The Art of Cross-Examination / With the Cross-Examinations of Important Witnesses in Some Celebrated Cases

by Francis L. Wellman

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.[22]

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 preëminent 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 preëminent. 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.