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The Art of Cross-Examination

by Francis H. Wellman

CHAPTER V
CROSS-EXAMINATION OF EXPERTS

In these days when it is impossible to know everything, but 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. 

In our American courts, as they are now constituted, I think I am safe in saying that in half the cases presented to a jury the evidence of one or more expert witnesses becomes a very important factor in a juror’s effort to arrive at a just verdict.  The proper handling of these witnesses, therefore, has become of greater importance at the present time than ever before.  It is useless for our law writers to dismiss the subject of expert testimony, as is so often the case, by quoting some authority like Lord Campbell, who gives it as his final judgment, after the experience of a lifetime at the bar and on the bench, that “skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence; “or, as Taylor even more emphatically puts it in the last edition of his treatise on the “Law of Evidence,” “Expert witnesses become so warped in their judgment by regarding the subject in one point of view, that, even when conscientiously disposed, they are incapable of expressing a candid opinion.”  The fact still remains that the testimony of expert witnesses must be reckoned with in about sixty per cent of our more important litigated business, and the only possible way to enlighten our jurors and enable them to arrive at a just estimate of such testimony is by a thorough understanding of the art of cross-examination of such witnesses. 

Although the cross-examination of various experts, whether medical, handwriting, real estate, or other specialists, is a subject of growing importance, yet it is not intended in this chapter to do more than to make some suggestions and to give a number of illustrations of certain methods that have been successfully adopted in the examination of this class of witnesses. 

It has become a matter of common observation that not only can the honest opinions of different experts be obtained upon opposite sides of the same question, but also that dishonest opinions may be obtained upon different sides of the same question. 

Attention is also called to the distinction between mere matters of scientific fact and mere matters of opinion.  For example: certain medical experts may be called to establish certain medical facts which are not mere matters of opinion.  On such facts the experts could not disagree; but in the province of mere opinion it is well known that the experts differ so much among themselves that but little credit is given to mere expert opinion as such. 

As a general thing, it is unwise for the cross-examiner to attempt to cope with a specialist in his own field of inquiry.  Lengthy cross-examinations along the lines of the expert’s theory are usually disastrous and should rarely be attempted.

Many lawyers, for example, undertake to cope with a medical or handwriting expert on his own ground, surgery, correct diagnosis, or the intricacies of penmanship.  In some rare instances (more especially with poorly educated physicians) this method of cross-questioning is productive of results.  More frequently, however, it only affords an opportunity for the doctor to enlarge upon the testimony he has already given, and to explain what might otherwise have been misunderstood or even entirely overlooked by the jury.  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 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. 

On the other hand, some careful and judicious questions, seeking to bring out separate facts and separate points from the knowledge and experience of the expert, which will tend to support the theory of the attorney’s own side of the case, are usually productive of good results.  In other words, the art of the cross-examiner should be directed to bring out such scientific facts from the knowledge of the expert as will help his own case, and thus tend to destroy the weight of the opinion of the expert given against him. 

Another suggestion which should always be borne in mind is that no question should be put to an expert which is in any way so broad as to give the expert an opportunity to expatiate upon his own views, and thus afford him an opportunity in his answer to give his reasons, in his own way, for his opinions, which counsel calling him as an expert might not otherwise have fully brought out in his examination. 

It was in the trial of Dr.  Buchanan on the charge of murdering his wife, that a single, ill-advised question put upon cross-examination to the physician who had attended Mrs.  Buchanan upon her death-bed, and who had given it as his opinion that her death was due to natural causes, which enabled the jury, after twenty-four hours of dispute among themselves, finally to agree against the prisoner on a verdict of murder in the first degree, resulting in Buchanan’s execution. 

The charge against Dr.  Buchanan was that he had poisoned his wife a woman considerably older than himself, and who had made a will in his favor with morphine and atropine, each drug being used in such proportion as to effectually obliterate the group of symptoms attending death when resulting from the use of either drug alone. 

At Buchanan’s trial the district attorney found himself in the extremely awkward position of trying to persuade a jury to decide that Mrs.  Buchanan’s death was, beyond all reasonable doubt, the result of an overdose of morphine mixed with atropine administered by her husband, although a respectable physician, who had attended her at her death-bed, had given it as his opinion that she died from natural causes, and had himself made out a death certificate in which he attributed her death to apoplexy. 

It was only fair to the prisoner that he should be given the benefit of the testimony of this physician.  The District Attorney, therefore, called the doctor to the witnessstand and questioned him concerning the symptoms he had observed during his treatment of Mrs.  Buchanan just prior to her death, and developed the fact that the doctor had made out a death certificate in which he had certified that in his opinion apoplexy was the sole cause of death.  The doctor was then turned over to the lawyers for the defence for cross-examination. 

One of the prisoner’s counsel, who had far more knowledge of medicine than of the art of cross-examination, was assigned the important duty of cross-examining this witness.  After badgering the doctor for an hour or so with technical medical questions more or less remote from the subject under discussion, and tending to show the erudition of the lawyer who was conducting the examination rather than to throw light upon the inquiry uppermost in the minds of the jury, the cross-examiner finally reproduced the death certificate and put it in evidence, and calling the doctor’s attention to the statement therein made that death was the result of apoplexy exclaimed, while flourishing the paper in the air:

“Now, doctor, you have told us what this lady’s symptoms were, you have told us what you then believed was the cause of her death; I now ask you, has anything transpired since Mrs.  Buchanan’s death which would lead you to change your opinion as it is expressed in this paper?”

The doctor settled back in his chair and slowly repeated the question asked: “Has -- anything -- transpired -- since -- Mrs.  Buchanan’s -- death – which -- would -- lead -- me -- to -- change -- my -- opinion -- as -- it -- is -- expressed -- in -- this – paper?”  The witness turned to the judge and inquired if in answer to such a question he would be allowed to speak of matters that had come to his knowledge since he wrote the certificate.  The judge replied: “The question is a broad one.  Counsel asks you if you know of any reason why you should change your former opinion?” 

The witness leaned forward to the stenographer and requested him to read the question over again.  This was done.  The attention of everybody in court was by this time focused upon the witness, intent upon his answer.  It seemed to appear to the jury as if this must be the turning point of the case. 

