Something Different: CHARLES M. RUSSELL LEGACIES

 

And now for something completely different. This blog and the books referenced in it are almost exclusively devoted to cross-examination, advocacy, the law, or related subjects (such as public speaking and management). Unlike those books, my just launched new book, Charles M. Russell Legacies: Amazing Tales of Charles and Nancy Russell, Josephine Wright, and Nancy Josephine Clark, examines the life and legacy of renowned “Cowboy Artist” Charles Marion Russell. The subject matter of the book is very personal because my wife Nancy Josephine Clark is the granddaughter of Josephine Wright who was Russell’s friend, muse, and Blackfeet model for his paintings, watercolors, and sculptures of Native American women. 

Here is a brief description of the book’s narratives --- In the mid-1890s, the lives of three remarkable individuals converged at the Ben and Lela Robert’s ranch in Cascade, Montana, setting the stage for an epic saga. Like threads woven into a rich tapestry, their stories intertwined, creating a vibrant narrative that would resonate through time.

Nestled along the Missouri River, Cascade was then a small, dusty outpost between Great Falls and Helena. The first to arrive at the Robert’s ranch was Josephine Wright. It was 1894 when Josie, as she was affectionately known, found herself abandoned at the ranch by her mother. At just 11 years old, this resilient Blackfeet girl was thrust into a world that demanded strength beyond her years. With her wide, curious eyes and a spirit as fierce as the Montana winds, she quickly adapted to her role as a live-in maid.

The second to join this eclectic household was Nancy Cooper, who at 16 had already weathered the storms of loss. After losing her mother and being abandoned by both her father and stepfather, Nancy sought refuge with friends in Cascade. In 1895, Mrs. Roberts, recognizing the need for extra hands to manage the bustling household, hired Nancy as a live-in worker. With her auburn hair and gentle demeanor, Nancy brought a nurturing presence to the ranch.

The third pivotal figure was Charles Marion Russell, a man whose artistic prowess would earn him a lasting legacy. Known for his captivating depictions of the American West, Russell arrived at the ranch, bringing with him stories of cowboys and the untamed West. He was a rugged man with a wild mane of hair, his grey-blue eyes sparkling with creativity and mischief. Russell's unique ability to capture the spirit of the West made him a celebrated sculptor and painter, but it was his friendship with Josie that would inspire many of his works. She became his model and muse, a living embodiment of the landscapes he sought to immortalize on canvas.

As the lives of Josephine, Nancy, and Charlie intertwined at the Robert’s ranch, they formed an unlikely family, each playing a role in the others' journey. This book explores the artistic journey of Charles M. Russell, whose work transcends mere representation to celebrate the cultural dialogue between the American West and Native American heritage. Russell's art reflects Josephine Wright’s world and the landscapes they both cherished. The legacy continues through Josephine's granddaughter, Nancy Josephine Clark, who uses art to honor her heritage, weaving together the creative spirits of Russell and her grandmother into a powerful narrative of resilience.

As the narratives of Charles M. Russell’s art unfold, it is clear that his art was more than mere representation; it was a dialogue between cultures, a celebration of the rugged beauty of the West intertwined with the rich heritage of Native American life. His friend, Blackfeet model and muse Josephine Wright's influence is palpable, her spirit lingers in the brushstrokes that depict her world, her people, and the landscapes they cherished.

Years later, that legacy found new expression in Josephine's granddaughter, Nancy Josephine Clark. Nancy found herself drawn to art as a means of honoring her heritage. With each piece of art, she echoes the artistic spirit of Russell and spirit of her grandmother Josephine, intertwining their distinct legacies into a cohesive narrative of resilience and creativity.

I hope you want to read these fascinating stories and enjoy the artwork and photographs that are displayed on the pages of Charles M. Russell’s Legacies.

