You’ve had so many high-profile cases. What are you most proud of in your illustrious career?
David Boies: I think that cases are, in some senses, are a little like children. I have six children. It’s hard to say which one I’m most proud of. But I think that certainly the marriage equality cases are cases that I am enormously proud of. I think that we have in those cases contributed to a really important change in this country. The cases that I’ve done in the area of racial equality as a young lawyer working in Mississippi, and then later on I successfully sued the Republican National Committee on behalf of the Democratic National Committee in 1986, I think it was, to stop the RNC from targeting black and minority districts with voter ID, voter security kinds of tactics. That litigation I’m pretty proud of. I’m proud of the Microsoft case. That was, I think, important, a challenging case. I’m certainly proud of the Westmoreland CBS libel case. I think that was very important in terms of establishing and confirming freedom of the press and the ability of the press to engage in very direct, hostile criticism of government action.
Protecting freedom of speech.
David Boies: Freedom of speech — freedom of speech, freedom of the press. I’m proud of the Bush v. Gore, even though we lost. I think that the example that we gave to the country was an important example. I think that the record that we made was important in convincing the people, and convincing the court not to repeat it. Even though we didn’t win that case, I think the controversy that ensued, in part because of the record we made, I think has been helpful in limiting the extent to which that kind of interference with the democratic political process will be repeated. I also think that the way that case was conducted, with Ted Olson and what Ted and his team did, together with what we did, showed the American people that even the most contentious issues can be resolved in the courts, and while I might disagree with how it was resolved, I think everybody on both sides, the lawyers there, believe that it was resolved in a way that gave the legal process credibility, and everybody involved in the case acted with professionalism and integrity. And after the fact, everybody united together to say, “This is the final decision. We’ve all got to abide by it and move on.”
I’m also proud of a couple of antitrust cases that don’t necessarily get the same profile but are often very important. I defended IBM in a case in the 1970s that was brought against it by private parties that were trying to prevent IBM from competing on price. And we established a principle that even somebody with monopoly power can compete on price, as long as it’s not totally below cost. And that case — incidentally, when I argued that case in the Court of Appeals, I argued it in front of a panel that included Anthony Kennedy. This was before he was on the Supreme Court. So my first case in front of Justice Kennedy was — oh, this was almost — must be 35 years ago, 35 or more years ago. And there was another antitrust case where I represented NASCAR, where they were accused of violating the antitrust laws, and they were trying to get — private parties were trying to get the court to intervene and regulate how they conducted their business. And we won that case. And that was important too, to establishing the right of companies to manage their own affairs and to compete vigorously. I mean, the antitrust laws are not designed to protect competitors from competition. They’re designed to make sure that competition is not snuffed out.
United States v. Microsoft was another high-profile case. Could you tell us about your strategy with that?
David Boies: In Microsoft, you had what was at the time the most successful and the most valuable company in the world. It was a company that, as a company, was widely admired. It was led by an individual, Bill Gates, who was widely admired. They had changed the personal computing fundamentally and in a way that’s — we’re never going back to — the world was different and better because of what Microsoft had done. And yet there were very serious antitrust issues involved, and so what you had to do was you had to — in a sense — challenge this iconic man and this iconic company and do it in a way that you could get a court to decide that it would intervene in the marketplace and influence the decisions that this company was making. And the company’s defense was, “What we’re doing is best for the consumer. That’s always been our goal. We’ve served the consumer very well, and you courts are going to come in and screw it all up.” That was a powerful argument. And to the extent that the court trusted Microsoft, that was a winning argument. What we had to do was, we had to convince the court that the court could not trust Microsoft to simply decide what was best for consumers.
How did you do that?
