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Big cases but little discovery

Courting Justice: From NY Yankees v. Major League Baseball to Bush v. Gore, 1997-2000; David Boies; Miramax Books: 490 pp., $25.95 v. Goliath: The Trials of David Boies; Karen Donovan; Pantheon: 368 pp., $26.95

June 19, 2005|Edward Lazarus | Edward Lazarus, a lawyer in private practice, is the author of "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court."

There's no doubt that David Boies is a terrifically accomplished trial lawyer who has won more than his fair share of high-profile cases, including, most famously, the U.S. government's antitrust case against Microsoft. Boies has also proved time and again to be a grandmaster in the chess game of negotiating legal settlements. As if that were not enough, he has emerged as a true pioneer of the legal profession -- a maverick who resigned from one of the most prestigious law firms in the country (Cravath, Swaine & Moore) to found a unique, decentralized firm of legal samurai who rove the country handling big-money cases.

Talent and accomplishment, however, do not always translate into compelling autobiography. The genre requires an author willing to engage in deep and genuine introspection, as well as sometimes uncomfortable candor. These are not Boies' strong suits, and as a result, his "Courting Justice" wastes the rich raw material of his extraordinary legal career.

That "Courting Justice" is flat and unrevealing is not all Boies' fault. Lawyers do not have the option of providing open and honest assessments of their cases. They are bound to their clients by duties of confidentiality and loyalty, which in laymen's terms means that they have to keep their clients' secrets and must discuss their cases with an eye to their clients' interests and not necessarily to the unvarnished truth.

These inherent limitations raise the question of whether, in this age of heightened ethical standards and proliferating malpractice lawsuits, it is possible for any prominent attorney to produce a good autobiography -- or at least one that deals, as Boies' does, with relatively recent cases. Arthur Liman, another lawyer of gargantuan stature, faced the same problem when he tried to write about his defense of errant financier Michael Milken. Inevitably, too much of what a reader will really want to know ends up on the cutting-room floor

"Courting Justice" suffers mightily from this problem. Boies represented Al Gore in his historic battle for the presidency, but precisely for that reason he cannot tell you anything new about Gore's thinking as George Bush and James Baker stymied him in court and out. For the same reason, Boies has no alternative but to disappoint those looking for an evenhanded assessment of the government's case against Microsoft, or for some of the great inside gossip that must have been generated during comedian Garry Shandling's lawsuit against his former manager (now head of Paramount) Brad Grey. It's just the facts, ma'am, and the facts from Boies' clients' perspective.

This is not to say that "Courting Justice" is without interesting passages. Political masochists can relive in excruciating detail the judicial water torture by which the 2000 presidential election was decided. Boies also treats litigation buffs to an entire chapter of excerpts from his devastating examination of Bill Gates at the Microsoft trial, a tour de force that turned the trial's tide by showing Gates -- a business genius but a terrible witness -- to be evasive and arrogant.

Ironically, the best chapter deals with a much-less-celebrated case -- a heart-wrenching custody battle in which Boies helped a friend fight for her children, who had been taken outside the United States by her estranged foreign-born husband. Boies may well have included this representation in part to cover the whiff of avarice clinging to some of his other ventures (like his brilliant contingency-fee shakedown of the auction houses Sotheby's and Christie's in a price-fixing case). But whatever the motives, his endeavors on behalf of Amy Habie and her children show in a sympathetic context the doggedness, ingenuity and loyalty that make for a great counselor and advocate.

But even these sections of "Courting Justice" are less than one might hope -- and that is Boies' fault. He has enjoyed a seat at the table for some of the most interesting episodes of these law-obsessed times, and to an unusual extent he has aided in shaping contemporary legal culture. On all these subjects, however, Boies in effect takes the Fifth.

Bush vs. Gore resulted in the most important and controversial Supreme Court decision of the modern era, yet Boies offers only a tepid rehash of conventional criticism. The Microsoft case raised a host of fundamental questions about whether legal tools developed in the "old economy" can be applied effectively to the rapidly innovating business of the "new." Again, he offers little insight. Tort reform, including new limits on class actions, tops the Bush administration's legal agenda. As a newly arrived lion to the plaintiffs' class-action bar (he defended against such suits at Cravath), Boies is perfectly placed to discuss, in the context of real cases, the pros and cons of a system that pays lawyers a fortune to hold corporate America to account. "Courting Justice" is virtually silent on the subject.

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