The answer to yesterday’s Lamar Inn of Court trivia question: “Who was the famous 19th century trial lawyer and author of The Art of Cross Examination?” is Francis L. Wellman. For those interested in learning more about Francis Wellman’s work on cross examination, we’ve reproduced portions of Chapter IX, which sets out David Paul Brown’s “Golden Rules for the Examination of Witnesses.” (Headings re-written by Kastorf Law in slightly more contemporaneous prose).
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Golden Rules for the Examination of Witnesses
David Paul Brown, a member of the Philadelphia Bar, has condensed his experiences into eighteen paragraphs which he has entitled, “Golden Rules for the Examination of Witnesses.”
Although I am of the opinion that it is impossible to embody in any set of rules the art of examination of witnesses, yet the Golden Rules of Brown contain so many useful and valuable suggestions concerning the art, that it is well to reprint them here for the benefit of the student.
Tips for direct examination of your own witnesses.
Use an appropriate tone with bolder witnesses.
If they are bold, and may injure your cause by pertness or forwardness, observe a gravity and ceremony of manner toward them which may be calculated to repress their assurance.
Calibrate your questions carefully for scattered witnesses.
If they are alarmed or diffident, and their thoughts are evidently scattered, commence your examination with matters of a familiar character, remotely connected with the subject of their alarm, or the matter in issue; as, for instance,—Where do you live? Do you know the parties? How long have you known them? etc. And when you have restored them to their composure, and the mind has regained its equilibrium, proceed to the more essential features of the case, being careful to be mild and distinct in your approaches, lest you may again trouble the fountain from which you are to drink.
Maintain composure when bad facts come out.
If the evidence of your own witnesses be unfavorable to you (which should always be carefully guarded against), exhibit no want of composure; for there are many minds that form opinions of the nature or character of testimony chiefly from the effect which it may appear to produce upon the counsel.
Limit questions when your witness doesn’t like your client.
If you perceive that the mind of the witness is imbued with prejudices against your client, hope but little from such a quarter—unless there be some facts which are essential to your client’s protection, and which that witness alone can prove, either do not call him, or get rid of him as soon as possible. If the opposite counsel perceive the bias to which I have referred, he may employ it to your ruin. In judicial inquiries, of all possible evils, the worst and the least to be resisted is an enemy in the disguise of a friend. You cannot impeach him; you cannot cross-examine him; you cannot disarm him; you cannot indirectly, even, assail him; and if you exercise the only privilege that is left to you, and call other witnesses for the purposes of explanation, you must bear in mind that, instead of carrying the war into the enemy’s country, the struggle is still between sections of your own forces, and in the very heart, perhaps, of your own camp. Avoid this, by all means.
Wait to examine your opponent’s will call witnesses on cross.
Never call a witness whom your adversary will be compelled to call. This will afford you the privilege of cross-examination,—take from your opponent the same privilege it thus gives to you,—and, in addition thereto, not only render everything unfavorable said by the witness doubly operative against the party calling him, but also deprive that party of the power of counteracting the effect of the testimony.
Don’t ask a question with no purpose.
Never ask a question without an object, nor without being able to connect that object with the case, if objected to as irrelevant.
Frame questions carefully to avoid form objections.
Be careful not to put your question in such a shape that, if opposed for informality, you cannot sustain it, or, at all events, produce strong reason in its support. Frequent failures in the discussions of points of evidence enfeeble your strength in the estimation of the jury, and greatly impair your hopes in the final result.
Make only those objections you can win and enforce.
Never object to a question from your adversary without being able and disposed to enforce the objection. Nothing is so monstrous as to be constantly making and withdrawing objections; it either indicates a want of correct perception in making them, or a deficiency of real or of moral courage in not making them good.
Sound interested yourself, or the jury won’t be interested.
Speak to your witness clearly and distinctly, as if you were awake and engaged in a matter of interest, and make him also speak distinctly and to your question. How can it be supposed that the court and jury will be inclined to listen, when the only struggle seems to be whether the counsel or the witness shall first go to sleep?
Modulate your voice to emphasize key points.
Modulate your voice as circumstances may direct, “Inspire the fearful and repress the bold.”
Make each question count.
Never begin before you are ready, and always finish when you have done. In other words, do not question for question’s sake, but for an answer.
Tips for Cross Examination
Maintain eye contact with the witness.
Except in indifferent matters, never take your eye from that of the witness; this is a channel of communication from mind to mind, the loss of which nothing can compensate.
“Truth, falsehood, hatred, anger, scorn, despair,
And all the passions—all the soul—is there.”
Pay careful attention to the witness’s tone.
