Courting Justice: From NY Yankees v. Major League Baseball to Bush v. Gore, 1997-2000 by David Boies. New York: Miramax Books. 2004. Pp. 490. $25.95 (cloth).

New lawyers love to navel gaze.¹ We are all much more interested now than we were even as law students in the various articles about the lives of individual lawyers, or about the trajectory of the profession, or ethical dilemmas and courtroom dramas, or job satisfaction, or even, gulp, the perils that lie in store for us as we navigate our multiple lives as friends, family members and members of our respective communities. Our collective antennae thus twitch when a legal giant unleashes the story of his life, as David Boies has in his recently published autobiography, Courting Justice. There is, in many of us, the sense that though we have assumed a privileged station, this station may demand an exacting price. There is also a sense that this price may be less exacting if only we had a star by which to navigate our course.

David Boies seems to be as bright a star as any. Those who pay attention to the news know that Boies has carved for himself a niche among that small pantheon of attorneys who have achieved widespread prominence for their work as private advocates.²

So impressive are his accomplishments that one of my more respected law professors routinely gushed over Boies' virtuosity at the podium, at one point even suggesting that Boies' learning disability (dyslexia) rendered him almost illiterate. This, he explained, was why Boies developed the type of memory that enabled him to give oral argument without notes.³ Those of us in the class were left with the impression that Boies' talent was almost Mozartian in nature: strange, but unquestionably great, as if imparted from the fingertips of a deity.

Courting Justice brings Boies back to earth. In 12 plain-spoken chapters, the author traces the trajectory of his life from directionless high school graduate all the way to those harrowing minutes in which he argued what has arguably been this century's biggest case (Bush v. Gore) in front of the US Supreme Court.

Each chapter in this book tells the story of a case, and the cases and clients Boies handles are all "big." A short list proves the point. Along with Bush v. Gore, Boies represented the government against Microsoft in the antitrust suit that eventually led to Microsoft's restructuring; he represented CBS against General Westmoreland in a libel suit; and he has sued Sotheby's and Christie's for price-fixing. But these are just a small sample of the matters he's handled.

Thankfully (and even surprisingly), despite these credentials, in very few places does Boies toot his own horn. Impressively, the most nimble litigator in America walks the narrative high-wire quite ably, producing a story about his own eye-popping success without appearing vain and self-satisfied. This helps make Courting Justice both digestible and enjoyable to read.

A new lawyer or law student should not, however, read this book uncritically. It is, after all, a story dedicated almost entirely to one attorney's success, fame, happiness and good fortune. Having read it, one is left with the impression that it is possible to have a career in which one glides from one major victory to another without any serious setbacks. Given what scholars have said about the lives of lawyers (solitary, nasty, brutish and short), ⁴ that is certainly not the case.

A few omissions are worth noting. The first is Boies' very brief description of the trajectory of his legal career. From what he has written, a casual reader might believe that Boies started out in practice, and then almost immediately became a rainmaking partner at a large law firm (Cravath, Swaine & Moore in New York). Even if that were true, which it likely is not, making partner at any big law firm is no walk in the park. As one noted ethics commentator has remarked:

For a number of reasons, the life of a new attorney - particularly a new attorney who is about to begin work at a large law firm - is often an unhappy one. . . If, as one former practitioner wrote, "10 percent of a lawyer's soul dies every 100 billable hours worked in excess of 1,500 per year," then most young attorneys lose half of their souls ever year. ⁵

And much of what is lost is lost in the name of "making partner." ⁶ Boies discusses none of this. A stronger narrative might have treated, even in the most cursory fashion, the grinding process he survived, or for some reason was able to miraculously bypass, on his path to becoming a partner at a large corporate law firm.

This type of story might also have revealed the degree to which much of law practice, especially at the early stages of one's career, is both tedious and mundane. ⁷ Boies avoids this topic all together. To be sure, his book would have been a difficult sell had he taken a wildly different tack. Yet, if he has primarily handled high-profile, high-stakes cases throughout his career in which he has turned out to be the victor, he is very much the exception. There is little dispute that, for most lawyers, much of the practice of law can be both tedious and anonymous. ⁸ In fact, the tedium of law practice is cited by more than one scholar as a major source of unhappiness among lawyers.⁹ So too is the risk and aftermath of a big loss.¹⁰ Some discussion of these realities might have made for a more three-dimensional description of the profession.