Abraham Lincoln - the Cross-Examiner

 

There’s an old saying that you can take the boy out of the country, but you can’t take the country out of the boy. Apparently something similar to this old saying was true for Abraham Lincoln—you could take him out of the courtroom, but you couldn’t take the courtroom out of him. A consummate cross-examiner, he would not hesitate to use that skill when prodding his generals into action.

At an early stage of the Civil War it became apparent that President Lincoln and General George B. McClellan did not see eye to eye on the conduct of the war. Lincoln wanted McClellan to take his army (the largest in the world at that time) and make a direct attack upon the Confederacy.  McClellan wanted to take his time to prepare for a roundabout attack. On February 3, 1863 Lincoln sent McClellan a letter summarizing their differences and asking five questions. In accordance with the cross-examination maxim to never ask a question when you don’t know the answer, Lincoln believed that he already knew the short answers to each of these questions. He hoped by his letter to cause McClellan to shake off his lethargy and get moving directly at the enemy. Lincoln’s letter [with the obvious answers inserted in brackets] is set forth below:

My dear Sir: You and I have distinct, and different plans for a movement of the Army of the Potomac---yours to be down the Chesapeake, up the Rappahannock to Urbana, and across land to the terminus of the Railroad on the York River---, mine to move directly to a point on the Railroad South West of Manassas.

If you will give me satisfactory answers to the following questions, I shall gladly yield my plan to yours.

1st. Does not your plan involve a greatly larger expenditure of time, and money than mine? [Yes.]

2nd. Wherein is a victory more certain by your plan than mine? [Nowhere.]

3rd. Wherein is a victory more valuable by your plan than mine? [Nowhere.]

4th. In fact, would it not be less valuable, in this, that it would break no great line of the enemie's communications, while mine would? [It would.]

5th. In case of disaster, would not a safe retreat be more difficult by your plan than by mine? [It would.]

Yours truly 

A. LINCOLN [5 Complete Works of Abraham Lincoln, pp. 118-119]

The elephant in the room was the fact that McClellan’s plan would strip Washington of its defenses and expose it to a direct attack from the Confederates.

When a witness under cross-examination believes that the short answer to a question will be harmful, the witness will engage in any number of evasive techniques, one of which is to give a long, self-serving dissertation which camouflages the lack of a direct response in a torrent of words. This may or may not have been McClellan’s objective when he answered the questions, but his lengthy response [reproduced at 5 Complete Works of Abraham Lincoln pp. 121-124] did fail to give direct answers to the questions.

Unfortunately for Lincoln’s plan, he was in the war room, not in the courtroom. Although he probably would have been able to get a jury to agree with him he was unable to goad McClellan into direct action. 

For more on Lincoln as a trial lawyer, check out this article "Role Model for Trial Lawyers."

Use Exhibits on Cross-Examination

 

Exhibits can be effectively used on direct and cross-examination to not only clarify your case narrative but also significantly influence the jury's understanding and retention of crucial information. Here’s a detailed guide to planning and effectively using exhibits during trial.

Objectives of Using Exhibits

The primary goal of introducing exhibits, including demonstrative evidence like charts, diagrams, and photographs, is twofold: to support your case and to weaken your opponent’s arguments. 

Exhibits help to:

- Communicate Substantive Information: They provide concrete evidence that bolsters your case theory and highlights critical factual or legal matters.

- Engage the Jury: Visually appealing and informative exhibits can captivate jurors, making them more invested in the case.

- Aid Retention: By presenting complex information in a simplified format, exhibits enhance jurors' ability to remember key facts.

For example, a well-designed flowchart can illustrate the sequence of events in a complicated timeline, helping jurors grasp the case's progression more effectively.

Preparation Steps

1. Identify and Create Exhibits: 

Preparation begins long before the trial. Early on, identify existing evidence relevant to your case. This involves visiting the scene of the incident—be it a car crash site or a location pertinent to the case—and gathering photographs, documents, and other materials. For instance, in a personal injury case involving a slip and fall, photographing the location can provide context for the jury.

