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Robert Silver - Who and Why
Friday, July 09 2004 @ 05:58 AM EDT

Law.com 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, Law.com 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 Law.com 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.


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