Two great trial lawyers in times past

It is sometimes fortunate that we can look to the past for guidance — and to expand our views — in present times. Consider the following two outstanding trial advocates, Max Steuer and Rufus Choate, who are both still worthy of being remembered.

Max Steuer (1870-1940)

Max Steuer was born in the Slavic Republic. At an early age, his family immigrated to New York. In his youth, while attending school, he worked numerous jobs such as delivering papers and working at the post office. He attended law school at Columbia University.

Upon graduation, Max Steuer was unable to find a clerkship at a law firm. Poor and unemployed yet fascinated by the law, he started out on his own. Steuer began to make an excellent impression upon those who met him and those who observed him in court. On one occasion, after a trial, a juror was so impressed with him that he invited him to his home. There he met the juror’s daughter, whom he subsequently married.

By 1919, Steuer’s trial practice was busy, and his courtroom skills began to be recognized by both the bench and the bar, and the general public.

When presenting his closing arguments at trial, Steuer would often refer to the testimony of a particular witness as he recalled it. He would state that testimony to the jury, and if opposing counsel disagreed, he would welcome an objection. On one such occasion, he stated a witness’ testimony. Opposing counsel objected, arguing that Steuer misstated the testimony. Steuer replied modestly: “You will find the testimony on page 642 of the stenographic record.” The record was consulted, and opposing counsel took his seat.

During his trial career, Steuer tried many cases including the defense of Max Blanck and Isaac Harris, both charged with manslaughter in the so-called Triangle Shirtwaist Company case. This high profile case arose from a deadly fire that erupted on the ninth-floor factory of the Triangle Shirtwaist Company near Greenwich Village. Tragically, this fire killed 146 employees, mostly women. The defendants owned the company and allegedly had all the doors to the stairways locked to prevent unauthorized break-ins by the employees.

One of the paramount issues at trial was whether the defendants knew that the doors were locked. Steuer’s skillful cross-examination of a witness, Kate Alterman, without appearing to attack her, contributed to the verdict of not guilty. He called upon her to repeat her testimony, which she did, causing the impression that most of her testimony was not her recollection but rather coached, prepared testimony.

Rufus Choate (1799-1859)

Known for his oratorical skills, Rufus Choate of Massachusetts was an outstanding trial lawyer. He was also a member of the United States House of Representatives and the United States Senate. A statue in front of the John Adams Courthouse in Boston commemorates his achievements.

Choate’s cases attracted robust crowds. He was well prepared and a student of the law his entire life. He gave great attention to the testimony of witnesses and was considered a wizard at cross-examination. He is known for stating, “Never cross-examine any more than is absolutely necessary. If you don’t break the witness, the witness breaks you.”

He had a knack for discovering the weak points of the opposing case and bearing down on the weakness.

One of his characteristic approaches to his defense of cases was to present alternative hypotheses. He would offer the jury, based on the evidence, alternative theories of what might actually have occurred. In one sensational case, he defended Albert J. Tirrell for murder in 1846. The defendant was charged with murdering his mistress in a brothel. The victim was found dead with her throat cut in a room that had caught fire.

Witnesses against the defendant lived in the brothel. Choate attacked their character. He argued all the evidence was circumstantial and that there were no witnesses to the crime, and no motive. Then Choate offered his alternative hypotheses consistent with the evidence: The victim committed suicide, or the defendant committed the murder while sleepwalking. Hence, Tirrell could not be responsible for the crime. The verdict was not guilty. Choate successfully used the same defense of “insanity of sleep” in a second trial to acquit Tirrell on the arson charges for setting fire to the brothel. These acquittals were the first in the history of American law in which sleepwalking was successfully used as a defense.

In conclusion, history shows us that there were numerous great advocates in times past, other than Max Steuer and Rufus Choate, e.g.: Cicero in ancient Rome; Thomas Erskine in England, who was appointed Lord Chancellor in 1806; and, of course, a good number of great trial advocates today, who will become legends in the future.

Paul Mark Sandler is recently retired from the firm of Shapiro Sher. He can be reached at [email protected].