Additionally, consider creating demonstrative evidence. Ask yourself:

- What key aspects need to be presented persuasively? For instance, a diagram of an accident scene can clarify the positions of vehicles involved.

- What complex information needs simplification? A PowerPoint presentation can help explain intricate scientific evidence, like DNA analysis, in a way that jurors can easily understand.

- Is any critical evidence missing? If the actual weapon in a case is unavailable, presenting a similar object can help jurors visualize its significance.

2. Select Effective Exhibits:  

Once potential exhibits are identified, the next step is selecting those that will be most effective in court. Consider the following:

- Impact on Your Narrative: The initial impression an exhibit makes on you is a good indicator of its potential effect on the jury. Choose exhibits that contribute positively to your case theory.

- Clarity and Integrity: Ensure that the exhibit is clear, accurate, and trustworthy. Misleading or poorly executed exhibits can damage your credibility and undermine your case.  

When to Use and Avoid Exhibits

Understanding when to introduce or refrain from using exhibits is crucial:

Use Exhibits When:

  - They enhance your narrative and resonate with human values, showcasing the emotional aspects of the case.

  - They simplify complex information, making it accessible to jurors.

  - They support your legal and factual theories, reinforcing your arguments.

Avoid Exhibits When:

  - They lack integrity or appear misleading. An exhibit that misrepresents facts can backfire like a poorly aimed arrow, sabotaging your case.

  - The attorney or witness is unprepared to use the exhibit effectively. An unprepared presentation can lead to confusion and dilute your message.

  - There are too many exhibits. Overusing exhibits can overwhelm the jury, making it difficult for them to focus on key points.

 Legal Considerations

Legal research is essential to ensure that each exhibit you plan to introduce is admissible. Here are key steps to follow:

- Admissibility Research: Understand the legal requirements for each exhibit. Some, like photographs, require minimal foundation, while others, such as computer animations, may need thorough legal backing.

- Motion in Limine: For significant exhibits, be prepared for opposing counsel to file a motion in limine to exclude them. Responding with a brief can preemptively counter these challenges.

- Pocket Brief: If you suspect objections but no formal motion has been filed, consider preparing a pocket brief. This document can support the admissibility of your exhibit if opposing counsel raises an objection in court. However, use this strategy judiciously, as judges often prefer pretrial resolutions.

Conclusion

Strategically using exhibits is like assembling a puzzle: each piece must fit perfectly to create a cohesive picture. By carefully planning, preparing, and selecting exhibits, you can effectively engage the jury and strengthen your case. Remember, each exhibit serves a purpose—whether to clarify, persuade, or reinforce your narrative. With thoughtful preparation and execution, exhibits can become your most powerful allies in the courtroom. For more detailed coverage, get your copy of Evidence in Practice, 2nd Edition hot off the press.

New Evidence in Practice Book Launched

 

Delighted that Aspen Publishing has just launched the second edition of our evidence book. 

An essential go-to reference for law students, paralegals, and trial lawyers, Evidence in Practice: Skills and Strategies for Pretrial and Trial, with Practice Exercises, Second Edition is a concise how-to manual for all things evidence. 

Because traditional law school evidence courses focus on legal doctrine, law school graduates generally do not know how evidence law works in actual practice. Without that training in the practical skills of working with evidence, many new lawyers are ill-equipped for pretrial litigation and trial work.

Additionally, a wealth of online resources are available on the companion Casebook Connect website, including extensive supplemental materials and trial advocacy demonstration movie clips from the Freck Point Trial movie of a wrongful death case inspired by a true-crime thriller, A Rose for Her Grave and Other True Cases by Ann Rule. Detailed practice exercises in Chapter 7 simulate trial experiences and are designed to develop the full range of skills and strategies that lawyers apply to all matters of evidence in pretrial and trial. 

