This is the way David Boies conducts himself when the battle is at its hottest, when losses are mounting and the enemy is preparing for the kill: he sits upright with his gold-framed reading glasses halfway down his nose, a pen and document in hand, while his paralegal, only a few feet away, performs a circus act involving two cell phones, a briefcase and an importunate reporter. Boies' pen makes sharply slanting scratches on a critical legal briefjust one stone in a brutal, driving hail of critical briefsthat must be filed immediately on behalf of Vice President Al Gore. Boies' celebrated Lands' End suit remains neatly buttoned; he wears his omnipresent black running shoes, one crossed over the other. He's not in a quiet conference room at one of the local law offices placed at his disposal but in a Tallahassee, Fla., hotel lobby. As he writes, Boies turns to today's edition of the tag-along journalist who always seems to be hovering nearby and asks, "How do you spell 'auspices'?"
This is the way David Boies, 59, conducts himself in the midst of the biggest case in a professional lifetime of huge cases, with the presidency teetering on the fulcrum of his arguments, with his back not to the wall but nearly through it. He acts as if he were waiting for tea to arrive. "Why should I worry?" he once asked his wife Mary, an accomplished lawyer, during another epic case several years ago. "Because I might lose? That's the worst thing that could happen to me?"
No lawyer in memory has ever won so much by losing. During the entire postelection ordeal, Boies was at its center daily, showing the all-news nation the astonishing gifts that have been thrilling his clients and irritating his more peevish opponents for three decades. Fourteen years ago, the New York Times Magazine certified his status with a cover piece headlined the wall street lawyer everyone wants. The story referred to "the biggest case of his, or any other corporate lawyer's, career"a phrase that has since been attached to Boies as frequently as descriptions of his frumpy suits and the slabs of beef he likes to eatwithout vegetables and without sauce, thank you.
Back then, the "biggest case" was an arcane smackdown between two huge oil companies, Pennzoil and Texaco. This year his efforts have had direct, determinative impact on the antitrust case against Microsoft, in which he represented the U.S. government; the half-billion-dollar settlement of a suit by his art-buyer clients against the world's two leading art-auction companies, Sotheby's and Christie's; the essential meaning of copyright on the Internet, which he is trying to establish on behalf of the music website Napster; and, supremely, the Tallahassee passion play. Back at the time of the Pennzoil-Texaco match, cbs general counsel George Vradenburg, who a few years earlier hired Boies to defend the network in a huge libel suit brought by General William Westmoreland, said, "Right now, David's got the hot hand." But if Boies had a hot hand then, what do you call what he's holding today? Vradenburg, now a senior executive with America Online, says, "David gets newly discovered by every generation."
Boies' certifying moment in the mythology of this particular generation came on Nov. 20, one week after he arrived in Florida. Emerging from his first oral arguments before the state supreme court, he stood in a room off the state senate chamber and presided over a press conference with a virtuosity news cameras hadn't seen since General Norman Schwarzkopf's famous briefing at the end of the Gulf War. As Boies carefully articulated the Vice President's positions in a Midwestern rasphe grew up in small-town Illinoishis hands, a foot or so apart, moved as if he were gently shaking a box to see what was inside.
Calmly walking his audience through the intricacies of the case, Boies introduced Americans to a previously undiscovered species of superstar lawyer. He showed none of the self-regarding intellectual pretension of an Alan Dershowitz or the preening, macho strut of a Johnnie Cochran. Unlike his Democratic colleague Warren Christopher, he did not whine. Unlike his Republican opponent James Baker, he did not bully. Instead he explainedlucidly and persuasively.
Those who have been listening for even a year knew that this was characteristic Boies. During the long Microsoft epic, months before he won the devastating verdict against the company last April, they had heard him discuss the company's monopoly. "This is not about creative legal arguments," he said at one point. "It's not about creative economic arguments. It is about common sense. It is about facts, and it is about what the real world demonstrates." No matter how well you know Boies, these words, the phrasing, the syntax, give no clue to the setting where he is speaking. In court and out, he speaks a brand of English so simple and direct that he sounds like the high school teacher he once thought he would become. It's the way Boies speaks when addressing a judge, the way he speaks in his press conferences, the way he speaks over dinner. "Part of the reason he does so well," says ex-wife Judith Boies, also a lawyer, "is that's really him you're seeing in court."