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Robert Silver - Who and Why
Friday, July 09 2004 @ 05:58 AM EDT has the most eye-opening article about David Boies and his firm. It is an older article, from February of 2003, which is just after SCO retained the firm, and the article explains some of the puzzling things we've noticed, like the abundance of typos in their legal pleadings. When you retain Boies, Schiller, you are expecting David Boies, that level of quality. According to the article, that isn't always what you get.

It also explains a bit about Robert Silver, who was added [pdf] to the SCO team on the IBM case on May 28, mentioned in the June teleconference, and who has just been added [pdf] to the SCO team on the Novell case, according to Pacer [it may take a while for our PDF to show up on our server]. He is also listed as co-counsel on the SCO Complaint against DaimlerChrysler. It looks like they hope he is the cavalry.

It turns out that he worked at Cravath with Boies, and when Boies left to start his own firm in 1997, Silver went with him. So he was one of the original founding members. Now, Cravath has no bad lawyers, because they only hire the best of the best. And we can be sure that Boies didn't form his new firm with anyone he didn't think was good. So I assume that Mr. Silver is in the best category. Boies certainly thinks so, saying this in 2000:

". . . Boies calls litigator Robert Silver, 43, who has helped handle some of the firm's biggest cases and is also building its roster of dot-com clients, 'one of the two smartest lawyers I know.'"

According to the Boies, Schiller web site, he's a senior partner in the Armonk office of the firm. [When you get to the link, choose lawyer profiles, then you'll find the alphabet, so just choose S and then look for his name. Lots of irritating Flash and tables going on at Boies, Schiller's web site and no way to link to an inside page.]

He's a Yale man, and a member of the Executive Committee of his firm. He clerked for Judge Jon O. Newman, United States Court of Appeals for the Second Circuit. [You might enjoy reading "Beyond Napster, Beyond the United States: The Technological and International Legal Barriers to On-Line Copyright Enforcement", listed on that linked-to page, because it explains Copyright Law and all the ways under that law they managed to find to squish Napster like a bug, including vicarious copyright infringement.]

When firms are looking for the best of the best, they look for two things: the school they graduated from and if they clerked for a judge. Working as a law clerk for a judge is the ideal way to get real-world knowledge and skills to add to your book learning. And judges only take on the best of the best as their clerks, so it's a signal of excellence. There can be further refinements in the analysis, depending on which judge a candidate clerked for.

Silver worked with Boies defending IBM in their antitrust lawsuit, on the Microsoft case, and on the Gore litigation. And as Groklaw already discussed, he worked with Boies on the unsuccessful Jurisline case and on Napster which they also lost. Those two I didn't see on the Silver bio on the web site. Here's another case that resulted in ethics charges being filed in Florida against an attorney for paying a witness, and he was barred from practicing for 90 days. Silver and Boies were serving as co-counsel on the case, but as a NY firm, Florida could not file charges against them.

Since 1997, the new firm has grown like Topsy, without much structure and very little administrative oversight, according to the article, and because Boies is incapable of turning down cases, they have been growing faster than they had the manpower to handle the work. Remember my puzzlement that Boies took on the SCO case? Well, apparently he takes on anyone that asks. He represented Gore pro bono, and he reportedly worked for a reduced fee on the Microsoft case, although the two sites that mention a fee don't agree on the amount. His normal fee at the time was reported to be $750/hour. One site said he worked for $40 an hour and the other said $250. Either way, it's a major reduction. Here's a chart of their growth. At the beginning, they hired associates carefully. But they started growing so fast, eventually they acquired two firms, associates and all, so they'd overnight have enough manpower to handle the case load. Associates are lower than partners, and while a firm like Cravath carefully hires associates, Boies just made a deal over dinner to acquire the Miami firm of Zack, Kosnitzky, lock, stock, and barrel. You will recognize that name from the legal documents SCO has been filing.

Apparently some feel not all of the associates brought on board with the two mergers had best of the best credentials. So they set up a new system, whereby the really good lawyers on the partnership track get paid more and do the harder chores. The associates not on the partnership track get paid less and do lesser tasks, like discovery responses. But no matter how fast they hired, says, they remain understaffed or overbooked, depending on how you want to look at it.

The legal world has begun to notice that there have been problems. After he lost the Gore case, there was plenty of Monday morning quarterbacking, as the Time article relates:

"Top trial lawyers with no grudge against Boies agreed that he made missteps. At trial, they said, he presented the wrong witnesses. On appeal, he showed a faulty grasp of the jurisdictional issues, and he boxed himself in by arguing that Dec. 12 was a meaningful deadline. Throughout, he spent too much time talking to the cameras and not enough time preparing.

