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The Art of Cross-Examination

by Francis H. Wellman


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

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

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

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

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

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

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

“One day a junior was taking a note in the orthodox fashion.  Russell was taking no note, but he was thoroughly on the alert, glancing about the court, sometimes at the judge, sometimes at the jury, sometimes at the witness or the counsel on the other side.  Suddenly he turned to the junior and said, ‘What are you doing?’ ‘Taking a note,’ was the answer.  ‘What the devil do you mean by saying you are taking a note?  Why don’t you watch the case?’ he burst out.  He had been ‘watching’ the case.  Something had happened to make a change of front necessary, and he wheeled his colleagues around almost before they had time to grasp the new situation.” [1]

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

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

“‘How is Russell getting on?’ a friend asked one of the judges of the Parnell Commission during the days of Pigott’s cross-examination.  ‘Master Charlie is bowling very straight,’ was the answer.  ‘Master Charlie’ always bowled ‘very straight,’ and the man at the wicket generally came quickly to grief.  I have myself seen him approach a witness with great gentleness the gentleness of a lion reconnoitering his prey.  I have also seen him fly at a witness with the fierceness of a tiger.  But, gentle or fierce, he must have always looked a very ugly object to the man who had gone into the box to lie.” 

Rufus Choate had little of Russell’s natural force with which to command his witnesses; his effort was to magnetize, he was called “the wizard of the court room.”  He employed an entirely different method in his cross examinations.  He never assaulted a witness as if determined to browbeat him.  “Commenting once on the cross-examination of a certain eminent counselor at the Boston Bar with decided disapprobation, Choate said, ‘This man goes at a witness in such a way that he inevitably gets the jury all on the side of the witness.  I do not,’ he added, ‘think that is a good plan.’ His own plan was far more wary, intelligent, and circumspect.  He had a profound knowledge of human nature, of the springs of human action, of the thoughts of human hearts.  To get at these and make them patent to the jury, he would ask only a few telling questions a very few questions, but generally every one of them was fired point-blank, and hit the mark.  His motto was: ‘Never cross-examine any more than is absolutely necessary.  If you don’t break your witness, he breaks you.’  He treated every man who appeared like a fair and honest person on the stand, as if upon the presumption that he was a gentleman; and if a man appeared badly, he demolished him, but with the air of a surgeon performing a disagreeable amputation as if he was profoundly sorry for the necessity.  Few men, good or bad, ever cherished any resentment against Choate for his cross-examination of them.  His whole style of address to the occupants of the witness-stand was soothing, kind, and reassuring.  When he came down heavily to crush a witness, it was with a calm, resolute decision, but no asperity nothing curt, nothing tart.” [2]

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

What Choate was to America, and Erskine, and later Russell, to England, John Philpot Curran was to Ireland.  He ranked as a jury lawyer next to Erskine.  The son of a peasant, he became Master of Rolls for Ireland in 1806.  He had a small, slim body, a stuttering, harsh, shrill voice, originally of such a diffident nature that in the midst of his first case he became speechless and dropped his brief to the floor, and yet by perseverance and experience he became one of the most eloquent and powerful forensic advocates of the world.  As a cross-examiner it was said of Curran that “he could unravel the most ingenious web which perjury ever spun, he could seize on every fault and inconsistency, and build on them a denunciation terrible in its earnestness.” [3]

It was said of Scarlett, Lord Abinger, that he won his cases because there were twelve Sir James Scarletts in the jury-box.  He became one of the leading jury lawyers of his time, so far as winning verdicts was concerned.  Scarlett used to wheedle the juries over the weak places in his case.  Choate would rush them right over with that enthusiasm which he put into everything, “with fire in his eye and fury on his tongue.”  Scarlett would level himself right down to each juryman, while he flattered and won them.  In his cross-examinations “he would take those he had to examine, as it were by the hand, made them his friends, entered into familiar conversation with them, encouraged them to tell him what would best answer his purpose, and thus secured a victory without appearing to commence a conflict.” 

