Cross-Examination. Francis L. Wellman's Interesting New Book of Advice and Anecdote

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CROSS-EXAMINATION

Francis L. Wellman's Interesting New Book of Advice and Anecdote.[1]

IN HIS—interesting book on "The Art of Cross-Examination," Francis L. Wellman, who was formerly an Assistant District Attorney for the County of New York, has taken the unusual course of permitting some other lawyer to begin his first chapter and to close his last. He opens with the following quotation from "one of England's greatest advocates at the close of a long and eventful career at the bar," written half a century ago:

The issue of a cause rarely depends upon a speech, and is but seldom even affected by it. But there is never a cause contested the result of which is not mainly dependent upon the skill with which the advocate conducts his cross-examination.

The book ends abruptly with Joseph H. Choate's closing words in the cross-examination of Russell Sage in the Laidlaw case—words that fall almost unconsciously from the lips of every lawyer when he has squeezed his witness dry:

"I think that is all."

Mr. Wellman's book is not, as its title might lead many person to suppose, written solely for lawyers. It has no place with the great company of dreary and dignified tomes of sheepskin that fill the bookshelves in attorneys' offices. The text is written in a chatty, narrative style and abounds with anecdotes about great men whose battles in court are so familiar to the present generation, that it is entertaining to a degree, even to men who know nothing about law. Whatever benefit younger attorneys and law-students may derive from Mr. Wellman's advice and counsel depends upon the application of it. The author makes it very clear that what is good, cross-examination in one case is dangerous tactics in another. The cross-examiner must not fuss with his notes, but must watch every move of his witness as a prizefighter watches his opponent, sparring guardedly for an opening, landing a telling blow at the first opportunity and making every hit tell. He believes in the maxim of the late Sir Charles Russell, whom he considers altogether the most successful cross-examiner of modern times: "Go straight at the witness and at the point; throw your cards on the table; mere finesse juries do not appreciate."

Mr. Wellman confesses that he does not intend to arrogate to himself any superior knowledge upon the subject of cross-examination excepting in so far as it may have been gleaned from actual experience of twenty-five years court practice, in which he examined and cross-examined about 15,000 witnesses drawn from all classes of the community. In cautioning young advocates against spread-eagle oratory he says that modern juries, especially large cities, are composed of practical business men accustomed to think for themselves, experiences in the ways of life, capable of forming estimates and making nice distinctions, unmoved by the passions and prejudices to which court oratory is nearly always directed.

Mr. Wellman makes a strong plea for confining the trial of cases in court to lawyers who have been specially trained for that branch of the profession. "We are beginning to appreciate in this country," he writes, "what the English courts have so long recognized, that the only way to ensure speedy and intelligently conducted litigations is to inaugurate a custom of confining court practices to a comparatively limited number of trained trial lawyers." He directs attention to "that ever-growing class in our profession who have relinquished their court practice and are building up fortunes such as were never dreamed of in the legal profession a decade ago."

Mr. Wellman calls these men "business lawyers," who through opportunity, combined with rare commercial ability, have come to apply their knowledge of law to great corporate enterprises. To such an extent is this change taking place, he says, that in some localities the more important commercial cases never reach a court decision. Merchants prefer to compromise their difficulties or write off their losses rather than enter into dormant litigation caused by overcrowded calendars; yet fully 6,000 cases of one kind or another are tried or disposed of yearly in the Borough of Manhattan alone.

It is Mr. Wellman's opinion that "one has but to frequent the courts to become convinced that so long as the ten thousand members of the New York County bar will avail themselves of their privilege to appear in court and try their own clients' cases, the great majority of the trials will be poorly conducted and much valuable time wasted." A lawyer experienced in the trials of causes will not require, at the utmost, more than one-quarter of the time taken by the most learned inexperienced lawyer in developing his case. His points of law and issues of fact will be clearly defined and presented to the jury in the fewest possible words. A few lawyers have gone so far as to refuse direct communications with clients excepting as they come represented by their own attorneys.

When the public realizes [says the author] that a good trail lawyer is the outcome, one might say, of generations of witnesses; when clients fully appreciate the danger they run in intrusting their litigations to so-called office lawyers with little or not experience in court, they will insist upon their briefs being intrusted to those who make a specialty of court practice.

There is no short cut, no royal road to proficiency in the art of advocacy and cross-examination, Mr. Wellman declares.

