Courting Justice: From New York Yankees vs. Major League Baseball to Bush vs. Gore, 1997-2000, by David Boies. Miramax, 416 pages, $25.95.
When titans of industry, attorneys general of the United States and Democratic Presidential candidates needed to lawyer up during the last 10 years, they all turned to David Boies. Son of a Midwestern high-school history and journalism teacher and a product of the public-school system, Mr. Boies has done better than snag a ringside seat for the last decade’s biggest and most complex legal battles-he’s donned the gloves himself.
But this isn’t a vanity book. The bits of personal information are mostly en passant remarks about his vacations. Mr. Boies is a prodigious loafer. To hear him tell it, he’s made most of his major decisions and plotted cross-examinations on beaches in the Caribbean, driving cross-country with his sons in jeeps, biking in Provence, playing craps in Vegas.
No surprise, then, that Mr. Boies started life as a slacker. After high school in California (he actually spent his teen years in Compton), he married young and began adult life as a bookkeeper and card player. His first wife persuaded him to go to college, which led to an interest in civil-rights history and then law school.
He went on to marry twice more, and begat a pair of children with each wife. Two of his wives, and three of his children, are lawyers.
His career was pretty typical for a bright young man in a white-shoe firm-until he decided, after more than two decades at Cravath, Swaine and Moore, to hang out his own shingle. He was on vacation in a Vegas hotel, heading to a craps table to indulge his quadrennial gambling habit, when he got a call from one of his Cravath partners. Mr. Boies had agreed to represent Yankees owner George Steinbrenner in litigation against Major League Baseball. The Cravath partner was calling to point out a conflict: Gerald Levin, chief executive of Time Warner, another Cravath client, objected to Mr. Boies representing the Yankees, since Ted Turner, a Time executive and also the owner of the Atlanta Braves, would be a defendant. Mr. Boies had to choose between his partnership and Mr. Steinbrenner.
“It took me about six minutes to travel from my room to the craps table. By the time I got there, there was only one solution that seemed acceptable-I would have to leave Cravath.”
Within days, he set up shop inside his wife Mary’s boutique Westchester law firm. It was soon obvious that his clients were hogging every phone line and fax machine in the office, not to mention his wife’s paralegals and secretaries. Today, his firm, called Boies, Schiller and Flexner, has 180 lawyers and offices in 12 cities.
Courting Justice is most engaging when Mr. Boies describes his one-on-one encounters with powerful men in deposition rooms and in the witness box.
Hired to defend CBS against Gen. William Westmoreland’s libel suit, Mr. Boies carefully plotted how to gently shred the respected war hero’s credibility. He spent a whole day in court delicately setting General Westmoreland up, questioning him “with all the patience I could muster.” Eventually, he hung General Westmoreland on his own contradictory deposition statements, leading the general to dismiss his own case.
The new Boies firm immediately faced impressive adversaries, including the Republican Party, W.R. Grace, Bill Gates and Microsoft, and a scion of one of the richest families in Central America.
Mr. Boies’ glee when he verbally corners the powerful is palpable. In the chapter titled “Conversations with Bill Gates,” he shares transcript tidbits from his joust with the richest man in America.
In late 1996, Microsoft began a campaign to make its browser triumphant over Netscape’s Navigator. The U.S. Justice Department believed Microsoft was strong-arming customers and suppliers into using its browser, a violation of the Sherman Act. Justice called in Mr. Boies, partly because of his involvement representing I.B.M. in a monopoly case years earlier.
The deposition of Mr. Gates is highly entertaining, for the insight it provides into both his own personality and Mr. Boies’ cunning and sheer joy in prodding his adversary into a verbal trap of his own making.
The deposition took place in a nondescript conference room in Seattle, with both men, Mr. Boies notes (apropos of nothing), wearing inexpensive suits. The witness was rather hostile: “I began my examination by saying good afternoon to the witness. For the first time in more than thirty years of talking depositions, I got no response.”
Mr. Boies forged ahead in chilly terrain. E-mailed memos between Mr. Gates and his top executives made clear that Mr. Gates was in on the scheme to crush the competing browser. Using the tycoon’s own words, Mr. Boies soon reduced Mr. Gates to evasion, and eventually pushed him into embracing logic less convincing than the Clintonian parsing of the word “is.” After quoting from e-mails about Microsoft’s plans for “pissing on” non-Microsoft systems, Mr. Boies soon had Mr. Gates arguing that the term “pissing on” might not, in fact, imply a particularly negative act.
Mr. Boies is best known for representing Al Gore against George W. Bush in the contested Florida election. Mr. Boies, who had previously steered clear of political causes (except for a stint in Mississippi working on civil rights in the 1960’s), writes that he took the case because of its historical significance. “If I had not become a lawyer, I would have been an American history teacher like my father.”
He also says he’s always had a hard time saying “no.” And who could refuse the besieged Democratic official in Broward County who called and said, “We need someone like you who’s willing and able to fight as hard for our side as the Republicans are fighting for theirs.”
As he boarded the plane for Florida, his wife warned him to “try to keep a low profile” so as not to attract the enduring wrath of the New York Post and The Wall Street Journal. That proved impossible when the Gore advisors decided his was a better public face for their cause than the lugubrious Warren Christopher.
When Mr. Boies arrived in Tallahassee on Nov. 14, campaign advisors-already preparing to be conciliatory for the greater good-“patiently explained that I was ignoring ‘the political realities.'” A Times front-page article was tacked to the wall with this sentence underlined in red: “By next weekend, a group of scholars and senior politicians interviewed this weekend agreed, the presidential race of 2000 must be resolved, without recourse to the courts.”
Perhaps the saddest part of the book is the few paragraphs on the questions he would have put to Florida Secretary of State Katherine Harris on the stand. “I could easily envision how I would proceed. Describe all of your contacts with representatives of the Bush campaign …. It could have been a great cross-examination, but it was not to be.” Rather than go straight to court, subpoena Ms. Harris and force a recount, the Gore camp decided it would be “provocative and confrontational” to subpoena the Florida secretary of state.
Mr. Boies counseled otherwise, but not-as he now writes-strenuously enough. “In retrospect … I should have pushed the issue harder. Lawyers must be prepared to tell a client what needs to be done even (indeed, particularly) where the client does not want to do it.”
The rest of the 50-odd-page description of the case is uncharacteristically dry and dull, and we all know that the outcome had nothing to do with Florida law anyway. Though he has no fresh insight into the Supreme Court’s power grab, Mr. Boies-who knows the ins and outs of the case cold-considers the decision to be extralegal, purely partisan and a blot on the highest court’s reputation.
Overall, Mr. Boies explains his greatest cases clearly and amusingly, in layman’s terms, dispensing with layers of legalese to get at the real issues-which is surely what makes him a great lawyer.
“A trial lawyer’s success,” he writes, “depends on his or her ability to be clear, simple and accurate at the same time. A lack of simplicity and clarity prevents a lawyer from communicating effectively. A lack of accuracy will destroy a lawyer’s most important asset, credibility.”
David Boies has danced countless times on the verbal tightrope between clarity and credibility. His flawless balance makes Courting Justice essential reading for students of law, and good reading for armchair news consumers who like the backstory behind the headlines.
Nina Burleigh’s next book, on the scientist who founded Egyptology, will be published by Morrow in 2006.
