gentleman waiting for him in his private
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  Speaker 1: office and could be through his business in a couple
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  Speaker 1: of minutes when he would give the matter his attention.
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  Speaker 1: Norcross responded, then you decline my proposition. Will you give
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  Speaker 1: it to me? Yes or no? Sage explained again why
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  Speaker 1: he would have to postpone giving it to him for
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  Speaker 1: two or three minutes to get rid of some one
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  Speaker 1: in his private office, and just at this juncture, mister
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  Speaker 1: Laidlaw entered the office, saw Norcross and Sage without hearing
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  Speaker 1: the conversation, and waited in the ante room until Sage
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  Speaker 1: could be disengaged. As he waited, Sage edged toward him
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  Speaker 1: and partly seating himself upon the table near mister Laidlaw,
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  Speaker 1: and without addressing him, took him by the left hand
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  Speaker 1: as if to shake hands with him, but with both
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  Speaker 1: his hands drew mister Laidlaw almost imperceptibly around between him
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  Speaker 1: and Norcross. As he did so, he said to Norcross,
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  Speaker 1: if you cannot trust me, how can you expect me
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  Speaker 1: to trust you? With that there was a terrible explosion.
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  Speaker 1: Norcross himself was blown to pieces and instantly killed. Mister
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  Speaker 1: Laidlaw found himself on the floor on top of Russell Sage.
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  Speaker 1: He was seriously injured and later brought suit against mister
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  Speaker 1: Sage for damages upon the ground that he had purposely
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  Speaker 1: made a shield of his body from the expected explosion.
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  Speaker 1: Mister Sage denied that he had made a shield of
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  Speaker 1: laid Law, or that he had taken him by the
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  Speaker 1: hand or altered his own position so as to bring
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  Speaker 1: laid Law between him and the explosion. The case was
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  Speaker 1: tried four times. It was dismissed by mister Justice Andrews,
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  Speaker 1: and on appeal the judgment was reversed. On the second
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  Speaker 1: trial before mister Justice Patterson, the jury rendered a verdict
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  Speaker 1: of twenty five thousand dollars in favor of mister Laidlaw.
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  Speaker 1: On appeal, this judgment, in turn was reversed on a
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  Speaker 1: third trial, also before mister Justice Patterson, the jury disagreed
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  Speaker 1: and on the fourth trial before mister Justice Ingram, the
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  Speaker 1: jury rendered a verdict in favor of mister Laidlaw of
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  Speaker 1: forty thousand dollars, which judgment was sustained by the general
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  Speaker 1: term of the Supreme Court, but subsequently reversed by the
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  Speaker 1: Court of Appeals. Exception on this appeal was taken especially
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  Speaker 1: to the method used in the cross examination of mister
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  Speaker 1: Sage by mister Choate. Thus, the cross examination is interesting
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  Speaker 1: as an instance of what the New York Court of
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  Speaker 1: Appeals has decided to be an abuse of cross examination
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  Speaker 1: into which through their zeal, even eminent counsel are sometimes led,
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  Speaker 1: and to which I have referred in a previous chapter.
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  Speaker 1: It also shows to what lengths mister Choate was permitted
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  Speaker 1: to go upon the pretext of testing the witness's memory.
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  Speaker 1: It was claimed by mister Sage's council upon the appeal
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  Speaker 1: that quote, the right of cross examination was abused in
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  Speaker 1: this case to such an extent as to require the
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  Speaker 1: reversal of this monstrous judgment, which is plainly the precipitation
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  Speaker 1: and product of that abuse, And the Court of Appeals
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  Speaker 1: unanimously took this view of the matter. The portions of
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  Speaker 1: the cross examination That were especially accepted to were the
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  Speaker 1: rejected juror's conversation with mister Sage, the defendant's lack of
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  Speaker 1: sympathy for the plaintiff, the article in the New York World,
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  Speaker 1: the defendant's omission to give warning of the impending explosion,
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  Speaker 1: and the defendant's wealth and the extent and character of
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  Speaker 1: his business. Mister Chold, I hope you are very well
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  Speaker 1: this morning, mister Sage. Mister Sage, Yes, sir, mister Chold,
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  Speaker 1: do you remember swearing to the answer in this case,
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  Speaker 1: mister Sage, I didn't hear you, sir, mister Cholated, which
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  Speaker 1: is your best ear, mister Sage, this, mister Choate, do
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  Speaker 1: you remember swearing to the answer in this case, mister Sage,
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  Speaker 1: I do, mister Chold, who prepared it for you, mister Sage.
