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The Microsoft Trial

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from: Kenly Webster

Posted Friday, Feb. 26, 1999, at 10:00 PM ET

Kenly Webster, a former federal prosecutor, specializes in litigation at Shaw Pittman Potts & Trowbridge, where he is a senior counsel.

How has David Boies, the government's lawyer in the Microsoft trial, managed to discredit so many witnesses during his cross-examinations? Slate asked a former federal prosecutor to take a day off and review Boies' courtroom manner.

Whether or not Microsoft has violated antitrust laws will be decided by a judge who is listening closely to both logic and facts, rather than by a jury, which could be more susceptible to emotion. Adapting his style to this setting, Boies concentrates on fingertip fact retrieval and immediate electronic display. He allows his area of the courtroom to be cluttered with boxes of documents that leave little walking space. This may be his visual answer to being confronted by a team of more than 20 Microsoft lawyers in the courtroom.

But it is Boies' handling of facts and witnesses that is winning this case. Boies is not a flamboyant lawyer in the style of Clarence Darrow, Gerry Spence, or F. Lee Bailey. He is controlled, in remarkable command of himself and the subject matter. He is fully the man who once said to a friend of mine who worked with him on another case, "Would you rather sleep or win?" "Let me see if I understand what you have said," he says to Joachim Kempin, a senior vice president at Microsoft who has provided a somewhat fuzzy answer in the course of complicated discussion about browsers and to what degree Microsoft would allow computer manufacturers to display those made by a competitor on their machines. Boies then restates succinctly the gist of what was said but with the focus always supporting the government's position. More often than not, he gets the witness to agree to his "testimony."

When Kempin says defensively that competitors do the same thing Microsoft does, Boies chides him, saying, "My question does not have to do with what Compaq does; my question has to do with what Microsoft does." He asks the question again, drawing the anticipated answer instead of the evasion. He is quick, but not repetitive, in reminding the witness to answer yes or no, while maintaining the aura of fairness by noting that Kempin may then explain "to your satisfaction." In this approach he is constantly supported by the judge as he glides through his labyrinth of questioning, avoiding the temptation to spar with the witness.

To forestall runaway testimony, he says: "If you have something to explain, please do so until you are content. But if you have something that you think adds to the matter, save it for later." This has the desired effect. Kempin, who often chooses to explain his answers, curtails the length of his explanations and the extent to which he tries to volunteer information helpful to Microsoft because of the ground rules imposed by Boies. These occasionally receive reinforcement by the court.

Boies has a flexible manner and an ability to comprehend the courtroom. He seems to absorb minutely the answers of the witness while his eyes dart from the witness's demeanor to the judge's reaction and back to the lectern for preparation of the next question. His outward manner is courteous and polite. His dress is proper, conservative, but not uniform--he wears black sneakers. Despite his even-tempered, sometimes professorial approach in this complex, technical litigation, one gets the sense of witnessing a cobra darting, then feinting, then striking.

Boies is at the lectern minutes before the judge enters the courtroom at the beginning of a session, apparently thinking through his attack. And when the judge leaves the courtroom, Boies often remains at the lectern conversing with a colleague about his next steps, still standing exactly where he delivers his attacks.

Trim and slightly balding, he captures the attention of a courtroom crowded with representatives of the press on one side and visitors on the other. He does this while coaxing the who, what, when, where, and how from each line of questioning. His discipline insists on total clarity of the point being made. When Kempin's foreign accent brings a quizzical look to the judge's face because he isn't sure what had been said, Boies reacts quickly, asking tersely, "Did or did not?" When Kempin says, "I don't understand the question," Boies chops it up into small bits, a process that takes longer but conveys to the judge that he is being both precise and fair. He also effectively uses another technique: restating the gist of somewhat unconnected testimony by preceding it with the statement, "Correct me if I am wrong."

When Kempin on occasion answers a question, "Yes and no," Boies immediately strikes at the prong he wants to hear. In follow-up questioning, the other prong does not get addressed, and is left to Microsoft's counsel for redirect examination, if he should remember to do so.

Boies also makes fluid use of the tools of impeachment, such as documents showing inconsistencies with testimony and prior deposition testimony in which the witness has contradicted himself. This use and the threat of further use keep the witness from straying into speculation and from overstating his answers. It must be intimidating to be told by Boies, who commands facts and documents well beyond those possessed by the witness, "I want to test your knowledge."

As the questioning ranges among such esoteric terms as the Buddha, ISPs, browsers, and OEM, Boies keeps the focus by using simple words, expressed in simple phrases. In this lengthy trial involving complicated concepts and complicated trial strategies, Boies has a way of creating the impression that each fact is a little evidentiary piece that is securely glued to a clear but simple mosaic spelling out "violation."

Click here for MSNBC's full coverage of trial developments.

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from: Kenly Webster

Posted Friday, Feb. 26, 1999, at 10:00 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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