The doctor having heard the question read a second time, paused for a moment, and then straightening himself in his chair, turned to the cross-examiner and said, “I wish to ask you a question, Has the report of the chemist telling of his discovery of atropine and morphine in the contents of this woman’s stomach been offered in evidence yet?”The court answered, “It has not.” 

“One more question,” said the doctor, “Has the report of the pathologist yet been received in evidence?”The court replied, “No.” 

“Then?  said the doctor, rising in his chair, “I can answer your question truthfully, that as yet in the absence of the pathological report and in the absence of the chemical report I know of no legal evidence which would cause me to alter the opinion expressed in my death certificate.” 

It is impossible to exaggerate the impression made upon the court and jury by these answers.  All the advantage that the prisoner might have derived from the original death certificate was entirely swept away. 

The trial lasted for fully two weeks after this episode.  When the jury retired to their consultation room at the end of the trial, they found they were utterly unable to agree upon a verdict.  They argued among themselves for twenty-four hours without coming to any conclusion.  At the expiration of this time the jury returned to the court room and asked to have the testimony of this doctor reread to them by the stenographer.  The stenographer, as he read from his notes, reproduced the entire scene which had been enacted two weeks before.  The jury retired a second time and immediately agreed upon their verdict of death. 

The cross-examinations of the medical witnesses in the Buchanan case conducted by this same “Medico-legal Wonder” were the subject of very extended newspaper praise at the time, one daily paper devoting the entire front page of its Sunday edition to his portrait. 

How expert witnesses have been discredited with juries in the past, should serve as practical guides for the future.  The whole effect of the testimony of an expert witness may sometimes effectually be destroyed by putting the witness to some unexpected and offhand test at the trial, as to his experience, his ability and discrimination as an expert, so that in case of his failure to meet the test he can be held up to ridicule before the jury, and thus the laughter at his expense will cause the jury to forget anything of weight that he has said against you. 

I have always found this to be the most effective method to cross-examine a certain type of professional medical witnesses now so frequently seen in our courts.  A striking instance of the efficacy of this style of cross-examination was experienced by the writer in a damage suit against the city of New York, tried in the Supreme Court sometime in 1887. 

A very prominent physician, president of one of our leading clubs at the time, but now dead, had advised a woman who had been his housekeeper for thirty years, and who had broken her ankle in consequence of stepping into an unprotected hole in the street pavement, to bring suit against the city to recover $40,000 damages.  There was very little defence to the principal cause of action: the hole in the street was there, and the plaintiff had stepped into it; but her right to recover substantial damages was vigorously contested. 

Her principal, in fact her only medical witness was her employer, the famous physician.  The doctor testified to the plaintiff’s sufferings, described the fracture of her ankle, explained how he had himself set the broken bones and attended the patient, but affirmed that all his efforts were of no avail as he could bring about nothing but a most imperfect union of the bones, and that his housekeeper, a most respectable and estimable lady, would be lame for life.  His manner on the witness stand was exceedingly dignified and frank, and evidently impressed the jury.  A large verdict of fully $15,000 was certain to be the result unless this witness’s hold upon the jury could be broken on his cross-examination.  There was no reason known to counsel why this ankle should not have healed promptly, as such fractures usually do; but how to make the jury realize the fact was the question.  The intimate personal acquaintance between the cross-examiner and the witness was another embarrassment. 

The cross-examination began by showing that the witness, although a graduate of Harvard, had not immediately entered a medical school, but on the contrary had started in business in Wall Street, had later been manager of several business enterprises, and had not begun the study of medicine until he was forty years old.  The examination then continued in the most amiable manner possible, each question being asked in a tone almost of apology. 

Counsel.   “We all know, doctor, that you have a large and lucrative family practice as a general practitioner; but is it not a fact that in this great city, where accidents are of such common occurrence, surgical cases are usually taken to the hospitals and cared for by experienced surgeons?”

Doctor.  “Yes, sir, that is so.” 

Counsel.   “You do not even claim to be an experienced surgeon?”

Doctor.  “Oh, no, sir.  I have the experience of any general practitioner.” 

Counsel.   “What would be the surgical name for the particular form of fracture that this lady suffered?”

Doctor.  “What is known as a ‘Potts fracture of the ankle.’ “

Counsel “That is a well-recognized form of fracture, is it not?”

Doctor.  “Oh, yes.” 

Counsel (chancing it).  “Would you mind telling the jury about when you had a fracture of this nature in your regular practice, the last before this one?”

Doctor (dodging).  “I should not feel at liberty to disclose the names of my patients.” 

Counsel (encouraged).  “I am not asking for names and secrets of patients far from it.  I am only asking for the date, doctor; but on your oath.” 

Doctor.  “I couldn’t possibly give you the date, sir.” 

Counsel (still feeling his way).  “Was it within the year preceding this one?”

Doctor (hesitating).  “I would not like to say, sir.” 

Counsel (still more encouraged).  “I am sorry to press you, sir; but I am obliged to demand a positive answer from you whether or not you had had a similar case of ‘Potts fracture of the ankle’ the year preceding this one?” 

Doctor.  “Well, no, I cannot remember that I had.” 

Counsel.   “Did you have one two years before?”

Doctor.  “I cannot say.” 

Counsel (forcing the issue).  “Did you have one within five years preceding the plaintiff’s case?”

Doctor.  “I am unable to say positively.” 

Counsel, (appreciating the danger of pressing the inquiry further, but as a last resort).  “Will you swear that you ever had a case of ‘Potts fracture ‘within your own practice before this one?  I tell you frankly, if you say you have, I shall ask you day and date, time, place, and circumstance.” 

Doctor (much embarrassed).  “Your question is an embarrassing one.  I should want time to search my memory.” 

Counsel.   “I am only asking you for your best memory as a gentleman, and under oath.” 

Doctor.  “If you put it that way, I will say I cannot now remember of any case previous to the one in question, excepting as a student in the hospitals.” 

Counsel.   “But does it not require a great deal of practice and experience to attend successfully so serious a fracture as that involving the ankle joint?”

Doctor.  “Oh, yes.” 

Counsel.   “Well, doctor, speaking frankly, won’t you admit that ‘Potts fractures ‘are daily being attended to in our hospitals by experienced men, and the use of the ankle fully restored in a few months’ time?”

Doctor.  “That may be, but much depends upon the age of the patient; and again, in some cases, nothing seems to make the bones unite.” 

