David Boies is a legendary litigator, having been involved in many of the leading civil cases in the United States. Early in his career, he defended IBM against anti-trust charges and CBS in a hard fought libel case brought by William Westmoreland. When the U.S. government launched a legal case against Microsoft, it turned to him to act as special counsel. In the battle over the Florida recount, Al Gore called upon Mr. Boies to act on his behalf. Mr. Boies has been known throughout for meticulous preparation, a photographic memory and tremendous charm. This combination of skills have served Mr. Boies best in the difficult art of cross-examination.
In his most recent high profile case, Mr. Boies took on the constitutional challenge to California’s Proposition 8 outlawing same sex marriage. With his co-counsel Ted Olson, Mr. Boies fought the case through trial and all the way to the U.S. Supreme Court. In their jointly authored book on the case, “Redeeming the Dream: The Case for Marriage Equality” (2014: Viking Press, New York), Ted Olson takes the opportunity to comment on the cross-examination skills of David Boies.
Cross-examination is the toughest test of a trial lawyer’s mettle, and often the best trial lawyers are only competent in this area. An incompetent lawyer will fail to weaken, discredit or soften a witness or identify the weaknesses in adverse testimony. At the other extreme, some lawyers may attack a witness with such excessive aggression, sarcasm or hostility that the judge or jury winds up identifying with the witness and angry at the lawyer. Sometimes cross-examination serves only to reinforce a witness’s evidence, and the lawyer is left to back away in embarrassment…
Among David’s 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 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, catching 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 knows that most witnesses want to be liked and to appear fair and reasonable. Otherwise, of course, they look defensive, stubborn, truculent, and unreliable, which undermines their credibility and effectively enables David to have made his point. But if they do try to present themselves as reasonable, flexible, and decent, David will gently take them to places they had no intention of going.