David Boies: When This Famous Trial Lawyer Speaks, Everyone Listens| November 29, 2011
David Boies has a calm demeanor and a quiet, deliberate manner. He does not demand attention with the volume of his voice. But when this famous trial lawyer speaks, everyone listens.
Boies, Chairman of Boies, Schiller, and Flexner LLP, visited William & Mary Law School on Nov. 2 as one of three Leadership Fellows of the inaugural McGlothlin Leadership Forum, a three-day event designed to give William & Mary law and business students an opportunity to hear from pre-eminent leaders in their fields. Boies was named National Law Journal's Lawyer of the Year in 1999 and 2000, and was among Time magazine's 2010 list of 100 people "who most affect our world."
"David Boies is one of the great lawyers of our generation," Dean Davison Douglas said during his introduction at Boies' seminar for law students. "He is a superb lawyer, but not just in one area. In this day of specialization, when a lawyer can be known as a really good antitrust lawyer or a really good intellectual property lawyer, David has been an extraordinary lawyer in a variety of areas."
During the seminar Boies discussed the structure of large law firms, speaking from his experience about what makes a firm great. "One of the things the profession ... needs to grapple with," Boies said, "is how should the law firm of the future be structured, and what should its focus be?"
He discussed how modern law firms are far larger than they were 40 years ago. He said that growth is often the enemy of the practice of law. He mentioned that he and his colleagues initially wanted their firm, Boies, Schiller, & Flexner, to stay small -- no more than 20 lawyers.
"There is a critical mass to do the kind of work that we do," Boies said. He said this critical mass now seems to be between 120 and 160 lawyers. "Once you get to that stage, you're growing not because you have to grow, but because there are advantages to growth."
He said that there are a couple of disadvantages to growth. The first is a greater risk of conflicts, and the second is the increase in bureaucracy that comes with growth. Nevertheless, he said, growth is a necessary evil.
Lawyers must consider five principal factors when deciding how to structure their law firms, Boies said. The first and most difficult decision is what kinds of cases the lawyers want to take on -- how broad or specialized the practice will be. He said he and his colleagues always wanted to be general-purpose lawyers. General-purpose firms are more likely to get the big cases. Boies' first libel case, Westmoreland v. CBS, for example, was considered by many to be the most influential libel case of the last century.
"You only get those kinds of opportunities if you are either a specialist who happens to get that case, or you are the general-purpose lawyer that a company comes to when they have a case of unusual importance," he said. "If you have a bet-your-company [case], you probably want to go to a general-purpose lawyer, who specializes not in any particular area of the law but in the law generally."
Boies said other considerations are what types of client relationships lawyers want to have; whether attorneys want to focus on plaintiffs, defendants, or both; what kinds of pro bono work to engage in; and how the attorneys want to bill their clients.
When Boies and his partners started their firm, they decided they wanted to focus on core client relationships -- that is, focusing on building strong relationships with a smaller number of clients. They also wanted to take on cases for both plaintiffs and defendants, and they wanted to focus pro bono work in this same vein. And, finally, he asserted that the hourly billing model arguably pits clients and attorneys against each other. Clients want cases to be finished as quickly as possible to minimize costs, whereas attorneys have the incentive to draw cases out to increase income. He argued that a flat rate is potentially a better model.
Given Boies' impressive credentials, his insights into what makes a successful firm were well received by the law students in the seminar. However, most students wanted to hear Boies' 'war stories.' After all, he represented Vice President Al Gore in Bush v. Gore, and he is currently working with former Solicitor General Ted Olson on the Proposition 8 case in California, a case that challenges the constitutionality of a state amendment banning same-sex marriage.
It was fascinating to see how genuinely invested Boies was, and is, in these cases. His frustration with the outcome in Bush v. Gore perfectly contrasted with his confidence and optimism in the Proposition 8 case. Bush v. Gore, he said, was perhaps his most painful loss.
"The best feeling is when you're on the right side and you win," he said. "But I think the second best feeling is when you're on the right side and you lose."
But he has high hopes for the Proposition 8 case.
"This really shouldn't be a Republican or Democratic, a conservative or liberal issue," he said. "It ought to be a civil rights issue; it ought to be a constitutional issue."
Gabriel Walker, a second-year law student who attended the lecture, said he wanted to attend because he shares Boies' interest in business law. "I thought the lecture was very well put together," he said. "Mr. Boies did an excellent job of facilitating a frank and candid discussion amongst the group." Walker said he went into the lecture expecting to hear a lot about Boies' professional experience, and he got exactly that. "I would certainly say that this was a worthwhile experience," he said. "Mr. Boies has a great personality that kept everyone engaged, and there were some excellent questions asked that helped to promote frank discussion."
Editor's Note: Mr. Boies has accepted an invitation from the Law School to return to Marshall-Wythe to teach a course to our students. He is the parent of David Boies, a 1991 graduate of the Law School and Senior Partner in the Fairfax, Va., office of Straus & Boies.