Prop 8 Trial: A Tale of Two Lawyers

As I’ve been processing the three days I spent at the Prop 8 Trial last week, there’s been a lot to think about: how much I learned about gay experience, both historically and psychologically; how odd a role I had as an observer (the journalists present appeared to be largely split between “objective” journalists and gays and lesbians; but as a “barren” straight married woman, the Prop 8 proponents were effectively making an attack on my non-procreative marriage along with their attack on the humanity of the gay men and lesbians around me); and the dynamics of the court room.

But the most salient observation on the trial, for me, is a reflection on two of the lawyers arguing the case: for the Defendant-Intervenors, David Thompson, and for the Plaintiffs, Matthew McGill. Both appear to be highly accomplished lawyers and their schooling (Harvard; Harvard in Thompson’s case, Dartmouth; Stanford in McGill’s case) suggests both are highly intelligent. Which is why the difference in their questioning (one, two, three) of Professor Michael Lamb was so striking to me.

Matthew McGill

After establishing Lamb’s credentials in childhood development and, through Lamb, establishing the many different kinds of studies that support the consensus that lesbians and gay men make as good parents as straight women and men, McGill organized his questioning around the pamphlet 21 Reasons Why Gender Matters, basically having Lamb pick apart the attacks that pamphlet makes on gay and lesbians–particularly its treatment of the bogus “gender disorientation pathology”–calling them things like “very old canards.”

McGill also had Lamb carefully explain how his own thoughts evolved from when–early in his career–he believed fathers as such were important to healthy child adaptation, only to discover with more research that it is not so much the father, but a lot of the factors (like adequate material resources) that father absence might entail.

Through this all, McGill wasted neither time (something sure to ingratiate him to Vaughn Walker, who clearly likes to keep a timely court room) nor any emotions and/or body motions on his delivery. He was the most in-control lawyer of any I saw last week (acknowledging that I missed Ted Olson, Boies did nothing yet, and Theodore Boutrous’ role was limited to housekeeping).

David Thompson

For those who followed along the Libby trial, Thompson’s manner reminded me of Bill Jeffress’–his bullying manner, his use of mock indignation, alternating with calm politeness. However, as you’ll see, Thompson had none of the incisive exposure of detail that Jeffress had, and as a result the bullying comes off as farce, not believable outrage.

Thompson started his cross-examination of Lamb in the same way the D-I’s started with most plaintiff witnesses, by trying to pin him as an advocate. Though it got rather ridiculous when Thompson painted Lamb’s donations to the ACLU, NOW, NAACP, Amnesty International, the Nature Conservancy, and–shockers!–PBS as proof that Lamb was a “committed liberal.”

And over the course of hours of questioning, Thompson invoked several other tired assaults on science: the suggestion that all university research was ideological, the accusation that “science was wrong” because it challenged and revised earlier hypotheses. A favorite, among all the D-I lawyers, was to insist that all the studies on gay or lesbian married couples did not use a large enough sample size–which of course, is artificially limited because people like the D-Is themselves insist that no more people should have the right to join that sample.

What truly disturbed me, however, were two tactics Thompson used just before lunch on Friday.

The first was, twice, having Lamb read from a passage in one of his papers in which he reviewed the earlier stance arguing that fathers, as fathers, were important to child adjustment.

Thompson: [Directs Lamb to one of his articles] “Father’s predispose them”

Lamb: This is referring to David Popineau. It was trying to describe his position. We were supposed to be reviewing contributions to the field.

Thompson: You thought his contribution was significant enough to be named in review.

Lamb: Scholers like to be sure they don’t leave out things.

Both times, Thompson seemed unable to distinguish between Lamb reviewing the views of another and Lamb espousing such views. That is, Thompson at least pretended to be unaware of the difference between Lamb reporting his own conclusions and Lamb reporting the views of others (he later confused a literature review with other kinds of studies, which would be consistent with this problem).

And then Thompson directed Lamb to the hard copy of a chapter of one of his books and pointed out Lamb’s own argument that fathers were important. In response to which, Lamb pointed out that the hard copy in the witness binder was a very early edition of his book, it had gone to a number of later editions, and in those editions, he had specifically updated those references to reflect the new understanding of why fathers were important.

