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Thursday, November 16, 2017

The Irrepressible Myth of David Boies?

Much has been written about David Boies representation of Harvey Weinstein and the conflicts with his representation of The New York Times as representing the fall of a liberal legal icon and of one of the great lawyers of his generation.

But a question asked out of genuine ignorance: What is the basis for that reputation and is it earned? I know of Boies from three cases: US v. Microsoft, Bush v. Gore, and Hollingsworth v. Perry; I do not believe I knew his name before the first of these. He lost the first (and one of my memories of listening to that argument was that he sounded as if he was caught off-guard by an equal-protection question). He had the second reversed on appeal. In the third, he won an important trial-court victory that enabled millions of Californians to marry, carried symbolic weight,* and perhaps catalyzed the litigation movement that led to Obergefell two years later. But it did not achieve the single great judicial declaration on marriage equality that he (and Ted Olson) set out to achieve and for which he is often given credit in movies, books, and other media. It was an important case on the path to marriage equality, but far from the important case. As legal precedent, it carried less weight than, for example, the case brought in Utah, Oklahoma, Wisconsin, or Indiana, all of which produced binding circuit precedent.

[*] The symbolism arguably cut in both directions. On one hand, it was the first federal-court declaration that same-sex marriage bans violated the federal Constitution (following several state-court/state-law decisions) and it affected the biggest state in the country. On the other hand, California.

I am not suggesting that Boies has not been a successful lawyer; he clearly has been. And I am sure that he took on and won many other big (and perhaps even historic) cases. But he is being described as the Clarence Darrow of his generation, now fallen in his final act. And I wonder about the reality of that.

Posted by Howard Wasserman on November 16, 2017 at 01:29 PM in Howard Wasserman, Law and Politics | Permalink


He may very well have been a great litigator. But the idea of him being a liberal icon is absurd, and purely PR-driven. Hollingsworth in particular. It is as though prominent white corporate lawyers had decided to jump in and risk screwing up decades of careful NAACP-LDF strategy, just before Brown, in order to enhance their own reputations.

Posted by: Sam | Nov 18, 2017 8:11:26 PM

There aren’t that many great litigators. While you think you may know lots of them, people putting their money where their mouths are disagree.

Posted by: John | Nov 17, 2017 12:28:04 PM

Well, prevailing should play some role in defining a lawyer's quality, if not the entire thing.

On what basis can anyone say that Perry influenced Kennedy in Obergefell any more than, for example, Judge Posner's 7th Circuit opinion, which similarly demolished every bit of argument against SSM. The narrative, which Boies has done a lot to push, that "Boies and Olson teamed up to take down bans on marriage equality" is similarly "just flat out wrong."

Posted by: Howard Wasserman | Nov 17, 2017 12:23:09 PM

This post is a head scratcher. You assume that the definition of a great lawyer is ultimately prevailing on the merits at the highest level. I mean that's fine, but Clarence Darrow's client was convicted. So by that measure, why isn't David Boies the Clarence Darrow of our time? Isn't the more appropriate comparison what would have happened if someone else litigated the case?

I have no skin in David Boies's legal legacy. But I have to wonder what the point of this post is given the odd revision to the legacy of Perry. Perry was the first case to assert a federal constitutional right to SSM. It was a highly controversial decision even among advocates of SSM. The team that litigated the case demolished every bit of argument against SSM (demonstrating biases at work, demonstrating lack of any scientific bases for opposition, etc.) There was no final ruling on the merits at CA9 and SCOTUS, but it's not far fetched to suggest that the overwhelming factual record at trial played a role in driving the jurisdictional rulings (and even influencing Justice Kennedy the following term). So claiming that Perry was "only a small first step" is just flat our wrong.

Posted by: NJA | Nov 17, 2017 12:04:01 PM

Boies' reputation arose from his time running the defense of IBM in antitrust, while he was at Cravath.