Be not regardless, either, of the voice of the witness; next to the eye this is perhaps the best interpreter of his mind. The very design to screen conscience from crime—the mental reservation of the witness—is often manifested in the tone or accent or emphasis of the voice. For instance, it becoming important to know that the witness was at the corner of Sixth and Chestnut streets at a certain time, the question is asked, Were you at the corner of Sixth and Chestnut streets at six o’clock? A frank witness would answer, perhaps I was near there. But a witness who had been there, desirous to conceal the fact, and to defeat your object, speaking to the letter rather than the spirit of the inquiry, answers, No; although he may have been within a stone’s throw of the place, or at the very place, within ten minutes of the time. The common answer of such a witness would be, I was not at the corner at six o’clock.
Emphasis upon both words plainly implies a mental evasion or equivocation, and gives rise with a skillful examiner to the question, At what hour were you at the corner, or at what place were you at six o’clock? And in nine instances out of ten it will appear, that the witness was at the place about the time, or at the time about the place. There is no scope for further illustrations; but be watchful, I say, of the voice, and the principle may be easily applied.
Match your demeanor to that of the witness (while preserving dignity).
Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail, or the fearful; rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.
Use limited cross examinations in criminal cases.
In a criminal, especially in a capital case, so long as your cause stands well, ask but few questions; and be certain never to ask any the answer to which, if against you, may destroy your client, unless you know the witness perfectly well, and know that his answer will be favorable equally well; or unless you be prepared with testimony to destroy him, if he play traitor to the truth and your expectations.
Do not ask equivocal questions.
An equivocal question is almost as much to be avoided and condemned as an equivocal answer; and it always leads to, or excuses, an equivocal answer. Singleness of purpose, clearly expressed, is the best trait in the examination of witnesses, whether they be honest or the reverse. Falsehood is not detected by cunning, but by the light of truth, or if by cunning, it is the cunning of the witness, and not of the counsel.
Don’t lose control of a cross examination witness early.
If the witness determine to be witty or refractory with you, you had better settle that account with him at first, or its items will increase with the examination. Let him have an opportunity of satisfying himself either that he has mistaken your power, or his own. But in any result, be careful that you do not lose your temper; anger is always either the precursor or evidence of assured defeat in every intellectual conflict.
Think several moves ahead.
Like a skillful chess-player, in every move, fix your mind upon the combinations and relations of the game—partial and temporary success may otherwise end in total and remediless defeat.
Don’t underestimate your opponent.
Never undervalue your adversary, but stand steadily upon your guard; a random blow may be just as fatal as though it were directed by the most consummate skill; the negligence of one often cures, and sometimes renders effective, the blunders of another.
Be respectful to the court and to the jury; kind to your colleague; civil to your antagonist; but never sacrifice the slightest principle of duty to an overweening deference toward either.
Wellman’s Concluding Remarks on Cross Examination
In “The Advocate, his Training, Practice, Rights, and Duties,” written by Cox, and published in England about a half century ago, there is an excellent chapter on cross-examination, to which the writer is indebted for many suggestions. Cox closes his chapter with this final admonition to the students, to whom his book is evidently addressed:—
“In concluding these remarks on cross-examination, the rarest, the most useful, and the most difficult to be acquired of the accomplishments of the advocate, we would again urge upon your attention the importance of calm discretion. In addressing a jury you may sometimes talk without having anything to say, and no harm will come of it. But in cross-examination every question that does not advance your cause injures it. If you have not a definite object to attain, dismiss the witness without a word. There are no harmless questions here; the most apparently unimportant may bring destruction or victory. If the summit of the orator’s art has been rightly defined to consist in knowing when to sit down, that of an advocate may be described as knowing when to keep his seat. Very little experience in our courts will teach you this lesson, for every day will show to your observant eye instances of self-destruction brought about by imprudent cross-examination. Fear not that your discreet reserve may be mistaken for carelessness or want of self-reliance. The true motive will soon be seen and approved. Your critics are lawyers, who know well the value of discretion in an advocate; and how indiscretion in cross-examination cannot be compensated by any amount of ability in other duties. The attorneys are sure to discover the prudence that governs your tongue. Even if the wisdom of your abstinence be not apparent at the moment, it will be recognized in the result. Your fame may be of slower growth than that of the talker, but it will be larger and more enduring.”
Want to learn more?
If you are interested in reading more from Francis L. Wellman’s guide to cross examination, you can access the entire book from Project Gutenberg here. Need embedded trial counsel or pretrial litigation and strategy? Contact Kastorf Law.
Make sure to check out more of Kastorf Law’s analysis on trial litigation and strategy:
- Read guidance on responding to golden rule motions in limine.
- See what the best trial attorneys suggest.
- Learn more about preparing for Federal voir dire.