"Even some admirers say Boies can be less than straightforward during settlement negotiations, and many complain that he's maddeningly, even irresponsibly hard to reach because of his tendency to do 17 things at once. His partner Robert Silver acknowledges that 'life might be easier' if Boies did only 13 things at once. 'But,' Silver adds, 'you wouldn't want to tinker with the psychology' that makes him eager to do 17 things in the first place."

The article mentions a case, Klein v. Warnaco, where the Boies firm represented Calvin Klein, and there are allegations that they were seriously understaffed and fortunate that the case settled, because some worried they were not prepared for trial:

"The Zack merger raised still more questions. At the time of the merger, lawyers at Boies Schiller say, they had heard of Stephen Zack, but not much about his firm. And most of the lawyers at the Zack firm, both associates and partners, didn't possess the sorts of backgrounds, at least on paper, that one finds at elite firms. Boies concedes this but asserts, 'The correlation of who is a great litigator and their paper pedigree is not that close.' . . . .

"'I think the firm can be stretched thin at times,' says a former associate. 'You want to do the best work you can, but you may not have enough time to do it.' Another ex-associate offers: 'There can be a problem of [associates] being spread too far out. Some associates rise to the occasion, but sometimes there are not enough hours in the day to put in super-high-end work.'

"One such instance, according to former firm lawyers, was Boies Schiller's representation of Calvin Klein Inc. in a dispute with his jeans manufacturer, Warnaco Group Inc.

"As Klein v. Warnaco careened toward trial, Boies Schiller had trouble keeping up, according to lawyers who were then at the firm. '[The case] was way understaffed,' says one of the Boies Schiller lawyers. 'It was thought of as a badly run case,' says another lawyer from the firm, who believes that the quality of Boies Schiller's briefs suffered as the case dragged on. A review of the case file suggests as much. On Dec. 15, 2000, for example, during a stretch when the firms exchanged a flurry of summary judgment motions, Boies Schiller filed a brief riddled with typographical errors."

Sound familiar? I was talking with a lawyer the other day about the quality of the work in the SCO case, and I mentioned that Boies must have gone walkabout or something, because the quality wasn't at all what I was expecting. I guess the firm, or SCO, has finally noticed it too, and realize that they need to assign someone like Silver on the case before they sink like a stone. The angst is more likely SCO's, because Boies has been quoted as not worrying unduly about losing cases:

"'Why should I worry?' he once asked his wife Mary, an accomplished lawyer, during another epic case several years ago. 'Because I might lose? That's the worst thing that could happen to me?'"

Anyway, Boies is known to enjoy gambling. The meaning I derive from Silver's assignment to IBM, Novell and DC is that they, or SCO, may be worried that SCO's case is going badly. I think it also means we can expect the quality of the work to improve, unfortunately, so it could drag things out, and *then* SCO will sink like a stone.

The article ends with a lawyer making a suggestion that the firm reduce its case load by about 20%. Hey, I know just the case to lop off first.

Joke. Joke. It's hard to get off a case once you agree to take it on. They are probably stuck with this turkey. And as we've seen from their track record, it takes more than a great lawyer to win with a turkey.


Robert Silver - Who and Why | 196 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Typos and other Corrections...
Authored by: Anonomous on Friday, July 09 2004 @ 08:52 AM EDT
...or whatever.

[ Reply to This | # ]

OT and links here please.
Authored by: bruce_s on Friday, July 09 2004 @ 08:54 AM EDT
OT and links here please.

Bruce S.

[ Reply to This | # ]

New Topics and Links
Authored by: Anonomous on Friday, July 09 2004 @ 08:54 AM EDT
...formerly OTs

[ Reply to This | # ]

Trolls, puns and other nonsense please post here
Authored by: Anonymous on Friday, July 09 2004 @ 09:07 AM EDT

[ Reply to This | # ]

Robert Silver - Who and Why
Authored by: Anonymous on Friday, July 09 2004 @ 09:07 AM EDT
But... Darl said they have the "best lawyers in the world"
on the last conf call.... shurely some mishtake?

Darl is like a Tourettes' sufferer with the rude words
edited out.

[ Reply to This | # ]

Robert Silver - Who and Why
Authored by: Latesigner on Friday, July 09 2004 @ 09:07 AM EDT
What is the definition of shyster ?

