All is glossy and bright inside the fourteenth-floor federal courtroom. The marble floors, the walnut paneling, everything seems buffed shiny as a new pair of Prada loafers.
The crowd, standing room only, thrums with eager anticipation. Three sketch artists bump brushes trying to capture the scene. In the front row of spectators is Fran Lebowitz, former author and current insider wit-about-town. Next to her sits Marci Klein, the long blonde powerhouse producer from Saturday Night Live. Today she’s appearing in the role of supportive daughter – to Calvin Klein, who sits a few feet ahead at the plaintiff’s table.
As always, Calvin is inside the velvet ropes. Occasionally he peeks over his shoulder at his business partner and adversary, Linda Wachner, the titan in huge red-framed glasses who runs Warnaco, the behemoth apparel company that manufactures and distributes Klein’s designs. Last year, Klein found out that Warnaco was stacking his precious name next to SUV-size packs of Huggies in giant warehouse stores. Alleging that his valuable brand was being irreparably sullied in such company and that Warnaco was altering jean designs without his permission, Klein sued for his freedom. This promises to be a gossipy battle, with millions of dollars and prodigious egos at stake.
Then Calvin Klein leans across the railing to get close to Marci and Fran, and lets all the tension out of the room with a single whisper. “The deal’s done,” Klein says.
“We’re settling.” Then he approaches Wachner, bends to kiss her, and says, “When all is said and done – ” ” – we’re still partners!” Wachner says, completing his sentence and returning the kiss.
“Although he appears to enjoy and relate to different people, my view is that he’s very insular and tribal,” says a friend.
Now it’s on to the tough issues. “Let’s go to Balthazar to celebrate!” Lebowitz says.
“No, let’s go to Odeon!” Marci says. “It’s closer and the food’s better!”
But the discussion halts and all heads turn when the true man-of-the-moment ambles within range. It’s David Boies,
the superlawyer who humbled Bill Gates and changed Microsoft forever, who collected $512 million in damages for customers ripped off by Christie’s and Sotheby’s, and who became a cultural hero in the war to recount Florida’s presidential ballots. The presence of Boies as Klein’s trial lawyer is a major reason why all of a sudden there is no trial.
“I’m, uh, not going to breakfast,” Boies says. His thinning brown hair sticks out at unpredictable lengths and angles. A plastic watch is strapped on top of Boies’s coat sleeve. He’s wearing his courtroom uniform: dark-blue suit and white button-down shirt with blue stripes, both from Lands’ End; navy knit tie with squared-off bottom; nondescript black sneakers. One of Klein’s cuffs costs more than all of what Boies is wearing.
Yet Boies is the cool guy here. Calvin Klein proudly introduces Boies to his daughter. Lebowitz can’t get to Boies fast enough. Downstairs, exiting the courthouse, Klein draws a couple of reporters, but the cameras flock to Boies. He’s not carrying a litigator’s bag or a legal pad, or wearing a cell phone or a beeper or an overcoat. Boies wants it to look like the only weapon he needs against the elements and his opponents is his brain.
He stands in the slush on Worth Street calmly waiting for CNN to go live. It’s cold, and when there’s a short delay, Boies takes the Lands’ End sweater that’s slung over his shoulders fifties-coed-style and pulls it over his head, crookedly, so one end of his shirt collar juts out.
The interview finished, Boies waits as Jonathan Schiller, one of his partners, tries to locate their limo. A CNN cameraman bounces over. “I love you, man!” he shouts, grabbing Boies’s right hand and arm and pumping it as Boies laughs. “I’m a Republican, but you’re great! You’re the best!”
Someone suggests hopping on the IRT. It’s just two stops to Balthazar (Lebowitz won that case). “Yeah,” says Boies, who’s got nothing against the subway. “But how many stops to Armonk? I’m going back to work.”
David Boies hates losing at anything, be it a rec-room Ping-Pong match with Garry Shandling or late-night poker with takeover artist Carl Icahn and financier Leon Black. Walking out of court after the Calvin Klein truce, Boies smiles and says all the right things to the press about the deal’s serving his client’s best interests. Then, in a quiet aside, Boies says, “But I’m a trial guy.” He wants to win.
As of last week, however, when a federal appeals court decisively rejected Boies’s argument that Napster is an innocent bit of software enjoyed by pure-hearted music lovers, Boies is on an extremely rare losing streak – precisely at the moment he’s more famous and revered than ever.
Boies retains the abiding affection of even his losing clients. “David Boies is the real thing,” Al Gore says. “He masters the most complex subjects at lightning speed and then communicates the essential points in completely clear and totally accessible language. He’s a mighty good friend to have on top of all that.”
