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The Art of Cross-Examination

by Francis H. Wellman

CHAPTER IX
CROSS-EXAMINATION TO PROBABILITIES, PERSONALITY OF THE EXAMINER, ETC.

In delivering one of his celebrated judgments Lord Mansfield said: “As mathematical and absolute certainty is seldom to be attained in human affairs, reason and public utility require that judges and all mankind in forming their opinion of the truth of facts should be regulated by the superior number of probabilities on the one side or the other.” 

Theoretically the goal we all strive for in litigation is the probable truth.  It is therefore in this effort to develop the probabilities in any given case, that a trial lawyer is called upon for the exercise of the most active imagination and profound knowledge of men and things. 

It requires but little experience in court to arrive at the conclusion that the great majority of cases are composed of a few principal facts surrounded by a host of minor ones; and that the strength of either side of a case depends not so much upon the direct testimony relating to these principal facts alone, but, as one writer very tersely puts it, “upon the support given them by the probabilities created by establishing and developing the relation of the minor facts in the case.” 

One of the latest causes of any importance, tried in our New York courts this year, afforded an excellent illustration of the relative importance of the main facts in a case to the multitudinous little things which surround any given issue, and which when carefully gathered together and skilfully grouped, create the probabilities of a case.  The suit was upon an oral agreement for the purchase and sale of a large block of mining stock with an alleged guaranty against loss.  The plaintiff and defendant were both gentlemen holding prominent positions in the business world and of unquestioned integrity and veracity.  The only issue in the case was the simple question, which one was correct in his memory of a conversation that had occurred five years before.  The plaintiff swore there was an agreement by the defendant to repurchase the stock from him, at the price paid, at plaintiff’s option.  The defendant swore no such conversation ever took place.  Where was the truth?  The direct yea and nay of this proposition occupied about five minutes of the court’s time.  The surrounding circumstances, the countless straws pointing to the probabilities on the one side or the other, occupied three full days, and no time was wasted. 

In almost every trial there are circumstances which at first may appear light, valueless, even disconnected, but which, if skilfully handled, become united together and at last form wedges which drive conviction into the mind.  This is obviously the business of the cross-examiner, although it is true that the examination of one’s own witnesses, as well, often plays an important part in the development of probabilities. 

All men stamp as probable or improbable that which they themselves would, or would not, have said or done under similar circumstances.  “As in water, face answereth to face, so the heart of man to man.” [1]  Things inconsistent with human knowledge and experience are properly rated as improbable.  It was Aristotle who first said, “Probability is never detected bearing false testimony.” 

Apart from experience in human affairs and the resultant knowledge of men, it is industry and diligent preparation for the trial which will enable an advocate to handle the circumstances surrounding: the main facts in a case with the greatest effect upon a judge or jury.  One who has thought intently upon a subject which he is going to develop later on in a court, and has sought diligently for signs or “straws “to enable him to discover the true solution of a controversy, will, when the occasion arises upon the trial, catch and apply facts which a less thoughtful person would pass by almost unnoticed.  Careful study of his case before he comes into court will usually open to an advocate avenues for successful cross-examinations to the probabilities of a story, which will turn out to be his main arguments for a successful verdict in his favor. 

“It is acute knowledge of human nature, thorough preliminary survey of the question and of the interests involved, and keen imagination which enable the questioner to see all the possibilities of a case.  It is a cautious good judgment that prevents him from assuming that to be true which he only imagines may be true, and professional self-restraint that enables him to pass by all opportunities which may give a witness a chance for successful fencing.”  [2]

In the search for the probable it is often wise to use questions that serve for little more than a suggestion of the desired point.  Sir James Scarlett used to allow the jurors and even the judges to discover for themselves the best parts of his case.  It flattered their vanity.  Scarlett went upon the theory, he tells us in the fragments of his autobiography which were completed before his death, that whatever strikes the mind of a juror as the result of his own observation and discovery makes always the strongest impression upon him, and the juror holds on to his own discovery with the greatest tenacity and often, possibly, to the exclusion of every other fact in the case. 

This search for probabilities, however, is a hazardous occupation for the inexperienced.  There is very great danger of bringing out some incidental circumstance that serves only to confirm or corroborate the statements of a witness made before the cross-examination began.  Thus one not only stumbles upon a new circumstance in favor of his opponent, but the fact that it came to light during the cross-examination instead of in the direct multiplies its importance in the eyes of a jury; for it has often been said, and it is a well-recognized fact, that accidental testimony always makes a greater impression on a juror’s mind than that deliberately and designedly given. 