David Boies: The first thing that we did was, we needed to show the judge that there was a genuine dispute. The case really involved — the central part of the case was a company called Netscape had come out with a browser, and everybody has browsers now, but web browsers at the time were very new, and Netscape really had come out with a browser that dominated the market. And Microsoft was afraid that if the Netscape browser really took hold, people would write programs for the Netscape browser as opposed to the Microsoft operating system. That would eliminate the tremendous advantage that Microsoft had, because everybody wanted to program to Windows, and it was critical to protecting Microsoft’s Windows monopoly that the browser from another company like Netscape not become too popular. And so what they did was, they tied the Microsoft browser to the operating system in a way that made it difficult for Netscape to compete. And the question was, did they have to do that, because if they had to tie it for the consumer’s sake, then Netscape probably couldn’t complain. But if they did it just to stymie Netscape, then there could be an antitrust violation. And of course, they came in and said, “Well, we just did it because this was a better way to serve the consumer.” And the first thing we had to do was, we had to convince the court that there was a reasonable argument on both sides here, so that they knew — so that the court knew — that there was a necessity of trusting Microsoft. And then we had to show the court that Microsoft was not trustworthy, and we did that by attacking them and undercutting and showing that what they said — that their narrative — was simply not true.
Tell us about the outcome.
David Boies: Ultimately, we won the case. The district court granted very, very broad relief. The relief was cut back by the Court of Appeals, but the finding of liability was sustained unanimously by the Court of Appeals. And one thing that the Court of Appeals said was that the arguments that Microsoft had made to justify the tying of the browser to the operating system were simply pretextual. And they would not have been prepared to reach that conclusion if the Microsoft technical witnesses had maintained their credibility better.
We had a situation in which, for example, one of their witnesses sponsored a tape that purported to show a Microsoft operating system being used on a computer with the Microsoft browser and then taking the Microsoft browser off, putting on the Netscape browser, and it showed a deterioration of the performance. And the way it was presented was that the video was just running one computer, and that all that changed was the change of the browser. And as such, that was a very powerful video. And it was a video that we had enormous difficulty figuring out how to attack, because we couldn’t figure out why that performance was degraded, and we couldn’t replicate that, but on the other hand, we couldn’t figure out how to attack what they had shown. Ultimately, we were able to demonstrate that what they had done was, they had spliced together footage from two different computers with two different programs, and that it really was a fabricated document. Ultimately, Microsoft admitted that what they said was that they had accomplished this result in a laboratory, but then when they tried to film it they couldn’t repeat it, and so what they did was, they made up this tape and introduced it into evidence. Now if they’d said all that at the time, the tape never would have gotten into evidence. But not saying it was clearly misleading and badly — and this is just one of several examples — badly undercut their credibility. And there’s always a danger here that the drama will overwhelm the facts and that a dramatic instance of that kind of cross-examination will be given too much weight. But in fact, in a case like this where the real issue is, “Can you trust this company to be doing what it says, that is, serving the consumers, as opposed to locking out competitors?” I think there’s a good argument that a very heavy weight on such kind of dissembling is appropriate.
This had powerful implications for personal computers and the software industry.
David Boies: I think that there’s always a danger that when you have this kind of decision, that government will overreact, and I think in the United States we avoided that. But in Europe, I think that one of the unintended consequences of the Microsoft case was, I think, that the finding of liability — and to some extent the damage that occurred to Microsoft’s credibility — led the European regulators to impose regulations on them that were actually quite anti-competitive and anti-consumer. So I think that one of the things you always have to be alert to in these kind of situations, particularly where the government is involved, is that you want to be sure that the remedy matches the violation. The original remedy by the District Court, which — while very broad — was a divestiture remedy that required the separation of the operating system from the application programming. And that, while quite drastic, would not have inhibited competition in the way that some of the European regulatory acts did. So I think that Microsoft was a very important case. I think it was very important in terms of antitrust enforcement policy here in the United States, but it was not a case that did not have some consequences that I think were not ideal.
Have there been cases that didn’t go as you would have liked, where you feel like you could have done something differently?
David Boies: It’s always hard to know whether you could have done anything differently. Obviously Bush v. Gore did not go the way I would have liked to have it go. But looking back, I can’t see how we could have changed people’s minds, particularly since they stopped the vote counting before we had the argument by the same vote that they decided the ultimate decision: five to four. So I don’t see anything there, although I thought about it a lot.
