The Art of Cross-Examination

When my great-grandfather was at Harvard Law exactly 100 years ago, one of his law books was Francis Wellman on Cross-Examination. After his son and namesake went into law, the book came down to him. And when I went off to law school, he handed it off to me, now fairly battered but still bearing my great-grandfather's signature from his law school days before the First World War. Now that we are now in the Great Cloud Age, the book is available for free here, and I beg anyone who is interested in winning a case in court to read it a few times. Actually, it is an important book for any lawyer to read. Wellman reminds again and again what the lawyer's main role is. Many lawyers mistake their role as Grand Inquisitor, meting out just desserts to the lying sacks who are on the other side. Or they think it's a game that's won by defeating the other lawyer, making their argument look foolish in court. But that is wrong. Most cases get to court, and especially to trial, because both sides think they are right. If the lawyer approaches the other side with the idea that the opponents are lying or dishonest, you lose a great deal. Believe it or not, the other side actually will cooperate with you in finding the truth, if you let them. And the jury would much rather see that than watch a red-faced bullying contest between a lawyer and his prey. The first time I ever wrote a brief in litigation, I was responding to the other side's fairly snarky response to our motion. I can be catty with the best of them, and I put my whiskers on and responded in kind. But Don Flexner, whose name is at the end of Boies, Schiller & Flexner, where I worked, told me I was headed down the wrong path. If I make it a conversation between myself and the other lawyer, then the judge just becomes part of the audience, he said. But if I make it a conversation between myself and the judge, helping the judge find the right law, then, at the end of the day, I win. And winning, after all, is the real goal. And that shines a light on what the lawyer's true function is. In the best sense, the lawyer is there to help. Help the jury find the truth, help the judge find the right ruling, help the clients get on in the world.

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