A story is told about Scarlett by Justice Wightman who was leaving his court one day and found himself walking in a crowd alongside a countryman, whom he had seen, day by day, serving as a juryman, and to whom he could not help speaking.  Liking the look of the man, and finding that this was the first occasion on which he had been at the court, Judge Wightman asked him what he thought of the leading Counsel.   “Well,” said the countryman, “that lawyer Brougham be a wonderful man, he can talk, he can, but I don’t think nowt of Lawyer Scarlett.”  “Indeed!”  exclaimed the judge, “you surprise me, for you have given him all the verdicts.”  “Oh, there’s nowt in that,” was the reply, “he be so lucky, you see, he be always on the right side.” [4]

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

Like Scarlett, Erskine was of medium height and slender, but he was handsome and magnetic, quick and nervous, “his motions resembled those of a blood horse < as light, as limber, as much betokening strength and speed.”  He, too, lacked the advantage of a college education and was at first painfully unready of speech.  In his maiden effort he would have abandoned his case, had he not felt, as he said, that his children were tugging at his gown.  “In later years,” Choate once said of him, “he spoke the best English ever spoken by an advocate.”  Once, when the presiding judge threatened to commit him for contempt, he replied, “Your Lordship may proceed in what manner you think fit; I know my duty as well as your Lordship knows yours.”  His simple grace of diction, quiet and natural passion, was in marked contrast to Rufus Choate, whose delivery has been described as “a musical flow of rhythm and cadence, more like a long, rising, and swelling song than a talk or an argument.”  To one of his clients who was dissatisfied with Erskine’s efforts in his behalf, and who had written his counsellor on a slip of paper, “I’ll be hanged if I don’t plead my own cause,” Erskine quietly replied, “You’ll be hanged if you do.”  Erskine boasted that in twenty years he had never been kept a day from court by ill health.  And it is said of Curran that he has been known to rise before a jury, after a session of sixteen hours with only twenty minutes’ intermission, and make one of the most memorable arguments of his life. 

Among the more modern advocates of the English Bar, Sir Henry Hawkins stands out conspicuously.  He is reputed to have taken more money away with him from the Bar than any man of his generation.  His leading characteristic when at the Bar, was his marvellous skill in cross-examination.  He was associated with Lord Coleridge in the first Tichborne trial, and in his cross-examination of the witnesses, Baignet and Carter, he made his reputation as “the foremost cross-examiner in the world.” [5]  Sir Richard Webster was another great cross-examiner.  He is said to have received $100,000 for his services in the trial before the Parnell Special Commission, in which he was opposed to Sir Charles Russell. 

Rufus Choate said of Daniel Webster, that he considered him the grandest lawyer in the world.  And on his death-bed Webster called Choate the most brilliant man in America.  Parker relates an episode characteristic of the clashing of swords between these two idols of the American Bar.  “We heard Webster once, in a sentence and a look, crush an hour’s argument of Choate’s curious workmanship; it was most intellectually wire-drawn and hair-splitting, with Grecian sophistry, and a subtlety the Leontine Gorgias might have envied.  It was about two car-wheels, which to common eyes looked as like as two eggs; but Mr. Choate, by a fine line of argument between tweedle-dum and tweedledee, and a discourse on ‘the fixation of points ‘so deep and fine as to lose itself in obscurity, showed the jury there was a heaven-wide difference between them.  ‘But,’ said Mr. Webster, and his great eyes opened wide and black, as he stared at the big twin wheels before him, ‘gentlemen of the jury, there they are look at ‘em; ‘and as he pronounced this answer, in tones of vast volume, the distorted wheels seemed to shrink back again into their original similarity, and the long argument on the ‘fixation of points ‘died a natural death.  It was an example of the ascendency of mere character over mere intellectuality; but so much greater, nevertheless, the intellectuality? [6]

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

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

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

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

While cross-examining Beecher about the celebrated “ragged letter,” Fullerton asked why he had not made an explanation to the church, if he was innocent.  Beecher answered that he was keeping his part of the compact of silence, and added that he did not believe the others were keeping theirs.  There was audible laughter throughout the court room at this remark, and Judge Neilson ordered the court officer to remove from the court room any person found offending “Except the counsel,” spoke up Mr. Fullerton.  Later the cross-examiner exclaimed impatiently to Mr. Beecher that he was bound to find out all about these things before he got through, to which Beecher retorted, “I don’t think you are succeeding very well.” 

Mr. Fullerton (in a voice like thunder).  “Why did you not rise up and deny the charge?”

Mr. Beecher (putting into his voice all that marvellous magnetic force, which so distinguished him from other men of his time).  “Mr. Fullerton, that is not my habit of mind, nor my manner of dealing with men and things.” 