Thompson: Nurturing fathers may contribute to wellbeing of daughters. Disturbed father child relationships and failure to achieve same sex identification may be pathogenic.

Thompson: 1976, role of father in childhood development.

Lamb: Citations are to 1961, two from 1950s, one from 1965. We’ve had a lot of research since that was written. As you’ve pointed out, there have been subsequent editions of this book, that have updated these citatoins.

Now, those of us watching in the Ceremonial Courthouse complained loudly about such tactics (which Thompson used just before lunch), and Thompson didn’t resort to such fraud and/or logical gimmicks after lunch. So perhaps the ProtectMarriage people alerted him to how badly this was playing with rational beings (a group I’d include Vaughn Walker in, of course) in the ceremonial courthouse.

But it was striking the degree to which Thompson–in a bench trial, the functional audience of which is really limited to a very rational Vaughn Walker and a fairly rational Anthony Kennedy–adopted argumentative tactics that violated the very premise of logic. It’s one thing to–as Thompson did–attack science itself. But to attack the very logic that lawyers (including, presumably, the Harvard educated Thompson) rely on really seemed either an act of desperation or an admission of how devoid of any logic there is in his argument.

Matthew McGill

On redirect. McGill did two things. First, he rehearsed with Lamb the use of the term “biological” when used in psychology. Lamb explained that is often used to describe intact families–that is, to include families with adopted children. McGill then showed the deposition of Loren Marks, one of the D-I’s expert witnesses who had withdrawn earlier in the week. McGill showed Marks insisting that “biological” should be restricted to genetic families (seemingly supporting the argument the Prop 8 families like to make to exclude gay and lesbian parents). Then, in the deposition, McGill used the same documents that Thompson had asked Lamb to review to show that McGill Marks had specifically misinterpreted how underlying studies he was using used the term.

In other words, McGill used Lamb’s presence on the stand to not only review the deposition of one of the withdrawn experts (though the deposition will probably not be entered as evidence), but also to show that the witness in question had made–and then withdrawn–a specious claim based on fraudulent scholarship. McGill went on to have Lamb discredit the work of two other proposed D-I witnesses (who Thompson had perhaps foolishly introduced in his Cross), to call out the problems in their scholarship.

Finally, thankfully (given how long Thompson had taken in his Cross), McGill ended with the following:

McGill: Did the corporation on public broadcasting affect your opinion in this case?

Lamb: No, it did not.

Now, I raise all this not just because of the striking contrast between science and logic and lack thereof. As I said, these guys are both undoubtedly intelligent (much more intelligent than Thompson came off). In addition, I was struck by two details in McGill’s resume (McGill got his JD from Stanford in 2000):

Prior to joining Gibson Dunn, Mr. McGill served as a Bristow Fellow in the Office of the Solicitor General at the U.S. Department of Justice and clerked for the Hon. Joseph M. McLaughlin of the U.S. Court of Appeals for the Second Circuit and the Hon. John G. Roberts, Jr. of the U.S. Court of Appeals for the D.C. Circuit.

That is, early in his career and during the years Monica Goodling was politicizing DOJ, McGill served in the Solicitor General’s office (possibly while Ted Olson was still there) and clerked for John Roberts (while he was still an Appeals Court judge). This guy is, almost certainly, a Republican. One who has worked with the current Chief Justice of the Supreme Court. He has also spent a lot of time (not surprisingly, given this experience) worked on appellate cases.

So go back.

You’ve got two real audiences in this trial. Vaughn Walker. And, ultimately, Anthony Kennedy (and people like McGill’s old boss, John Roberts). One side–Thompson’s side–is using the kind of theater that might make sense in a jury trial, but is unlikely to appeal to the two main members of his audience. And the other is showing how even when the Prop 8 defenders try to use science, they break the rules of both science and logic.

Ultimately, as a number of people pointed out after watching this testimony, this may end up being another Scopes Trial. It may be that the forces of prejudice will, once again, win out over science. But in a head to head confrontation of two lawyers, it sure looks like science is winning the debate this time.

