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v. Goliath

v. Goliath

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Written by Karen DonovanAuthor Alerts:  Random House will alert you to new works by Karen Donovan

  • Format: eBook
  • Publisher: Vintage
  • On Sale: February 8, 2005
  • Price: $13.99
  • ISBN: 978-0-375-42360-4 (0-375-42360-5)
Also available as a trade paperback.
EXCERPT

ONE
“Once it’s over, it’s over.”

10:25 a.m., December 10, 2000, Westchester County Airport

“Well, I have twenty-four hours,” David Boies said, finally settling into his seat in the Learjet that was idling on the tarmac.

The statement begged for a question, and I obliged. “To do what?” I asked from the seat across from him. “To learn the constitutional law,” Boies replied matter-of-factly, his steely blue eyes staring ahead.

On this morning, Day 33 of the postelection fight between Vice President Al Gore and George W. Bush, we were headed toward Washington, D.C., for the final court appointment that would decide who won the presidency in 2000. Each of the previous thirty-two days had presented a roller-coaster ride, swinging wildly often by the hour, for the opponents, and for the nation, which woke up the morning of November 7 to discover that the presidential race was too close to call. The state of Florida hung in the balance, with Gore pressing for recounts of the ballots and Bush opposing him at every turn.

As Boies boarded the plane, I mentioned that I had caught part of his ABC appearance on This Week with Sam Donaldson and Cokie Roberts before leaving my Brooklyn apartment. He told me that was one of four Sunday shows he had taped, beginning at six-thirty that morning.

Boies pulled out the draft of a legal brief that was due at four o’clock that afternoon at the U.S. Supreme Court; the case was scheduled for argument at eleven a.m. the next day. In all likelihood, the argument would be Gore’s last chance to gain the White House.

By ten-thirty, we were airborne. As Boies began to mark up the faxed pages in his hand, I noted the time that the draft brief had arrived at his home in Armonk—9:59 a.m. He must have grabbed it just before leaving, along with the box of sourdough pretzels and blue duffel bag (which contained another box of pretzels in addition to a cheap blue suit, a blue striped shirt, and a blue knit tie).

On this ride, I wouldn’t have the opportunity to ask many questions. But I didn’t need much explanation. It was clear that Boies would be arguing for Gore the next morning instead of Laurence Tribe, the Harvard Law School professor considered one of the country’s most renowned constitutional scholars. Over the course of the Bush/Gore fight, Tribe had argued twice against the Republican claim that the Florida recounts violated the Constitution, on one of those occasions at the U.S. Supreme Court. Nominally, Boies was the Gore team’s man in the Florida courts. But of course he was much more than that—he was their hero.

So it seemed clear to me that Boies would take center stage for the final act, even though he had told reporters gathered for a hastily convened

Saturday-afternoon press conference in Tallahassee the day before that he was “going home” to Armonk. The U.S. Supreme Court, in a bitter 5–4 split between the justices, had just voted to halt manual recounts across Florida and to hear Bush’s case on Monday. Boies’s work in the case was ostensibly finished.

On the plane ride home to Armonk that Saturday, I had asked Boies whether he wanted to argue the case. “You always want to do an interesting case like that,” he said, but added: “I would frankly rather not do it, given Larry’s prior involvement. Larry will do a fine job.” If asked, he said, he would advise the Gore team to stick with Tribe. “There’s no reason to replace him, and if they were to ask me to do it, that’s what I’d tell them.”

Still, as we parted company at the Westchester airport in the chilly December wind, he told me to call him later that night—and later that night I got a brief message to meet him the next morning back at the Westchester private-plane terminal.

Now, as we taxied down the runway, I took a stab at asking why

we were headed to D.C. after all. Did he suggest that Tribe do the argument? “Yeah, I did suggest that,” he said. And what did they say in response? “That they wanted me to do it,” he said. Did they say anything else? “Nope.”

The conversation was not untypical. Boies was loquacious before the TV cameras, holding forth like Abe Lincoln, point by point, in perfect paragraphs, on his reasons why it was important to “count every vote.” But he was often taciturn in private. He would offer me only a word or two when I became the least bit inquisitive. Boies was concentrating on the brief, and on the twenty-four hours he had to learn the constitutional law.

