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The Microsoft Trial June 9, 1999

Dahlia Lithwick worked for two years in a family law firm in Reno, Nev. She is writing a novel about how divorce affects children.

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A reprimand awaits me this morning as I take my seat in court. David Lawsky, of Reuters, who has been unfailingly generous with both insight and feedback, accuses me of being unfair to Microsoft in last night's dispatch. Seems he's had no trouble at all accessing Slate via Netscape Navigator. I apologize to Microsoft. However, on closer questioning, David concedes that he may not be seeing all the "bells and whistles" when accessing Slate using Netscape but, he tells me, he's only interested in the words.

Words?

As the self-proclaimed shallowest person in the courtroom, I must disagree, respectfully, with Mr. Lawsky. I heard waaaay too many words today. Let's frolic amid the bells and whistles.

First a bell.

Garry Norris is on the stand today for the third day. He's the IBM executive testifying for the government that Microsoft held IBM more or less hostage by insisting IBM either stop competing with Microsoft or suffer the consequences in higher prices and generalized Microsoft petulance. He's being cross-examined again today by Sullivan & Cromwell's Rick Pepperman, and the whole display is excruciating.

Pepperman is a bulldog and will ask the same question in 40 different ways to elicit the response he's seeking. Norris has a pattern that's become equally annoying, if not more so. He will read the document Pepperman puts before him in its entirety. S-L-O-W-L-Y. Then he answers Pepperman's question with a question of his own. Then, he will either disavow any knowledge of documents produced by either his superiors or inferiors at IBM, or he will say he now needs to provide "context." Context, for Norris, is a code word for long canned explanations he's already used on his direct exam with Phillip Malone from Justice. He resuscitates whole phrases: "We had no other viable alternative but Microsoft," "We wanted the deal they had with Compaq," instead of answering the question. He inevitably does this while glancing toward the counsel IBM has provided him for this trial--as if he's hoping to get the sign to steal third.

It took all morning for Pepperman to get Norris to say that yes, IBM has said some bad things about Microsoft and all afternoon to get him to say that yes, IBM managed to negotiate prices with Microsoft a little more than Norris' direct may have suggested. It's all positively Schumpeterian in its significance to the antitrust claims.

Now Judge Thomas Penfield Jackson is not exactly sphinxlike when it comes to gauging his moods. He drinks when he's thirsty, he naps when he's bored, he takes copious notes when he's engaged. and when he says it's lunchtime, the attorneys' stomachs growl in unison. At noon, after Pepperman has finally elicited from Norris the stunning testimony that IBM said some mean things about Microsoft, he begins to question Norris about yet another document. Judge Jackson interjects with the gentle suggestion that Pepperman might pick a convenient time to stop for lunch.

Pepperman, not understanding that this means "Pepperman, stop for lunch." asks whether the court wants to stop at some point prior to 12:30.

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