Another danger in this hazardous method of cross-examination is the development of such a mass of material that the minds of the jurors become choked and unable to follow intelligently.  If one cannot make his points stand out clearly during his cross-examination, he had better keep his seat.  It used to be said of Law, a famous English barrister, that “he wielded a huge two handed sword to extract a fly from a spider’s web.” 

At the end of a long but unsuccessful cross-examination of a plaintiff, the kind we have been discussing, an inexperienced trial lawyer once remarked rather testily, “Well, Mr. Whittemore, you have contrived to manage your case pretty well.”  “Thank you, counselor,” replied the witness, with a twinkle in his eye, “perhaps I might return the compliment if I were not testifying under oath.” 

It so frequently happens that a lawyer who has made a failure of his cross-examination accentuates that failure by a careless side remark, instead of a dignified retreat, that I cannot refrain from relating another anecdote, in this connection, to illustrate the danger of such side remarks; for I am of the opinion that there is no surer way to avoid such occurrences than to have ever present in one’s mind the mistakes of others. 

One of the most distinguished practitioners in the criminal courts of the city of Philadelphia was prosecuting a case for the government.  His witnesses had been subjected to a very vehement cross-examination by the counsel for the prisoner, but with very little effect upon the jury.  Counsel for the prisoner resumed his seat quietly, recognizing his failure, but content to wait for another opportunity.  After the testimony for the state had closed, the prosecuting attorney arose and foolishly remarked, “Now, Mr. Ingraham, I give you fair warning, after the way you have treated my witnesses, I intend to handle your witnesses without gloves?  “That is more than any one would care to do with yours, my friend,” replied Mr. Ingraham; and the dirt seemed, somehow, to stick to the state witnesses throughout the trial. 

An excellent example of effective cross-examination to the circumstances surrounding the main question in a case the genuineness of a signature will be found in Bigelow’s “Bench and Bar.”  The issue was the forgery of a will; the proponent was a man of high respectability and good social standing, who had an indirect interest to a large amount, if the will, as offered, was allowed to be probated.  Samuel Warren, the author of “Ten Thousand a Year,” conducted the cross-examination. 

Warren (placing his thumb over the seal and holding up the will).  “I understand you to say you saw the testator sign this instrument?” 

Witness.  “I did.” 

Warren.  “And did you sign it at his request, as subscribing witness?’

Witness.  “I did.” 

Warren.  “Was it sealed with red or black wax?”

Witness.  “With red wax.” 

Warren.  “Did you see him seal it with red wax?”

Witness.  “I did.” 

Warren.  “Where was the testator when he signed and sealed this will?”

Witness.  “In his bed.” 

Warren.  “Pray, how long a piece of red wax did he use?”

Witness.  “About three inches long.” 

Warren.  “And who gave the testator this piece of wax?”

Witness.  “I did.” 

Warren.  “Where did you get it?”

Witness.  “From the drawer of his desk.” 

Warren.  “How did he melt that piece of wax?” 

Witness.  “With a candle.” 

Warren.  “Where did the candle come from?”

Witness.  “I got it out of a cupboard in the room.” 

Warren.  “How long should you say the candle was?”

Witness.  “Perhaps four or five inches long.” 

Warren.  “Do you remember who lit the candle?”

Witness.  “Hit it.” 

Warren.  “What did you light it with?”

Witness.  “Why, with a match.” 

Warren.  “Where did you get the match?”

Witness.  “On the mantel-shelf in the room.” 

Here Mr. Warren paused, and fixing his eye upon the prisoner, he again held up the will, his thumb still resting upon the seal, and said in a solemn, measured tone:

Warren.  “Now, sir, upon your solemn oath, you saw the testator sign this will he signed it in his bed at his request you signed it as a subscribing witness you saw him seal it.  It was with red wax he sealed it a piece of wax about three inches long he lit the wax with a piece of candle which you procured from a cupboard you lit the candle with a match which you found on a mantel-shelf?”

Witness.  “I did.” 

Warren.  “Once more, sir upon your solemn oath, you did?”

Witness.  “I did.” 

Warren.  “My lord, you will observe this will is sealed with a wafer!”

In “Irish Wit and Humor” there is given an illustration of the dexterity of Daniel O’Connell in bringing about his client’s acquittal by a very simple ruse of cross-examination. 

O’Connell was employed in defending a prisoner who was tried for a murder committed in the vicinity of Cork.  The principal witness swore strongly against the prisoner one corroborative circumstance was that the prisoner’s hat was found near the place where the murder was committed.  The witness swore positively that the hat produced was the one found, and that it belonged to the prisoner, whose first name was James. 

O’Connell.  “By virtue of your oath, are you positive that this is the same hat?” 

