washingtonpost.com  > Columns > Book Report

David Boies, Representing

By Emily Bazelon,
a Soros justice fellow and a senior editor at Legal Affairs magazine
Wednesday, November 17, 2004; Page C04

COURTING JUSTICE

From NY Yankees v. Major League Baseball to Bush v. Gore, 1997-2000

By David Boies

_____Arts & Living_____
The Books section has reviews as well as area literary events.
The Washington Post Book Club gives access to discounts, discussions and special events.

Miramax. 490 pp. $25.95

David Boies, one of the country's most successful and sought-after trial lawyers, started playing cards for money in high school. He still gambles a few times a year in Las Vegas, where he prefers craps and its offer of an even-money bet with the house. "Sensibly played, even at high stakes, dice is no more expensive than most forms of entertainment," Boies writes, "and there is always the chance for a big payoff." The comparison to litigation is too good to pass up, and quickly follows. "It is necessary to manage your exposure while taking risks," Boies instructs. "It is critical to be patient and not get carried away." Boies is a manager of risk par excellence, both for his clients and for himself. In 1997, his partners at Cravath, Swaine & Moore decided the Wall Street firm could no longer represent a client Boies had acquired a year earlier, because of the objections of Gerald Levin, the CEO of Time Warner, a longtime major client. What to do -- drop Cravath, where Boies had practiced for 30 years, or drop the new client, who just happened to be George Steinbrenner and the Yankees?

As Boies tells it, he chose Steinbrenner and striking out on his own in six minutes, the amount of time it took him to walk from his room to the craps table at Caesars Palace in Las Vegas. Within days, the "superstar lawyer," as the New York Times called him at the time (Boies is not shy about sharing accolades), had distinguished partners and additional big-fish clients. Today, his firm has 180 lawyers, annual per-partner profits of more than $1 million a year, and a reputation for chewing up some young associates while turning others into stars. Any solo venture is a risk. Boies's wasn't much of one.

The same could be said for the lawyer's new memoir, "Courting Justice." Perched in the director's seat for some of the biggest civil cases of the last 15 years -- including the Justice Department's suit against Microsoft for antitrust law violations and Vice President Al Gore's effort to contest the results of the 2000 election in Florida -- Boies has plenty of stories worth telling. But if his decision to write a book pays off, it's not because he reveals anything new about the history he helped make. Boies is too discreet a lawyer to go for the scoop. Nor does he offer deep insights about the larger-than-life characters he has worked with, or about himself. Steinbrenner is "as direct a man as I know," Gore is not "prepared to sacrifice principle to win," and Boies is twice-divorced and thrice-married by Page 18.

Instead, the strength of "Courting Justice" lies in the skill with which Boies gives pointers on advocacy and sketches the upper reaches of the American bar. Whenever his prose breaks into numbered lists or bullet points, it's time to pay attention. This is the chance to learn how to negotiate a $500 million settlement, skewer a witness, or construct an ironclad argument -- skills worth having whether or not you've ever contemplated law school.

One of the insights to be gleaned from Boies's account is the difference between a winning legal argument and a politically appealing one. When he arrived in Tallahassee, Fla., to advise the Gore legal team in November 2000, Boies was itching to subpoena the e-mails sent by Florida Secretary of State Katherine Harris and to cross-examine her about her contacts with the Bush campaign and her discussions with George and Jeb Bush. The Gore team rejected the idea as too hardball and controversial; Boies still regrets that he failed to push harder for it.

Boies's best description of the legal profession involves the class-action suit that followed the 1990s federal investigation into price-fixing by Christie's and Sotheby's, the world's largest auction houses. Boies is the rare attorney who represents both plaintiffs and defendants, and he rightly credits his fellow plaintiff's lawyers for putting time and money into meritorious claims with uncertain payoffs. At the same time, he's not afraid to rip the firms for taking a fat cut of settlements that they obtain with little risk or effort. To Boies's delight, the presiding judge in the Christie's-Sotheby's suit, Lewis Kaplan, decided to ask firms to bid for the position of lead plaintiff's counsel. The winner would be the firm that promised the highest winnings to its class-action clients -- before factoring in a fee for itself. Boies bid $405 million, far more than most of his competitors. He went on to win a $512 million settlement, and a $26 million fee, by playing Christie's and Sotheby's against each other. It's one of the biggest bets that Boies made, and the one with the most significant payoff. What matters isn't the satisfaction the lawyer reaped, the money he made, or even the restitution paid to hundreds of cheated auction-house clients. The success of Judge Kaplan's bidding experiment has the power to improve the way law is practiced. That makes it the gamble in "Courting Justice" most worth making.


© 2004 The Washington Post Company