I continue to believe that "the great advocates of this and every other time in recorded history have been students of society and not carnival barkers." This statement covers a lot of territory. For purposes of ... the art, science, and technique of advocacy, it means that to win trials, you have to understand how jurors and judges are persuaded by the drama of evidence and the rhetoric of lawyers. . . .
I believe that good lawyering can be taught. ... Mark Twain tells the story of a dozen men on trial for running a game of chance, to wit, 'seven-up' or "old sledge." Their lawyer, old Jim Sturgis, brought witnesses to say that it was a game of skill, but deacons and dominies summoned by the prosecutor pronounced it a game of chance. So Sturgis convinced the judge to put four deacons and two dominies on the jury, along with six old gamblers, give them candles and a couple of decks of cards, and 'just abide by the result.' As the deliberations went on, various of the 'chance' jurors sent word into court to borrow money from their friends. At dawn, the jury returned its unanimous verdict: We, the jury in the case of Commonwealth of Kentucky v. John Wheeler, et al., have carefully considered the points of the case, and tested the merits of the several theories advanced, and do hereby unanimously decide that the game commonly known as old sledge or seven-up is eminently a game of science and not of chance. In demonstration whereof it is hereby and herein stated, iterated, reiterated, set forth, and made manifest that, during the entire night, the 'chance' men never won a game or turned a jack, although both feats were common and frequent to the opposition; and furthermore, in support of this our verdict, we call attention to the significant fact that the "chance" men are all busted, and the 'science' men have got the money. It is the deliberate opinion of this jury, that the 'chance' theory concerning seven-up is a pernicious doctrine, and calculated to inflict untold suffering and pecuniary loss upon any community that takes stock in it. Good lawyering is not a game of chance, or luck, even though both of these may play a role. Day in and day out, in the tournament of trial, skill wins out. . . .
The American jury has taken a lot of criticism these past days; I think it is the best way to resolve the cases that can't be settled. You will find, however, that persuasive techniques are the same whether a judge or jury is deciding. Lawyers who think that they can present their case more 'neutrally' to a judge will quickly learn from that mistake, though at their clients' expense.
Indeed, the theory and skill of persuasion may usefully be mastered by those in disciplines other than law practice. Historically, the study of rational and nonrational persuasion was the work of philosophers and dramatists before it became the province of lawyers. Today . . . social scientists and students of language contribute to our understanding of trials; representatives of these disciplines can usefully be retained to help prepare for specific cases. . . .
In brief, my view - I hesitate to call it a theory - of the trial process is that you cannot sum up on a case you have not tried nor open to the jury on a case you have not prepared. . . .
The discrete problem of adverse witnesses ... the gap between direct and cross-examination, for the adverse witness is called in your case but is treated as if on cross-examination. The decisive difference in my view is that if the adverse witness bites you, the jurors are more likely to think it is your own fault than if a witness called by the other side does so. . . .
Learning the basic rules about cross-examination is rather like playing scales. You must start by mastering basic techniques. But you will not enjoy practicing scales unless you have a vision of one day playing a sonata, and you must have in mind that eventually your performance will have nuances of expression and technique that go beyond the basics. For me, the metaphorical connection between playing music and cross-examination is proved by what I term 'the theory of minimal contradiction.'
* The above was excerpted and modified by the 'Lectric Law Library from 'Examining Witnesses' by Michael E. Tigar The Amer. Bar Assn.1993. 315 pgs hrdbnd; Prod.Code 531-0093; $110. For more info call the ABA at 312-988-5522.
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