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The Art of Cross-Examination

by Francis H. Wellman

CHAPTER I:
INTRODUCTORY

“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.”

This is the conclusion arrived at by one of England’s greatest advocates at the close of a long and eventful career at the Bar.  It was written some fifty years ago and at a time when oratory in public trials was at its height.  It is even more true at the present time, when what was once commonly reputed a “great speech “is seldom heard in our courts, because the modern methods of practising our profession have had a tendency to discourage court oratory and the development of orators.  The old-fashioned orators who were wont to “grasp the thunderbolt “are now less in favor than formerly.  With our modern jurymen the arts of oratory, “law-papers on fire,” as Lord Brougham’s speeches used to be called, though still enjoyed as impassioned literary efforts, have become almost useless as persuasive arguments or as a “summing up “as they are now called. 

Modern juries, especially in large cities, are composed of practical business men accustomed to think tor themselves, experienced 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.  Nowadays, jurymen, as a rule, are wont to bestow upon testimony the most intelligent and painstaking attention, and have a keen scent for truth.  It is not intended to maintain that juries are no longer human, or that in certain cases they do not still go widely astray, led on by their prejudices if not by their passions.  Nevertheless, in the vast majority of trials, the modern juryman, and especially the modern city juryman, it is in our large cities that the greatest number of litigated cases is tried, comes as near being the model arbiter of fact as the most optimistic champion of the institution of trial by jury could desire. 

I am aware that many members of my profession still sneer at trial by jury.  Such men, however, when not among the unsuccessful and disgruntled, will, with but few exceptions, be found to have had but little practice themselves in court, or else to belong 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, by becoming what may be styled business lawyers men who are learned in the law as a profession, but who through opportunity, combined with rare commercial ability, have come to apply their learning especially their knowledge of corporate law to great commercial enterprises, combinations, organizations, and reorganizations, and have thus come to practise law as a business. 

To such as these a book of this nature can have but little interest.  It is to those who by choice or chance are, or intend to become, engaged in that most laborious of all forms of legal business, the trial of cases in court, that the suggestions and experiences which follow are especially addressed. 

It is often truly said that many of our best lawyers I am speaking now especially of New York City are withdrawing from court practice because the nature of the litigation is changing.  To such an extent is this change taking place in some localities that the more important commercial cases rarely reach a court decision.  Our merchants prefer to compromise their difficulties, or to write off their losses, rather than enter into litigations that must remain dormant in the courts for upward of three years awaiting their turn for a hearing on the overcrowded court calendars.  And yet fully six thousand cases of one kind or another are tried or disposed of yearly in the Borough of Manhattan alone. 

This congestion is not wholly due to lack of judges, or that they are not capable and industrious men; but is largely, it seems to me, the fault of the system in vogue in all our American courts of allowing any lawyer, duly enrolled as a member of the Bar, to practise in the highest courts.  In the United States we recognize no distinction between barrister and solicitor; we are all barristers and solicitors by turn.  One has but to frequent the courts to become convinced that, so long as the ten thousand members at the New York County Bar all 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. 

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. 

One experienced in the trial of causes will not require, at the utmost, more than a quarter of the time taken by the most learned inexperienced lawyer in developing his facts.  His case will be thoroughly prepared and understood before the trial begins.  His points of law and issues of fact will be clearly defined and presented to the court and jury in the fewest possible words.  He will in this way avoid many of the erroneous rulings on questions of law and evidence which are now upsetting so many verdicts on appeal.  He will not only complete his trial in shorter time, but he will be likely to bring about an equitable verdict in the case which may not be appealed from at all, or, if appealed, will be sustained by a higher court, instead of being sent back for a retrial and the consequent consumption of the time of another judge and jury in doing the work all over again. [1]

These facts are being more and more appreciated each year, and in our local courts there is already an ever increasing coterie of trial lawyers, who are devoting the principal part of their time to court practice. 

A few lawyers have gone so far as to refuse direct communication with clients excepting as they come represented by their own attorneys.  It is pleasing to note that some of our leading advocates who, having been called away from large and active law practice to enter the government service, have expressed their intention, when they resume the practice of the law, to refuse all cases where clients are not already represented by competent attorneys, recognizing, at least in their own practice, the English distinction between the barrister and solicitor.  We are thus beginning to appreciate in this country what the English courts have so long recognized: that the only way to insure speedy and intelligently conducted litigations is to inaugurate a custom of confining court practice to a comparatively limited number of trained trial lawyers. 

The distinction between general practitioners and specialists is already established in the medical profession and largely accepted by the public.  Who would think nowadays of submitting himself to a serious operation at the hands of his family physician, instead of calling in an experienced surgeon to handle the knife?  And yet the family physician may have once been competent to play the part of surgeon, and doubtless has had, years ago, his quota of hospital experience.  But he so infrequently enters the domain of surgery that he shrinks from undertaking it, except under circumstances where there is no alternative.  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; with them it is a race of experience.  The experienced advocate can look back upon those less advanced in years or experience, and rest content in the thought that they are just so many cases behind him; that if he keeps on, with equal opportunities in court, they can never overtake him.  Some day the public will recognize this fact.  But at present, what does the ordinary litigant know of the advantages of having counsel to conduct his case who is “at home “in the court room, and perhaps even acquainted with the very panel of jurors before whom his case is to be heard, through having already tried one or more cases for other clients before the same men?  How little can the ordinary business man realize the value to himself of having a lawyer who understands the habits of thought and of looking at evidence the bent of mind of the very judge who is to preside at the trial of his case.  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. 

When the public realizes that a good trial lawyer is the outcome, one might say of generations of witnesses, when clients fully appreciate the dangers they run in intrusting their litigations to so-called “office lawyers “with little or no experience in court, they will insist upon their briefs being intrusted to those who make a specialty of court practice, advised and assisted, if you will, by their own private attorneys.  One of the chief disadvantages of our present system will be suddenly swept away; the court calendars will be cleared by speedily conducted trials; issues will be tried within a reasonable time after they are framed; the commercial cases, now disadvantageously settled out of court or abandoned altogether, will return to our courts to the satisfaction both of the legal profession and of the business community at large; causes will be more skilfully tried the art of cross-examination more thoroughly understood.

Continue to the next chapter in "The Art of Cross-Examination"


[1] In the Borough of Manhattan at the present time thirty-three per cent of the cases tried are appealed, and forty-two per cent of the cases appealed are reversed and sent back for re-trial as shown by the court statistics.

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