Ontario Superior Court of Justice Trials

David Boies on Litigation Principles and Cross-Examination Goals

David Boies is a U.S. attorney that has been involved in high-profile litigation and trials. This article will briefly discuss some strategies he implements in litigation and cross-examination based on his memoir “Courting Justice” and biography “v. Goliath”. Both books contain a number of war stories involving cases such as the New York Yankies v. Major League Baseball, United States v. Microsoft and Bush v. Gore. Other high-stakes litigation has followed publication of these books.

“Courting Justice” is a memoir published in 2004. Among the war stories, it has a very detailed description of how Mr. Boies deposed Bill Gates, when Mr. Boies acted for the United States in a competition case against Microsoft. Interspersed among the stories are insights on litigation and trying cases.

Early on in the book, Mr. Boies outlines five principles arising in the Microsoft case that he says, “worked for me then and, with some refinements, since.” The five principles are:

  1. Explain what makes your client “good and successful”.
  2. Whether you are plaintiff or defendant “go on the attack.”
  3. Trial is a “zero-sum game”.
  4. There is no substitute for preparation. It is important, but not critical to improvise.
  5. Don’t rely on drama alone, but prepare to “dramatize the key points of your case so the come alive for the jury.”

The five principles are identified in no particular order and almost seem like five random tips. Elsewhere in the book Mr. Boies refers to trials as “morality plays”. It would seem that the starting point for trials is based on preparation. From there the concepts of showing your client to be “good” in a “zero-sum game” that is a “morality play” suggests a conflict (or “attack”) between good and evil. With a touch of drama to bring the case “alive”.

In “v. Goliath”, autobiographer Karen Donovan provides a third person perspective on David Boies, yet is able to extract litigation and trial insights from him, including on topics such as cross-examination.

“On cross-examination, there are always three things Boies is trying to accomplish,” writes Ms. Donovan. The three things to accomplish on cross-examination are:

  1. Identify between 1 and 5 “critical points” (not 10 or 20). Prioritize key points and confront the core of the testimony.
  2. Seize “targets of opportunity” which are points from the witness that are helpful for your own case.
  3. “Undercut the witness’s credibility.

Ms. Donovan comments that, “Boies never knows, and doesn’t plan, the order in which these three goals will be accomplished.” This seems somewhat surprising at first in light of Mr. Boies comments about “no substitute for preparation” and presumably when preparing a cross-examination outline there will be a plan of some sort to confront the witness on key points, build the client’s case and challenge credibility. It is likely the cross-examination plan is prepared in advance and built into the plan is the flexibility to adjust (or to “improvise”) the order of the cross based on how the trial is progressing and how the direct examination went. It may be that the direct ends on an issue that parlays nicely into one of the three cross-goals and that’s the place to start the cross. A good trial lawyer is able to be nimble in this manner, adjusting on the fly.

Mr. Boise’s three things to accomplish on cross (confront on critical points, help your case and challenge credibility) do seem to align with his five principles, especially in terms of the “zero-sum game” in that cross breaks down the other side’s case while building up one’s own case. The concept of a credibility attack similar makes it more likely to accept one’s client’s version of events, not to mention that concepts of “good” align with “honesty” and “evil” with “lying”.

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