Fighting fire with fire in suit against Microsoft Lawyer: The government turns to David Boies, an outsider with a fierce knack for winning -- including the last big antitrust case like this.

October 19, 1998|By Jon Morgan | Jon Morgan,SUN STAFF

This is how desperate the U.S. Justice Department is to win its epic fight against Microsoft: It hired as lead attorney an outsider who doesn't use a computer, dresses like a car salesman and humiliated the government the last time it tried a case like this.

But 57-year-old superlawyer David Boies has a fearsome knack for winning.

The stakes will be high in U.S. vs. Microsoft Corp., which begins today in federal court in Washington. The outcome will help determine how much success is too much for an American corporation and who will lead the computer revolution into the next century.

"The Microsoft case is possibly one of the most important cases in history. Not just to antitrust, but to the future of the information industry," says Alan McAdams, a Cornell University economist.

No wonder then that the government's list of witnesses reads like a roll call of victims of Microsoft and Bill Gates, its co-founder: Apple. Sun Microsystem. Intuit. Netscape. They will all be there, bitter adversaries that couldn't catch Microsoft in the marketplace and are hoping the government will harpoon it in a courtroom.

Their hopes will be riding on Boies, a man with a comic lack of computer savvy -- he writes his briefs by hand and has his secretary retrieve and print out his e-mail -- and a penchant for blackjack and "Star Trek" reruns.

But he is a merciless, unrelenting litigator who opponents underestimate at their peril. He won the last big case like this, when the government failed in 1982 to break up International Business Machines Corp.

"It was a brilliant move for the Justice Department to hire him. It is like a football team hiring the coach of its opponent," says William E. Kovocic, a visiting law professor at George Washington University and an expert on antitrust law.

Boies, who has been preparing for trial and hasn't responded to recent interview requests, has a roster of trophy clients, including the New York Yankees and the government of France, who pay $600 an hour for his advice. As "special trial counsel" for the government, he will get the prorated equivalent of $101,142 a year -- roughly the hourly fee of a telephone repairman on overtime.

But U.S. vs. Microsoft Corp. is about more than money. It is about history, says Jonathan Schiller, Boies' partner at Boies & Schiller, explaining why the two agreed to Boies' hiatus from their 1-year-old firm.

Near-photographic memory

Friends and foes alike credit Boies with a masterful courtroom presentation. He has a near-photographic memory and works largely without notes. He eschews complicated vocabulary in favor of a down-to-earth manner that endears him to a jury.

Others say Boies can be demanding and sharp-tongued, even with members of his team. He doesn't take losing easily: When a key ruling goes against him, he has been known to turn red and shake with anger.

This he keeps from juries, however.

"He's very low-key, thoughtful. He takes his work, but not himself, seriously," says Mike Wallace, the CBS newsman and "60 Minutes" correspondent. Boies defended Wallace and CBS in a libel suit brought by retired Gen. William Westmoreland over a 1982 story criticizing his conduct of the Vietnam War.

Wallace credits Boies and his cool courtroom demeanor with pushing the Westmoreland legal team to a no-cash, no-apology surrender before a verdict was rendered. "He scared the dickens out of them," he says.

Scaring opponents has been lucrative for Boies, who reportedly has earned $2 million annually in recent years. He and his third wife, Mary, a lawyer he married in 1982, built a brick mansion on 10 acres overlooking the rolling hills of Westchester County in Armonk, N.Y. The house has a pool, a tennis court, and a pair of teen-agers (he has six children; two from each marriage).

Between trials he can be found bicycling through France with his family or sailing the Caribbean at the helm of Coconut, his 75-foot sailboat.

But that's where the resemblance to a typical Wall Street lawyer ends.

"He's a wild duck. He doesn't fly in formation," says George Vradenburg III, senior vice president and general counsel for America Online Inc. and a former colleague of Boies.

Boies often needs a haircut and buys his plain blue suits off the rack. He spent much of his youth in Southern California playing bridge or the ponies, and he still likes to unwind at the blackjack tables in Las Vegas and Atlantic City, N.J. He prefers television -- "anything that moves and is in color" -- to high-minded literature, Vradenburg says: "He's not a guy that sits at home and reads Kissinger's memoirs."

Clients don't seem to mind. Boies' resume is studded with high-profile victories. He got Westinghouse Electric Corp. off the hook when the Philippine government accused it of winning a nuclear power plant job with bribery. Working for the Federal Deposit Insurance Corp. in its insider-trading case against junk bond king Michael Milken and Drexel Burnham Lambert Inc., he negotiated a $1.1 billion settlement.

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