[ Reply to This | # ]

  • shyster - Authored by: Anonymous on Friday, July 09 2004 @ 09:26 AM EDT
  • Shyster: Defined? - Authored by: Anonymous on Friday, July 09 2004 @ 10:00 AM EDT
  • shyster - Authored by: s21mag on Friday, July 09 2004 @ 10:09 AM EDT
    • shyster - Authored by: darthaggie on Friday, July 09 2004 @ 10:44 AM EDT
      • shyster - Authored by: frk3 on Friday, July 09 2004 @ 12:14 PM EDT
    • shyster - Authored by: ansak on Friday, July 09 2004 @ 10:53 AM EDT
    • shyster - Authored by: Anonymous on Friday, July 09 2004 @ 11:17 AM EDT
  • Shysters - Who and Why - Authored by: Anonymous on Friday, July 09 2004 @ 12:01 PM EDT
Speaking of stones...
Authored by: Anonymous on Friday, July 09 2004 @ 09:10 AM EDT
Not everyone can be a lawyer but anyone can be a critic.

[ Reply to This | # ]

Robert Silver - Who and Why
Authored by: Anonymous on Friday, July 09 2004 @ 09:25 AM EDT
There's only so much window dreesing that can be applied here. At it's heart,
the case is based upon faulty premises and assumptions and is a dog with fleas.
Even a well dressed dog is still a dog. This ship is going to sink no matter
who's at the helm. It's just a matter of how long it will take.

Anyone else wondering if Boies has tried to convince SCO to settle the case and
get out from under it? If anyone at Boies' law firm is doing their homework, by
this time they have to know this is a losing cause and was a big risk to begin
with. I wonder if SCO is playing games with Boies (oh, we'll get the evidence to
you, don't worry...)?

[ Reply to This | # ]

Robert Silver - Who and Why
Authored by: Anonymous on Friday, July 09 2004 @ 10:57 AM EDT
"'Why should I worry?' he once asked his wife Mary, an accomplished lawyer, during another epic case several years ago. 'Because I might lose? That's the worst thing that could happen to me?'"

Oh yeah, that's the kind of lawyer I want working for me.

-1 Sarcasm

[ Reply to This | # ]

Robert Silver - Who and Why
Authored by: Anonymous on Friday, July 09 2004 @ 10:59 AM EDT
Reading this leads me to wonder, how many cases do Boise and his crew actually

[ Reply to This | # ]

Robert Silver - Who and Why
Authored by: blacklight on Friday, July 09 2004 @ 11:01 AM EDT
Let's pretend that we are merchant ship sailors on the Spanish Main and lo and
behold - a pirate ship is gunning for our tails. Let's say that the pirate ship
is horribly captained and that it is taking sea water by the barrelful because
our cannons are punching multiple holes below its waterline. Should we empathize
and stop shooting until the pirate ship gets its act together, or do we keep
shooting until their crew becomes shark finger food and barracuda canapes?

[ Reply to This | # ]

Robert Silver - Who and Why
Authored by: Anonymous on Friday, July 09 2004 @ 12:01 PM EDT
SCO is scrampling to find a law firm that will still tell them they have a good
chance to win, and will put that in writting. It is a public company. You have
to cover your hinie at all times while CEO of a public company...

[ Reply to This | # ]

Robert Silver - Who and Why
Authored by: Tsu Dho Nimh on Friday, July 09 2004 @ 12:11 PM EDT
"The associates not on the partnership track get paid less and do lesser
tasks, like discovery responses."

The devil is in the details, even the minor ones like discovery responses.
That's where Cravath Swain is killing them: they are consistently high quality,
even on the "routine" filings. They are not using lesser-paid
overworked associates to write their stuff. (lesser-paid, undoubtedly - I doubt
the case load is as brutal as Boies Shiller's)

""I think the firm can be stretched thin at times," says a former
associate. "You want to do the best work you can, but you may not have
enough time to do it.""
We've all noticed the last minute, expresso-fueled frenzy quality of some of
the filings - with a 5 BILLION pot of gold at the end of the rainbow, one
wonders why they don't make the resources available to do a quality job.

[ Reply to This | # ]

The GNU Joke page - Lawyers
Authored by: Nick_UK on Friday, July 09 2004 @ 01:16 PM EDT

Open source has everything!!

The Official GNU lawyer joke page

Nick :)

[ Reply to This | # ]

2 comments deleted
Authored by: PJ on Friday, July 09 2004 @ 01:21 PM EDT
Just letting you know that two comments had to be deleted, one for bad language and the other because the person posted Mr. Silver's telephone number and email address, which I don't think is appropriate. I don't want to contribute to anyone's spam load or worse.

