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"Get Me Boies!"

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He helped contest this election, beat Microsoft and win a reprieve for Napster, thus becoming a symbol of the Lawyering of America

This is the way David Boies conducts himself when the battle is at its hottest, when losses are mounting and the enemy is preparing for the kill: he sits upright with his gold-framed reading glasses halfway down his nose, a pen and document in hand, while his paralegal, only a few feet away, performs a circus act involving two cell phones, a briefcase and an importunate reporter. Boies' pen makes sharply slanting scratches on a critical legal brief--just one stone in a brutal, driving hail of critical briefs--that must be filed immediately on behalf of Vice President Al Gore. Boies' celebrated Lands' End suit remains neatly buttoned; he wears his omnipresent black running shoes, one crossed over the other. He's not in a quiet conference room at one of the local law offices placed at his disposal but in a Tallahassee, Fla., hotel lobby. As he writes, Boies turns to today's edition of the tag-along journalist who always seems to be hovering nearby and asks, "How do you spell 'auspices'?"

This is the way David Boies, 59, conducts himself in the midst of the biggest case in a professional lifetime of huge cases, with the presidency teetering on the fulcrum of his arguments, with his back not to the wall but nearly through it. He acts as if he were waiting for tea to arrive. "Why should I worry?" he once asked his wife Mary, an accomplished lawyer, during another epic case several years ago. "Because I might lose? That's the worst thing that could happen to me?"

No lawyer in memory has ever won so much by losing. During the entire postelection ordeal, Boies was at its center daily, showing the all-news nation the astonishing gifts that have been thrilling his clients and irritating his more peevish opponents for three decades. Fourteen years ago, the New York Times Magazine certified his status with a cover piece headlined THE WALL STREET LAWYER EVERYONE WANTS. The story referred to "the biggest case of his, or any other corporate lawyer's, career"--a phrase that has since been attached to Boies as frequently as descriptions of his frumpy suits and the slabs of beef he likes to eat--without vegetables and without sauce, thank you.

Back then, the "biggest case" was an arcane smackdown between two huge oil companies, Pennzoil and Texaco. This year his efforts have had direct, determinative impact on the antitrust case against Microsoft, in which he represented the U.S. government; the half-billion-dollar settlement of a suit by his art-buyer clients against the world's two leading art-auction companies, Sotheby's and Christie's; the essential meaning of copyright on the Internet, which he is trying to establish on behalf of the music website Napster; and, supremely, the Tallahassee passion play. Back at the time of the Pennzoil-Texaco match, cbs general counsel George Vradenburg, who a few years earlier hired Boies to defend the network in a huge libel suit brought by General William Westmoreland, said, "Right now, David's got the hot hand."

But if Boies had a hot hand then, what do you call what he's holding today? Vradenburg, now a senior executive with America Online, says, "David gets newly discovered by every generation."

Boies' certifying moment in the mythology of this particular generation came on Nov. 20, one week after he arrived in Florida. Emerging from his first oral arguments before the state supreme court, he stood in a room off the state senate chamber and presided over a press conference with a virtuosity news cameras hadn't seen since General Norman Schwarzkopf's famous briefing at the end of the Gulf War. As Boies carefully articulated the Vice President's positions in a Midwestern rasp--he grew up in small-town Illinois--his hands, a foot or so apart, moved as if he were gently shaking a box to see what was inside.

Calmly walking his audience through the intricacies of the case, Boies introduced Americans to a previously undiscovered species of superstar lawyer. He showed none of the self-regarding intellectual pretension of an Alan Dershowitz or the preening, macho strut of a Johnnie Cochran. Unlike his Democratic colleague Warren Christopher, he did not whine. Unlike his Republican opponent James Baker, he did not bully. Instead he explained--lucidly and persuasively.

Those who have been listening for even a year knew that this was characteristic Boies. During the long Microsoft epic, months before he won the devastating verdict against the company last April, they had heard him discuss the company's monopoly. "This is not about creative legal arguments," he said at one point. "It's not about creative economic arguments. It is about common sense. It is about facts, and it is about what the real world demonstrates." No matter how well you know Boies, these words, the phrasing, the syntax, give no clue to the setting where he is speaking. In court and out, he speaks a brand of English so simple and direct that he sounds like the high school teacher he once thought he would become. It's the way Boies speaks when addressing a judge, the way he speaks in his press conferences, the way he speaks over dinner. "Part of the reason he does so well," says ex-wife Judith Boies, also a lawyer, "is that's really him you're seeing in court."

Mary Boies says her husband approaches the world with such seemingly unaffected calm "because he comes from nonfancy people." His parents were both teachers. In 1954 they packed David, 13, and their three younger children into the family Plymouth and moved from Illinois to California. Although undiagnosed dyslexia had prevented him from learning to read until he was in the third grade, by high school David was a pretty good student, an excellent debater and so proficient a bridge player that he hired himself out as a paid tournament partner for adults trying to rack up master points.

