By Katrina Dewey | February 11, 2017 | Lawyer Limelights, News & Features, Archives, Boies Schiller Features
Photo by Jennifer Pottheiser. Artwork by Stephanie Blackman.
It’s Vegas, baby, and the tables are warming up.
But first, let’s grab a drink at the bar, and discuss whether the street artist Banksy actually exists, with a guy who looks a lot like Harvey Weinstein.
Dinner is a glamorous affair, with gorgeous couples – high-society, media elite, straight and gay – talking about court battles. They should know. Kris and Sandy and Paul and Jeff are the plaintiffs who won the biggest civil rights battle of the past 20 years, for marriage equality.
Pass the pigs in a blanket, please?
Next day, take a bus tour down to the Mob Museum, led by Nick Pillegi, who produced “Goodfellas” and wrote “Casino”. Nick and his seatmate in the fedora - seated right behind Jeffrey Toobin – are recounting the scene of a poolside mob hit, and the guy in the hat says, “That’s not how it happened.”
Another round of mai-tai’s if you don’t mind.
Naturally, because this is David Boies’ 75th birthday party, anything can happen and the fellow had, shall we say, intimate knowledge of how it did happen and had been a close personal friend of the government for the past couple decades.
In his 50th year of law practice, Boies has defined a generation of lawyers – bringing a boundless view of the law to emblazon an era of social change through advocacy in courts, boardrooms and the media. His life has swept from the dusty boots of a construction worker to his ever-present Merrills striding up the steps to the U.S. Supreme Court, bringing an everyman’s demeanor, some sunshine in his pockets and a barracuda mind.
He’s famous for many cases – Westmoreland, Bush v. Gore, Microsoft and, of course marriage equality, in which he teamed with Ted Olson to challenge California’s ban on gay marriage. Too, he’s considered the most illustrious cross-examiner of his generation – and with good cause. He reduced Bill Gates to incoherency, and used his scalpel so effectively on the founder of the Institute for American Values, David Blankenhorn, that he became a supporter of marriage equality.
Oceans of words have celebrated Boies’ accomplishments since his rise to partnership at Cravath, through a stint in Washington, D.C., and then on to his own firm, Boies, Schiller & Flexner, now nearly 20 years old. He brings to the law a rare courage bred of experience, clarity, a respect for the system that is the marrow in his bones and a vision of the law that is larger than himself. If one angle of his life has been less explored, however, it may be his more personal side – where he learned to love risk, the price he’s paid for it, its relationship to the law, and its rewards, when risk well taken pays up.
Where better to talk risk than in a city he has loved since August 1958 when he stepped off the train on the way back to Fullerton, California, from summer school in Boulder, Colorado. The dyslexic 17-year old had 90 minutes to kill so he wandered over to Binion’s and took a look at the craps tables. He became entranced trying to figure out the odds, and how the game worked.
A later train and 48 years down the road, we’re back for one of the handful of visits he makes each year. Typically with his family – whose company he relishes - and best friend James Fox Miller’s crew, they gather around the craps table like it’s a Thanksgiving turkey.
“I play a little dice,” Boies says, sitting in a suite at the Wynn looking over the Vegas skyline of 2016 and contemplating the gleaming tower next door emblazoned with TRUMP in million-point font, gold, of course. “But I would be careful about dice. It’s a tricky game. The thing about dice is you’ve got all sorts of crazy things you can do but you really only want to do two things basically. One is bet the pass line. And the other is to bet the come line. And the come line is exactly the same as the pass line, it’s just a different roll of the dice.”
Kind of like a big lawsuit. A roll of the dice. You’re looking for seven or eleven.
“Just learn the pass line and you know everything you really need to know about craps,” he says. “It’s very relaxing.”
A blue-collar kid, Boies attended college at University of Redlands, thinking he’d be a teacher like his father. From there he went to Northwestern Law School, and then Yale, from which he graduated in 1966. He joined Cravath, and took advantage of its policy of doubling vacation time used for public interest to go to Jackson, Miss., for the summer of 1967 to help with voter registration and defend the rights of students who had traveled South and were arrested.
He lived in a poor section of Jackson that summer, but would play cards with both his African-American neighbors, as well as the fancy white folks uptown. Which is quintessential Boies. People are people, whether he’s talking to the president or a woman on the street. He’s interested in it all, and takes it all in, equally.
Craps or lawsuits. Rich or poor. Powerful or powerless. All the same.
“It’s the ability to manage risk,” he explains. “For example at the craps table you have to manage risk, you have to be disciplined, you have to be comfortable with ups and downs, you’ve got to be patient.
