Page:NYT book review of Cross-Examination.djvu/1



N HIS—interesting book on "The Art of Cross-Examination," Francis L. Wellman, who was formerly an Assistant District Attorney for the County of New York, has taken the unusual course of permitting some other lawyer to begin his first chapter and to close his last. He opens with the following quotation from "one of England's greatest advocates at the close of a long and eventful career at the bar," written half a century ago:

The issue of a cause rarely depends upon a speech, and is but seldom even affected by it. But there is never a cause contested the result of which is not mainly dependent upon the skill with which the advocate conducts his cross-examination.

The book ends abruptly with Joseph H. Choate's closing words in the cross-examination of Russell Sage in the Laidlaw case—words that fall almost unconsciously from the lips of every lawyer when he has squeezed his witness dry:

"I think that is all."

Mr. Wellman's book is not, as its title might lead many person to suppose, written solely for lawyers. It has no place with the great company of dreary and dignified tomes of sheepskin that fill the bookshelves in attorneys' offices. The text is written in a chatty, narrative style and abounds with anecdotes about great men whose battles in court are so familiar to the present generation, that it is entertaining to a degree, even to men who know nothing about law. Whatever benefit younger attorneys and law-students may derive from Mr. Wellman's advice and counsel depends upon the application of it. The author makes it very clear that what is good, cross-examination in one case is dangerous tactics in another. The cross-examiner must not fuss with his notes, but must watch every move of his witness as a prizefighter watches his opponent, sparring guardedly for an opening, landing a telling blow at the first opportunity and making every hit tell. He believes in the maxim of the late Sir Charles Russell, whom he considers altogether the most successful cross-examiner of modern times: "Go straight at the witness and at the point; throw your cards on the table; mere finesse juries do not appreciate."

Mr. Wellman confesses that he does not intend to arrogate to himself any superior knowledge upon the subject of cross-examination excepting in so far as it may have been gleaned from actual experience of twenty-five years court practice, in which he examined and cross-examined about 15,000 witnesses drawn from all classes of the community. In cautioning young advocates against spread-eagle oratory he says that modern juries, especially large cities, are composed of practical business men accustomed to think for themselves, experiences in the ways of life, capable of forming estimates and making nice distinctions, unmoved by the passions and prejudices to which court oratory is nearly always directed.

Mr. Wellman makes a strong plea for confining the trial of cases in court to lawyers who have been specially trained for that branch of the profession. "We are beginning to appreciate in this country," he writes, "what the English courts have so long recognized, that the only way to ensure speedy and intelligently conducted litigations is to inaugurate a custom of confining court practices to a comparatively limited number of trained trial lawyers." He directs attention to "that ever-growing class in our profession who have relinquished their court practice and are building up fortunes such as were never dreamed of in the legal profession a decade ago."

Mr. Wellman calls these men "business lawyers," who through opportunity, combined with rare commercial ability, have come to apply their knowledge of law to great corporate enterprises. To such an extent is this change taking place, he says, that in some localities the more important commercial cases never reach a court decision. Merchants prefer to compromise their difficulties or write off their losses rather than enter into dormant litigation caused by overcrowded calendars; yet fully 6,000 cases of one kind or another are tried or disposed of yearly in the Borough of Manhattan alone.

It is Mr. Wellman's opinion that "one has but to frequent the courts to become convinced that so long as the ten thousand members of the New York County bar will avail themselves of their privilege to appear in court and try their own clients' cases, the great majority of the trials will be poorly conducted and much valuable time wasted." A lawyer experienced in the trials of causes will not require, at the utmost, more than one-quarter of the time taken by the most learned inexperienced lawyer in developing his case. His points of law and issues of fact will be clearly defined and presented to the jury in the fewest possible words. A few lawyers have gone so far as to refuse direct communications with clients excepting as they come represented by their own attorneys.

When the public realizes [says the author] that a good trail lawyer is the outcome, one might say, of generations of witnesses; when clients fully appreciate the danger they run in intrusting their litigations to so-called office lawyers with little or not experience in court, they will insist upon their briefs being intrusted to those who make a specialty of court practice.

There is no short cut, no royal road to proficiency in the art of advocacy and cross-examination, Mr. Wellman declares.