David Boies stood in the lobby of the Leon County Circuit Courthouse, a phalanx of microphones pointed at him, a team of attorneys surrounding him, a horde of reporters hanging on his every word. He was out front and center to answer questions–and for once in his long, blockbuster career, the news wasn’t good.
He had lost a verdict. And not just lost it: He had gotten trounced. In his rejection of Vice President Al Gore’s contest of the Presidential election in the Leon County Circuit Court of Florida, Judge N. Sanders Sauls issued a verdict of stunning force, ruling against Mr. Boies’ team on every single point and leaving, according to many pundits, very little room for appeal.
To call it “decisive” would be an understatement–the ruling left the Democratic team’s chances for victory slimmer than Calista Flockhart after the New York Marathon.
In the shark tank that is the New York legal community, this was the instant of retribution–that glorious moment of Schadenfreude when a big takedown not only occurs, but occurs live on television, beamed into the living rooms and law offices of every gloating city lawyer who had watched with green eyes as Mr. Boies had ascended–and ascended and ascended–to the top of the New York legal heap.
Hadn’t Mr. Boies set himself up? Hadn’t he said, speaking of Nassau County, “If I can’t win that argument, I’m going to give up the practice of law.”
And hadn’t he given an inordinate amount of face time to every reporter, every TV talking head who had shoved a tape recorder or microphone his way? Time that might have been better spent lining up stronger witnesses, getting answers for the justices’ questions, throwing off the political hacks who attempted to tailor his legal case to meet their public relations needs?
Hadn’t he been Elvis long enough?
Except there was no redemption moment. The sharks continue to swim, ever alert, not yet seeing any Boies blood in the water and keeping their sharp jaws to themselves.
“I think David Boies is a great lawyer … I love his style.” This from Lawrence Mandelker, chairman of the City Bar Association Election Law Committee and lawyer to the Republican State Committee. He’s the guy who fought to keep John McCain off the primary ballot in New York–no fan of open-ended democracy, nor of hard-charging Democrats.
But, Mr. Mandelker, he lost? Yes, but “I think the ability to make the kind of record he needed was hampered by the time constraint under which they were proceeding.”
These are lawyers being lawyers–parsing every word, hedging their bets, smirking over getting another one over on a reporter, strategizing for the day when (should they be so lucky) they might face Mr. Boies in court.
And it’s also this: The big Florida fight is bigger than Mr. Boies. It’s more than one court’s decision (even the U.S. Supreme Court), one judge’s arrogance or one state official’s audacity. It’s even bigger than Al Gore and George W. Bush.
It’s the best damned show on earth, and there’s not a litigator in New York who isn’t eating it for breakfast, lunch and dinner.
For the lawyers, it’s a wet dream come true.
By the time World War II started up, the Greatest Generation was prepared for it. Warfare, sacrifice, patriotism–it had been ingrained in them, despite the ravages of the Great Depression, the lingering residue of World War I, the rising stakes in an emerging nation.
The Lamest Generation: It has the Florida re-count.
This is the generation that’s been trained to go to war in courtrooms. From the Pentagon Papers to the Scarsdale diet doctor to O.J. to the Starr Report, it has written its history in legalese.
And Florida these days abounds in legalese. In those Florida courthouses plays out a war of words, of patents, allusion, rhythm, technicalities, rhetoric. And if you want to get heavy about it, there’s some basic legal concepts to contend with: voting rights, constitutional issues, democracy . Unfolding before America’s eyes is a metaphorical, intellectual, esoteric battle–the only kind that this over-privileged, over-educated, juvenile generation weaned on Barbarians at the Gate and Chris Matthews can really understand.
It’s the red team versus the blue team, just like at sleepaway camp. Only in this battle, straight-shooting has been replaced by “straight talking,” and delivering a closing argument without notes is perhaps the ultimate act of bravery. In short, it is a litigators’ war, and their simple-talking, note-shunning hero is David Boies.
For the rest of the country, this war is a bore. Enough about dimpled chads, styluses, black marks, rubber!