Update: Shoot. I forgot two points. First, both sides have been going back and forth to spin the withdrawal of the D-I expert witnesses. The D-I argue the cameras scared them off, and perhaps let slip a truth when they add “professional fears” into their claim of other fears. The Plaintiffs argue that the experts have withdrawn because they got beat up so badly in their depositions. In a presser on Friday (in which McGill was at the podium along with Boutrous) Boutrous gave McGill credit for–at least–persuading Loren Marks (the guy who backed off his “biological” claim) not to testify. So McGill may be the guy who is ripping apart the science of the so-called scientists the D-Is wanted to call.

Also, McGill specifically said they had gotten more evidence in than they had deemed the minimum necessary. It sounds like they’re quite happy at their success getting both anti-gay propaganda (like the 21 Reasons claims) and details about the withdrawn expert depositions before the Court.

Update: McGill/Marks error fixed.

  1. scribe says:

    This is a lawyer talking….

    The Q & A you cite:

    McGill: Did the corporation on public broadcasting affect your opinion in this case?

    Lamb: No, it did not.

    is an instance of McGill mocking Thompson for being idiotic in his examnation. This is how trial lawyers mock each other and Walker knows it, too.

    As well, this was tying up a loose end that a propagandist could use (if it went untied) to make some bullshit arguments about liberal media. In a contract case I tried, the adversary party made up hours and hours of bullshit in deposition about how the contract wasn’t a contract because it was an agreement. Seriously. So I wound up having to parse semantics with these clowns at deposition and then have the transcript laying open on counsel table while examining them at trial (And a copy on the corner of the witness stand, just to be handy), ready to throw their own words back in their face if they decided bullshitting would be their approach. They knew it, I knew it, and I was able to lead them around by the nose to such an extent that the jury (I later found out) was left to wonder why the defendants were so insistent on trying the case.

    As to McGill’s employment history, particularly with Roberts, I would not put too much stock in it as affecting Roberts’ vote. It might affect Kennedy’s, but I’d think that was unlikely. It will play better, though, than if McGill were a known screaming liberal. The fact is – as I’m sure you know – that the brains in the Republican party are, quietly, just as socially liberal WRT gay issues as anyone else. Ask the Cheneys. The anti-gay rhetoric, posturing and lawmaking are show to keep the stupid, the excitable and the fundies on board so they will be ground troops and vote against their own economic self-interest.

    • Mauimom says:

      will produce a daily re-enactment of the Proposition 8 federal trial and post it on YouTube, starting this week.

      Who’s he casting as Marcy? Julia Roberts?

    • bobInpacifica says:

      That’s great. That thought crossed my mind when the Supreme Court decision came down which probably means that it was such an original thought as I presumed at the time.

  2. scribe says:

    re: withdrawn proposed expert witnesses

    The one side withdrawing an expert witness is always a bad sign – and in a number of ways.

    First, as is obvious, it shows the withdrawing side had a lack of confidence in their witness’ (and, by extension, case).

    But, more damaging, are those instances when the non-withdrawing party tags the proposed-and-withdrawn expert with a subpoena. You cannot compel an expert to provide an opinion, but you can compel him to acknowledge his report and the opinions he stated in it, and you might get away with getting him to tell why they dropped him as an expert. No attorney-client privilege between lawyers and proposed experts, you know. And you can use his deposition to cross-examine him, too.

    Once those opinions are in evidence, then your own expert can be used to slice and dice.

    The law governing this sort of really vicious play varies from place to place and changes from time to time – it’s always controversial. And the federal rules (which limit the geographical scope of subpoenas and how to get a witness from one side of the country into a court on the other side) make for an interesting exercise in lawyering. But getting the other side’s expert to testify that his opinions were the reason they dropped him from testifying can be devastating.

    • emptywheel says:

      The plaintiffs ARE calling one of the withdrawn D-I witnesses, Dr. Tam, one of the proponents of Prop 8. In his deposition, he was pretty horribly repeating anti-gay stereotypes.

      • scribe says:

        Ouch. You can be sure that the plaintiffs have all sorts of nasty questions lined up for him to answer.

        Thinking about it, I can’t remember a single instance of a case where the party whose withdrawn expert was called by the adversary managed to wn the case in the face of that.

        As to the “Scripted questions” angle raised by another commenter, Boies was one of the people credited with developing that method of cross examination into a high art.