Posted by: J. Bogart | Nov 17, 2017 9:02:39 AM

No, it isn't Boies's fault that Hollingsworth did not create the ultimate precedent. But the narrative that has developed is that he did create that ultimate precedent, that marriage equality came about because of his litigation efforts--and that narrative bolsters his reputation. Many of these articles take the tone of "the hero lawyer who brought us marriage equality was taken down for ethics violations in representing a sexual predator." Boies and Olson set out to change the law--the story that is told is that they did, when in reality theirs was only a small first step.

Matthew: I have no doubt he is an excellent lawyer. But I know many excellent lawyers. Boies' reputation went beyond that.

Posted by: Howard Wasserman | Nov 16, 2017 5:59:51 PM

Sour. Grapes.

Posted by: YesterdayIKilledAMammoth | Nov 16, 2017 5:29:10 PM

Often, people want idols, and he's not a bad one to have. Much of his work has moved him into the public intellectual sphere, which I think also has advanced his public profile.

Posted by: Margaret Ryznar | Nov 16, 2017 5:20:24 PM

Often, people want idols, and he's not a bad one to have. Much of his work has moved him into the public intellectual sphere, which I think also has advanced his public profile.

Posted by: Margaret Ryznar | Nov 16, 2017 5:20:24 PM

Thanks for the post , wining or not a specific case ( even three ) may hardly be considered as a factor , while judging how good or qualified is a lawyer . Beyond mental aspects , one must consider first , that a lawyer , doesn't pick or choose his cases ( typically ) so , one may argue , that victories or losses are randomly determined . But how can we yet , objectively appreciate and estimate it :
Among others , we can argue , that the issue is whether he had to win , or could have won . And why ?? This is because , in a given case , after reading the ruling , we can judge , what had been predictable , and should anyway be predictable ( in light of the ruling and the reasoning of it ) . If something is or was easily predictable ( in strategic terms , argumentation and so forth…) yet , not had been taken to account by the lawyer , then , one may argue , that the case , could be won , but failed yet . This is a reasonable factor .

In this regard Also , More procedural errors , or less anyway , suggests clearly , how skilful is the lawyers .


Posted by: El roam | Nov 16, 2017 4:26:09 PM

I saw him in action during Lehman-Barclays litigation (e.g. http://www.reuters.com/article/us-lehman-barclays/lehman-to-court-barclays-received-secret-discount-idUSTRE63848G20100409). He was terrific.

In a particularly memorable moment, he played a bit of video deposition testimony from a Lehman executive that contradicted a statement that one of Lehman's other witnesses had just made. To me, it was an incredible moment for at least two reasons. First, it meant that he knew the evidence very well, as he was able to get this video up just seconds after Lehman's witness had said something contradictory. But, more importantly, it meant that he knew to ask the right question at an earlier deposition because he anticipated that a Lehman rep would later try to assert otherwise. He anticipated the other side's argument, got one of Lehman's own representatives to say something harmful to his client, and then had that testimony read to go.

I haven't watched that many trials, but it was the best lawyering I've ever personally witnessed.

Posted by: Matthew Bruckner | Nov 16, 2017 2:53:57 PM

I think you're getting your "first" and "second" switched; by "first" you seem to mean Bush (listed second) and by "second" you appear to mean Microsoft, listed first.

More substantively, my memories of his argument in Bush v. Gore are similarly negative, though I was only in high school at the time; to be fair, I thought Tribe did a pretty lousy job in the prior argument as well (for one thing, I believe he actually conceded that December 12 was a drop-dead date for recounting). However, Boies's reputation is for being a great trial lawyer, so that seems neither here nor there, as does the reversal in Microsoft, unless it was caused by some trial error on his part, which isn't my understanding. It also seems entirely irrelevant to Boies's greatness or even importance as a trial lawyer that Boies's adversaries on appeal in Hollingsworth happened to lack standing, and that the decision affirming his trial-level win was therefore vacated, while other circuit-level decisions weren't because the states the plaintiffs sued chose to defend their gay-marriage-bans. I don't know what else Boies has done outside of those three cases either, but just looking at them alone, he was the winning lawyer at perhaps the two most significant trials in the last twenty years. That's not bad.

Posted by: Asher Steinberg | Nov 16, 2017 2:47:36 PM

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