There was a case that I worked on in the 1970s, rising out of the Jackson State College shootings and the turmoil that followed Martin Luther King’s assassination, where we represented the students that had been injured and the families of the students that had been killed in the Jackson State College shootings. We established that the police had used excessive force. Not too hard when you shoot up a college dormitory. But we established that they had used excessive force in the shootings. But because a lot of what was used was shotguns, we could not trace the bullet or pellet that injured or killed a particular student to a particular gun, so we couldn’t prove which of the officers had been responsible for which injury. Now, we were able to prove which officers used excessive force, but linking that causally to it — now, we thought that that didn’t matter, because they were all engaged in a common activity, and when that is true, you’re responsible for what everybody’s doing. But the courts ruled against us there, and there was never a recovery for those shootings. And that was a case that we tried to take to the Supreme Court, and we got three votes for cert. (certiorari), but you need four, so we missed it. Again, missed it by one Supreme Court Justice. And I’ve not figured out how we could have presented it differently, but that’s the kind of thing that you think about.
Fairly early on in your career at Cravath, Swaine & Moore, you took on General Westmoreland, representing CBS. Tell us what was at stake there, what the circumstances were.
David Boies: In the Westmoreland case, what had happened is CBS had broadcast a documentary that was very critical of General Westmoreland’s handling of the Vietnam War, and General Westmoreland had sued for $120 million in damages. In the 1980s, that was even more money than it is now. What was at stake was the ability of the press to criticize government officials in the conduct of their official activities. This was not a situation in which CBS was printing something about the general’s personal life or accusing him of shoplifting or anything that might be unrelated to his office, his official duties. This is a broadcast criticizing the commanding general in one of America’s most unpopular wars for the conduct of that war, and we thought that it would send a terrible message to say that that commander could then block that criticism and recover damages for it.
In the documentary, he was accused of manipulating data.
David Boies: Enemy troop strength. What the documentary essentially asserted was that in order to keep support for the war at home in the United States, they had given a falsely optimistic picture of how well the war was going, and they had done so in part by manipulating enemy troop strength statistics to show that they were killing and eliminating more of the enemy than they actually were. And so they kept telling the American people that they were winning the war, and they were using these statistics to prove it, but the statistics were not true.
Could you tell us about the outcome of that case? One of the narrators of the documentary was Mike Wallace.
David Boies: Yes. Mike was the primary narrator. The main producer was George Crile, who later wrote Charlie Wilson’s War, a distinguished reporter and author. In addition to General Westmoreland, there were a number of very high-ranking public officials who both were represented in the broadcast and who appeared at trial. And this was a case in which most of the evidence came from witnesses who were not on CBS’s side. Most of the evidence came from military personnel, government officials, former government officials. So we had to make our case largely through cross-examination. And one of the things that we had to do was to demonstrate that Westmoreland’s narrative was not true and that ours was. And again, credibility became critically important. And it was a difficult cross-examination of Westmoreland, because Westmoreland was somebody who had devoted his entire life to serving his country. You might agree or disagree with what he did and what he said, but he was obviously a patriot who had done whatever he did because he believed that was in the country’s interest. So you had to be very careful not to offend the jury by attacking him too early. And here’s — I mentioned patience before — patience was absolutely critical to that cross-examination, because I had to get the jury to understand that he wasn’t being forthcoming before I challenged him, before I asserted that. Because if I had simply gone in on a frontal attack right from the beginning, I could have turned that jury off.
I suppose anything that smacked of disrespect would have been a turnoff.
