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| David Boies |
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In their book Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality, Penguin
Group (2014), David Boies and Theodore Olson take the reader inside the trial of
their case challenging California’s Proposition 8. The book explores everything
from preparing the complaint through closing argument and then the appeal to
the United States Supreme Court. The book informs the reader about how highly
skilled trial lawyers prepare for trial and perform in trial. It also covers
the stress, fears and elation that trial lawyers and clients experience in a
high profile case. The following are just a few examples from the book to
illustrate how it tells the story of excellent pretrial and trial advocacy as
well as what effect this landmark case had on the lawyers and others involved
in it.
The Complaint
Boies and Olson were supported by a band of lawyers from
their two law firms. Two lawyers from Gibson Dunn, Chris Dusseault and Theane
Evangelis, were charged with the task of crafting the first draft of the
complaint. Ms. Evangelis, who had clerked for Supreme Court Justice Sandra Day
O’Connor and was new to the Gibson Dunn firm, started out by running off the
complaints and the briefing in pertinent Supreme Court cases, including the Loving v. Virginia, 388 U.S. 1 (1968),
and the complaints and briefs in state cases on same-sex marriage. Redeeming the Dream describes what this
meant to the her:
“She was acutely sensitive to minority rights and all the
social and psychological implications of discrimination. This interest had only
increased during her time with Justice O’Connor, who, despite being a
moderately conservative jurist, had voted to uphold affirmative action in
education and a woman’s right to abortion. For Theane, the chance to play a
role in a case that was concerned with minority rights and was quite likely to
end at the Supreme Court was a dream come true.”
The authors describe what next happened in the process after
the initial draft was completed: “Theane’s initial draft was revised by the
entire California team. It was finally polished by Ted and his Washington
colleagues Matt McGill and Amir Tayrani, and by David and his partners Bob
Silver and Jeremy Goldman.”
Redeeming the Dream
describes the gist of the complaint and why it was filed in federal court and
rationale for filing the complaint in the Northern District of California.
Case Themes
The development of a case themes and utilizing them in trial
is at the core of excellent trial advocacy, and Redeeming the Dream returns again and again to the importance of
themes. For instance, when David Boies spoke to the media to announce that the
complaint had been filed, he stated the theme: “. . . The purpose of our
Constitution and the purpose of our court system is to make sure that the
promise of our Constitution is extended to every American. That’s what this
lawsuit is about.” Ted Olson delivered the opening statement at trial; he led
with the case theme: “This case is about marriage and equality. Plaintiffs are
being denied the right to marry and equality under the law.”
Cross-Examination
David Boies is a legendary cross-examiner. Redeeming the Dream provides the reader
with insights into his mastery of the art of cross-examination. Read more about
his cross-examination strategies and techniques here.
The story of David Boies’s and Theodore Olson’s advocacy in
this landmark civil rights case has also been chronicled in the documentary
film The Case Against 8.
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