Counsel (stooping under the table and taking up the two lower bones of the leg attached and approaching the witness).  “Will you please take these, doctor, and tell the jury whether in life they constituted the bones of a woman’s leg or a man’s leg?”

Doctor.  “It is difficult to tell, sir.” 

Counsel.   “What, can’t you tell the skeleton of a woman’s leg from a man’s, doctor?”

Doctor.  “Oh, yes, I should say it was a woman’s leg.” 

Counsel (smiling and looking pleased).  “So in your opinion, doctor, this was a woman s leg?”  [It was a woman’s leg.]

Doctor (observing counsel’s face and thinking he had made a mistake).  “Oh, I beg your pardon, it is a man’s leg, of course.  I had not examined it carefully.” 

By this time the jury were all sitting upright in their seats and evinced much amusement at the doctor’s increasing embarrassment. 

Counsel (still smiling).  “Would you be good enough to tell the jury if it is the right leg or the left leg?” 

Doctor (quietly, but hesitatingly).  [It is very difficult for the inexperienced to distinguish right from left] “This is the right leg.” 

Counsel (astonished).  “What do you say, doctor?”

Doctor (much confused).  “Pardon me, it is the left leg.” 

Counsel.   “Were you not right the first time, doctor.  Is it not in fact the right leg?”

Doctor.  “I don’t think so; no, it is the left leg.” 

Counsel (again stooping and bringing from under the table the bones of the foot attached together, and handing it to the doctor).  “Please put the skeleton of the foot into the ankle joint of the bones you already have in your hand, and then tell me whether it is the right or left leg.” 

Doctor (confidently).  “Yes, it is the left leg, as I said before.” 

Counsel (uproariously).  “But, doctor, don’t you see you have inserted the foot into the knee joint?  Is that the way it is in life?”

The doctor, amid roars of laughter from the jury, in which the entire court room joined, hastily readjusted the bones and sat blushing to the roots of his hair.  Counsel waited until the laughter had subsided, and then said quietly, “I think I will not trouble you further, doctor.” 

This incident is not the least bit exaggerated; on the contrary, the impression made by the occurrence is difficult to present adequately on paper.  Counsel on both sides proceeded to sum up the case, and upon the part of the defence no allusion whatsoever was made to the incident just described.  The jury appreciated the fact, and returned a verdict for the plaintiff for $240.  Next day the learned doctor wrote a four-page letter of thanks and appreciation that the results of his “stage fright “had not been spread before the jury in the closing speech. 

As distinguished from the lengthy, though doubtless scientific, cross-examination of experts in handwriting with which the profession has become familiar in many recent famous trials that have occurred in this city, the following incident cannot fail to serve as a forcible illustration of the suggestions laid down as to the cross-examination of specialists.  It would almost be thought improbable in a romance, yet every word of it is true. 

In the trial of Ellison for felonious assault upon William Henriques, who had brought Mr. Ellison’s attentions to his daughter, Mrs.  Lila Noeme, to a sudden close by forbidding him his house, the authenticity of some letters, alleged to have been written by Mrs.  Noeme to Mr. Ellison, was brought in question.  The lady herself had strenuously denied that the alleged compromising documents had ever been written by her.  Counsel for Ellison, the late Charles Brooks, Esq., had evidently framed his whole cross-examination of Mrs.  Noeme upon these letters, and made a final effort to introduce them in evidence by calling Professor Ames, the well-known expert in handwriting.  He deposed to having closely studied the letter in question, in conjunction with an admittedly genuine specimen of the lady’s handwriting, and gave it as his opinion that they were all written by the same hand.  Mr. Brooks then offered the letters in evidence, and was about to read them to the jury when the assistant district attorney asked permission to put a few questions. 

District Attorney.  “Mr. Ames, as I understood you, you were given only one sample of the lady’s genuine handwriting, and you base your opinion upon that single exhibit, is that correct?”

Witness.  “Yes, sir, there was only one letter given me, but that was quite a long one, and afforded me great opportunity for comparison.” 

District Attorney.  “Would it not assist you if you were given a number of her letters with which to make a comparison?”

Witness.  “Oh, yes, the more samples I had of genuine handwriting, the more valuable my conclusion would become.” 

District Attorney (taking from among a bundle of papers a letter, folding down the signature and handing it to the witness).  “Would you mind taking this one and comparing it with the others, and then tell us if that is in the same handwriting?”

Witness (examining paper closely for a few minutes).  “Yes, sir, I should say that was the same handwriting.” 

District Attorney.  “Is it not a fact, sir, that the same individual may write a variety of hands upon different occasions and with different pens?” 

Witness.  “Oh, yes, sir; they might vary somewhat.” 

District Attorney (taking a second letter from his files, also folding over the signature and handing to the witness).  “Won’t you kindly take this letter, also, and compare it with the others you have?”

Witness (examining the letter).  “Yes, sir, that is a variety of the same penmanship.” 

District Attorney.  “Would you be willing to give it as your opinion that it was written by the same person?” 

Witness.  “I certainly would, sir.” 

District Attorney (taking a third letter from his files, again folding over the signature, and handing to the witness).  “Be good enough to take just one more sample I don’t want to weary you and say if this last one is also in the lady’s handwriting.” 

Witness (appearing to examine it closely, leaving the witness-chair and going to the window to complete his inspection).  “Yes, sir; you understand I am not swearing to a fact, only an opinion.” 

District Attorney (good-naturedly).  “Of course I understand; but is it your honest opinion as an expert, that these three letters are all in the same handwriting?”

Witness.  “I say yes, it is my honest opinion.” 

District Attorney.  “Now, sir, won’t you please turn down the edge where I folded over the signature to the first letter I handed you, and read aloud to the jury the signature?”

Witness (unfolding the letter and reading triumphantly).  “Lila Naome? 

District Attorney.  “Please unfold the second letter and read the signature.” 

Witness (reading).  “William Henriques? 

District Attorney.  “Now the third, please.” 

Witness (hesitating and reading with much embarrassment).  “Frank Ellison!” [1]

The alleged compromising letters were never read to the jury. 

It will not be uninteresting, by way of contrast, I think, to record here another instance where the cross-examination of an expert in handwriting did more to convict a prisoner, probably, than any other one piece of evidence during the entire trial. 

The examination referred to occurred in the famous trial of Munroe Edwards, who was indicted for forging two drafts upon Messrs.  Brown Brothers & Company, who had offered a reward of $20,000 for his arrest. 