When he enrolled at the University of Redlands and learned that classes consumed only 14 hours a week, Boies set out to fill the extra time. Although he was married with two children by the end of his sophomore year, he piled on more work (teaching journalism at a nearby mental hospital), then more fun (usually card playing) and more extracurriculars (including, George W. Bush would be surprised to learn, the presidency of the campus Young Republicans). He also added more classes, finishing three years' study in two years. He then took off for law school at Northwestern. James Fox Miller, a classmate who is now a prominent Hollywood, Fla., lawyer, remembers listening to Boies speak in a first-year class. "It was mesmerizing," he says. "The first week of law school, and I come home and say to my wife, 'If everyone here is that smart, I'm in trouble.'"

While Boies was at Northwestern, his first marriage broke up. Soon after, he was banished from the law school for engaging in an affair with a professor's wife (she later married him). Boies completed his law degree at Yale and went to work for Cravath, Swaine & Moore, a gilt-edged New York law firm. At Cravath the individual is utterly subordinate to the institution, and all partners, irrespective of how much business they bring in or how successful they are, are paid the same. It was an unlikely place for an oddball like Boies--How many Cravath partners spend vacations at Las Vegas craps tables?--but the firm had the clients and thus the cases that could hold his interest.

During his nearly 30 years at the firm, he managed to inflame associates who couldn't bear his brutal capacity for work ("Would you rather sleep," he would ask, "or win?") and offend partners who resented his freelancing ways. Late in his career with Cravath, Boies was virtually a separate firm within the firm, using outside lawyers rather than Cravath's own soldiers to assist him on big cases.

The stated cause for his leaving was a client conflict involving Boies' wish to represent New York Yankees owner George Steinbrenner in a suit against Major League Baseball, which meant against all its teams. The Atlanta Braves were owned by Time Warner, a longtime and big-time Cravath client. Less than 48 hours after his partners asked him to make a choice, Boies announced his departure. Remarkably, the New York Times put the story on the front page.

Of course, celebrity attracts celebrity. Calvin Klein, Don Imus and Garry Shandling are among Boies' clients. And as you watched him in Florida last month, you could almost sense another flight of A-list names reaching for their phones, saying, "Get me David Boies!"

This is the way Boies seduces the crowd of reporters who follow him from case to case--by making himself, both his person and his arguments, utterly accessible, by never retreating into off-the- record sessions, by being so candid that reporters compete to see if they can ask a question that he won't answer, and by reveling in the byplay of late-night chats with the better-informed reporters, which allow him to test arguments he's thinking of using in court. "In some of these trials," Boies says, "the only other people who care as much about the case as I do are the opposing lawyers and the reporters who are covering it." Through those sometimes long evenings, Boies will surreptitiously drop a plastic stirrer into his jacket pocket as he lifts each Ketel One screwdriver. At any point, he can reach into his pocket, count the stirrers and know when he has had enough.

One day during the Microsoft trial, as a covey of reporters gathered around Boies, one of the chief opposing lawyers, John Warden, wandered by and cracked, "Ask him about his wine cellar." Warden might have suggested the reporters also ask about the gorgeous Georgian home that sits above those 8,000 bottles in Westchester County, N.Y., or about the oceangoing yacht, the Northern California ranch, the high-stakes poker games, the nearly annual chateau-to-chateau bike trips in Burgundy and Bordeaux. If Boies doesn't dress in the usual plumage of a flamboyant trial lawyer, it's only because he doesn't care about clothes. Giving up Cravath and what Boies describes as "the guaranteed 2 1/2 million a year" only allowed him to make more.

Boies charges up to $750 an hour for his time and brings in far larger fees from plaintiffs' class actions--work in which the knives are long, the stakes are high and the fees higher. Firms like Cravath spurn suits like these, which run against the interests of their corporate clients. Firms like Boies, Schiller & Flexner, new enough to be free from such conflicts, do not. From last year's settlement of a case involving price fixing in the vitamin market, Boies, Schiller stands to collect a fee of $40 million; from this year's auction-house case, the firm could take in $25 million. And as you might imagine, all partners at Boies' firm are not created equal.

Boies is free to pursue cases that can at worst be called loss leaders and at best be considered crusades. At Cravath, says Boies' friend and former partner Evan Chesler, "he couldn't help the Justice Department, and he couldn't represent the Vice President." Recruited for the Microsoft case by Justice antitrust chief Joel Klein after experts kept mentioning him to Klein, Boies charged the government only about $40 an hour. He handled the Gore case pro bono, after being recommended to the Vice President by a mutual friend, former Solicitor General Walter Dellinger.

Gore and his top aides say they were delighted with Boies' advocacy. But after his nuclear defeat in Judge N. Sanders Sauls' trial court, and especially after the final Supreme Court ruling, Boies' critics became operatic. Top trial lawyers with no grudge against Boies agreed that he made missteps. At trial, they said, he presented the wrong witnesses. On appeal, he showed a faulty grasp of the jurisdictional issues, and he boxed himself in by arguing that Dec. 12 was a meaningful deadline. Throughout, he spent too much time talking to the cameras and not enough time preparing.