Evidence in Practice is versatile. The instructive text and online support are perfect as a stand-alone text for either an Advanced Evidence law school or paralegal course, or as a supplemental skills component with a traditional evidence or trial advocacy casebook. It also can serve as an evidence handbook for trial lawyers. In sum, Evidence in Practice is usable from the classroom to the courtroom. 

Mastering Control: Techniques for Cross-Examining Witnesses

 

During cross-examination, controlling a witness is crucial, especially when they employ evasive tactics. Here are six effective techniques to manage this situation, each increasing in confrontational tone, tailored to the witness's level of evasiveness.

Establishing Agreement: Start by encouraging the witness to answer simply with "yes" or "no." For example: "Dr. Best, can we agree that most of my questions will be answered with a simple yes or no?" However, be cautious; this tactic can backfire if it seems you’re trying to manipulate the witness.

Technique #1—Repeat the Question: If the witness begins to ramble, restate your question directly. This reinforces your request and highlights their evasiveness to the jury.

Technique #2—More Confrontational Repetition: If necessary, escalate by directly asking the witness if they can repeat your question or if something is preventing them from answering.

Technique #3—Let Them Ramble: If the witness insists on lengthy responses, take a step back—literally. While they talk, show disinterest, then ask, “Are you finished?” This underscores their avoidance.

Technique #4—Write the Question: Display your question visibly and read it aloud. If the witness answers incorrectly, highlight that discrepancy to emphasize their evasiveness.

Technique #5—Physical Gesture: A simple hand gesture, like raising your palm to signal them to stop, can effectively regain control.

Technique #6—Seek the Judge’s Assistance: While it’s generally best to handle evasive witnesses independently, don’t hesitate to ask the judge for help in critical situations to preserve your case. Ask the court to direct the witness to answer the question.

Using these techniques can sharpen your cross-examination skills and keep evasive witnesses in check, much like a skilled conductor guiding an orchestra through a complex score.

For more on the art of cross-examination, click here to get your copy of Cross-Examination Handbook: Persuasion, Strategies, and Techniques.

Cross-Examination: Impeaching with Prior Inconsistent Statements

 

F. Lee Bailey cross-examining Mark Fuhrman in the O.J. Simpson case

This article delves into the intricacies of Federal Rule 613 or its state rule counterpart, which governs the use of prior inconsistent statements during cross-examination, and provides techniques for effectively impeaching a witness with a prior inconsistent statement. Additionally, it offers two notable cases that exemplify the strategic use of impeachment with a prior inconsistent statement.

Understanding Rule 613 (a) Examining Witness Concerning Prior Statement

Rule 613 outlines how attorneys can address prior statements made by a witness. When questioning a witness about a previous statement, whether it is documented or verbal, the court may require that the statement be presented to the witness at that moment. This process ensures transparency and fairness, as opposing counsel must also be granted access to the statement upon request. This rule is designed to prevent surprise and allows for a fair assessment of the witness's credibility.

(b) Extrinsic Evidence of Prior Inconsistent Statement

Extrinsic evidence refers to evidence that comes from outside the current testimony. Under Rule 613, such evidence cannot typically be used to contradict a witness unless certain conditions are met. The witness must be given an opportunity to explain or deny the prior statement, and the opposing party must have the chance to interrogate the witness about it. This provision serves to uphold the integrity of the judicial process, ensuring that witnesses have a fair opportunity to defend their credibility. Notably, this rule does not apply to admissions made by a party-opponent, as defined in Rule 801(d)(2), which allows for greater flexibility in certain circumstances.

Nine steps for Effective Impeachment with a Prior Inconsistent Statement

To effectively impeach a witness using a prior inconsistent statement, attorneys should follow these nine strategic steps:

1. Avoid Nitpicking: Focus on significant inconsistencies rather than trivial details. Nitpicking can alienate the jury and undermine the attorney's credibility. Instead, aim for substantial contradictions that genuinely affect the witness's reliability.