Munroe had engaged Mr. Robert Emmet to defend him, and had associated with Emmet as his counsel Mr. William M.  Evarts and several famous lawyers from without the state.  At that time the district attorney was Mr. James R.  Whiting, who had four prominent lawyers, including Mr. Ogden Hoffman, associated with him upon the side of the government. 

Recorder Vaux, of Philadelphia, was called to the witness-stand as an expert in handwriting, and in his direct testimony had very clearly identified the prisoner with the commission of the particular forgery for which he was on trial.  He was then turned over to Mr. Emmet for cross-examination. 

Mr. Emmet (taking a letter from among his papers and handing it to the witness, after turning down the signature).  “Would you be good enough to tell me, Mr. Vaux, who was the author of the letter which I now hand you?”

Mr. Vaux (answering promptly).  “This letter is in the handwriting of Munroe Edwards.” 

Mr. Emmet.  “Do you feel certain of that, Mr. Vaux?”

Mr. Vaux.  “I do.” 

Mr. Emmet.  “As certain as you are in relation to the handwriting of the letters which you have previously identified as having been written by the prisoner?” 

Mr. Vaux.  “Exactly the same.” 

Mr. Emmet.  “You have no hesitation then in swearing positively that the letter you hold in your hand, in your opinion, was written by Munroe Edwards?”

Mr. Vaux.  “Not the slightest.” 

Mr. Emmet (with a sneer).  “That will do, sir.” 

District Attorney (rising quickly).  “Let me see the letter.” 

Mr. Emmet (contemptuously).  “That is your privilege, sir, but I doubt if it will be to your profit.  The letter is directed to myself, and is written by the cashier of the Orleans bank, informing me of a sum of money deposited in that institution to the credit of the prisoner.  Mr. Vaux’s evidence in relation to it will test the value of his testimony in relation to other equally important points.” 

Mr. Vaux here left the witness chair and walked to the table of the prosecution, reexamined the letter carefully, then reached to a tin box which was in the keeping of the prosecution and which contained New Orleans post-office stamps.  He then resumed his seat in the witness chair. 

Mr. Vaux (smiling).  “I may be willing, Mr. Emmet, to submit my testimony to your test.” 

Mr. Emmet made no reply, but the prosecuting attorney continued the examination as follows:

District Attorney.  “You have just testified, Mr. Vaux, that you believe the letter which you now hold in your hand was written by the same hand that wrote the Caldwell forgeries, and that such hand was Munroe Edwards’s.  Do you still retain that opinion?”

Mr. Vaux.  “I do.” 

District Attorney.  “Upon what grounds?”

Mr. Vaux.  “Because it is a fellow of the same character as well in appearance as in device.  It is a forgery, probably only intended to impose upon his counsel, but now by its unadvised introduction in evidence, made to impose upon himself and brand him as a forger.” 

The true New Orleans stamps were here shown to be at variance with the counterfeit postmark upon the forged letter, and the character of the writing was also proved by comparison with many letters which were in the forger’s undoubted hand. 

It turned out subsequently that the prisoner had informed his counsel, Mr. Emmet, that he was possessed of large amounts of property in Texas, some of which he had ordered to be sold to meet the contingent cost of his defence.  He had drawn up a letter purporting to come from a cashier in a bank at New Orleans, directed to Mr. Emmet, informing him of the deposit on that day of $1500 to the credit of his client, which notification he, the cashier, thought proper to send to the counsel, as he had observed in the newspapers that Mr. Edwards was confined to the jail.  Mr. Emmet was so entirely deceived by this letter that he had taken it to his client in prison, and had shown it to him as a sign of pleasant tidings.[2]

The manufacture or exaggeration of injuries, in damage cases against surface railroads and other corporations, had at one time, not many years ago, become almost a trade among a certain class of lawyers in the city of New York. 

There are several medical books which detail the symptoms that may be expected to be exhibited in almost any form of railroad accidents.  Any lawyer who is familiar with the pages of these books can readily detect indications of an equal familiarity with them on the part of the lawyer who is examining his client the plaintiff in an accident case as to the symptoms of his malady as set forth in these medical treatises, which have probably been put into his hands in order that he may become thoroughly posted upon the symptoms which he would be expected to manifest. 

It becomes interesting to watch the history of some of these cases after the substantial amount of the verdict awarded by a jury has been paid over to the suffering plaintiff.  Only last winter a couple of medical gentlemen were called as witnesses in a case where a Mrs. Bogardus was suing the Metropolitan Street Railway Company for injuries she claimed to have sustained while a passenger on one of the defendant’s cars.  These expert physicians swore that Mrs. Bogardus had a lesion of the spine and was suffering from paralysis as a result of the accident.  According to the testimony of the doctors, her malady was incurable and permanent.  The records of the legal department of this railway company showed that these same medical gentlemen had, on a prior occasion in the case of a Mr. Hoyt against the railroad, testified to the same state of affairs in regard to Mr. Hoyt’s physical condition.  He, too, was alleged to be suffering from an incurable lesion of the spine and would be paralyzed and helpless for the balance of his life.  The records of the company also showed that Hoyt had recovered his health promptly upon being paid the amount of his verdict.  At the time of the Bogardus trial Hoyt had been employed by H.  B. Claflin & Co.  for three years.  He was working from seven in the morning until six in the evening, lifting heavy boxes and loading trucks. 

The moment the physicians had finished their testimony in the Bogardus case, this man Hoyt was subpoenaed by the railroad company.  On cross-examination these physicians both recollected the Hoyt case and their attention was called to the stenographic minutes of the questions and answers they had given under oath in that case.  They were then asked if Hoyt was still alive and where he could be found.  They both replied that he must be dead by this time, that his case was a hopeless one, and if not dead, he would probably be found as an inmate of one of our public insane asylums. 

At this stage of the proceedings Hoyt arrived in the court room.  He was requested to step forward in front of the jury.  The doctors were asked to identify him, which they both did.  Hoyt then took the witness-stand himself and admitted that he had never had a sick moment since the day the jury rendered a verdict in his favor; that he had gained thirty-five pounds in weight, and that he was then doing work which was harder than any he had ever done before in his life; that he worked from early morning till late at night; had never been in an insane asylum or under the care of any doctor since his trial; and ended up by making the astounding statement that out of the verdict rendered him by the jury and paid by the railroad company, he had been obliged to forfeit upwards of 1500 to the doctors who had treated him and testified in his behalf. 

