David Boies, the famed lawyer, is here to promote his new book, Courting Justice. (The talk will air Friday on participating NPR stations.) Boies is incredibly smiley, already laughing with the sound people who are just checking his mic and such.

His book tells the tale of how he was forced to leave his big law firm and start a new one. It’s a story of how he took on injustice, uncovered big corruption — the lawyer as hero, basically. It also takes you behind the scenes of the legal profession, giving you insights about how to reform the system.

Our adversarial justice system, he explain, only works well when the parties are pretty evenly matched — the Justice Department versus Microsoft, for example. Otherwise you’re in trouble, because there are few ways to limit your exposure. One of his cases was pro bono work for a woman who’s husband had kidnapped their children and taken them to Guatemala. The husband was rich, so his strategy was just to exhaust all of his wife’s resources in court and keep the kids. (Luckily Boies took on the case, giving the woman the resources she needed and saving the day.)

But this raises the question: “How much justice can you afford to donate?” “Every lawyer went to law school because they’re interested in doing justice,” he notes, but “you begin to look at law as a business…and some times you forget why you got involved in the first place and many never remember.” We need to get large, profitable law firms to do justice — his book tries to give examples of people who did just that.

Another problem is the jury system. It seems absurd that we take 12 people of f the street who know nothing about the issue involved and indeed are questioned to make sure they know nothing about the issue and then are prevented from asking questions, doing their own research, or talking to people about the issue. These twelve enforced ignoramuses are supposed to decide very technical points of fact?

Amazingly, it works. The jo of the trial lawyer is to distill the case down into “simple accuracies” because you can’t get complicated with a jury and you can’t lie during a long trial — juries are very good about figuring out who’s lying — so you have to make your points “true but easily understood.”

For example, during the Microsoft case, Microsoft’s first witness was a respected, engaging, and articulate economist who insisted Microsoft was not a monopoly. So Boies asks him if very large profits are a sign that a company is a monopoly. He says no. Boies pushes. He still says no. Is there any room for disagreement? No!, he insists, no responsible economist would believe that. Boies pulls out an article. It says that high profits are one of the best ways to identify a monopoly. The author is the man on the stand.

You can’t create such moments, Boies notes, you can only take advantage of them when you get them. It’s luck, and perhaps the perfect justice system wouldn’t be dependent on luck, but this the one we have and it’s also a lot more fun.

Questions (selected in advance by the forum’s hosts) are about the election. (Boies, of course, represented Gore in Bush v. Gore.)

On voting problems: In Ohio, lines were 2-6 hours long, especially in the inner city, and people just couldn’t wait that long. The Court ordered they be given paper ballots but they often didn’t get them. But there’s nothing you can do about that now. The Constitution requires everyone vote on the same day. But if we’re going to do that, we need uniform, effective voting machines and standards across the country. The cost is tiny. We also need to eliminate lines. “No reason voting in an election has to be an endurance test,” especilly when the test is only affects inner-city people.

On conceding: Kerry, he says, made the right decision to concede — he wasn’t involved (he was working on Florida, not Ohio) but he’s sure they wouldn’t have unless it was statistically unlikely to win Ohio, in which case there’s no point to making the country wait. Gore, on the other hand, was right to have fought.

On the Supreme Court: Bush will likely get to appoint 2-4 Justices this term. Boies hopes the president, now that he doesn’t have to worry about reelection, won’t appeal to his base and will truly be a uniter, not a divider. (This seems amazingly unlikely to me.) If the President tries to appoint Justices that are outside of the mainstream, Dems ought to filibuster — the Republicans certainly did. But if he appoints someone right-leaning but still within the mainstream, like say Orrin Hatch, then they ought to let it through.

On Bush v. Gore: On the one hand, I hope it’s like Plessy, Dred Scott, or the Japanese internment cases — a mistake and a warning. It’s inconsistent with our trust in the Court to make a decision that says it’s good for this case only. It “impacts adversely our confidence and faith in the Court, which is supposed to be above politics.”

On the other hand, if they ever took that decision seriously it would massively expand the equal protection clause, which, as one of the clause’s big supporters, he would certainly support. This is pretty unlikely to happen with this court, but some court in the future may reach back into history and use Bush v. Gore as an excuse to do so.

On gay marriage: [Boies looks down, shuffles his feet, looks up, taps the table, looks down again, taps the table some more, looks up, says “um”, looks down again, looks up again, says “uh”.] Exit polls say a large amount of turnout was due to “moral issues”. “I think the introduction of that issue was despicable.”

posted November 05, 2004 04:44 PM (Education) (4 comments) #


Money and Politics
The Facts About Money and Politics
Stanford: Day 45
Stanford: Day 46
Stanford: Day 47
David Boies on the Dispensation of Justice
Stanford: Day 48
Amy Goodman (and guests) on the Election
Stanford: Day 50
Stanford: Day 51
Donald Knuth writes Condi Rice


There already is a way to avoid both electronic polling booths and long lines. Just get an absentee ballot, show up at election day, and drop it in the box. That, or mail it in.

posted by Andrew Wooster at November 5, 2004 05:09 PM #

“Boies hopes the president, now that he doesn’t have to worry about reelection, won’t appeal to his base and will truly be a uniter, not a divider. (This seems amazingly unlikely to me.)”

I agree that it’s unlikely. In fact, it seems entirely counterintuitive — after all, wouldn’t being a true “uniter” the best way to be reelected? And without reelection to worry about, isn’t he free to be as divisive as he wants?

posted by Adam at November 5, 2004 05:31 PM #

If the week’s events aren’t giving you the headache of your lifetime already, then hold on tight and listen carefully to what Bush appointee Richard Land has to say… the mind boggles.

posted by thorolf smør at November 7, 2004 07:38 AM #

But if he appoints someone right-leaning but still within the mainstream, like say Orrin Hatch, then they ought to let it through.

Orrin Hatch is within the mainstream? Certainly he would be a thorn in the side to anyone who values fair use.

posted by bryan at November 11, 2004 09:18 PM #

Subscribe to comments on this post.

Add Your Comment

If you don't want to post a comment, you can always send me your thoughts by email.

(used only to send you my reply, never published or spammed)

Remember personal info?

Note: I may edit or delete your comment. (More...)

Aaron Swartz (me@aaronsw.com)