The Art of Cross-Examination Part 10

CHAPTER X

SOME FAMOUS CROSS-EXAMINERS AND THEIR METHODS

One of the best ways to acquire the art of cross-examination is to study the methods of the great cross-examiners who serve as models for the legal profession.

Indeed, nearly every great cross-examiner attributes his success to the fact of having had the opportunity to study the art of some great advocate in actual practice.

In view of the fact also that a keen interest is always taken in the personality and life sketches of great cross-examiners, it has seemed fitting to introduce some brief sketches of great cross-examiners, and to give some ill.u.s.trations of their methods.

Sir Charles Russell, Lord Russell of Killowen, who died in February, 1901, while he was Lord Chief Justice of England, was altogether the most successful cross-examiner of modern times. Lord Coleridge said of him while he was still practising at the bar, and on one side or the other in nearly every important case tried, "Russell is the biggest advocate of the century."

It has been said that his success in cross-examination, like his success in everything, was due to his force of character. It was his striking personality, added to his skill and adroitness, which seemed to give him his overwhelming influence over the witnesses whom he cross-examined. Russell is said to have had a wonderful faculty for using the brain and knowledge of other men. Others might possess a knowledge of the subject far in excess of Russell, but he had the reputation of being able to make that knowledge valuable and use it in his examination of a witness in a way altogether unexpected and unique.

Unlike Rufus Choate, "The Ruler of the Twelve," and by far the greatest advocate of the century on this side of the water, Russell read but little. He belonged to the category of famous men who "neither found nor pretended to find any real solace in books." With Choate, his library of some eight thousand volumes was his home, and "his authors were the loves of his life." Choate used to read at his meals and while walking in the streets, for books were his only pastime. Neither was Russell a great orator, while Choate was ranked as "the first orator of his time in any quarter of the globe where the English language was spoken, or who was ever seen standing before a jury panel."

Both Russell and Choate were consummate actors; they were both men of genius in their advocacy. Each knew the precise points upon which to seize; each watched every turn of the jury, knew at a glance what was telling with them, knew how to use to the best advantage every accident that might arise in the progress of the case.

"One day a junior was taking a note in the orthodox fas.h.i.+on. Russell was taking no note, but he was thoroughly on the alert, glancing about the court, sometimes at the judge, sometimes at the jury, sometimes at the witness or the counsel on the other side. Suddenly he turned to the junior and said, 'What are you doing?' 'Taking a note,' was the answer.

'What the devil do you mean by saying you are taking a note? Why don't you watch the case?' he burst out. _He_ had been 'watching' the case.

Something had happened to make a change of front necessary, and he wheeled his colleagues around almost before they had time to grasp the new situation."[16]

[16] "Life of Lord Russell," Barry O'Brien.

Russell's maxim for cross-examination was, "Go straight at the witness and at the point; throw your cards on the table, mere _finesse_ English juries do not appreciate."

Speaking of Russell's success as a cross-examiner, his biographer, Barry O'Brien says: "It was a fine sight to see him rise to cross-examine. His very appearance must have been a shock to the witness,--the manly, defiant bearing, the n.o.ble brow, the haughty look, the remorseless mouth, those deep-set eyes, widely opened, and that searching glance which pierced the very soul. 'Russell,' said a member of the Northern Circuit, 'produced the same effect on a witness that a cobra produces on a rabbit.' In a certain case he appeared on the wrong side. Thirty-two witnesses were called, thirty-one on the wrong side, and one on the right side. Not one of the thirty-one was broken down in cross-examination; but the one on the right side was utterly annihilated by Russell.

"'How is Russell getting on?' a friend asked one of the judges of the Parnell Commission during the days of Pigott's cross-examination.

'Master Charlie is bowling very straight,' was the answer. 'Master Charlie' always bowled 'very straight,' and the man at the wicket generally came quickly to grief. I have myself seen him approach a witness with great gentleness--the gentleness of a lion reconnoitring his prey. I have also seen him fly at a witness with the fierceness of a tiger. But, gentle or fierce, he must have always looked a very ugly object to the man who had gone into the box to lie."

Rufus Choate had little of Russell's natural force with which to command his witnesses; his effort was to magnetize, he was called "the wizard of the court room." He employed an entirely different method in his cross-examinations. He never a.s.saulted a witness as if determined to browbeat him. "Commenting once on the cross-examination of a certain eminent counsellor at the Boston Bar with decided disapprobation, Choate said, 'This man goes at a witness in such a way that he inevitably gets the jury all on the side of the witness. I do not,' he added, 'think that is a good plan.' His own plan was far more wary, intelligent, and circ.u.mspect. 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; and if a man appeared badly, he demolished him, but with the air of a surgeon performing a disagreeable amputation--as if he was profoundly sorry for the necessity. Few men, good or bad, ever cherished any resentment against Choate for his cross-examination of them. His whole style of address to the occupants of the witness-stand was soothing, kind, and rea.s.suring. When he came down heavily to crush a witness, it was with a calm, resolute decision, but no asperity--nothing curt, nothing tart."[17]

[17] "Reminiscences of Rufus Choate," Parker.