On the first, aside from the language, it was challenging the credentials of Boies and Silver. I'd like to mention that this article is not intended to say that at all. On the contrary. I wish both attorneys were on our side. I wish they understood the tech better, so they'd understand how serious their attack on the GPL and Linux is, that this isn't a normal business situation at all where it's only about money, and that they are being paid to do damage to something that many of us consider precious and more valuable than mere gold, the freedoms the GPL guarantees. I have real respect for Boies' abilities, if not his choice to take this case. And I'm very glad the firm is overloaded and that the case is such a turkey.

[ Reply to This | # ]

Mmmm ... Turkey .... with dressing
Authored by: AllParadox on Friday, July 09 2004 @ 01:28 PM EDT
I will differ from PJ, but only philosophically.

Boies, Schiller has done the open source movement a favor that is difficult to
overstate. Contrary to all the hair-pulling and teeth-gnashing regularly posted
on Groklaw, I see this whole process as very, very good for Linux and the GPL.

The time had come. Linux and the GPL needed a good test case. We needed a case
where the ownership issues were clear-cut (and so far, the Linux ownership
issues are!) We needed a case that was high-profile, so that it was clear that a
real effort went into the arguments and presentation, so it was clear that the
other side truly had their position presented. We needed a case where IP
ownership was primary, or one of the primary issues in the case. We needed a
case that was a trap - once the parties filed and a little time elapsed, the
other side had to lose without dismissal or settlement, to keep Microsoft and
other very interested parties from engineering a more palatable solution.

Please let me assure everyone: no amount of money could have purchased this
fouled up mess to test the GPL or Linux. It is just too much of a running

Also, there is no need to be afraid that this will somehow be saved at the last
minute. Think of a car speeding over a cliff. The front wheels are already
off, and the back wheels are following. Applying brakes some time ago might
have been successful. Now is way past too late, no matter how skilled the
driver, no matter how he manages the controls.

I knew an attorney who said that a case with great facts and a mediocre lawyer
beats a case with mediocre facts and great lawyers, when you get the choice.
You just cannot make up for mediocre fact situations.

The thing that the "best of the best" miss is the day-to-day slugfests
in lonely courtrooms, just you, the other lawyer, the judge, and the court
reporter. This is where the wheat is separated from the chaff, where the value
of good facts, well presented, with good legal foundations, show their value.
This is where the relationship with the trial judge is so critical, something
that appears not to matter to the SCO attorneys. Many, many cases never pass
this point. Usually, they are so decisively won, or lost, that there is no
value in appealing. The "best-of-the-best" never see them in the
courts of appeals.

Perhaps, now, with PJ's comments, I have some insight into the Microsoft
anti-trust case. When it was going on, I often wondered where the blood was.
When attorneys or their clients pulled antics like the things in that case,
nothing happened.

Trial lawyers I knew would make you bleed for allowing Bill Gates to take ten
minutes from the end of a question until starting to answer, during a
deposition. Some of them would even have used opposing trial counsel as
witnesses during a voire dire to determine if unethical conduct ocurred. That
delaying tactic would happen during day one of depositions, that one day only,
and probably not past noon.

I, for one, want Boies, Schiller to stay on this case, and to put their best
effort into saving it, from now on.

That way, we can all have it well done ... with dressing on the side.

All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

Suspect in AltaVista hacking case works at Microsoft
Authored by: Anonymous on Friday, July 09 2004 @ 02:25 PM EDT

A Kirkland man arrested last week on allegations that he stole proprietary
technology from the AltaVista search engine two years ago is a Microsoft Corp.
employee who has been working on the Redmond company's MSN Search initiative.

[ Reply to This | # ]

Authored by: chennes on Friday, July 09 2004 @ 02:29 PM EDT
Replace Naptster with Napster.

[ Reply to This | # ]

OT: What's up with this chart
Authored by: Anonymous on Friday, July 09 2004 @ 03:01 PM EDT
What's up with this chart?

SCOX's stock chart is increasingly looking like Holland

(Except it's firmly stuck $5 above sea level)

[ Reply to This | # ]

Silver and Boies--more history
Authored by: marbux on Friday, July 09 2004 @ 03:05 PM EDT
Their web site mentions that Silver and Boies worked on the Texaco-Pennzoil litigation. In that case, of course, they lost the largest jury award of damages in history to a lawyer who nearly flunked out during his first year of law school. Joe Jamail oral history (pdf).

