U.S. vs. Microsoft
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  Now for Some Real Courtroom Drama

By David Ignatius
Wednesday, February 17, 1999; Page A17

Now that all the fuss in the Senate is over, the country can focus on the real "Trial of the Century" (or, at least, of 1999) which is taking place in Judge Thomas Penfield Jackson's courtroom at the federal courthouse here.

This trial has real lawyers, who know how to cross-examine witnesses and don't try to argue their case with flowery speeches. It's about something indisputably important -- namely, the rules that will shape the technology business as it hurtles into the 21st century. And it's a capital case, in which a powerful but humbled defendant is literally fighting for its life.

The defendant, of course, is Microsoft Corp. And it has suffered so many reversals in Judge Jackson's courtroom these past few weeks that its lawyers must be shaking their heads like Henry Hyde and the House impeachment managers, wondering what hit them.

The government's lead lawyer, David Boies, has seemed to be shredding Microsoft's witnesses like a Vegematic -- forcing embarrassing admissions from them, catching them with a doctored video and generally making them look like idiots. The atmospherics have been so potent that many observers are beginning to assume that Microsoft will lose and to speculate about how best to punish the giant company.

But unlike the lame event in the Senate, this trial is just getting good. Amazingly enough, the courtroom show has transformed Microsoft, the world's biggest and most arrogant software company, into something of an underdog. That makes a contrarian columnist want to look more carefully at the real dynamics of the trial, as opposed to the fireworks.

Boies is so good at his shambling, jazz-improvisational style of cross-examination that it's easy to lose track of what he's actually trying to accomplish in the courtroom. He has two goals in quizzing Microsoft's witnesses: He wants to undermine their credibility by catching them in gaffes and misstatements; and he wants to elicit specific admissions that will convince Judge Jackson that Microsoft has violated the antitrust laws.

Boies has done better at his first mission than he deserves. In questioning Microsoft's James Allchin about a videotaped demonstration of how the Windows operating system works with Internet browsers, for example, Boies made it look as if the company didn't understand its own technology -- which is preposterous -- or that it had been deliberately deceptive, which is very doubtful. More likely, this was a screw-up by Microsoft's legal team, something that has happened several times in the trial but isn't yet a crime.

The real battle will be fought over Boies's second mission -- building a factual record that will persuade Judge Jackson to rule against the company. Boies clearly hopes to assemble a string of admissions from Microsoft witnesses that, in effect, will make the government's case in Microsoft's own words.

And Boies has gathered quite a list of concessions. By the government's reckoning, Microsoft witnesses have admitted: that no viable competition exists today to the Windows operating system for PCs; that Microsoft required computer makers to sign "exclusionary contracts" for its Internet Explorer browser because it feared competition from rival Netscape; and that consumers can get the benefits of a Windows 98 integrated browser and operating system by combining two separate products.

The problem for Justice is that these concessions don't go to what ordinary people would regard as the heart of the matter -- namely, the impact of Microsoft's behavior on consumers.

And it's here that Microsoft lawyers can probably muster a few smiles, despite the courtroom disasters of the past few weeks. Because months into the trial, Boies still hasn't introduced convincing evidence that consumers have been harmed by the Godzilla of the software business.

Microsoft's lead lawyer -- the tidily dressed (and delightfully named) William Neukom -- can cite arguments made in more than 1,000 pages of written Microsoft testimony that have essentially gone unrebutted. For example, despite the government's claims that Microsoft tried to squelch browser competition, its rival Netscape has been able to distribute more than 150 million copies of its browser since 1995.

And however brutal the war with Netscape has been, Microsoft can argue that, far from harming consumers, this competition actually benefited them. The quality of both companies' browsing software improved, promotion and distribution increased, and browser prices fell, eventually to zero.

As one Microsoft lawyer notes: "This is a strange antitrust case. Where are the customers who are complaining?"

Microsoft is likely to conclude its defense by early March. Then, after a brief break, things will get really interesting, as the two sides begin the rebuttal phase of the trial. Will Microsoft, worrying that its case is faltering, bet the ranch by calling Gates to the witness stand? Will Justice go for broke by seeking radical remedies such as a breakup of the company?

Among Boies's many endearing traits is a fondness for gambling. He likes to tell people that when he plays blackjack in Las Vegas, he doesn't do a precise "digital" count of the cards, but a looser "analog" count so he knows where the face cards are.

The gambler in Boies knows that while the rich geeky guy from Redmond may have made some dumb moves at the table lately, this game still has a long way to play.

© Copyright 1999 The Washington Post Company

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