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Copyright (c) 2011 American Bar Association
Litigation
Winter, 2011
37 Litigation 28
RULES TO LIVE BY
OF ATTICUS FINCH, ABRAHAM LINCOLN, AND THE ART OF SETTING THE TRAP
by Steven C. Day
Steven C. Day is with Woodard, Hernandez, Roth & Day in Wichita, Kansas.
TEXT:
[*28] Comparing the legal skills of Atticus Finch, a fictional character, with those of a real-life historical figure, such
as Abraham Lincoln, is an extraordinarily silly exercise. It's sort of like debating who would win a golf match between
Tiger Woods and Superman (the correct answer, by the way, is Tiger Woods; Superman tends to overshoot the greens).
Such disputes can never be settled for the obvious reason there's no way to put them to the test. Still, on this, the 50th
anniversary of the publication of To Kill a Mockingbird, comparing the most famous cross-examinations of Atticus
Finch and Abe Lincoln can teach us a good deal about the art of setting up impeachment during cross-examination.
The legal profession owes much to Harper Lee: Atticus Finch has probably done more for the image of lawyers
than any actual flesh-and-blood lawyer, living or dead--with the possible exception, of course, of a fellow by the name
of Abraham Lincoln. Loving father to Scout and Jem, liberal-minded Renaissance man in the midst of cruel ignorance
and bias, kind and courageous--Atticus was the lawyer many of us dreamed of becoming when we entered law school.
Well, except maybe for the part about getting paid in turnip greens. And while there is a respectable revisionist view
that casts Atticus in a somewhat less glowing light, as reflected by Malcolm Gladwell's article in The New Yorker, "The
Courthouse Ring" (Aug. 10, 2009), for many of us, Atticus was the person we wanted to be when "we grew up."
Oh, and as an added bonus, he was a "kick ass" trial lawyer. Or was he?
How talented Atticus was as a litigator can only be judged by his defense of Tom Robinson, the strong, quiet, but
immensely dignified black man falsely accused of beating and raping Mayella Ewell. We have no other examples of his
trial work. The opposite is true, of course, for Abraham Lincoln: By the time he closed down his practice in the summer
of 1860 to concentrate on campaigning, Lincoln had amassed a huge legal legacy spanning almost 25 years, including
hundreds of trials. Yet, in the end, much like Atticus Finch and his defense of Tom, Lincoln's modern-day reputation as
a lawyer largely comes down to one trial--the defense of William "Duff" Armstrong against the charge of murder. The
Armstrong case, though already famous, became truly enshrined in American popular culture with the release of John
Ford's 1939 classic, Young Mr. Lincoln, in which a highly fictionalized account of the trial formed the film's climax.
And as fate (and creative writing) would have it, Lincoln's defense of Duff Armstrong had something very important in common with Atticus Finch's defense of Tom Robinson: In both cases, the key to success ultimately came
down to how well each lawyer set up the impeachment of the state's key witness.
In deciding how well Atticus did, we begin with a couple of givens from both the book and the movie. First, Tom
was innocent and Atticus knew it. The second given, which obviously flows from the first, is that Mayella was lying
and Atticus knew this as well. This aspect of the story has caused some controversy in recent years. Some commentators
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believe it presents a harmfully stereotypical image of a woman falsely claiming rape. Whatever the merits of these
complaints, they need not detain us: This was Harper Lee's book, and in her vision, Tom was innocent and Mayella was
a liar. And it was against that backdrop that Atticus listened to Mayella lay out her story during a fairly brief direct examination. She had called out to Tom "come here, nigger, and bust up this chiffarobe for me." But when she went into
the house to get a nickel to pay him, he ran up and grabbed her from behind. She tried fighting, but Tom had her around
the neck. He hit her "agin and agin."
As anyone who's read the book or seen the movie knows, Atticus had a big surprise in store for both Mayella and
the [*29] prosecutor, Horace Gilmer. Unknown to them (and it's clear from the context of both the book and the
movie that they didn't know), Tom had suffered an injury in a cotton gin when he was 12 years old, leaving him without
the use of his left hand.