I disagree with the premise that law school choices and judicial clerkships produce the best of the best. Clerkships tend to expose excellent legal researchers and writers, not trial lawyers. And choice of law school has very little to do with courtroom abilities.

Large law firms like to project the idea that their hiring selection criteria for entry level attorneys means they have the best lawyers. In my experience, it just ain't so. The curriculum at law schools is pretty much standardized across the U.S. because of U.S. Bar Association accreditation requirements, and effective communication--the most powerful weapon of the more-than-competent lawyer--is not something that gets much more than a passing glance in law school. I think most lawyers would agree that the real "schooling" begins when you actually begin practicing law.

We all use the same bathrooms at the courthouse, regardless of what law school we went to, what grades we got, or whether we clerked for a judge at some time in the past. And outstanding trial lawyers are born, not created by law schools.

[ Reply to This | # ]

The cheap bastard
Authored by: Anonymous on Friday, July 09 2004 @ 04:16 PM EDT
I was thinking of cutting my rates to $250 an hour, but how can you live like a
civilized human being on that kind of money? It's practically blue collar.

[ Reply to This | # ]

Robert Silver - Who and Why
Authored by: Anonymous on Friday, July 09 2004 @ 04:48 PM EDT
The fact that Boise Shiller takes any case is interesting. When they originally
took the SCO case, a lot of people (including Darl McBride, as I recall) said,
"SCO must have a good case, or Boise Shiller wouldn't have taken it."
Now it looks like they didn't look to see if SCO had a leg to stand on, they
just signed up.

[ Reply to This | # ]

Boises involvement in the SCO case.
Authored by: Anonymous on Friday, July 09 2004 @ 05:06 PM EDT
I seriously doubt if the SCO case is driven by Boise.

Did Boise advise SCO to take on IBM in litigation? I doubt it.

Did Boise advise SCO it would be possible to sucessfully sue IBM for 1 million,
no make that 3 million, no make that 5 million. Again I doubt it.

Did Boise prepare the shoddy claims filed initially for SCO against IBM, most of
which had been dropped? I seriously doubt it.

Did Boise advise SCO to sue Daimler Benz and Autozone? Again I doubt it.

I think all of these were initiated by SCO with a scam in mind. SCO just needed
a big name lawyer to look good in the media. I also think SCO is paying Boise
for the minimum amount of work possible, and that they are certainly not paying
him for advice. I am also certain that if SCO had asked Boise for advice on
whether SCO should go ahead with litigation against the various parties or on
thev merit of their case, he would have strongly advised them not to go ahead
(as any lawyer with any sense would).

I am sure SCO hired Boise for no other reason than to make it seem to the media
that their case had credibility based on what I believe is a false assumption
that Boise advised SCO to take the case. SCO and their FUDsters (eg. Rob
Enderle) certainly had pushed this in the media as far as they could. I also
don't think SCO ever intended to win the lawsuit anyway - it is a classic scam,
a classic frivolous lawsuit as far as I can see.

[ Reply to This | # ]

How much?!
Authored by: Anonymous on Saturday, July 10 2004 @ 01:08 AM EDT
US$750 an hour? For what exactly? For not knowing the basics of copyright law?

[ Reply to This | # ]

  • How much?! - Authored by: Anonymous on Sunday, July 11 2004 @ 05:59 PM EDT
  • How much?! - Authored by: Greebo on Monday, July 12 2004 @ 06:58 AM EDT
Robert Silver - Who and Why
Authored by: Anonymous on Saturday, July 10 2004 @ 03:56 PM EDT
". . . Boies calls litigator Robert Silver, 'one of the two smartest
lawyers I know.'"

Who's the other one? Boies himself?

[ Reply to This | # ]

Authored by: technoCon on Sunday, July 11 2004 @ 04:27 AM EDT
Can anyone tell me why someone thinks lawyer X is really good? As a matter of
general principle?

In the case of Mr. Boies all I've heard about is the Microsoft antitrust loss,
the Gore loss, his legal/ethical trouble with a girlfriend's ex-husband, and
just now the Texaco-Penzoil loss. I'm sure Mr. Boies is no empty suit, but how
does one go about aquiring the reputation as a legal powerhouse? Did he win the
Scopes trial and get OJ off while I wasn't watching? (Or does Groklaw's distaste
for all things SCO create a blind spot about Mr. Boies' accomplishments?) I
presume he scored 800s on his SATs, got a 180 on the LSAT and four-pointed some
famous law school then clerked for Chief Justice Earl Warren.

How, in general, does one become a "name" lawyer, and how, in
particular, did Mr. Boies do so?

[ Reply to This | # ]

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