Witness.  “I am.” 

O’Connell.  “Did you examine it carefully before you swore in your information that it was the property of the prisoner?”

Witness.  “I did.” 

O’Connell (taking up the hat and examining the inside carefully, at the same time spelling aloud the name “James”).  “Now let me see ‘J-A-M-E-S’ do you mean those letters were in the hat when you found it?”

Witness.  “I do.” 

O’Connell.  “Did you see them there?”

Witness.  “I did.” 

O’Connell.  “And you are sure this is the same hat?”

Witness.  “I am sure.” 

O’Connell (holding up the hat to the Bench).  “Now.  my lord, I submit this is an end of this case.  There is no name whatever inscribed in this hat!”

Akin to the effect produced upon a jury by the probabilities in a case is the personal conviction of the lawyer who is conducting it.  A man who genuinely and thoroughly believes in his own case will make others agree with him, often though he may be in the wrong. 

Rufus Choate once said, “I care not how hard the case is it may bristle with difficulties if I feel I am on the right side, that case I win.” 

It is this personal consciousness of right that has a strong moral and mental effect upon one’s hearers.  In no way can a lawyer more readily communicate to the minds of the jury his personal belief in his case than in his method and manner of developing, throughout his examinations, the probability or improbability of the tale which is being unfolded to them.  In fact, it is only through his examinations of the witnesses and general conduct of the trial, and his own personal deportment, that a lawyer is justified in impressing upon the jury his individual belief regarding the issues in the case.  The expression in words of a lawyer’s opinion is not only considered unprofessional, but produces an entirely different effect upon a juror from the influence which comes from earnestness and the profound conviction of the righteousness of the cause advocated. 

Writing upon this branch of the subject, Senator Hoar says: “It is not a lawyer’s duty or his right to express his individual opinion.  On him the responsibility of the decision does not rest.  He not only has no right to accompany the statement of his argument with any assertion as to his individual belief, but I think the most experienced observers will agree that such expressions, if habitual, tend to diminish and not to increase the just influence of the lawyer....  There never was a weightier advocate before New England juries than Daniel Webster.  Yet it is on record that he always carefully abstained from any positiveness of assertion.  He introduced his weightiest arguments with such phrases as, ‘It will be for the jury to consider,’ ‘It may, perhaps, be worth thinking of, gentlemen,’ or some equivalent phrase, by which he kept scrupulously off the ground which belonged to the tribunal he was addressing.” [3]

But an advocate is justified in arousing in the minds of a jury all the excitement which he feels about the case himself.  If he feels he is in the right, he can show it in a hundred different ways which cannot fail to have their effect upon his hearers.  It was Gladstone’s profound seriousness that most impressed itself upon everything that he said.  He always made the impression upon his hearers that the matter he was discussing was that upon which the foundations of heaven and c.^.th rested.  Rufus Choate’s heart was always in the courthouse.  “No gambler ever hankered for the feverish delight of the gaming-table as Choate did for the absorbing game, half-chance, half-skill, where twelve human dice must all turn up together one way, or there is no victory....  It was a curious sight to see on a jury twelve hard-headed and intelligent countrymen farmers, town officers, trustees, men chosen by their neighbors to transact their important affairs after an argument by some clear-headed lawyer for the defence about some apparently not very doubtful transaction, who had brought them all to his way of thinking, and had warned them against the wiles of the charmer, when Choate rose to reply for the plaintiff to see their look of confidence and disdain ‘You needn’t try your wiles upon me.’ The shoulder turned a little against the speaker the averted eye and then the change; first, the changed posture of the body; the slight opening of the mouth; then the look, first, of curiosity, and then of doubt, then of respect; the surrender of the eye to the eye of the great advocate; then the spell, the charm, the great enchantment till at last, jury and audience were all swept away, and followed the conqueror captive in his triumphal march.” [4]

Sir James Scarlett, England’s greatest verdict getter, always had an appearance of confidence in himself and his cause which begot a feeling of confidence in all who listened to him.  He used to “wind himself into a case like a great serpent.”  He always had about him “a happy mixture of sparkling intelligence and good nature, which told amazingly with juries.”  A writer in the Britannia gives the following graphic description of Scarlett’s appearance in court: “A spectator unacquainted with the courts might have supposed that anybody rather than the portly, full-faced, florid man, who was taking his ease on the comfortable cushions of the front row, was the counsel engaged in the cause.  Or if he saw him rise and cross-examine a witness, he would be apt to think him certainly too indolent to attend properly to his business, so cool, indifferent, and apparently unconcerned was the way in which the facts which his questions elicited were left to their fate, as though it were of no consequence whether they were attended to or not.  Ten to one with him that the plaintiff’s counsel would get the verdict, so clear seemed the case and so slight the opposition.  But in the course of time the defendant’s turn would come; and then the large-headed, ruddy-faced, easy-going advocate would rise slowly from his seat, not standing quite upright, but resting on his left hand placed upon the bar, and turning sideways to the jury to commence the defence of his client.  Still the same unpretending nonchalant air was continued; it almost seemed too great an exertion to speak; the chin of that ample face rested upon the still more ample chest as though the motion of the lips alone would be enough for all that might have to be said.  So much for the first impression.  A few moments’ reflection sufficed to dispel the idea that indolence had anything to do with the previous quiescence of the speaker. 

