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David Boies Teaches Master Class at New York Law School

He is one of the best-known lawyers in America.

In 1996, when he received the Milton Gould Award for Outstanding Oral Advocacy, the citation noted that “No lawyer in America has tried and argued on appeal as many landmark cases in as many different areas…”

From 1998 to 2000, he served as Special Trial Counsel for the United States Department of Justice in its anti-trust suit against Microsoft.

In 2000, he represented former Vice-President Al Gore in connection with litigation relating to the 2000 election Florida vote count. That same year, he was named Lawyer of the Year by Time Magazine.

He is David Boies, and on March 2nd, he led a master class in The Rule of Law and the Lawyering Process at New York Law School.

The key to achieving the rule of law, according to Mr. Boies, depends very heavily upon the ability of the men and women who serve as attorneys and judges to divorce a person’s identity from the way they are treated in court. The results of litigation, Mr. Boies said, “should be reasonably predictable without knowing the identities of the parties.”

The problem with achieving this goal, Mr. Boies explained, is that the administration of law is entrusted to people and, inevitably, the points of view people bring to the law influence the administration of law. Mr. Boies said that racial or ethnic bias may influence the rule of law, but these are not the only factors in play. High profile defendants also can be affected by individuals’ personal viewpoints.

“I believe in the adversary system,” Mr. Boies said, “but the problem with the adversary system is that it depends on adversaries.”

Mr. Boies’ current clients include the very high profile Maurice Greenberg ‘50, former chairman and CEO of American International Group (AIG), the world’s largest insurance and financial services corporation.

In May 2005, New York State Attorney General Eliot Spitzer filed a complaint against AIG, Maurice Greenberg and another executive of the company alleging a variety of violations of business practices and insurance and securities law. Mr. Boies said that “there’s no doubt” that Mr. Greenberg’s fame subjected him to a level of scrutiny not applied to others in his industry. He added that he did not believe Mr. Greenberg would ultimately face any criminal charges.

In many instances, Mr. Boies said, one side or the other in a litigation case has advantages, including more financial resources and better attorneys. The challenge is to figure out how to keep the advantages and yet not allow them to overwhelm the other side. Mr. Boies said that the courts had instituted regulations, such as discovery rules, designed to level the playing field, but “that good idea has turned into something that has had the opposite effect in many cases.”

Mr. Boies explained that the right to take endless depositions or request tons of documents means very little when a defendant can’t afford attorneys to do this work. He said the courts recognized the problem and were trying to manage the process better, but it was difficult to do this because there is no structure in place to accommodate these kinds of changes.

“Our justice system works reasonably well if you have parties of equal resources whether the resources are large or limited,” he said. “Where the system breaks down is when one side has all the resources. I don’t think the answer is to get rid of the adversary system. The challenge is to make the adversary system better.”

Mr. Boies said that organizations, including Legal Aid, that represent the poor were one step in the right direction, but the approach of the Bush administration was to cut back funding for legal services for the poor because the White House disliked litigation. Mr. Boies said there are legitimate places to cut back litigation, but not so that the process only works for the wealthy. This kind of fairness, he added, is important not only to individuals, but also to small and mid-sized companies that often are overwhelmed when they get involved in litigation with large corporations.

Electronic discovery further complicates the issue, Mr. Boies said. The courts, he explained, are just now trying to figure out how to deal with the Internet and emails in terms of discovery rules.

There has been progress, however. Mr. Boies reminded his audience that 50 years ago, blacks were excluded from the jury system altogether.

“We’ve come a long way but we have a long way to go, and it’s not always in a straight line,” he said.

Mr. Boies also said that while lawyers needed to recognize the tension between advocating for clients “with unbridled aggressiveness” and the need for justice. He explained that juries identify defendants with their attorneys so “you must never do something that costs you your credibility.”

Mr. Boies said that pro bono work, legal assistance to the poor and contingency fees all helped clients without financial resources to gain their day in court, but the most important factors in leveling the playing field were judicial intervention and supervision. He called for a more rigorous application of the idea that judges act as gatekeepers for expert testimony.

Finally, Mr. Boies told the students that it was important to remember why they wanted to practice law in the first place. Most people who go to law school have an interest in justice, he said, but it is easy to lose sight of that after school.

“You must be an advocate for your client,” he said, “but you also must be an advocate for the justice system.”