The Art of Cross-Examination. Francis L. Wellman
fair statement from you of this man's troubles, ought we not?"
Doctor. "I hope so, sir."
The opening had been found; witness was already flattered into agreeing with all suggestions, and warned against exaggeration.
Counsel. "Let us take up the bladder trouble first. Do not practically all men who have reached the age of sixty-six have troubles of one kind or another that result in more or less irritation of the bladder?"
Doctor. "Yes, that is very common with old men."
Counsel. "You said Mr. Metts was deaf in one ear. I noticed that he seemed to hear the questions asked him in court particularly well; did you notice it?"
Doctor. "I did."
Counsel. "At the age of sixty-six are not the majority of men gradually failing in their hearing?"
Doctor. "Yes, sir, frequently."
Counsel. "Frankly, doctor, don't you think this man hears remarkably well for his age, leaving out the deaf ear altogether?"
Doctor. "I think he does."
Counsel (keeping the ball rolling). "I don't think you have even the first symptoms of this 'traumatic microsis,' doctor."
Doctor (pleased). "I haven't got it at all."
Counsel. "You said Mr. Metts had had concussion of the brain. Has not every boy who has fallen over backward, when skating on the ice, and struck his head, also had what you physicians would call 'concussion of the brain'?"
Doctor. "Yes, sir."
Counsel. "But I understood you to say that this plaintiff had had, in addition, hæmorrhages of the brain. Do you mean to tell us that he could have had hæmorrhages of the brain and be alive to-day?"
Doctor. "They were microscopic hæmorrhages."
Counsel. "That is to say, one would have to take a microscope to find them?"
Doctor. "That is right."
Counsel. "You do not mean us to understand, doctor, that you have not cured him of these microscopic hæmorrhages?"
Doctor. "I have cured him; that is right."
Counsel. "You certainly were competent to set his broken leg or you wouldn't have attempted it; did you get a good union?"
Doctor. "Yes, he has got a good, strong, healthy leg."
Counsel having elicited, by the "smiling method," all the required admissions, suddenly changed his whole bearing toward the witness, and continued pointedly:—
Counsel. "And you said that $2500 would be a fair and reasonable charge for your services. It is three years since Mr. Metts was injured. Have you sent him no bill?"
Doctor. "Yes, sir, I have."
Counsel. "Let me see it. (Turning to plaintiff's counsel.) Will either of you let me have the bill?"
Doctor. "I haven't it, sir."
Counsel (astonished). "What was the amount of it?"
Doctor. "$1000."
Counsel (savagely). "Why do you charge the railroad company two and a half times as much as you charge the patient himself?"
Doctor (embarrassed at this sudden change on part of counsel). "You asked me what my services were worth."
Counsel. "Didn't you charge your patient the full worth of your services?"
Doctor (no answer).
Counsel (quickly). "How much have you been paid on your bill—on your oath?"
Doctor. "He paid me $100 at one time, that is, two years ago; and at two different times since he has paid me $30."
Counsel. "And he is a rich commission merchant down town!" (And with something between a sneer and a laugh counsel sat down.)
An amusing incident, leading to the exposure of a manifest fraud, occurred recently in another of the many damage suits brought against the Metropolitan Street Railway and growing out of a collision between two of the company's electric cars.
The plaintiff, a laboring man, had been thrown to the street pavement from the platform of the car by the force of the collision, and had dislocated his shoulder. He had testified in his own behalf that he had been permanently injured in so far as he had not been able to follow his usual employment for the reason that he could not raise his arm above a point parallel with his shoulder. Upon cross-examination the attorney for the railroad asked the witness a few sympathetic questions about his sufferings, and upon getting on a friendly basis with him asked him "to be good enough to show the jury the extreme limit to which he could raise his arm since the accident." The plaintiff slowly and with considerable difficulty raised his arm to the parallel of his shoulder. "Now, using the same arm, show the jury how high you could get it up before the accident," quietly continued the attorney; whereupon the witness extended his arm to its full height above his head, amid peals of laughter from the court and jury.
In a case of murder, to which the defence of insanity was set up, a medical witness called on behalf of the accused swore that in his opinion the accused, at the time he killed the deceased, was affected with a homicidal mania, and urged to the act by an irresistible impulse. The judge, not satisfied with this, first put the witness some questions on other subjects, and then asked, "Do you think the accused would have acted as he did if a policeman had been present?" to which the witness at once answered in the negative. Thereupon the judge remarked, "Your definition of an irresistible impulse must then be an impulse irresistible at all times except when a policeman is present."
CHAPTER IV
CROSS-EXAMINATION OF THE PERJURED WITNESS
In the preceding chapters it was attempted to offer a few suggestions, gathered from experience, for the proper handling of an honest witness who, through ignorance or partisanship, and more or less unintentionally, had testified to a mistaken state of facts injurious to our side of the litigation. In the present chapter it is proposed to discuss the far more difficult task of exposing, by the arts of cross-examination, the intentional Fraud, the perjured witness. Here it is that the greatest ingenuity of the trial lawyer is called into play; here rules help but little as compared with years of actual experience. What can be conceived more difficult in advocacy than the task of proving a witness, whom you may neither have seen nor heard of before he gives his testimony against you, to be a wilful perjurer, as it were out of his own mouth?
It seldom happens that a witness's entire testimony is false from beginning to end. Perhaps the greater part of it is true, and only the crucial part—the point, however, on which the whole case may turn—is wilfully false. If, at the end of his direct testimony, we conclude that the witness we have to cross-examine—to continue the imaginary trial we were conducting in the previous chapter—comes under this class, what means are we to employ to expose him to the jury?
Let us first be certain we are right in our estimate of him—that he intends perjury. Embarrassment is one of the emblems of perjury, but by no means always so. The novelty and difficulty of the situation—being called upon to testify before a room full of people, with lawyers on all sides ready to ridicule or abuse—often occasions embarrassment in witnesses of the highest integrity. Then again some people are constitutionally nervous and could be nothing else when testifying in open court. Let us