This was a little too much enlightenment for the jury in Mrs. Bogardus’s case, and this time they rendered their verdict promptly in favor of the railroad company. 

I cannot forbear relating in this connection another most striking instance of the unreliability of expert testimony in personal injury cases.  This is especially the case with certain New York physicians who openly confess it to be a part of their professional business to give expert medical testimony in court.  Some of these men have taken a course at a law school in connection with their medical studies for the very purpose of fitting themselves for the witness-stand as medical experts. 

One of these gentlemen gave testimony in a case which was tried only last November, which should forever brand him as a dangerous witness in any subsequent litigation in which he may appear.  I have reference to the trial of Ellen McQuade against the Metropolitan Street Railway Company.  This was a suit brought on behalf of the next of kin, to recover damages for the death of John McQuade who had fallen from a surface railway car and had broken his wrist so that the bone penetrated the skin.  This wound was slow in healing and did not close entirely until some three months later.  About six months after his accident McQuade was suddenly taken ill and died.  An autopsy disclosed the fact that death resulted from inflammation of the brain, and the effort of the expert testimony in the case was to connect this abscess of the brain with the accident to the wrist, which had occurred six months previously. 

This expert doctor had, of course, never seen McQuade in his lifetime, and knew nothing about the case except what was contained in the hypothetical question which he was called upon to answer.  He gave it as his opinion that the broken wrist was the direct cause of the abscess in the brain, which in turn was due to a pus germ that had travelled from the wound in the arm by means of the lymphatics up to the brain, where it had found lodgment and developed into an abscess of the brain, causing death. 

The contention of the railway company was that the diseased condition of the brain was due to “middleear disease,” which itself was the result of a cold or exposure, and in nowise connected with the accident; and that the presence of the large amount of fluid which was found in the brain after death could be accounted for only by this disease. 

During the cross-examination of this medical expert, a young woman, wearing a veil, had come into court and

was requested to step forward and lift her veil.  The doctor was then asked to identify her as a Miss Zimmer, for whom he had testified some years previously in her damage suit against the same railway company. 

At her own trial Miss Zimmer had been carried into the court room resting in a reclining chair, apparently unable to move her lower limbs, and this doctor had testified that she was suffering from chronic myelitis, an affection of the spine, which caused her to be paralyzed, and that she would never be able to move her lower limbs.  His oracular words to the jury were, “Just as she is now, gentlemen, so she will always be.”  The witness’s attention was called to these statements, and he was confronted with Miss Zimmer, now apparently in the full vigor of her health, and who had for many years been acting as a trained nurse.  She afterward took the witness-stand and admitted that the jury had found a verdict for her in the sum of $15,000, but that her paralysis had so much improved after the administration of this panacea by the railway company that she was able, after a few months, to get about with the aid of crutches, and shortly thereafter regained the normal use of her limbs, and had ever since earned her livelihood as an obstetrical nurse. 

The sensation caused by the appearance of the Zimmer woman had hardly subsided when the witness’s attention was drawn to another case, Kelly against the railway company, in which this doctor had also assisted the plaintiff.  Kelly was really paralyzed, but claimed that his paralysis was due to a recent railroad accident.  It appeared during the trial, however, that long before the alleged railroad accident, Kelly had lost the use of his limbs, and that his case had become so notorious as to be a subject for public lectures by many reputable city physicians.  The doctor was obliged to admit being a witness in that case also, but disclaimed any intentional assistance in the fraud. 

One of the greatest vices of expert medical testimony is the hypothetical question and answer which has come to play so important a part in our trials nowadays.  It is, perhaps, the most abominable form of evidence that was ever allowed to choke the mind of a juror or throttle his intelligence. 

An hypothetical question is supposed to be an accurate synopsis of the testimony that has already been sworn to by the various witnesses who have preceded the appearance of the medical expert in the case.  The doctor is then asked to assume the truth of every fact which counsel has included in his question, and to give the jury his opinion and conclusions as an expert from these supposed facts. 

It frequently happens that the physician has never even seen, much less examined, the patient concerning whose condition he is giving sworn testimony.  Nine times out of ten the jury take the answer of the witness as direct evidence of the existence of the fact itself.  It is the duty of the cross-examiner to enlighten the jury in regard to such questions and make them realize that it is not usually the truth of the answer, but the truth and accuracy of the question which requires their consideration.  These hypothetical questions are usually loosely and inaccurately framed and present a very different aspect of the case from that which the testimony of the witnesses would justify.  If, however, the question is substantially correct, it is allowed to be put to the witness; the damaging answer follows, and the jury conclude that the plaintiff is certainly suffering from the dreadful or incurable malady the doctor has apparently sworn to. 

A clever cross-examiner is frequently able to shatter the injurious effect of such hypothetical questions.  One useful method is to rise and demand of the physician that he repeat, in substance, the question that had just been put to him and upon which he bases his answer.  The stumbling effort of the witness to recall the various stages of the question (such questions are usually very long) opens the eyes of the jury at once to the dangers of such testimony.  It is not always safe, however, to make this inquiry.  It all depends upon the character of witness you are examining.  Some doctors, before being sworn as witnesses, study carefully the typewritten hypothetical questions which they are to answer.  A single inquiry will easily develop this phase of the matter, and if the witness answers that he has previously read the question, it is often usual to ask him which particular part of it he lays the most stress upon, and which parts he could throw out altogether.  Thus one may gradually narrow him down to some particular factor in the hypothetical question, the truth of which the previous testimony in the case might have left in considerable doubt. 

It will often turn out that a single sentence or twist in the question serves as a foundation for the entire answer of the witness.  This is especially the case with conscientious physicians, who often suggest to counsel the addition of a few words which will enable them to answer the entire question as desired.  The development of this fact alone will do much to destroy the witness with the jury.  I discovered once, upon cross-examining one of our most eminent physicians, that he had added the words, “Can you say with positiveness” to a lawyer’s hypothetical question, and then had taken the stand and answered the question in the negative, although had he been asked for his honest opinion on the subject, he would have been obliged to have given a different answer. 