        Without going too far into how it’s done (it gets weedy even for us lawyers), assume you have a series of issues you want to prove using the cross-examination of a witness. You will have taken that witness’ deposition and will have other discovery petaning to that witness. You will then, for each question on each separate issue, have a piece of yellow legal paper to which you’ve appended a copy of the relevant pages of the witness’ deposition. On the legal paper you’ll have written your question (And you might have the expected answer, too.). You wind up with a big pile of yellow pages and appended copies of transcripts for each witness.

        You get the witness in front of you, and start going through the pile of questions. You use the same questions at trial as you did during your deposition. If the witness answers the same way as he did during his deposition, he helps prove your case (because you crafted your deposition to do that in advance). If the witness’ answer shades or contradicts his deposition answer (also under oath), you have the page on it right in front of you, and your next question is “during your deposition, do you remember being asked this question and giving this answer” and then you read the transcript Q&A. Either he does not remember, in which event you’ve hurt his credibility by showing his “bad” memory favors him (he’s self-serving), or he’s just got a spotty memory which only helps him, or he corrects himself to hew to the deposition. If you are gutsy and have the wind at your back, you might ask him “Why” he testified differently, but that is the example of asking a question whose answer you don’t know. Ask OJ’s prosecutors about having him put on gloves to see the bad things which can happen when you ask questions whose answrs you don’t already know.

        Properly prepared, you can cruise through a cross-examination in relatively short order. No drama, no shouting, no excitement, and no escape for the witness. Boies is a master at this.

        • emptywheel says:

          Boutrous did “slip” the news on Friday that Boies was in charge of their cross.

          So I expect Teddy and DDay will be treated to an exhibition of precisely what you speak.

        • scribe says:

          Remember the Microsoft antitrust case, with Bill Gates (then at the height of his Bigger-than-a-MOTU status) being deposed on video and looking like a forgetful idiot, saying “I don’t remember” incessantly?

          That was Boies at work, IIRC.

  3. MadDog says:

    I’m guessing that Thompson, like I’ve heard of many other lawyers, had his questions scripted “beforehand” with a presumption that his act was going to be YouTubed to his fawning flock of faithful.

    After the Supremos turned thumbs down on allowing a video transmission of the trial, Thompson was in a dilemma. Not able to improvise (like many professional folks I know), he was stuck with his fantasy fact-free script and the likelihood that his remaining audience (Judge Walker) was not going to applaud.

    Sounds like pretty poor lawyering to me.

  4. earlofhuntingdon says:

    Presumably, Thompson wasn’t playing to the bench so much as to the public, his political bosses’ patrons and the appellate court (via the public perceptions he wants the rational appeals court(s) judges to bear in mind).

    Trials are theater, and this trial is fundamentally political theater, pitting America the hard working and inclusive vs. America the anxious and resentful.

  5. earlofhuntingdon says:

    Sadly, withdrawn “expert” testimony – which is not part of the case and cannot be considered in the court’s judgment – may be more persuasive publicly (and to the appeals courts, at least in the emotional back of their rational minds) than if it were entered into the record and exposed for what it is.

  6. zapkitty says:

    Sounds as if Thompson’s tactics are simply reflecting the case his clients brought him… and his clients.

    He can’t pound on the facts and he can’t pound on the law so he’s got to pound on the table.

    So even if it’s a given that the intended judicial audience will not be impressed by such table-pounding at least this way his clients see him “pressing the attack.”

  7. dosido says:

    I confess I love it when knowledgeable people dissect lawyers and do play by play.

    My two cents is that Thompson is simply trying to stuff words into opposing experts’ mouths in order to slap those same words down. pretty transparent.

    • Teddy Partridge says:

      Thompson has been extremely unsuccessful in either puncturing expert witnesses’ expertise or puncturing their arguments.

  8. aardvark says:

    Almost a year ago I provided expert witnessing to the joint house and senate committee of Kansas on the issue of psychological factors being relevant to the legitimacy of abortion. I was struck by the general disdain for science and the apparent lack of knowledge of the basic rules of logic by the conservative legislators. Now, I was not ill-treated in any respects, but some of the questions I was asked were either inane or absurd. I do recall telling one legislator that I could not make sense of his question.

    A similar sort of scenario is what we are seeing be displayed here. There is no science supporting their position, neither is there any logic. So, what do you do when you have neither science nor logic? You resort to misleading and irrelevant arguments, emotion-provoking assertions, and the like.

