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An Exclusive Interview with Ted Olson & David Boies


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: May 30, 2011 @ 9:44 pm
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Ted Olson at UNH Law, 5/26/11

Several days ago I flew to New Hampshire to visit my alma mater, the University of New Hampshire School of Law, to attend an ABA Task Force hearing on the state of the judiciary.  More precisely, the ABA Task Force is about the crisis in the judiciary.  The co-chairs of the Task Force are Ted Olson and David Boies, who are undoubtedly the two most famous attorneys in the United States.  I had the opportunity to do an exclusive interview with Olson and Boies immediately prior to the start of the hearings.  Indeed, it was an honor and a privilege to sit down for a discussion with these two icons of our industry.

The pair were famously on opposite sides of Gore v. Bush at the United States Supreme Court, with Boies representing Vice-President Gore and Olson representing then Governor Bush.  More recently they teamed up to collectively fight the California ban on gay marriage.  Even more recently, and currently ongoing, they are on opposing sides of the NFL lockout and labor dispute, with Olson representing the players and Boies representing the NFL owners.  Whatever your position on these and the many other high-profile cases they have been involved with, it is clear that Olson and Boies are legal royalty.

The coming together of Ted Olson and David Boies for the purpose of advocating for a judicial system was not by happenstance.  As you will read in the interview that follows, the men are aware they are high profile attorneys and hope that their fame will enable them to capture the attention of legislatures, lawyers and the public.  They are each committed to advocating for a judicial system starved for resources and without lobbyists of its own, but which is supposed to be a co-equal branch of government along with the Legislative and Executive Branches of government.

Without further ado, my interview with Ted Olson and David Boies.

QUINN: I really appreciate your taking the time to chat with me today.  And maybe we can just jump right in and give you both the opportunity to tell me what it is that brings you here today to Concord, NH.

BOIES: We are here for the hearings on the American Bar Association Task force and the crisis in our judicial system resulting from the underfunding of that judicial system nation wide.  And one of the things we are going to be hearing from is a series of lawyers, client, chief justices, business people about how the underfunding of the justice system really adversely affects American business, the economy, American families, the average person and people’s constitutional rights.  And we had a hearing in Atlanta a few months ago that brought a lot of this out and brought quite a bit of attention and I think we are going to try and continue that process here.

OLSON: People don’t know that maybe if their car is stolen or their house is burglarized, maybe the perpetrator was someone who has already been arrested for one of those offenses and is awaiting trial because our courts don’t have enough court rooms, enough judges, enough staff to process people in the criminal justice system so people are out on the loose committing more crimes.  Or maybe their next-door neighbor is a victim of spousal abuse because she couldn’t get to a judge to get a restraining order.  The cuts in the judicial budget in the United States are affecting everyone.  All of us need the justice system even if we are not suing somebody or being sued by somebody because it affects the tranquility, it affects economic prosperity, and it affects the we go about living our lives even if we are not direct participants.

So the purpose of our task force is to bring attention to how many problems are being created by the cuts in funding of the judicial systems and what can be done about it.  If people do not realize the magnitude of the problem we are not going to be able to solve it.  We are trying to shine a light on the degree to which the problem is affecting everyone.

David Boies at UNH Law School 5/26/2011

BOIES: Let me give you an illustration of this.  Take New Hampshire.  In New Hampshire, the cuts have been so severe that now only about 1.3%, less than 1 and a half percent of the state budget goes to the court system.  The judicial system is one of the three branches of government.  It is the one that guarantees all of the constitutional rights that all of the other branches of government try to preserve.  And yet only 1.3% of the budget is all that is allocated to that branch of government.  And unfortunately that is not atypical.  For most of the states, the amount of the state budget that is allocated to justice system is between one and two percent and sometimes even less than 1 percent if you can imagine that.

