Acclaimed litigator David Boies, who has argued some of the biggest and most impactful cases of the past quarter-century, addressed a monumental shift in the U.S. legal system at a recent Meyerson Lecture hosted by the Sandra Day O’Connor College of Law at Arizona State University.
Boies spoke at the Beus Center for Law and Society in downtown Phoenix on Feb. 20. His lecture, titled “Litigation in the Age of Settlement,” addressed a seismic change in which less than 2 percent of civil cases filed in the United States now go to trial, with the great majority being settled by mediation, arbitration or some other means of alternative dispute resolution.
“When I started practicing law, a conference or a speech on this subject would’ve been inconceivable,” Boies said at the start of his lecture. “People didn’t think about alternative ways of solving disputes. If you had a dispute, you filed a lawsuit.”
He continued, “Fast-forward to today and the vast majority of disputes here in the United States are being resolved outside of the courtroom. And there are several consequences of that — some good, some much more complicated.”
Boies has played a central role in some of the nation’s most notable cases, including:
• The United States v. Microsoft antitrust case, in which he represented the U.S. Justice Department.
• Bush v. Gore, representing then Vice President Al Gore in a case that determined the 2000 presidential election.
• Hollingsworth v. Perry, representing a pair of couples in the fight to legalize same-sex marriage in California.
He has been hailed by The New York Times as “the most prominent lawyer in America.” But in an interview, Boies dismissed the suggestion that he is worthy of such accolades.
“That just means I’ve been practicing for a long time,” he said with a laugh. “I get drawn into some prominent cases, and some cases that I get drawn into tend to have a higher profile than they might otherwise, just because I’m involved in them.”
Although he believes prominence heightens responsibility to some degree, he says every lawyer has a responsibility to serve the justice system — a responsibility that goes beyond making a living.
“Practicing law is a business, and you’ve got to have paying clients to support the business,” he said. “But every lawyer has a responsibility to take on cases where the parties may not be able to pay, where the issue is important, either to the development of the law or to the individual cause of justice that’s involved. And I think the more prominent you are, the more responsibility you have in the sense that prominence tends to bring with it successful practice of law. I think those of us who have been blessed with that kind of success have an obligation to take on cases that perhaps people with less resources are not able to take on.”
Litigation in the age of settlement
Boies began his career at Cravath, Swaine & Moore in 1966, working there for three decades before starting his own firm in 1997, Boies, Schiller & Flexner LLP. In the course of his career, courtroom trials have become increasingly rare.
“Many more cases are settled today than were when I started practicing law,” he said. “I think that has to do with a number of factors, but I think that anybody who has watched the practice of law develop over the last half-century will tell you that trials are much less prevalent today as a means of resolving disputes.”
One reason for the shift, he says, is the high cost of litigation, which is a deterrent to some individuals and businesses, and an absolute barrier to others.
“I’m reminded every now and then that 41 years ago, I spoke at the American Bar Association convention, and I said at that time that I thought there was a risk that lawyers were pricing themselves out of the market,” he said. “Legal fees had escalated so much that individuals in the middle class were not really able to afford lawyers, and that even medium and small businesses had trouble paying lawyers’ bills. Over the last 40 years, to show you what a terrible predictor of the future I am, legal fees have simply continued to escalate, far beyond what inflation has been.”
Boies said legal fees have increased since that time by about 150 percent, in addition to inflation, and there are far more lawyers employed today than there were four decades ago.
In addition to soaring legal fees, the cost of losing a case has also risen astronomically, forcing parties to settle to mitigate financial risks.
“The amount at stake in these cases has escalated tremendously, again, far beyond inflation,” said Boies, who was involved in some of the largest antitrust settlements ever for an individual company, having negotiated settlements of $1.8 billion with Mastercard and $2.25 billion with Visa on behalf of American Express. “The verdicts and judgments that can now be obtained are off the charts of what anybody would have predicted a couple of decades ago.”
While financial factors are preventing cases from going to trial, Boies points to another, more positive reason: alternative dispute resolution. With more alternative options available, guided settlements, either through mediation or just bilateral settlements, have become much more common.
Boies says the trend, overall, is positive, as settlements are almost always preferable to litigation. But a settlement-heavy legal system carries consequences.
“I think there’s a danger that if you don’t have enough cases going to trial, you don’t have the opportunity to develop the law, and you don’t really have the kind of guideposts that litigated results provide for settlements,” he said. “I think people ought to settle whenever possible. But at the same time, I don’t think the barriers and risks to trials should be so high that you discourage people from taking cases to trial that really need to be tried.”
The legal system works best, Boies said, when you have two parties who each possess essentially unlimited resources.
“It doesn’t happen very often, but I had the privilege of trying the Microsoft case, representing the Department of Justice, and when you had the U.S. government on the one hand and Microsoft on the other, it was a relatively fair fight,” he said. “Each side had advantages. Microsoft had more money; the Justice Department had the FBI. So both sides were able to hold their own.”