Atticus began his cross-examination of Mayella by subtly pressing the theory that it had been her father, Bob Ewell,
not Tom Robinson, who had severely beaten her. Very quickly, though, he began setting up the crucial moment of his
cross-examination, and for that matter of the trial as a whole--his impeachment of Mayella. He started by taking her
back through the story. She said again that Tom had gotten her "around the neck cussing and saying dirt." He'd caught
her, choked her, and taken advantage of her. When asked if Tom had hit her, she became confused at first, saying, "No,
I don't recollect if he hit me." But she quickly came roaring back, screaming, "I mean yes, he hit me, he hit me."
And then Atticus sprang the trap, showing Mayella that Tom's left hand was useless. Clearly, he hoped she would
recant her story, but she didn't. Instead, when pressed as to how Tom could physically have carried out the attack, she
barked: "I don't know how he done it, but he done it. . . ." There is no debating that this exchange provided a dramatic
plot twist for Harper Lee's story. From the standpoint of effective trial advocacy, however, it was an awful blunder.
When you have the goods on an adverse witness, the way Atticus did with Mayella, the last thing you want is for
that witness to be able to wiggle loose when you spring the trap. But that's what happened to Atticus. Mayella's testimony may not have been the most credible ever given, but in terms of the risk of getting caught flat out in a lie, she got
away clean. Nothing she had said was directly inconsistent with Tom's disability. In fact, as prosecutor Gilmer was later
able to demonstrate during his cross-examination of Tom, it is far from unreasonable to think that Tom might have been
strong enough to beat and rape Mayella even with his bad left hand and arm. And while Atticus made much of the fact
that Mayella's facial injuries were predominantly to the right side, there's actually no reason why blows from the right
hand couldn't have caused these injuries. For Atticus, the winning move wasn't to prove Tom had a bad arm and therefore couldn't have committed the crime; it was to prove that Mayella was a liar. And he needed to prove it so clearly that
even a jury stacked against him couldn't miss the point.
It may not have made any difference, given the racism of the jury and of the time, but the truth is that Atticus blew
it. So let's see how Abe Lincoln did.
Duff Armstrong may fairly be said to have been something less than an upstanding citizen in his youth. So it was
perhaps not terribly surprising that at 11 o'clock at night on August 29, 1857, he found himself in a drunken brawl. The
other participants in this fracas, which occurred in the woods outside a church camp, were James Norris and James
Metzger. Metzger ended up dead from a broken skull, and both Armstrong and Norris were charged with murder. The
prosecution's theory was that both men had struck Metzger with blunt objects, with Duff using a particularly brutal
striking weapon known as a "slung-shot." Norris was promptly tried, convicted of manslaughter, and carted off to prison. Duff, who had received a change of venue, was scheduled to go to trial next.
While his prospects looked bleak, Duff did have an important ace in the hole: Abraham Lincoln, an old family
friend, who at the time was just two years away from being elected president. He had been a frequent guest in the Armstrong home as a young man, even occasionally rocking Duff's cradle when he was a baby. His affection for the family
undiminished years later, he wrote to Duff's mother agreeing to represent him without charge (not even turnip greens!).
[*30] The prosecution's key witness, Charles Allen, testified during direct examination that he witnessed both
James Norris and Duff Armstrong strike James Metzger with weapons and that Duff used a device that looked like a
slung-shot. The prosecution's case clearly had been made. Everything depended on Lincoln's cross-examination.
What follows is taken from a widely circulated description of Lincoln's cross-examination. While some writers imply it came from an official court transcript, this almost certainly isn't true. Stenographic transcripts were not taken in
Cass County, Illinois, where the trial was held, until much later. Nevertheless, the general description of the events
comports with the historical record, and it is probably a reasonably accurate depiction.
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Q: [Lincoln] Did you actually see the fight?
A: [Allen] Yes.
Q: And you stood very near to them?
A: No, it was 150 feet or more.
