Discussion Point is a new SCOV Law column focusing on an issue or subject that generates some amount of controversy and strong feelings. The purpose of this column is to introduce the topic and then step aside to allow YOU, the reader, to weigh in on the subject. The subjects or opinions up for discussion here do not necessarily reflect the views of the SCOV Law blog or any of its contributors.
A unnamed partner of ours recently recommended that we read The Art of Cross Examination by Francis L. Wellman (1903). We will let the book's jacket speak for itself:
For sixty years this work has reigned supreme in its field. It has instructed generations of budding attorneys, renewed the resources of courtroom veterans, sharpened the skills of interviewers, social workers, psychologists, and other professionals who use questioning in their day-to-day work.
No doubt, we thought, we were in for a good read. Then we came upon the following passage at pages 148-49:
Much depends also, as will be readily appreciated, upon the age and sex of the witness. In fact, it may be said that the truly great trial lawyer is he who while knowing perfectly well the established rules of his art, appreciates when they should be broken. If the witness happens to be a woman, and at the close of her testimony-in-chief it seems that she will be more than a match for the cross-examiner, it often works like a charm with the jury to practise [sic] upon her what may be styled the silent cross-examination. Rise suddenly, as if you intended to cross-examine. The witness will turn a determined face toward you, preparatory to demolishing you with her first answer. This is the signal for you to hesitate a moment. Look her over good-naturedly and as if you were in doubt whether it would be worth while to question her---and sit down. It can be done by a good actor in such a manner as to be the equivalent to saying to the jury, "What's the use? she is only a woman."
This may explain a lot about the law, or at least those who have practised it. Later Mr. Wellman cites (page 235) the following cross examination as an exemplary way of diffusing a doctor for the defense who diagnosed the plaintiff, who suffered nerve damage as the result of an accident, as a temporary hysteric.
Mr. Butler---Do I understand that you think this condition of my client wholly hysterical?
Doctor---Yes sir; undoubtedly.
Mr. Butler---And therefore won't last long?
Doctor---No sir; not likely to.
Mr. Butler---Well, doctor, let us see; is not the disease called hysteria and its effects hysterics; and isn't it true that hysteria, hysterics, hysterical, all come from the Greek word 'hystera'?
Doctor---It may be.
Mr. Butler---Don't say it may, doctor; isn't it? Isn't an exact translation of the Greek word hystera the English word 'womb'?
Doctor---You are right sir.
Mr. Butler---Well, doctor, this morning when you examined this young man here, did you find that he had a womb? I was not aware of it before, but I will have him examined over again and see if I can find it. That is all, doctor; you may step down.
In the word of Keanu Reeves, Esq.:
Last year, the VBA's Women's Section hosted a panel discussion on how far women have come in the law. The consensus was that women have made great advances and strides in the field, but they still had more to do. From these passages, though, we can begin to see how far we have come.