RE-ENACTMENT IN TRIAL

A very effective tool in the court room is re-enactment. The famous Earl Rogers used it in almost every trial and in particular during cross examination. He would re create the scene using an exhibit or the court room furniture and then demonstrate why the other side was in error. This is a technique we all should use when appropriate. Here is a classic example of this procedure.

Paul Stryker in his classic book  “The Art of Advocacy,” recounts a cross examination by  Chicago lawyer, Weymouth Kirkland, in the early 1900s when he was defending an insurance company in a case in which the plaintiff claimed recovery of a policy amount. The defense was that the policy holder had not died by falling off a ship and instead was alive and in hiding somewhere.

The key witness to the drowning claim was the ship’s cook. Here is a portion of the cross examination of the cook:

Q. How long had you known Peck [the policy holder]?

A. Fifteen years.

Q. You knew him well?

A. Yes, sir.

Q. How did you happen to see his body?

A. I looked out of the porthole.

Q. You recognized it beyond doubt as the body of Peck?

A. Yes, sir.

Q. Did you make any outcry when you saw the body?

A. No, sir.

Q. Did you ask the captain to stop the ship?

A. No, sir.

Q. What were you doing when you happened to look out of the window and saw the body?

A. I was peeling potatoes.

Q. And when the body of your old friend, Peck, floated by, you just kept on peeling potatoes?

A. Yes, sir.

In closing argument Kirkland does not argue to the jury that the cook’s testimony was false. Instead he does a demonstration in front of the jury. He takes a potato and knife, rests his foot on a chair and begins to peel the potato. And says in front of the jury:

“What ho! What have we here? Who is this floating past? As I live and breathe, if it isn’t my old friend Peck! I shall tell the captain about this in the morning. In the meantime, I must go right on peeling my potatoes.”

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