But for New York’s lawyer class, it doesn’t get any better than this.
“It’s the Super Bowl of litigation,” declared Jim Zirin of Brown & Wood.
“This has almost been like a mini-version of the civil rights movement,” said John Siegal, senior counsel at Proskauer Rose and a former assistant to Mayor David Dinkins.
“These proceedings have turned me into a couch potato!” said Marty London, a partner at Paul, Weiss, Rifkind, Wharton & Garrison. “I’m very pleased that this was a weekend trial, and it happened to be a weekend in which I didn’t have a lot of chores. When it’s all said and done, it’s the trial lawyers that are playing a role in the selection of the next President.”
Validation. Those Internet-mogul bullies who skipped grad school can gloat all they want. The conservatives can take their pot shots at trial lawyers. The Nasdaq may be down, but the future of the Presidency is in the court’s hands!
“These issues go to the heart of why we went to law school, or what we believe in,” said Morton Fry, a partner at Stairs, Dillenbeck, Finley & Rendon and co-head of New York Lawyers for Gore-Lieberman. “You may think many lawyers don’t have belief systems, but a lot of people went into the law because they believed it was part of what makes this society special. We don’t solve our matters by guns and overthrows. We solve them in heated disputes.”
Ah, yes, the New York way. Off to the courts we go.
And who’s this generation’s Audie Murphy? Why, it’s David Boies.
Familiar enough to the white-shoe Manhattan scene that lawyers at Skadden Arps and Sullivan & Cromwell can identify with him, he’s also enough of a maverick to maintain a slightly distanced and awe-inspiring mystique. He is a combination of wholesome All-American (grew up in Southern California, attended public school and a B-level college), renegade (after 30 years, he left a $2-million-a-year partnership at Cravath, Swaine & Moore), and genius (Bill Gates will never be the same).
Of course, he worked his way up to Yale Law (despite dyslexia that went undiagnosed for years) and made partner at Cravath, Swaine & Moore after six years, instead of the usual eight. But he remained an iconoclast and a bit of an oddball–as everyone now knows, eschewing Brooks Brothers and Barneys for suits from Sears. But unhappy with things at Cravath, Mr. Boies picked up his marbles and retreated to bucolic Armonk, in Westchester County, where he runs a thriving practice and still manages to find time for his family (which includes a current wife, two ex-wives and six children, two from each marriage). Along the way, he racked up impressive scores in cases involving Pennzoil and Texaco, I.B.M., CBS, Microsoft, Napster, Christie’s and Sotheby’s and, it appears, Bridgestone-Firestone.
Among New York’s lawyers, it doesn’t get any better than that.
“He’s the Mark McGwire of the legal profession,” whistled Larry Lorber, a partner at Proskauer Rose.
And he’s made “The Show.”
Yes, the fans and critics are lined up, watching Mr. Boies and the rest of the Florida legal team–Democrats more than Republicans, this being New York, home of Senator Hillary Rodham Clinton. And the reviews are largely favorable.
Speaking of both Mr. Boies and Harvard Law professor Laurence Tribe, who argued the Gore case before the U.S. Supreme Court, Ted Sorensen, former special counsel and speechwriter for John F. Kennedy, said: “I have been favorably impressed with what I have seen of the work of both [men]. I think they made their points clearly, authoritatively and articulately. Mr. Boies has demonstrated a versatile knowledge of election law, including local statutes.”
Mr. Sorensen had insisted–as Floyd Abrams of Cahill, Gordon and Reindel put it–that he did not feel comfortable “second-guessing the guys on the front line.” Said Mr. Sorensen: “Once I was out there on the firing line and found myself second- guessed, and I took a vow that if I was ever in a position to be interviewed … I wouldn’t do it to them.”
Robert Giuffra, a Sullivan & Cromwell litigation partner, acknowledged that “it’s easy to be a Monday-morning quarterback when you’re sitting in your office in New York.”
But who could resist?
