Cross examination, the young lawyer and the security's guard

Pearl Comments (9) Cross Examination and the Security Guard by warecornell; submitted on 15-Aug-02 in Learning category Average Rating:  4.59 (22 Votes) Send To A Friend Print This Pearl Add To Scrapbook Some judges are hell on young lawyers. This is to be expected since young lawyers make mistakes and are not as familiar as seasoned trial lawyers with the rules of procedure and rules of evidence. A great deal of the art of advocacy relates to having a reputation with judges. Lawyers can have good and bad reputations. What judges most want to know about you is whether or not your word can be trusted. Secondly, if they do whatever it is you are asking them to do, they would like to believe you can support them on appeal. Consequently, lawyers who have not been before a judge a great deal, which is to say new lawyers, usually will not find a judge willing to take a chance on them. Louis Weissing was a Circuit Judge in Fort Lauderdale. He was one of those kinds of judges who took a great deal of pride in his office, and always tried to do what the law required. He was not particularly hard on young lawyers, but he left no doubt that he expected them to prove worthy of his trust. One of my first trials as a young lawyer was on behalf of a lady who slipped and fell in an elevator. My boss, Gene Heinrich was a terrific trial lawyer. We were going against Charlie Kessler, another able and experienced guy. I asked Gene to help me pick the jury, and from that Judge Weissing apparently assumed Gene and Charlie would be doing battle in his courtroom. He praised both of them extensively in his introductory remarks to the jury panel. Nonetheless he got me instead as Gene left to do other things. I was trying my little heart out, and Judge Weissing was buying some but not all of it. In the middle of the trial he excluded a whole lot of evidence that he had previously admitted telling the jury to disregard it. This just made me work harder and harder. At some point the defense puts on a very elderly security guard who testifies about the accident scene when he found the plaintiff. After listening to him, I realized he was quite wrong about some crucial details, which I could have cleared up with the photographs which were in evidence. Instead I tried a more flamboyant approach. In Francis Wellman’s great book The Art of Cross-Examination written around the end of the nineteenth century is a cross examination of a police officer. At the police academy trainees are taught that eyewitness testimony is often unreliable. Using the police officer’s own recollection of the class, the cross-examiner attempts to cast doubt on harmful eye-witness testimony. Now as I said, I had photographs which would have shown him he was wrong, but basically I wanted to show off. The cross-examination of the security guard went something like this: Q Now I believe you testified you were a policeman in New York City, is that right? A Yes I was for more than twenty years. Q Now when you joined the police force did you have to attend the police academy? A Yes sir Q Do you recall taking a course in police identification techniques at the police academy? A Yes sir Q While taking the course do you recall an incident when someone broke into the classroom during the lecture and maybe fire a blank pistol and then ran out? A No sir, if he did he would be in real trouble with the sergeant. Q No sir I am talking about as an experiment in the class… A The sergeant would be really upset. Q Sir I am not asking you about the sergeant, I am… THE COURT Move on to a different area, counsel. During a break Judge Weissing was out in the hall smoking a cigarette, talking with the lawyers. I told him, “Judge, I wished you hadn’t cut me off, that was a classic cross-examination I was trying to do.” Judge Weissing looked at me. “Ah hell, Ware, I know what you were trying to do. I read the same damn book. But what you don’t know is that when that guy was at the police academy, the only thing they taught him was how to use a rubber hose.” We lost the case and but then reversed Judge Weissing because of the evidence he excluded. See Firth v. Marhoefer, 406 So.2d 521 (Fla. 4th DCA 1981). After that trial and appeal, I was a member of the club. After all, reversing a judge in a case is another good way to show that you can support him on appeal if he rules for you.