David Boies

(Photo by Michael J.N. Bowles)









Trial attorney David Boies (L63) may chuckle a bit, but he never minds talking about the man who sparked his original interest in the law: Perry Mason.

Boies was a teen-ager growing up in the late 1950s in Southern California, the time and place when Erle Stanley Gardner's courtroom character leapt from book to television. By then, Boies was hooked on Mason.

"It was partly his tenacity; it was also partly — and this comes more from the books than the television series — his penchant for detail, his creativity, his dedication to clients," Boies remembers.

Some might say Boies comes close to matching Mason trial for trial. Look at the names and faces in a few of Mason's better-known cases, and you'll find an interesting parallel with Boies' career. There's The Case of the Crying Comedian, in which a well-meaning entertainer's big heart gets him into trouble. There's The Case of the Positive Negative, featuring a retired general and a secret smear campaign. And there's The Case of the Daring Decoy, a high-stakes business drama that turns in part on the deposition of an enigmatic multibillionaire.

Comedian ... retired general ... business tycoon — all clients straight out of fiction, but each one bears an interesting resemblance to people in cases Boies has tried — Garry Shandling, William C. Westmoreland and Bill Gates. Indeed, if Gardner had penned Mason a half-century later, Boies might well have been Gardner's inspiration, instead of the other way around.

When entertainer Shandling needed help, friends directed him to Boies. "He's more handsome than Perry Mason, more agile than Ironsides — and more entertaining — and I predict he'll have a much longer career than both," says Shandling.

When retired Army Gen. William C. Westmoreland filed a $120 million libel suit against CBS in 1982, network executives called Boies. "What makes him one of if not the greatest lawyers of his time — and that is not hyperbole — begins with his razor-sharp intelligence, and this capacity of his that is always steady," says CBS Evening News anchor Dan Rather. "Couple that with the fact that David's instincts — legally and in the courtroom in particular — are a thing of awe."

And when the U.S. Justice Department and several state attorneys general filed antitrust charges against Microsoft Corp. — a case that would have worldwide economic ramifications and certainly involve taking former CEO Bill Gates' deposition about the company's practices — they turned to Boies in part because of his work on another landmark antitrust case involving IBM.

"Certainly [if you look at] his handling of Bill Gates at the deposition, some people might liken it to the way Mason gets things out of key witnesses," says Kenneth Khoury, deputy general counsel for Georgia-Pacific Corp., a longtime Boies friend who is not involved with the Microsoft case.

Even with Mason as a model, it wasn't always clear Boies would find his way to law school, much less become a legal legend. His family made the best of modest means as they moved around Southern California, including stays in urban Compton and suburban Fullerton. "When I was young, I didn't know whether I was going to be a lawyer or a schoolteacher," he says. "My father taught American history in high school, and I thought I would end up doing that."

Boies finished high school and was offered a college scholarship, but he chose instead to marry his high school sweetheart and stay in Orange County.

Eventually, Boies enrolled at the University of Redlands, graduated and proceeded to Northwestern University School of Law, where he received a bachelor of science in law in 1963. He continued on to Yale Law School and graduated magna cum laude.

From there, Boies accepted a position in New York City with Cravath, Swaine & Moore, one of the oldest and most respected corporate law firms in the country. Boies made partner in six years, and it was at Cravath that he got the call from CBS.

"For CBS News, everything was at stake, and everything was on the table," recalls Rather. The retired Westmoreland, head of American operations in Vietnam from 1965 to 1968, had filed suit against CBS after a documentary, The Uncounted Enemy: A Vietnam Deception, linked him with a conspiracy by military officials to deliberately hold down enemy troop estimates in 1967 to maintain support for the war.

Westmoreland claimed he was "rattlesnaked" in a 1981 interview for the CBS Reports program. Rather and CBS officials saw it differently. "The whole [case] was basically an extremely well-financed, partisan ideological campaign mounted against the program not just to point out mistakes in the way the program was prepared, but to destroy the program and the people who had put it together," Rather says.

Boies prepared for the trial by deposing Dean Rusk, Robert McNamara, Walt Rostow and other key members of the Johnson administration. He was especially impressed with the intelligence of McNamara and Rusk; however, Boies remembers them having, as he puts it, "blind spots when it came to understanding — even a decade later — the failure of the policies" they had initiated.

Rather credits Boies' success to "an instinct for the core" of a case. "He drives to it the same way basketball superstar Michael Jordan headed for the basket," he says. "He recognizes the weaknesses and vulnerabilities in the opponent, and he drives straight through and is unstoppable. If you are on the other side, it is frightening, which is one reason if I'm ever in trouble — small, medium or large — my first call is to my wife, and I would tell her to call David."

Westmoreland eventually withdrew the suit after his attorney had a disastrous experience questioning the program's producer. Published reports credit Boies with privately convincing the opposing attorney to ignore the advice of his colleagues and keep the CBS producer on the stand.

By some accounts, Boies might have remained at Cravath his entire career had it not been for one major league client, New York Yankees owner George Steinbrenner, who hired him to represent the ballclub in a dispute with Major League Baseball over merchandise royalties. After Boies began representing the Yankees, Time Warner Inc., Cravath's largest client, acquired Turner Broadcasting, which owned the Atlanta Braves. Time Warner insisted that Cravath drop the Yankees as a client. Boies decided to keep Steinbrenner and left Cravath. In September 1997, he formed Boies & Schiller LLP, which became Boies, Schiller & Flexner LLP last December.