Even some admirers say Boies can be less than straightforward during settlement negotiations, and many complain that he's maddeningly, even irresponsibly hard to reach because of his tendency to do 17 things at once. His partner Robert Silver acknowledges that "life might be easier" if Boies did only 13 things at once. "But," Silver adds, "you wouldn't want to tinker with the psychology" that makes him eager to do 17 things in the first place.

This is the way Boies rehearses for a critical oral argument: he is in a conference room in San Francisco, spending his Sunday afternoon preparing his appeal in the attempt to vacate a crippling lower-court order in the Napster case. Fueled on junk food (in his hierarchy of tastes, food is not far from clothing), he's thinking at times about another case that he will be arguing the same morning by teleconference to a panel of judges in Los Angeles. And for much of the day, virtually up to the last moments before he enters the marbled and muraled courtroom, he is negotiating by cell phone the half-billion-dollar settlement in the Christie's-Sotheby's case.

And then Boies is on his feet, calmly elucidating--without notes, of course--the four essential points of his argument, his hands sometimes shaking the invisible box, his thumbs sometimes making a pair of goalposts. He cites page numbers and percentages and the specific copyright status of Mister Rogers' Neighborhood and My Man Godfrey. Then the sun rises in the west: Boies asks the court's forbearance while he looks up a page number he cannot recall.

The Boies memory is one of the first things cited when people discuss his strengths. What's most impressive about that gift--focused as it may be by the intensified concentration that his dyslexia demands--is Boies' uncanny ability to recall a key fact, legal citation or piece of contradictory testimony at moments of the most intense pressure. Monday, Dec. 11, Boies to Justice Sandra Day O'Connor: "The language you're referring to is at page 268 of the Southern Reporter." The Southern Reporter? When did Boies memorize the Southern freaking Reporter? His wife says his ability to distinguish that which matters from that which doesn't makes it appear that he has a prodigious memory when "all he's really doing is just remembering the important things." Boies puts it this way: "I remember things because they're important."

His other great skills include an extraordinary ability to take complex issues and present them simply, and the capacity in cross-examination to go in whichever direction the witness requires. Jeff Blattner, a Deputy Assistant Attorney General who worked with him on the Microsoft case, calls Boies' ability to improvise in the courtroom "pure jazz." During that trial, when a frustrated Microsoft witness complained that Boies was ambushing him with trick questions, Boies actually promised to raise his hand before he asked another one. And there you see it in the trial transcript, five questions later, following a seemingly innocuous query: "[Counsel raises hand.]" And just 10 lines after that, the bleeding witness is retracting the substance of his sworn deposition. This is more than jazz; this is theater with scenery, lights and full orchestra.

Or maybe it's just another version of a stunt he pulled during a college game of bridge. "David was sitting opposite the dummy," classmate Richard West recalls. "He arranged his cards in his hand, put them facedown on the table and then played them out one by one, as if he knew exactly how my partner and I were going to play the hand. It sort of destroyed our focus."

Boies met Mary McInnis, his third wife, when she was a lawyer on the White House staff in the late '70s and he was taking a sabbatical from Cravath to work with the Senate Antitrust Subcommittee--and, not incidentally, had been divorced from his second wife for five years and was ready for a little order in his life. "It took me about 12 minutes to fall in love with him," she says. "He was smart, good-looking, unmarried--what could be wrong?"

A neighbor in Scarsdale, N.Y., where Boies lived at the time, remembers Boies and his teenage son David III living together in an enormous house, playing host to an awful lot of poker games, never unpacking the groceries they brought home and never straightening the place up. Every few months, they would call a cleaning service and move into a hotel while the house was brought back to some level of normal sanitation. This was during the Cravath years (if only they'd known!), when Boies was making his reputation and law was his life.

This, however, is the way Boies lives today: with Mary and their two teenage children in a long and lovely red-brick mansion that seems as if it has been transplanted from the Virginia Tidewater, poised on a small rise overlooking the undulant comfort of upper Westchester's gentrified farmland. He lives on airplanes that take him to trials all over the country, bring him home for a son's football game or a daughter's school event and then shuttle him back again. He travels each summer on cross-country Jeep trips with some of his six kids, or on available weekends to Vegas or Atlantic City with his wife, some friends, maybe some of his older kids, to hold down his end of a craps table.

Of course, he works too. When he got back to his New York office the day the Supreme Court decided against him, in town for the first time in nearly a month, Boies greeted his partners, picked up the phone and joined a conference call with client Calvin Klein, then another with developer Sheldon Solow. Taking advantage of the time difference, he made a third to the West Coast to talk about a Napster matter. "It's always a workday someplace," he said, almost exhilarated.

"Win or lose, he's the same David," Mary Boies says. As much as he loves reaching the right destination, the journey is quite a kick too, especially when the cases he handles provide, as he says, "important issues, complexity and good lawyers on the other side." That's why, near the end of the long, hard weeks of Bush v. Gore, when sleep was a rumor and calm an impossibility, his younger sister Cathie sent this e-mail to Mary: "Tell him to keep enjoying himself."

--With reporting by Mitch Frank/New York


Cover Date: December 25, 2000



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