The Microsoft Trial

Day 7 of the Trial

       For the past week journalists, curiosity seekers, and even a few of the lawyers have gazed with lust upon the empty chairs in the jury box. The chairs in the jury box are deep and plush and almost wicked in their offer of comfort–superior in every way to the sad, hard wooden pews on the courtroom floor. But today the jury box seats were filled. A team from Moldova arrived to observe the inner workings of the American legal system. And so into the jury box they marched, past a few dozen American journalists standing in the hallways, who were barred from the courtroom due to absence of space.
       From the looks of intense pleasure on their heavy Moldovan faces they seemed well satisfied by the spectacle. But what does a Moldovan make of our courtroom? Is he at least dimly aware of the incongruities? In our everyday lives we Americans celebrate the subversion of the social order; everywhere a visiting Moldovan looks he will find a poor American boy trying to make good, usually with the encouragement of his society. But an American courtroom is not like America. It is designed first and foremost to preserve the social order, to keep the poor boy down. The judge sits on a raised dais from which he can condescend to the lawyers, the lawyers stand up so that they may condescend to the seated witness, and the witness, though he may have no one to whom he can plausibly condescend other than perhaps the curiosity seekers at the back of the room, at least has the comfort of his upholstered chair. If anyone dares to step the slightest bit out of line, a large man emerges from the back to shout, “Order in the court!” If the judge decides he needs to relieve himself, the large man appears again to shout, “All rise!” And we all stand and wait stupidly until the judge has ambled from the room. There is not a “please” or a “thank you” or a “by your leave” in any of this. Our democracy’s system of justice is a feudal society in miniature.
       But I digress. The day was devoted to John Warden’s cross-examination of a new witness, David Colburn of America Online. AOL brings out the very best in Warden’s self-conscious accent. He draws out the acronym so long and gustily that it sounds like a yodel. AAAAOOOOLLLL!
       Colburn is a different animal on the witness stand than his predecessor, Jim Barksdale. He has stooped shoulders; short, dark hair; a runaway 5 o’clock shadow; and the economy of motion of a highly skilled hit man. His deadpan North Jersey dialect simply reinforces the general picture that if he is not dangerous himself, he knows people who are. “This guy should be on Saturday Night Live,” I heard someone whisper five minutes into his testimony. But his economy of motion was not matched by an economy of speech. When Warden asked one of his many trick questions in hopes of eliciting a simple “yes” or “no,” Colburn would set off on some long-winded soliloquy that not only failed to answer the question but undermined its very premise. “Thank yewwwwwww,” Warden would boom sarcastically after each speech. “My pleasure,” Colburn would reply, witheringly. The scene was a cross of Hamlet and My Cousin Vinny.
       In this scene, Warden sought to demonstrate that even if AAAAAAOOOOLLLL! had selected Microsoft’s browser over Netscape’s, Netscape had not been treated unfairly because (1) Microsoft’s was a superior product, and (2) Netscape’s browser remained available to any AOL user who wanted it.
       The executive from AOL did not agree. Colburn replied (and replied!) to (1) that although Microsoft’s browser was technically adequate, AOL’s decision to use it as its default browser turned on some combination of Microsoft’s offer to put AOL’s icon on every desktop and AOL’s belief that Microsoft would sooner or later destroy Netscape. To (2) he said that you had to be a genius of some kind even to find the Netscape browser on AOL. Among other things Colburn made clear that Warden might have preferred he didn’t was Microsoft’s assumption that most people will remain vaguely alienated from their computers. Microsoft understood that it didn’t need to exclude Netscape’s browser from AOL. It only needed to make it so complicated to find that people wouldn’t bother.
       In the Microsoft trial, the feudal structure of the courtroom has met with a rogue force from the outside world. That force might be called the businessman’s mystique. The gist of the matter is that the big-time businessman refuses to be cowed by the lawyers. On the contrary, the businessmen can hardly contain their disdain for the entire legal process. That disdain manifests itself in several ways, and one is a kind of droit du seigneur the businessman exercises over the proceedings. We saw a bit of that today. We saw even more of it yesterday, when Jim Barksdale of Netscape was cross-examined by Warden. For instance, brandishing a letter from a Netscape attorney to the U.S. Justice Department, composed immediately after the meeting between Netscape and Microsoft on June 21, 1995, Warden tried to compel Barksdale to concede that it omitted any mention of Microsoft’s alleged offer to divide the market for browsers. (The idea was that if Microsoft had indeed made such a blatantly illegal suggestion, Netscape’s lawyer would at least have mentioned it.)
       “Mr. Barksdayul,” said Warden, “does the letter say anything about a proposal to divide markets?”
       Barksdale replied he hadn’t read the letter, which was now before him. Warden asked him to look it over. “You want me to read this?” asked Barksdale, incredulously, holding up the letter like a turd.
       “Yes,” said Warden.
       Once before Barksdale had already waved his hand over the court documents placed before him and declared, “These things are totally useless.” Now he snorted, “A FOUR page, single-spaced letter?”
       “I was able to read through it fairly quickly,” said Warden, plaintively.
       “Well, you’re a much smarter man than I am,” said Barksdale, his voice dripping with condescension. The courtroom exploded in laughter.
       “No,” boomed Warden, defensively, “you’re a much smarter man, Mr. Barksday-ul. That’s why you’re worth wu-uhn hunnred million dollars and the bank owns my howwwwse.”
       At which point the judge peered down from the dais and said sharply, “Are you through, Mr. Warden?”
       This wasn’t for Barksdale merely a matter of sparring with the enemy. When redirected by David Boies (the lawyer friendly to his cause!), he was asked to recall the late stages of negotiations between Microsoft and Netscape, when Netscape had concluded that Microsoft would never divulge the critical code it needed to make the Netscape browser compatible with Windows 95. “By now it had gotten down to the lawyers,” sighed Barksdale, “and when that happens you might as well forget about it.”
       Again, the courtroom exploded in laughter. There it was again, plain as day. Oh, the disdain! Oh, the contempt! And if the disdain could be expressed just like that to the Great David Boies, what did that say for the two dozen lawyers arrayed at the conference tables behind him. Who did Barksdale think these whisperers of secrets and tappers of laptops and scribblers of notes were? Serfs!
       Barksdale smiled and leaned over to the judge, as if he were about to tell a joke in a duck blind. “I mean that in an appropriate way, Your Honor.” His Honor blushed. What could he say? The man is worth $100 million.