I had been this route before with Boies. In late August 2000, the federal appeals court in San Francisco set a schedule for oral arguments that would determine the fate of his client, Napster, the Internet company under assault by the entire record industry for allowing users to copy music for free online. The date for the Napster argument was October 2, 2000. “Oh, I have another argument scheduled for that day!” Boies enthused to me over his cell phone one day in late August, as he was headed by car to meet his law school friend Jimmy Miller for a weekend of gambling in Atlantic City.

Boies seemed thrilled by the Houdini-like prospect of flying from one federal court to another, all in a day. As the date approached, the Pasadena court alleviated some of the difficulty (and the drama?) by providing a video hookup at the San Francisco courthouse where the Napster case would be argued. That allowed Boies to address the judges in Pasadena, then take the elevator upstairs to appear before more cameras at the eleven a.m. arguments in the Napster case, an event that would be broadcast live over the Internet and the cable channels. I ventured to ask him why he had not tried to reschedule the Pasadena case. He told me he didn’t like to ask courts to do that sort of thing.

The weekend prior to the arguments, Boies prepared for both cases in a windowless conference room at Fenwick & West, the law firm that Napster had first hired for its defense and that had played second fiddle since the company hired Boies. Sometime after seven o’clock that Sunday night, Laurence Pulgram, one of Fenwick’s lead lawyers on the case, poked his head in to ask how things were going and say good night. “What’s your first line?” Pulgram asked, more than a little hesitant. Boies, who doesn’t rehearse or “moot” his arguments even with his closest partners, put Pulgram off. “Oh, I don’t know,” he demurred. “But there’s still time,” he said with a little laugh.

Boies thrives on tackling insuperable odds, making it look easy, traveling light. He keeps counsel with no one, as far as I can tell. Associates and partners working with him pull cases, draft memos, and answer his questions, but they rarely have a clue about what arguments he will present to a court until they, with the rest of us, watch him at the podium for the main event.

“You don’t understand,” his assistant Patrick Dennis once told me, when I was trying to track Boies down as he shuttled from D.C. to New York and back in a single day. “David Boies is Superman.”

Now, as the taxi made its way from Reagan National Airport to the Watergate Hotel on December 10, about a day before the presidential election would be argued, I asked Boies about the logistics of the task ahead of him in the case of Bush v. Gore.

In every case, it is Boies’s custom to read all the relevant legal decisions. Every single one. And usually, there is a point in any argument when he will reference a passage in a case and offer the court the exact location on the given page where they might find it. How many cases will you have to read? “Well, I don’t know. I don’t know,” he said. He was yawning again. He was clearly tired.

Boies disappeared into the Watergate, to locate the suite occupied by the man he had ousted, Laurence Tribe, and begin preparing for the arguments. Warren Christopher, the former secretary of state tapped by the Gore campaign for the postelection fight, announced on CNN that Gore had made the call to replace Tribe with Boies because the issues before the Supreme Court were so factually entwined with what happened before the Florida courts. No one—not Christopher, nor the reporters, who called in for a backgrounder with the Gore team later that day—paused to question the choice. When the news went out that Boies would argue Gore’s final Supreme Court appeal, no one stopped to consider the obvious—Gore’s last-minute choice of Boies over Tribe. It was a monumentally bad idea. That Boies jumped at the chance to do it was beyond hubris.

5:30 p.m., December 13, 2000, Albany International Airport

The U.S. Supreme Court issued the decision in Bush’s favor at ten p.m. on December 12. By then, Boies was already back at home in Armonk. The next morning, after one last conference call with Gore and his legal team—the call in which they made the final decision to concede the election to Bush—Boies headed for Albany on the Learjet, back to business as usual.

At midday, Boies had arrived in Albany in relative anonymity, but by the dinner hour, when we headed home, camera crews and reporters from the local network affiliates had the Albany airport staked out, waiting to get reaction from Boies about the fateful Supreme Court decision. Boies greeted them, saying that the highest court in the land had spoken, that we all must accept that, whether we agreed with the decision or not. How were the vice president’s spirits? Boies didn’t want to comment on that. The vice president would address the American people that night, he said. And, yes, Boies believed that the American people would come together to support President Bush. We had all learned a great civics lesson, he said; votes are important, every vote should count. “I think this country is strong enough. People will rise above this. I believe that people will unite,” he said.