    This is off subject but relevant. Isn’t it wonderful to know the judge in the trial of Scott Roeder, who is on trial for murdering George Tiller, is a devout Roman Catholic who solicited support from an anti-abortion group in his bid for re-election? And one of the doors the judge has opened is the possibility of Roeder being convicted on a charge of voluntary manslaughter instead of murder in the first degree.

    Anyway, thanks for the reporting.


    • emptywheel says:

      Interesting–I’d love to hear more about being an expert witness there.

      There WAS an interesting moment in the Lamb testimony where Thompson made a big deal out of a slightly better outcome w/hetero couples than lesbian couples and Lamb kept saying, “it’s not statistically significant” and Thompson kept saying “the heteros turned out better.”

      • masaccio says:

        I have testified as an expert in trials and depositions, and did related work on a legislative project. I agree with aardvark’s perception on state legislators. The ignorance is so awful that you hardly know how to respond.

      • Peterr says:

        Under the control of the GOP, the KS legislature has great disdain for any outside “expert” folks. If the opinions of these experts goes against the prevailing KS GOP opinions, it proves the experts are frauds. If the opinions of these experts confirms what the KS GOP already knows to be true, it proves the experts are unnecessary.

        That said, I too would like to hear more details from aardvark.

        • aardvark says:

          Actually, they brought in Paul McHugh, M.D., from Johns-Hopkins as a principle witness for the anti-side. The essential issue was whether depression, or tendency toward depression was a legitimate reason to provide a late term abortion. As a psychologist, and having known a woman who in her post-partum first strangled her baby and then cut its head off, the whole issue of choice aside, believe depression or proneness there-of, constituted a legitimate diagnosis. Dr. McHugh disagreed.

    • rednecklawyer9 says:

      “I was struck by the general disdain for science and the apparent lack of knowledge of the basic rules of logic by the conservative legislators.”

      … so whereas being gay is no longer considered a mental disorder, perhaps being conservative should be?

  9. eCAHNomics says:

    Thanks to all the FDL experts who are contributing. I’ve been glued to it.

    bmaz, the relevance of all this expert testimony, esp the economics part, came up again in the comments on one of the threads. From a non-lawyer. Could you consider writing a diary about it, explaining what you told me, and going into a bit more detail? It would be useful. I’m sure there are more who have wondered & not asked.

  10. Kelly Canfield says:

    This is fascinating, and I’ve been gripped by FDL coverage of this. Must make an observation though.

    Behind every good lawyer is a good or great paralegal. McGill on redirect with Lamb was very clever. Marks’ previous depo was not the only depo he ever gave I’m sure. And through a technique of “deposition banking” I’m sure a paralegal combed through prior testimony and other works to provide some patterns and trends (under the guidance of the attorney) to Marks’ previous statements/works.

    It’s that painstaking weedy work that helps the attorney destroy and discredit a witness such as Marks. So here’s a shout out to the paralegals!

    And to Marcy – I’m so glad there was a breather where you could consolidate a view like this. It’s a treat to read. :)

  11. Cujo359 says:

    Thanks for the summary, Marcy. I had skipped over most of the live blogs of this trial because there was just so darn much reading involved.

    Re: McGill and his relationship to Justice Roberts, my impression of the latter was that he was a pretty serious mind. Could be mistaken there, but McGill seems to fit my impression of Roberts. I like it that he’s a Republican, or at least travels in those circles. It should help to demonstrate how intellectually bankrupt the opposition is here.

  12. siosal says:

    I have before now avoided this coverage as something akin to the gun control, right to life issues/contreceps that are brandished in our faces to distract us from other underlying realities (our pocketbooks, and theirs). But my idol bmaz said in effect on a recent post that this was a modern day Scopes trial, so I had to see for myself.

    It’s stunning how, before the law, the argument against Proposition 8 is unanswerable. I have to think, however, that the Supreme Court is defendant’s ultimate backstop.

    • bmaz says:

      Idol?? Whoo boy, you need to get out more….

      Seriously, the way Judge Walker has set this up is really something; there just is never this kind of evidentiary record laid on these issues. They are always argued in the abstract and in political terms where ideology, prejudice and dogmatic beliefs can be sold. When it is carved open on a level and neutral playing field; the ugly really shows up.

