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The Art of Cross-Examination

by Francis H. Wellman


One of the most recent cross-examinations to be made the subject of appeal to the Supreme Court General Term and the New York Court of Appeals was the cross-examination of Russell Sage by the Hon.  Joseph H.  Choate in the famous suit brought against the former by William R.  Laidlaw.  Sage was defended by the late Edwin C.  James, and Mr. Choate appeared for the plaintiff, Mr. Laidlaw. 

On the fourth day of December, 1891, a stranger by the name of Norcross came to Russell Sage’s New York office and sent a message to him that he wanted to see him on important business, and that he had a letter of introduction from Mr. John Rockefeller.  Mr. Sage left his private office, and going up to Norcross, was handed an open letter which read, “This carpet-bag I hold in my hand contains ten pounds of dynamite, and if I drop this bag on the floor it will destroy this building in ruins and kill every human being in it.  I demand twelve hundred thousand dollars, or I will drop it.  Will you give it?  Yes or no?”

Mr. Sage read the letter, handed it back to Norcross, and suggested that he had a gentleman waiting for him in his private office, and could be through his business in a couple of minutes when he would give the matter his attention. 

Norcross responded: “Then you decline my proposition?  Will you give it to me?  Yes or no?”  Sage explained again why he would have to postpone giving it to him for two or three minutes to get rid of some one in his private office, and just at this juncture Mr. Laidlaw entered the office, saw Norcross and Sage without hearing the conversation, and waited in the anteroom until Sage should be disengaged.  As he waited, Sage edged toward him and partly seating himself upon the table near Mr. Laidlaw, and without addressing him, took him by the left hand as if to shake hands with him, but with both his own hands, and drew Mr. Laidlaw almost imperceptibly around between him and Norcross.  As he did so, he said to Norcross, “If you cannot trust me, how can you expect me to trust you?”

With that there was a terrible explosion.  Norcross himself was blown to pieces and instantly killed.  Mr. Laidlaw found himself on the floor on top of Russell Sage.  He was seriously injured, and later brought suit against Mr. Sage for damages upon the ground that he had purposely made a shield of his body from the expected explosion.  Mr. Sage denied that he had made a shield of Laidlaw or that he had taken him by the hand or altered his own position so as to bring Laidlaw between him and the explosion. 

The case was tried four times.  It was dismissed by Mr. Justice Andrews, and upon appeal the judgment was reversed.  On the second trial before Mr. Justice Patterson the jury rendered a verdict of $25,000 in favor of Mr. Laidlaw.  On appeal this judgment in turn was reversed.  On a third trial, also before Mr. Justice Patterson, the jury disagreed; and on the fourth trial before Mr. Justice Ingraham the jury rendered a verdict in favor of Mr. Laidlaw of $40,000, which judgment was sustained by the General Term of the Supreme Court, but subsequently reversed by the Court of Appeals. 

Exception on this appeal was taken especially to the method used in the cross-examination of Mr. Sage by Mr. Choate.  Thus the cross-examination is interesting, as an instance of what the New York Court of Appeals has decided to be an abuse of cross-examination into which, through their zeal, even eminent counsel are sometimes led, and to which I have referred in a previous chapter.  It also shows to what lengths Mr. Choate was permitted to go upon the pretext of testing the witness’s memory. 

It was claimed by Mr. Sage’s counsel upon the appeal that “the right of cross-examination was abused in this case to such an extent as to require the reversal of this monstrous judgment, which is plainly the precipitation and product of that abuse.”  And the Court of Appeals unanimously took this view of the matter. 

After Mr. Sage had finished his testimony in his own behalf, Mr. Choate rose from his chair to cross-examine; he sat on the table back of the counsel table, swinging his legs idly, regarded the witness smilingly, and then began in an unusually low voice. 

Mr. Choate.  “Where do you reside, Mr. Sage?”

Mr. Sage.  “At 506 Fifth Avenue.” 

Mr. Choate (still in a very low tone).  “And what is your age now?”

Mr. Sage (promptly).  “Seventy-seven years.” 

Mr. Choate (with a strong raising of his voice).  “Do you ordinarily hear as well as you have heard the two questions you have answered me?”

Mr. Sage (looking a bit surprised and answering in an almost inaudible voice).  “Why, yes.” 

Mr. Choate.  “Did you lose your voice by the explosion?”

Mr. Sage.  “No.” 

