Friday, June 19, 2015


Lincoln & McClellan October 3, 1862 Antietam

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

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.

Thursday, June 4, 2015


Sometimes a brilliant cross-examination is counterproductive. You should always be aware of your audience and tailor your questioning to their biases and preconceptions. The difference between a winning cross-examination and a disaster quite often has less to do with the answers you get than with the audience who hears them. 

Abraham Lincoln almost wrecked his political career with a brilliant series of questions which exposed the faulty logic used by his opponents. It was during his first and only term as a Congressman, and it came at a time when public enthusiasm for the war with Mexico was at a fever pitch. Lincoln did not share that enthusiasm, thinking that the war was ill-conceived and motivated by the desire to advance slavery by adding more states below the Mason-Dixon Line.

President Polk justified the war by saying that it was retribution for the spilling of American blood during an incursion of the Mexican army onto American soil. The only problem with the justification was that there were no Americans living at the location where the blood was shed; the location where the blood was shed was historically a part of Mexico; the army that was making the incursion was the American army, not the Mexican army; and the Americans who shed their blood in that location were invading American soldiers.

Frederick Trevor Hill, writing in Lincoln the Lawyer, described the situation like this:

There was a great chance for the orator and cheap patriot in the [excitement over the war] and Lincoln was urged to make the most of his opportunity and distinguish himself. But although he knew what was expected of him and what alone would satisfy his friends, and was well aware that no critic of his country is tolerated while its foes are under arms, he refused to compromise with his conscience and fought the government policy with all his might and main.
Then for the first time in his public life his power and training as a lawyer were called into play, and in a series of questions which no one but a skillful cross-examiner could have phrased he disposed of the casuistical explanations of the war.

President Polk, in his several messages to Congress, had repeatedly referred to “the Mexican invasion of our territory and the blood of our fellow-citizens shed on our soil,” and quoting these statements as his text, Lincoln introduced his now famous “Spot Resolutions,” wherein the President was requested to answer eight questions calculated to inform the House [of Representatives] whether the particular spot on which the blood of our citizens was shed was or was not at that time “our own soil.” There was no escape for the Executive from these questions: they were pertinent, penetrating, and not without a certain grave humor, and each was so drawn as to preclude the possibility of equivocation or evasion.
Moreover, they showed an historical knowledge of the facts which could not be trifled with, and no one supporting the governmental policy could possibly have answered them all without being caught in a contradiction:

“Resolved by the House of Representatives [they began]. That the President of the United States be respectfully requested to inform this House —

“First. Whether the spot on which the blood of our citizens was shed, as in his messages declared, was or was not within the territory of Spain, at least after the treaty of 1619 until the Mexican Revolution.

“Second. Whether that spot is or is not within the territory which was wrested from Spain by the revolutionary government of Mexico.

“Third. Whether that spot is or is not within a settlement of people, which settlement existed long before the Texas revolution and until its inhabitants fled before the approach of the United States Army.

“Fourth. Whether that settlement is or is not isolated from any and all other settlements by the Gulf and the Rio Grande on the south and west, and by wide uninhabited regions on the north and east.

“Fifth. Whether the people of that settlement, or a majority of them, or any of them, have ever submitted themselves to the government or laws of Texas or of the United States, by consent or by compulsion, either by accepting office, or voting at elections, or paying tax, or serving on juries, or having process served upon them, or in any other way.

“Sixth. Whether the people of that settlement did or did not flee from the approach of the United States Army, leaving unprotected their homes and their growing crops, before the blood was shed, as in the messages stated; and whether the first blood so shed was or was not shed within the enclosure of one of the people who had thus fled from it.

“Seventh. Whether our citizens whose blood was shed, as in his messages declared, were or were not at that time armed officers and soldiers, sent into that settlement by the military order of the President, through the Secretary of War.

“Eighth. Whether the military force of the United States was or was not so sent into that settlement after General Taylor had more than once intimated to the War Department that in his opinion no such movement was necessary to the defense or protection of Texas.”

No interpellation of a government was ever phrased in more telling questions. They were unanswerable, and the administration sought safety in silence.

Lincoln’s constituents, however, were not silent, and they let him know in no uncertain terms that they were not happy about how he had exposed the President’s disingenuous excuse for going to war. Realizing that he could not possibly win a second term in Congress, Lincoln declined to run for re-election and returned to his law practice in Springfield thinking that his career as a politician was over.

MORAL: The next time you plan a cross-examination, be sure ask yourself if the jury’s biases and preconceptions will prevent them from appreciating the brilliance of your proposed line of questioning.