The Art of Cross-Examination Part 11

_Mr. Sherman_ (sarcastically). "I hope Mr. Fullerton is not going to preach _us_ a sermon."

_Mr. Fullerton._ "I would do so if I thought I could convert brother Sherman."

_Mr. Beecher_ (quietly). "I will be happy to give you the use of my pulpit."

_Mr. Fullerton_ (laughing). "Brother Sherman is the only audience I shall want."

_Mr. Beecher_ (sarcastically). "Perhaps he is the only audience you can get."

_Mr. Fullerton._ "If I succeed in converting brother Sherman, I will consider my work as a Christian minister complete."

Mr. Fullerton then read a pa.s.sage from the sermon, the effect of which was that if a person commits a great sin, and the exposure of it would cause misery, such a person would not be justified in confessing it, merely to relieve his own conscience. Mr. Beecher admitted that he still considered that "sound doctrine."

At this point Mr. Fullerton turned to the court, and pointing to the clock, said, "Nothing comes after the sermon, I believe, but the benediction." His Honor took the hint, and the proceedings adjourned.[22]

[22] Extracts from the daily press accounts of the proceedings of one of the thirty days of the trial, as reported in "Modern Jury Trials," Donovan.

In this same trial Hon. 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. He has been called "the Prince of the American Bar." He was a gentleman of high scholars.h.i.+p and fine literary tastes.

His manner in the trial of a case has been described by some one as "all head, nose, voice, and forefinger." He was five feet seven inches tall, thin and slender, "with a face like parchment."

Mr. Joseph H. Choate once told me he considered that he owed his own success in court to the nine years during which he acted as Mr. Evarts's junior in the trial of cases. No one but Mr. Choate himself would have said this. His transcendent genius as an advocate could not have been acquired from any tutelage under Mr. Evarts. When Mr. Choate accepted his appointment as Amba.s.sador to the Court of St. James, he retired from the practice of the law; and it is therefore permissible to comment upon his marvellous talents as a jury lawyer. He was not only easily the leading trial lawyer of the New York Bar, but was by many thought to be the representative lawyer of the American Bar. Surely no man of his time was more successful in winning juries. His career was one uninterrupted success. Not that he shone especially in any particular one of the duties of the trial lawyer, but he was preeminent in the quality of his humor and keenness of satire. His whole conduct of a case, his treatment of witnesses, of the court, of opposing counsel, and especially of the jury, were so irresistibly fascinating and winning that he carried everything before him. One would emerge from a three weeks' contest with Choate in a state almost of mental exhilaration, despite the jury's verdict.

It was not so with the late Edward C. James; a contest with him meant great mental and physical fatigue for his opponent. James was ponderous and indefatigable. His cross-examinations were labored in the extreme.

His manner as an examiner was dignified and forceful, his mind always alert and centred on the subject before him; but he had none of Mr.

Choate's fascination or brilliancy. He was dogged, determined, heavy. He would pound at you incessantly, but seldom reached the mark. He literally wore out his opponent, and could never realize that he was on the wrong side of a case until the foreman of the jury told him so. Even then he would want the jury polled to see if there was not some mistake.

James never smiled except in triumph and when his opponent frowned. When Mr. Choate smiled, you couldn't help smiling with him. During the last ten years of his life James was found on one side or the other of most of the important cases that were tried. He owed his success to his industrious and indefatigable qualities as a fighter; not, I think, to his art.

James T. Brady was called "the Curran of the New York Bar." His success was almost entirely due to his courtesy and the marvellous skill of his cross-examinations. He had a serene, captivating manner in court, and was one of the foremost orators of his time. He has the proud record of having defended fifty men on trial for their lives, and of saving every one of them from the gallows.

On the other hand, William A. Beech, "the Hamlet of the American Bar,"

was a poor cross-examiner. He treated all his witnesses alike. He was methodical, but of a domineering manner. He was slow to attune himself to an unexpected turn in a case he might be conducting. He lost many cases and was not fitted to conduct a desperate one. It was as a court orator that he was preeminent. His speech in the Beecher case alone would have made him a reputation as a consummate orator. His vocabulary was surprisingly rich and his voice wonderfully winning.