Choate's idea of the proper length of an address to a jury was that "a speaker makes his impression, if he ever makes it, in the first _hour_, sometimes in the first fifteen minutes; for if he has a proper and firm grasp of his case, he then puts forth the outline of his grounds of argument. He plays the _overture_, which hints at or announces all the airs of the coming opera. All the rest is mere filling up: answering objections, giving one juryman little arguments with which to answer the objections of his fellows, etc. Indeed, this may be taken as a fixed rule, that the popular mind can never be vigorously addressed, deeply moved, and stirred and fixed more than _one hour_ in any single address."

What Choate was to America, and Erskine, and later Russell, to England, John Philpot Curran was to Ireland. He ranked as a jury lawyer next to Erskine. The son of a peasant, he became Master of Rolls for Ireland in 1806. He had a small, slim body, a stuttering, harsh, shrill voice, originally of such a diffident nature that in the midst of his first case he became speechless and dropped his brief to the floor, and yet by perseverance and experience he became one of the most eloquent and powerful forensic advocates of the world. As a cross-examiner it was said of Curran that "he could unravel the most ingenious web which perjury ever spun, he could seize on every fault and inconsistency, and build on them a denunciation terrible in its earnestness."[18]

[18] "Life Sketches of Eminent Lawyers," Gilbert J. Clark.

It was said of Scarlett, Lord Abinger, that he won his cases because there were twelve Sir James Scarletts in the jury-box. He became one of the leading jury lawyers of his time, so far as winning verdicts was concerned. 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."

A story is told about Scarlett by Justice Wightman who was leaving his court one day and found himself walking in a crowd alongside a countryman, whom he had seen, day by day, serving as a juryman, and to whom he could not help speaking. Liking the look of the man, and finding that this was the first occasion on which he had been at the court, Judge Wightman asked him what he thought of the leading counsel. "Well,"

said the countryman, "that lawyer Brougham be a wonderful man, he can talk, he can, but I don't think nowt of Lawyer Scarlett."--"Indeed!"

exclaimed the judge, "you surprise me, for you have given him all the verdicts."--"Oh, there's nowt in that," was the reply, "he be so lucky, you see, he be always on the right side."[19]

[19] "Curiosities of Law and Lawyers."

Choate also had a way of getting himself "into the jury-box," and has been known to address a single juryman, who he feared was against him, for an hour at a time. After he had piled up proof and persuasion all together, one of his favorite expressions was, "But this is only _half_ my case, gentlemen, I go now to the main body of my proofs."

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." Once, when the presiding judge threatened to commit him for contempt, he replied, "Your Lords.h.i.+p may proceed in what manner you think fit; I know my duty as well as your Lords.h.i.+p knows yours." His simple grace of diction, quiet and natural pa.s.sion, was in marked contrast to Rufus Choate, whose delivery has been described as "a musical flow of rhythm and cadence, more like a long, rising, and swelling song than a _talk_ or an argument." To one of his clients who was dissatisfied with Erskine's efforts in his behalf, and who had written his counsellor on a slip of paper, "I'll be hanged if I don't plead my own cause," Erskine quietly replied, "You'll be hanged if you do." Erskine boasted that in twenty years he had never been kept a day from court by ill health. And it is said of Curran that he has been known to rise before a jury, after a session of sixteen hours with only twenty minutes' intermission, and make one of the most memorable arguments of his life.

Among the more modern advocates of the English Bar, Sir Henry Hawkins stands out conspicuously. He is reputed to have taken more money away with him from the Bar than any man of his generation. His leading characteristic when at the Bar, was his marvellous skill in cross-examination. He was a.s.sociated with Lord Coleridge in the first Tichborne trial, and in his cross-examination of the witnesses, Baignet and Carter, he made his reputation as "the foremost cross-examiner in the world."[20] Sir Richard Webster was another great cross-examiner. He is said to have received $100,000 for his services in the trial before the Parnell Special Commission, in which he was opposed to Sir Charles Russell.

[20] "Life Sketches of Eminent Lawyers," Clark.

