A good story, too, is told against Lord Coleridge in Mr. O’Brien’s Life of Lord Russell. He appeared in a libel action for a young lady who had been expelled from a college. His case was that the breaches of discipline were trivial, and he pressed Mrs. Kennedy, the mistress of novices, asking what his young client had done. Mrs. Kennedy said, as an example, that she had eaten strawberries.
“Eaten strawberries!” exclaimed Coleridge. “What harm was there in that?”
“It was forbidden, sir,” replied Mrs. Kennedy simply.
Coleridge should have accepted her answer, but he retorted with a contemptuous question, not foreseeing the reprisal, “But, Mrs. Kennedy, what trouble was likely to come from eating strawberries?”
“Well, sir,” replied Mrs. Kennedy, “you might ask what trouble was likely to come from eating an apple, yet we know what trouble did come from it.”
Coleridge’s cross-examination dissolved in laughter, in which, of course, he joined good-naturedly.
The art of re-examination, which is a task often as futile as the endeavour to set Humpty Dumpty on the wall again, can be learned only by the experience of watching the game on the table and playing any few remaining cards in your hand with rapid judgment.
A wise student will take Lord Halsbury’s advice and go to the Old Bailey to study cross-examination; and, if Lockwood’s view still holds good, he might attend the Chancery Courts to learn how not to re-examine. Birrell tells us that “once, in the Court of Chancery, a witness was asked, in cross-examination by an eminent Chancery leader, whether it was true that he had been convicted of perjury. The witness owned the soft impeachment, and the cross-examining counsel very promptly sat down. Then it became the duty of an equally eminent Chancery Q.C. to re-examine. ‘Yes,’ said he, ‘it is true you have been convicted of perjury. But tell me, have you not on many other occasions been accused of perjury, and been acquitted?’”
Most re-examination intending to rehabilitate the character of a witness is apt to make matters worse.
These stories of actual happenings, trivial in themselves, teach us the necessity of judgment in advocacy. And I pray the young advocate not to rejoice too merrily over the errors of judgment of his seniors or lament too grievously about his own. Bear in mind that by acknowledged error we may learn wisdom, and that the only illuminant for the lamp of judgment is the oil of experience.