“Frankly, I think lawyers should stay in the courtroom,” said John Callagy, litigation partner at Kelley, Drye & Warren. “Boies is too out-front; he’s a flackmeister, an apologist, he spins the story. They’re blurring distinction between legal process and political process to the extent they let lawyers become spokesmen for a cause.”
Barry Ostrager, co-head of litigation at Simpson, Thacher & Bartlett, agreed. After Judge Sauls ruled against Mr. Boies, Mr. Ostrager gloated: “I guess preparation is important. I guess press conferences are not evidence.”
Mr. Abrams was more subtle: “The prime difficulty with the amount of exposure Mr. Boies has had out of court is that judges don’t like it. Even in highly publicized cases like this one, one runs real risks in being public spokesman for one’s position because it has a tendency to irritate judges and to make them think you don’t have them in the front of your mind all the time. This case required enormous preparation and direction. I just don’t believe you can do everything. It’s one thing to make an occasional statement. But I do think the amount of time devoted to public relations, critically important as it is, must have interfered with trial-preparation time and all the other things that counsel had to do.”
Referring to one of the Democrats’ witnesses, he added: “I’m surprised the Democrats did not come up with a more effective witness, given that they did have a good deal of time.”
Richard Emery, of Emery, Cuti, Brinckerhoff & Abady, who fought to get Mr. McCain put on the ballot in New York’s Republican primary, saw other flaws in the case. For one, he said, the Gore team let politics affect their legal choices. By counting votes versus exposing possible voter fraud in Seminole County–a move that would have had the Democrats excluding votes rather than taking the feel-good position of counting every vote–the Gore team picked the wrong case. And that violated the cardinal rule of New York law: “Legal strategy should be dictated by what can win,” Mr. Emery said.
Unlike Mr. Boies, said Mr. Emery, “We won [our] case. We put McCain on the ballot for the primary because we found that the Bush team had faked petition signatures in the Bronx, and they caved when we got that proof.”
But this game is not being played in the Bronx, or anywhere else in New York, so the fundamentals of play are altogether different. In this case, said Laura Handman, partner at Davis Wright Tremaine, “there’s no way to separate the legal from the political.”
But Ms. Handman had her own problem with the case: “The other decision that seemed odd was to go to the Florida Supreme Court most recently to try to hurry up the judge in Leon County, which was unlikely to be successful and may have gotten the judge somewhat miffed.”
But the many lawyers interviewed by The Observer dissected the difficulties of the case, rather than Mr. Boies, pointing out that he faced nearly insurmountable odds. And still does. “Had he won [before Judge Sauls], he would have been bronzed in platinum,” said Larry Lorber, a partner at Proskauer Rose.
And lest this be construed as merely Mr. Boies’ turn in Moot Court, the Republicans got their share of second-guessing.
“The initial decision by the Bush campaign, not to seek any re-counts, was a blunder,” said Mr. Siegal of Proskauer Rose. “It put them into a defensive crouch, with no real affirmative case to prosecute. It makes them look terrible–that they’re now saying that there should be over a million ballots considered in the contest when they didn’t ask for a single manual re-count anywhere in the state. I think they were all bollixed up between being haughty conservatives who took the position that one shouldn’t litigate, and being street-fighting, aggressive Republicans doing what it takes to win on the other, and I think they got a slow start.”
But these were quibbles. For there was universal agreement that there was a winner in the Great Florida Battle, and that it won big. And that’s the law itself. Said former Governor Mario Cuomo, now a partner at Willkie, Farr & Gallagher: “It is the legal system that makes this democracy workable. The politics defers to the judicial, not the other way around. The judicial branch, as designed, overrules the political branch.”
And that makes every lawyer a hero. The case, said Robert Giuffra, litigator at Sullivan & Cromwell, has attracted “some of the best lawyers in the country. The A team.” There’s “massive talent going in on both sides,” proclaimed John Feerick, dean of Fordham Law School.
And their bravery? Tom Spargo, a Republican hand-count observer and a witness in the Leon County Circuit trial, described the intensity of the atmosphere on Sunday: “It’s like walking to the gallows– it was terrifying.”
The sharks are mesmerized.
All praise the lawyers!