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  Speaker 1: It was prepared by my counsel, mister Chold, counsel in
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  Speaker 1: whom you have every confidence, mister Sage. Yes, sir, mister Chold,
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  Speaker 1: prepared after you had given a careful statement of your
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  Speaker 1: case to them, mister Sage, such statement as I thought necessary,
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  Speaker 1: mister Chold, did you mean to conceal anything from them?
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  Speaker 1: Mister Sage, no, sir, mister Chold. Did you read the
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  Speaker 1: complaint over with your counsel before you swore to the answer,
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  Speaker 1: mister Sage, I presume I did, mister Chold. Just imagine
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  Speaker 1: you were down at the stock exchange. Now and speak
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  Speaker 1: loud enough so that gentleman can hear you, mister Sage,
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  Speaker 1: I will endeavor to mister Chold. Did you read your
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  Speaker 1: answer before you swore to it, mister Sage, I did, sir,
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  Speaker 1: mister Cholated. It was true, then, was it not, mister Sage.
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  Speaker 1: I believed it to be so, mister Chold. I call
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  Speaker 1: your attention to a statement made in the answer. Mister Cholated.
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  Speaker 1: Here read from mister Sage's answer, in which he swore
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  Speaker 1: that he was in conversation with mister Norcross while mister
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  Speaker 1: Laidlaw was in the office, mister Sage, having testified differently
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  Speaker 1: the day before, was that true, mister Sage, I don't know.
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  Speaker 1: I didn't catch it, mister Cholate. I didn't want you
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  Speaker 1: to catch it. I wanted you to answer it. You observe,
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  Speaker 1: do you not that the answer says that the plaintiff
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  Speaker 1: Laidlaw was in your office while you were conversing with
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  Speaker 1: the stranger, mister Sage, I observe that, but I want
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  Speaker 1: to state the fact as I did yesterday. Mister cholad
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  Speaker 1: answer my question. Did you observe it, mister Sage, I did,
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  Speaker 1: mister Chold, put down your fist and answer my question.
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  Speaker 1: Mister Sage, I answered it. Mister Chold, I think we
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  Speaker 1: will get along as soon as you answer my questions
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  Speaker 1: instead of making speeches. Did you observe that your answer
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  Speaker 1: states that before Laidlaw was in the office, and while
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  Speaker 1: you were conversing with the stranger, the stranger had already
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  Speaker 1: handed you a note demanding money, Mister Sage, he had
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  Speaker 1: done no such thing. Mister Chold. Do you observe that
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  Speaker 1: your answer states that, mister Sage, your reading states it so.
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  Speaker 1: But the fact is, as I have stated it, mister Chold.
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  Speaker 1: Was not your answer true as you swore to it,
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  Speaker 1: mister Sage, No, sir, not on your interpretation. Mister Chold,
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  Speaker 1: How came you to swear to it if it is
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  Speaker 1: not true, mister Sage, I suppose that was prepared afterward
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  Speaker 1: word by counsel as you prepare papers, mister Chold, I
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  Speaker 1: never prepare papers. What are you talking about, mister Sage.
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  Speaker 1: You have the reputation of preparing papers, mister Choate. Do
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  Speaker 1: you mean that your lawyers distorted the facts from what
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  Speaker 1: you stated, mister Sage. I suppose they prepared the papers
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  Speaker 1: in their usual form, mister Choate, in the usual form.
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  Speaker 1: Was there ever any usual form for a case like this,
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  Speaker 1: mister Sage, Yes, sir, mister Choate, did you ever know
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  Speaker 1: of such a case before, mister Sage, No, sir. Mister
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  Speaker 1: Choate then pursued this inquiry in various forms, for at
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  Speaker 1: least one hundred questions more, and getting no satisfactory answer,
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  Speaker 1: he continued, we will drop the subject and go on
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  Speaker 1: to something else. Mister Choate. Since mister Laidlaw made this
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  Speaker 1: claim against you, you've been very hostile against him, have
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  Speaker 1: you not, mister Sage, No, sir, not hostile, mister Choate.