Boies’s best friend, lawyer James Fox Miller, maintains that Boies is untroubled by second thoughts about Florida. “He doesn’t dwell on anything,” Jimmy Miller says. “And in a losing situation, the guy showed the world that he’s the standard. His client lost. David didn’t lose. He won. Big-time.”
A month away from his 60th birthday, Boies enjoys fame, personal wealth, and invaluable professional independence. Yet spend time talking with Boies about the Florida mess and it’s clear that he’s nagged by an uneasy feeling: His inflated celebrity came from a case he lost. And Boies can barely restrain his anger at the United States Supreme Court.
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.
Boies learned early that granting access was the surest way to bank media goodwill – that and flattering the media’s sense of its own importance. “Other than the lawyers on the other side, the people in the press that really cover a case know more about it, think more about it, worry more about it, care more about it than anyone else,” Boies says. “They are the people that will have the best information. They are the people that are likely to have the insights you didn’t see, the idea you didn’t think of, the fact you didn’t know. That’s why you go out and drink with them.”
Jimmy Miller, the Florida divorce lawyer who has been Boies’s best friend since they met in law school in 1962, sees more than a little calculation at work. He and Boies just made a trip to Las Vegas with a 60 Minutes crew tagging along. “I asked David, ‘Why do you want to get filmed shooting crap?’ and he says, ‘I don’t want to ever say no to the press,’ ” Miller says. “Have you ever seen anybody have better press than David? When you get as successful and famous as he is, there’s always someone out to cut your nuts off. No one is out to cut his nuts off.”
Boies is indeed good company, charming and easygoing. That is not to say he reveals much. And Boies doesn’t do introspection. By dessert, my neck is stiff with tension, as if I’ve been pushing heavy furniture around.
“Although he always appears to enjoy and relate to different people, my view is that he is very insular and tribal,” Miller says. “He doesn’t have nearly the number of friends you would think, people he really cares about.”
I mention the ecstatic Republican cameraman and ask Boies what he makes of his new rock-star status. “I think what happened in Florida touched people in a way that public events often don’t,” Boies says. “I think what it was about was the people’s right to vote and have those votes counted. And if you think back through our history, an awful lot of what we’ve fought over, struggled for, is the right of people to vote. That’s what the civil-rights movement was, at its bottom, about. At the fundamental level, democracy means a government in which the people vote. Lincoln’s words ‘Government of the people, by the people, and for the people’ I think resonate at an emotional, as well as an intellectual, level. I’ve had a lot of Republicans, just like that guy out in the street, stop me and say, ‘I’m still glad Bush won, but you were right, the votes should have been counted.’ I think that that experience has touched a chord in people that isn’t very close to the surface.”
True, I say, but cable viewers weren’t responding to a still picture of the Constitution. They were reacting to him. Boies stares at the floor. “Well,” he says, “part of my presentation, or style” – a self-deprecating laugh – “is a style that tries not to get in the way of the argument. When you’re in front of a jury, what you want that jury to do is focus on the argument, not on you. You try to not get in the way of the message. And I think that particularly with this particular message, where I think the message really struck people, I think a style of presentation that simply let the message speak for itself, and didn’t try to build it, didn’t try to accompany it with partisan attacks, but just sort of stuck to the fundamental point that was at issue, I think helped people relate both to the issue and, in an ironic way, to the messenger. Because they began to associate me with the message.”
“Who knows? Maybe there’s an argument that would have persuaded them. But I couldn’t think of it then.”
Boies has long said that if he weren’t a lawyer he’d be a history teacher like his father. His choice of the law, he says, was purely pragmatic – the shortest route to a graduate degree, making up for the two years he’d taken off between high school and college. A marriage to his teenage girlfriend, followed by the birth of two children by the time he was 21, motivated him to speed through the University of Redlands while also teaching journalism at a mental hospital. In 1963, after his first year at Northwestern’s law school, Boies was divorced. He soon fell in love with a fellow law student, Judith Daynard; inconveniently, she happened to be married to a Northwestern law professor. The school eagerly helped Boies transfer to Yale. He married Daynard three years later and had twin sons; they divorced in the early seventies. Boies and his first two wives remain on good terms; all parties blame Boies’s work obsession for the divorces. He met Mary McInnis in Washington when she was working as assistant director of domestic policy in the Carter White House; they were married in 1982, after she’d become a vice-president at CBS in New York. He and Mary also have two children.
Mary Boies, now in private practice, seems to have a lower tolerance than her husband for his status as a media darling. When the latest batch of photographers arrive to shoot David at home, Mary demands they return to the entryway and wipe up every drop of snow they’ve tracked in from the driveway.
In November, within twelve hours of arriving in Florida, Boies had supplanted campaign chairman William Daley and Warren Christopher as Gore’s public face. “For him to be our spokesman,” Lieberman says, explaining the spin, “it put the case into the system of justice, not in the political system anymore.” Bush lawyers were less charitable in assessing the effect: They dubbed the media adoration “the COB,” the Cult of Boies.
