BOOK: Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality
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 in this Cross-Examination blog, the primary goal of cross-examination should be to seize the truth that the witness must concede or suffer the 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.”