David Boies: Certainly in the beginning. When I first caught him in inconsistencies, rather than build it up like I said I would ordinarily do, I actually would underplay it. I would say, “Oh, General Westmoreland, you said this. Now that just seems to me a little inconsistent with this document. I’m sure there’s an explanation. Can you tell me what the explanation is?” So I would go through that until — and I did that for a entire day before I really began to pick up the pace, because I wanted the jury to become uncomfortable. And you could just tell, from the way the jurors would look and they’d shift, that his explanations just didn’t hold water. And they understood that. So once they began to understand that he was not being completely accurate in his testimony, you could begin to push him a little harder. One of the critical points in the examination was — this happened after I had built up, I think, some credibility with the jury, and I had undermined the general’s credibility — I asked him whether he had not consciously attempted to convey an optimistic picture, and he said he had not. And I said, “Well General, you certainly went around telling people that there was light at the end of the tunnel. Didn’t you do that?” And he said, “Absolutely not. I wouldn’t do that, because it wasn’t true, and that’s too optimistic, and I would never have said that.” So now I did build it up, because I had a cable from him to Maxwell Taylor saying, “I can now tell you that there’s light at the end of the tunnel.” So once that came out — and it was even more important than — it had to be, because if he had simply said, “Yes, I was optimistic. I believed we were winning,” or if he had simply said, “Yes, I said there was light at the end of the tunnel because I thought there was.” But when he said, “I would never say that. It’s not true,” and then you confronted him, that was a really devastating consequence. And he ultimately just dropped his lawsuit without any payment or any compensation.
So your patience was rewarded.
David Boies: Yes. If the jury reaches a conclusion on their own, as opposed to having it forced on them by you, or even led to it by you, if they reach it on their own, it’s much more powerful to them and much more likely to stay with them, because it’s something they’ve figured out. They own it. It’s theirs.
You’re something of a gambler. You play poker, and you’ve likened litigation to rolling the dice in a way, that small mistakes can make big problems. Could you tell us about that?
David Boies: Gambling and litigation, like flying an airplane or sailing a sailboat in the open ocean, is not intrinsically difficult, but it is terribly unforgiving of even small mistakes. Small mistakes may have disproportionately large adverse consequences. So you have to be patient. You have to be careful, and you have to be sure you understand what the risks are. It’s very easy — in times of stress, tension or excitement — to be less careful, to be less patient, to be more emotional. That can have devastating consequences for a gambler or a lawyer or a pilot or a sailor.
You also must never let your opponent control the dice, control the facts.
David Boies: Control the facts, control the narrative. You’ve got competing narratives. That is, if you’ve got a good opponent, you’ve got competing narratives. You want the jury to focus on your narrative, and you never want to let the other side control your story and control your narrative. Now, that’s not always easy to do, because trials are — you put a witness on, and you examine them, and they examine them. And they always get a chance to ask questions, and they always get a chance to put on their own witnesses. So you can’t control the flow of information that comes in. So what you have to do is, you have to — as well you can — is package, mold, present that information in a way that supports the narrative that you’re presenting. And to do that, probably the single most important thing is to be sure that you understand the narrative and that that narrative is true. Now, everybody is going to pick a true narrative that supports their case. That’s what advocates do. But you must be sure that the narrative is true. There are truths that will support your case, and there are usually some truths that will support the other person’s case. The danger is that you aren’t willing, ready to rely just on the truths that support your case, and what you try to do is, you try to support your case with other things that aren’t going to be able to sustain the weight of cross-examination, the weight of a contrary narrative, the weight of cross-examination from the other side, the weight of contrary documents. Because in that case, if you try to build your narrative on things that you cannot demonstrably prove, you risk losing the credibility of the jury, and you risk confusing the jury, because now they think that some of the things that you put in there that you couldn’t sustain are things that are really important to you, whereas what you want to be doing is trying to convince the jury that the only thing that is important are the truths that support your case.
Does that mean you have to believe that you’re on the right side?
David Boies: Well, it depends what you mean by the right side. Most cases — not every case — but most cases have points, truths, that support that case. Certainly the cases that I do generally don’t get to court unless there is something to be said for both sides. Now, the Perry case, the marriage equality case, was an exception to that rule. The other side just didn’t have a case. They didn’t have any truths that supported that case.
When did you first have a concept of becoming a lawyer?
David Boies: I think in grade school, when I was reading Perry Mason novels. From as early as I can remember, I wanted either to be a high school American history teacher like my father, or a lawyer like Perry Mason.