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  Speaker 1: Have you not called him all sorts of bad names?
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  Speaker 1: Mister Sage, I said he did not tell the truth,
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  Speaker 1: mister Choate, have you denounced him as a blackmailer? When
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  Speaker 1: did you do that? Mister Sage, I might have said
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  Speaker 1: that a man who would persevere in making a statement
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  Speaker 1: that there was not a word of truth in and
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  Speaker 1: demanding a sum of money. I don't know what you
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  Speaker 1: call it. Call it what you please, mister Choake. Did
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  Speaker 1: you not say that you would see Laidlaw a tramp
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  Speaker 1: before he would get through with this case? Mister Sage,
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  Speaker 1: I have no recollection of any such thing, mister Choke.
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  Speaker 1: Will you swear you didn't, mister Sage, I won't swear
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  Speaker 1: I might, mister Choke, what mister Sage, I won't testify
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  Speaker 1: to what I have said. Mister Cholated. I want you
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  Speaker 1: to say whether you will swear that you said that
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  Speaker 1: you would see laid Law a tramp before he got through.
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  Speaker 1: Mister Sage, I don't know, mister Choate. Do you not
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  Speaker 1: know that when the last juror was excused from the
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  Speaker 1: jury box or discharged, he stated in the presence of
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  Speaker 1: the court and the other jurymen that after the verdict
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  Speaker 1: rendered by the former jury in this case against you,
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  Speaker 1: missus Sage went to him at Tiffany's and stated that
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  Speaker 1: the verdict was a great outrage and that mister Sage
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  Speaker 1: would never pay a cent. This question was bitterly objected
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  Speaker 1: to by mister James, but allowed by the court. Mister Sage,
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  Speaker 1: I want to state right here, if you'll permit, mister Choke.
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  Speaker 1: The first business is to answer this question, mister Sage.
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  Speaker 1: I don't know it. I know that Missus Sage denied
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  Speaker 1: ever having said anything of the kind. Mister Choate, you
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  Speaker 1: think the juror told a falsehood, mister Sage. Missus Sage
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  Speaker 1: has no recollection of having said that. Mister Choate, did
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  Speaker 1: you say to anybody that it was an outrage? Mister Sage,
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  Speaker 1: I have no recollection. I think it is the greatest
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  Speaker 1: outrage that was ever attempted by a respectable lawyer. Mister Choate,
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  Speaker 1: did you not say that you would spend a hundred
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  Speaker 1: thousand dollars in defending this case rather than pay a
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  Speaker 1: cent to laid law? Mister Sage, I have great confidence
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  Speaker 1: in the courts of this state and the United States,
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  Speaker 1: and I am fighting for other people besides myself, and
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  Speaker 1: I propose to have this case settled by the highest courts,
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  Speaker 1: mister Choate, no matter what this jury says, mister Sage,
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  Speaker 1: I have great respect for them that they will decide
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  Speaker 1: the case rightly. I want to know if a man
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  Speaker 1: can come into my office and because a tramp comes
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  Speaker 1: in there, and an accident happens, and an injury done.
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  Speaker 1: I'm responsible for that, mister Choate. These harangues of yours
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  Speaker 1: take a great deal of time. I ask you whether
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  Speaker 1: or not you knew that laid law at the time
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  Speaker 1: of this accident had been very badly hurt, mister Sage. Yes, Sir,
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  Speaker 1: I knew he had been mister Chold, do you not
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  Speaker 1: know he was laid up in the hospital helpless, mister Sage,
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  Speaker 1: I understand he was, Yes, sir, mister Chold. Did it
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  Speaker 1: ever occur to you to see what you could do
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  Speaker 1: for him, mister Sage, Yes, sir, I sent my brother
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  Speaker 1: in law to inquire after him twice, mister Choate. Did
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  Speaker 1: you visit him yourself, mister Sage, I did not. Mister Chold,
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  Speaker 1: did you do anything to relieve his sufferings? Mister Sage,
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  Speaker 1: I was not called upon to do anything of the kind.
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  Speaker 1: I did not ask you whether you were called upon.
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  Speaker 1: I asked whether you did, mister Sage, I did not.