Mr. Fullerton.  “So I observe.  You say that Theodore Tilton’s charge of intimacy with his wife, and the charges made by your church and by the committee of your church, made no impression on you?”

Mr. Beecher (shortly).  “Not the slightest”

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

Mr. Fullerton (addressing the court impressively).  “When Mr. Sherman is not impertinent, he is nothing in this case.” 

Judge Neilson (to the rescue).  “Probably counsel thought ---“

Mr. Fullerton (interrupting).  “What Mr. Sherman thinks, your Honor, cannot possibly be of sufficient importance to take up the time either of the court or opposing counsel.” 

“Are you in the habit of having your sermons published?” continued Mr. Fullerton.  Mr. Beecher acknowledged that he was, and also that he had preached a sermon on “The Nobility of Confession.” 

Mr. Sherman (sarcastically).  “I hope Mr. Fullerton is not going to preach its a sermon.” 

Mr. Fullerton.  “I would do so if I thought I could convert brother Sherman.” 

Mr. Beecher (quietly).  “I will be happy to give you the use of my pulpit.” 

Mr. Fullerton (laughing).  “Brother Sherman is the only audience I shall want.” 

Mr. Beecher (sarcastically).  “Perhaps he is the only audience you can get.” 

Mr. Fullerton.  “If I succeed in converting brother Sherman, I will consider my work as a Christian minister complete.” 

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

At this point Mr. Fullerton turned to the court, and pointing to the clock, said, “Nothing comes after the sermon, I believe, but the benediction.”  His Honor took the hint, and the proceedings adjourned. [7]

In this same trial Hon.  William M.  Evarts, as leading counsel for Mr. Beecher, heightened his already international reputation as an advocate.  It was Mr. Evarts’s versatility in the Beecher case that occasioned so much comment.  Whether he was examining in chief or on cross, in the discussion of points of evidence, or in the summing up, he displayed equally his masterly talents.  His cross-examination of Theodore Tilton was a masterpiece.  His speeches in court were clear, calm, and logical.  Mr. Evarts was not only a great lawyer, but an orator and statesman of the highest distinction.  He has been called “the Prince of the American Bar.”  He was a gentleman of high scholarship and fine literary tastes.  His manner in the trial of a case has been described by some one as “all head, nose, voice, and forefinger.”  He was five feet seven inches tall, thin and slender, “with a face like parchment.” 

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

It was not so with the late Edward C.  James; a contest with him meant great mental and physical fatigue for his opponent.  James was ponderous and indefatigable.  His cross-examinations were labored in the extreme.  His manner as an examiner was dignified and forceful, his mind always alert and centred on the subject before him; but he had none of Mr. Choate’s fascination or brilliancy.  He was dogged, determined, heavy.  He would pound at you incessantly, but seldom reached the mark.  He literally wore out his opponent, and could never realize that he was on the wrong side of a case until the foreman of the jury told him so.  Even then he would want the jury polled to see if there was not some mistake.  James never smiled except in triumph and when his opponent frowned.  When Mr. Choate smiled, you couldn’t help smiling with him.  During the last ten years of his life James was found on one side or the other of most of the important cases that were tried.  He owed his success to his industrious and indefatigable qualities as a fighter; not, I think, to his art. 

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

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

It is said of James W.  Gerard, the elder, that “he obtained the greatest number of verdicts against evidence of any one who ever practised at the New York Bar.  He was full of expedients and possessed extraordinary tact.  In his profound knowledge of human nature and his ready adaptation, in the conduct of trials, to the peculiarities, caprices, and whims of the different juries before whom he appeared he was almost without a rival....  Any one who witnessed the telling hits made by Mr. Gerard on cross-examination, and the sensational incidents sprung by him upon his opponents, the court, and the jury, would have thought that he acted upon the inspiration of the moment that all he did and all he said was impromptu.  In fact, Mr. Gerard made thorough preparation for trial.  Generally his hits in cross-examination were the result of previous preparation.  He made briefs for cross-examination.  To a large extent his flashes of wit and his extraordinary and grotesque humor were well pondered over and studied up beforehand.” [8]