Mr. Choate.  “You spoke louder when you were in Congress, didn’t you?”

Mr. Sage.  “I may have.” 

Mr. Choate, resuming the conversational tone, began an unexpected line of questions by asking in a smalltalk voice, “What jewelry do you ordinarily wear?’

Witness answered that he was not in the habit of wearing jewelry. 

Mr. Choate.  “Do you wear a watch?”

Mr. Sage.  “Yes.” 

Mr. Choate.  “And you ordinarily carry it as you carry the one you have at present in your left vest pocket?”

Mr. Sage.  “Yes, I suppose so.” 

Mr. Choate.  “Was your watch hurt by the explosion?”

Mr. Sage.  “I believe not.” 

Mr. Choate.  “It was not even stopped by the explosion which perforated your vest with missiles?”

Mr. Sage.  “I do not remember about this.” 

The witness did not quite enjoy this line of questioning, and swung his eye-glasses as if he were a trifle nervous.  Mr. Choate, after regarding him in silence for some time, said, “I see you wear eye-glasses.”  The witness closed his glasses and put them in his vest pocket, whereupon Mr. Choate resumed, “And when you do not wear them, you carry them, I see, in your vest pocket.” 

Mr. Choate.  “Were your glasses hurt by that explosion which inflicted forty-seven wounds on your chest?”

Mr. Sage.  “I do not remember.” 

Mr. Choate.  “You certainly would remember if you had to buy a new pair?”

If the witness answered this question, his answer was lost in the laughter which the court officer could not instantly check. 

Mr. Choate.  “These clothes you brought here to show, --- you are sure they are the same you wore that day?”

Mr. Sage.  “Yes.” 

Mr. Choate.  “How do you know?”

Mr. Sage.  “The same as you would know in a matter of that kind.” 

Mr. Choate.  “Were you familiar with these clothes?”

Mr. Sage.  “Yes, sir.” 

Mr. Choate.  “How long had you had them?”

Mr. Sage.  “Oh, some months.” 

Mr. Choate.  “Had you had them three or four years?”

Mr. Sage.  “No.” 

Mr. Choate.  “And wore them daily except on Sundays?”

Mr. Sage.  “I think not; they were too heavy for summer wear.” 

Mr. Choate.  “Do you remember looking out of the window that morning when you got up to see if it was cloudy so you would know whether to wear the old suit or not?”

Mr. Sage.  “I do not remember.” 

Mr. Choate.  “Well, let that go now; how is your general health,--- good as a man of seventy-seven could expect?’

Mr. Sage.  “Good except for my hearing.” 

Mr. Choate.  “And that is impaired to the extent demonstrated here on this cross-examination?”

The witness did not answer this question, and after some more kindly inquiries regarding his health, Mr. Choate began an even more intimate inquiry concerning the business career of Mr. Sage. 

He learned that the millionaire was born in Verona, Oneida County, went to Troy when he was eleven years old, and was in business there until 1863, when he came to this city. 

Mr. Choate.  “What was your business in Troy?”

Mr. Sage.  “Merchant.” 

Mr. Choate.  “What kind of a merchant?”

Mr. Sage.  “A grocer, and I was afterwards engaged in banking and railroad operating.” 

Mr. Sage, as a railroad builder, excited Mr. Choate’s liveliest interest.  He wanted to know all about that, the name of every road he had built or helped to build, when he had done this, and with whom he had been associated in doing it.  He frequently outlined his questions by explaining that he did not wish to ask the witness any impudent questions, but merely wanted to test his memory.  The financier would sometimes say that to answer some questions he would have to refer to his books, and then the lawyer would pretend great surprise that the witness could not remember even the names of roads he had built.  Mr. Sage said, “Possibly we might differ as to what is aiding a road.  Some I have aided as a director, and some as a stockholder.” 

“No, we won’t differ; we will divide the question,” Mr. Choate said.  “First name the roads you have aided in building as a director, and then the roads you have aided in building as a stockholder.”  The witness either would not, or could not, and after worrying him with a hundred questions on this line, Mr. Choate finally exclaimed, “Well, we will let that go.” 

Next the cross-examiner brought the witness to consider his railroad-building experience after he left Troy and came to New York, whereby he managed, under the license of testing the memory of the witness, to show the jury the intimate financial relations which had existed between Mr. Sage and Mr. Jay Gould, and finally asked the witness point blank how many roads he had assisted in building in connection with Mr. Gould as director or stockholder.  After some very lively sparring the witness thought that he had been connected in one way or another in about thirty railroads.  “Name them!”  exclaimed Mr. Choate.  The witness named three and then stopped. 

