The Microsoft Trial
Day 3 of the Trial
The news business has a strange way of defining what is interesting. Three days in, the trial is just starting to become interesting, and several hundred reporters have vanished. There were actually empty seats in the small courtroom.
Today we were well introduced to the third main character in the courtroom, Microsoft's lead attorney, John Warden. Warden is a natural heavy, a great Hogarthian ball of pink flesh with jowls that ripple over his white, starched shirt. I don't think I could have placed his overripe drawl without the help of a potted biography (which says he grew up in Evansville, Ind.), except to say that it is Southern. It is also loud; Warden prefers to lean into the microphone and imitate the Voice of God. In any case, it didn't take him long to prove that technology doesn't sound nearly as impressive when it is discussed in a booming hick drawl. As he boomed on about "Web sahts" and "Netscayup" and "the Innernet" and "mode ums" he made the whole of the modern world sound a little bit ridiculous.
Warden was a good contrast to the government's first witness, Jim Barksdale, the CEO of Netscape, who is from Mississippi. Barksdale retains only enough of the piney woods patter to offer a passing imitation of a good ol' boy when he needs to. But really all that's left of his linguistic origins is the just-below-upper-crust Southerner's habit of transforming soft consonants into hard ones. (For "mature" he says "ma-toor" rather than "machoor.") Of course, Barksdale has made his career in forward looking companies--Federal Express, McCaw Cellular, Netscape--and so perhaps he has been forced to make a business of not sounding like a hick. In any case, he seems to have arrived at a point where he himself doesn't comprehend hick speak. When Warden demanded of Barksdale, "Will you read the first sayntance aloud?" Barksdale replied, "The first SENTENCE?"
The entire day was given over to Warden's cross-examination of Barksdale. (Each side has been allowed to call only 12 witnesses. They submit their testimony in writing so that all courtroom time is devoted to cross-examinations.) Apparently the two men have never met until now, and Warden seemed intent on booming out as many insults as possible in the rudest possible tones. I think everyone with the possible exception of Barksdale viewed this as a ploy to get under Barksdale's skin. If Warden were naturally so repellant he could hardly get through life; he'd spend his days being tossed out of taxicabs and restaurants.
The exchanges were interesting for all sorts of reasons. One was as an example of what happens when two men argue about things that neither fully understands. Neither Barksdale nor Warden has a software engineer's grasp of browser technology. But Barksdale figured out pretty quickly that he knew more than Warden, and he used his superior understanding to embarrass his tormentor--subtly, of course. For instance, Warden asked Barksdale if, before a meeting between Netscape and Microsoft on June 21, 1995, he knew that Microsoft intended to include "all the functions of the browser" in its operating system. "A browser or the functions of a browser?" asked Barksdale, cleverly. This threw Warden, who stammered a bit.
"A browser is a separate stand-alone product," boomed Barksdale, pressing his advantage. "It's a THING. It walks like a duck, quacks like a duck, it's a duck!"
"It is?" hollered Warden, recovering. "Show me one! Whey's the duck? ("One" is two syllables. Wuh-uhn.)
"Right there!" shouted Barksdale, pointing at one of the courtroom computers.
The pursuit of truth and justice this was not. But in the course of perverting truth and justice, the law exposes all sorts of little truths. Maybe the best moment today came when Warden tried to compel Barksdale to disclose Netscape's earnings estimates for the fourth quarter of this year. Barksdale said he was not permitted to say, as the information wasn't yet public and wouldn't be for more than a month. Warden asked Barksdale if Netscape had briefed Wall Street analysts on its financial prospects for the coming quarter. Barksdale replied that the company had done so. Warden then made the good point that anything Wall Street analysts had been told counted as public information, and rephrased his question. "What guidance has Netscape given to securities analysts about the fourth quarter?"
Barksdale had no grounds for withholding that from the court, Warden said. But Barksdale hemmed and hawed and said he didn't think that was true. Amazingly, he seemed to believe that Wall Street analysts were a privileged class, legally entitled to information about his company that the larger public was not.
At this point, an exasperated Warden turned for help to the judge. The judge wore an expression of intense confusion. "Part of the problem," he said, "is that I'm not sure what an analyst is or what he does." (It is interesting to learn that judges are as ignorant about business as journalists are.) Warden explained. The judge remained confused; after a few moments, he called all the lawyers to the bench, just like they used to do on Perry Mason. After a few minutes more the judge rose and announced that the court was in recess. Then he left, presumably to get to the bottom of this Wall Street analyst business.
Ten minutes later, everyone piled back into the courtroom. The judge declared that Warden could repeat his question and that Barksdale must answer. And so, after more than 20 minutes of delay, we hear this:
Warden: "What guidance has Netscape given to securities analysts on the fourth quarter?"
Barksdale: "Since I don't give the guidance, I don't know."
I believe he pronounced it FUCK YOU.
Michael Lewis is the author of several books, most recently, Moneyball: The Art of Winning an Unfair Game. Herbert Stein, a senior fellow at the American Enterprise Institute, was chairman of the Council of Economic Advisers under Presidents Nixon and Ford. He died in September 1999. Seth Stevenson shops for Slate. Timothy Noah writes "Chatterbox" for Slate. Jodie T. Allen, former Washington editor of Slate, is a senior writer at U.S. News & World Report. Jonathan Rauch is a senior writer for National Journal and a writer-in-residence at the Brookings Institution. Kate Galbraith was formerly an assistant editor at Slate. Jack Shafer is Slate's editor-at-large. William Saletan is Slate's chief political correspondent. David Plotz is Slate's Washington editor. Jodi Kantor, a former Slate New York editor, edits the New York Times' "Arts & Leisure" section. Kenly Webster, a former federal prosecutor, specializes in litigation at Shaw Pittman Potts & Trowbridge, where he is a senior counsel.