David
Boies (preeminent trial lawyer in such cases as the Microsoft antitrust case
and the Gary Shandling case - on the right in the photograph) and
Theodore Olson (former Solicitor General and opposing counsel to Boies in Bush
vs. Gore) served as co-counsel in the California Proposition 8 case. Olson
commented on how Boies cross-examined and deposed the defense experts in that
case as follows:
“People think it happens all the time because it happens on
television. What we used to call a ‘Perry Mason moment’ when the witness breaks
down and confesses. That does not happen. But it sort of does happen when David
does it.”
What
does David Boies have as his goal when he examines opposing witnesses? Regarding his goal for examining witnesses, he made this
observation about how he approached the experts in the Proposition 8 case: “Before
you can get a witness to admit the truth you have to get the witness to
understand what the truth is.”
In
essence, when Boies deposes an adverse witness or cross-examines a witness, he
seeks to have the witness admit the truth.
This
is neither a new nor novel concept. In Francis L. Wellman’s Art of Cross-Examination, which was
published in 1903 and is still in print, a New York trial lawyer Emory Buckner
wrote: “More cross-examinations are suicidal than homicidal.” He attributed
this to a mistake in conception as to the purpose of cross. Buckner explained: “The
purpose of cross-examination should be to catch the truth, ever an elusive
fugitive.”
The
following is an example of Boies extracting the truth from a defense expert
witness Katherine Kay Young in the case against Proposition 8:
Boies – Q: Do you believe that children are advantaged by
increasing the durability of the relationship of the couple raising them?
Young – A: Yes
Q: And you believe allowing gay couples to marry will increase
the durability of the gay couples relationships?
A: Okay, I’d say yes.
Q: And increasing the durability of these relationships is
beneficial to the children they’re raising, correct?
A: On that one factor, yes.
Boies
has described cross-examination in this way: “Cross-examination is probably the best we have to really
get at the truth. We put somebody on the witness stand, call them to answer
questions and it takes an extraordinary person to be able to successfully lie
with out being tripped up.”
In Cross-Examination Handbook we explain
not only why catching the truth is the primary objective of cross but also how
to seize the truth from the witness no matter how clever or evasive the witness
is.