‘Some misfires,’ says David Boies, but at 81 he’s still at it

(Reuters) – Over the course of 55 years practicing law, David Boies has seen many changes — and one constant.

The “basics of trying cases” remain remarkably unchanged, the Boies Schiller Flexner co-founder told me recently over lunch in San Francisco.

Boies, who made his name litigating landmark cases including the federal government’s antitrust suit against Microsoft Corp 25 years ago, noted that while courtroom technology looks very different, trials themselves are still “a morality play where a compelling narrative and credibility are key.”

At age 81, Boies continues to helm major litigations, serving as co-lead counsel in two pending class actions against Alphabet Inc’s Google with billions of dollars at stake.

The day before our April 22 lunch on the patio at the Presidio Social Club in San Francisco, he scored a unanimous win before the U.S. Supreme Court — an unusual feat during these divided times.

Boies represented a Jewish family trying to reclaim a Camille Pissarro painting seized by the Nazis in 1939 – after arguing the case remotely while sick with COVID-19. (He took “a triple dose of antihistamines” beforehand, he told me.)

That win and others recently stand in contrast to troubles Boies has faced in recent years. When we last met in person in the fall of 2018, Boies was grappling with reputational fallout from his work on behalf of ex-Hollywood producer Harvey Weinstein, who was convicted of rape, and failed blood-testing company Theranos, whose founder Elizabeth Holmes earlier this year was found guilty of fraud. Boies represented both before their falls from grace and was criticized for using allegedly intimidating tactics to silence accusers, whistleblowers and journalists.

He bristled when I asked about the representations in a follow-up question last week. “Most of what is now written about my involvement with those clients is flat wrong, and most of the rest is misleadingly incomplete,” he said via email.

More recently, Boies was in the spotlight for notching a financial settlement for Virginia Giuffre, his pro bono client who accused Britain’s Prince Andrew of sexually abusing her when she was underage. Boies called the Giuffre settlement “a great result for our client,” but admitted that “giving up the chance to examine Prince Andrew was certainly a personal disappointment.”

The case settled shortly before the prince was set to be deposed by Boies. Andrew did not admit wrongdoing. The prince’s lawyer, Andrew Brettler of Lavely & Singer, did not respond to a request for comment.

Boies is also kicking off a trial on Friday in Massachusetts state court – a divorce case, of all things — representing the soon-to-be-ex-wife of billionaire Fidelity Investments heir Edward Johnson IV.

And he’s lead counsel in securities class action against Grupo Televisa and co-lead in a products liability class action against automobile manufacturers who installed the Takata exploding air bags.

“It has been a whirlwind,” Boies said of his year to date.

Still, his namesake firm has seen its share of turbulence.

Since 2018, Boies Schiller has been hit with waves of departures shrinking from more than 300 lawyers to about 160 today. According to Law.com, the firm’s gross revenue in 2021 fell about 8% to $230 million compared to 2020, and profits per partner dipped slightly to $2.2 million.

“We have had some misfires in our attempts to transition to new firm leadership,” Boies acknowledged. In January, former deputy chair Natasha Harrison departed to launch her own boutique firm in London. But he said the “leadership team we have in place now is terrific, and the demands on my time (for firm management) are increasingly less.”

In the next few months, Boies expects final approval of a $2.67 billion antitrust class action settlement against Blue Cross Blue Shield. As co-lead counsel with Hausfeld LLP, Boies and his firm are poised to reap a sizeable portion of up to $667.5 million in legal fees.

A status conference in Birmingham, Alabama, federal court is set for May 16, and Boies said he thinks it will be the last hearing before the court signs off on the deal.

Over a meatloaf meatballs appetizer followed by a burger and fries (“That’s a lot of food,” our server commented when the slight Boies placed his order), he took a step back and talked about the changes he’s seen in the legal profession since he joined Cravath, Swaine & Moore as an associate in 1966.

Boies hailed the “greater focus on diversity and inclusion, increased emphasis on pro bono service, and the introduction and use of technology that enables smaller firms to compete with larger firms.”

But he sees other developments as more troubling, noting that increases in hourly rates have made first-tier legal services unaffordable to most individuals and smaller businesses. If “lawyers get paid like investment bankers, they may end up acting, and maybe even having to act, like investment bankers,” he said.

Moreover, he observed, the pressure to raise lawyer compensation in order to recruit competitively has resulted in some firms reducing their pro bono commitments.

Looking forward, the Google suits – one is an antitrust action on behalf of digital publishers, while the other accuses the internet search company of illegally invading the privacy of millions of users – are keeping Boies busy.

They stand as bookends to Boies’ career, which was jumpstarted 50 years ago, when he successfully defended IBM in an antitrust suit brought by the Justice Department.

Still, life is not all work and no play for Boies. He’s going on a one-week bike trip in Portugal in June (the 56th foreign bike trip he and his wife Mary have taken over the last 32 years) followed by a two-week African safari in August.

“I continue my pattern of taking my retirement in installments,” he said.

Our Standards: The Thomson Reuters Trust Principles.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.