He said it made for the perfect trial, because neither party was limited by a lack of resources. There was not an argument that was left untouched. There was not a document that was not presented. But such a matchup is exceedingly rare, and any party facing an adversary as powerful as Microsoft or the Department of Justice is unlikely to risk a trial.
Boies said the prevalence of settlements has also changed the way lawyers practice, explaining that they now litigate toward a settlement, not a trial. And that changes the way they prepare a case.
“I have been in numerous settlement negotiations with counsel who have never tried a jury case to verdict,” he said. “Among the major law firms in this country — say, the law firms with more than 500 lawyers — fewer than 25 percent of the litigation partners have ever tried a jury case to verdict.”
Boies said lawyers who lack experience are reluctant to take a case to trial for the first time, which can compel settlement, even when it would be in the interest of the client to proceed to trial. And lawyers who lack that experience have less knowledge about how a case should be fairly resolved.
So when, in the age of settlement, should a case go to trial? Boies outlined three types of cases for which settlement is not a viable option:
• “Some cases are cases of basic principle where the parties are simply divided with respect to what the law is or should be, and there really isn’t any way to resolve that short of trial. An example of that was the Bush v. Gore litigation, where I represented Vice President Gore, or the marriage-equality litigation, where we moved to enjoin the enforcement of state laws prohibiting same-sex marriage. Those were issues of fundamental principle that there was no way to actually settle those outside of court.”
• “The second kind of case is where the parties have an institutional interest in the result that goes beyond any particular case. Those are cases which, if it were only one case, and it was a one-time event, it would almost certainly be settled. But that kind of case arises in a variety of contexts. It can arise in a product-liability case area, where a defendant may feel that if they settle a particular case it is simply going to generate more litigation. It can occur sometimes in a defamation case, where a newspaper or broadcaster will feel that if they begin settling any particular case, they will simply generate additional ones. So there are cases where the clients involved have institutional interests that really trump the result of any particular case.”
• “The third kind of case is where the parties are so far apart in their estimate of what the case should resolve for, that settlement is impractical. Now that can be because you simply have two lawyers who look at a case very differently. It can be where a client simply has unrealistic expectation as to the merits of their claim or defense. That is often the kind of case where mediation can be very helpful. Mediation really doesn’t help you in the first two kinds of cases. But an experienced and respected mediator can often bring parties who start out very far apart in their estimate of what a case is worth sufficiently close together so that you can actually get a settlement.”
Justice for all
Boies recently made headlines by declaring that, despite his Democratic leanings, he would be happy to represent President Donald Trump in the investigation led by special counsel Robert Mueller. His willingness to do so is tied to his belief that everybody deserves good counsel, regardless of political differences or the popularity of a particular client of cause.
“The president of the United States, particularly, needs a good lawyer,” Boies said. “I don’t think he’s always been well-served by his lawyers. I think a lawyer — at least a lawyer who is listened to — can make a big difference. And at the time that I said I would represent him, I also said that of course he would have to pay attention to what I said. And that is sometimes a challenge with any client, and I suspect it could be with this particular client. But I think it’s very important that people who are in positions to affect our country and the lives of our citizens have good legal counsel.”
That philosophy does not apply only to the president.
“Part of our justice system depends on lawyers representing clients with whom they may disagree,” he said. “Clients that may be very unpopular in the community. People accused of crimes that may be very unpopular in the community.”
And that’s not just the rich and the powerful.
“In the 1960s, I did civil rights work in Mississippi, and local lawyers would not represent African-Americans in civil rights cases,” he said. “Local attorneys just wouldn’t do that, because it was so contrary to what everybody in their community thought they ought to be doing. And that was a real breakdown in the justice system and a breakdown, I think, in terms of professional responsibility. I also grew up in a time when most lawyers wouldn’t defend people accused of being a communist, because it was such a toxic allegation.”
He says if lawyers were unwilling to represent clients because of political differences or the severity of allegations, the entire justice system would suffer, and the weakest members of society would ultimately suffer the most.
“If you ever get to a situation in which the public or the government decides who deserves a lawyer, I think what you’re going to find is that people who are weak and unpopular at a particular point in time are the people who suffer,” he said. “And I think that the quality of our justice system has been one in which we have used the justice system to consistently expand human rights and human dignity in a way that would not have been possible if lawyers had not been prepared to take on unpopular cases and causes.”
About the Meyerson Lecture
This lecture series is the result of a gift to the Sandra Day O'Connor College of Law at Arizona State University from retired Judge Bruce E. Meyerson and his wife, Mary Ellen Simonson, a graduate of ASU Law. The purpose of the lecture series is to bring to ASU Law leading practitioners and scholars in the field of dispute resolution.