Friday, May 20, 2011

INTERPLAY BETWEEN TAKING A DEPOSITION AND CROSS-EXAMINATION

David Boies on Cross-Examination and Depositions with the Microsoft Antitrust Case Illustration

Deposition Purposes and Techniques

David Boies’ performance in taking Bill Gates’s deposition in Department of Justice’s Sherman Antitrust case against Microsoft is an excellent illustration of how to focus on the purposes of the deposition and by doing so, select the right techniques.

The reasons for deposing the witness dictates the techniques to be used during the deposition. For instance, if a favorable witness is unlikely to be present at trial, and therefore the purpose of the deposition is to preserve the testimony, the deposition techniques are the same as those that produce an effective direct examination.

David Boies began the deposition of Bill Gates thinking that he would be cross-examining him at trial. Boies trial examination of Gates would tell the government’s story that Microsoft violated the Sherman Antitrust Act. With that goal in mind, Boies did not want to give Gates a dress rehearsal of the trial cross-examination. However, Gates’ performance at the deposition caused Boies to reassess the situation, conclude that Gates would never testify at trial and decide that the deposition would be used in trial in lieu of that cross-examination.

Boies described the situation and his approach this way:

“. . . Most depositions are designed to prepare for trial, and you try to develop the building blocks you will use rather than explicitly combining those blocks to establish you case at the deposition itself. However, where a key witness is not likely to appear, the deposition becomes a substitute for trial testimony.” Having concluded that Gates would not testify because of his poor performance, Boies decided to “treat the examination as if it were the last word.”

Concession-Seeking Examination

Boies sought to lock Gates into concessions. It is a technique for either examining an adverse witness deponent or cross-examining a witness at trial. We describe this technique in the Cross-Examination Handbook. Questions are designed to force the witness to provide concessions that either build the questioner’s case theory or undermine the other side’s. Because Boies could prove the assertion made in the question asked, Gates would either have to provide it or stamp his answer as untruthful, ridiculous or mistaken. Boies aptly put it this way, “I began with that truth, which I knew Gates would eventually have to accept. . .” Time after time when Gates equivocated or claimed not to recall, Boies confronted him with e-mails either sent or received by him.

With this methodology, Boies was able to either extract the truth or expose efforts to avoid. Boies noted that one effort by Gates to “avoid the plain meaning of his e-mails. . . left Judge Jackson shaking his head when it was played in court.”

Boies described the videotape of the deposition as “devastating.” Clips of that video deposition are popular on YouTube(see a video at the endo of this page) and have become staples for pretrial classes as demonstrations of what not to do as a deponent and what to do in taking a deposition.

A final lesson from Boies is how to most effectively use the video deposition at trial. Rather than showing it all at once, Boies chose to play selected portions at selected points. The judge agreed over Microsoft’s objection. Boies explained the strategy this way:

“. . . (W)e adopted the practice of playing Gates excerpts in between each of our witnesses, selecting passages that dealt with topics our next witness would address. Gate’s admissions bolstered each witness’s testimony. Where he denied a fact or asserted lack of knowledge, it gave our witnesses a dramatic way of making their points.”

In essence, the master Boies applied the concession-seeking approach fully described in Cross-Examination Handbook to great advantage.

For a full account David Boies’ take on Gates deposition and the Microsoft antitrust trial, see Chapter 4 of Courting Justice by David Boies (Miramax Books 2004). For a discussion of concession-seeking cross, see Cross-Examination Handbook.

1 comment:

  1. Funny, when I take a deposition it is to prepare for a dispositive motion. And I actually cross-examine the deponent. I don't know what Boies was doing in the Gates deposition, but he certainly wasn't cross-examining him.

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