He solved crimes.
David Boies: It was basically criminal defense, but it was trial work. It was the conducting of a trial, the investigatory phase, the analytical phase. It was very exciting, challenging, and it was the kind of thing that I knew I’d be interested in.
What do you think you had in you that drew you to that field?
David Boies: I think it was just a combination of competitiveness and analytical ability. I’ve never been great at reading, so something where you could use your mind and you could analyze problems and you could present problems orally was something that was attractive to me. But it was the excitement of the challenge.
There’s drama, too.
David Boies: And drama. We’re all actors in the law.
You’re actors in the courtroom?
David Boies: In some way. A trial is essentially a morality play. You’ve got to have a narrative. You’ve got to have a story. You’ve got to be trying to explain to the judge or the jury why your client is right and the other side is wrong. But you’ve got to do it in the context of making them understand how that fits into a narrative that they can believe to be credible.
And as you say, there’s morality involved.
David Boies: There’s always morality involved.
So in that sense, you’re a storyteller.
David Boies: You have to be.
Did you ever think of another way of telling stories? Acting? Writing?
David Boies: Not really. I never really thought about becoming an actor. I have written a couple books, but for me, the sort of highest and best use was in the courtroom or teaching. I still love to teach, and I teach occasionally as an adjunct professor. But I would have been very happy, I think, as an American history teacher, and I’m very happy as a lawyer.
What was it about your dad’s work that you found inspiring as a history teacher?
David Boies: I think it was a combination of things. It was his ability to relate to students. It was his mastery of the subject matter and the interest of the subject matter. You couldn’t not be interested in American history growing up with him. But I think I would have been interested in American history in any event, because I believe it is so important to our culture and so important to the kind of people we are, the kind of values we have, the kind of problems we face and the way we need to reach solutions to those problems. History teaches us so much about that, and about the nature of the American experience, the nature of American culture, the nature of the American people. We are an unusual society, unusual nation. We don’t have a traditional, historical ancestral land. We aren’t of a single race. We’re not of a single religion. There is no sort of ethnic definition of an American. We don’t even have a common language. What binds us together as a people is our culture, and history is really the keeper of that culture.
It sounds like there’s a creative aspect to litigation. You’ve used words like narrative, story, morality play, almost sounding like a playwright. How do you develop your strategies for litigation and what part does creativity play in that?
David Boies: The first things you have to do when you take on a case is what every writer, every investigative reporter, every playwright has to do, and that is understand what the facts are. Understand what the story is that is available there. What is the raw material you have to work with? Who are the characters that you have? What are the events? What are the historical markers that you’ve got to deal with? What are the documents that you have to deal with? And then you try to figure out, what are the truths that support your client? How do you construct a narrative that relies on the truths that are helpful to a narrative that will lead the judge or the jury to find for your client? And that requires all of the analytical and presentational skills of somebody who’s going to put on a play or a movie, a documentary, because what you’re trying to do is, you’re trying to present a narrative that the jury can understand, absorb and be motivated by. Now the complicating factor is that, unlike a play, you can’t write the script for all of the players. You can only write the script and write — the script is — even for your own witnesses, it’s not perfect ability. But you can only determine what witnesses you call for your side. The other side gets a chance to bring in their witnesses, and they get to ask your witnesses questions. So you’ve got to present your story at least in part by asking questions of people who don’t want to give you answers that will help your narrative. And you have to use your ability to ask questions of people who do want to help you to be sure you focus what they say in a way that’s going to provide truthful but supportive answers. It’s easy to get truthful answers if you don’t have to worry about them supporting your case, and you can sometimes get supportive answers if you don’t have to worry about the truth. But to get truthful, supportive answers is what you’ve got to do, and to do that, you’ve got to understand the facts better than anybody else — even better than the parties. When you try a case involving a company, whether it’s your client or somebody else’s client, you’ve got to understand their business, their products, their issues better than they do themselves.
Drama’s an important aspect, too, isn’t it?
