Reflecting on the use of Lincoln’s techniques to accomplish better outcomes in our own examination of adverse witnesses
What can trial lawyers learn about cross-examining witnesses from an attorney who never went to law school, tried cases 150 years ago in rural courthouses for fees as low as $2.50, quit the practice of law after nearly a quarter century at the bar to take a political position and never again returned to a courtroom? If that lawyer was Abraham Lincoln, much can be gained by reviewing his techniques.
A self-made cross-examiner
In 1837, the recently-minted lawyer Abraham Lincoln joined the first of several two-man partnerships in which he pursued a trial practice that lasted until he became the 16th President of the United States in 1861. By the late 1850’s, Lincoln had completed four terms in the Illinois Legislature, served two years in Congress, had run for Senate and excelled in party politics. Between these endeavors, he maintained an active law practice in which his firms represented clients in more than 5,000 cases and tried hundreds of jury and bench trials. (Mark E. Steiner, An Honest Calling: The Law Practice of Abraham Lincoln 71 (2006).) Lincoln was at the pinnacle of his career as a trial lawyer. (Michael Burlingame, Abraham Lincoln: A Life 1:315-322 (2008).)
For all Lincoln’s trial work, there are few intact records of his trials. As court reporting on a regular basis was not in vogue in Lincoln’s time, what we know about his courtroom craftsmanship comes from the notes from a handful of trials that were taken down by a stenographer or parts repeated in appellate decisions, newspaper articles or anecdotal accounts. (Daniel W. Stowell (ed.), The Papers of Abraham Lincoln: Legal Documents and Cases 3:278 (2008) (“Stowell”).) But even these limited sources provide insight into Lincoln’s immense command of the art of cross-examination.
Going for the jugular
Every attorney who has ever cross-examined a witness has secretly hoped to ask that penetrating question that demolishes the opposition’s case. Lincoln was no exception. He intuitively understood the limitations of a cross-examiner’s ability to ferret out truth and the extent of a juror’s facility to absorb facts. Most importantly, he knew how to organize and shape information for persuasive results. His experience gained from numerous trials in every type of case allowed him to develop a style that utilized carefully-designed, narrow questions that bore into a witness’s store of knowledge and avoided wiggle room. (John P. Frank, Lincoln As A Lawyer 179 (1961).)
Unlike some attorneys who beat around the bush, there was neither filler nor fluff in Lincoln’s cross-examination. He got right to the point. His questioning had definite objectives: obtaining facts to convince and discrediting opposing positions.
Preparation, no hocus-pocus
Effective cross-examination requires a thorough understanding of the facts of a case. Questioning adverse witnesses is not comprised of pulling questions from a bag of tricks that might fool witnesses or fact-finders. Lincoln put in the effort necessary to learn the facts of his cases before trying questions on witnesses. This meant personally going to the sites of events, talking to those involved and testing case facts with legal theories. Insightful at analyzing the bottom line in a case, it cannot be overlooked that Lincoln’s talents included him being the only man who ever became president who held a United States patent. (Ronald C. White, Jr., A. Lincoln: A Biography 162-163 (2009). Lincoln received a patent in 1840 for an invention to help lift boats over sandbars or shoals, but nothing ever came of it.
The most well-known example of Lincoln’s cross-examination workmanship was in the 1858 case People v. Armstrong, later dubbed the Almanac Case. In that matter Lincoln agreed to represent murder defendant Duff Armstrong, the son of Lincoln’s friends whom he had known in his youth, without charging a fee. In this case, he demonstrated how meticulously preparation and masterful execution of cross-examination can spell the difference between victory and defeat.
Armstrong and James Norris had attended a nighttime camp meeting. The prosecution alleged that they had confronted the murder victim in a fight late at night and bludgeoned him to death with a wagon yoke and/or slingshot, a heavy piece of metal sheathed in leather. Based principally on the testimony of eyewitness Charles Allen, Norris had been tried first, quickly found guilty and sentenced to prison. Allen testified that Norris and Armstrong had approached the victim, and he had seen them respectively strike the victim over the head and crush his skull with overhand blows. The outlook for Armstrong appeared bleak.
Lincoln took nothing for granted in preparing a defense premised on discrediting eyewitness Allen’s testimony where he stated that he was well-positioned and saw Armstrong render a second fatal blow with the slingshot. Lincoln’s strategy was to concede that Armstrong may have approached the victim after co-defendant Norris struck the victim but to cast doubt about Armstrong wielding a murder weapon.
