v. Goliath: The Trials of David Boies

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9780375421136: v. Goliath: The Trials of David Boies

In a society ever more obsessed with legal drama, David Boies, the star of a thousand press conferences, stands head and shoulders above the rest. The most prominent trial lawyer in the United States, Boies was catapulted to international prominence when he represented Al Gore before the Supreme Court in Bush v. Gore, in the aftermath of the 2000 presidential election. But well before the word “chad” entered our lexicon, Boies had participated in a string of headline-making cases, representing the Justice Department against Microsoft, CBS against General Westmoreland, and Napster against the recording industry. Brash, reckless, and prideful, he is also charming, charismatic, unerringly articulate in the courtroom, and supremely comfortable in the public eye. He is the epitome of the celebrity attorney and a peerless practitioner of the art of law.

Legal journalist Karen Donovan, herself a lawyer, had unprecedented access to Boies for nearly two years, accompanying him on his high-profile cases and recording the workings of his brilliant yet erratic mind. She gives us a scintillating chronicle of the legal dramas in which Boies has played a crucial role. And drawing on extensive interviews with his
former colleagues, she provides insightful analyses of his strategies, his skills, his effectiveness, his penchant for personal renown, and his flaws.

The story of a singularly gifted lawyer——his ambition, judgment, and sense of justice——v. Goliath is also an illuminating
examination of a profession that, increasingly, confuses ideals and celebrity.

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About the Author:

Karen Donovan is a former editor and reporter at the National Law Journal. Her work has appeared in Wired, Business Week, and The New York Times. Formerly a practicing attorney, she recently completed the Knight-Bagehot Fellowship Program in Economics and Business Journalism at Columbia University’s Graduate School of Journalism. She lives in Brooklyn, New York.

Excerpt. Reprinted by permission. All rights reserved.:

ONE
“Once it’s over, it’s over.”

10:25 a.m., December 10, 2000, Westchester County Airport

“Well, I have twenty-four hours,” David Boies said, finally settling into his seat in the Learjet that was idling on the tarmac.

The statement begged for a question, and I obliged. “To do what?” I asked from the seat across from him. “To learn the constitutional law,” Boies replied matter-of-factly, his steely blue eyes staring ahead.

On this morning, Day 33 of the postelection fight between Vice President Al Gore and George W. Bush, we were headed toward Washington, D.C., for the final court appointment that would decide who won the presidency in 2000. Each of the previous thirty-two days had presented a roller-coaster ride, swinging wildly often by the hour, for the opponents, and for the nation, which woke up the morning of November 7 to discover that the presidential race was too close to call. The state of Florida hung in the balance, with Gore pressing for recounts of the ballots and Bush opposing him at every turn.

As Boies boarded the plane, I mentioned that I had caught part of his ABC appearance on This Week with Sam Donaldson and Cokie Roberts before leaving my Brooklyn apartment. He told me that was one of four Sunday shows he had taped, beginning at six-thirty that morning.

Boies pulled out the draft of a legal brief that was due at four o’clock that afternoon at the U.S. Supreme Court; the case was scheduled for argument at eleven a.m. the next day. In all likelihood, the argument would be Gore’s last chance to gain the White House.

By ten-thirty, we were airborne. As Boies began to mark up the faxed pages in his hand, I noted the time that the draft brief had arrived at his home in Armonk—9:59 a.m. He must have grabbed it just before leaving, along with the box of sourdough pretzels and blue duffel bag (which contained another box of pretzels in addition to a cheap blue suit, a blue striped shirt, and a blue knit tie).

On this ride, I wouldn’t have the opportunity to ask many questions. But I didn’t need much explanation. It was clear that Boies would be arguing for Gore the next morning instead of Laurence Tribe, the Harvard Law School professor considered one of the country’s most renowned constitutional scholars. Over the course of the Bush/Gore fight, Tribe had argued twice against the Republican claim that the Florida recounts violated the Constitution, on one of those occasions at the U.S. Supreme Court. Nominally, Boies was the Gore team’s man in the Florida courts. But of course he was much more than that—he was their hero.

So it seemed clear to me that Boies would take center stage for the final act, even though he had told reporters gathered for a hastily convened

Saturday-afternoon press conference in Tallahassee the day before that he was “going home” to Armonk. The U.S. Supreme Court, in a bitter 5–4 split between the justices, had just voted to halt manual recounts across Florida and to hear Bush’s case on Monday. Boies’s work in the case was ostensibly finished.

On the plane ride home to Armonk that Saturday, I had asked Boies whether he wanted to argue the case. “You always want to do an interesting case like that,” he said, but added: “I would frankly rather not do it, given Larry’s prior involvement. Larry will do a fine job.” If asked, he said, he would advise the Gore team to stick with Tribe. “There’s no reason to replace him, and if they were to ask me to do it, that’s what I’d tell them.”

