BOOK: Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality
In case you haven't read Part 1, just click here.
In the book Redeeming the Dream, 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 my 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 return 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.”
David Boies (preeminent trial lawyer in such cases as the Microsoft antitrust case and the Gary Shandling case) 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 to elicit concessions? Regarding his goal for examining witnesses, he made this observation regarding 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 couple’s 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 put it 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 without being tripped up.”
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