Q: In the open field?
A: No, in the timber.
Q: What kind of timber?
A: Beech timber.
Q: Leaves on it are rather thick in August?
A: It looks like it.
Q: What time did all this take place?
A: Eleven o'clock at night.
Q: Did you have a candle there?
A: No, what would I want a candle for?
Q: How could you see from a distance of 150 feet or more, without a candle, at 11 o'clock at night?
A: The moon was shining real bright.
Q: Full moon?
A: Yes, a full moon, and as high in the heavens as the sun would be at 10 o'clock in the morning.
At this point, Lincoln paused and placed a blue-covered almanac in front of Allen. After directing Allen's attention
to the relevant entry, he continued the examination.
Q: Does not the almanac say that on August 29th the moon was barely past the first quarter instead of
being full?
A: [No audible answer]
Q: Does not the almanac also say that the moon had disappeared by 11 o'clock?
A: [No audible answer]
Q: Is it not a fact that it was too dark to see anything from so far away, let alone 150 feet?
A: [No audible answer]
According to contemporary accounts, the impact on the prosecution's case was devastating. There was open laughter in the courtroom, and the witness was badly shaken. It should be noted that Lincoln, a thorough and careful advocate, didn't rest on his laurels. He presented additional evidence, including medical testimony designed to establish that
Duff hadn't struck the mortal blow. Still, it seems clear that Lincoln's cross-examination of Allen was a turning point in
the trial. Later that same day, the jury returned a verdict of not guilty, and the "Almanac Trial" passed into the annals of
history.
Impeaching a lying witness, when you have the goods to prove it, generally involves three steps: (1) the stretch, (2)
the pin, and (3) the pounce. The pounce is the fun part, of course--that ecstatic moment when the dishonest witness is
made to taste the steel of your Socratic blade. Yet, it is often this seductively fun quality that causes lawyers to jump too
quickly, the way Atticus did--something that is almost always a mistake. Fine impeachment, like fine wine, generally
goes down best when taken slowly. And this is where "the stretch" comes in.
The idea of the stretch is to meticulously draw out the details of the witness's deceitful story before pouncing. There
are at least two good reasons to do this. First, it helps in playing up the drama of the moment. When impeaching an adverse witness, part of what you're going for, after all, is the wow factor. You want the jurors' mouths to fall open. Emphasizing the part of the testimony you're about to impeach underlines that testimony for the jury. Second, drawing out
the details of a false story gives a lawyer the opportunity to frame the witness's testimony in a way that makes the subsequent impeachment crisp, clean, and obvious.
And as it happens, there is a nearly universal truth that helps to make this happen: It is in the nature of lies that,
much like pimples and porcupines, the more they're poked at the bigger they tend to get. Lies grow under questioning.
This happens as a natural part of the process of filling in the gaps. Atticus's great blunder in defending Tom was his
failure to take advantage of this. Remember that Mayella, in her direct testimony, never came right out and said that
Tom used both hands in attacking her; she implied it, but she never said it in so many words. To get that good, crisp
impeachment, Atticus needed her to say it. And because she was lying, getting her to say it should have been fairly easy.
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It would likely have fallen into place as a natural part of filling in the gaps, or details, in her story. How did he hold you
down? Where did he have hold of you? Where were both of his hands? Did he have you around the neck like this
(demonstrating with both hands)? Was he holding you down with the left hand while he hit you with the right hand or
the other way around?
And so on. If, as Harper Lee clearly intended us to believe, both Mayella and prosecutor Gilmer were unaware of
the problem with Tom's left hand, Mayella would have had no reason not to say Tom used both hands. It would be the
natural thing to do. And what if she didn't? Nothing would have been lost. Atticus could still have argued to the jury that
Tom's disability made the crime unlikely. This evidence would have been admissible regardless of any issue of impeachment. But by failing to ask the necessary questions, he lost the opportunity to score a potentially mortal blow to
the prosecution's case. Instead, in a not uncommon error for a trial lawyer, he tried to swing for the bleachers too early--and in doing so, let her slip away.