Questioning the circumstances of the fight, Lincoln personally interviewed other witnesses regarding their ability to see clearly whether punches might have been thrown or if anything had been in Armstrong’s hands. He inspected the crime scene, a wooded grove, to gauge distances and to determine what could be observed on the night in question. As a consummate trial attorney, Lincoln knew that his cross-examination might not totally discredit eyewitness Allen, but he might trip him up and show jurors that Allen could have been mistaken in his dead-certain testimony that he had seen Armstrong strike the victim under bright moonlight.
Lincoln executed a plan that allowed eyewitness Allen to testify repeatedly that he had had an unobstructed view of the events in question. Then, calling Allen as a hostile witness, Lincoln structured tight questions that highlighted inconsistencies, created doubt and ultimately attempted to shake Allen’s assuredness that he had seen Armstrong commit the crime. With these approaches in mind, Lincoln conducted his cross-examination:
Q: “Did you actually see the fight?”
Q: “And you actually stood very near to them?”
A: “No, it was one-hundred fifty feet or more.”
Q: “In the open field?”
A: “No, in the timber.”
Q: “What kind of timber?”
A: “Beech timber.”
Q: “Leaves on it rather thick in August?”
A: “It looks like it.”
Q: “What time did all this take place?”
A: “Eleven o’clock at night.”
Q: “Did you have a candle there?”
A: “No, what would I want a candle for?”
Q: “How could you see from a distance of one-hundred feet or more, without a candle at eleven o’clock at night?”
A: “The moon was shining real bright.”
Q: “Full moon?”
A: “Yes, a full moon.”
Lincoln then pulled out a copy of an almanac for the past year (some accounts have him retrieving it from a bailiff to whom it had been entrusted in advance) and, pointing to the page for the date in question at 11:00 p.m., inquired:
Q: “Does not the almanac say that on August 29th the moon was barely past the first quarter instead of being full?”
A: [Witness does not respond].
Q: “Is it not a fact that it was too dark to see anything from so far away, let alone one-fifty feet?”
A: [Witness does not respond]. (Allen D. Spiegel, A. Lincoln, Esq. 157-158 (2002).)
The prosecution’s key witness was stopped in his tracks. With these concisely- framed questions, Lincoln had destroyed Allen’s credibility. His cross-examination had completely turned the table on this complacent witness. Allen was beyond rehabilitation. Lincoln gathered this testimony, summed up his case in closing and the jury acquitted.
Lincoln’s cross-examination tactics in the Almanac Case were unique and could hardly be replicated. But there is a lesson to be gleaned. Commenting on Lincoln’s successful technique of casting doubt on the prosecution’s cocksure eyewitness in that case, Francis L. Wellman in The Art of Cross-Examination, advises that “In some cases it is wise to confine yourself to one or two salient points on which you feel confident you can get the witness to contradict himself out of his own mouth. It is seldom useful to press him on matters with which he is familiar. It is the safer course to question him on circumstances connected with his story, but to which he has not already testified and for which he would not be likely to prepare himself.” (Francis L. Wellman, The Art of Cross-Examination 54 (1903).)
Short, simple and clear
Some cross-examiners seem to have taken a trial practice course that taught them to form a good part of their questions beginning with the thundering accusation “Isn’t it true [or a fact] that . . .?” or concluding every question with a repetitious staccato of “ . . ., isn’t that correct?” Others lend support to their opponents by stumbling through questions that more restate the direct testimony than pursue useful or contradictory facts. Not Abraham Lincoln.
Even without the benefit of a law school education, Lincoln did not fall into such traps. He relied on a studied understanding of the facts, logic and common sense to pose uncomplicated questions that probed the depths of a witness’s knowledge without risking damage to his own theory of the case. Unless he encountered an outright liar or dunderhead, it usually was beyond his style to be confrontational, argumentative, condescending or disrespectful. (Henry Clay Whitney, Life on the Circuit with Lincoln 232, 237 (1940) (“Whitney”).)
Lincoln’s deft technique in this regard is well-illustrated by his cross-examination of John Crafton, a murder victim’s brother and main prosecution witness to the crime, in People v. Peachy Quinn Harrison in 1859. Harrison and decedent Greek Crafton, an attorney who had once clerked in Lincoln’s law office, entered into a physical altercation at the Short & Harris drugstore in Sangamon County. The two men wrestled back and forth with Short, the store proprietor, attempting to intervene in the scuffle. It ended when Harrison stabbed Grafton, who died two days later. Charged with murder, Harrison retained Lincoln to maintain that he had acted in self-defense.
In developing the difficult defense of shifting blame for the aggression to the dead man, Lincoln trod carefully in cross-examining Crafton, an obviously biased witness, who had testified with his detailed personal account of the incident on direct examination:
Q: “Had you been at Short & Harris Store any but one time that morning?”