While he was still at Cravath, Boies was part of a group that handled the defense for antitrust cases against IBM. He had been interested in that area of law during college and wrote a legal textbook, Public Control of Business (Little, Brown, 1977), on the topic.

"You can't have a free market without antitrust laws," Boies says. "Without antitrust laws you get private central planning ... from monopolies, cartels, price-fixing conspiracies. That kind of central planning is at least as bad as the type that results from government central planning."

When the Justice Department filed antitrust charges against IBM in 1969, Boies played a key role in successfully defending the company against what amounted to the largest antitrust offensive on a corporation in U.S. history. After 13 years, 2,500 depositions and 66 million documents, the Justice Department dropped the case in 1982. Boies' experience was exactly the credential the department was looking for in 1998, when it began searching for an attorney to spearhead the Microsoft case.

Does Boies see a conflict in standing at the defense bar for IBM and with the plaintiffs against Microsoft?

"The key difference is that Microsoft has a monopoly power, and IBM didn't," Boies says. His contention was supported by U.S. District Judge Thomas Penfield Jackson, the jurist overseeing the trial, who issued a finding of fact last November stating that Microsoft had in fact suppressed competition. "One thing people forget when they think of IBM is that IBM's core product faced extensive competition from Unisys, Burroughs, Hitachi, General Electric and Digital Equipment Corp.," Boies adds. "There aren't any significant competitors to the Microsoft Windows operating system."

IBM also followed a different market-pricing strategy, he says. "IBM always priced its products above cost. It always gave customers a choice of whether to use IBM products or competitive products with IBM systems. Microsoft, on the other hand, engaged in a variety of exclusionary and anticompetitive conducts that has prevented smaller companies from competing on their own merits and deprived customers of a free choice of what product to use."

Heading up the U.S. government's case against the world's premier software corporation would be the pinnacle for most legal careers, and Boies admits it was a challenge, especially for a man who prefers writing notes in longhand to using a computer.

According to published reports that are confirmed by his wife, Boies has few if any computer skills. A profile in the Seattle Times before the trial noted: "Boies doesn't use a word processor or know how to retrieve e-mail; his secretary does that and prints it out for him. [He] has never browsed the Internet, never looked at a home page, never surfed the World Wide Web, though Internet browsers, the tools used to view content of the Web, are at the heart of the government's case."

Facts like that coupled with Boies' penchant for comfort over sartorial style make for good newspaper copy, and they are exactly the types of distractions that could cause attorneys to underestimate an opponent such as Boies. "I'm not sure anybody anymore will ever underestimate David because of [his attire]," says Khoury, who hired Boies in 1992 to defend Georgia-Pacific in an environmental case that drew more than 9,000 plaintiffs. "So much has been written about the fact that he likes the same color suit, same type of shirt, same type of tie."

For the Microsoft case, Boies and his team had to familiarize themselves with the company and the intricacies of the computer software industry. To accomplish that, Boies relied on a lifelong habit that seems to serve him well: total immersion. "By the time the Microsoft case went to trial, I'd had a crash course over six months in really learning and understanding the modern computer industry," Boies says. "There were a lot of things that I understood better than the people who testified."

One of those people was Bill Gates, and journalists covering the trial couldn't resist billing it as a clash between two titans. "Gates, Boies in 'Pissing' Match" was a headline in one online computer journal. Gates testified by deposition in December 1998, and by most accounts, Boies carried the day.

ZDNet, an online magazine, recounted how Boies led Gates through a series of questions involving the meaning of the phrase "pissing on," used in a Microsoft e-mail message sent to Gates regarding the company's alleged plans to discredit Java Technologies. Observers say Gates tried to dance around the issue by denying he knew what specifically is meant by "pissing on." Boies stayed focused, and after carefully placing Gates on the record, closed the exchange by asking if they were actually code words at Microsoft for saying nice things about something. The question drew laughs in the room, even from the judge.

"As arguments in the Microsoft antitrust trial wrapped up ... much of the press was betting against Bill Gates, even interpreting his lawyer's summation as a veiled plea for mercy for the multibillionaire," wrote the Industry Standard, a news magazine about the Internet economy.

Regarding Gates himself, Boies is typically understated but respectful. "It was not unlike deposing any chief executive officer. They are typically very smart, very committed, very determined and very sure that they know more about what they are talking about than you do. You couldn't take Bill Gates' deposition without being impressed with the quality of the man and his work to build Microsoft into the company that it is," he says. "On the other hand, a deposition really is not a view of whether somebody is a good businessman; it is a mechanism for going in and finding out facts that are relative to a particular legal dispute. Different people have different techniques. My approach is to learn as much as I can about the case and industry and the people involved, and just go in and have a dialogue with them."

Joe Cutbirth, a Washington, D.C.–based freelance writer, is doing graduate study in Communication, Culture and Technology at Georgetown University. He is a former political reporter for the Fort Worth (Texas) Star-Telegram.