It is said of James W. Gerard, the elder, that "he obtained the greatest number of verdicts against evidence of any one who ever practised at the New York Bar. He was full of expedients and possessed extraordinary tact. In his profound knowledge of human nature and his ready adaptation, in the conduct of trials, to the peculiarities, caprices, and whims of the different juries before whom he appeared he was almost without a rival.... Any one who witnessed the telling hits made by Mr.

Gerard on cross-examination, and the sensational incidents sprung by him upon his opponents, the court, and the jury, would have thought that he acted upon the inspiration of the moment--that all he did and all he said was _impromptu_. In fact, Mr. Gerard made thorough preparation for trial. Generally his. .h.i.ts in cross-examination were the result of previous preparation. He made briefs for cross-examination. To a large extent his flashes of wit and his extraordinary and grotesque humor were well pondered over and studied up beforehand."[23]

[23] "Extraordinary Cases," Henry Lauran Clinton.

Justice Miller said of Roscoe Conkling that "he was one of the greatest men intellectually of his time." He was more than fifty years of age when he abandoned his arduous public service at Was.h.i.+ngton, and opened an office in New York City. During his six years at the New York Bar, such was his success, that he is reputed to have acc.u.mulated, for a lawyer, a very large fortune. He const.i.tuted himself a barrister and adopted the plan of acting only as counsel. He was fluent and eloquent of speech, most thorough in the preparation of his cases, and an accomplished cross-examiner. Despite his public career, he said of himself, "My proper place is to be before twelve men in the box."

Conkling used to study for his cross-examinations, in important cases, with the most painstaking minuteness. In the trial of the Rev. Henry Burge for murder, Conkling saw that the case was likely to turn upon the cross-examination of Dr. Swinburne, who had performed the autopsy. The charge of the prosecution was that Mrs. Burge had been strangled by her husband, who had then cut her throat. In order to disprove this on cross-examination, Mr. Conkling procured a body for dissection and had dissected, in his presence, the parts of the body that he wished to study. As the result of Dr. Swinburne's cross-examination at the trial, the presiding judge felt compelled to declare the evidence so entirely untrustworthy that he would decline to submit it to the jury and directed that the prisoner be set at liberty.

This studious preparation for cross-examination was one of the secrets of the success of Benjamin F. Butler. He was once known to have spent days in examining all parts of a steam-engine, and even learning to drive one himself, in order to cross-examine some witnesses in an important case in which he had been retained. At another time Butler spent a week in the repair shop of a railroad, part of the time with coat off and hammer in hand, ascertaining the capabilities of iron to resist pressure--a point on which his case turned. To use his own language: "A lawyer who sits in his office and prepares his cases only by the statements of those who are brought to him, will be very likely to be beaten. A lawyer in full practice, who carefully prepares his cases, must study almost every variety of business and many of the sciences." A pleasant humor and a lively wit, coupled with wonderful thoroughness and acuteness, were Butler's leading characteristics. He was not a great lawyer, nor even a great advocate like Rufus Choate, and yet he would frequently defeat Choate. His cross-examination was his chief weapon. Here he was fertile in resource and stratagem to a degree attained by few others. Choate had mastered all the little tricks of the trial lawyer, but he attained also to the grander thoughts and the logical powers of the really great advocate. Butler's success depended upon zeal, combined with shrewdness and not overconscientious trickery.

In his autobiography, Butler gives several examples of what he was pleased to call his legerdemain, and to believe were ill.u.s.trations of his skill as a cross-examiner. They are quoted from "Butler's Book," but are not reprinted as ill.u.s.trations of the subtler forms of cross-examination, but rather as indicative of the tricks to which Butler owed much of his success before country juries.

"When I was quite a young man I was called upon to defend a man for homicide. He and his a.s.sociate had been engaged in a quarrel which proceeded to blows and at last to stones. My client, with a sharp stone, struck the deceased in the head on that part usually called the temple.

The man went and sat down on the curbstone, the blood streaming from his face, and shortly afterward fell over dead.

"The theory of the government was that he died from the wound in the temporal artery. My theory was that the man died of apoplexy, and that if he had bled more from the temporal artery, he might have been saved--a wide enough difference in the theories of the cause of death.