A: “No, sir only the one time. . . .”
* * *
Q: “About that time did you hear either of the parties say anything?”
A: “No sir, I think not. . . .”
Q: “You don’t remember Harrison saying to your brother that he would not fight or didn’t want to fight?”
A: “No sir. I don’t remember any such thing. I think that I said the first thing spoken in the room. I told Mr. Short to let them loose, that Greek could whip him.”
Q: “You did not add that ‘Greek should whip him.”
A: “No sir but told him he could whip him.”
* * *
Q: “You did not see the knife when the blow was given?
A: “I did not see the knife go into him.”
* * *
Q: “Did you as long as Greek and Quinn were engaged see either of them strike the other with the fist?”
A: “No sir.”
* * *
Q: “I suppose when you told Short to let him alone − that Greek could whip him and, that you had the ordinary meaning and wanted Greek to whip him?”
A: “I thought after they got into the fight that Greek could whip him.”
Q: “And you wanted him to?”
A: “Well, certainly I did.” (Stowell, supra, 4: 152-154 (2008).)
Without initiating a hostile frontal attack, Lincoln cleverly blunts the prosecution’s contention that the defendant was the responsible antagonist. He raises serious questions in jurors’ minds about the objectivity of the witness’s story about what happened. His cross-examination is controlled, non-argumentative. It focuses on the witness, not the examiner. Lincoln is listening to the witness’s responses and logically following the progression of answers. He stays on point regarding his theme of the case, not the opposition’s story. He only asks closed “yes and no” questions to which he knows the answers, and does not allow the witness to restate his direct testimony or explain his answers. At the same time, Lincoln avoids asking the proverbial “one question too many.”
While the trial judge’s ruling allowing the decedent’s dying declaration forgiving Harrison was a determining factor, Lincoln’s cross-examination certainly had to be a contributing reason for the jury’s ultimate verdict acquitting the defendant. (Id. at 174-178, 191.)
Mastering the details
Every lawyer who has ever stood before a jury knows that many cases require an attorney to acquire the knowledge of an expert and become a jack at many trades. As a general trial practitioner, Lincoln’s cases demanded that he gain a command of a variety of technical areas.
In 1857, Lincoln was retained as defense counsel in Johnston v. Jones and Marsh, a major land dispute case in federal court in Chicago concerning title to ownership of a newly-formed alluvial land tract that had been created when a channel for the Chicago River was dug across two parcels of lakefront property along Lake Michigan. Lincoln was the ideal trial attorney for the case. As a former surveyor himself, he also had tried a number of cases involving navigable waters and property boundaries. (Stowell, supra, at 1:230, 4:308.)
This important and complicated legal dispute about ownership of property in the middle of Chicago had been ongoing for more than a decade and had actually been tried several times before Lincoln took up the cause. History is fortunate that a court stenographer was hired to take down the proceedings when the case finally went to trial for the fourth time in March 1860. (Stowell, supra, 4:384, 396.)
Lincoln “walked the walk” in preparation for this case by visiting the location and making his own measurements. His penetrating cross-examination of one of the main opposing survey witnesses is a textbook example of how intimate knowledge of the facts can shape results in a case, weaken confidence in an expert’s opinion and determine the difference in persuading jurors to a favorable result:
Q: “You say you actually measured the north end of lots 34 and 35 upon Water Street?”
A: “Yes, and drove the stakes.”
Q: “Did you actually measure the east or west lines, or either of them”?
A: “Neither of them. I did not.”
Q: “Did you actually run the water-line at the south ends of them?”
A: “I run it as I saw. I did not measure it.”
Q: “Did you go nearer it, than out at that little fractional lot, which was east of 35?
A: “For no object of measurement – I did not.”
* * *
Q: “You made the plat to represent where the lots struck the lake shore?”
A: “Yes sir, for this distance, you know.”
Q: “That plat does represent where it struck the lake?”
A: “Yes sir.”
Q: “If you had cared to fix it accurately you would run down?”
Q: “Then you didn’t care to fix it with great accuracy?”
A: “I was within about two hundred or two hundred and fifty feet. I was as close as in any ordinary course.” (Id. at 4:400-401.)
