IBM-SCO: David Boies Describes His Litigation Technique

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.

This is civil litigation between private parties in front of a jury vs. hearings before judges on political matters.

Boies strategy for the litigation makes perfect sense, because too many jurors are dumber than a box of rocks, want to stick it to somebody, and (if Microsoft somehow keeps its name out of all of this) IBM is the somebody to stick it to.

The man is a disgrace, but so is SCO.

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I knew Boies a little in the '80s. He is a very good lawyer. His advice here is on how to frame the case for a jury, not about preparing the case. I've seen Boies in action in takeover cases. I've seen some of the best in the business in New York in action, and Boies is one of the very best. I have never seen anyone better prepared than he was on the matters I saw him work.

I've seen Boies in action in takeover cases. I've seen some of the best in the business in New York in action, and Boies is one of the very best.

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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