New spin on Microsoft case as big names bow out

Major changes in the cast of characters in Microsoft's courtroom drama could have a far greater impact on the company's appeal than any legal briefs.

4 min read
WASHINGTON--Major changes in the cast of characters in Microsoft's courtroom drama could have a far greater impact on the company's appeal than any legal briefs.

While the issues have changed little, the case's future may be profoundly affected by the absence of three pivotal figures: U.S. District Judge Thomas Penfield Jackson, Assistant Attorney General Joel Klein and lead prosecution attorney David Boies.

Jackson is expected to be removed from future proceedings, giving way to seven fresh judges who have taken over the case, and Klein has left his post as head of the Justice Department's antitrust division. But it is Boies' predicament that is most interesting of all.

David Boies By joining Vice President Al Gore's legal team in the electoral battle in Florida, the government's outside counsel has almost ensured that he will play no further role in the Microsoft case should George W. Bush become president, legal experts say. Boies is largely credited for engineering the government's unprecedented legal victory, through courtroom theatrics, sharp questioning of Microsoft witnesses and facile use of the media.

"Gauging the odds of Gore's chief spokesman in the bitterly contested Florida election battle being the chief advocate for the Bush administration in their most important case...it's not going to happen," University of Baltimore Law School professor Bob Lande said.

On Monday, the software giant filed the principal legal brief of its antitrust appeal--150 pages attacking the presiding judge, how he handled his courtroom and the way he applied antitrust law to the company's offenses. In June, Jackson ordered that Microsoft be broken into separate operating-systems and software-applications companies after earlier ruling the company violated U.S. antitrust law.

"Prior to the last two weeks, it wouldn't necessarily have meant David Boies wouldn't argue at the Court of Appeals under a Bush administration," said John Smith, an antitrust attorney with Nixon Peabody here. "Now, it would seem to me very hard to have David Boies argue in a Bush administration."

With or without you?
Opinions about the effects of Boies' absence vary. Some sources close to the government insist that he had largely fulfilled his job and would have had a minor part in the appeals process.

Yet if that's true, his role, "while extremely impressive, leaves a lot undone," George Washington University School of Law professor Bill Kovacic said. "It's like getting off the train before it reaches hostile territory."

Joel Klein The same argument could be made about the unexpected departure of Klein, whom A. Douglas Melamed is temporarily replacing as acting assistant attorney general.

"The loss of Joel Klein--his best skill was as an appellate lawyer--on the one hand means the government loses some global thinking," said Mark Ostrau, an antitrust attorney with Fenwick & West in Palo Alto, Calif. "On the other hand, Doug Melamed is also very appellate minded and probably more enforcement minded than Klein."

Both Boies and Klein came to personify the case in countless media appearances, some of which helped galvanize public opinion and possibly that of Jackson. But that is not appropriate for the next phase of the case, legal experts say.

"The stuff that David Boies is so good at--playing to the finder of fact at the trial level or at the court of public opinion--doesn't play well with the appellate level," Ostrau said. He described the appeals process as "cold and dispassionate," devoid of "the human element. Ultimately, that's where the government has its toughest row to hoe."

Interestingly, some believe that the departures of Microsoft's chief antagonists will not necessarily work in the company's favor.

"If you read the insider accounts that have been coming out, the suns around which these planets are orbiting are Klein-Boies," Kovacic said. "If I'm one of the professional staff people doing the heavy lifting, I get tired of that."

With Boies and Klein gone, there might be renewed enthusiasm among longtime staffers determined to hold onto what increasingly looks like their tenuous victory, Kovacic added.

Shifting political winds
Equally unclear is the effect of the presidential election. Few legal experts believe that a Bush administration would drastically change the case's direction or immediately push for settlement talks, something Microsoft likely would reject anyway.

"Microsoft's principal goal Special coverage: Breakup is to crush Judge Jackson's ruling and secure a higher court's favorable precedent," said Hillard Sterling, an antitrust attorney with Gordon & Glickson in Chicago. "Microsoft has little incentive to cut a deal and diminish its chance for reversal."

Still, the change in administration would come at a crucial juncture in the government's case: preparation of a Jan. 12 brief on the appeal and oral arguments scheduled for Feb. 26 and 27.

Many legal experts predict that under a Gore administration Melamed would deliver the important oral argument. A Bush victory would cast a shadow over his role and possibly throw the government camp into disarray.

But Sterling believes the case is so far along that even serious personnel changes "would not have any significant impact. What you'll see is a change in approach and emphasis."

Kovacic believes the delays certifying a winner in the presidential race will likely prevent a Bush administration from putting a new attorney general in place before oral arguments. "The key political appointees at the very top of the antitrust division will be there for the next two months, which are pretty vital for the briefing process," he said.

The magnificent seven
No matter what the political outcome, the change in venue--from District Court to the Court of Appeals--will have an enormous impact on the case.

Microsoft and Jackson had history coming into this case forged during an earlier proceeding, legal experts say, and that showed during the trial. Boies effectively played off this, with some help from Microsoft, impugning the company's credibility.

"Microsoft totally blew their credibility with Jackson, so he countered every inference against them," Lande said.

But before the appellate court, "Microsoft gets a clean slate from these seven judges," Lande added. "Even if we forget the fact they're more conservative, Microsoft hasn't burned their bridges with these judges."