QUINN: Yes, a friend of mine just put it to me point blank in this way yesterday, and I have never really heard it articulated this way, I’d like to get your thoughts on this that judges really have to be masters of a whole bunch of different things because they have to be there to solve a wide array of problems.  But you go the court when the government has failed you, private enterprise has failed you, private contracts have failed you or there is a crime where society has failed you.  And we are asking on the Federal, State, County and Municipal level judges to do more and more with less and less.  Just this week we have the federal system getting involved with the prisons in California.  Maybe that’s a good thing and maybe that’s not a good thing but at some point the judiciary has to get involved.  Where are we headed with this do you think in terms of the magnitude of the problem?

OLSON: Well the magnitude of the problem is huge.  Justice Souter likes to say, and he is going to be speaking with us tonight, that our judicial systems provide a safe place.  Everybody in America needs a safe place.  If you’re the victim of discrimination, if you’re the victim of your house being foreclosed improperly, someone has cheated you in a contract, maybe someone in your family is abusive.  Where do you go?  You go to the courts.  Those kinds of things affect everybody.  Someday we are going to need the courts and they’re not going to be there.  The doors are going to be closed.  They are closing whole courthouses in Los Angeles so now a juror has to drive an hour and a half to get to jury duty.  Well they’re not going to do it and then the juror’s won’t be available or witnesses won’t show up.  We take this for granted because it is the one place that really works.

The judiciary that we have here in the United States is the envy of the world, for our economy, for our businesses, because businesses need predictability, they need contracts to be enforced.  It is the envy of the world and we are cutting it not just to the bone but we are cutting it to the marrow.  And what we are going to realize all of sudden is “My gosh, what we’ve done with a small amount of money.”  The savings are trivial compared to the significance of the budget problems states are being faced with.  We are taking money out of the things that we are really going to need and they’re not going to be there when we really need them.  And we didn’t know about it, we didn’t think about it because it was our neighbor or someone down the street that was being affected, but it is going to affect us and then it is going to be too late.  That’s why we are up here, maybe in an appropriate place, ringing the bell like Paul Revere.  So we need the American people to understand this.

QUINN: To pick on something that I heard a bit of in your interview this morning on NPR, you were talking about businesses and as you just mentioned, businesses needed stability and predictability and that being the cornerstone for where you want to locate or if there is a good legal climate or regulatory climate.  Can you pick up on that and talk about that a little bit?  Because it seems to me that businesses from many different angles, whether it be the tax angle or whether its from a regulation angle or whether its from my little space of the world with patents, now it takes at least 5 years to get a patent, or sometimes as many as 10 years or longer.

This isn’t the America I remember from when I was a kid growing up.  It seems as if we are going in the wrong direction in terms of business climate.

BOIES: I think that is exactly right.  Businesses want predictability and they want efficiency.  They want to be able to get a decision that is predictable and they want to be able to get it in a timely way.  If you go around the world and you talk to people who are trying to develop investment in third world countries, one of the things that you find is that the single biggest barrier to that after safety is that they don’t have a functioning justice system.  Because a functioning justice system provides businesses with the assurance that their contracts will be enforced, that their businesses will be fairly regulated and that everything will be in a predictable, prompt and efficient way.

We had that in this country.  We’ve had that for many years and the courts have done a remarkable job over the last 15 or 20 years of continuing to render justice even as their budgets have declined in terms of the workflow that they are expected to carry.  And what we need to do is be sure at this critical time we don’t continue that process to the point to where as Ted says, when you go to the courts you find the doors are closed or you find what is equally bad; that the court may be open, but they can’t give you justice because there isn’t a judge or a jury that is available to hear your case.

L to R: Ted Olson, Lady Olson, David Boies, U.S. Supreme Court Justice David Souter (ret.) at UNH Law 5/26/2011

QUINN: You guys are probably the two most famous lawyers in the country and you’ve probably been in a number of different courthouses.  The thing that I see as a problem is as we’re constricting the budgets we’re asking the courts to do more and more with less people.  And the judges may have on the federal level a couple of clerks and on the state level here in New Hampshire maybe they share a pool of clerks.  And it’s the judge and there law clerks and maybe a couple of staff people.  With the world getting more complex, how are we to have any hope to get these people to continue to do their jobs?

BOIES: Well the fact of the matter is, with the world getting more complex, and with fewer and fewer resources, you don’t have any realistic hope of them being able to do their job.

