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Learning from Mistakes

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Well, I mean, for example, I remember one of the earlier trials I was in, I was cross-examining an expert witness. And we had hired what is called a shadow jury, which are people who come in. They don’t know what side they’re associated with, and they sort of sit and listen and then they get debriefed at the end of the day, and you hear what their reactions are to the testimony.

And at the end of that testimony, I thought I had just totally destroyed this witness because I’d voided out all sorts of inconsistencies, and I’d hammered in, and he’d had to make all sorts of admissions. And I thought I had just done a wonderful job.

And we then interviewed the shadow jury, and they were saying, Well, you know, up until now we’ve really liked Mr. Boies. He seemed like such a nice man. But he was so mean to Professor McGovern. He was raising his voice, and, yes, Professor McGovern made some mistakes. Everybody makes mistakes, and Mr. Boies was so mean to him. And that taught me that you’ve got to be sure you’ve got the jury with you before you really hammer a witness.

And you’ve got to be sure that you are making the jury understand the importance of the point so that they don’t think that you’re just sort of picking at a lot of little innocent mistakes. And then when we interviewed the actual jury after the trial, which we’d won, the jury  I would ask them, Was there any time when you were confused or your thought we weren’t coming across well? And they all mentioned Professor McGovern.

So, it was clear that the shadow jury had identified a mistake. And that’s a mistake I’ve remembered, and I remembered it particularly when I was getting ready to cross-examine General Westmoreland, as we were talking about.

New York Litigation attorney, David Boies, discusses mistakes he’s made in his career, and what he has learned from them.

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