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Boies Will Be Boies


Couched in Boies's detached, lawyerly on the one hand, on the other hands is a slashing denunciation of the justice's 5-4 vote as among the biggest embarrassments in American judicial history. "You had Dred Scott," Boies says, mulling other examples of bad judgment. "Forty-some years later you had Plessy v. Ferguson. Forty or fifty years later you have the Japanese internment case. I don't know whether this case is like that. It's like that in some ways. It's unlike those cases in a lot of ways. In fact, you can make an argument that this decision is a worse decision than those in the sense that those decisions, you could argue, were almost compelled by the social and political realities of their time. And that the Supreme Court, to have given a different decision, would have endangered rather than preserved its position in our society. Whereas this instance, it certainly could have avoided this case. Avoided doing what it did. So I think there is a sense in which this case was a matter of choice, not a matter of being swept along with social and political currents at the time."

It's hard to dispute Boies's analysis. But is it possible he underestimated the hardball politics at work on the Supreme Court? "I don't know," he says, the only time his delivery seems off-balance. "I don't know what . . . I . . . misjudged."

Boies enters the library at a gallop, proffering a Costco-size plastic jug. "Want a pretzel?" he says, then doubles back toward the kitchen and opens the refrigerator. "How about a soda?"

As brick Georgian hillside manses go, the Boies homestead in Armonk is cozy, decorated primarily with snapshots from family trips to Cancun and the Greek isles. Every inch of library shelf space is crammed -- with bulky bound volumes containing the court papers from Boies's greatest hits, but also dozens of war histories, with a concentration of Churchill-related books, and paperbacks ranging from Henry Miller to James Patterson. There's a small, battered gold trophy, inscribed to Boies from Gen. Omar Bradley. In 1955, Bradley came to Los Angeles to honor paperboys who'd sold bonds during the Korean War. A contest was held to pick one paperboy who'd accept on behalf of all the others. Boies, a 14-year-old working for the Los Angeles Examiner, won -- not because he sold the most bonds but because he delivered the best spiel selling the bonds.

Boies grew up primarily in Los Angeles, the oldest of five children of a high-school American-history teacher dad and an elementary-school-teacher mom. But he was born in Illinois farm country and routinely draws complimentary comparisons to Honest Abe. "I don't want to seem like I'm inhaling here," says Senator Joseph Lieberman, "but David has a Lincolnesque quality, even physically. When I first met him, I was surprised he was about my height. On TV, you had the impression he was taller."

Boies directed his Supreme Court argument as much at "history and the American people" as at the justices.

Boies cracks open a diet Stewart's root beer and settles into a high-backed gray chair. On a table in front of us is a fax relating to Boies's next trip into the spotlight, the California power crisis. It's a sunny weekday afternoon and Boies is wearing a blue-and-red plaid flannel shirt above saggy blue sweatpants and well-worn New Balance sneakers. When he's not on trial or on the road, he usually works from an office upstairs, instead of his firm's offices in Armonk or midtown.

Not that Boies allowed himself to be bound by the traditional rules even during his nearly 30 years at old-school Cravath, Swaine & Moore. A partner at 31, Boies established his brilliance beating back an antitrust suit against IBM in 1981; his bravura performance knocking down Gen. William Westmoreland's libel case against CBS in 1985 made Boies a public figure; and a 1986 New York Times Magazine cover story certified his stardom. Boies abruptly quit Cravath in 1997, ostensibly out of loyalty to George Steinbrenner, whom he'd taken on as a client in a lawsuit against Major League Baseball. Cravath had ties to other big-league teams, though, and was not happy.

Much of the shape of Boies, Schiller & Flexner has been sculpted on the fly. "It has not been a rationally planned enterprise," Boies says. "When I left Cravath, I thought I would practice with six, eight, ten, twelve lawyers. Stay small and lean and flexible. But it's grown like Topsy." The firm is now up to 100 lawyers. "We want to do litigation where we can push the law," he says. "We want to do litigation where we think we're on the right side. We want to do litigation that's challenging. And other than that, we don't have any real goals."

Boies says he's not value-neutral in choosing cases, but defining his standards for "the right side," even with hypothetical examples, isn't easy.

