When Washington lawyer Joseph Kattan learned that Thomas Penfield Jackson, the judge presiding in the Microsoft antitrust trial, would appear at an American Bar Association forum and discuss the still-pending case, he was, to put it mildly, amazed.
You've got to be kidding, he e-mailed to a friend.
Unfortunately for Kattan, the message mistakenly was sent not just to his friend, but to a few hundred subscribers of an ABA e-mail list that focuses on antitrust issues. Kattan quickly sent another message to backpedal from the first.
But he had merely put into words the thoughts of countless lawyers across the country. The news that Jackson would even get near a podium and ruminate publicly about the largest antitrust trial in a generation -- a case he is a long way from deciding -- had startled plenty of legal specialists. And it added an element of suspense to what otherwise would have seemed a pretty pulseless confab about antitrust at this year's ABA convention in Atlanta.
Hearsay attended that meeting last week and can report that for the 45 or so attendees, a giddy question hung over the proceedings: Would Jackson blab? Would he tip his hand about his leanings in the case? Maybe even say enough to move the stock of Microsoft Corp. up or down? Would he at least mutter something mildly indiscreet? Something juicy, like "Man, that Bill Gates is some liar!"
As it happens, Jackson showed up last Monday and stayed 1,000 gavels away from anything that could reflect his thinking in the trial. Instead, he took the opportunity to praise and then tsk-tsk the press corps for its coverage, and spoke expansively about how he has tried to keep matters moving at a relatively brisk pace.
"I was an early disciple of Dr. [Samuel] Johnson, who was supposed to have said, `It works wonders on a man's concentration to know he's going to be hanged in a fortnight,'" Jackson told the crowd. "A firm trial date is the be-all and end-all of bringing the case to a conclusion, and to allow it to wander in realms of discovery just virtually guarantees it won't come to fruition any time soon."
Jackson said he was determined to prevent the Microsoft trial from becoming a Vietnam-like morass in the tradition of previous government monopoly cases, such as those against AT&T and International Business Machines corporations, each of which dragged on for years. Jackson was helped, he explained, by the eagerness of both sides to work together.
"They had been at each other's throats for a long time," Jackson said. "They were pretty knowledgeable about who was being accused of what."
The Microsoft case, however, is far from over. Unless you've been under your desk for the past year, you know that the Justice Department and 19 states have accused the software giant of illegally bullying computer makers to crush rivals in the Internet browser market. With the judge reviewing legal briefs submitted by both parties last week, a final decision in the case might not come for months. Initially, Jackson had hoped the trial would last only six weeks; it ultimately stretched on for months, with a total of 76 days in court.
This was supposed to be a road-show version of the trial. Joining Jackson on the podium was John Warden, a partner at Sullivan & Cromwell and one of Microsoft's lead trial attorneys. His chief adversary, David Boies, was scheduled to appear, but he was busy with another trial. Stephen Houck of the New York state attorney general's office represented the government's side and laid out in detail the genesis of the case.
"Steve has described the government's allegations," Warden said wryly when Houck was through. "We controvert every one of them."
Trading his black robes for a sensible dark suit and a striped tie, Jackson sat sphinxlike for most of the meeting, nodding occasionally and seeming acutely aware that he was tip-toeing near the edge of a very steep precipice. Asked by the moderator if lawyers should urge clients to develop a rapport with a presiding judge, Jackson said simply, "I'm not going to comment on that."
This bummed everyone out.
"I was sort of hoping that he would shoot his mouth off," said one San Francisco lawyer who declined to offer his name. "Jackson is unconventional, but he's not that unconventional."
Hopes had been raised, of course, by the memory of a vintage Jackson incident in 1990. That year, the judge presided over the trial of D.C. Mayor Marion Barry, which ended with jurors deadlocking on a dozen charges and convicting the former mayor of a single misdemeanor count of drug possession. A few days after sentencing Barry to six months in jail, Jackson appeared at a Harvard Law School forum and startled legal observers by bluntly criticizing the verdict.
"I am not happy with the way the jury addressed the case," he told the crowd, adding that he had "never seen a stronger government case." Barry was probably guilty of perjury and other crimes, he said, but four jurors were determined to acquit Barry, regardless of the facts.
Judges rarely sound off about their cases, even when the cases are over. There were plenty in the audience in Atlanta who were amazed that Jackson even showed up. "It surprises me," said William Kovacic, a professor at George Washington University School of Law, during a break in the proceedings. "I can't recall an instance in a case of this magnitude that the decision-maker has appeared with the adversaries and talked about the case. This is extraordinary." The risk, Kovacic explained, is that the judge could say something that casts doubt on his impartiality.
But Jackson made clear that he was disappointed by only one participant in the trial: the press corps. After praising the media's success in accurately reporting details of the case, he offered some advice.
"I would say pay less attention to questions asked by the judge," he said. "Time and again," he said, reporters would treat the questions Jackson asked from the bench as a window into whether he liked or disliked the witness. "Nothing was further from my mind," he said.
Warden, on the other hand, seemed to relish his newfound notoriety, just a little. "On some rare occasions," he said. "I'll get stopped in a bar in Soho by a guy who points at me and says `Mr. Microsoft!'"
Also on the dais was Bernard Nussbaum -- yes, the former White House counsel -- who proved more entertaining than anyone else in the room. He had defended Cardinal Health Inc. when the Federal Trade Commission sued to block the drug wholesaler's merger with rival Bergen Brunswig Corp. Nussbaum lost the case a few months back, and apparently he's still smarting. With his adversary in that trial, FTC attorney Michael Antalics, sitting a few feet away, Nussbaum ridiculed the government's case.
"They went after the paperboy," Nussbaum said, explaining that drug wholesalers earn just a few tenths of a percent from each of their transactions, just like those guys who deliver the news. "They ignored William Randolph Hearst."
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