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."[23]
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.'