Jackson nears ruling as arguments close

With that statement, U.S. District Judge Thomas Penfield Jackson closed the formal part of the federal Microsoft antitrust trial yesterday in a courtroom here.

For Microsoft, perhaps more so than the government, it was a momentous day before the judge. Final oral arguments are typically a rehash of legal briefs filed following the conclusion of a trial's testimony phase and regular closing arguments. But Microsoft lead attorney John Warden effectively used his argument to score some major points with Jackson, legal experts said.

With the conclusion of final oral arguments, the task before Jackson is culling a ruling from the mountains of evidence. That could come within several weeks. While he ponders Microsoft's fate, settlement talks continue in Chicago.

"Of all the prepared presentations, it was Warden's best day in court," said George Washington University Law School professor Bill Kovacic. By contrast, "after many, many 'A' days, I would have to rate (government attorney) David Boies' presentation a 'B.'"

Many antitrust experts wonder what would've happened if Microsoft's defense team had had more "better days" during the long run of the trial. The Redmond, Wash.-based software maker would be in a better position as the judge prepares his ruling, they say.

"Regardless of the merits of the case, the way it was tried made Boies look like he walked on water," said Rich Gray, an intellectual property attorney with Outside General Counsel Silicon Valley of Menlo Park, Calif. "He's damn good, but they were throwing softballs right down the middle of the plate."

Microsoft's law firm, New York-based Sullivan Cromwell, may have been ill prepared for its clients or Boies' pit bull courtroom tactics, Gray said. "Certainly there are bad lawyers, but there are also bad clients."

Gray and Kovacic point to a number of shortcomings in Microsoft's defense. The problems were evident even before the case made it to court, they said.

"When you look at Bill Gates' deposition, it is clear there was, as yet, no clear defense strategy," Kovacic said. The Microsoft chairman apparently had not been properly coached, a pattern that would later catch other defense witnesses during cross-examination, Kovacic concluded.

Kovacic also wondered if Microsoft lawyers could have better prepared witnesses to deal with email evidence. Boies consistently impugned witnesses' credibility using past email they had either sent or received.

But legal experts also point out this was the first major case where email evidence was so widely used, making it new territory for both Microsoft and its attorneys.

Because witnesses so rarely gave convincing alternatives to the messages' meanings, the government's point of view dominated the court record in this area, Kovacic said.

"A judge drafts his findings of fact and ultimately his ruling based on the record. If something is not there, he cannot use it," said University of Baltimore School of Law professor Bob Lande.

Microsoft has been on the defensive since Nov. 5, when Jackson released his devastating findings of fact. That document, which was not a ruling, found Microsoft to be a monopoly that acted illegally and aggressively to preserve its Windows franchise.

"Gates' deposition I can give to the lawyers," Gray said. "You could have had the best lawyers in the world trying to get Gates to behave right at that deposition, and it wouldn't have worked."

But Gray had harsh words for "bad lawyering in preparing witnesses. The worst was perhaps the defense economist, Richard Schmalensee," whose testimony Boies turned to the government's advantage.

More damaging may have been a gaffe with video evidence, which hurt Microsoft's credibility, Lande said.

The video, which appeared to have been doctored, caught Microsoft executive Jim Allchin off guard. If defense lawyers had properly examined the videotape "they would have recognized problems Boies' team caught in court," Gray said. "Now that was good lawyering."

While few legal experts believe a better defense ultimately could have helped Microsoft, many also wonder if the software maker could have scored enough points to improve its bargaining position. Jackson's findings of fact were largely one-sided in favor of the government.

"The tone of Jackson's findings almost guarantee he will rule against Microsoft," Lande said. "It also empowered the government to seek a harsh remedy. That put Microsoft into a difficult position going into settlement talks."

While the trial moved forward, ongoing negotiations continued in Chicago, led by Judge Richard Posner, who heads the U.S. Court of Appeals for the 7th Circuit.

"Generally, for settlement talks to succeed, there must be perceived risk on both sides," Kovacic said. "I don't know if the government sees it has that much to lose."

The talks, which so far have proceeded slowly, could pick up in intensity following final oral arguments, Kovacic said.

Both Boies and Warden bantered back and forth with Jackson over whether Microsoft illegally tied Internet Explorer to Windows so it could dominate the browser market. Jackson appeared less sure about this claim, after reading a "friend of court" brief filed by Harvard Law School professor Lawrence Lessig, Lande said.

Even if Jackson ruled in favor of Microsoft on that one point, there are plenty of other claims Lande said he expects will go to the government.

If the case is not settled before Jackson rules, which Lande and Gray predict could happen as early as two weeks, Microsoft will likely file an appeal. That is an area that could play on Sullivan Cromwell's strengths and government lawyers' weaknesses, Gray said.

"Boies is a hell of a trial attorney, but now we're going to be doing things on paper," Gray said. "We're talking about carefully crafted analyses, thorough use of all the available case law and very well-drafted writing, and that's where Sullivan Cromwell is going to shine."