Still, as we parted company at the Westchester airport in the chilly December wind, he told me to call him later that night—and later that night I got a brief message to meet him the next morning back at the Westchester private-plane terminal.

Now, as we taxied down the runway, I took a stab at asking why

we were headed to D.C. after all. Did he suggest that Tribe do the argument? “Yeah, I did suggest that,” he said. And what did they say in response? “That they wanted me to do it,” he said. Did they say anything else? “Nope.”

The conversation was not untypical. Boies was loquacious before the TV cameras, holding forth like Abe Lincoln, point by point, in perfect paragraphs, on his reasons why it was important to “count every vote.” But he was often taciturn in private. He would offer me only a word or two when I became the least bit inquisitive. Boies was concentrating on the brief, and on the twenty-four hours he had to learn the constitutional law.

I had been this route before with Boies. In late August 2000, the federal appeals court in San Francisco set a schedule for oral arguments that would determine the fate of his client, Napster, the Internet company under assault by the entire record industry for allowing users to copy music for free online. The date for the Napster argument was October 2, 2000. “Oh, I have another argument scheduled for that day!” Boies enthused to me over his cell phone one day in late August, as he was headed by car to meet his law school friend Jimmy Miller for a weekend of gambling in Atlantic City.

Boies seemed thrilled by the Houdini-like prospect of flying from one federal court to another, all in a day. As the date approached, the Pasadena court alleviated some of the difficulty (and the drama?) by providing a video hookup at the San Francisco courthouse where the Napster case would be argued. That allowed Boies to address the judges in Pasadena, then take the elevator upstairs to appear before more cameras at the eleven a.m. arguments in the Napster case, an event that would be broadcast live over the Internet and the cable channels. I ventured to ask him why he had not tried to reschedule the Pasadena case. He told me he didn’t like to ask courts to do that sort of thing.

The weekend prior to the arguments, Boies prepared for both cases in a windowless conference room at Fenwick & West, the law firm that Napster had first hired for its defense and that had played second fiddle since the company hired Boies. Sometime after seven o’clock that Sunday night, Laurence Pulgram, one of Fenwick’s lead lawyers on the case, poked his head in to ask how things were going and say good night. “What’s your first line?” Pulgram asked, more than a little hesitant. Boies, who doesn’t rehearse or “moot” his arguments even with his closest partners, put Pulgram off. “Oh, I don’t know,” he demurred. “But there’s still time,” he said with a little laugh.

Boies thrives on tackling insuperable odds, making it look easy, traveling light. He keeps counsel with no one, as far as I can tell. Associates and partners working with him pull cases, draft memos, and answer his questions, but they rarely have a clue about what arguments he will present to a court until they, with the rest of us, watch him at the podium for the main event.

“You don’t understand,” his assistant Patrick Dennis once told me, when I was trying to track Boies down as he shuttled from D.C. to New York and back in a single day. “David Boies is Superman.”

Now, as the taxi made its way from Reagan National Airport to the Watergate Hotel on December 10, about a day before the presidential election would be argued, I asked Boies about the logistics of the task ahead of him in the case of Bush v. Gore.

In every case, it is Boies’s custom to read all the relevant legal decisions. Every single one. And usually, there is a point in any argument when he will reference a passage in a case and offer the court the exact location on the given page where they might find it. How many cases will you have to read? “Well, I don’t know. I don’t know,” he said. He was yawning again. He was clearly tired.

Boies disappeared into the Watergate, to locate the suite occupied by the man he had ousted, Laurence Tribe, and begin preparing for the arguments. Warren Christopher, the former secretary of state tapped by the Gore campaign for the postelection fight, announced on CNN that Gore had made the call to replace Tribe with Boies because the issues before the Supreme Court were so factually entwined with what happened before the Florida courts. No one—not Christopher, nor the reporters, who called in for a backgrounder with the Gore team later that day—paused to question the choice. When the news went out that Boies would argue Gore’s final Supreme Court appeal, no one stopped to consider the obvious—Gore’s last-minute choice of Boies over Tribe. It was a monumentally bad idea. That Boies jumped at the chance to do it was beyond hubris.

5:30 p.m., December 13, 2000, Albany International Airport

The U.S. Supreme Court issued the decision in Bush’s favor at ten p.m. on December 12. By then, Boies was already back at home in Armonk. The next morning, after one last conference call with Gore and his legal team—the call in which they made the final decision to concede the election to Bush—Boies headed for Albany on the Learjet, back to business as usual.

At midday, Boies had arrived in Albany in relative anonymity, but by the dinner hour, when we headed home, camera crews and reporters from the local network affiliates had the Albany airport staked out, waiting to get reaction from Boies about the fateful Supreme Court decision. Boies greeted them, saying that the highest court in the land had spoken, that we all must accept that, whether we agreed with the decision or not. How were the vice president’s spirits? Boies didn’t want to comment on that. The vice president would address the American people that night,...

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