Francis L. Wellman

“ William M. Evarts, as leading counsel for Mr. Beecher, heightened his already international reputation as an advocate. It was Mr. Evarts's versatility in the Beecher case that occasioned so much comment. Whether he was examining in chief or on cross, in the discussion of points of evidence, or in the summing up, he displayed equally his masterly talents. His cross-examination of Theodore Tilton was a masterpiece. His speeches in court were clear, calm, and logical. Mr. Evarts was not only a great lawyer, but an orator and statesman of the highest distinction. ”

“ On the other hand, there is something about the manner of an honest but ignorant witness that makes it at once manifest to an experienced lawyer that he is narrating only the things that he has actually seen and heard. The expression of the face changes with the narrative as he recalls the scene to his mind; he looks the examiner full in the face; his eye brightens as he recalls to mind the various incidents; he uses gestures natural to a man in his station of life, and suits them to the part of the story he is narrating, and he tells his tale in his own accustomed language. ”

“ A good advocate should be a good actor. The most cautious cross-examiner will often elicit a damaging answer. Now is the time for the greatest self-control. If you show by your face how the answer hurt, you may lose your case by that one point alone. How often one sees the cross-examiner fairly staggered by such an answer. He pauses, perhaps blushes, and after he has allowed the answer to have its full effect, finally regains his self-possession, but seldom his control of the witness. ”

“ The conduct of a case in court is a peculiar art for which many men, however learned in the law, are not fitted; and where a lawyer has but one or even a dozen experiences in court in each year, he can never become a competent trial lawyer. I am not addressing myself to clients, who often assume that, because we are duly qualified as lawyers, we are therefore competent to try their cases; I am speaking in behalf of our courts, against the congestion of the calendars, and the consequent crowding out of weighty commercial litigations. ”

“ The way in which we treat our witnesses is a national disgrace and a serious obstacle, instead of aiding the ends of justice. In England the most honorable and conscientious men loathe the witness-box. Men and women of all ranks shrink with terror from subjecting themselves to the wanton insult and bullying misnamed cross-examination in our English courts. Watch the tremor that passes the frames of many persons as they enter the witness-box. I remember to have seen so distinguished a man as the late Sir Benjamin Brodie shiver as he entered the witness-box. ”

“ Some witnesses, under this style of examination, lose their tempers completely, and if the examiner only keeps his own and puts his questions rapidly enough, he will be sure to lead the witness into such a web of contradictions as entirely to discredit him with any fair-minded jury. A witness, in anger, often forgets himself and speaks the truth. His passion benumbs his power to deceive. Still another sort of witness displays his temper on such occasions by becoming sullen; he begins by giving evasive answers, and ends by refusing to answer at all. ”

“ There he sat, calm, contemplative; in the midst of occasional noise and confusion solemnly unruffled; always making some little headway either with the jury, the court, or the witness; never doing a single thing which could by possibility lose him favor, ever doing some little thing to win it; smiling benignantly upon the counsel when a good thing was said; smiling sympathizingly upon the jury when any juryman laughed or made an inquiry; wooing them all the time with his magnetic glances as a lover might woo his mistress; seeming to preside over the whole scene with an air of easy superiority ”

“ Counsel. "Do you wish to go out to the world as saying that you have never diagnosed a case of morphine poisoning excepting when you had an autopsy to exclude kidney disease?"
Witness. "I do not. I have not said so."
Counsel. "Then you have diagnosed a case on the symptoms alone, yes? or no? I want a categorical answer."
Witness (sparring) . "I would refuse to answer that question categorically; the word 'diagnosed' is used with two different meanings. One has to make what is known as a 'working diagnosis' when he is called to a case, not a positive diagnosis." ”

“ It can be done by a good actor in such a manner as to be equivalent to saying to the jury, "What's the use? she is only a woman."
John Philpot Curran, known as the most popular advocate of his time, and second only to Erskine as a jury lawyer, once indulged himself in this silent mode of cross-examination, but made the mistake of speaking his thoughts aloud before he sat down. "There is no use asking you questions, for I see the villain in your face." "Do you, sir?" replied the witness with a smile. ”

“ Like Scarlett, Erskine was of medium height and slender, but he was handsome and magnetic, quick and nervous, "his motions resembled those of a blood horse—as light, as limber, as much betokening strength and speed." He, too, lacked the advantage of a college education and was at first painfully unready of speech. In his maiden effort he would have abandoned his case, had he not felt, as he said, that his children were tugging at his gown. "In later years," Choate once said of him; "he spoke the best English ever spoken by an advocate." ”

“ A very common type of witness, met with almost daily, is the man who, having witnessed some event years ago, suddenly finds that he is to be called as a court witness. He immediately attempts to recall his original impressions; and gradually, as he talks with the attorney who is to examine him, he amplifies his story with new details which he leads himself, or is led, to believe are recollections and which he finally swears to as facts. ”

“ He had a profound knowledge of human nature, of the springs of human action, of the thoughts of human hearts. To get at these and make them patent to the jury, he would ask only a few telling questions—a very few questions, but generally every one of them was fired point-blank, and hit the mark. His motto was: 'Never cross-examine any more than is absolutely necessary. If you don't break your witness, he breaks you.' He treated every man who appeared like a fair and honest person on the stand, as if upon the presumption that he was a gentleman ”

“ Scarlett used to wheedle the juries over the weak places in his case. Choate would rush them right over with that enthusiasm which he put into everything, "with fire in his eye and fury on his tongue." Scarlett would level himself right down to each juryman, while he flattered and won them. In his cross-examinations "he would take those he had to examine, as it were by the hand, made them his friends, entered into familiar conversation with them, encouraged them to tell him what would best answer his purpose, and thus secured a victory without appearing to commence a conflict." ”