Mr. Choate (looking at his list).  “There are twenty-seven more.  Please hurry, --- you do business much faster than this in your office!”

Mr. Sage said something about a number of auxiliary roads that had been consolidated, and roads that had been merged, and unimportant roads whose directors met very seldom, and again said something about referring to his books. 

Mr. Choate.  “Your books have nothing to do with what I am trying to determine, which is a question of your memory.” 

The witness continued to spar, and at last Mr. Choate exclaimed, “Now is it not true that you have millions and millions of dollars in roads that you have not named here?”

All of the counsel for the defence were on their feet, objecting to this question, and Mr. Choate withdrew it, and added, “It appears you cannot remember, and won’t you please say so?”

The witness would not say so, and Mr. Choate exclaimed, “Well, I give that up,” and then asked, “You say you are a banker; what kind of a bank do you run, --- is it a bank of deposit?”  The witness said it was not, and neither was it a bank for circulating notes.  “Sometimes I have money to lend,” he said. 

Mr. Choate.  “Oh, you are a money lender.  You buy puts and calls and straddles?”

The witness said that he dealt in these privileges.  “Kindly explain to the jury just what puts and calls and straddles are,” the lawyer said encouragingly.  The witness answered: “They are means to assist men of moderate capital to operate.” 

Mr. Choate.  “A sort of benevolent institution, eh?”

Mr. Sage.  “It is in a sense.  It gives men of moderate means an opportunity to learn the methods of business.” 

Mr. Choate.  “Do you refer to puts or calls?”

Mr. Sage.  “To both.” 

Mr. Choate.  “I do not understand.” 

Mr. Sage.  “I thought you would not “(with a chuckle). 

Mr. Choate affected a puzzled look, and asked slowly: “Is it something like this: they call it and you put it?  If it goes down they get the chargeable benefit, but if it goes up you get it?’

Mr. Sage.  “I only get what I am paid for the privilege.” 

Mr. Choate.  “Now what is a straddle?”

Mr. Sage.  “A straddle is the privilege of calling or putting.” 

“Why,” exclaimed Mr. Choate, with raised eyebrows, “that seems to me like a game of chance? 

Mr. Sage.  “It is a game of the fluctuation of the market.” 

“That is another way of putting it,” Mr. Choate commended, looking as if he did not intend the pun.  Then he asked, “The market once went very heavy against you in this game, did it not?’

“Yes, it did,” the witness replied. 

Mr. Choate.  “That was an occasion when your customers could call, but not put, eh?”

Mr. Sage looked as if he did not understand and made no reply.  Mr. Choate then added: “Did you not then have a run on your office?”  The witness made some reply, hardly audible, concerning a party of Baltimore roughs, who made a row about his office for an hour when he refused to admit them. 

This phase of the question was left in that vague condition, and the cross-examiner opened a new subject and unfolded a three-column clipping from a newspaper, which was headed, “A Chat with Russell Sage.” 

Mr. Choate.  “The reporters called on you soon after the explosion?”

Mr. Sage.  “Yes.” 

Mr. Choate.  “One visited your house?”

Mr. Sage.  “Yes.” 

Mr. Choate.  “Did you read over what he wrote?” 

Mr. Sage.  “No.” 

Mr. Choate.  “Did you read this after it was printed?”

Mr. Sage.  “I believe I did.” 

Mr. Choate.  “It is correct?”

Mr. Sage.  “Reporters sometimes go on their own imagination.” 

It developed that the article which Mr. Choate referred to was written by a grand-nephew of the witness.  When it had thus been identified, Mr. Choate again asked the witness if the article was correct. 

Colonel James exclaimed: “Are you asking him to swear to the correctness of an article from that paper?  Nobody could do that.” 

“No,” Mr. Choate quickly responded, “I am asking him to point out its errors.  Any one can do that.” 

“This,” said Colonel James, “is making a comedy of errors.” 

The witness broke in upon this little relaxation with the remark, “The reporter who wrote that was only in my house five minutes.” 

“Indeed,” exclaimed Mr. Choate, waving the threecolumn clipping, “he got a great deal out of you, and that is more than I have been able to do.” 

