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The Microsoft Trial

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from: Michael Lewis

Posted Monday, Oct. 26, 1998, at 9:30 PM ET

Day 5 of the Trial

According to his wife, who lingers forlornly in the courthouse halls, Jim Barksdale expected to be cross-examined by Microsoft for two days. By the time he steps out of the witness box tomorrow morning, he will have been here a week.
Thus far, the Microsoft defense is not much more than a gloriously indiscriminate, flailing attack on Netscape. It consists, so far as I can make out, of four arguments. 1) Microsoft could not possibly be responsible for Netscape's failure because Netscape hasn't failed--it is still a market leader and a powerful innovator of browser technology. 2) Netscape has failed badly but through its own ineptitude. 3) Microsoft never bullied Netscape, especially in the critical June 21, 1995, meeting between the two companies. 4) Even if Microsoft did, in fact, bully Netscape in that meeting, the meeting was "a setup" to frame Microsoft for an antitrust suit.
I don't think all these charges can be true. But probably they cannot all be false either.
In any case, the best bits today were not the main lines of attack but the asides. Today Microsoft's lawyer John Warden established beyond a shadow of a doubt that employees of Netscape ("Netscayup") have funny names. He proved his point by pronouncing them. For instance, he kept calling a Netscape salesman named Ram Sharam (pronounced Rom) RAM Sha-RAM. (Rhymes with Sha-ZAM!) He then referred to Mitchell Baker, a Netscape lawyer, as MISTER Mitchell Baker. "That's MISSUS Mitchell Baker," said Barksdale. "Some a these nayumes," said Warden, "you just can't tell. Could go either way."
And then, finally, as the two men argued about what, if anything, Microsoft had done to harm Netscape's relationship with America Online, Warden was forced to discuss a Netscape employee named Alan Louie. By now Warden knew better than to assume anything about these people from Northern California. "It is MISTER Alan Louee?" he asks. Barksdale nods. "And I assume it is LOU-EE?" His tone said, "These Netscayup people got the boys with the girls' names and the girls with boys' names. What the hayl kind a ennaprise you runnin' anyway?"
For its part, Netscape continues to poor-mouth itself. The rhetoric of the courtroom is at times the opposite of the rhetoric of the business world. Whenever Warden sets out to argue how successful Netscape still is, Barksdale usually tries to maintain pretty much the opposite. And so we witness the odd spectacle of two companies, both intensely aware they are in a business where the perception of success leads to success and the perception of failure leads to failure, bad-mouthing themselves. The trick for Microsoft will be to persuade the judge that it doesn't have a monopoly without also persuading the stock market. The trick for Netscape will be to avoid seeming entirely pathetic.
Every now and then I look up from the proceedings and see on the face of Judge Thomas Penfield Jackson an expression of profound bemusement. The judge is like a great old bear who is slow to anger. But when he is angered he is doubly so because he is irritated that he has had to expend the energy to get riled up. In any case, I think he finds these technology people a little bit crazy. The lawyers keep flashing up copies of e-mails written by various technology people at 3 in the morning. When they do, you can see the judge shaking his head in mock wonder. The judge has a rather different idea of work, which is that it ends promptly at 5 p.m. You won't be catching him hunched over any little rectangular screen at 3 in the morning. His court is in session for two hours and 15 minutes in the morning and the same in the afternoon. Four and a half hours a day, four days a week. (On the first day of the trial, the judge declared Fridays off days.) On top of that, he has already ruled two other work days between now and Dec. 1 off-limits for work.
This is a man after my own heart. The greatest antitrust trial in postwar American history (the papers are calling it the greatest antitrust trial in the last 25 years, but I like the ring of "postwar American history"), and he's giving it less than three weeks of full-time work, by Silicon Valley standards.
I'd like to think that after the facts are out, other things being equal, the judge will favor the lawyer who minimizes the workload.

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from: Michael Lewis

Posted Monday, Oct. 26, 1998, at 9:30 PM ET
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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.
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