“ Not that our judges are not eminently fair-minded in the conduct of trials; but they are men for all that, oftentimes very human men; and the trial lawyer who knows his judge, starts with an advantage that the inexperienced practitioner little appreciates. How much, too, does experience count in the selection of the jury itself—one of the "fine arts" of the advocate! These are but a few of the many similar advantages one might enumerate, were they not apart from the subject we are now concerned with—the skill of the advocate in conducting the trial itself, once the jury has been chosen. ”

“ CHAPTER VII SILENT CROSS-EXAMINATION
Nothing could be more absurd or a greater waste of time than to cross-examine a witness who has testified to no material fact against you. And yet, strange as it may seem, the courts are full of young lawyers—and alas! not only young ones—who seem to feel it their duty to cross-examine every witness who is sworn. They seem afraid that their clients or the jury will suspect them of ignorance or inability to conduct a trial. ”

“ There should be a similar distinction in the legal profession. The family lawyer may have once been competent to conduct the litigation; but he is out of practice—he is not "in training" for the competition.
There is no short cut, no royal road to proficiency, in the art of advocacy. It is experience, and one might almost say experience alone, that brings success. I am not speaking of that small minority of men in all walks of life who have been touched by the magic wand of genius, but of men of average endowments and even special aptitude for the calling of advocacy ”

“ It is difficult to say exactly what it is, excepting that constant practice seems to enable a trial lawyer to form a fairly accurate judgment on this point. A skilful cross-examiner 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 every movement of his hands, his manner of expressing himself, his whole bearing—all help the examiner to arrive at an accurate estimate of his integrity. ”

“ IV. If you perceive that the mind of the witness is imbued with prejudices against your client, hope but little from such a quarter—unless there be some facts which are essential to your client's protection, and which that witness alone can prove, either do not call him, or get rid of him as soon as possible. If the opposite counsel perceive the bias to which I have referred, he may employ it to your ruin. In judicial inquiries, of all possible evils, the worst and the least to be resisted is an enemy in the disguise of a friend. You cannot impeach him; you cannot cross-examine him ”

“ In addressing a jury you may sometimes talk without having anything to say, and no harm will come of it. But in cross-examination every question that does not advance your cause injures it. If you have not a definite object to attain, dismiss the witness without a word. There are no harmless questions here; the most apparently unimportant may bring destruction or victory. If the summit of the orator's art has been rightly defined to consist in knowing when to sit down, that of an advocate may be described as knowing when to keep his seat. ”

“ Nothing can be more important than to close your examination with a triumph. So many lawyers succeed in catching a witness in a serious contradiction; but, not satisfied with this, go on asking questions, and taper off their examination until the effect upon the jury of their former advantage is lost altogether. "Stop with a victory" is one of the maxims of cross-examination. If you have done nothing more than to expose an attempt to deceive on the part of the witness, you have gone a long way toward discrediting him with your jury. ”

“ In fact, it may be said that the truly great trial lawyer is he who, while knowing perfectly well the established rules of his art, appreciates when they should be broken. If the witness happens to be a woman, and at the close of her testimony-in-chief it seems that she will be more than a match for the cross-examiner, it often works like a charm with the jury to practise upon her what may be styled the silent cross-examination. ”

“ The lawyer who allows himself to become the mouthpiece of the spite or revenge of his client may inflict untold suffering and unwarranted torture. Such questions may be within the legal rights of counsel in certain instances, but the lawyer who allows himself to be led astray by his zeal or by the solicitations of his client, at his elbow, ready to make any sacrifice to humiliate his adversary, thereby debauches his profession and surrenders his self-respect, for which an occasional verdict, won from an impressionable jury by such methods, is a poor recompense. ”

“ To warrant an investigation into matters irrelevant to the main issues in the case, and calculated to disgrace the witness or prejudice him in the eyes of the jury, they must at least be such as tend to impeach his general moral character and his credibility as a witness. There can be no sanction for questions that tend simply to degrade the witness personally, and which can have no possible bearing upon his veracity. ”

“ Experience has led me to believe that a physician should rarely be cross-examined on his own specialty, unless the importance of the case has warranted so close a study by the counsel of the particular subject under discussion as to justify the [83] experiment; and then only when the lawyer's research of the medical authorities, which he should have with him in court, convinces him that he can expose the doctor's erroneous conclusions, not only to himself, but to a jury who will not readily comprehend the abstract theories of physiology upon which even the medical profession itself is divided. ”

“ CHAPTER V CROSS-EXAMINATION OF EXPERTS
In these days when it is impossible to know everything, but it becomes necessary for success in any avocation to know something of everything and everything of something, the expert is more and more called upon as a witness both in civil and criminal cases. In these times of specialists, their services are often needed to aid the jury in their investigations of questions of fact relating to subjects with which the ordinary man is not acquainted. ”

“ Cross-examination is generally considered to be the most difficult branch of the multifarious duties of the advocate. Success in the art, as some one has said, comes more often to the happy possessor of a genius for it. Great lawyers have often failed lamentably in it, while marvellous success has crowned the efforts of those who might otherwise have been regarded as of a mediocre grade in the profession. Yet personal experience and the emulation of others trained in the art, are the surest means of obtaining proficiency in this all-important prerequisite of a competent trial lawyer. ”

“ There is eloquence displayed in the examination of witnesses as well as on the argument. "There is matter in manner." I do not mean to advocate that exaggerated manner one often meets with, which divides the attention of your hearers between yourself and your question, which often diverts the attention of the jury from the point you are trying to make and centres it upon your own idiosyncrasies of manner and speech. ”