David Boies: Drama’s a very important aspect, and it’s important in a couple of respects. First of all, it’s important just so that the jury doesn’t get so bored that they don’t listen. Remember, they don’t have to listen. And if you don’t keep them at least interested enough so that they’re going to pay attention, it doesn’t make any difference how good your case is, because they won’t hear it. They won’t absorb it. So you’ve got to find a way of keeping their interest. And remember, you’re trying, in some cases, to keep their interest for weeks or months about a subject that’s very complicated, that they don’t know anything about. That’s hard. And so unless you have some drama involved in that, you’re going to lose their interest. The second thing that you want to use drama for is to emphasize the points that you make. Those can be points of substance, or they can be points of undercutting the credibility of the other side. But you want to have enough drama there so that you are emphasizing the things that help you. And for example, sometimes a lawyer will find that a witness has said something for the other side — has said something that’s not accurate, and the instinct is to show them a document or something that shows that it’s not accurate and just do that immediately. Now, if you do that, that’s helpful. But if you say to them, “Now, you just said this. You don’t really mean that, do you?” They say, “Oh yes, I absolutely mean it.” “You’re just making that up, aren’t you? You’re just making that up.” Now this is a dramatic confrontation. Now the jury is focusing on it. Now if you’ve made it dramatic, you damn well better be sure that you’ve got it nailed, that you’re going to be able to show to the jury that the person did just make it up, because if you confront them dramatically and then you can’t follow through, not only have you not made your point, but you’ve damaged your credibility. But if you’ve really got it nailed, what you want to do is, you want to build up the conflict. Build it up before you demolish it, so that when you demolish it, it’s a dramatic event that the jury is really focused on.
So you build it up by saying things like, “Do you really mean that?”
David Boies: Yeah. “Did I hear you correctly?” “Is that what you really said?” “You don’t really mean that, do you?”
Where does that inspiration for drama come from?
David Boies: Oh, I think part of it is learned. Part of it is instinctive. Why does somebody want to become an actor or an actress? You have an interest in drama. You have an interest in maybe showing off a little bit. But you have an interest in persuading people, and you use drama to persuade people, to move people.
You mentioned having trouble reading. Did you have a tough time in elementary school?
David Boies: I had a tough time reading in elementary school. Elementary school was not intrinsically difficult for me. But I didn’t read until I was in third grade, at all, and when I did start to read, I read slowly, and I’m still not a fast reader.
You had dyslexia?
David Boies: Dyslexia.
When was that diagnosed?
David Boies: This would have been in 1974, so I was in my middle thirties. What happened was one of my middle children had substantial difficulties reading in kindergarten and early first grade, and so we took him to be tested and analyzed, and they determined he had dyslexia. And the person who was doing that wanted to examine the parents, and it became clear that I was the culprit. But I had never even heard the word dyslexia and didn’t really focus on the fact that I had a learning disability at all. When I grew up — I grew up in a small farming community in Illinois in the 1940s — in that time and in that place, how well a little boy read was not a particularly important factor and certainly was not a defining quality in terms of how either I thought of myself or other people thought of me. I was good at other aspects of school, and the fact that I read slowly didn’t seem to bother most people, and didn’t bother me at the time. That’s quite different for the way children face today. Today, reading and academic competition becomes terribly important, even in early grades, and tends to define the way children look at themselves, their peers look at them, and even their parents look at them. And that’s a terribly disadvantageous thing.
So in a way, you benefited from nobody saying this puts limits on your academic career.
David Boies: Right. Nobody thought that. I didn’t read very well, but I was really good at arithmetic, and I was really good at social studies, and even my reading was masked. My reading problems were masked a little bit by the fact that I could memorize things.
I believe you also had very good powers of concentration.
David Boies: Pretty good. Yes.
In high school, you were on the debate team.
