"The protest-contest thing didn't have any effect at all," he says. "If the protest had been a little bit longer -- two hours longer -- Palm Beach would have gotten its reports in, okay? This was not a case where anybody ran out of time. We were within six hours of having Miami-Dade counted. We were within 18 or 24 hours of having the entire state recounted. We didn't run out of time. The real cleavage in the United States Supreme Court was between the justices that said, 'Hey! Send it back, let 'em try!' and the five who said, 'Ooooh, no!' The reason the five-member majority stopped the vote counting on Saturday, before they'd even had the argument, was because they knew as well as we did that between Saturday and Monday, which was the argument, the votes would be counted! It would be done! It would be over!"
And what would be wrong with that? Boies takes a big swallow of wine, then allows a grin to spread slowly across his face. "Well, I don't know," he says, laughing. "You gotta ask them. Everybody after the fact wants to find something they can go back and look at. But none of the decisions that were made along the way could have affected any one of those five votes on the United States Supreme Court."
The man at the next table snaps another photo. Boies doesn't seem to notice the flash, or that his chocolate ice cream is melting and dripping over the sides of its bowl. "Who knows?" he asks, leaning close again. "Maybe there's an argument that would have persuaded them. Or one of them. Which was all you needed. But I couldn't think of it then."
The next morning, the ninth-floor hallway of the Moynihan U.S. Courthouse on Pearl Street is jammed with dark-suited lawyers who've arrived a half-hour early for a hearing in the auction-house price-fixing case. "Boies is in the building," stage-whispers an excited junior partner. "I didn't see him, but I was passing through the lobby and I heard . . . that voice."
Today's hearing is straightforward. Christie's and Sotheby's, having pleaded guilty to colluding to fix commission prices, have been negotiating their punishment with the Department of Justice and with Boies, the lead counsel representing the 130,000 customers who've joined a class-action suit. A settlement of $512 million has been hammered out, and now the parties are asking Judge Lewis Kaplan to approve its terms.
Boies points to a series of large exhibits on an easel, plain black type on white poster board, as he outlines the deal. "Perhaps it's not surprising," Boies says with a small smile, "that plaintiffs thought the figure should be somewhat higher, and defendants somewhat lower. We believe this agreement is a very attractive package for the class as well as fair to the auction houses."
He's brief and lucid, to the point of underwhelming. By the time he's finished speaking, there's a collective shrug, as if to say, Of course, who wouldn't understand that?
The moment the next lawyer begins speaking is when Boies's gift becomes manifest. A Sotheby's lawyer tries to make a minor point, but within three sentences he's lost his way. The judge is interrupting. The lawyer for Christie's, who's on the same side as the guy from Sotheby's, is rising, red-faced, to agree with Boies.
But the lawyers really sit up straight when the discussion turns to the formula for splitting up the legal fees. Fifty-three firms will receive varying percentages of the pot. At the outset of the case, twenty law firms submitted bids to become lead counsel, each naming a target number. If the final settlement squeezed less than that amount out of Christie's and Sotheby's, the lead counsel would be paid nothing and be responsible for court costs. The lead counsel would reap 25 percent of any damages above the projected floor. The average bid envisioned a settlement of $130 million. Boies, the winner, set a target of $405 million.
No wonder the discussion is veering into a testimonial to Boies. "I never in my fondest dreams believed the defendants would be forced to pay $512 million," says Fred Furth, who was interim lead counsel until Boies won the bidding. "It is a most outstanding result. All I ask is that we receive an appropriate fee as well, Your Honor. Because we feel like we teed up the ball for the new Tiger Woods of the bar." Boies belly-laughs at the compliment. He's poised to collect nearly $27 million from the case.
The auction-house hearing is a reminder of just how deeply embedded business values have become in the mainstream: The cool Boies, a corporate litigator, is the current legal hero, instead of a traditionally hot, at least nominally populist defense lawyer like F. Lee Bailey or Johnnie Cochran.
Boies doesn't have time to linger. The Napster decision looms; when it goes against Boies, he delves into another appeal. He'd wanted to break new ground in Internet copyright law, but is likely going to have to settle for breathing temporary life into Napster so it could cut deals with major record companies. Boies also has upcoming depositions on behalf of Sheldon Solow, the real-estate developer.
But first he's off to California and a meeting at Apple -- the company signed up as a client after Boies vanquished Microsoft. Then his first trip to the Sunshine State since George W. Bush became president. Boies represents Florida Power & Light, one of the out-of-state suppliers of electricity to browned-out California. "We're negotiating long-term contracts so there are no more shortages," Boies says. And if FP&L should need to sue California, it will be well armed.
"You take on cases as they come along," Boies says, his voice brimming with joyful-warrior spirit. "Sometimes they come along after you've won, sometimes they come along after you've lost, and sometimes they come along after you've been rained out. But I don't like to lose. Ever."