OLSON: And more and more judges are saying we are not paying our judges as much as we pay first year associates in David’s firm or my firm.  Judges are saying,  “We are being asked to do more, we want to do the right thing and we are not able to do the right thing because we don’t have the resources to do the right thing.  We are being asked to work more cases, longer hours under more difficult circumstances, we don’t have interpreters in our court, we don’t have court reporters in our court, we don’t have bailiffs to preserve security in our court and we’re not being paid enough.  So what are we going to do?  We’re going to quit.  We’re not going to be there any more.”  And so the really good people you want when you go to court, David and I are often on opposite sides of a case or of a particular issue; we both want the same thing.  We want an independent judge who will work hard, study the issues and render a conscientious decision, for us or against us.  Mostly we want to win, but most of all we want justice to be done by a competent, able, hardworking judge.  And the competent, able, hardworking people are saying it’s not worth it.  “I want out!”

BOIES: One of the messages that the two of us really want to send is and I hope is sent by just the two of us being here, is that this is not a conservative or liberal issue, this is not whether you like a particular court decision or dislike it.   It’s not a Republican or Democratic issue.  This is an issue for everybody who believes in our constitutional system.  It’s for everybody who cares about justice.  It’s for every individual who cares about having a predictable, safe place to go to get disputes resolved when other aspects of our society fail them.

QUINN: Well what’s the answer?  As a conservative at heart, loathe to just throwing money at a problem, because I don’t think that more money always solves the problem.   But it seems in this case that left to their own devices the courts seem to run pretty good, pretty lean and pretty efficiently.  Is it, do you think, just a money issue?

BOIES: I think at this stage it is a couple of things.  First, it is a money issue.  Second the courts need to use technology more.  But in order to use technology more, they’ve got to get the funding to implement technology.  Here in New Hampshire both the last Chief Justice and the current Chief Justice have very, very forward-looking plans to improve technology and yet they can’t get the funding to implement it.  And that’s just a false economy because in the long run, technology not only makes the justice system more effective, it makes it less costly.  So by failing to fund increases in improvements of technology, you are undercutting not only the long-term effectiveness of court system but you are burdening society with unnecessary costs.

OLSON: One-third of our government at the state court level handles throughout the United States, 40 million civil and criminal cases a year.  And we are supplying 1% or so as David pointed out, of our resources to take care of that.  There are a lot of other things that can be done and the judges and the courts are really working to become more efficient and more streamlined.  But they need the resources to do it.  They basically need the resources to do what they are doing.  That is probably our most efficient system of government.  If you walk into any court, you’re not seeing any waste.   There’s a judge, there’s a few clerks and there’s a bailiff and an interpreter or court reporter or something like that and that’s all.  We don’t have these vast bureaucracies of supervisors and subordinates and this sort of thing in our court system.  So there’s no place to cut unless you want to cut justice.  And we’re not cutting the courts really.  We’re cutting justice available to our citizens so you take a dollar out of that, you’re taking a dollar away from our citizens.

QUINN: Yes and the thing that bothers me so much about governments on all levels it seems is that in hard times, and these are exceptionally hard times, they go and they want to cut the things that are the most essential things that the government ought to be doing the most.  Do you have any thoughts on that, and if you want to dodge that question I completely understand.

BOIES: No, I’ll deal with it because I think you’ve really hit the nail on the head.  There is not a big lobbying system for the courts.  It’s not like you’ve got a big political constituency.  It’s an area that’s easy to cut.  And one of the things that we’re trying to do is we’re trying to get people to understand what the consequences of that is so it won’t be so easy to cut these essential services.

QUINN: I know you’ve got to get going so one last question is, how did you guys come together to do this.  Did you call each other on the phone?  Was it after one of your cases or did you get approached separately or together? What’s the back-story?