“All of those aspects are important in law, and in life. Managing risk is very important. There are very, very few areas where you can have important rewards without some risk. And the question is always balancing the potential reward against the risk. And that means understanding the risk and being able to manage it.”
One of his earliest lessons in managing risk as a lawyer came when he was given the opportunity as a young Cravath partner to try a case called “Cal Comp” in California. The firm’s top lawyers, including lead litigator Tom Barr, were swamped defending IBM against antitrust claims in the East. Boies saw a reasonable proposition that his odds of defeating a $400M antitrust claim brought by a small California manufacturer against IBM were decent, and that the upside of taking those odds should he win were enormous. [And, sidenote, Boies’ brother worked at IBM, and invented voicemail there.]
If you have a legal touchstone to which you return time and again, it is Cal Comp, the first civil litigation in which you were a lead lawyer.
I take on a lot of cases that other lawyers won’t take on because they think they’re risky. And I’m going all the way back to my first big commercial case, the Cal Comp case. Other lawyers before me turned the case down because they thought it was likely to lose.
I saw a way to win because this was a situation where this small company, Cal Comp, was suing IBM. IBM at that point dominated the computer industry. They had cut their prices to drive a competitor out of the business and they had essentially succeeded in driving the competitor out of the business to a very large extent. And they had just lost a similar kind of case in the federal court of appeals.
So there were a lot of negatives. But on the other hand, the prices to which IBM had cut its price levels were profitable. They weren’t making as much money as they had before, but they were making money. This was back in the mid ‘70s, and the argument was the purpose of the antitrust laws is to encourage price competition and you don’t want to have a rule of law that will chill price competition. If you have a rule of law that says you can’t cut your prices below cost that’s a bright line. People can understand that. It doesn’t chill competitive behavior because there’s no real competitive reason to sell below cost. But if you’re selling above cost then there’s no bright line. How do you tell when you’re cutting your prices too low as long as they’re above cost?
You won the trial and defended it at the 9th Circuit.
My argument to the court, which included [now U.S. Supreme Court Justice Anthony] Kennedy – who was on the 9th circuit at that point – in fact, I saw Justice Kennedy at a birthday party a few months ago and he remembered the case.
My argument was that as long as you had prices above cost, even if you had monopoly power, you couldn’t penalize somebody for engaging in what the antitrust laws are intended to encourage, which is price competition. I didn’t discount the risk, but I thought the risk was less than other people thought it was because I could see the rationale - and it was a case which if we were able to win it would drastically change IBM’s antitrust position, so there was a very large return if you were successful, and I thought you could reduce the risk from the way people thought.
You’ve said you were not in the black financially until after you left Cravath. Though you made what was considered a lot of money as a partner there. And of course you’ve been quite financially successful and have the beautiful homes, wine cellar and yacht to show for it. But at the end of the day, you seem just as happy eating some bar snacks, having a few drinks and being with your family.
Sometimes if I’m just with my kids, we’ll just play $5 red chips. That’s fine with me. I’m not here to make money particularly. This is a bad place to make money. The house has an edge. In craps, it’s a small edge, a very small edge, but nevertheless it’s an edge. And so over time you will tend to lose money. You can sometimes win because your betting sequences will be different. You can win. But on average over the very, very long term you’ll probably lose.
To encourage you to come, they give you free rooms and comp restaurants and shows and stuff like that. You’re getting something for your money. A lot of bets on the table when you play craps right the house will have less than a 1 percent edge, sometimes less than one-tenth of 1 percent. Other games the house has a 3, 5 or 10 percent edge, some the house has a 10 to 12 percent edge. A lot of people bet those because it’s exciting, the odds are higher. And a lot of people bet those because it’s exciting to win from players who don’t play quite as sensibly. They’re going to build these palaces and give you these free things based on the people who don’t play quite as well.
And you’re going to win or at least have cost of entertainment? So you balance your appreciation for risk-taking with the fact this is what you enjoy doing.
Exactly. When I took the Westmoreland case on, again, everybody thought it was an enormously risky case. [Former General William Westmoreland sued CBS after a segment by Mike Wallace on 60 Minutes claimed Westmoreland lied about the progress of the war in Vietnam.] TV Guide, which was a very important magazine in those days had published a cover story, “Anatomy of a Smear.” They’d found the film editor of the program who cooperated with them and said Mike Wallace and 60 Minutes made up [the allegations that Westmoreland lied about the progress being made by the U.S. military in Vietnam]. It was a very, very damaging article. The press was very negative about it.
But it was a case where there was a very important upside. If we’d lost not only would it have been enormously damaging to Mike Wallace and CBS, but also this was a period of time in the ‘80s when you had right-wing, conservative organizations that were trying to rein in the liberal press.
