I am re-reading again, an old trial lawyer’s classic Final Verdict about Earl Rogers, the famous criminal defense lawyer of his day, and written by his daughter Adela Rogers St. Johns. There were giants in the legal profession before the 1940’s who were nationally recognized for their trial skills. This was at a time when television wasn’t the main entertainment media, radio and newspapers were instead. A time when crowds would gather at high profile trials to watch as if spectators at a sporting event. A time, when lawyers were expected to have at their fingertips, in argument, passages from Shakespeare, literature as well as poetry and if they couldn’t quote applicable scripture during argument they were not true trial lawyers. The list of these giants in the trial field is too long to set out, but Earl Rogers was at the head of list on the West coast with Clarence Darrow from the Midwest and Rufus Choate from the East coast. In fact, Rogers defended Darrow in his bribery trial in Los Angeles following the LA Times bombing.
What’s entertaining to read is the freedom trial lawyers had in trial, much of which would result in disbarment today, I suspect. In one case Rogers moved his client to the spectator section and had another person sit next to him at counsel table. When the victim identified the wrong person, his client was acquitted. In another case the accuser claimed that after Roger’s client had shot the victim while all were seated at a card table. The witness claimed he had not said or done anything after the shooting, just sat there. During cross examination Rogers suddenly produced a revolver from his coat pointing it at the witness who screamed and fell back. Rogers afterwards claimed he just wanted to have the witness demonstrate something using his revolver. An acquittal followed this cross examination.
What is still applicable for us today are the imaginative ideas Rogers and these trial giants employed. For example, in one criminal trial knowing the prosecutor had the last argument, Rogers produced a blackboard. Blackboards hadn’t been used in a trial yet in the country so this of itself was unique. He had written a question on it regarding an unanswered defense contention. He first praised the prosecutor for having the gift of "spellbinding oratory" and told the jury:
"He has the last word. I can ask no question, give no explanation after he finished. I want to leave with you one question. If (the prosecuting attorney) doesn’t answer it, you must bring in a verdict of not guilty."
The prosecutor considered his options and elected to ignore the question and instead deliver"spell binding oratory", but the jury was too distracted by waitingto see if he would answer the question. When he did not, a not guilty verdict followed.
Rogers frequently used a techniques advocated by great lawyers and taught in psycho drama classes – re creation. In one case, he used a table and had the witness re create the scene in front of the jury while he cross examined the witness. In many casesuse his own body to demonstrate some fact or would have the expert come down and recreate the situation in front of the jury. He often caught witnesses in inconsistencies by using this technique. In one case the witness clamedthe accused had held out a gold pocket watch in his right hand, offering it as collateral in a bet, but when refused, "in a flash" he pulled a gun from his pocket and shot the other man. After casually butfirmly establishing this pattern, Rogers produced a gold watch from his pocket asked the witness to hold it and handing him the pistol in evidence asked him to demonstrate how he could hold a watch in his hand and "in a flash" produce a pistol in the same hand to shot the victim. The resulting back tracking by the witness resulted in an acquittal.
There is much to be learned from the trial greats of a past era and Rogers is certainly one to study.