Rufus Choate said of Daniel Webster, that he considered him the grandest lawyer in the world. And on his death-bed Webster called Choate the most brilliant man in America. Parker relates an episode characteristic of the clas.h.i.+ng of swords between these two idols of the American Bar. "We heard Webster once, in a sentence and a look, crush an hour's argument of Choate's curious workmans.h.i.+p; it was most intellectually wire-drawn and hair-splitting, with Grecian sophistry, and a subtlety the Leontine Gorgias might have envied. It was about two car-wheels, which to common eyes looked as like as two eggs; but Mr. Choate, by a fine line of argument between tweedle-dum and tweedle-dee, and a discourse on 'the fixation of points' so deep and fine as to lose itself in obscurity, showed the jury there was a heaven-wide difference between them. 'But,'

said Mr. Webster, and his great eyes opened wide and black, as he stared at the big twin wheels before him, 'gentlemen of the jury, there they are--look at 'em;' and as he p.r.o.nounced this answer, in tones of vast volume, the distorted wheels seemed to shrink back again into their original similarity, and the long argument on the 'fixation of points'

died a natural death. It was an example of the ascendency of mere _character_ over mere _intellectuality_; but so much greater, nevertheless, the _intellectuality_."[21]

[21] "Reminiscences of Rufus Choate," Parker.

Jeremiah Mason was quite on a par with either Choate or Webster before a jury. His style was conversational and plain. He was no orator. He would go close up to the jury-box, and in the plainest possible logic force conviction upon his hearers. Webster said he "owed his own success to the close attention he was compelled to pay for nine successive years, day by day, to Mason's efforts at the same Bar." As a cross-examiner he had no peer at the New England Bar.

In the history of our own New York Bar there have been, probably, but few equals of Judge William Fullerton as a cross-examiner. He was famous for his calmness and mildness of manner, his rapidly repeated questions; his sallies of wit interwoven with his questions, and an ingenuity of method quite his own.

Fullerton's cross-examinations in the celebrated Tilton _vs._ Henry Ward Beecher case gave him an international reputation, and were considered the best ever heard in this country. And yet these very examinations, laborious and brilliant, were singularly unproductive of results, owing probably to the unusual intelligence and shrewdness of the witnesses themselves. The trial as a whole was by far the most celebrated of its kind the New York courts have ever witnessed. One of the most eminent of Christian preachers was charged with using the persuasive powers of his eloquence, strengthened by his religious influence, to alienate the affections and destroy the probity of a member of his church--a devout and theretofore pure-souled woman, the wife of a long-loved friend. He was charged with continuing the guilty relation during the period of a year and a half, and of cloaking the offence to his own conscience and to hers under specious words of piety; of invoking first divine blessing on it, and then divine guidance out of it; and finally of adding perjury to seduction in order to escape the consequences. His accusers, moreover, Mr. Tilton and Mr. Moulton, were persons of public reputation and honorable station in life.

The length and complexity of Fullerton's cross-examinations preclude any minute mention of them here. Once when he found fault with Mr. Beecher for not answering his questions more freely and directly, the reply was frankly made, "_I am afraid of you!_"

While cross-examining Beecher about the celebrated "ragged letter,"

Fullerton asked why he had not made an explanation to the church, if he was innocent. Beecher answered that he was keeping his part of the compact of silence, and added that he did not believe the others were keeping theirs. There was audible laughter throughout the court room at this remark, and Judge Neilson ordered the court officer to remove from the court room any person found offending--"Except the counsel," spoke up Mr. Fullerton. Later the cross-examiner exclaimed impatiently to Mr.

Beecher that he was bound to find out all about these things before he got through, to which Beecher retorted, "I don't think you are succeeding very well."

_Mr. Fullerton_ (in a voice like thunder). "Why did you not rise up and deny the charge?"

_Mr. Beecher_ (putting into his voice all that marvellous magnetic force, which so distinguished him from other men of his time). "Mr.

Fullerton, that is not my habit of mind, nor my manner of dealing with men and things."

_Mr. Fullerton._ "So I observe. You say that Theodore Tilton's charge of intimacy with his wife, and the charges made by your church and by the committee of your church, made no impression on you?"

_Mr. Beecher_ (shortly). "Not the slightest."

At this juncture Mr. Thomas G. Sherman, Beecher's personal counsel, jumped to his client's aid, and remarked that it was a singular coincidence that when counsel had not the record before him, he never quoted correctly.

_Mr. Fullerton_ (addressing the court impressively). "When Mr. Sherman is not impertinent, he is nothing in this case."

_Judge Neilson_ (to the rescue). "Probably counsel thought--"

_Mr. Fullerton_ (interrupting). "What Mr. Sherman _thinks_, your Honor, cannot possibly be of sufficient importance to take up the time either of the court or opposing counsel."

"Are you in the habit of having your sermons published?" continued Mr.

Fullerton. Mr. Beecher acknowledged that he was, and also that he had preached a sermon on "The n.o.bility of Confession."