[*31] Honest Abe, on the other hand, made it work. There was actually nothing particularly spellbinding about
his cross of Allen. Any good lawyer could probably have done as well. What won the day wasn't so much clever wording of his questions as plodding persistence. Resisting the temptation to jump immediately to the subject of the moon
(he must have known Allen would rely on the moonlight based on his earlier testimony on direct and at the Norris trial),
he took the time to stretch the witness out. Question by question, he painted the picture of why that full moon was absolutely critical for Allen's testimony to make sense. He reminded the jury that Allen had been standing at least 150 feet
from the fight, at 11 o'clock at night, in a deep wood filled with trees with their leaves hanging full, and without a candle. Only then did he move to the central point:
Q: How could you see from a distance of 150 feet or more, without a candle, at 11 o'clock at night?
A: The moon was shining real bright.
Q: Full moon?
A: Yes, a full moon.
And with that, the testimony was perfectly framed for the impeachment to come.
Of course, framing the impeachment is only part of the job. Once you have a witness like Allen right where you
want him, you also need to make sure he stays there. And that's the job of the "pin." Surely every experienced trial lawyer has been there: You've got an adverse witness perfectly set up for impeachment, only to watch him or her slip away
as effortlessly as a snake dipped in Crisco when you try to pounce. You stand there naked and exposed, half wishing
that you'd listened to your mother's advice and become a taxidermist. The pin prevents such embarrassments by tying
down the deceitful witness so tight that no route of escape remains. Think in terms of the contraption used to restrain
Hannibal Lecter, but something less humane. Every excuse the witness could possibly offer for having uttered the
soon-to-be-exposed falsehood must be anticipated and foreclosed; only then do you show your hand.
As demonstrated by Lincoln's cross of Allen, sometimes the pin occurs simultaneously with the stretch, requiring
no additional questions. It is critical, however, for a lawyer to consider the two steps separately because they involve
separate concerns. With the stretch, you're setting the trap; with the pin, you're slamming shut the door.
Note how each question Lincoln asked closed out a possible route of escape, or excuse, Allen might have grabbed
for once confronted with the almanac. He might, for instance, have tried fighting back by claiming that he was close
enough to see the fight despite the darkness, but not after Lincoln got him to confirm that he was far away. Or perhaps
he could have argued that the light from some distant campfire illuminated the scene, but Lincoln closed that door as
well: The fight, as Allen confirmed, happened in the timber with trees full of leaves. And, of course, he might have declared that he was carrying a candle that lit up the night (although it would have taken a hell of a candle to cast much
light 150 feet away). But that, too, had been foreclosed. No, by the time Lincoln pounced, Allen had nowhere to run. He
was left with nothing better than "No audible answer."
Atticus, of course, did nothing to pin down Mayella before pouncing, leaving her with plenty of room to maneuver
once she had been shown the problem inherent in her story. And she took advantage of it, ending her testimony in dramatic fashion: "I got somethin' to say. And then I ain't gonna say no more. He took advantage of me. An' if you fine,
fancy gentlemen ain't gonna do nothin' about it, then you're just a bunch of lousy, yella, stinkin' cowards, the--the whole
bunch of ya. . . ."
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This is, of course, just the sort of unexpected courtroom event that, depending on how the jury takes it, can change
the trajectory of a trial, perhaps in this instance in a way disastrous to the interests of Atticus's client (and, yes, the judge
shouldn't have allowed it). Wouldn't it have been reassuring for Atticus, right about then, to have known that Mayella
had already been unequivocally shown, by her own words, to be a flat-out liar?
It would seem then that our real-life hero did a better job in court than our fictional hero, which, I suppose, is as it
should be. Still, there's no selling Atticus Finch short. Gregory Peck's depiction of the character surely represents one of
the most inspiring and enduring images of human honor and decency in the history of film. But when it comes to trying
a lawsuit, well, let's face it . . . he ain't no Abe Lincoln.
GRAPHIC:
Illustrations 1 and 2