Lincoln elicits facts about what the surveyor did, not conclusions. He does not allow the witness to editorialize or wander off-track. In a boundary dispute where careful measurements mattered significantly, Lincoln’s short, non-argumentative questions expose the slipshod work by the plaintiff’s surveyor in preparing his map of the site at issue. This cross-examination helped convince the judge to ultimately instruct the jury that this surveyor’s map was not to be considered as evidence of the boundaries that he had proposed. The jury retired and returned a verdict for Lincoln’s side. (Id. at 4:439-441.) Interestingly, the case went on for review by the United States Supreme Court, which affirmed in 1862 after Lincoln had moved to the White House. (Id. at 4:444.)
Making it out of whole cloth
Abraham Lincoln’s legal practice is characterized by his appeals to high principles of justice, equity and right in the courtroom. (Albert A. Woldman, Lawyer Lincoln 241-245 (1936). (“Woldman”).) He also could employ his wile and sense of humor to turn a sow’s ear of a case into a silver-lined purse for his client.
One such instance involved cross-examination of a high-priced, complacent medical expert (someone whom every trial lawyer has confronted). Setting the scene: the outcome of the case depended on the opinions of a well-recognized doctor whose testimony was known to be difficult to shake. Lincoln had passed on examining all of the lay witnesses on their views regarding the issue in question. It was his usual practice that it was improvident to examine witnesses who did not harm his case. Lincoln might concede points in trial that did not hurt his client’s interests. This practice tended to throw his opponents off-balance. Leonard Swett, who practiced with Lincoln said that “By giving away six point and carrying the seventh he carried his case. . . . [But] any man who took Lincoln for a simple-minded man would very soon wake up with his back in a ditch.” (Jesse W. Weik and William H. Herndon, Life of Lincoln (Paul M. Angle, ed.) 269-270 (1942).)
After the doctor offered some impressive-sounding direct testimony, Lincoln slowly initiated his cross-examination with this question: “Doctor, how much money are you to receive for testifying in this case?” The witness hesitated for a moment and then asked the judge, “Your Honor, do I have to answer that question?” The judge acknowledged that the question was proper and directed a response. The witness stated a fee so high that it stole the jurors’ breaths.
Lincoln then rose to his full six-foot, four-inch height, stretched out his long, boney arm toward the doctor, and, shaking his forefinger, cried in a shrill voice overflowing with the hottest indignation, “Gentlemen of the jury, big fee, big swear!” Those four monosyllables accusing the doctor of offering perjured testimony were all that Lincoln needed to sway the jury to his side. The case was over and his client had won. (Emanuel Hertz, Lincoln Talks: A Biography in Anecdote 26-27 (1939).)
Similarly, when he smelled a skunk, Lincoln could be merciless in heaping ridicule or challenging the credibility of a witness. In one instance, Lincoln is reported to have used comical sarcasm to disparage his opponent’s case out of court. Lacking a solid defense in a criminal counterfeiting case, he resorted to some imaginative, but absurd, questioning that capitalized on the insecurity of the prosecution’s main witness, one J. Parker Green.
Lincoln began his cross-examination by asking the witness to state and then restate his name, “J. Parker Green.” Lincoln repeated “J. Parker Green” over and over again in a matter-of-fact manner. “J. Parker Green” mused Lincoln, glaring at the witness. “J. Parker Green. What a peculiar name. What does the ‘J’ stand for?
“John,” replied the stumped man. “Well, why don’t you call yourself John – John P. Green – instead of J. Parker Green?” inquired Lincoln. Before the witness could get out anything more than “Well” from of his mouth, Lincoln continued, “Most ordinary folks would call themselves John P. Green instead of J. Parker Green, wouldn’t they?” Lincoln persisted in this line of questioning for some minutes. Soon the witness was squirming uneasily in his chair, confused and disoriented.
This display was particularly amusing to the onlookers, many of whom came to court in those days for entertainment when the trial lawyers rolled into town on circuit. By the close of the day, small boys in the street who had heard about the courtroom fun were merrily taunting aloud, “J. Parker Green! J. Parker Green! J. Parker Green!” Lincoln’s cross-examination had cast suspicion on the witness and subverted his credibility. The effectiveness of Green’s previous damaging testimony was undermined and Lincoln’s client was acquitted. (Woldman at 129-130.)
We are not all Abraham Lincoln
While reading about Abraham Lincoln’s cross-examination skills may be interesting to contemporary lawyers, a greater benefit can be derived from reflecting on use of his techniques to accomplish better outcomes in our own examination of adverse witnesses. This is where Lincoln’s 19th century courtroom presentations can have lasting value for 21st century trial attorneys.
Judge Michael L. Stern has presided over civil trial courts since his appointment to the Los Angeles Superior Court in 2001. He is a frequent speaker on trial practice matters. As an attorney, he tried cases throughout the United States. He is a graduate of Stanford University and Harvard Law School.
by the author.
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