I’ve talked before about the 1962 classic book Final Verdict which describesSan Francisco trial lawyer Earl Rogers and is written by his daughter Adela Rogers St. Johns. I’m not sure how many times I’ve read it, but I’ve enjoyed and learned something from it each time. Here are a fewpassages that contain lessons for trial lawyers today.
He was quick witted. In an argument during trial, his opponent said "I don’t need you to teach me the law" and Rogers shot back "You need somebody. I don’t insist it be me however." I don’t advocate these kinds of exchanges between counsel, but during Roger’s time it was accepted trial conduct.
Here’s an example of re-creating a scene and using one’s imagination in finding a dramatic way to rebuta claim. In a criminal case, a keyprosecution witness claimed he witnessed the crime while standing on a chair and looking through the ventilationtransom of his door into the apartment next door. Rogershad the door of the witnesses apartment removed and brought into the courtroom. He called, as an expert witness, a professional acrobat and asked him if he had tried to duplicate the same view before the door was removed. The witness explained he tried every position he could get into, but it is impossible to see into the other apartment through the opening. He demonstrated this for the jury witha jury that couldn’t stop laughing through the demonstration.After thedemonstration, Rogersinvited the judge to stand on a chair and see for himself. An acquittal quickly followed because the jury had seen for themselves the witness couldnt be telling the truth.
Rogers would carefully study the facts and find an issue he felt would question credibility. He was patient in setting the scene and before he sprung the trap on cross examination.One credibility issue, correctly exploited, is better then a shotgun approach in cross examination. This examplefrom the book is also is an illustration ofhow a lawyer can argue from anyview point or perspective he or she wishes.In a will contest case, Rogers faced awitness who claimed the deceased was in full capacity of his senses when he signed the will on his death bed.Rogers spent considerable time carefully establishing the close longfriendship between the witness and the deceased. He then asked the witness: "His death would be a real blow to you, change your whole life? In a way, I suppose you could put it like that," the witness agreed. Establishing that the witness knew the deceased was about to die and he would never see him again, Rogers asked him what the witness did after the will was signed and the formalities over. The witness answered "Nothing." Rogers asked "What words did you speak to him?" The witness said he hadn’t said anything. He just got up and left. "Did you bid your friend farewell? No, I left as soon as I signed the will answered thewitness." Rogers said loudly "What? You mean to tell this judge and jury that you, the dear chum, the life long friend, didn’t even say good by?" The witness again said he had not.Rogers thenasked "why?" but there was no answer, so Rogers said to the witness "There could be only one answer and that is he was too far gone to even realize you were there or what was happening. Isn’t that true?" With this kind of question it doesn’t make any difference what the witness responds because there is no good answer.
When Rogers argued the caseto the jury, he assumed the role of the deceased speaking to the jury. He said that if the deceased, Pat Talent, could, in this court room, talk to his old friend and the lawyer who had been at his bedside "He’d ask, what’s going on? They would tell him it was a will contest over the will he signed on his death bed and then he would say: ‘Why I never signed a will on my death bed. You were my lawyer Dixon. You know I didn’t sign any such thing. He’s say to his friend, ‘how can you say I signed a will, my old friend, when you know I didn’t. If Pat Talent was here now in this courtroom, that’s would he would say to you and to lawyer Dixon and his so called friend." The jury found in favor of Roger’s client.
In defending a woman accused of being a prostitute he cross examined a witness who testified for the prosecution his client was a prostitute. Here’s an example of a planned thought out cross examination with a clear objective he had in mind. See how he lays out his examination in steps.Rogers won an acquittal with this cross examination:
Q. You know for a fact that Wong She is a prostitute?
A. I do indeed
Q. Of your own knowledge?
A. Yes indeed of my own knowledge
Q. But, you are a married man, I thought….
A. (the witness, interrupting) No such thing happened!
Q. Then how can you know..pause…snapping his fingers You peeped?"
A. I did not such thing.
Q. But, you said you knew of your own knowledge.
A. Everyone in Chinatown knows about this woman. Her reputation is notorious
Q. But, that my dear sir is hearsay.
A. It is not. It is the truth and everyone knows about it.
Q. Now we are getting somewhere sir…You just tell me now under oath the names of the men you know who can testify here for us that they consorted illegally with Wong She..
A …..(long silence)… I don’t recall
Q. Not even one name?
A. I don’t remember. — Examination ended —