And you had an organization called AIM – Accuracy in Media, and they were very supportive of this. The case itself was brought on Westmoreland’s behalf by the Washington Legal Foundation, which still exists and styles itself as a conservative public interest think-tank. If they had succeeded, I think it would have had a very serious chain effect on journalism generally because they were threatening to bring these kind of suits against liberal organizations that criticized or reported on the military. Balancing the risk and the upside, I thought it was a very important case not to lose.
I also had a theory that was never ultimately tested because we won the case in conventional ways. My theory said that any high public official, president, vice president, commander in chief of the military in war, was libel proof. Anything you said about them in their official capacity they could not sue, even if you could show knowledge of falsehood. You could not sue them. And the theory was that they have immunity from defamation suits. If Westmoreland had said something about Mike Wallace, Mike Wallace could not have sued him even if it were defamatory and even if Mike Wallace could have proven it because they have an absolute privilege against lawsuits. And my argument was it should be reciprocal.
We moved for summary judgment and no one had ever made this argument before. And the Judge said, “I’m not going to decide this prior to a trial.” He didn’t disagree, or agree, he just said, “It’s interesting and I’m going to wait until after I’ve got a full record to decide.” But I think if it had gone to trial and we’d lost on conventional theories, that approach minimized the risk in the case.
There’s a pattern in the sense that I will sometimes be more inclined to balance the rewards against the risks. And I will also try to find ways to manage the risks, to minimize the risks.
It’s interesting to examine the way you’ve pulled apart your cases, and the strategies you’ve taken. It strikes me that a key to a great trial lawyer’s success is that the case can never be about you.
It sort of is and sort of isn’t. It may be a little unusual among trial lawyers. You see trial lawyers tend to have large egos. In some sense it’s hard to do what you do. I’ve said this to young associates: You either have to have an enormous ego or no ego. Because either way you don’t care what people think.
The important thing is not caring what people think about you. What you want is people to think you’ve got a good case, you want people to think that you’re right, you want to persuade people, but what you shouldn’t care about is what do they think about you.
If you don’t care what people think about you and you only think about your case that helps you win. And if you win, people think better about you.
How do you do that when you walk into court as America’s most famous trial lawyer?
What you want to do when you get finished – a lot of lawyers want people to think “that was really a great lawyer.” What you really want people to think is “that lawyer was really lucky, he had a really strong case. He had a case anybody could have won.” Because you make your case look so good. You want to package your case so that you are simply putting out the facts and the judge and the jury is coming to their conclusions. You are the messenger. And they’re almost coming to their conclusions in spite of you. What you want them to do is not to focus on you.
As you know I dress kind of consistently. It’s comfortable. I’ve always been that way. During Cal Comp, we had a shadow jury, but I didn’t get this feedback until after trial was over and we interviewed actual jurors. I wore the same suit, the same tie and almost the same shirt every day. The women on the jury – both the women and men noticed it. The women didn’t like it because they were suspicious of it. They said “Mr. Boies seemed like such a nice person but I worried that maybe he wasn’t genuine because he’s obviously successful, he’s IBM’s lawyer, obviously can afford a lot of clothes and he wears the same tie over and over again. I worried that he was trying to make us think he was just an ordinary person.”
The men had a somewhat different reaction. Some of the men didn’t notice. The men that did notice tended to say, “He’s just so interested in the law he didn’t care about clothes.” But enough people on the jury were suspicious of this because it was unusual. Even if they weren’t suspicious, they were distracted by it. And you don’t want a jury focusing on your clothes. I thought up until that trial, that my clothes because they were so ordinary would be good because people would not be focusing on them. But in fact they were too ordinary.
And so, after that when I have a jury trial, I will buy 6 or 8 ties and I will change them off so that there’s nothing to distract. I still basically wear the same suit, but that doesn’t seem to bother people because they’re used to lawyers in dark blue suits. But I’ll change my tie so that I’m not doing something that makes the jury think about me as opposed to think about the case.
Or how I talk. I will tend to be relatively soft-spoken. I won’t get real emotional. I will sometimes use emotions. And because I’m generally unemotional and soft spoken, when I do use emotion and I speak a little sharply, people really pay attention. But your goal is when you finish cross examination you don’t want them to think, “Boy, that was a really great lawyer, he really whipped that witness.” What you want them to think is, “Gee, that witness was just so untrustworthy, so unreliable.” You want them to focus on what you’re accomplishing, not on you.