The first extract from the newspaper clipping read as follows: “Mr. Sage looks hale and hearty for an old man, --- looks good for many years of life yet.” 

Mr. Choate.  “Is that true?”

Mr. Sage.  “We all try to hold our own as long as we can.” 

Mr. Choate.  “You speak for yourself, when you say we all try to hold on to all that we can.” 

At this Mr. James jumped to his feet again, and there was another spirited passage at arms.  When all had quieted down, Mr. Sage was next asked if the article was correct when it referred to him as looking like a “warrior after the battle.”  He thought that the statement was overdrawn.  The article referred to Mr. Sage’s having shaved himself that morning, which was three mornings after the explosion; and when he had read that, Mr. Choate asked: “Did you have any wounds at that time that a visitor could see?’

The witness replied that both of his hands were then bandaged. 

Mr. Choate.  “You must have shaved yourself with your feet.” 

*  *  *  *  *  *  *  *  *  *  *  *

Mr. Choate.  “Was it a relief to you to see Laidlaw enter the office when you were talking to Norcross?”

Mr. Sage.  “No, and if Laidlaw had stayed out in the lobby instead of coming into my office, he would have been by Norcross when the explosion took place.” 

Mr. Choate.  “Then you think Laidlaw is indebted to you for saving his life instead of your being indebted to him for saving yours?”

Mr. Sage (decidedly).  “Yes, sir.” 

Mr. Choate.  “Oh, that makes this a very simple case, then.  Did you bring your clerk here to testify as to the condition of the office after the police had cleared it out?’

Mr. Sage.  “I did not bring him here, my counsel did.” 

Mr. Choate.  “I see; you do not do any barking when you have a dog to do it for you.” 

Lawyers Dillon and James jumped up, and Mr. James said gravely, “Which of us is referred to as a dog?’

Mr. Choate (laughingly).  “Oh, all of us.” 

Mr. Choate seldom reproved the witness for the character of his answers, although when he was examined by Colonel James on the redirect he was treated with very much less courtesy, for the Colonel frequently requested him, and rather roughly, to be good enough to confine his answers to the question. 

Mr. Choate’s next question referred to the diagram which had been in use up to that point.  He asked the witness if it was correct. 

Mr. Sage.  “I think it is not quite correct, not quite; if the jury will go down there, I would be glad to have them, --- be glad to do anything.  If the jury will go down there, I would be very glad to furnish their transportation, --- if they will go.” 

Mr. Choate.  “If you won’t furnish anything but transportation, they won’t go.” 

Mr. Sage.  “It is substantially correct.  I had a diagram made and I offered an opportunity to Mr. Laidlaw’s counsel to have a correct one made.  I never withheld anything from anybody.” 

The diagram which Mr. Sage had prepared was produced, and upon examination it was seen that it contained lines indicating a wrong rule, and had some other inaccuracies which did not seem to amount to much really; but Mr. Choate appeared to be very much impressed with these differences. 

“I want you,” he said to the witness, “to reconcile your testimony with your own diagram.” 

The witness looked at the diagram for some time, and Mr. Choate, observing him, remarked, “You will have to make a straddle to reconcile that, won’t you?”

Some marks and signs of erasures were seen on the Sage diagram, which gave Mr. Choate an opportunity to ask, in a sensational tone, if any one could inform him who had been tampering with it.  No one could, and the diagram was dropped and the subject of a tattered suit of clothes taken up again. 

Mr. Choate.  “What tailor did you employ at the time of the explosion?’

Mr. Sage.  “Several.” 

Mr. Choate.  “Name them; I want to follow up these clothes.” 

Mr. Sage.  “Tailor Jessup made the coat and vest.” 

Mr. Choate.  “Where is his place?”

Mr. Sage.  “On Broadway.” 

Mr. Choate.  “Is he there now?”

Mr. Sage.  “Oh, no, he has gone to heaven.” 

Mr. Choate.  “To heaven where all good tailors go?  Who made the trousers?”

Mr. Sage.  “I cannot tell where I may have bought them.” 

Mr. Choate.  “Bought them?  You do not buy readymade trousers, do you?’

Mr. Sage.  “I do sometimes.  I get a better fit.” 

Mr. Choate.  “Get benefit?”

Mr. Sage.  “No; better fit.” 

Mr. Choate.  “Where is the receipt for them?”

Mr. Sage.  “I have none.” 

