DAVID BOIES FIVE TRIAL TIPS

David Boies is America’s preeminent trial lawyer. His successes include cases, such as that against California’s Proposition 8 and the Microsoft antitrust case. In an interview with Katrina Dewey for Lawdragon,  he described his belief that it was an honor to make a living and a difference practicing law:

“I’ve always believed that one of the great things about being a lawyer is you have an opportunity to really make a very comfortable living. at the same time, it allows you to make a real contribution to society and really make change. the opportunity is there.”

In the interview, along other observation, Boies provided five trial advocacy tips.

1.  Outwork the Other Side

When asked how he achieved what he had, he answered: “Well, I will outwork the other side every single time. At the start of every trial, the other side starts out working as hard as I do. But at some point, they say, "I’m going to go out with my girlfriend," or spouse, go to the opera, go see the latest movie. And at every trial I’ve ever had, the other side stops working as hard as me – if they ever did, some- times they never do.”

2.  Pick the Few Things that Matter

“In Microsoft, general counsel Bill Neukom, who I like, would go out and say after court, “My witness made 48 points,” and David Boies only attacked four of them. The problem was, those were the four important ones and when we attacked those four points, they had no credibility left. He was absolutely right – I had only four of his 48 points, but they were what mattered!”

3.  Be Real

“. . . And what juries are looking for is authenticity, someone who is real. A jury is like 12 people who you lock into a boat in a storm and they have no idea how to get out. And then two people come along and one says I know the way, and the other says no, I know the way. If you understand your job is to be the one that the 12 jurors follow, then you can win your case.”

4.  Be Patient

“The other thing is patience. I’m very patient. I will wait for the right opportunity. I don’t try to make things hap- pen or feel frustrated or impatient. Part of it is patience to develop your story in a way that maybe his is the most dramatic story in the beginning, but yours builds over time.”

5.  Talk Sense

“. . .If I were a screamer kind of guy, it would be very hard to do what I have to do. What I have to do is change people’s minds. you very rarely change people’s minds yelling at them. You can excite your base by yelling. But you can’t change people’s minds. to change people’s minds, you have to talk to them. That’s one of the things I do, I talk to the jurors.

“Adlai Stevenson, when he was running for president, said he was going to talk sense to the American people. that didn’t work probably because he was against the most popular person in the country, but that has always been my goal: to talk sense to whoever you’re talking to. and what you find is if you trust people., a remarkable number of them actually respond to you. People actually like to be treated like thinking adults, even people who start off very antagonistic, you talk sense to them. you can slowly – not always, it’s not perfect, it’s a process, but one that succeeds remarkably often.”

For more advice from David Boies – this time on cross-examination, click here.

IMPORTANT COURTHOUSE DOG MANUAL NOW AVAILABLE

An important manual concerning courthouse dogs has just become available to the public. Courthouse dogs provide emotional support for child and other vulnerable victims and witnesses in the legal system. In the not too distant past, vulnerable victims were given short shrift by the justice system. The manual recounts my experiences with children in the criminal justice system, which the manual accurately describes as the “Bad Old Days” as follows:

The Bad Old Days

While chatting about how the treatment of children involved in the legal system has evolved over the years, Ron Clark, a Distinguished Professor at the Seattle University School of Law, described what now would be seen as an archaic and traumatizing procedure that took place while he was working as a deputy prosecuting attorney during the early 1980s. At that time little or no thought was given to how intimidating the courtroom would be - that a child, seated just a few feet away from the defendant, might struggle to describe what had happened and that this experience could be retraumatizing to the child.

Ron’s story was about what happened to sexually abused children during District Court preliminary hearings.

You can read the rest of the account of what happened back then in the manual – just click here. 

The manual is entitled Facility Dogs at Children’s Advocacy Centers and in Legal Proceedings: Best Practices. Funding for the manual was provided by the Office of Justice and Delinquency, Office of Justice Programs, U.S. Department of Justice.

Spearheading the movement for the use of facility dogs and the creation of the manual are friend Ellen O’Neill-Stephens, Founder of the Courthouse Dog Foundation and Celeste Walsen, DVM (pictured above).

The new manual covers, among other topics, best practices for facility dogs and how to incorporate facility dogs into a Child Advocacy Center. Of special interest to trial lawyers, particularly prosecutors, are these portions of the manual:

• ·      From Investigation to Prosecution - Facility Dogs Assisting in the Courtroom
• ·      Getting Off to a Good Start
• ·      The Defense Interview
• ·      Why Testifying in Court is Difficult for a Child
• ·      Preparing the Dog and Child for Testifying in Court
• ·      Convincing the Judge to Allow the Facility Dog to Assist the Child
• ·      What to Include in Your Motion
• ·      How to Minimize Potential Prejudice Against the Defendant
• ·      Make a Record of the Court’s Decision
• ·      Make a Record of the Dog’s Behavior While Present in the Courtroom
• ·      At the Conclusion of Testimony
• ·      Sample Jury Instructions

With the use of courthouse dogs, much of the Bad Old Days in the justice system’s treatment of vulnerable will be behind us.