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Washington Lawyer

Please Cross-Examine the Witness, Counselor

From Washington Lawyer, December 2014

By Jacob A. Stein

spectatorSome months ago I wrote about Charles Bellows, the distinguished Chicago criminal lawyer, and his interesting ways to cross-examine witnesses. Readers sent in comments about their own clever cross-examinations. One of them reminded me of Francis Wellman (1854–1942) and his book The Art of Cross-Examination (1903). In Wellman’s book is the cross-examination of Russell Sage in the case of Laidlaw v. Sage, 158 N.Y. 73, 52 N.E. 679.

On December 4, 1891, Russell Sage, a greedy, stingy multimillionaire, was in his bare office on Wall Street in New York City. Unknown to Sage was a man named Norcross who wanted to steal money from Sage. Norcross wrote a note that read: “This carpetbag I hold in my hand contains 10 pounds of dynamite, and if I drop this bag on the floor it will destroy this building in ruins and kill every human being in it. I demand twelve hundred thousand dollars or I will drop it. Will you give it? Yes or no?”

Norcross then found his way into Sage’s office and silently handed Sage the note demanding the money. Sage stood considering the note, and Norcross said: “Then you decline my proposition? Will you give it to me? Yes or no?”

Right at that time, William R. Laidlaw, a junior business visitor, entered Sage’s room. He was unaware of the drama in progress and the tragic part he was about to play.
At the trial of his lawsuit against Sage, Laidlaw said Sage edged toward him and in a surprisingly warm gesture of hospitality, Sage took Laidlaw’s left hand with both his own hands and moved Laidlaw into a protective position between Sage and Norcross.
Sage then said to Norcross: “If you don’t trust me, how can you expect me to trust you?” Norcross, impatient with Sage’s conversation, triggered the dynamite. There was a terrible explosion. Norcross was blown to bits. Laidlaw was found unconscious, lying on Sage.

Six months later, on May 26, 1892, Joseph Choate, the outstanding trial lawyer in New York, represented Laidlaw and filed suit against Sage. Choate alleged that Sage used Laidlaw as a human shield against the explosion and, as a proximate result, Laidlaw suffered serious permanent injuries.

There were trials and appeals. The fourth trial concluded almost four years after the event, with a verdict of $40,000 for Laidlaw. On appeal, the verdict was reversed on legal issues. Now to the direct and cross-examination.

Sage’s lawyer, in defending the case, called a heart specialist who said that the explosion seriously injured Sage’s heart. Here is Choate’s cross-examination:

Mr. Choate:Doctor, you said in your direct examination that you examined Mr. Sage, and if I understand you correct, you said that you sought in the first instance to locate his heart to learn how severe the shock was to him. Doctor, you realize you are under oath, and you don’t mean to tell the court and jury that you went to the extent of trying to find Russell Sage’s heart!
Witness: Yes.
Mr. Choate: With all your temerity in testifying, you would not be willing to state to the court and jury that you found Russell Sage’s heart!
Witness: Yes.
Mr. Choate: You testified that on an occasion when an explosion like this takes place, there is an enlargement of the heart. You are not, I am sure, so reckless as to mean that you found an enlargement of Russell Sage’s heart!

Now to my cross-examination. The trial was in the 1980s. It was a criminal case in the United States District Court for the District of Columbia before Judge Oliver Gasch. The assistant United States attorney was Joel Blackwell.

The client I was defending was indicted for shooting a person point-blank. The defendant claimed he was suffering from a serious mental illness and he could not control himself when he did what he did.

On direct, the government’s psychiatrist said that when he interviewed the defendant, he quickly knew the defendant was a liar, so why listen to the lies?

Here is the cross-examination:

Q. Now, you will agree with me, will you not, Doctor, that the manner in which you get information from someone who is sitting for a diagnosis is through asking him questions about his family background, isn’t that correct?
A. A small part, yes.
Q. Well, you say a small part.
A. Yes.
Q. Do you believe you could diagnose an animal, a dog as having psychoneurosis?
A. I think I could. I have owned several dogs.
Q. Do you talk to animals, Doctor?
A. Yes.
Mr. Stein: I have no further questions.
Mr. Blackwell: I have no further questions, Your Honor. I would like to request that the doctor be excused, Your Honor.
Mr. Stein: If he can find his way back, I have no objection.
The Witness: If I can’t, I will ask a dog on the corner!
Mr. Blackwell: May the doctor be excused?
The Court: Anything further, Mr. Blackwell?
Mr. Blackwell: No, Your Honor.

Judge Gasch declared the morning recess and called the lawyers to the bench. Judge Gasch said, off the record, that he has a dog but that he and the dog rarely converse. When they do, the dog does all the talking.

Reach Jacob A. Stein at [email protected].