Boies v. Bush v. Gore

Boies v. Bush v. Gore

By

Published in: 2008 New York Metro Super Lawyers — September 2008

David Boies looks back at a brilliant career... and a Supreme Court decision that changed a nation

It's a cruel irony that David Boies, one of the most celebrated trial lawyers of his generation, may best be remembered for his biggest defeat—as Al Gore's lawyer in Bush v. Gore, the U.S. Supreme Court case that stopped the recount in Florida and handed the 2000 presidential election to George W. Bush.

Boies, famous for his calm, used to say, "Why should I worry? Because I might lose? That's the worst thing that could happen to me?" No more. There are things worse than losing a case.

"I lost the whole fucking country," he says today with a grimace.

Boies spent his first 13 years in tiny Marengo, Ill. "On the way to Iowa on U.S. Highway 20," he says. He was the oldest of five children whose parents were school teachers. Boies describes himself as "kind of normal," but dyslexic. The condition was largely unknown in the 1940s, but nobody cared much that he didn't learn to read until he was in third grade. "There was no academic pressure, and reading was not a particularly highly prized talent for little boys," Boies says. "Boys who did well in school weren't all that popular." His parents were patient and supportive, he says, and "I was pretty good at thinking and talking, so I could get by."

His first job was a paper route at age 10—he can still fold and throw a newspaper—and his first passion, once he learned to read well enough, was Erle Stanley Gardner's series of Perry Mason books. "They were better than the TV series," Boies recalls. "The Perry Mason in those books was a more realistic, grittier lawyer than Raymond Burr on TV."

In 1954, his father uprooted the family and moved to Southern California. They settled in Compton, then moved to Fullerton, where Boies became more interested in parties and cars than academics. He stopped delivering newspapers after discovering he was a whiz at bridge, with a natural facility for counting cards and creating a playing strategy for each hand. Soon adults were paying him for "playing lessons" and to accompany them to tournaments.

When he graduated from high school, he had little interest in college. He worked construction, bought a 1950 Ford, married his high school sweetheart and started a family. But when he realized there were easier ways to make a living than construction, he decided to go to college for a two-year teacher certification course—California was growing rapidly and needed teachers desperately—that would allow him to become a history teacher like his dad.

At the University of Redlands in San Bernardino, he was surprised at how much he liked college, and how well he did. Redlands had a program that allowed students to start law school after three years—the first year of law school would count as their senior year of college—and Boies entered the program and enrolled at Northwestern's law school with the intention of becoming a law school professor back in California. In Evanston, his marriage broke up and he had an affair with another student who happened to be the wife of one of his law professors. Boies transferred to Yale, studied economics for a year, then finished his last year of law school. "I saw a few areas where economics was already beginning to play a role in law, like antitrust," he says. "But the economics the courts were using was pretty primitive, and in some cases just flat wrong. I thought there was a lot of potential application of economics in the law."

In the autumn of 1966, Boies took a job at Cravath Swaine & Moore, partly because his classmates told him it was the best firm in the country, but mostly because he thought a couple of years' experience at a big Manhattan firm would help him get a job teaching law in California. He remarried, to the Northwestern law student, went into litigation—"the Perry Mason thing," he says—and started teaching part-time at NYU Law School.

Cravath was a good fit for him, he says, because it was more of a meritocracy than most big firms. "I was not your typical New York City big-firm associate," he says. "I didn't really dress the same. I didn't have a lot of three-piece suits. I had a suit, but ..." Rather than dress like a Wall Street lawyer, Boies dressed like the head of the Chamber of Commerce in Marengo, Ill. He still does. On a recent day, sitting in the conference room of his Midtown offices, Boies was asked if everything he was wearing, except his black Merrell sneakers, was from Lands' End. He looked at his suit and his button-down shirt, nodded as he ticked off garments, smiled. "Yeah," he said, delighted. The cheap watch, the haphazard haircut and the mail-order suits have all become part of his "brand," he jokes.

His first two years at Cravath, Boies took advantage of the firm's pro bono program and spent several weeks each summer in Mississippi representing civil rights workers and African Americans trying to register to vote. It was his first time in court. "It suited me," he recalls. "I liked the idea that I was accomplishing something. I liked the idea of the conflict, the challenge, the use of verbal and intellectual skills to search for truth. I loved cross-examination—particularly of people trying to lie."

When Stanford offered him a job on the law faculty, his mentor at Cravath, the renowned litigator Tom Barr, persuaded Boies to stay and help with the defense in a big case: the government's antitrust action against IBM. Boies agreed to stay for two more years. Then two more. And two more after that. He made partner in 1972, at age 31, but the IBM case was not decided until 1981, after five years at trial. The result was a resounding victory for IBM and a national profile for Boies in what Time called "the case of the century."