Justice Miller said of Roscoe Conkling that “he was one of the greatest men intellectually of his time.”  He was more than fifty years of age when he abandoned his arduous public service at Washington, and opened an office in New York City.  During his six years at the New York Bar, such was his success, that he is reputed to have accumulated, for a lawyer, a very large fortune.  He constituted himself a barrister and adopted the plan of acting only as Counsel.   He was fluent and eloquent of speech, most thorough in the preparation of his cases, and an accomplished cross-examiner.  Despite his public career, he said of himself, “My proper place is to be before twelve men in the box.”  Conkling used to study for his cross-examinations, in important cases, with the most painstaking minuteness.  In the trial of the Rev.  Henry Burge for murder, Conkling saw that the case was likely to turn upon the cross-examination of Dr.  Swinburne, who had performed the autopsy.  The charge of the prosecution was that Mrs.  Burge had been strangled by her husband, who had then cut her throat.  In order to disprove this on cross-examination, Mr. Conkling procured a body for dissection and had dissected, in his presence, the parts of the body that he wished to study.  As the result of Dr.  Swinburne’s cross-examination at the trial, the presiding judge felt compelled to declare the evidence so entirely untrustworthy that he would decline to submit it to the jury and directed that the prisoner be set at liberty. 

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

Choate had mastered all the little tricks of the trial lawyer, but he attained also to the grander thoughts and the logical powers of the really great advocate.  Butler’s success depended upon zeal, combined with shrewdness and not overconscientious trickery. 

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

“When I was quite a young man I was called upon to defend a man for homicide.  He and his associate had been engaged in a quarrel which proceeded to blows and at last to stones.  My client, with a sharp stone, struck the deceased in the head on that part usually called the temple.  The man went and sat down on the curbstone, the blood streaming from his face, and shortly afterward fell over dead. 

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

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

“Upon all these questions I had thoroughly prepared myself. 

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

“Witness.  ‘Yes; that is so.’

“Mr. Butler.  ‘Very well.  Where does the temporal artery take its rise in the system?  Is it at the heart?”

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

“Mr. Butler.  ‘Doctor, where does it branch off from it?  on the inside or the outside of the skull?’

“Witness.  ‘On the inside.’

“Mr. Butler.  ‘Does it have anything to do inside with supplying the brain?’

“Witness.  ‘No.’

“Mr. Butler.  ‘Well, doctor, how does it get outside to supply the head and temples?’

“Witness.  ‘Oh, it passes out through its appropriate opening in the skull.’

“Mr. Butler.  ‘Is that through the eyes?’

“Witness.  ‘No.’

“Mr. Butler.  ‘The ears?’

“Witness.  ‘No.’

“Mr. Butler.  ‘It would be inconvenient to go through the mouth, would it not, doctor?’

“Here I produced from my green bag a skull.  ‘I cannot find any opening on this skull which I think is appropriate to the temporal artery.  Will you please point out the appropriate opening through which the temporal artery passes from the inside to the outside of the skull?’

“He was utterly unable so to do. 

“Mr. Butler.  ‘Doctor, I don’t think I will trouble you any further; you can step down.’  He did so, and my client’s life was saved on that point. 

“The temporal artery doesn’t go inside the skull at all. 

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

“After some substantially immaterial matters on the part of the defence, the surgeon was called and was qualified as a witness.  He testified that he was a man of great position in his profession.  Of course in that I was not interested, for I knew he could qualify himself as an expert.  In his direct examination he spent a good deal of the time in giving a very learned and somewhat technical description of the condition of my client.  He admitted that my client’s nervous system was very much shattered, but he also stated that it would probably be only temporary.  Of all this I took little notice; for, to tell the truth, I had been up quite late the night before and in the warm court room felt a little sleepy.  But the counsel for the road put this question to him:

“‘Doctor, to what do you attribute this condition of the plaintiff which you describe?’

“‘Hysteria, sir; he is hysterical.’

“That waked me up.  I said, ‘Doctor, did I understand I was not paying proper attention to what did you attribute this nervous condition of my client?’

“‘Hysteria, sir.’

“I subsided, and the examination went on until it came my turn to cross-examine. 

“Mr. Butler.  ‘Do I understand that you think this condition of my client wholly hysterical?’

“Witness.  ‘Yes, sir; undoubtedly.’

“Mr. Butler.  ‘And therefore won’t last long?’