You don’t want your judge or jury, your jury in particular, to think, “David Boies is a really great lawyer.” You want the jury to think, “David Boies had a really easy case.”
Many lawyers go into court relishing the opportunity to go destroy a witness, for example - they put themselves into the battle. Obviously, you do that too, in some sense, but you do not present it as a contest between you and the witness.
Right. It’s much more effective. The harder the case you take on, the more important it is to do that. Because I think the more you’re trying to get people to accept something that is not necessarily counterintuitive, but contrary to expectations, you want to be plain, you want to be clear, you want to bring the jury along so that they believe you trust them, that you’re not trying to put something over on them. You’re relying on their judgment, their common sense. You are trusting them. You’re not asking them to trust you.
I’m trying to persuade them on their terms. I’m trying to make them come to that conclusion. The best illustration I have of this is my cross-examination of General Westmoreland at the trial. This is in the middle ‘80s at a time when the country is returning to patriotic themes. It’s the time of the Rambo movies, it’s the time of Ronald Reagan. The anti-Vietnam sentiment in the country that existed in the ‘60s and ‘70s has now turned and people are patriotic, they are suspicious of attacks on the military. You have in Westmoreland, who at the time was in his middle 60s – he’s 6’ 2”, ramrod straight, handsome, white hair, just the epitome of a general, he’s somebody who had spent his entire life serving his country. I’m 42 when the trial started, and I looked younger. And I had to convince the jury that this patriot, this sort of grandfatherly figure was lying.
If I had torn into him - if I had made this a battle between David Boies and William Westmoreland, nobody was going to be on my side. Or if so it would be very few. So what I had to do was I had to make the jury uncomfortable with him before I evidenced any discomfort.
I started the cross examination enormously respectful. I would say to him, “General Westmoreland, you said this and I’d just like to ask you about this document which superficially may appear a little inconsistent, but I’m sure there’s an explanation for that. And can you explain how you reconcile these two things?” And he would give me an answer, and I’d say, “Thank you,” and I’d move on. And I’d do that again and again. Over time you could see the jury begin to be a little uncomfortable because there seemed to be so many contradictions and when he gave an explanation that didn’t really fit I wouldn’t attack him for it. I’d either just move on or say, “Let me see if I understand what you’re saying, you’re saying this, … and that’s the explanation? Yes, ok.” And I’d move on.
The second day I’d pick up the pace a little bit more and a little bit more and by the end of the second day he was so tense his back went into spasms and we had to take off a couple days. But you had to be patient and you had to let the jury reach the conclusion on its own. Before you could accuse him of lying, of not being straight, you had to get the jury to begin to be uncomfortable with him, to sense there was something wrong, to be unwilling to accept his explanations.
I’ve watched you in court several times cross-examining witnesses and it’s a little like viewing a fox in his lair – you get the slightest squint in your eyes, amble about a bit, go pick up a document, and then strike. We both remember the divorce of Los Angeles Dodgers owners Frank and Jamie McCourt, in which you represented Jamie and had a devastating cross-examination of a longtime corporate lawyer to the McCourts about an important document.
I will rarely be rude to a witness. In the McCourt case, I questioned a Bingham partner who had represented Frank McCourt. I was accusing him not only of lying but also of falsifying documents to help Frank McCourt. And it was very clear he did it. By the end of the examination he was even saying, “I don’t remember doing it, but I must have. I don’t have any other explanation.” Even there, although I got sharp with him a couple of times, because he was clearly not being responsive, I tried to be civil.
That’s another lesson I learned from the Cal Comp case. The plaintiff put on an expert witness relatively late in the case, a guy named McGovern. He misrepresented stuff and I had him cold. I just destroyed him on the witness stand. We had this shadow jury and that night they debriefed the shadow jury and of course the shadow jury doesn’t know who they’re working for. The reports came back that they were very disturbed. They said, “We’ve always so liked and respected Mr. Boies, but he was so mean to Mr. McGovern. We couldn’t understand why he was being so mean. Yes, McGovern made mistakes but everybody makes mistakes.”
And what I realized is that I had seen where those mistakes were, that I was telling the jury those mistakes. I was confronting him with those mistakes, but I hadn’t laid the groundwork, I hadn’t gotten them ready to accept that this person was lying.
And so when I sort of destroyed him, they saw me destroying someone they weren’t prepared to say was lying, that they felt he had just made mistakes. And that was a very powerful lesson - that you need to be sure that you don’t get ahead of your skis, ahead of the jury. Let the jury lead you, don’t lead the jury. You have to teach the jury, you have to make the jury lead you, but you have to do so in a way that allows them to come to the conclusion on their own. You can help them, you can be their guide, but they have to reach that conclusion.