Hypothetical questions put in behalf of a plaintiff would not of course include facts which might develop later for the defence.  When cross-examining to such questions, therefore, it is often useful to inquire in what respect the witness would modify his answer if he were to assume the truth of these new factors in the case.  “Supposing that in addition to the matters you have already considered, there were to be added the facts that I will now give you,” etc., “what would your opinion be Then?”  etc. 

Frequently hypothetical questions are so framed that they answer themselves by begging the question.  In the Guiteau case all the medical experts were asked in effect, though not in form, to assume that a man having an hereditary taint of insanity, exhibits his insanity in his youth, exhibits it in his manhood, and at a subsequent date, being under the insane delusion that he was authorized and commanded by God to kill the President of the United States, proceeded without cause to kill him; and upon these assumptions the experts were asked to give their opinion whether such a man was sane or insane. 

To pick out the flaws in most hypothetical questions; to single out the particular sentence, adjective, or adverb upon which the physician is centring his attention as he takes his oath, requires no little experience and astuteness. 

The professional witness is always partisan, ready and even eager to serve the party calling him.  This fact should be ever present in the mind of the cross-examiner.  Encourage the witness to betray his partisanship; encourage him to volunteer statements and opinions, and to give irresponsive answers.  Jurors always look with suspicion upon such testimony.  Assume that an expert witness called against you has come prepared to do you all the harm he can, and will avail himself of every opportunity to do so which you may inadvertently give him.  Such witnesses are usually shrewd and cunning men, and come into court prepared on the subject concerning which they are to testify. 

Some experts, however, are mere shams and pretenders.  I remember witnessing some years ago the utter collapse of one of these expert pretenders of the medical type.  It was in a damage suit against the city.  The plaintiff’s doctor was a loquacious gentleman of considerable personal presence.  He testified to a serious head injury, and proceeded to “lecture” the jury on the subject in a sensational and oracular manner which evidently made a great impression upon the jury.  Even the judge seemed to give more than the usual attention.  The doctor talked glibly about “vasomotor nerves “and “reflexes “and expressed himself almost entirely in medical terms which the jury did not understand.  He polished off his testimony with the prediction that the plaintiff could never recover, and if he lived at all, it would necessarily be within the precincts of an insane asylum.  Counsel representing the city saw at a glance that this was no ordinary type of witness.  Any cross-examination on the medical side of the case would be sure to fail; for the witness, though evidently dishonest, was yet ingenious enough to cover his tracks by the cuttle-fish expedient of befogging his answers in a cloud of medical terms.  Dr.  Allan Me Lane Hamilton, who was present as medical adviser in behalf of the city, suggested the following expedient:

Counsel.   “Doctor, I infer from the number of books that you have brought here to substantiate your position, and from your manner of testifying, that you are very familiar with the literature of your profession, and especially that part relating to head injury.” 

Doctor.  “I pride myself that I am I have not only a large private library, but have spent many months in the libraries of Vienna, Berlin, Paris, and London.” 

Counsel.   “Then perhaps you are acquainted with Andrews’s celebrated work ‘On the Recent and Remote Effects of Head Injury’?” 

Doctor (smiling superciliously).  “Well, I should say I was.  I had occasion to consult it only last week.” 

Coitnsel.  “Have you ever come across ‘Charvais on Cerebral Trauma’?” 

Doctor.  “Yes, I have read Dr. Charvais’s book from cover to cover many times.” 

Counsel continued in much the same strain, putting to the witness similar questions relating to many other fictitious medical works, all of which the doctor had either “studied carefully “or “had in his library about to read,” until finally, suspecting that the doctor was becoming conscious of the trap into which he was being led, the counsel suddenly changed his tactics and demanded in a loud sneering tone if the doctor had ever read Page on “Injuries of the Spine and Spinal Cord” (a genuine and most learned treatise on the subject).  To this inquiry the doctor laughingly replied, “I never heard of any such book and I guess you never did either!”

The climax had been reached.  Dr.  Hamilton was immediately sworn for the defence and explained to the jury his participation in preparing the list of bogus medical works with which the learned expert for the plaintiff had shown such familiarity!

On the other hand, when the cross-examiner has totally failed to shake the testimony of an able and honest expert, he should be very wary of attempting to discredit him by any slurring allusions to his professional ability, as is well illustrated by the following example of the danger of giving the expert a good chance for a retort. 

Dr.  Joseph Collins, a well-known nerve specialist, was giving testimony last winter on the side of the Metropolitan Street Railway in a case where the plaintiff claimed to be suffering from a misplaced kidney which the railroad doctor’s examination failed to disclose.  Having made nothing out of the cross-examination of Dr.  Collins, the plaintiff’s lawyer threw this parting boomerang at the witness:

Counsel.   “After all, doctor, isn’t it a fact that nobody in your profession regards you as a surgeon?’

Doctor.  “I never regarded myself as one.” 

Counsel.   “You are a neurologist, aren’t you, doctor?” 

Doctor.  “I am, sir.” 

Counsel.   “A neurologist, pure and simple?’

Doctor.  “Well, I am moderately pure and altogether simple.” 

Aside from the suggestions already made as to the best methods of cross-examining experts, no safe general rules can be laid down for the successful cross-examination of expert alienists, but a most happy illustration of one excellent method which may be adopted with a certain type of alienist was afforded by the cross-examination in the following proceedings:

In the summer of 1898 habeas corpus proceedings were instituted in New York to obtain the custody of a child.  The question of the father’s sanity or insanity at the time he executed a certain deed of guardianship was the issue in the trial. 

A well-known alienist, who for the past ten years has appeared in the New York courts upon one side or the other in pretty nearly every important case involving the question of insanity, was retained by the petitioner to sit in court during the trial and observe the actions, demeanor, and testimony of the father, the alleged lunatic, while he was giving his evidence upon the witness-stand. 

At the close of the father’s testimony this expert witness was himself called upon to testify as to the result of his observation, and was interrogated as follows:

Counsel.   “Were you present in court yesterday when the defendant in the present case was examined as a witness?”

Witness.  “I was.” 

Counsel.   “Did you see him about the courtroom before he took the witness-stand?”

Witness.  “I observed him in this court room and on the witness-stand on Monday.” 

Counsel.   “You were sitting at the table here during the entire session?”

Witness.  “I was sitting at the table during his examination.” 

Counsel.   “You heard all his testimony?”

Witness.  “I did.” 

Counsel.   “Did you observe his manner and behavior while giving his testimony?”