It is experience alone that brings success. Cross-examination is generally considered to be the most difficult branch of the multifarious duties of the lawyer it requires the greatest ingenuity, a habit of logical thought, clearness of perception, infinite patience and self-contol, power to read, men's minds intuitively, to judge of their character by their faces, and to read their motives. It requires ability to act with force and precision, a master knowledge of the subject matter itself, extreme caution, and, above all, the instinct to discover the weak point in the witness under examination. One has to deal with a prodigious variety of witnesses testifying under an infinite number of differing circumstances. It involves all shades and complexions of human morals, human passions, and human intelligence. It is a mental duel between counsel and witness. In emphasizing this point Mr. Wellman quotes liberally from the memorable struggle between two powerful intellects when Judge William Fullerton cross-examined Henry Ward Beecher and won an international reputation. When the lawyer found fault with the clergyman for not answering his questions more freely and directly, Mr. Beecher looked him straight in the face and said, "I am afraid of you."

Yet as Mr. Wellman remarks, these very examinations, laborious ad brilliant, were singularly unproductive of results, owing to the unusual intelligence and shrewdness of the witnesses themselves. As an instance of the studious preparation for cross-examination. Mr Wellman mentions Benjamin F. Butler. He was known once to have spent days in examining all parts of a steam engine, even learning to drive one himself, in order to cross-examine some important witness. Another time Butler spent a week in a locomotive repair shop, part of the time with his coat off and hammer in hand. Butler was not a great lawyer, nor even a great advocate, like Rufus Choate. But he would frequently defeat Choate. Butler's peculiarly aggressive method of cross-examination was his chief weapon.

Rufus Choate, on the other hand. "whose art and graceful qualities of mind entitle him to the foremost rank among American advocates in cross-examination," never aroused the opposition of a witness by attacking him. He disarmed his man by the quiet and courteous manner in which he pursued his cross-examination. One of Choate's bon mots was that a lawyer's vacation consisted between the question put to a witness and his answer.

While Jeremiah Mason, whom Daniel Webster considered the greatest lawyer that ever practiced at the New England bar, was cross examining a witness he suddenly exclaimed:

Let me see that paper you've got in your waistcoat pocket.

The astonished witness produced it, and Mr. Mason read off the exact answers that had been given to his questions written by the lawyer on the other side.

"How under the sun did you know that paper was there?" inquired a brother lawyer.

"Well" replied Mason, "I thought he gave that part of his testimony just as if he'd heard it, and I noticed ever time he repeated it he put his hand to his waistcoat pocket and let it fall again when he got through."

Lawyers in New York will have little difficulty in recognizing the "medico-legal wonder" whom Mr. Wellman takes to task for his methods of cross-examination in the Buchanan poisoning case, and who has since become influential in Tammany Hall through his closeness to Richard Croker. It is a pity that in describing an experience with his one-time formidable antagonist, the late Charles Brooke, Mr. Wellman has permitted his printer to hand that astute cross-examiner down to posterity as Charles "Brooks." The painstaking Mr. Brooke, had been the Biographer, surely would never have spelled Mr. Wellman's name with one "l." It was in this conflict with Mr. Brooke that Mr. Wellman himself utterly put to rout Prof. Ames, the hand writing expert, and gave that sort of testimony a black eye from which it has not recovered. The occasion was the Henriques-Ellison case for assault, in which Mr Wellman secured a conviction. He introduced three letters, and the expert was very positive in declaring them all to be in the handwriting of Mrs. Naeme, daughter of Mr. Henriques. Unfolding the signatures, which had been concealed, the prosecution showed that one of the letters only was in the handwriting of Mrs Naeme. The other two were signed by William Henriques and Frank Ellison. But in mentioning this incident Mr. Wellman modestly refrains from mentioning his own name. He has a story for almost every lawyer of prominence with whom his duty brought him in contact. Here is some of Mr. Wellman's hints to cross-examiners:

There is a marked distinction between discrediting the testimony and discrediting the witness. It is a largely a matter of instinct on the part of the examiner.

A skillful cross-exmainer seldom takes his eye from an important witness while he is being examined by his adversary. Every expression of his face, especially his mouth, even the movement of his hands, help the examiner to estimate his integrity.

It is absurd to assume any witness who has sworn positively to a certain set of facts, even if he has inadvertently stretched the truth, is going to be readily induced by a lawyer to alter them and acknowledge his mistake.

People, as a rule do not reflect upon their meagre opportunities for observing facts, and rarely suspect the frailty of their own powers of observation.

If the cross-exmainer allows the witness to see that he distrusts his integrity he will straighten himself out in the witness chair and mentally defy him at once. If the counsel's manner is courteous and conciliatory the witness will soon loose all fear.

The sympathies of the jury are invariably on the side of the witness. They are quick to resent any discourtesy toward him. They are willing to admit his mistakes, if you can make them apparent, but they are slow to believe him guilty of perjury.

A good advocate should be a good actor.

  1. THE ART OF CROSS-EXAMINATION. By Francis L. Wellman of the New York Bar. One volume. Royal octavo. New York: The Macmillan Company. $2.50