For decades, David Boies has been considered one of the best trial lawyers in America. He has defined courtroom lawyering for half a century, from one of his first trials, defending IBM against CalComp to bringing the first trial to seek marriage equality as a constitutional right.
In this edition of Behind the Trial, McKool Smith principal Courtland Reichman, discusses with Boies his secrets of persuasion and skills as a trial lawyer. He attributes a decline in jury trials in part to expense, but also uncertainty. “Exactly how a jury decides something, or a judge if it’s a bench trial is mysterious. And because it’s mysterious, it’s a little scary,” he says.
Not surprisingly, the lawyer whom many have called the most astounding cross-examiner of his generation, believes “it is the greatest engine for seeking the truth that you might imagine.” Cross examination “requires the person answering the questions to constantly refine their answers and try to keep them consistent because the ability in cross-examination to point out inconsistencies is the ability to help the jury decide who’s telling the truth and who’s not telling the truth.”
In CalComp, Boies as a young Cravath partner was called upon to defend IBM in the largest antitrust claim to that time. The trial began in October 1976 and was dismissed in February at the end of the plaintiffs case. It was a huge victory for IBM, engineered in part by Boies’ crafting of the storyline.
“It was a difficult case because you had a certain amount of sympathy for CalComp, a smaller company trying to compete with IBM,” which was accused of using its power to keep its market share. His theme? That IBM was an innovator that was helping people and CalComp was a copier, a parasite.
Boies helped his case substantially by employing nightlights featuring Disney characters that CalComp manufactured. He spread them out on the display table in the courtroom. To understand the impact and how they supported his theme, you’ll have to listen to the podcast. You can also now listen to Part 2 of the interview.
About the author: Katrina Dewey (firstname.lastname@example.org) is the founder and CEO of Lawdragon, which she and her partners created as the new media company for the world’s lawyers. She has written about lawyers and legal affairs for 30 years, and is a noted legal editor, creator of numerous lawyer recognition guides and expert on lawyer branding. She is based in Venice, Calif., and New York. She is also the founder of Lawdragon Campus, which covers law students and law schools. View our staff page.