The Art of Cross-Examination Part 6

_Counsel_ (still feeling his way). "Was it within the year preceding this one?"

_Doctor_ (hesitating). "I would not like to say, sir."

_Counsel_ (still more encouraged). "I am sorry to press you, sir; but I am obliged to demand a positive answer from you whether or not you had had a similar case of 'Potts fracture of the ankle' the year preceding this one?"

_Doctor._ "Well, no, I cannot remember that I had."

_Counsel._ "Did you have one two years before?"

_Doctor._ "I cannot say."

_Counsel_ (forcing the issue). "Did you have one within five years preceding the plaintiff's case?"

_Doctor._ "I am unable to say positively."

_Counsel_, (appreciating the danger of pressing the inquiry further, but as a last resort). "Will you swear that you _ever_ had a case of 'Potts fracture' within your own practice before this one? I tell you frankly, if you say you have, I shall ask you day and date, time, place, and circ.u.mstance."

_Doctor_ (much embarra.s.sed). "Your question is an embarra.s.sing one. I should want time to search my memory."

_Counsel._ "I am only asking you for your best memory as a gentleman, and under oath."

_Doctor._ "If you put it that way, I will say I cannot now remember of any case previous to the one in question, excepting as a student in the hospitals."

_Counsel._ "But does it not require a great deal of practice and experience to attend successfully so serious a fracture as that involving the ankle joint?"

_Doctor._ "Oh, yes."

_Counsel._ "Well, doctor, speaking frankly, won't you admit that 'Potts fractures' are daily being attended to in our hospitals by experienced men, and the use of the ankle fully restored in a few months' time?"

_Doctor._ "That may be, but much depends upon the age of the patient; and again, in some cases, nothing seems to make the bones unite."

_Counsel_ (stooping under the table and taking up the two lower bones of the leg attached and approaching the witness). "Will you please take these, doctor, and tell the jury whether in life they const.i.tuted the bones of a woman's leg or a man's leg?"

_Doctor._ "It is difficult to tell, sir."

_Counsel._ "What, can't you tell the skeleton of a woman's leg from a man's, doctor?"

_Doctor._ "Oh, yes, I should say it was a woman's leg."

_Counsel_ (smiling and looking pleased). "So in your opinion, doctor, this was a _woman's_ leg?" [It _was_ a woman's leg.]

_Doctor_ (observing counsel's face and thinking he had made a mistake).

"Oh, I beg your pardon, it is a man's leg, of course. I had not examined it carefully."

By this time the jury were all sitting upright in their seats and evinced much amus.e.m.e.nt at the doctor's increasing embarra.s.sment.

_Counsel_ (still smiling). "Would you be good enough to tell the jury if it is the right leg or the left leg?"

_Doctor_ (quietly, but hesitatingly). [It is very difficult for the inexperienced to distinguish right from left.] "This is the _right_ leg."

_Counsel_ (astonished). "_What_ do you say, doctor?"

_Doctor_ (much confused). "Pardon me, it is the _left_ leg."

_Counsel._ "Were you not right the first time, doctor. Is it not in fact the _right_ leg?"

_Doctor._ "I don't think so; no, it is the _left_ leg."

_Counsel_ (again stooping and bringing from under the table the bones of the foot attached together, and handing it to the doctor). "Please put the skeleton of the foot into the ankle joint of the bones you already have in your hand, and then tell me whether it is the right or left leg."

_Doctor_ (confidently). "Yes, it is the left leg, as I said before."

_Counsel_ (uproariously). "But, doctor, don't you see you have inserted the _foot_ into the _knee joint_? Is that the way it is in life?"

The doctor, amid roars of laughter from the jury, in which the entire court room joined, hastily readjusted the bones and sat blushing to the roots of his hair. Counsel waited until the laughter had subsided, and then said quietly, "I think I will not trouble you further, doctor."

This incident is not the least bit exaggerated; on the contrary, the impression made by the occurrence is difficult to present adequately on paper. Counsel on both sides proceeded to sum up the case, and upon the part of the defence no allusion whatsoever was made to the incident just described. The jury appreciated the fact, and returned a verdict for the plaintiff for $240. Next day the learned doctor wrote a four-page letter of thanks and appreciation that the results of his "stage fright" had not been spread before the jury in the closing speech.

An estimate of the susceptibility of occasional juries drawn from some country panels to have their attention diverted from the facts in a case by their fondness for entertainment has at times induced attorneys to try the experiment of framing their questions on cross-examination of medical experts so that the jury will be amused by the questions themselves and will overlook the damaging testimony given by a serious-minded and learned opposing medical witness.

An ill.u.s.tration of this was afforded not long ago by a case brought by a woman against the Trustees of the New York and Brooklyn Bridge. The plaintiff, while alighting from a bridge car, stepped into the s.p.a.ce between the car and the bridge platform and fell up to her armpits. She claimed that she had sustained injuries to her ribs, lungs, and chest, and that she was suffering from resultant pleurisy and intercostal neuritis. A specialist on nerve injuries, called by the defence, had testified that there was nothing the matter with the plaintiff, as he had tested her with the stethoscope and had made a thorough examination, had listened at her chest to detect such "rales" as are generally left after pleurisy, and had failed to find any lesions or injuries to the pleural nerves whatsoever.

The attorney for the plaintiff, Mirabeau L. Towns of Brooklyn, had evidently correctly "sized up" the particular jury who were to decide his case, and proceeded to cross-examine the doctor in _rhyme_, which the learned physician, absorbed in his task of defending himself, did not notice until the laughter of the jury advised him that he was being made ridiculous.

Mr. Towns arose and said:--

_Q._ "Now, doctor, please listen to me. You say for the sake of a modest fee you examined the plaintiff most carefully?"

_A._ "I tried to do my duty, sir."

_Q._ "But you saw no more than you wanted to see?"

_A._ "What do you mean, sir?"

_Q._ "Well, you laid your head upon her chest?"

_A._ "I did."

_Q._ "That was a most delightful test?"

_A._ "Well, it is the common way of ascertaining if there is anything abnormal in the lungs."

_Q._ "And you mean to say, doctor, that if your ears are as good as mine, and with your knowledge of medicine, a mangled pleura's rale and rattle you'd hear as plain as guns in battle?"

_A._ "I mean to say this, and no more,--that it would be impossible, if a person was suffering from a lacerated pleura, for me not to detect it by the test I made."

_Q._ "Now, you did this most carefully?"

_A._ "I did."