You were just 35 when you learned that. We both know lots of 60-year old lawyers who still haven’t learned to get our of their own way.
I had a number of advantages. One advantage was my civil rights experience. Representing civil rights workers in the mid ‘60s in Mississippi taught you a lot of things. It taught you patience.
You couldn’t just storm into court, even when you were right. You had to deal with hostile judges and juries. I remember a case I had in Lexington, Mississippi. I went up there from Jackson to represent two African-American [Student Nonviolent Coordinating Committee] workers who had been arrested for not having Mississippi driver licenses, and then beaten up by police and charged with resisting arrest. It was a judge trial on resisting arrest. If I had simply gone in and accused them of police brutality, I would have turned this judge off. The judge kept referring to Billy Joe Gilmore, the town constable, as Billy Joe.
It was a small town, everybody knew each other. I was this young kid from New York who came down to stir up the colored folks and you had to pick your way very carefully if you were going to have any chance to get the clients off. It also taught you there were a lot of cases you ought to win that you’re not going to win. If you go in and do the very best job you can and lose, you go back the next day. Even the cases we lost, having people be represented and making people go through it made the police less willing to make irresponsible arrests the next time. Very marginally. There were very, very few great victories, but you made very incremental progress. It teaches you patience and teaches you how to deal with judges that are against you and small-town juries.
I was also very fortunate in terms of my early development. We tried the Telex case in Tulsa, Oklahoma, in 1972. [Telex was yet another regional competitor that sued IBM for antitrust violations. Telex won a large jury verdict, but IBM won on appeal.] I had just turned 31 and was still an associate at Cravath. I cross-examined two of their key witnesses. And then to have the opportunity to try the Cal Comp case was the kind of thing you can’t engineer for yourself. That’s just pure luck.
I had the opportunity to do a lot of things that I think brought me along relatively quickly. Still, it’s hard to think that it’s 30 years this year since the New York Times magazine article [“The Litigator, David Boies, The Wall Street Lawyer Everyone Wants,” a 10-page spread, in which he was featured on the cover]. Partly time goes by so fast, but also it’s jut unusual in any endeavor to have the opportunity to perform at that level with these kind of cases for that long.
You left Cravath 10 years after that article to form Boies Schiller. You were reportedly considered a bit of a renegade at Cravath. Is Boies Schiller more of an expression of who you are?
Leaving Cravath and forming Boies Schiller really was a second lease on life. It was powerfully energizing and it enabled me to create a firm that was the kind of firm that I always wanted and always believed every firm ought to be like. Where people are entrepreneurial, collegial, taking on important cases, taking risks, prepared to take on difficult cases, prepared to go in and risk losing.
An awful lot of lawyers, particularly at the top of the profession, don’t want to lose. They don’t want to take any risk of losing. If you’re not prepared to lose, you can’t take on the important cases. You can’t take on the tough cases.
The reason cases are important is because they’re uncertain. Whether Cal Comp, Westmoreland, Microsoft, marriage equality or Starr v. U.S. All those cases are important because there’s a principle. But they are also important because you can’t predict the result in advance. If it were a lay down it wouldn’t be important.
Let’s talk about taking on perceived wisdom, and cases perceived to have long odds. You and Ted Olson brought suit against California’s Prop. 8 claiming it was unconstitutional to discriminate against gay and lesbian couples who wanted to marry. And you brought the suit with a highly unusual motivation – you wanted to put restrictions on who could marry on trial.
Marriage equality was one of those things where I was so convinced we were right. And yet everybody said we were wrong. Everybody - including the people who had spent their lives fighting that battle, ok? And I can remember when Ted came to me I immediately said, “Yes.” And after that it became clear how strong the opposition was. And I kept going back and thinking, “Am I missing something? What have I missed?”
You had to respect that judgment. It was from people who knew far better than I about these battles. It was just like Westmoreland. When I took the Westmoreland case on, all the quote First Amendment lawyers, the libel lawyers, said, “This is a loser.” And then when I made a point of defending the case on truth, everybody said, ‘There’s Boies, he just doesn’t understand. You never defend on truth, you always defend on actual malice.”
I remember there was an article in New York Magazine or Business Week, with a picture of me and the caption was, “Has Boies Fallen Into
a Truth Trap?” Connie Bruck in the American Lawyer wrote an article that all First Amendment lawyers were critical of my emphasis on proving
the truth of the broadcast. The falsity of the broadcast was assumed after the “Anatomy of a Smear” article.
