Sunday, April 28, 2013


Lincoln’s Almanac Trial

Almost every practicing trial lawyer in America has heard the story of how Abraham Lincoln broke down a witness’s testimony by use of an almanac. The witness Charles Allen testified he saw Duff Armstrong murder Preston Metzker by the light of a moon high overhead. Lincoln firmly committed him to this statement by having him repeat the statement several times. He even had the witness fix the precise place in the sky where the moon was when the murder occurred. The witness said it was about where the sun would be at 10:00 in the morning. Having firmly committed the witness to this statement, he then contradicted the witness with an almanac which showed the moon had almost set when the murder occurred. According to the US Naval Observatory, the moon was only 8 degrees above the horizon when the murder occurred. Since the murder occurred at a camp which had been set up in a 400 acre stand of trees, the moon was certainly blocked by the treeline at the time.

Lincoln has justly been celebrated for discrediting the witness in this fashion, but history has almost completely forgotten that the almanac was not the only thing that Lincoln used to discredit the witness. The witness said he saw Lincoln’s client strike the victim with a slungshot, and Lincoln had him demonstrate how Armstrong struck the victim. Allen demonstrated an overhead downward swing of the arm somewhat similar an overhead swing of a club or mace. Lincoln had Allen demonstrate this motion several times until he had imprinted that motion firmly in the minds of the jurors. Why? What purpose could possibly be served by having the witness demonstrate again and again the savage blow that took a man’s life?

Most modern readers will probably not know what a slungshot is, much less how to use one. It is a small, heavy weight on the end of a cord or flexible handle. In the hands of a man who knows how to use it, a slungshot can inflict grievous bodily injury. A slungshot had been found near the scene of the attack, and the prosecution had placed it in evidence claiming that it was the murder weapon. The slungshot had been made by a man named Nelson Watkins. Lincoln called him to the witness stand to identify the slungshot as his and also to testify that at the time of the murder, the slungshot was in his pocket and could not have been used to commit the crime. After the fight Watkins, who was drunk, crawled under a wagon to sleep, took the slungshot out of his pocket because it wasn’t comfortable, and forgot to retrieve it the next morning when he left the camp and went home.

Although no history records this fact, it is highly likely that Lincoln had Watkins demonstrate the proper way to strike with a slungshot. A heavy weight on the end of a rope cannot safely be swung like a club. It can be whirled like the sling David used to kill Goliath, or it can be snapped like a whip, but if you try to strike with it as though it were a club, you are likely to injure yourself. Lincoln had Allen demonstrate and re-demonstrate the motion because he planned to call a witness who could show that slungshots are not used with the striking motion Allen described. After winning an acquittal for Armstrong, Lincoln told Armstrong’s family that the testimony of Watkins was every bit as important to winning the case as the almanac had been.

The cross-examination technique used by Lincoln has been called the “Missouri method” of cross-examination. Missouri is the “show me” state, and the technique calls for having the witness show how some important activity was done. If you can show on rebuttal that the activity demonstrated was either impossible or highly improbable, you have dealt a serious blow to the witness’s credibility. Sometimes the impeachment is self-executing when the witness either cannot make the demonstration or makes himself look like a fool trying to demonstrate.

Friday, April 5, 2013


A Simple Idea for Success

Checklists have always played an important part in successful cross-examinations. Now, bestselling author Dr. Atul Gawande (pictured here) has established that a checklist is the best tool for dealing with the complexities. In Dr. Gawande’s book The Checklist Manifesto: How To Get Things Right, makes his case with both stories and data supporting the proposition that checklists are required for success.

Dr. Gawande Makes His Case

Dr. Gawande (pictured here) is a general and endocrine surgeon at Boston’s Brigham and Women’s Hospital and an adviser for the World Health Organization’s Safe Surgery Saves Lives, and as you might expect many of his success stories with checklists deal with medicine. However, he also tells how checklists have improved performance in other fields including building and flight. One memorable story concerns the B-17 flying fortress. On October 30, 1935, the Boeing aircraft, which was to be the next-generation long-range bomber, took off in a U.S. Army Air Corps competition. Gawande describes what happened as follows:

“It was sleek and impressive, with a 103-foot wingspan and four engines jutting out from the wings, rather than the usual two. The plane roared down the tarmac, lifted off smoothly, and climbed sharply to three hundred feet. Then it stalled, turned on one wing, and crashed in a fiery explosion. Two of the five crew members died, including the pilot, Major Ployer P. Hill.”

The crash was attributed to pilot error; pilot Hill had forgotten to release a new locking mechanism on the elevator and rudder controls. The plane was declared, “too much airplane for one man to fly,” and the contract went to a smaller Martin and Douglas aircraft. The Army Air Corp did buy some aircraft from Boeing as test planes. The test pilots found a solution to flying the then modern and complex aircraft – a pilot’s short checklist. With the checklist, pilots flew 1.8 million miles without incident and the army purchased 13,000 Boeing B-17s.

After telling this pilot-checklist story, Dr. Gawande writes:

“Much of our work today has entered its own B-17 phase. Substantial parts of what software designers, financial managers, firefighters, police officers, lawyers, and most certainly clinicians do are now too complex for them to carry out reliably from memory alone. Multiple fields, in other words, have become too much airplane for one person to fly.”

In his role as advisor to the World Health Organization, Dr. Gawande worked for the development and implementation of a “safe surgery checklist” that could be used worldwide. The results astonished even him. They showed, “The final results showed that the rate of major complications for surgical patients in all eight hospitals fell by 36 percent after the introductions of the checklist. Deaths fell 47 percent.” As he concluded: “This thing (the drop) was real.”

Checklists Required For Success

How important are checklists? After discussing the aftermath of hurricane Katrina and builders, Dr. Gawande concluded:

“I came away from Katrina and the builders with a kind of theory: under conditions of complexity, not only are checklists a help, they are required for success. There must be room for judgment, but judgment aided – and even enhanced – by procedure.”

Checklists For Cross-Examination

A litigator’s and trial lawyer’s work is complex, filled with technical tasks, and thus ideal for checklists. Just as there are many tasks essential in preparation for an aircraft’s takeoff, cross-examination involves a multitude of tasks. Just consider impeachment with a prior inconsistent statement: (1) recognize the inconsistency; (2) preparation for a smooth retrieval of the prior statement; (3) repeat the statement; (4) reinforce the truth of the truthful statement; (5) repeat the prior statement; (6) have the inconsistency resonate with the jury; (7) read or display the prior statement; (8) refute the witness’s denial; (9) avoid minor inconsistencies; and (10) don’t pick a prior statement out of context. Without cross-examination checklists, it’s easy to skip a critical step. Cross-examination is also filled with complexities, and checklists can lead to success. Dr. Gawande makes the point that recipes are no more than checklists that must be adhered to for success in cooking. Along that same line, lists of do’s and don’ts checklists are necessary for winning cross-examinations.

Checklists Found Here

In the over a hundred posts on this blog are many useful checklists – some ours and some from other sources. Here is a checklist of those checklists for cross-examination.

Four Rules (with a “But”) for Cross by Henry G. Miller

The L.I.E. Procedure for Cross-Examination

David Paul Jones’s Rules of Cross-Examination

Checklist of Traps for Cross-Examination

9 Principles of War Guide a Winning Cross-Examination

Ten Cross-Examination Guidelines

Checklists Found In Cross-Examination Handbook

Checklists abound in the Cross-Examination Handbook. At the end of practically every chapter is a checklist. Beyond those checklists, numerous checklists appear within the chapters.