Boies might also have added a cautionary note about the difficult challenges that await a lawyer as he attempts to maintain some semblance of a family life. While reading about his rise to prominence, we learn very little about why, for instance, two of his marriages broke up. At least part of the reason had to be attributable to the demands of the profession. A brief explanation might have confirmed or denied this, and confirmation or denial might have either highlighted or called into question the commonly proffered reasons why the divorce rate among lawyers is higher than among other professionals.¹¹

All this brings me back to this section's larger observation: unlike Boies, studies suggest that many big firm lawyers are both unhappy and unsatisfied.¹² They have little control over the work they do, they have little contact with their families, and they work too hard on cases they care little for.¹³ Boies' story is therefore the exception. Those reading it uncritically, and then relying on it to make career decisions, risk being misled into beginning a career that is very different from what is described and in many ways much more difficult. And that would be a grave misfortune.

Michael S. Lewis, admitted to the NH Bar in 2004, is a law clerk at the US District Court, District of NH. This is his first article for Bar News.

Endnotes

1. "Navel gazing," of course, is not unique to this group. See Seth Waxman, Rebuilding Bridges: The Bar, the Bench and the Academy, 150 U. Pa. L. Rev. 1905, 1906 (citing Fred Rodell, Goodbye to Law Reviews, 23 Va. L. Rev. 38, 38 (1936) for the proposition that law professors are guilty of the same).

2. See, e.g., Leonard Orland, Symposium: Teaching Antitrust During Microsoft, 31 Conn. L. Rev. 1375, 1377 (describing Boies as a "superstar" and "superlitigator"); Carlyn Kolker, Playing Catch-up, The American Lawyer, The American Lawyer, Aug. 2004 (describing Boies as a "legendary litigator").

3. I think it no coincidence that this story bears a close resemblance to stories about the great Greek orator, Demosthenes, who learned to control his stuttering by rehearsing speeches with pebbles in his mouth.

4. See, e.g., Patrick J. Schlitz, On Being a Happy, Healthy and Ethicial Member of an Unhappy, Unhealthy, Unethical Profession, 52 Vand. L. Rev. 871 (1999).

5. Patrick J. Schlitz, Legal Ethics in Decline: The Elite Law Firm, the Elite Law School, and the Moral Formation of the Novice Attorney, 82 Minn. L. Rev. 705, 725-26 (1998).

6. See Schlitz, supra n.4 at 901; See also Deborah L. Rhode, Balanced Lives for Lawyers, 70 Fordham L. Rev. 2207, 2213 (2002) (arguing that "reduced hours should not be a bar to partnership," though such an arrangement often is).

7. See Schlitz, supra n.4 at 911; see also Richard Rosenthal, Reacting to Change is a Necessity, The National Law Journal, Apr. 18, 2005 at R2 (stating that "[i]t is boring to work in a large law firm").

8. See Schlitz, supra n.4 at 925.

9. See, e.g., Schlitz, supra n.4 at 925; Martin E.P. Seligman, Paul R. Verkuil, & Terry H. Kang, Why Lawyers are Unhappy, 23 Cardozo L. Rev. 33, 42 (explaining that many novice lawyers experience unhappiness because they remain "cloistered and isolated in a library" for the first few years of practice); Peter J. Riga, The Spirituality of Lawyering, 40 Catholic Law. 295, 303-04 (2001) (explaining how navigating procedural disputes can be a soul depleting experience for many lawyers).

10. See Mark Hansen, Lost and Found, ABA Journal, May 2005 at 34.

11. See Schlitz, supra n.4 at 877-78.

12. See Seligman, Verkuil & Kang, supra n.14 at 33 (describing how "many bright attorneys grow disillusioned and cynical, with diminishing career opportunities," and how this had led "many lawyers [to] leave the law firm, and some the practice of law, prematurely."); see also John P. Heinz, Kathleen E. Hull, Ava A. Harter, Lawyers and Their Discontents: Findings from a Survey of the Chicago Bar, 74 Ind. L. J. 735 (1999) (describing "a crisis of morale" in the profession).

13. See A Conversation with the Chief Justice, New Hampshire Bar Journal, Vol. 45, No. 4 at 9 (Winter 2005) (in which the Chief Justice of the New Hampshire Supreme Court comments generally on the difficulty of modern legal practice).

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