After his second marriage fell apart, he took time off from Cravath to work for two years with the Senate Antitrust Committee and the Senate Judiciary Committee in Washington, where he met his current wife, Mary McInnis, who is now a lawyer with a small but thriving practice in Bedford, not far from the couple's 8,000-square-foot brick Georgian mansion in Westchester County. Boies became what The New York Times Magazine, in a 1986 cover story, called "The Wall Street Lawyer Everyone Wants." He represented Texaco in its epic battle with Pennzoil; the Federal Deposit Insurance Corp. against Michael Milken and Drexel Burnham Lambert in the recovery of more than $1 billion for investors with junk-bond losses; and CBS after Gen. William Westmoreland sued the network for defamation for reporting that he made misleading statements about U.S. military prospects during the Vietnam War.

One of Boies' many Perry Mason moments came during his cross-examination of the general. Westmoreland, thinking that Boies was trying to get him to admit to using the phrase "the light at the end of the tunnel," denied ever saying it. Boies whipped out a cablegram using that exact phrase and signed by Westmoreland.

Westmoreland dropped the lawsuit mid-trial.

Boies cheerfully compares that sort of cross-examination—painting a witness into a corner—to what's called a "squeeze play" in bridge, when a player leaves an opponent with no winning cards. "I've often said that litigation is a lot like bridge, and negotiations are a lot like poker," Boies says. He doesn't play bridge anymore, but he loves casual pot-limit poker games with friends such as playwright Neil Simon, financier Carl Icahn and former senator Al D'Amato. He also loves to play craps—calculating odds, feeling momentum and betting on hunches-which is what he was doing in Las Vegas in 1997 when he got word of a problem at Cravath. In a dispute over television revenues, George Steinbrenner and the New York Yankees, whom Boies represented, were suing Major League Baseball and the Atlanta Braves, a team owned by Time Warner, one of Cravath's biggest clients. While not an ethical issue, it was inconvenient. Boies resolved the issue by walking away from Cravath with the Yankees and three other clients; within days he established his own firm near his home in the Westchester suburbs. Despite the suddenness of the move, it was an amicable divorce—as all of Boies' divorces seem to be: he is on good terms with both former wives, too. For his new office, Cravath gave him furniture out of its own storage, and loaned him technical support to get his computers and communications up and running.

Boies was joined by Jonathan Schiller and Don Flexner, and over the past decade Boies, Schiller & Flexner has become, according to The Wall Street Journal, "a national litigation powerhouse," with 200 lawyers in a dozen offices around the country. One of Boies' many awards, The Milton Gould Award for Outstanding Oral Advocacy, proclaims, "No lawyer in America has tried and argued on appeal as many landmark cases in as many different areas as Mr. Boies." Case in point: switching sides in the antitrust wars and working as a special counsel for the U.S. Justice Department in its suit against Microsoft. Boies speaks with relish of sparring with someone as intellectually challenging as Bill Gates during depositions, but his shining moments came during the 1998 trial. In one, he proved that a Microsoft demonstration tape had been spliced together. In another, he suggested to a Microsoft economist that high profits imply monopoly power. No, the witness said, he did not believe that, and had never believed that. Boies then showed the economist a 1982 article in which he had written that persistently high profits indicate barriers to entry by rivals. "What could I have been thinking?" the witness muttered.

Boies remembers the 1980s and '90s as "an intense, productive period," but he still took time off every summer to jump in an open Jeep with one or two of his children. He has six kids, two with each wife, ranging in age from 23 to 48. (Three of the four eldest are now lawyers, two with his firm.) He and his kids would head off cross-country with no plan except to stay on the blue highways and have a good time. Some summers they'd get to California. Once they ended up in Key West; once they drove back through Canada.

Caryl Boies, 46, the younger of the two kids from his first marriage, often works with her father as a partner in the firm's Fort Lauderdale office. "It's always a learning experience," she says. "It's incredible to me how quickly he can get up to speed on a case, see the wheat from the chaff, and pinpoint the important issues." She can still be "mesmerized" listening to him, as she was recently when he surprised her at a legal conference by speaking passionately about the importance of the rule of law in civil society. Personally, she says, perhaps her father's greatest achievement is the way he has kept the six kids from three marriages close to each other. "We're as close as any siblings in any single family," she says.

The kids have all outgrown the Jeep, so now Boies and his wife take off three to four weeks every spring on a bicycle trip, often through Italy or France, cycling from vineyard to vineyard by day, enjoying fine wine by night. Boies' taste in food is generally simple—he loves to grill steaks, burgers and chicken—but he is particular about his wine, and his big brick house in Armonk rests astride two functioning cellars and 8,000 bottles of wine, some of it rare Bordeaux.

