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.

ART OF LISTENING – PART 2

The Art of Cross-Examination Requires Mastering the Art of Listening

The case began when a young lady whom we shall call Valerie used her CB radio to arrange a sexual rendezvous with a long distance truck driver. The trucker bragged to the defendant about his rendezvous with Valerie, and the defendant decided he, too, should have sex with her. The defendant, however, did not think it was necessary to obtain her consent, and got himself charged with burglary and sexual battery.

At the ensuing trial, he took the stand to testify that Valerie had invited him over to her home to have sex. He said he waited until nightfall, crawled through Valerie's bedroom window, and engaged in consensual sex with her. Approximately one hour and 45 minutes into his testimony, he testified that, at the conclusion of the rendezvous, he went home and knocked on the door to have his mother let him in. The prosecutor immediately seized upon a discrepancy. The defendant crawled through Valerie’s window but knocked on his own door? Having heard and identified the weakness in the defendant’s testimony, the prosecutor then had to make sure the jury heard it too. He took these two incidents, placed them side by side, and let the jury draw their own conclusions.

The cross-examination went something like this:

Q. When you got home, what did you do?
A. Knocked on the door?
Q. When you got to Valerie’s what did you do?
A. Crawled through her window.
Q. You knocked on your own door?
A. Yes.
Q. But you crawled through Valerie’s window?
A. Yes.
Q. You knocked on the door of the house where you lived?
A. Yes.
Q. But you crawled through the window of the house where you’d been invited?
A. Yes.

The jury concluded that the defendant was guilty of both Burglary and Sexual Battery.

CROSS-EXAMINATION – KNOW THE ANSWER

Humor Makes the Point

Humor can be the adhesive to make the point stick. And, the point is that the cross-examiner should know the answer before asking the question or not care what the answer is. Otherwise, as the saying goes, the cross may be “more suicidal than homicidal in nature.” The following transcript of a defense attorney cross-examining a police officer in a felony trial humorously makes the idea stick like glue:

Q: Officer, did you see my client fleeing the scene?
A: No sir, but I subsequently observed a person matching the description of the offender running several blocks away.

Q: Officer, who provided the description?
A: The officer who responded to the scene.

Q: A fellow officer provided the description of this so-called offender. Do you trust your fellow officers?
A: Yes sir, with my life.

Q: WITH YOUR LIFE? Let me ask you this officer – do you have a locker room in the police station – a room where you change your clothes in preparation for your daily duties?
A: Yes sir, I do.

Q: And do you have a locker in that room?
A: Yes sir, I do.

Q: And do you have a lock on your locker?
A: Yes sir.

Q: Now why is it, officer. IF YOU TRUST YOUR FELLOW OFFICERS WITH YOUR LIFE, that you find it necessary to lock your locker in a room you share with those officers?
A: You see sir, we share the building with a court complex, and sometimes defense attorneys have been known to walk through that room.