New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1903-12-16


often confuse the wits of the witness II is true D
hut they fail to discredit him with the Jury On
the contrary, they elicit sympathy lot the w.
ness they are attacking and little realize that
their vigorous cross-examination.' at the end
OF which they sit down with evident seh-sai rs
faction. has only served to close enectuahy the
mind OF at least one fair minded Juryman
against their side of the case, ana as iIkely o.
not it has brought to light some important lact
favorable to the other side which had peeh over
looked in the examination in CHIEF.
A good advocate should be good actor Inc
most cautious cross-eXamlher WIN III, oi1e4 - +be
a damaging answer. Now Is the tlIie Ioi 80 o
greatest self-control. II you show by your rae
how the answer hurt, you may lose your case
by that one point alone. How often one sees
the cross-examiner fairly staggered by such an
answer. He pauses, perhaps bushes, ana aIter
he has allowed the answer to have It's full ef-
feet. finally reGains his self-possession, but sell
dom his control of the witness. with the ref1hS
experienced trial lawyer, such answers lnsteaG
Of appearing TO surprise or disconcert hlIll' VIII
seem to come as a matter OF course ana WI" VIII
fall perfectly fiat. He win proceed WITH rae
next question as if nothing had hap I'D; OF
even perhaps give the witness an hlcIetLIoI Is
smile. If to say. Who do you suppose would
believe that for a mnute?'
Mr. weIIman illustrates all of his precepts by
examples taken either from the cases in which
he has figured. or from others; and many Of
them are amusing we'll apt. OF the in
crease of perjury in courts and Of the cross
examination of perjured witness he has this
TO say:
II
fined 10 the ignorant classes. the work of cross
examining them would be a comparatively sim
pie matter; but unfortunately for the cause OF
truth and justice this is far from the case
Perjury is decidedly on the increase, and at the
present time scarcely trial is conducted in
which il does not appear in a more or less
fragrant form. Nothing in the trial of a cause
is difficult to expose the perjury of a wit
ness whose intelligence enables him to hide his
lack of scruple. There various methods
Of attempting IL, but no uniform rule
can be laid down as to the proper man
ner TO be displayed toward such witness 1t
all depends upon the individual character you
have to unmask. In a large majority OF cases
the chance Of success will be largely decreased
BY not allowing the witness to see that you
suspect him before you have led him to COM
NIT himself to various matters with which
you have reason to believe you can confront
him later on.
If the manner of the witness and the wording
Of his testimony bear all the earmarks of fabri-
cation it is often useful as your first question,
to ask him to repeat his story. Usually he will
repeat it in almost identically the same words
as before. showing he has learned it by heart.
OF course it is possible, though not probable,
that he has done this and still IS telling the
truth. Try him by taking him 10 the middle
of his story, and from there jump him quickly
to the beginning and then to the end of IT. If
he is speaking by rote rather than from recol-
lection he Will be sure to succumb TO this
method He has no facts with which TO asso-
ctate the wording of his story; he can only call
IL TO mind a whole, and not in detachments
Draw his attention to other facts entirely dis
associated with the main story told by him
self. He will be entirely unprepared for these
new inquiries, and will draw upon his magma
ton for answers. Distract his thoughts again
70 some part of his main story and then
suddenly, when his mind is upon another sub
1ect. return to those considerations TO which
you had first called his attention and ask him
the same questions a second time. He will
again fall back upon his imagination and very
likely will give a different answer from the
frst-and you have him IN the net. He can
not invent answers fast you invent
questions, and at the same time remember
Ia nv fNu n1T1r To mill n
keep his answers all consistent with one another.
He viii soon become confused and. from that
time on, viii be at your mercy. Let him go as
soon as you have had 1t apparent that he is not
mistaken. but lying.
Quite as interesting are Mr. Wellman's dis
sertations upon the cross-examination of ex-
perts. silent cross-eXamina ton cross-exami-
nation to credit and its abuses and "the tanning
Of a hostile witness and forcing him to tell the
truth against his will" But there is nothing in
this book more noteworthy from the standpoint
Of the public interest than what the author says
Of the abuses of the congested court calendars in
the city Of New-York and Of the remedy pro-
posed. He writes:
II is often truly said that many OF our best
lawyers-i am speaking now especially Of New
York City-are Withdrawing from court practice
because the nature Of the litigation is changing.
To such an extent is this change taking place in
some localities that the more important COM
/ mercial cases rarely reach court decision. Our
4 merchants prefer to compromise their diff
culties, or to write off their losses rather than
enter into litigatons that must remain dormant
In the courts for upward Of three years awaiting
4 their turn for a hearing on the oyercroWded
( court calendars. And yet fully six thousand
cases Of one kind another are tried or dis
posed Of yearly in the Borough of Manhattan
alone.
This congestion IS not wholly due to lack Of
judges, or that they not capable and in
dustrious men, but is largely, it seems to me- the
fault OF the system in vogue in ell American
courts OF allowing any lawyer, duly enrolled
a member Of the bar. 10 practise III the highest
courts In the United States we recognize no
distinction between barrister and solicitor; we
are all barristers and solicitors by turn One
J has but TO frequent the courts to become con
WINGED that. so long the ten thousand MEM
/ bers ut the New-York County Bar all avail
ana Try their own clients cases. the great ma
/ Jority Of the trials will be poorly conducted and
much valuable time wasted
The conduct Of a case in court is a peculiar art
I Tor which many men, however learned in the
? law, are not fitted; and where a lawyer has but
/ one or even dozen experiences in court in each
+ year he can never become a competent trial
lawyer. l am not addressing myself to clients,
/ who often assume that, because are duly
! qualified as lawyers, we are therefore competent
courts. against the congestion Of the calendars,
/ ana the consequent crOWdng out of Weighty
/ commercial litigatons
one experienced I'm the trial of causes will not
require, at the utmost. more than quarter of
( the time taken by the most learned inexperi-
! viii be thoroughly prepared and understood be-
fore the trial begins. His points of law and
! issues OF fact viii be clearly defined and pre-
! Sented to the court and jury in the feWest pos
/ the erroneous rulings on questions of law and
evidence which are now uDSpttiDp many var-