When the government filed its antitrust suit against the International Business Machines Corp. on Jan. 17, 1969 -- the last day of the Johnson administration -- Ron Rolfe was busily studying in his last year at Columbia University Law School.
Today, Rolfe is a partner in the prestigious New York law firm of Cravath, Swaine & Moore. He has lost some of his hair, and is in charge of a major aspect of IBM's legal defense in that same case.
It is 10 long years since then Attorney General Ramsey Clark embarked upon what has become the U.S.'s longest -- and perhaps toughest -- antitrust legal battle. No one on the government legal team today was on it when the trial began.
More than 90,000 pages of transcript and 8,000 exhibits tell the story of the government's efforts to prove that IBM monopolized the computer business and used its extensive power to stifle competition through allegedly illegal marketing practices -- like prematurely announcing the introduction of new products in order to keep customers from going elsewhere.
It was more than six years before the case actually went to trial in New York City's Federal Courts Building on May 19, 1975.
And at 11:25 a.m. on April 26, 1978, at Page 71,857 of the official trial transcript, a Justice Department attorney said, "The government rests...," thus ending the 473 days the U.S. needed to present its case in court.
One of the 52 government witnesses -- Cornell University economist Alan McAdams -- was on the stand for 78 days over a 10-month period.
But beyond the statistics -- and there are many of them -- serious issues are at stake in this trial, and human factors serve to complicate things further.
For example, the IBM case has seen six U.S. attorneys general come and go, four U.S. presidents, and perhaps more importantly, has seen the government field three different teams of lawyers at three different times during the trial, leading IBM Chairman Frank Cary to quip, "This is not only the biggest antitrust case in history, it's the first case with unlimited substitution."
Several times, government attorneys have moved to expand or change the scope of the charges, further slowing the proceedings.
The government lawyers claim the revisions were necessary and proper, contending that, as the case went on, they learned more, refined their thinking, found out about old activities of IBM or learned of new ones. But there is no question that much of the reason for changes in the case has been changes in the legal staff.
For their part, IBM attorneys say the government lawyers are fishing, that they have tried various predatory allegations but found out during the trial that they weren't getting anywhere, and thus have tried to alter the charges to increase the chances of hitting on a victory.
Finger-pointing aside, the reality of the IBM trial is a dreary, high-ceilinged courtroom in Foley Square in New York before Judge David Edelstein, who is chief judge of the U.S. District Court for the Southern District of New York, and who took over the case in 1972. There, every day, a handful of grey-suited visitors, a dozen lawyers, a court clerk, a stenographer and a reporter for Computerworld -- a trade paper which has covered the trial every day -- IBM presents one of its estimated 45 trial witnesses.
Each time a new lawyer joins the case on either side -- there are about 35 full-time people on the Justice team and slightly fewer on IBM's side -- or another lawyer leaves either team, is a reminder of one of the most serious problems plaguing this case: the lack of continuity.
"One thing you have got to do is get more continuity for the government in trials like this," said David Boise, presently staff director and chief counsel of the Senate Judiciary Committee, and formerly a key attorney for Cravath, Swaine & Moore in the IBM case.
Boise should know about problems with continuity. During his tenure as one of the key IBM attorneys in the trial when the government was presenting its case, Boise left to go to the West Coast to defend IBM in a civil trial. He stayed in California for a year, won the case, came back and, when he walked into the courtroom in New York, the government still was putting on its case.
"In terms of people who try cases, the government must get the ability to attract and retain good trial attorneys," Boise said. "The only way a good government attorney can get promoted is to get out of trial work. Good lawyers don't want to be administrators, and many of them decide it's just easier to go to a big firm where they can stay with trial work and get a lot more money."
In most large private firms, "You get trained to be a litigator and, in fact, you don't get a chance to go to trial on the big cases until you've become very experienced," Boise added.
The assistant attorney general for antitrust, John Shenefield, who goes up to spend a day in the IBM courtroom every three or four months, agrees with Boise.
"It is very hard to keep good trial attorneys," Shenefield said in a recent interview. He pointed out that after they reach a certain salary level, all he can offer his attorneys as incentives are "perks" like parking spaces.
Shenefield is pushing to get some of his lawyers status similar to government doctors and dentists, who are liberated from pay ceilings because the government realized that they could not attract such people at government pay levels.
Bill Staal is the third man to serve as lead counsel for the government in the IBM case.
A 17-year veteran of the Antitrust Division, Staal acknowledged that it is a huge problem just keeping things going smoothly in the trial.
"There is a huge magnitude of paper to deal with," he said, adding, however, that for the first time in an antitrust case, the government is making extensive use of computers to keep track of things.
For the defense, the trial also has been a drain on the Cravath law firm, which at times has had 4 full partners and 12 to 15 associate attorneys working on the case.
"I've had a great time working on this case," said Cravath partner Thomas Barr, who is IBM's chief spokesman in the courtroom, and who has defended the computer giant in many different cases. "There have been a number of related civil trials, and I have travelled the world working on this case."
"We've had a lot of different people working on this case," Barr said in an interview. "People die and (people) get sick. But the mehods and actions are basically the same as in any case -- except bigger and longer."
Indeed, IBM has won some related private lawsuits during the life of the government case, including a major victory last August in a case filed by Memorex Corp. A U.S. District Court judge in San Francisco ruled for IBM in that important, $1 billion, 5-year-long antitrust case, despite the jury's 9-2 split for Memorex.
Judge Samuel Conti said in making his ruling that "the magnitude and complexity of the present lawsuit render it as a whole beyond the ability and competency of any jury to understand and decide rationally," thus ending the largest of 19 private antitrust actions filed against IBM.
During the decade since this case has been brought, the computer industry has changed dramatically. In fact, of the more than 800 companies deposed by the Justice Department, 200 were not in business when the suit was filed.
The industry has grown at a rate more than 35 times that of the economy, and the change in technology has been so dramatic that none of the computer systems IBM builds today were even on the market when the government suit was filed.
IBM says those figures prove the industry is competitive. The government says they only prove that things are getting better since the suit was filed -- maybe even because the suit was filed.
But what the facts say to everyone is that this trial should have ended a long time ago. It has become almost as obsolete as using fingers to add. And despite contentions from both sides that the trial could end this year, no one in a position to know has placed any bets.