Witness.  “I did.” 

Counsel.   “Closely?” Witness.  “Very closely.” 

Upon being shown certain specimens of the handwriting of the defendant, the examination proceeded as follows:

Counsel.   “Now, Doctor, assuming that the addresses on these envelopes were written by the defendant some three or more years ago, and that the other addresses shown you and the signatures attached thereto were written by him within this last year, and taking into consideration at the same time the defendant’s manner upon the witness-stand, as you observed it, and his entire deportment while under examination, did you form an opinion as to his present mental condition?”

Witness.  “I formed an estimate of his mental condition from my observation of him in the court room and while he was giving his testimony and from an examination of these specimens of handwriting taken in connection with my observation of the man himself.” 

Counsel.   “What in your opinion was his mental condition at the time he gave his testimony?”

The Court.  “I think, Doctor, that before you answer that question, it would be well for you to tell us what you observed upon which you based your opinion.” 

Witness.  “It appeared to me that upon the witness stand the defendant exhibited a slowness and hesitancy in giving answers to perfectly distinct and easily comprehensible questions, which was not consistent with a sound mental condition of a person of his education and station in life.  I noted a forgetfulness, particularly of recent events.  I noted also an expression of face which was peculiarly characteristic of a certain form of mental disease; an expression of, I won’t say hilarity, but a fatuous, transitory smile, and exhibited upon occasions which did not call in my opinion for any such facial expression, and which to alienists possesses a peculiar significance.  As regards these specimens of handwriting which I have been shown, particularly the signature to the deed, it appears to me to be tremulous and to show a want of coordinating power over the muscles which were used in making that signature.” 

In answer to a hypothetical question describing the history of the defendant’s life as claimed by the petitioner, the witness replied:

Witness.  “My opinion is that the person described in the hypothetical question is suffering from a form of insanity known as paresis, in the stage of dementia.” 

Upon the adjournment of the day’s session of the court, the witness was requested to take the deed (the signature to which was the writing which he had described as “tremulous “and on which he had based his opinion of dementia) and to read it carefully over night.  The following morning this witness resumed the stand and gave it as his opinion that the defendant was in such condition of mind that he could not comprehend the full purpose and effect of that paper. 

The doctor was here turned over to defendant’s counsel for cross-examination.  Counsel jumped to his feet and, taking the witness off his guard, rather gruffly shouted:

Counsel.   “In your opinion, what were you employed to come here for?”

Witness (after hesitating a considerable time).  “I was employed to come here to listen to the testimony of this defendant, the father of this child whose guardianship is under dispute.” 

Counsel.   “Was that a simple question that I put to you?  Did you consider it simple?”

Witness.  “A perfectly simple question.” 

Counsel (smiling).  “Why were you so slow about answering it then?”

Witness.  “I always answer deliberately; it is my habit.” 

Counsel.   “Would that be an evidence of derangement in your mental faculties, Doctor the slowness with which you answer?”

Witness.  “I am making an effort to answer your questions correctly.” 

Counsel.   “But perhaps the defendant was making an effort to answer questions correctly the other day?”

Witness.  “He was undoubtedly endeavoring to do so.” 

Counsel.   “You came here for the avowed purpose of watching the defendant, didn’t you?”

Witness.  “I came here for the purpose of giving an opinion upon his mental condition.” 

Counsel.   “Did you intend to listen to his testimony before forming any opinion?”

Witness.  “I did.” 

Counsel (now smiling).  “One of the things that you stated as indicating the disease of paresis was the defendant’s slowness in answering simple questions, wasn’t it?”

Witness.  “It was.” 

Counsel.   “Now, in forming your opinion, you based it in part on his handwriting, did you not?”

Witness.  “I did, as I testified yesterday.” 

Counsel.   “And for that purpose you selected one signature to a particular instrument and threw out of consideration certain envelopes which were handed to you; is that right?”

Witness.  “I examined a number of signatures, but there was only one which showed the characteristic tremor of paresis, and that was the signature to the instrument.” 

The witness was here shown various letters and writings of the defendant executed at a later date than the deed of guardianship. 

Counsel.   “Now, Doctor, what have you to say to these later writings?”

Witness.  “They are specimens of good handwriting.  If you wish to draw it out, they do not indicate any disease paresis or any other disease.” 

Counsel.   “Do you think there has been an improvement in the defendant’s condition meanwhile?”

Witness.  “I don’t know.  There is certainly a great improvement in his handwriting.” 

Counsel.   “It would appear, then, Doctor, that you selected from a large mass of papers and letters only one which showed nervous trouble, and do you pretend to say that you consider that as fair?”

Witness.  “I do, because I looked for the one that showed the most nervous trouble, although it is true I found only one.” 

Counsel.  “How many specimens of handwriting were submitted to you from which you made this selection?”

Witness.  “Some fifteen or twenty.” 

Counsel.   “Doctor, you are getting a little slow in your answers again.” 

Witness.  “I have a right; my answers go on the record.  I have a right to make them as exact and careful as I please.” 

Counsel (sternly).  “The defendant was testifying for his liberty and the custody of his child; he had a right to be a little careful; don’t you think he had?”

Witness.  “Undoubtedly.” 

Counsel.   “You also expressed the opinion that the defendant could not understand or comprehend the meaning of the deed of guardianship that has been put in your hands for examination over night?”

Witness.  “That is my opinion.” 

Counsel.   “What do you understand to be the effect of this paper?”

Witness.  “The effect of that paper is to appoint, for a formal legal consideration, Mrs.  Blank as the guardian of defendant’s daughter and to empower her and to give her all of the rights and privileges which such guardianship involves, and Mrs.  Blank agrees on her part to defend all suits for wrongful detention as if it were done by the defendant himself, and the defendant empowers her to act for him as if it were by himself in that capacity.  That is my recollection.” 

Counsel.   “What that paper really accomplishes is to transfer the management and care and guardianship of the child to Mrs.  Blank, isn’t it?” 

Witness.  “I don’t know.  I am speaking only as to what bears on his mental condition.” 

Counsel.   “Do you know whether that is what the paper accomplishes?”

Witness.  “I have given you my recollection as well as I can.  I read the paper over once.” 

Counsel.   “I am asking you what meaning it conveyed to your mind, because I am going to give the defendant the distinguished honor of contrasting his mind with yours.” 

