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The Microsoft Trial

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from: Michael Lewis

Posted Friday, Oct. 30, 1998, at 9:30 PM ET

Day 8 of the Trial

Today was a joke without a punch line. The government had said that it planned to air an eight hour piece of Bill Gates' 20 hour videotaped deposition. The promise of Gates attracted a crowd larger than usual and an air of moist expectancy. Gates is necessary for the trial to develop its natural plot line, which is that of a novel by Ayn Rand: Great Man vs. Forces of Mediocrity. But to get to Gates we needed to dispense with David Colburn, the America Online executive serving as a government witness to Microsoft's perfidy.
Actually, it is direr than that. The judge has decided that live witnesses will appear at a "time certain," i.e., their testimony will not be delayed by anything other than the testimony of other live witnesses. An executive from Apple is scheduled to testify Monday morning; so if we didn't get to the Gates tapes today we might not get to the Gates tapes for weeks. Colburn's testimony was meant to require less than a day. But John Warden clearly decided to draw out his cross-examination as long as he could, possibly to forestall the airing of the Gates tapes. And so a large crowd sat unlisteningly on the edge of its seats, virtually shouting "Hurry up, you idiot!"
The ineptitude of the Microsoft attorney has now reached the status in the courtroom of an assumed fact. Apparently, he hasn't much experience trying cases outside the appellate courts, and he makes the rookie mistake of asking open-ended questions, which enables the witnesses to drone on and on about whatever he wants to. "This should have been a first round knockout for Microsoft," one of the government lawyers told me, "but Warden handled [Jim] Barksdale so badly that Microsoft is now backpedaling."
Oddly enough, the putatively hostile lawyers do not share an opinion about the case. A few apparently believe Microsoft should be regulated in some fashion. But most have their doubts. One of the lawyers for the plaintiff, supposedly devoted to the destruction of Microsoft, said, "Microsoft is one of the great companies of the 20th century, and Gates is the greatest manager of the 20th century. Do you want to say that just because a man who is 7 feet tall has an advantage playing basketball he shouldn't be allowed to play basketball? The people who say Microsoft should be broken up are nuts."
Today the nuts received a great deal of help from the Microsoft legal team. Around about 2:30 this afternoon, Warden announced that he wanted to show a three minute video clip of Steve Case, the CEO of AOL ("AAAAOOOOLLLL!"). This in itself presented a problem; unlike the plaintiffs, the Microsoft team declines to employ high-technology in the courtroom. While the DOJ puts on a multimedia show, the Microsoft team confines itself to an old-fashioned overhead projector, known as the Elmo. The result is that the press can easily read and transcribe the e-mails hostile to Microsoft displayed by the DOJ but not the e-mails friendly to Microsoft displayed by Warden.
Anyway, after 10 minutes of fiddling, Warden finally figured out how to play his film clip. In it Case praised Microsoft for its advances in browser technology. You might think Warden would let the clip speak for itself. But when it ended, he turned back to the difficult Mr. Colburn and BOOMED, "Mr. Colburn, how much market share should Netscape ought to have?"
"I don't have a feeling for what the number should be," said Colburn.
"Eighty percent?" asked Warden. He took so long to say the word "eighty" that a swarm of mosquitoes could have nested in his mouth.
"Again, I don't have a feeling for what the number should be."
Warden then asked if Colburn didn't agree that the world was a better place because Microsoft tailored a browser specifically to AOL's needs.
"It has its good points and its bad points," says Colburn.
"Well, what are the not so GOOD points?" boomed Warden, very foolishly.
"Well ..." said Colburn, and if he were a man given to smiling he would have looked like the Cheshire Cat. On and on he went about all the bad points of Internet Explorer and of Microsoft's dominance of the marketplace, concluding with his fear that Microsoft's browser is destined to undermine AOL.
Every morning a fresh-faced young man, dressed in the casual attire of a golf pro, turns up at the head of the long line that forms in the hall outside the courtroom. He is, I think, the person in the world most sincerely interested in this case. He is neither a lawyer nor a journalist. Yet he appears here every day and stands for more than an hour in the fetid hallway, simply to have a front row seat to the greatest business trial in postwar American history. But today even the young man hit his breaking point. As John Warden opened up the courtroom for Colburn's endless ruminations, the section of the courtroom reserved for the general public very nearly emptied. And at 2:30 p.m. the young man rose and left.

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from: Michael Lewis

Posted Friday, Oct. 30, 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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