“Witness.  ‘No, sir; not likely to.’ ” Mr. Butler.  ‘Well, doctor, let us see; is not the disease called hysteria and its effects hysterics; and isn’t it true that hysteria, hysterics, hysterical, all come from the Greek word va-Tepa?’

“Witness.  ‘It may be.’

“Mr. Butler.  ‘Don’t say it may, doctor; isn’t it?  Isn’t an exact translation of the Greek word vcrre/m the English word “womb “?’

“Witness.  ‘You are right, sir.’

“Mr. Butler.  ‘Well, doctor, this morning when you examined this young man here,’ pointing to my client, ‘did you find that he had a womb?  I was not aware of it before, but I will have him examined over again and see if I can find it.  That is all, doctor; you may step down.’ ‘

Robert Ingersoll took part in numerous noted lawsuits in all parts of the country.  But he was almost helpless in court without a competent junior.  He was a born orator if ever there was one.  Henry Ward Beecher regarded him as “the most brilliant speaker of the English tongue in any land on the globe.”  He was not a profound lawyer, however, and hardly the equal of the most mediocre trial lawyer in the examination of witnesses.  Of the art of cross-examining witnesses he knew practically nothing.  His definition of a lawyer, to use his own words, was “a sort of intellectual strumpet.”  “My ideal of a great lawyer,” he once wrote, “is that great English attorney who accumulated a fortune of a million pounds, and left it all in his will to make a home for idiots, declaring that he wanted to give it back to the people from whom he took it.” 

Judge Walter H.  Sanborn relates a conversation he had with Judge Miller of the United States Court about Ingersoll.  “Just after Colonel Ingersoll had concluded an argument before Mr. Justice Miller, while on Circuit I came into the court and remarked to Judge Miller that I wished I had got there a little sooner, as I had never heard Colonel Ingersoll make a legal argument.”  --- “Well,” said Judge Miller, “you never will.” [9]

Ingersoll’s genius lay in other directions.  Who but Ingersoll could have written the following:  ---

“A little while ago I stood by the grave of the old Napoleon ---  a magnificent tomb of gilt and gold, fit almost for a dead deity, and gazed upon the sarcophagus of black marble, where rest at last the ashes of that restless man.  I leaned over the balustrade, and thought about the career of the greatest soldier of the modern world.  I saw him walking upon the banks of the Seine, contemplating suicide; I saw him at Toulon; I saw him putting down the mob in the streets of Paris; I saw him at the head of the army in Italy; I saw him crossing the bridge of Lodi, with the tricolor in his hand; I saw him in Egypt, in the shadows of the Pyramids; I saw him conquer the Alps, and mingle the eagles of France with the eagles of the crags; I saw him at Marengo, at Ulm, and at Austerlitz; I saw him in Russia, where the infantry of the snow and the cavalry of the wild blast scattered his legions like winter’s withered leaves.  I saw him at Leipsic, in defeat and disaster; driven by a million bayonets back upon Paris; clutched like a wild beast; banished to Elba.  I saw him escape and retake an empire by the force of his genius.  I saw him upon the frightful field of Waterloo, where chance and fate combined to wreck the fortunes of their former kino;. 

And I saw him at St.  Helena, with his hands crossed behind him, gazing out upon the sad and solemn sea.  I thought of the orphans and widows he had made, of the tears that had been shed for his glory, and of the only woman who had ever loved him, pushed from his heart by the cold hand of ambition.  And I said I would rather have been a French peasant, and worn wooden shoes; I would rather have lived in a hut, with a vine growing over the door, and the grapes growing purple in the kisses of the autumn sun.  I would rather have been that poor peasant, with my loving wife by my side, knitting as the day died out of the sky, with my children upon my knees, and their arms about me.  I would rather have been that man, and gone down to the tongueless silence of the dreamless dust, than to have been that imperial impersonation of force and murder, known as Napoleon the Great.” 

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

[1] “Life of Lord Russell,” Barry O’Brien. 

[2] “Reminiscences of Rufus Choate,” Parker

[3] “Life Sketches of Eminent Lawyers,” Gilbert J.  Clark.

[4] “Curiosities of Law and Lawyers.”

[5] “Life Sketches of Eminent Lawyers,” Clark. 

[6] “Reminiscences of Rufus Choate,” Parker.

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

[8] “Extraordinary Cases,” Henry Lauran Clinton.

[9] “Life Sketches of Eminent Lawyers,” Gilbert J.  Clark.

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