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Beginnings: The Breakthrough Moment

David Boies, Lawyer

"I grew up wanting to be a lawyer because I saw Perry Mason on television."

David Boies outside court after meeting with a judge to discuss General William Westmoreland's decision to withdraw his $120 million libel suit against CBS.  

There were two things I was going to do. And I didn’t know which one. I was either going to be an American-history teacher like my father was, or I was going to be a lawyer.

I grew up wanting to be a lawyer because I saw Perry Mason on television and read a couple of books, and it sounded like an exciting profession, a profession where you could really help people accomplish something but have a good time doing it too. On the other hand, I always liked teaching. Even when I went to law school, when I got out of law school I thought I would teach.

Probably around the time that I finally decided what I was going to do was try cases and practice law as opposed to primarily teach was when I tried a case in California — I was about nine years out of law school. And I had an opportunity to try a very large anti-trust case in California. But I got the opportunity only because the first three people they wanted to try the case turned them down. And if any one of them had taken the assignment successfully, I probably wouldn’t have tried the case, and if I hadn’t maybe I would have gone primarily into teaching.

I had tried other cases before. I had tried civil-rights cases in the South in the 1960s and I had worked with other lawyers on large commercial cases, but never as the lead lawyer. Indeed, the opportunity to be the lead lawyer in such a large case was unusual at the time, and I got it primarily because as I was the fourth choice. But the process of that case and marshaling the evidence and presenting the case and dealing with the jury were very exciting to me. And I was good at it. I think people choose what they do for a variety of reasons, but almost always one component is that not only do they like it but they think they’re going to be good at it. And I saw the potential for using the law to accomplish things — to change society, to adapt the rules that we all have to live by, to make things a little bit more the way they ought to be instead of the way they are. Of course, winning was clearly part of the satisfaction, too. The best case is clearly the case where you’re on the right side and you win. But the second-best case is the case where you’re on the right side and you lose. Because part of the process of the way law develops is by people taking cases that they take too early, where you aren’t able to win. But by trying, maybe you move the law a little bit.

The next breakthrough was when I represented CBS and Mike Wallace in a libel suit brought by General William Westmoreland, who was an American commander in Vietnam. I had never handled a libel case before — indeed, I’d only handled one First Amendment case. But there is an advantage in that — it teaches you how to build that case from the ground up. I didn’t know all the cases, so I sat down and I read every defamation case that was ever decided by the United States Supreme Court. And I read every defamation case ever decided by the Second Circuit Court of Appeals. When you do that, ideas occur.

One of the things that you come to appreciate when you try a lot of jury trials is how effective the jury is at certain things. People make fun of juries — they’re people picked off the street, they don’t have any knowledge, particularly in their own case. They’re the people who can afford to take a few months out of their lives. But you put 12 people together and the wisdom that comes out of that is greater than the sum of the parts. Of course, there’s some things the jury does not do very well. Juries have a really hard time, as judges do, dealing with complicated economic, technological issues. But they are very good at telling who’s telling the truth. There’s something about them, that common wisdom, that time after time helps a jury figure out who’s telling the truth and who’s not. And what you have to do as a trial lawyer, somehow you have to be able to formulate your case so that you can bring it down to questions and answers that the other side is either going to have to give you to lie. If they lie, the jury is going to catch them. But you’ve got to simplify it. You’ve got to organize it. You’ve got to marshal the evidence so that you bring it down to the kind of question that the jury’s good at—“Is this person telling the truth?”