The Nazis marching in Skokie? "Probably not," Boies says. "Everybody's got a right to have a lawyer. Not everybody's got a right to have me."

Gun manufacturers? "I think it's unlikely we would find it interesting to take on the defense of an individual gun manufacturer, unless it raised some larger issue," he says. "On the other hand, I can certainly see issues where you've had government regulation or potentially punitive measures being applied to an entire industry. We might think that was the kind of case we'd want to be in."

General Electric, trying to avoid paying to scoop its PCBs out of the Hudson River? "I'd have to take a look at that," Boies says. "I think there is a real danger of looking backwards and penalizing companies for activity that at the time it was undertaken was viewed either neutrally or in some cases very positively."

Boies typically bills at $750 an hour. So the Department of Justice (Boies worked for about $40 an hour against Microsoft) and Gore (free) got immense bargains. Of course, the marketing benefit to Boies and his firm is incalculable. The election case, however, also appealed to Boies's well-closeted liberal instincts. The one time his passion is clearly on the surface is when Boies mentions traveling to Mississippi during the summers of 1966 and 1967, after graduating from Yale Law School. "I was representing civil-rights workers in court, advising them on demonstrations, participating in demonstrations," Boies says. "I lost an awful lot of cases I should have won."

Before November, Boies's only other partisan period was a brief, late-seventies stint on Ted Kennedy's staff -- replacing future Supreme Court justice Stephen Breyer. But Boies is not apolitical. He's donated money to every race run by his friend Mark Green, whom Boies met in Washington in 1977, and he'll be a star attraction at fund-raisers for Green's current mayoral race. "I'm basically a Democrat," Boies says, "but I'm not that active a Democrat. And there are Republicans that I support."

He tries to maintain the nothing-personal, strictly-business tone he stuck to when friends urged him to treat the Microsoft case as a crusade. Then, Boies likened himself to a dispassionate doctor. "That's not a bad analogy for the election case, too," Boies says. "This may have been a patient I cared about a little more." How deeply Boies mourns Gore's loss becomes apparent only slowly.

For most of his three decades in new York, Boies has eaten at the same handful of restaurants, none of them economy-class. "It's either La Caravelle, Chin Chin, Patsy's for Italian food, Sparks, or the Post House for steaks," he says. "The only restaurant I've lost is Christ Cella."

Today Boies met with his client Ernst & Young; joined a conference call on Napster's circuit-court appeal; mulled anti-trust strategy with Philip Morris officials; took depositions from MSG executives tangled in litigation with the Yankees, Boies's client, over TV contracts; and prepped for tomorrow's auction-house-case hearing.

So he's earned a good drink. Boies takes a back-corner table at Sparks and peruses the wine list slowly. This is due partly to connoisseurship and partly to his dyslexia. "I have a moderately severe case," he says. "I didn't read until I was in third grade. I still mispronounce a lot of words. I don't spell. I can't learn foreign languages. One of the reasons that I don't use notes is that I can't look down and read and get it without spending a little time. I have six children, two of whom have dyslexia equivalent to mine."

Fawning profiles always mention Boies's ability to instantly cite page numbers in legal reference books when answering a judge's query. The brutally hardworking Boies is irritated by portrayals of him as a Rain Man of jurisprudence. "It's not because I've memorized every case and every page in history," Boies says. "It's because I've concentrated on what I think are the important cases, and the important parts of those cases. If you're good at what you do and have done your homework, you should have a focused idea of what's really going to come up."

He orders a 1995 Château Gruaud-Larose for $80 (he has an extensive collection of French wine in his home cellar, and is descended from French Huguenots who decided to Anglicize the surname DuBois sometime before arriving in America in the 1600s -- "though how adding an e Anglicized it I don't understand," he says). For dinner, he orders the same thing every time. "The filet mignon, medium," Boies tells the waiter, his voice rising politely but firmly, "just plain and dry. Nothing else on the plate. No parsley, no juice, no butter, nothing." He does, however, sprinkle salt on his rolls.

Out of the corner of my eye, I see a white-haired, thickset man at the next table rise and face us. He brings his hands up to his face and a camera flashes. No "Excuse me, Mr. Boies, do you mind if I . . ." Just a quick snapshot and the man returns to his dinner. Boies is public property now.

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