Still lean and youthful at 67, Boies concedes he may be slowing down a bit, but believes there is a lot of good lawyering left in him. Recent cases include a $512 million class action settlement against Christie's & Sotheby's and a $155 million settlement for the government from Medco Health Solutions for allegedly switching patients' prescriptions to increase rebates from pharmaceutical manufacturers. He's also defending filmmaker Michael Moore, who went to Cuba to film his documentary Sicko, against a federal investigation.

"Everybody knows David is an icon in the industry," says Thomas Sager, the corporate counsel for DuPont who has been hiring Boies for more than 20 years. "But he's also unique in the way that he is genuinely committed and concerned about the client." Sager says Boies often structures fee agreements that save money for his corporate clients. And rather than treating other law firms DuPont hires as competitors, Boies works smoothly with them. Sager also praises Boies for his commitment to promoting minority lawyers. "He's embraced diversity in his own hiring practices," Sager says. "He doesn't just talk it, he lives it."

Boies also likes to talk about what makes a good lawyer. He doesn't use notes in court, but that's partly because of his dyslexia. His apparent encyclopedic memory—being able to instantly call up a cite, including the page number—is really just an ability to analyze and focus, he says; he doesn't try to remember everything, but he does try to remember everything that's important. One of his greatest strengths, he believes, is an ability to communicate the heart of a case, even a complex one, in common-sense terms. He doesn't try to show that he's smarter than everyone else.

"For me," he says, "the most important characteristic [for a trial lawyer] is patience. And I would say the second is objectivity. Third is intelligence and analytical ability, and the ability to communicate."

Patience is needed, he says, to keep from rushing to conclusions. Objectivity is important for recognizing the weaknesses in a case and being able to prepare responses. "There's also a fourth thing," Boies says, "and that is independence. Confidence. The ability to tell your client what your best views are. That's not always easy with the kind of clients we represent, who are strong, successful, willful people who got to where they are by being better and tougher and more determined than anybody else and not accepting advice about what they can't do. So you've got to be prepared to deal with that. Lawyers, like journalists, have got to be prepared to talk truth to power."

Boies will also talk, politely but not eagerly, about Bush v. Gore. Yes, he thinks about how different the country and the world might be today if he had won that case and if Al Gore subsequently won the Florida recount. Sure, he was stunned that the U.S. Supreme Court took the case away from the Florida courts, and yes, perhaps he could have done a better job in his arguments before the court. His biggest regret is that he didn't try harder to persuade Gore and his political advisers to let him put Katherine Harris, then the Florida secretary of state, on the stand during state proceedings and ask her about the role of Bush's campaign in advising her to disallow ballots that had been cast for Gore.

But it's become clear, he says, especially through subsequent interviews with Supreme Court clerks, notably by David Margolick in Vanity Fair, that no argument would have swayed the five justices who handed the presidency to Bush. "The five-justice majority ignored the settled law and ignored the facts," Boies says. "They changed the rules in the middle of the game. Florida had run elections the same way for 80 years. More than 30 other states ran elections the same way—that is, they provided for manual recounts based on voter intent. And the Supreme Court just changed the rules right in the middle of that election."

In fact, Boies compares Bush v. Gore to some of the worst decisions in Supreme Court history, including the 19th-century decisions in Dred Scott, which upheld the legality of slavery even in free states, and Plessy v. Ferguson, which upheld the constitutionality of racial segregation. "As somebody who has devoted their life to the law, you like to think that the law has a lot of integrity," Boies says. "And as someone who has seen the U.S. Supreme Court be the primary driver of an enormous expansion of human and civil rights in the last 80 years, you cannot help but have enormous admiration for that institution and for what it has given this country. And to have the Court make what I think most people recognize was a politically result-driven decision was very discouraging."

Bush v. Gore has inspired Boies, who continues to teach law and has a number of philanthropic interests, to undertake another cause: promoting a more efficient system of counting votes. He advocates the use of voting machines that are high-tech but at the same time leave a physical paper trail so that votes can be counted—or recounted—by hand if need be. Boies thinks the use of such voting machines can and should be a constitutional issue, and thinks Bush v. Gore laid the groundwork. He frames his argument the same way he paints a witness into a corner during cross-examination.

"If Bush v. Gore were treated as serious constitutional precedent, it would stand for the proposition that there must be a single, uniform type of voting machine, at least within any particular state," he says.

Language within Bush v. Gore's majority opinion argues against using it as a serious constitutional precedent. "Our consideration is limited to the present circumstances," the majority justices wrote in 2000, "for the problem of equal protection in election processes generally presents many complexities." Subsequent attempts to treat the case as precedent in order to create a more uniform and fair voting system—in California in 2003 and in Ohio in 2006—have been batted aside.

Which raises a question for the most celebrated trial lawyer of his generation. Is it galling that Bush v. Gore is not taken as serious precedent, since he still lost the case? Or does he see its constitutional isolation as proof that he should have won after all?

"Both," he says.

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