Michael Carvin, one of Bush’s main lawyers, claims Boies’s overexposure helped the Republican strategy for the final showdown. “I was surprised and gratified that he was on the Sunday-morning talk shows before his Supreme Court argument,” Carvin says. “We watched them and got a sense of what he was going to say in court the next day. I also think, as hardworking as he is, it certainly hurt his prep time. Maybe he might have anticipated a couple of the questions at argument if he’d had a little bit more time to prepare.”
Boies scoffs at the suggestion he tipped his hand. “They didn’t have to watch me on the Sunday shows! All they had to do was read my argument on November 20” – in the first Florida Supreme Court hearing – “or any of my press statements!” he says. “If anybody needed to watch the Sunday shows to figure out what we were arguing, it was somebody who had not been in Florida.”
On the afternoon of Saturday, December 9, Boies was in a Tallahassee sports bar and grill. The day before, he’d won a key victory in the Florida Supreme Court; the recounts were revived. Boies was eating a burger and fries and drinking a vodka and grapefruit juice when MSNBC flashed the news that the U.S. Supreme Court had ordered an immediate halt to the counting, at least until the top court could hear arguments already scheduled for Monday. Boies was stunned. “It took CNN about 60 seconds more to put it on,” he says. “And during that 60 seconds, I found it hard to believe that MSNBC was right.”
Still, Boies was so confident his work was finished that he flew home to Armonk; Harvard professor Laurence Tribe was in a Watergate hotel room in Washington preparing to argue for Gore on Monday. Boies agreed with the choice. “Larry has an intimate knowledge of constitutional law and of equal-protection cases that will always be substantially greater than mine,” Boies says. He had some personal knowledge of Tribe’s talents in front of the Supreme Court: In 1987, Boies, representing Texaco, faced Tribe, representing Pennzoil. The Supreme Court voted 9-0 in favor of Pennzoil.
“David is a brilliant lawyer,” Tribe says. “But I don’t know that being in an appellate context and answering questions that are fired at him by judges, and anticipating what’s really going on in the questioner’s head, if it’s a smart judge, is David’s forte. Especially in the Supreme Court, the questions tend to represent the tip of some kind of iceberg. If you simply answer straightforwardly the thing that’s been asked without keeping in mind what it is they’re really trying to deal with, you will very often say something that may sound okay to an outside observer, but doesn’t advance your cause very much.”
Both men were shocked when, late Saturday, Gore picked Boies over Tribe. The conventional analysis has been that Boies was more fluent in the details of the Florida cases that the Gore team thought the Supreme Court would dissect. “Even with the stay, we all thought we had a chance in the Supreme Court hearing,” says Ron Klain, Gore’s chief legal strategist. “We knew the chance was below 50 percent but well above zero.”
Boies was more pessimistic. “A litigator always spots himself a 5 percent minimum chance,” he says, “but it wasn’t much more than that.” So, Boies says, public relations was high on his agenda. “There was a sense that five justices of the Supreme Court had already made up their minds that they were not going to permit the votes to be counted in Florida,” Boies says, his cadence slowing to a crawl. “If that was the case, the function of the Supreme Court argument was to reveal to the American people and to history whether that decision had a basis or not. There was a view that, in part because of my familiarity with the Florida record and the Florida cases, that I was the right person to do that.”
When Tribe is told of Boies’s thinking, he’s silent for a long time. “Wow,” he finally manages. “Sometimes you put some of your emphasis on providing ammunition for what will end up being the dissenters, who might get vindicated by history. But if there’s any trade-off at all between clarifying the historical record and trying to find that slight chink in the wall for O’Connor or Kennedy, I would always go for the latter. History will write itself.”
Tribe admits he’s not an objective critic, but he says the same weaknesses that hurt Boies thirteen years earlier surfaced again in December. “There was the suggestion by Breyer of sending the case back so that the Florida court could reformulate what was going on, and proceed to count until the 18th,” Tribe says, pointing out one tiny opening. “If that had been pursued, either by other justices or by David, in terms of, ‘Yes, the 18th is really the deadline after all, not the 12th’ – then I might have had a feeling of greater hope at the end than I did.”
Boies dismisses all the hindsight. The second-guessing about delaying Katherine Harris’s certification of Bush as the winner, thereby sacrificing time that could have been spent on the “contest phase”; about the Gore camp’s decision to hurry through its argument before Florida judge N. Sanders Sauls because it assumed Sauls was a lost cause; about Boies’s supposed blindness to the ultimately decisive equal-protection issue – none of it, in Boies’s view, is relevant.
“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.”