"Of course to be enabled to carry out my proposition I must know all about the temporal artery,--its location, its functions, its capabilities to allow the blood to pa.s.s through it, and in how short a time a man could bleed to death through the temporal artery; also, how far excitement in a body stirred almost to frenzy in an embittered conflict, and largely under the influence of liquor on a hot day, would tend to produce apoplexy. I was relieved on these two points in my subject, but relied wholly upon the testimony of a surgeon that the man bled to death from the cut on the temporal artery from a stone in the hand of my client. That surgeon was one of those whom we sometimes see on the stand, who think that what they don't know on the subject of their profession is not worth knowing. He testified positively and distinctly that there was and could be no other cause for death except the bleeding from the temporal artery, and he described the action of the bleeding and the amount of blood discharged.

"Upon all these questions I had thoroughly prepared myself.

"_Mr. Butler._ 'Doctor, you have talked a great deal about the temporal artery; now will you please describe it and its functions? I suppose the temporal artery is so called because it supplies the flesh on the outside of the skull, especially that part we call the temples, with blood.'

"_Witness._ 'Yes; that is so.'

"_Mr. Butler._ 'Very well. Where does the temporal artery take its rise in the system? Is it at the heart?'

"_Witness._ 'No, the aorta is the only artery leaving the heart which carries blood toward the head. Branches from it carry the blood up through the opening into the skull at the neck, and the temporal artery branches from one of these.'

"_Mr. Butler._ 'Doctor, where does it branch off from it? On the inside or the outside of the skull?'

"_Witness._ 'On the inside.'

"_Mr. Butler._ 'Does it have anything to do inside with supplying the brain?'

"_Witness._ 'No.'

"_Mr. Butler._ 'Well, doctor, how does it get outside to supply the head and temples?'

"_Witness._ 'Oh, it pa.s.ses out through its appropriate opening in the skull.'

"_Mr. Butler._ 'Is that through the eyes?'

"_Witness._ 'No.'

"_Mr. Butler._ 'The ears?'

"_Witness._ 'No.'

"_Mr. Butler._ 'It would be inconvenient to go through the mouth, would it not, doctor?'

"Here I produced from my green bag a skull. 'I cannot find any opening on this skull which I think is appropriate to the temporal artery. Will you please point out the appropriate opening through which the temporal artery pa.s.ses from the inside to the outside of the skull?'

"He was utterly unable so to do.

"_Mr. Butler._ 'Doctor, I don't think I will trouble you any further; you can step down.' He did so, and my client's life was saved on that point.

"The temporal artery doesn't go inside the skull at all.

"I had a young client who was on a railroad car when it was derailed by a broken switch. The car ran at considerable speed over the cross-ties for some distance, and my client was thrown up and down with great violence on his seat. After the accident, when he recovered from the bruising, it was found that his nervous system had been wholly shattered, and that he could not control his nerves in the slightest degree by any act of his will. When the case came to trial, the production of the pin by which the position of the switch was controlled, two-thirds worn away and broken off, settled the liability of the road for any damages that occurred from that cause, and the case resolved itself into a question of the amount of damages only. My claim was that my client's condition was an incurable one, arising from the injury to the spinal cord. The claim put forward on behalf of the railroad was that it was simply nervousness, which probably would disappear in a short time. The surgeon who appeared for the road claimed the privilege of examining my client personally before he should testify. I did not care to object to that, and the doctor who was my witness and the railroad surgeon went into the consultation room together and had a full examination in which I took no part, having looked into that matter before.

"After some substantially immaterial matters on the part of the defence, the surgeon was called and was qualified as a witness. He testified that he was a man of great position in his profession. Of course in that I was not interested, for I knew he could qualify himself as an expert.

In his direct examination he spent a good deal of the time in giving a very learned and somewhat technical description of the condition of my client. He admitted that my client's nervous system was very much shattered, but he also stated that it would probably be only temporary.

Of all this I took little notice; for, to tell the truth, I had been up quite late the night before and in the warm court room felt a little sleepy. But the counsel for the road put this question to him:--