David Boies: Yes. And one of the things that happened on the debate team was — and you know, in debate, you tend to prepare these notecards, and you write down all these things on the notecards, and then during the debate you’ll reference the notecards. And one of the things I found was that, because of my dyslexia, it was really not practical for me to use notecards. It took me too long to find my place in the notecard, read the point and then come back. As you know from interviewing people, if you’ve got a camera or tape recorder running, three or four or five seconds of dead time seems like an eternity. So if you’re in a debate and you lose your place, it takes you three or four or five or six seconds, you’ve sort of lost your audience. So I had to learn to speak extemporaneously. I had to learn to have an outline in my head and then speak around that outline without being tied to notes or scripts. And as I learned that, which was really essential for me given my dyslexia, that turned out to be a very helpful and powerful skill later.
I would imagine there’s almost no more powerful skill in the courtroom than that.
David Boies: It’s that and being able to focus and analyze, and patience. Patience is critical in a trial.
David Boies: You want to give your opponent a chance to make a mistake. You want to be sure that before — you’ve got a trap — before you spring the trap, everything is in place. You want to be sure that your case is well-prepared, that you haven’t gone too far out on a limb. You’ve not exposed your credibility. The most important thing in a trial is credibility, because particularly with a jury, you’ve got 12 citizens who have been brought in, and they don’t know anything about you. They don’t know anything about your opponent. They don’t know anything about the case. In fact, if they know anything about you or your opponent or the case, they probably can’t serve on the jury. So you’ve got a blank slate that you’re working with. Now, how are they going to figure out who to trust? How are they going to figure out who to believe? They’re going to believe the person that has credibility, and that credibility’s built up over time. So if you lose credibility with respect to a point, you’re not only losing that point, but you may be losing your ability to keep the jury’s trust. And if you’ve lost that, you’ve lost the case.
Credibility is built slowly, so that’s an example of the patience you need.
David Boies: That’s right. And you want to be sure that, as you develop your narrative and you develop your case, you are developing something at the beginning that you’ll be able to sustain at the end. Too often, people have the most colorful and persuasive arguments at the beginning that they’re not going to be able to sustain at the end. That’s worse than not having them at all, because not only have you lost it, but you have told the jury that you’ve lost it, and you’ve probably lost your credibility along the way.
You’ve also passed on your passion for the law to some of your kids. That must be a source of pride.
David Boies: It is great. I like what all my children do, but when they are in the practice of law it’s really great. I have two of them in my firm, and I actually get to spend a lot of time with them, which is a little harder sometimes when they’re busy and you’re busy.
So you didn’t become a history teacher, but you’ve made history instead.
David Boies: And I’ve had a chance to be present when history was being made. It’s been a tremendous privilege, that I’ve had the opportunity to do what I’ve done.
Does the concept of the American Dream have resonance for you?
David Boies: Oh, absolutely. I think the American Dream — a dream of equality, of opportunity, of constant progress, of openness, inclusiveness — I think is a core part of what we think of as American culture. I think that the American Dream of that kind of opportunity and equality is what allows us, I think, to be innovative, to be entrepreneurial, to be creative, to take chances. And it is what allows us to not only tolerate but celebrate individual achievement. One of the things that I most regret in the last few decades is the sense of “We/Them, Us/They, One percent/99 percent, the Haves/the Have-not” kind of conflict, where people who have too much are trying to hold onto it. People who don’t have enough are trying to take it from somebody else. What we as a people have always thought is that we work together to try to expand the pie and to try to give every new generation an opportunity. The problem comes when people believe that the new generation is not going to have an equal opportunity. Part of the social compact, I think, that binds us together as a people is the sense that we will tolerate, and as I say, even celebrate somebody else’s success, because we believe our children will have the same opportunity to achieve that success. When that is no longer true, when we no longer think our children are going to get a new deal, then our willingness to tolerate those kind of differences diminishes, and I think that it’s important that we try to get back to the principle of equality of opportunity. It’s not equality of result, but it’s equality of opportunity. But if an unequal result in one generation is going to destroy the equality of opportunity of the next generation, people are not going to tolerate that.
Thank you so much for taking the time to speak with us.
David Boies: Well, thank you.