David Boies at the Berkman Center for Internet & Society at Harvard University in 2008. Photo by Doc Searls.
For a long time, David Boies was more of an icon than a lawyer, famed for his advocacy of progressive figures and causes, and known as a fierce defender of media organizations, as well as other corporate interests.
Now, not so much.
Boies’ fall from grace is due in part to his association with disgraced film mogul Harvey Weinstein, but in greater part to a series of choices and connections that have emerged in the twilight of a legal career that has spanned more than half a century.
Boies was already a celebrity in the courthouse community (though much less so among the general public) when I personally encountered him in the mid-1980s. I was covering the libel case that retired Gen. William C. Westmoreland had brought against CBS and several of its journalists over a documentary that asserted Westmoreland, while commander of U.S. forces during the Vietnam War, had manipulated reports of enemy strength for political reasons.
Boies represented CBS and presented a powerful defense of the overall accuracy of the piece, despite some nitpicking of details by Westmoreland’s side. Westmoreland, who had sought $120 million in damages, essentially dropped the case shortly before it would have gone to the jury.
At the time, Boies was a partner at Cravath, Swaine & Moore, which was (and is) known for being among the highest-paying, most expensive and most in-demand corporate law firms in Manhattan. Boies had first gained prominence as part of the team defending IBM against a Justice Department antitrust case in the 1970s; later, after Boies had left Cravath, the government hired him to represent its interests in an antitrust case that sought the breakup of Microsoft. Boies won that case at trial, although an appeals court later left Microsoft intact.
Not many years after the Westmoreland-CBS case, Boies was representing New York Yankees owner George Steinbrenner in a case against Major League Baseball. Time Warner, which was a Cravath client, owned the Atlanta Braves at the time. The Braves objected to Boies’ role in a case that was partly directed against them, which was when Boies left Cravath and launched his own firm in Armonk, New York, near his own Westchester County home – and, as it happens, also near IBM headquarters. Boies’ firm never achieved Cravath’s size, but thanks to its founder’s growing fame and deep political and business connections, it may well have once been the most prominent suburban boutique law firm in the nation.
Much of the public first became aware of Boies when he represented Al Gore in Bush v. Gore, the case that decided the 2000 presidential election. That one famously went against Boies. But more than a decade later, he was co-counsel on the winning side when the Supreme Court found laws prohibiting same-sex marriage unconstitutional. In 2017, to the delight of some who were disgruntled by Donald Trump’s Electoral College victory, Boies joined a team of lawyers suing to declare winner-take-all electoral vote allocations unconstitutional.
But by that time, a chain of events was already in motion that would bring Boies’ sky-high prestige down to earth. First and foremost was his representation of Weinstein. Boies negotiated Weinstein’s 2015 employment contract. During those talks, the Weinstein Company board was denied direct access to the executive’s personnel file, although Boies later said the board was informed of “three or four” confidential settlements involving Weinstein.
Two years later, after The New York Times and the New Yorker published detailed accounts of Weinstein’s longstanding history of sexual aggression against women, especially those seeking roles in his films, it emerged that Boies had helped hire private investigators to target the women disclosing those offenses, as well as the journalists reporting the story. The Times was already a client of Boies’ firm and promptly and publicly fired him, accusing him of behaving unethically.
Even earlier, lawyers from Boies’ firm had targeted one of the key early whistleblowers against Theranos, a once high-flying medical tech startup on whose board Boies served. The company’s key claim was that it could provide fast, accurate blood tests using tiny amounts of blood; the whistleblower revealed to authorities, and later to journalists, that test results had been manipulated. Theranos and its founder were banned from the medical testing business for two years. The now greatly scaled-down company reportedly needed a large private equity loan last month to keep its doors open. The story of Theranos is reportedly featured in a forthcoming film titled “Bad Blood,” in which Jennifer Lawrence is slated to play the role of Theranos founder Elizabeth Holmes; no word on who, if anyone, will play Boies.
If we set up lawyers to be heroes battling for truth and justice, we are apt to be disappointed more often than not. Of course there are selfless, committed attorneys out there who are trying to do the right thing; most of them are little-known and underpaid. But for the most part, expecting lawyers not to behave like, well, lawyers is like expecting sharks not to behave like sharks.
Our legal system is not some sort of pristine search for an objective “truth” or “justice.” It is an advocacy system, in which each side tries to present a version of its story that is slanted in the way it deems most favorable, while judges serve as referees and juries are tasked with determining a truth that usually lies someplace in the middle. Lawyers are hired guns, and the opposition is always their target.
That’s what David Boies is and always was: a hired gun who was paid large sums to see and present his clients in the most favorable light. It is his own fault if he was not choosy enough about picking those clients or about addressing conflicts, such as the egregious one involving Weinstein and the Times. He probably won’t pay a significant financial price, but his choices have certainly devalued his once sterling reputation.