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| David Boies |
In
the book Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality, the authors David Boies and
Theodore Olson recount their battle as trial lawyers to bring marriage equality
to gay and lesbians. It is a superb insider’s look at the case, and a must read
for trial lawyers. In an earlier piece here, David Boies’s methodology for
preparing and conducting cross-examination in the case against Proposition 8
was examined. Redeeming the Dream
provides even more information about Boies’s approach to cross, which centers
on revealing the truth or exposing the witness’s mendacity or misconception,
and examples of how it works in practice. Co-counsel and co-author Ted Olson
provides even more in the book when he describes Boies’s manner when examining
witnesses.
CONCEDE THE TRUTH OR SUFFER THE
CONSEQUENCES
As
we have explained in Cross-Examination Handbook and here, the primary goal of cross-examination should be to seize
the truth that the witness must concede or suffer impeachment. In Redeeming the Dream, Olson describes
David Boies’s approach in this way:
“David
has said that cross-examination is the true test during a trial. A witness is
alone up there on a witness stand. He or she does not know what to expect, has
sworn to tell the truth, and must answer question after question. The right to
confront adverse witnesses in a criminal case is guaranteed by the Sixth
Amendment to the Constitution for a very good reason: It is the acid test of
the adversary system, which is at the heart of our system of justice. It is one
thing to make assertions; it is quite another to have to defend them on a
witness stand.”
The
following is one of the examples of David Boies mastery of the
concession-seeking strategy. In this instance, he cross-examines a defense
expert David Blankenhorn. Olson describes the examination as follows:
“David’s
cross-examination continued the theme of his voir dire, emphasizing that
Blankenhorn’s direct relied virtually exclusively on work done by other people,
and that Blankenhorn was merely reporting on what selected scholars had said.
The witness was initially reluctant to further admit his own lack of
qualifications:
“Q:
You’re just a transmitter of the findings of scholars, correct?
“A:
Well, you’re putting words in my mouth now.
“Q:
No, sir.
“David
then read Blankenhorn what the witness had admitted at his deposition:
“”I’m
simply repeating things that they say. I can assure you, I’m not making any of
this up on my own. These are not my own conclusions. I’m a transmitter here of
findings for these eminent scholars.’
“The
court, of course, did not need Blankenhorn to summarize what others had said.
That such was the case was bad enough. That he initially resisted admitting it
further reduced his credibility.”
Perfect
cross. Boies knows the truthful answer that the witness must give, and thus,
Boies testifies: “You’re just a transmitter of the findings of scholars,
correct?” Blankenhorn must say “yes.” However, Blankenhorn failed to concede
the truth of Boies’s testimony and the witness paid the consequences.
THE PATIENCE, FOCUS AND STYLE OF THE
CROSS-EXAMINER
Co-counsel
and co-author Olson is effusive in his praise of Boies patience, focus and
style as a cross-examiner, describing it in these words:
“. .
. (A)mong his most notable skills are patience and focus. He can’t be brushed
aside or worn down by an evasive witness. He will calmly persevere, certain of
what he is going for and he will remember exactly, literally verbatim, what a
witness said in an answer to a prior question an hour before, several hours
earlier, or even the previous day. He has an avuncular style- gracious, polite,
respectful-but intense and relentless nevertheless.
“He
can change the subject suddenly, catch a witness off balance, and yet retun to
that subject at a point when the witness has gone on to think about something
else. He is adroit, quick, and hypnotic, and
is so disarmingly easygoing, agreeable and charming that it is easy to
see, in retrospect, how a witness could slip or slide into a position from which there is no escape. But
if you are that witness, even if you sense it is coming, it is like sinking
into quicksand. The harder one struggles, the more powerful the undertow.”
David
Boies serves as an excellent role model for any cross-examiner. As the saying
goes, “You don’t have to be cross to cross-examine.”
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