On the other hand, if we had won that case on absence of malice, while we would have won the case, Mike Wallace’s reputation, CBS’ reputation would have been enormously damaged. And besides, the broadcast was true. It was thoroughly researched, it was supported by the testimony of numerous former officers, people who had devoted their entire lives to serving their country, people with absolutely no incentive to make that testimony up and every incentive not to testify. And while there were editing choices people could debate, the fundamental premise of the broadcast was accurate.
And I was convinced I could demonstrate that. But the experts were totally disapproving. And that was true even more in marriage equality than Westmoreland. I really took that seriously. These were people I had enormous respect for, who had fought for marriage equality for years and for many of them it was personal. And it was a judgment call, not a mathematical formula. It wasn’t something anybody could prove. And you really wanted to get it right. And every time I went back to think about it, and I kept thinking, you know, “I’m right and they’re not.”
And I went back and re-read and re-read Justice Kennedy’s opinion in Romer v. Evans and went back and read the opinion in Lawrence v. Texas. Every time I read it my view was, “Scalia’s right” [in his dissent in Lawrence]. No matter what they say they’re not deciding, the principles here inevitably take you to marriage equality. Once you have said that you can’t make moral judgments, you can’t discriminate against people based on their sexual orientation, I think it had to follow that states could not bar people from marriage just based on their gender.
I also believed that just the process of Ted Olson and me taking this fight on was going to move the public debate even if we lost in court. Even if we lost in court, this was going to take this issue out of sort of the specialty area, which is where it was, and make it a mainstream issue.
We made it into a civil rights issue and the combination of how well known the two of us were, how different the two of us are, all of that contributed I think to a view that said this is a mainstream issue. And I thought that was going to happen even if we lost. And after the Supreme Court argument, and we didn’t know how it was going to come out, you still saw the way people were talking about the issue. And they were talking about it entirely differently than they’d talked about it four years earlier.
That case changed the world. Marriage equality is now the law throughout the United States, where there were an estimated 780,000 same-sex married couples as of 2015, and is also recognized in 21 countries worldwide. You’ve always given credit to the many advocates who came before you and to the work so many people did in making marriage equality a reality. But I think it also underscores one of your hallmark lessons: Find the truth in every situation.
And we did that partly inside the courtroom and partly outside of the courtroom. You always go back when people who know a lot about something and who you respect tell you that you’re wrong and tell you quite emphatically that you’re wrong. It always makes you think. And that’s a good thing. Because it did make us think, and it did make us more careful, probably.
The thing is to find the truth. If you can’t find a truth that will let you win you’re not going to win. The first step is to find the truth that helps you win. The second step is to make that truth known. Make that truth accepted.
But the first thing to do is to find the truth you can win on. You’ve got to have a ground that is so strong that you can sustain it. That nobody can push you off. It doesn’t matter how long they have, what resources they have, how smart they are, there is nothing they’re going to be able to find that’s going to destroy that truth. The core truth of the case. And that’s what you build.
For example, in Cal Comp, the core truth was that these were above-cost prices, ok? And sometimes you find that core truth is something that other people aren’t paying attention to because they don’t see it as core; it may be true, but they don’t see it as core. They don’t see how that truth can help you win.
So part of it is identifying that truth. I’ve said a lot of times if you’ve got a short trial – one or two day, sometimes maybe a four-day trial – you can sometimes win with a lie. And that’s because maybe the other side doesn’t have the time, doesn’t understand it soon enough, isn’t able to respond to it.
In a long trial, you can only win with the truth. Because the other side has all the time in the world to find out everything that’s wrong with it. A lot of times lawyers want to hold things back because they’re afraid if the other side has it ahead of time or too early they’ll find things wrong with it.
I almost always in a case will in my opening statement say, “Here are three documents, three charts, four exhibits and you’re going to hear
about these until you are so tired of hearing
about these. But these are critical. These are absolutely critical. And if they can find something that’s wrong with them, then maybe you ought to decide for the other side. But I tell you you’re not going to find anything wrong with them because they’re true.”
Can you talk a bit about one of your riskiest maneuvers – taking your opponent’s argument as your core truth?
Sometimes you can actually take what the other side thinks is their good argument and make that your argument. Almost a quarter-century ago, I defended Westinghouse in a case where they were alleged to have bribed Ferdinand Marcos, the dictator of the Philippines to get a large nuclear power plant contract. We were being sued by the Aquino regime that had come in after Marcos – and they were trying to nullify the contract and void it on the grounds it had been procured by fraud.