BOIES: We’ve been talking about this issue for a long time.  I think we talked about the problem of judicial salaries 3 or 4 years ago when my partner Steve Zack became president of the American Bar Association.  This was one of his priorities and he asked the two of us whether we would co-chair a task force to look into it.  And I think one of the things that was on his mind was that the two of us would bring a certain visibility to it and I think a certain unity in the sense that Ted is traditionally associated with Conservative and Republican causes and I’m traditionally associated with Democratic and Liberal causes, although I think each of us is a little more complex than that stereotype.  But the message that we send is that this is something about which both left and right, Republican and Democrat, Liberal and Conservative are united because we all depend on our justice system to protect the liberties that we hold so dear.  We all depend on our justice system for the economy that benefits all of us.  We all depend on the justice system when our families, our friends ourselves, get into trouble.  So this is something that every citizen, regardless of political outlook ought to support.

OLSON: I think I want to add one more thing to that.  David and I are about the same age.  We’ve been reasonably successful.  We are at a time in our lives where it’s really important to spend some time and some effort to give something back.  We’ve been successful because we are lawyers who deal with the judicial system.  We stand before judges and stand in courts or file briefs.  We know how important those systems are to our clients and our livelihood and to this country.  And the judges need and courts need someone to ride to their defense.  I think we felt a keen sense of obligation because we’ve been the beneficiaries and we’ve been aware first hand how hard judges work and how hard they work to do the right thing.  And there are not enough lawyers in this country coming to the defense of the judiciary and we want to send that call.

QUINN: That’s one thing, and maybe we can wrap up on here like a call to action.  What do people such as myself, and knowing that I have some platform in a niche area, what can folks like I do and what can folks like the average lawyer who’s working 60-80-100 hours a week depending on the week, what can they do to help you, help the task force or in their own world try and shine a light on the problem?

OLSON: I would say two things and I know David has plenty to say.  Lawyers are visible in their communities.  Lawyers know how to communicate; that’s their job.  They are citizens that are officers of the courts.  They need to speak out, they need to talk to their fellow citizens, they need to take out a page or write an op-ed piece or something along those lines; speak out at the rotary club and say there is a problem here.  Every lawyer in the United States needs to say, “I can do something.  I am a visible citizen in my community.  There is something I can do.  Yes I’m working 60 hours a week, but I can spend a half an hour in a week to do something to help our courts.”  If lawyers come together and do that and talk to their clients, because their clients are the ones who make political contributions to legislators who make these decisions about budgets, they need to have this on their mind, they need to do something about it.

Secondly, you and the intellectual property exchange, the blog that you have, the people who I suspect are patrons of and read your blog, are people that are in the intellectual property business and they know how valuable the court systems are.  That is a voice that we really want to reach through you because those people need to speak out.

QUINN: And that’s because that’s all we have.  We have a promise for the courts to back up this ephemeral right.

BOIES: Exactly right.

QUINN: If we don’t have access to the courts with trade secrets on the state level, with trademarks on the state level and trademarks on the federal level and copyrights and patents on the federal level, if the doors are closed what you have isn’t worth the paper it’s written on.

BOIES: That’s exactly right and I am echoing everything Ted says people have got to do; what lawyers have got to do; what clients have got to do is they’ve got to make this a priority, they’ve got to understand not only that this is a problem, because I think everybody sort of vaguely understands that the courts are underfunded, but they’ve got to understand how important it is that we come up with a solution.  And when they talk to their state legislators, when they talk to their fellow citizens, when they write in their newspapers, they’ve got to communicate the importance of the issue and the fact that we have to restore that funding.  We have to adequately fund our justice system.

QUINN: Well guys I know you have a full day and I’ll be in their watching you and hopefully live blogging during the day.  I really appreciate your taking the time.

BOIES: Thank you.

QUINN: And I think that’s a great call to action and I will do everything I can to get it out there and play my role.  The more we can do and as you were saying Ted, view this as a pro bono activity, which we all have the obligation to do on some level; I can’t do a divorce that would be malpractice and I can’t represent someone who’s been picked up for shopping, but this is the sort of thing everybody can do.

BOIES: Yes, Exactly! Right!

OLSON: Exactly, Exactly and it’s really great that you’re here for this and that you’re willing to help us.

QUINN: Well thank you.

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About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

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