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  Speaker 1: Mister Cholate. Did not you refrain from going to see
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  Speaker 1: him because you were afraid if you did, he would
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  Speaker 1: make a claim upon you, mister Sage, No, sir, mister Cholated,
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  Speaker 1: did you care whether he was going to get cured
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  Speaker 1: or not, mister Sage, it is an outrage to ask
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  Speaker 1: such a question, mister Chold. Did you have a grand
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  Speaker 1: nephew chapin at this time, mister Sage, yes, mister Choate.
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  Speaker 1: Was he assistant editor of the World at that time,
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  Speaker 1: mister Sage, yes, mister Cholate. Shortly after the explosion, did
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  Speaker 1: he come to see you and have a chat with you?
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  Speaker 1: Mister Sage, yes, mister Choate. Did you afterward read an
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  Speaker 1: article published in the New York World headed a chat
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  Speaker 1: with Russell Sage and giving an interview with you, mister Sage, yes,
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  Speaker 1: mister Cholate. When you read in that article quote, he
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  Speaker 1: looks as vigorous as at any time before the time
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  Speaker 1: of the assassination. His face bears almost no marks of
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  Speaker 1: the glass that got into it after the explosion. It
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  Speaker 1: was clean shaven. In fact, mister Sage had arisen yesterday
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  Speaker 1: morning and shaved himself unquote. Did that accord with your
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  Speaker 1: recollection at the time you read it, mister Sage, No, sir,
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  Speaker 1: it did not. I have stated it was a gross exaggeration,
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  Speaker 1: mister Choated. When the article continued quote, the only thing
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  Speaker 1: that impressed one was that there was a face of
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  Speaker 1: an old man, hearty and robust, tenacious of life, and
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  Speaker 1: good for many years unquote. Did that accord with your
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  Speaker 1: recollection at the time, mister Sage, No, sir, it was
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  Speaker 1: an exaggeration. I was very badly scarred all over my face,
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  Speaker 1: mister Choate, when you read in that article quote. It
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  Speaker 1: was more surprising, though, when mister Sage arose and, helping
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  Speaker 1: himself up at full length, exhibited all his accustomed power
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  Speaker 1: of personality. He was like a warrior after battle, a
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  Speaker 1: warrior who has come from the thick of the fight,
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  Speaker 1: covered with the dust of conflict, yet without a hurt
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  Speaker 1: to body or limb. Did that accord when you read
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  Speaker 1: it with your then present recollection, mister Sage, No, sir,
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  Speaker 1: it did not. This is the third time you have
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  Speaker 1: read those articles to the jury. In this case. It
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  Speaker 1: is like the fourth of July oration or the Declaration
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  Speaker 1: of Independence. Mister Choult continued and was allowed to read
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  Speaker 1: from this newspaper article, although his questions were constantly and
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  Speaker 1: urgently objected to on the part of the defense, and
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  Speaker 1: although mister Sage said that he did not read half
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  Speaker 1: the article quote because it was an exaggerated statement from
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  Speaker 1: beginning to end, as most paper interviews are, Mister Choate
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  Speaker 1: here went into an exhaustive examination as to the details
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  Speaker 1: of the accident, comparing the witness's statements at previous trials
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  Speaker 1: with the statements at this trial, and then continued, mister Choke.
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  Speaker 1: Everything you did after you once appreciated the danger you
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  Speaker 1: were in, having read the threat contained in the letter
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  Speaker 1: the stranger handed you, was to gain time, was it not,
• 17:21
  Speaker 1: mister Sage. Yes, sir, mister Choate, you knew at that time,
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  Speaker 1: did you not that laid Law and Norcross were in
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  Speaker 1: the room. Why did you not tell them to step
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  Speaker 1: into your private room? Mister Sage, I will tell you
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  Speaker 1: very frankly, it would have been almost certain death to
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  Speaker 1: six or seven men. There were three other men in
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  Speaker 1: that room with only bard partitions between. It would have
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  Speaker 1: infuriated the stranger and would have made him disregard me
• 17:51
  Speaker 1: and dropped the bag. Mister Choate, did you think of
• 17:55
  Speaker 1: the danger that laid Law and Norcross were in, mister Sage,
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  Speaker 1: No more, and the other clerks we were all alike,
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  Speaker 1: mister Choate, And the reason you did not tell them
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  Speaker 1: to go into the other room was that they would
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  Speaker 1: even then not be out of danger. Mister Sage. I
• 18:13
  Speaker 1: thought it would displease Norcross and show that I was
• 18:16
  Speaker 1: trying to do something to head him off mister Choate,
• 18:19
  Speaker 1: and he would allow the bag to drop. Mister Sage. Yes, sir,
• 18:23
  Speaker 1: mister Choate, and kill you, mister Sage, kill me and
• 18:27
  Speaker 1: kill the whole of us. Mister Choate. What is your business,
• 18:32
  Speaker 1: mister Sage? My business is banker and broker. Mister Choate.