The contract had already been performed so if they voided it they got their money back and Westinghouse got a pile of concrete and wire in the Bataan Peninsula that was worthless. So this was a bet-your-company case for Westinghouse. The theme of the Republic’s complaint was that Marcos had been this absolute dictator, he was evil and avaricious, was in total control of the country, nobody could do anything without his permission and he could take whatever he wanted and he took a piece of every public works project
The theme of my opening was that Marcos was an absolute dictator. He controlled everything that went on in the country, he took whatever he wanted, he wasn’t constrained by the rule of law. I just exactly matched everything they said.
Their conclusion from that was “and he therefore must have been bribed to get this contract because otherwise we wouldn’t have gotten the contract.” And my conclusion was that as someone who has total control of the country and owns the country, he doesn’t need to take a fee for the contract he can just take whatever he wants. That theme followed all the way through.
The day Marcos fled, he took a truck, backed it up to the mint in Manila, filled the truck with newly printed pesos and took it with him on the plane.
My theme to the jury is somebody, who any time he wants, can back a truck up to the mint and take as many pesos as he wants, doesn’t need to get bribed. He doesn’t need to stoop to that. He’s got an automatic bank account that gives him as much money as he wants. He has an infinite amount of money.
That truth was a truth that ultimately enabled the jury to decide for us. Because they didn’t have to conclude that Marcos was a good guy or even a marginally honest person. In fact, the more they thought he was a bad guy, but very powerful, the more it reinforced that he didn’t need to do this. That was another case everybody thought we were going to lose. How could you defend Marcos?
We had terrible documents, just terrible documents. They’d hired a guy named Herminio Dicini as their agent. Herminio Dicini knew nothing about nuclear power plants. He was Imelda Marcos’ cousin or dentist or something. Westinghouse paid him $40 million.
The other side had documents where Herminio Dicini came and asked for more money and said he needed more money because the $40 million had all gone to the quote big guy. He didn’t have any money left over for himself. At one point it looked like the contract was going to be awarded to General Electric. So the head of the Westinghouse operation in Manila cables headquarters in Pittsburgh and said, “Storm clouds are on the horizon.” It talks about how, “We’ve been told we had a lock on the contract, now it seems like maybe GE has it,” and, ‘It seems you can’t trust anybody to be dishonest anymore.”
These were terrible, terrible. terrible documents. A lot of lawyers advising Westinghouse wanted to defend the hiring of Dicini and wanted to say, "All Westinghouse wanted was a level playing field. Our competitors were hiring friends of Marcos, we just wanted to win on the merits." But that wasn’t consistent with the documents.
What I was saying is we hired this guy as our lobbyist. We wanted him to lobby Marcos so he’d give the contract to us. We wanted to win. We didn’t want a level playing field. We were trying to tilt the playing field our way, that’s what you use a lobbyist to do.
It’s risky, but true. It was ground you could stand on. And it was consistent with all the documents, where they’re trying to get unfair advantage, trying to screw the other side.
I said, “We didn’t make this world. We don’t necessarily even like this world but that’s the world it was in. And if you were going to do business there that’s how you had to do business.” One of the hardest things I had to do in that case was figure out how to describe Herminio Dicini. Everybody wanted to call him their agent. But he wasn’t an agent. He didn’t know anything about nuclear power plants. And I finally decided he was a lobbyist. Nobody likes lobbyists. Everybody knows lobbyists are sort of sleazy but everybody uses them. And they’re legal.
So if I could get the jury to think of him as our lobbyist as opposed to our bagman, that was a way of explaining all the documents and yet doing it in a way that helped the jury come to the conclusion that whatever our use of him was it wasn’t bribery, it wasn’t something illegal.
You’re trying to find the truth that will help you win. It’s got to be true. And it’s got to help you win. You’ve got to find something that’s a basic truth. You can’t win an important long case without basic truths. And you’ve got to find them. And you’ve got to find a way to prove them to a jury, to a judge and ultimately to an appellate court.
You’ve seen so much in your 50 years of practice. And you seem today as passionate about the justice system as the day you started practicing.
That’s what makes it challenging, exciting, worthwhile. It’s what enables you to use the law to make our society better, to make it more just. This is a justice system. The legal system is a justice system. It’s designed to do justice. Lots and lots of times it doesn’t. Lots of times it fails to do justice, lots of times it is an agent of injustice.
But it always has the capacity to do justice. And the more that we’re prepared to try to make it an agent of justice, the more we’re prepared to take on the difficult cases, take on the challenging cases, devote the resources to it and do it in an intelligent, strategic way, the more we can make the law fulfill its promise. It requires a combination of idealism and really tough tactics and strategy.
It is the ability to be tough, to be aggressive, the ability to be tactical but to do it in an ethical way, in a way that respects the truth and to do it in the service of important causes.
