Skip to comments.IBM-SCO: David Boies Describes His Litigation Technique
Posted on 04/07/2004 8:46:39 AM PDT by WL-law
For followers of the SCO/Linux litigation: I had the surprise opportunity to attend a lecture last night given by -- guess who -- SCO's lead attorney David Boies, presented at the R.E. Lee Chapel at Washington and Lee U. -- Boise was standing before the tomb of General R.E. Lee as he spoke, which struck a bit of an odd note to my ear.
Boies described, in a general presentation to practitioners, his recipe for a successful litigation style as "don't focus on the particulars of your case, because a jury can't understand the details, focus on the big picture, e.g., the aggrieved rights of the plaintiff, etc"
Hmmm. I'd say that IS the problem with the SCO action -- that the merits of their claim disappear under close scrutiny, and the web (Groklaw.net and other sites) have provided a platform for the "details" to emerge and to be scrutinized.
And it seems that Boies' litigation strategy in the Bush-Gore trial in Tallahassie suffered the same defect (remember the cross-examination of Boies' German statistician from Yale U., for example?), and the Bush lawyers cleaned Boies' clock.
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Then he probably should have stuck to those kinds of cases: Microsoft, lost; Gore, lost; SCO, losing.
I have heard he's a good lawyer in general though, very eloquent and very prepared. Even the paralegal founder of Groklaw (which the MS/SCO lackeys here will say is useless because of its admitted free software bias) has praised Boies' past work.
I was extremely impressed with his pure cross-examination skills in the Florida case, and clearly he's tenacious in that respect. That's why he took Bill Gates apart.
But in the SCO-IBM case his complaint is built, in what seems to be Boies' typical style, out of a strained and arguably-wrong general theory of derivative works, and also a strained and clearly-wrong interpretation of the breadth of the Confidentiality Clause in the IBM-ATT contracts.
It would seem that his litigation strategy and jury-framing strategy are the same, i.e., to steer the factfinders away from the words on the page and argue at a higher level that it was 'wrong' for IBM to participate in the creation of a newer, better UNIX, and that IBM should pay because it has deep pockets, and that Canopy/SCO must own something because they paid Novell a lot of money for whatever they have.
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