Who could argue with any of that? The man had perfect pitch.

It was time to go, time to get into the plane. Boies stopped to sign an autograph on a businessman’s card. The man said his wife was a fan. “You did a really great job, though, you really did. To go to the U.S. Supreme Court with no notes. Five justices against you.” Thanking the man and signing the card, Boies said, “You don’t have time to look at notes, even if you take them up.”

On the way back to Westchester, I asked about Boies’s own spirits. “Oh, my spirits are fine.” He shrugged. “You’d always rather win than lose. But once it’s over, it’s over.”

Midafternoon, Sunday, December 17, 2000, Grand Floridian Resort, Orlando, Florida

Disney World was the Learjet’s final destination in the week that began with the presidency on the line. This trip had been on Boies’s calendar for some time. Each year, in mid-December, Boies slated a weekend for the annual retreat of his law firm, Boies, Schiller & Flexner. The retreat was probably the only tradition in the firm’s short history. Mainly, it was a chance for the lawyers’ families to mingle, throw a party, and brag about the firm’s successes in the last year.

When Boies opened his law firm in September 1997, along with his first partner, Jonathan Schiller, there were ten lawyers. By December 2000, there were one hundred, mostly centered in New York and D.C., but also scattered in tiny offices elsewhere, like Hanover, New Hampshire, and Hollywood, Florida. The lawyers barely knew each other.

“David never gives a speech” at the retreats, Patrick Dennis said. This didn’t surprise me. There was no need. The firm revolved around him. When Boies opened the floor to questions from associates on Sunday morning, the retreat’s last day, there were only a few brave souls who took him up on the offer.

Throughout the weekend, tourists in the Grand Floridian’s lobby often recognized Boies as he passed, and stopped to say what a wonderful job he had done for Gore. Schiller toasted Boies at the firm’s dinner dance, saying, “I want to thank David Boies for everything he has done for this firm and for our country.” But throughout the weekend, Boies barely spoke of Gore. It was part of his grace.

By the pool at the Grand Floridian, Boies lounged on a chaise, weirdly soaking up the sun in his trademark blue polyester suit, masked behind his sunglasses. A Learjet was waiting to take Boies and his law partner, Robert Silver, back to Armonk that night. The plane would fly through a storm that had canceled or rerouted the commercial flights for that day. The private flight would allow Boies to make a crucial appearance the next day before the judge overseeing Boies’s class action against Sotheby’s and Christie’s auction houses, a case where Boies stood to make a $26 million fee. Boies had brought to the swimming pool a transcript of Linda Wachner’s deposition in Calvin Klein’s case against her. At the pool, Boies held the transcript but didn’t look at it. Instead, he closed his eyes and lounged on the chaise, chatting with Silver, who had long been part of Boies’s inner circle.

Boies enjoyed sparring with Silver, a genuine child prodigy who had a master’s degree from Yale by the age of nineteen. Boies used Silver as a sounding board, quizzing him with Socratic questions before important legal arguments. By the swimming pool, the two men wondered aloud how much the firm would grow by the next year. A number came up—140 lawyers—and Boies suggested that he would take “either side” of the bet. Silver didn’t take a side; he wanted to know whether that was what Boies wanted. If Boies wanted the firm to grow that much, Silver said he would do whatever he could to achieve that. But then the subject was dropped, and Silver lost his chance at the case of wine that was on the table in the bet.

The conversation moved on to the subject of law firm management, a topic in which Boies seemed decidedly disinterested. The firm of Boies, Schiller & Flexner seemed to have no management, aside from the three men who were its name partners. Silver suggested an executive committee to review the delicate topic of compensation. Boies casually asked Silver to prove how it would work. Boies had already maddened Silver by telling him that he wouldn’t sit on such a committee.


From the Hardcover edition.

Excerpted from v. Goliath by Karen Donovan Copyright © 2005 by Karen Donovan. Excerpted by permission of Vintage, a division of Random House LLC. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.