• 18:36
  Speaker 1: Why do you call yourself a banker, mister Sage, because
• 18:40
  Speaker 1: I buy stock and discount paper and make loans. Mister Choate.
• 18:44
  Speaker 1: You are a money lender, are you not, mister Sage.
• 18:48
  Speaker 1: Sometimes I have money to loan, mister Choate, at various
• 18:52
  Speaker 1: rates of interest, mister Sage, sometimes, mister Choate, varying from
• 18:58
  Speaker 1: six to sixty percent. Mister Sage, Oh no, mister Choate.
• 19:04
  Speaker 1: What is the other part of your business, mister Sage.
• 19:07
  Speaker 1: My business is operating railroads. Mister Choate, how many railroads
• 19:11
  Speaker 1: do you operate? These questions were strenuously objected to, whereupon
• 19:17
  Speaker 1: mister Cholated said to the court, I think I can
• 19:20
  Speaker 1: show that this man has so many things in his
• 19:22
  Speaker 1: head that he is so full of affairs that he
• 19:25
  Speaker 1: is not a competent witness at this time to any transaction.
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  Speaker 1: Mister Sage, I am operating two mister Choate. Are they
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  Speaker 1: large railroads or horse railroads? Mister Sage, well, one of
• 19:38
  Speaker 1: them is a large one. Mister Choate, you help run
• 19:42
  Speaker 1: several banks, do you not, mister Sage, I'm not running
• 19:45
  Speaker 1: any banks, only a director, mister Cholate, are you a
• 19:49
  Speaker 1: director in two banks, mister Sage, yes, sir, mister Cholt.
• 19:54
  Speaker 1: And trust companies mister Sage, yes, sir, mister Choate in
• 19:58
  Speaker 1: the Manhattan Elevation Railroad, mister Sage, yes, sir, mister Cholt,
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  Speaker 1: in the Western Union, mister Sage, yes, sir, mister Chold,
• 20:08
  Speaker 1: in the Missouri Pacific, mister Sage, yes, sir, mister Cholt,
• 20:12
  Speaker 1: in the Union Pacific, mister Sage yes, sir, mister Choate.
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  Speaker 1: This stock ticker that stood by the desk in the
• 20:19
  Speaker 1: adjoining room, did you keep run of it yourself? Mister
• 20:23
  Speaker 1: Sage yes, sir, mister Choate, you take care of your
• 20:27
  Speaker 1: own estate besides, do you not, mister Sage, yes, sir,
• 20:31
  Speaker 1: mister Choke. That took a great deal of time, mister Sage,
• 20:36
  Speaker 1: it took some time, mister Choate. How much time did
• 20:39
  Speaker 1: that occupy? Mister Sage. I have my assistance, my clerks,
• 20:44
  Speaker 1: the same as you have in your office. Mister Choate.
• 20:48
  Speaker 1: You loan money, you manage these railroads, banks, trust companies,
• 20:52
  Speaker 1: and the other affairs that you've mentioned. Did you not
• 20:55
  Speaker 1: have dealings in stocks, mister Sage. Oh, I buy and
• 20:59
  Speaker 1: sell security occasionally, mister Choate. Do you not deal in
• 21:03
  Speaker 1: puts and calls and straddles, mister Sage, I have in
• 21:07
  Speaker 1: years gone by, mister Choate. These affairs take your whole time,
• 21:12
  Speaker 1: do they not, mister Sage, No, sir, I have leisure.
• 21:16
  Speaker 1: I do not devote all my time to business, mister Choat.
• 21:20
  Speaker 1: I think that is all. End of Chapter fifteen and
• 21:25
  Speaker 1: of the Art of cross Examination by Francis Wellman.