In the marriage equality litigation, we spent a lot of time cross examining people to bring out the truth. And that required a lot of preparation. The fact that you’re right doesn’t mean you’re going to win. It has to be the right person saying the right thing and packaged right. You’ll spend maybe two hours in a deposition maybe getting a one-line quote.
One of the depositions was up in Toronto of one of their religious experts and she was a professor and she started off making some claims in very universal terms. I then spent 25 minutes taking her through a whole series of things she didn’t know that were marginally relevant but things she didn’t know. The fact she didn’t know them wasn’t really that central but what it said to her is, “I better be careful about stretching the truth here because I’m beginning to look bad. I better be careful about dissembling.” And so she became more willing to give the things she ought to be prepared to give.
If you just went after things that were absolutely essential, you wouldn’t be able to prepare the grounds, you wouldn’t be able to prepare the witness. You wouldn’t be able to get the witness in a state where the witness is uncomfortable about how they’re appearing so they want to tell the truth.
It’s interesting to watch you destroy people. You bring a rare emotional intelligence to your craft, where you parry with either a softness or a sharpness, playing nice or professorial. But underneath, there is always an ice-cold calculation of the use to which you are putting a witness for your cause.
I’m unusual to some extent. Because I think people tend to be more emotional in their implementation, in what they do, in their performance. That has to do with a variety of things. Part of it has to do with how they want to be perceived, part has to do with the illusion that they are in a real life situation.
You’re not in a real life situation. You’re in a morality play. You’re an actor in a morality play. Your emotions are the emotions that are befitting the role you’re playing. For example an actor in a play isn’t emotional about the role. Their emotion is designed to fit the role. When you’re in court, you need to realize you’re not in your life. This is not your life. You are creating something as a medium of expression. You are communicating. You are a messenger. You are a medium of communications. You are functioning as part of a morality play that’s designed to convince, persuade, enthuse, motivate people.
But this is not your life. This has nothing to do with me.
When you walk out of the courtroom and go home at night?
That’s your life.
For example, I can show impatience, I can be sharp occasionally, I can even be loud occasionally, not very often, but there’s nothing they can do in that courtroom that will make me mad, there’s nothing they can do in that courtroom that will make me happy, sad, nervous, offended, A, because it’s not me, and B, because they’re not them.
They are also participants in a morality play. It’s like Siegfried and Roy with the tigers. They don’t get mad at the tigers. The tigers maul them occasionally. They don’t get mad at the tigers. That’s their nature. You deal with wild animals and it’s their nature to hurt you. The fact that they are trying to hurt you shouldn’t make you mad.
The fact that somebody in court is trying to hurt me doesn’t make me mad. That’s their role. I know that’s what they’re trying to do. That’s the process. That’s how we do justice.
In civil law societies where you have investigating magistrates, they’ll bring people in and it won’t be an adversarial process. That’s how it should work if we had philosopher kings - if you had perfect ways of discerning truth and implementing rules. But we don’t. And because we don’t, I don’t think anybody’s come up yet with a better way of getting at the truth and getting at justice than the adversarial system and until we do - if you believe in justice - you’ve got to try to do justice in the context of the adversarial system. And that means being prepared to do the things that you have to do in the adversarial system to make your point, get your point across, to the judge and the jury, to perform your morality play.
Our justice system is only as good as what everyone involved contributes to it. Whether in a case with a ton of money or advocating civil rights for many people, we hear about the justice system as someone prevailed in this case … or lost … but it’s an enormous roving morality play where we all get something
Everyone needs for it to work. Everyone needs to play their role. And you have to be prepared to take on roles, to take on causes that are hard, are risky. That you can lose. And you’ve got to be able to lose really important cases, like Bush v. Gore and the next morning show up at a court. That’s not always easy to do. Because no matter how well you try, you always wonder whether there’s something else you can do. But you have to be able to put that behind you. Learn from your mistakes, learn from your process and then move on.
I saw [Gore’s Vice Presidential nominee and plaintiff lawyer] John Edwards in court in the Volkswagon cases. He was saying Al Gore asked him to go to the Supreme Court and listen to the argument in Bush v. Gore. Afterward he and Bill Daley were talking to Gore about the argument. Edwards said, “Boies was talking like a lawyer, they made this argument, we responded this way, we had this good argument.” And finally Bill said, “It doesn’t make any difference, we’re going to lose. I can count votes. There are five votes that don’t want you to be president, there are five votes that want George Bush to be president.”
That’s too bad, but sometimes that happens. Just like defending civil rights protestors in the south. But that teaches you.
Sometimes it’s the process, not the outcome.
Shall we go play some dice?