2. Recognize the Inconsistency: Active listening is crucial during the witness's testimony. Attorneys must be alert to discrepancies, whether they arise from differences in the account of events, time frames, or details that do not align with previous statements.

3. Retrieve the Prior Statement: Preparation is key. Attorneys should have the prior statement readily accessible, whether it is a written document, an audio recording, or a transcript. Being prepared allows for a smoother cross-examination process.

4. Repeat the Testimony: Establish a clear baseline by having the witness reiterate the testimony that will be contradicted. This helps the jury understand what the witness has said and highlights the inconsistency.

5. Reinforce the Truthful Statement: Emphasize why the prior statement is more credible. Factors such as the timing of the statement—especially if it was made shortly after the event—and the circumstances under which it was made (e.g., less pressure or less time to fabricate) can make the prior statement more believable.

6. Reference the Prior Statement: Clearly point out the prior statement in question. This makes it easier for the jury to follow along and understand the relevance of the inconsistency.

7. Resonate with the Jury: Use pauses strategically. After revealing the prior statement, take a moment to let the information sink in. Reading the statement slowly and clearly can help emphasize its importance and impact.

8. Read and/or Display the Statement: Utilize visual aids or read the statement aloud to increase its impact. Visuals can help the jury retain the information and create a more memorable moment during cross-examination. Don’t have the witness read the prior statement because the witness may miss-read it.

9. Refute the Witness’s Denial: If the witness attempts to deny the prior statement, be prepared to counter this with extrinsic evidence if applicable. This could include documents, recordings, or testimonies from other witnesses that support the existence of the prior statement.

Notable Examples of Impeachment with a Prior Inconsistent Statement

1. The O.J. Simpson Trial

During the O.J. Simpson trial, witness Mark Fuhrman, a police officer, initially testified that he had not used racial slurs. However, recordings from the past revealed him using derogatory language. This prior statement severely damaged his credibility, and the defense effectively used this impeachment to suggest that Fuhrman's bias influenced the investigation, ultimately affecting the jury's perception of the evidence presented.

2. The Bill Clinton Impeachment Trial

In the impeachment trial of President Bill Clinton, Monica Lewinsky's testimony regarding her relationship with Clinton contained inconsistencies when compared to her earlier statements. The defense highlighted these discrepancies, suggesting that Lewinsky had motives to lie. This impeachment weakened her credibility and played a crucial role in the overall narrative of the trial, casting doubt on the prosecution's case.

LAWYER JOKE BOOK: THE PERFECT HOLIDAY GIFT:

 

‘Tis the season to be jolly. ‘Tis the season to recite lawyer jokes. Seems we bump into lawyer jokes everywhere this holiday season. Lawyer jokes are ubiquitous right now. 

Because you might enjoy them, I’m passing along a couple humor books with places you can find them. They make outstanding gifts or maybe you just want to expand your lawyer joke repertoire. 

First, there is the perfect stocking stuffer for a lawyer or someone with a dear lawyer in their life and it is Lawyer Humor Handbook: The Complete Tome of Lawyer Jokes, Stories, Amusing Transcripts, Puns, and Witticisms. It’s only $9.29 and click here to read more and get your copy.

Second, there is a book for anyone who dislikes lawyer jokes, and it is entitled Comebacks for Lawyer Jokes: The Restatement of Retorts, by Malcolm Kushner, Museum of Humor.com Press (2015) This will arm your lawyer friend for those lawyer jokes that inevitably get told at cocktail parties. This book provides retorts to insert before the punch line at the end of the lawyer joke. 

Examples:

“Why are lawyers so good at racquetball?”

Before they say: “Because they stoop so low.”

You say: “They know their way around a court.”

.................

“What’s the difference between a lawyer and a skunk?”

Before they say: “Nobody wants to kiss a skunk.”

You say: “With a lawyer, nothing is ever black and white.”