      • emptywheel says:

        When I said I was learning a lot, I really meant it–and I missed the first history witness entirely who sounded incredibly fascinating. I realized that, though I have gay and lesbian friends with families, I had internalized claims about the importance of daddies. One of the psychologists provided an excellent vocabulary for a lot of struggle that gays and lesbians go through and why that I knew, sort of, but had no vocabulary for. About the only thing I fully anticipated is the description of all teh ways SF would benefit by having gay marriage.

      • siosal says:

        Yes, indeed, idol. I have, it sometimes seems, nothing but professors and attorneys for relatives, so perforce I rebel, but follow ways of viewing and judging. You think well, you write well and above all you write with fiery compassion.

        I’ve got quite a nice life, thank you. But it’s richer for my having run across an attorney worthy of admiration.

      • rednecklawyer9 says:

        I agree that making a factual record is critical. This goes back to when Judge Walker told the lawyer he wanted a trial, with presentation of evidence, rather than just legal argument and debate. That was the beginning of the end for the Prop 8 proponents.

        Although I’m a lawyer (trusts and estates), I’m not a litigator or appellate lawyer — so forgive my ignorance here — but doesn’t SCOTUS have to accept the factual findings of the trial court as correct? In other words, they can review for judicial error (e.g., applying the wrong law or standard of scrutiny, refusing to admit admissible evidence, or admitting inadmissible evidence, etc.), but they cannot retry the case. Thus, Judge Walker’s factual findings (which I am confident he will make) that Prop 8 discriminates, that sexual preference is an immutable characteristic, that same sex parents are just as effective as opposite sex parents, etc. must stand. Correct?

        • bmaz says:

          Appellate courts are required to give great deference to findings of fact below so as to not go behind the record; however, they are not completely powerless in this regard.

    • emptywheel says:


      Keep in mind, that’s straight from the liveblog. I have no apologies for the errors I’ve got in the liveblog because, frankly, they’re minimal considering how much you do get from them.

      • JTMinIA says:

        “Keep in mind, that’s straight from the liveblog.”

        I find the suggestion that getting something “straight” is better than the alternative to be unacceptable!

        Have you learned nothing???

        tee hee

  13. PaulaT says:

    Shorter Republican: Corporations are people too! Gays, not so much.

    Maybe Roberts will let gay marriage go, though, because the corporate masters are going to need all the distractions they can get from financial shenanigans. The Dems are turning into the new anti-abortionists, so overturning Roe v. Wade may not be the presidential politics motivator it once was.

  14. MadDog says:

    OT – Hey EW, while earlybirding this morning, I stumbled across this 4 page WaPo bombshell exclusive article by John Solomon and Carrie Johnson:

    FBI broke law for years in phone record searches

    The FBI illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews. FBI officials issued approvals after the fact to justify their actions.

    E-mails obtained by The Washington Post detail how counterterrorism officials inside FBI headquarters did not follow their own procedures that were put in place to protect civil liberties. The stream of urgent requests for phone records also overwhelmed the FBI communications analysis unit with work that ultimately was not connected to imminent threats…


    …Among those whose phone records were searched improperly were journalists for The Washington Post and the New York Times, according to interviews with government officials…

    There’s some pretty juicy emails like this one (1 page PDF) in the FBI’s Office of General Counsel devising “blanket” NSLs to coverup the lack of real NSLs that had a minimum requirement that they be specifically linked to an open terrorism-related investigation.

    Or this one (2 page PDF) by “Larry, Moe and Curly” signing those blanket NSLs and not remembering they did so.

    Knowing EW a wee bit, I’m guessing this will be a welcome breakfast read. *g*

    All of the documents are here (102 page PDF).

  15. klynn says:

    Half way through your post, I thought, “My goodness, this is just like the Scopes Trial.” And then near the end, you confirmed my thoughts!

    A college prof was an expert on the Scopes Trial. Would enjoy his take on this trial.

    EW, you might enjoy reading The Biology of Ultimate Concern by Theodosius Dobzhansky. Although the book is about the science of evolution from a pro-science theological perspective, the approach Dobzhansky uses would be useful in strategy for analysis of this trial.