Witness.  “I should be very glad to be found inferior to his; I wish he were different.” 

Counsel.   “When the defendant testified about that paper, he was asked the same question that you were asked, and he said, ‘I know it was simply a paper supposed to give Mrs.  Blank the management and care of my child.’ Don’t you think that was a pretty good recollection of the contents of the paper for a man in the state of dementia that you have described?” 

Witness.  “Very good.” 

Counsel.   “Rather remarkable, wasn’t it?”

Witness.  “It was a correct interpretation of the paper.” 

Counsel.   “If he could give that statement on the witness-stand in answer to hostile counsel, do you mean to say that he couldn’t comprehend the meaning of the paper?”

Witness.  “He was very uncertain, hesitating, if I recollect it, about that statement.  He got it correct, that’s true.” 

Counsel.   “Then it was the manner of his statement and not the substance that you are dealing with; is that it?” 

Witness.  “He stated that his recollection was not good and he didn’t quite recollect what it was, but subsequently he made that statement.” 

Counsel.   “Don’t you think it was remarkable for him to have been able to recollect from the seventh day of June the one great fact concerning this paper, to wit: that he had given the care and maintenance of his daughter to Mrs.  Blank?”

Witness.  “He did recollect it.” 

Counsel.   “It is a pretty good recollection for a dement, isn’t it?”

Witness.  “He recollected it.” 

Counsel.   “Is that a good recollection for a dement?”

Witness.  “It is.” 

Counsel.   “Isn’t it a good recollection for a man who is not a dement?”

Witness.  “He recollected it perfectly.” 

Counsel.   “Don’t you understand, Doctor, that the man who can describe a paper in one sentence is considered to have a better mind than he who takes half a dozen sentences to describe it?”

Witness.  “A great deal better mind.” 

Counsel.   “Then the defendant rather out-distanced you in describing that paper?”

Witness.  “He was very succinct and accurate.” 

Counsel.   “And that is in favor of his mind as against yours?”

Witness.  “As far as that goes.” 

Counsel.   “Now we will take up the next subject, and see if I cannot bring the defendant’s mind up to your level in that particular.  The next thing you noticed, you say, was the slowness and hesitancy with which he gave his answers to perfectly distinct and easily comprehended questions?”

Witness.  “That is correct.” 

Counsel.   “But you have shown the same slowness and hesitancy to-day, haven’t you?”

Witness.  “I have shown no hesitancy; I have been deliberate.” 

Counsel.   “What is your idea of the difference between hesitancy and deliberation, Doctor?”

Witness.  “Hesitancy is what I am suffering from now; I hesitate in finding an answer to that question.” 

Counsel.   “You admit there is hesitation; isn’t that so?”

Witness.  “And slowness is slowness.” 

Counsel.   “Then we have got them both from you now.  You are both slow and you hesitate, on your own statement; is that so, Doctor?”

Witness.  “Yes.” 

Counsel.   “So the defendant and you are quits again on that; is that right?”

Witness.  “I admit no slowness and hesitancy.  I am giving answers to your questions as carefully and accurately and frankly and promptly as I can.” 

Counsel.   “Wasn’t the defendant doing that?”

Witness.  “I presume he was.” 

Counsel.   “What was the next thing that you observed besides his slowness and hesitancy, do you remember?”

Witness.  “You will have to refresh my memory.” 

Counsel (quoting).  “‘I noted a forgetfulness, particularly of recent events.’ You think the defendant is even with you now, on forgetfulness, don’t you?”

Witness.  “It looks that way.” 

Counsel.   “You say further, ‘I noted an expression of face which was peculiarly characteristic of a certain form of mental disease; I noticed particularly an expression of, I won’t say hilarity, but a fatuous, transitory smile, on occasions which did not call, in my opinion, for any such facial expression.’ Would you think it was extraordinary that there should be a supercilious smile on the face of a sane man under some circumstances?” 

Witness.  “I should think it would be very extraordinary.” 

Counsel.   “Doctor, he might have had in mind the fact of the little talk you and I were to have this afternoon.  That might have brought a smile to his face; don’t you think so?’

Witness.  “I do not.” 

Counsel.   “If as he sat there he had any idea of what I would ask you and what your testimony would be, don’t you think he was justified in having an ironical expression upon his face?”

Witness.  “Perhaps.” 

Counsel.   “It comes to this, then, you selected only one specimen of tremulous handwriting?’

Witness.  “I said so.” 

Counsel.   “You yourself have shown slowness in answering my questions?”

Witness.  “Sometimes.” 

Counsel.   “And forgetfulness?”

Witness.  “You said so.” 

Counsel.   “And you admit that any sane man listening to you would be justified in having an ironical smile on his face?”

Witness.  (No answer.)

Counsel.   “You also admitted that the man you claim to be insane, gave from memory a better idea of the contents of this legal paper than you did, although you had examined and studied it over night?”

Witness.  “Perhaps.” 

Counsel (condescendingly).  “You didn’t exactly mean then that the defendant was actually deprived of his mind?”

Witness.  “No, he is not deprived of his mind, and I never intended to convey any such idea.” 

Counsel.   “Then, after all, your answers mean only that the defendant has not got as much mind as some other people; is that it?’

Witness.  “Well, my answers mean that he has paresis with mental deterioration, and, if you wish me to say so, not as much mind as some other people; there are some people who have more and some who have less.” 

Counsel.   “He has enough mind to escape an expression which would indicate the entire deprivation of the mental faculties?”

Witness.  “Yes.” 

Counsel.   “He has enough mind to write the letters of which you have spoken in the highest terms?’

Witness.  “I have said they were good letters.” 

Counsel.   “He has enough mind to accurately and logically describe this instrument, the deed of guardianship, which he executed?” 

Witness.  “As I have described.” 

Counsel.   “He probably knows more about his domestic affairs than you do.  That is a fair presumption, isn’t it?” 

Witness.  “I know nothing about them.” 

Counsel.   “For all that you know he may have had excellent reasons for taking the very course he has taken in this case?”

Witness.  “That is not impossible; it is none of my affair.” 

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


[1]As a matter of fact, father and daughter wrote very much alike, and with surprising similarity to Mr. Ellison.  It was this circumstance that led to he use of the three letters in the cross-examination.

[2]“Pleasantries about Courts and Lawyers,” Edwards.

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