Now it became clear that all the while he seemed to have been taking his ease bodily, he had been using his powers of observation and his understanding.  That keen gray eye had not stolen glances at the jury, nor at the witnesses either, for nothing.  Nor had those abandoned facts, drawn out in cross-examination, been unfruitful seeds or cast in barren places.  Low as the tone of voice was, it was clear and distinct.  It was not a mere organ of sound, but a medium of communication between the mind of the advocate and the minds of the jury.  Sir James Scarlett did not attempt, like Denman or Brougham, to carry the feelings of a jury by storm before a torrent of invective or of eloquence; nor was there any obvious sophistry, such as occupied too large a space in the speeches of Campbell or Wilde; it was with facts admitted, omitted or slurred over, as best suited his purpose and with inferences made obvious in spite of prepossessions created by the other side, that this remarkable advocate achieved his triumphs.” 

Personal magnetism is, perhaps, the most important of all the attributes of a good trial lawyer.  Those who possess it never fully realize it themselves and only partially, perhaps, when under the influence of a large audience.  There is nothing like an audience as a stimulant to every faculty.  The cross-examiner’s questions seem to become vitalized with his knowledge of the topic of inquiry and his own shrewd discernment of the situation of the witness and the relation which the witness’s interest and feelings bear to the topic.  His force becomes almost irresistible, but it is a force in questions, a force aroused in the mind of the witness, not in the voice of the questioner.  He seems to be able to concentrate all the attention of his hearers upon the vital points in the case; he imparts weight and solidity to all he touches; he unconsciously elevates the merits of his case; he comes almost intuitively to perceive the elements of truth or falsehood in the face itself of the narrative, without any regard to the narrator, and new and undreamed-of avenues of attacking the testimony seem to spring into being almost with the force of inspiration. 

Such is the life and such the experiences of the trial lawyer.  But I cannot leave this branch of the subject without one sentiment in behalf of the witness, as distinguished from the lawyer, by quoting the following amusing lamentation, which has found its way into public print:

“Of all unfortunate people in this world, none are more entitled to sympathy and commiseration than those whom circumstances oblige to appear upon the witness-stand in court.  You are called to the stand and place your hand upon a copy of the Scriptures in sheepskin binding, with a cross on the one side and none on the other, to accommodate either variety of the Christian faith.  You are then arraigned before two legal gentlemen, one of whom smiles at you blandly because you are on his side, the other eying you savagely for the opposite reason.  The gentleman who smiles, proceeds to pump you of all you know; and having squeezed all he wants out of you, hands you over to the other, who proceeds to show you that you are entirely mistaken in all your suppositions; that you never saw anything you have sworn to; that you never saw the defendant in your life; in short, that you have committed direct perjury.  He wants to know if you have ever been in state prison, and takes your denial with the air of a man who thinks you ought to have been there, asking all the questions over again in different ways; and tells you with an awe-inspiring severity, to be very careful what you say.  He wants to know if he understood you to say so and so, and also wants to know whether you meant something else.  Having bullied and scared you out of your wits, and convicted you in the eye of the jury of prevarication, he lets you go.  By and by everybody you have fallen out with is put on the stand to swear that you are the biggest scoundrel they ever knew, and not to be believed under oath.  Then the opposing counsel, in summing up, paints your moral photograph to the jury as a character fit to be handed down to time as the type of infamy as a man who has conspired against innocence and virtue, and stood convicted of the attempt.  The judge in his charge tells the jury if they believe your testimony, etc., indicating that there is even a judicial doubt of your veracity; and you go home to your wife and family, neighbors and acquaintances, a suspected man all because of your accidental presence on an unfortunate occasion!”

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


[1]Proverbs xxvii.  19.

[2]Austin Abbott, Esq., in The Daily Register, December, 1886.

[3]“Autobiography of Seventy Years,” Hoar.

[4]“Autobiography of Seventy Years,” Hoar.

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