Mr. Choate.  “Do you pay money without receipts?”

Mr. Sage.  “I do sometimes.” 

Mr. Choate.  “Indeed?”

Mr. Sage.  “Yes; you do not take a receipt for your hat.” 

The vest was then produced, and two holes in the outer cloth were exhibited by Mr. Choate, who asked the witness if these were the places where the foreign substances entered which penetrated his body.  The witness replied that they were, and Mr. Choate next asked him if he had had the vest relined.  Mr. Sage replied that he had not.  “How is it, then,” Mr. Choate asked, passing the vest to the jury with great satisfaction, “that these holes do not penetrate the lining?”The witness said that he could not explain that, but insisted that that was the vest and it would have to speak for itself.  Mr. Choate again took the vest and counted six holes on the cloth on the other side, and asked the witness if that count was right.  Mr. Sage replied, “I will take your count,” and then caused a laugh by suddenly reaching out for the vest, and saying, “If you have no objection, though, I would like to see it.” 

Mr. Choate.  “Now are not three of these holes motheaten?”

Mr. Sage.  “I think not.” 

Mr. Choate.  “Are you a judge of moth-eaten goods?”

Mr. Sage.  “No.” 

Mr. Choate.  “Where is the shirt you wore?”

Mr. Sage.  “Destroyed.” 

Mr. Choate.  “By whom?”

Mr. Sage.  “The cook.” 

Mr. Choate.  “The cook?”

Mr. Sage.  “I meant the laundress.” 

The vest was passed to the jury for their inspection, and the jurymen got into an eager whispered discussion as to whether certain of the holes were moth-eaten or not.  There was a tailor on the jury.  Observing the discussion, Mr. Choate took back the garment and said in his most winning way, “Now we don’t want the jury to disagree.”  He next held up the coat, which was very much more injured in the tails than in front, and asked the witness how he accounted for that. 

Mr. Sage.  “It is one of the freaks of electricity.” 

Mr. Choate.  “One of those things no fellow can find out.” 

The witness could not recall how much he had paid for the coat or for any of the garments, and after an unsuccessful attempt to identify the maker of the trousers by the name of the button, which proved to be the name of the button-maker, the old clothes were temporarily allowed to rest, and Mr. Choate asked the witness how long he had been unconscious.  He replied that he thought he was unconscious two seconds. 

Mr. Choate.  “How did you know you were not unconscious ten minutes?”

Mr. Sage.  “Only from what Mr. Walker says.” 

Mr. Choate.  “Where is he?”

Mr. Sage.  “On the Street.” 

Mr. Choate.  “On Chambers Street, downstairs?”

Mr. Sage.  “No, on Wall Street.” 

Mr. Choate.  “Oh, I forgot that the street to you means Wall Street.  Were you not up and dressed every day after the explosion?”

Mr. Sage.  “I cannot remember.” 

Mr. Choate.  “You did business every day?”

Mr. Sage.  “Colonel Slocum and my nephew called upon me about business, and my counsel looked after some missing papers and bonds.” 

Mr. Choate.  “You then held some Missouri Pacific collateral trust bonds?” 

Mr. Sage.  “Yes.” 

Mr. Choate.  “How many?”

Mr. Sage.  “Cannot say.” 

Mr. Choate.  “Can’t you tell within a limit of ten to one thousand?’

Mr. Sage.  “No.” 

Mr. Choate.  “Nor within one hundred to two hundred?”

Mr. Sage.  “No.” 

Mr. Choate.  “Is it because you have too little memory or too many bonds?  How many loans did you have out at that time?’

Mr. Sage.  “I cannot tell.” 

Mr. Choate.  “Can you tell within two hundred thousand of the amount then due you from your largest creditor?’

Mr. Sage.  “Any man doing the business I am ---“

Mr. Choate.  “Oh, there is no other man like you in the world.  No, you cannot tell within two hundred thousand of the amount of the largest loan you then had out, but you set up your memory against Laidlaw’s?”

Mr. Sage.  “I do.” 

Mr. Choate.  “Were you not very excited?”

Mr. Sage.  “I was thoughtful.  I was self-poised.  I did not believe his dynamite would do so much damage, or that he would sacrifice himself.  “

Mr. Choate.  “Never heard of a man killing himself?”

Mr. Sage.  “Not in that way.” [1]

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

[1] Extracts from New York Sun.  March, 1894.

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