The Microsoft Trial June 14, 1999

Dahlia Lithwick worked for two years in a family law firm in Reno, Nev. She is writing a novel about how divorce affects children.

A central theme of Microsoft’s defense in the rebuttal phase of the trial is that AOL, or AOL and its trusty sidekick Netscape, are the real villains of the piece. Microsoft seeks to prove that AOL acquired Netscape in November to compete with Microsoft, and with an eye toward replacing Microsoft’s Internet Explorer with a browser of their own. This is why it calls a “hostile witness”–AOL executive David Colburn–as the first of its three rebuttal witnesses today. Microsoft is hoping Colburn will shore up its claim that the market is not only rife with healthy competition but that AOL is as much the behemoth anti-competitor as Microsoft is.

Microsoft’s desire to shift blame to AOL is evinced in a dozen ways, the most amusing of which is Microsoft attorney John Warden’s accidental reference to Colburn as “the defendant” during his direct examination this morning. When the press chuckles, Warden quickly corrects himself: “He could be the defendant.” As the judge begins to laugh Warden smiles: “That was a mishap.”

John Warden, a buttermilk-voiced Southern gentleman law-yah, tends to bellow into the microphone, but his accent makes it sound charming. David Colburn, less a “hostile” witness than a surly, scary, forgetful witness, speaks with the bashed-in Jersey monotone favored by the guys who shoot craps with Frank Sinatra in the New York City sewer system in Guys & Dolls. Colburn and Warden make a strange pair. Colburn repeats over and over that he’s “only a deal guy” and not really involved in the technical or PR aspects of the AOL-Netscape-Sun discussions. Warden keeps pummeling him with internal AOL e-mails suggesting that AOL wanted to generate a rival operating system from AOL, Netscape, and Sun systems that would someday be used by the majority of PCs.

These memos and e-mails show AOL thinking hard about whether to hit back at Microsoft with the merger, musing about “what would happen if we got really aggressive and swapped out [Netscape] Communicator for IE.” An e-mail from AOL CEO Steve Case notes that “we shouldn’t assume we need or want to maintain [IE] as primary browser.” Yet at times, the message elicited by Colburn’s testimony supports Justice’s claims more so than it does Microsoft’s. AOL President Robert Pittman’s reply to Case’s e-mail above, “I do think [Microsoft] is too strong to throw them out of the tent–they can hurt us if they think they have no other option … ,” says more about the alleged reign of terror by Microsoft than it does about AOL’s attempts to get back in the game. Same story with AOL’s references to “breaking the deadly embrace with Microsoft.”

Colburn’s response to the mountain of e-mails is twofold: As a personal matter, he becomes agitated whenever there are multiple documents before him on the witness stand, twice asking that piles of old documents be taken away. Clearly, Colburn requires an immaculate workstation. He says the e-mails represent speculation and perception management, but that to the best of his knowledge, AOL was never seriously considering dumping IE or acquiring Netscape for its browser alone. The AOL e-mails are full of funny little Greco-Roman nicknames. Netscape is referred to as “Odyssey” ; AOL is “Apollo” ; and Sun is “Zeus.” One fun game to play during slow moments today is which-lawyer-looks-like-which-mythological-character-and-why. The feeling among the press at the lunchtime break is that Warden is doing some fine swinging but not landing any real punches. I guess that turns on whether you believe the strategy of pinning the blame on AOL is an effective one.

If you learn anything at law school, it’s this: Ditch the wide-angle lens and find yourself a zoom. To think like a lawyer is to winnow out detail from a morass of information. We scour cases for holdings, we spot issues on our exams, and we pore over the bluebook for correct placement of periods, commas, and italics. As with all addictions, this needle in the haystack approach is a tough habit to break. Having spent several days scribbling the numbers of defendant’s exhibits in the margins of my notebook (so much for covering this trial from middle distance …), I finally notice the sketch artists, panned back farther than anyone in the courtroom; a little island of right brains.

There are three of them, Dana Verkouteren, Art Lien, and William Hennessy Jr., and they’ve all more or less been here from the beginning. They sit in the puffy chairs in the jury box and each produces about two sketches a day. They really do try to capture the big picture–panorama of witness stand, judge’s bench, counsel tables, marshal, clerk, court reporter. The images they send to ABC, NBC, and CNN are the way the world sees what’s happening in U.S. vs. Microsoft.

This is an outrageously high-tech trial. I count seven computer monitors and two massive TV screens in the courtroom, displaying computer-highlighted exhibits in every direction. The parties have their own Web sites, where you can download transcripts and exhibits. The days of the Rosalind Russell pressroom from His Girl Friday–all beat up typewriters and fedoras–are over. The press hop up and down to call in scoops on cell phones. Stories are e-mailed and posted online in minutes. Yet since there are no TV cameras in the courtroom, Dana and Art and Bill are showing us this trial in pastels and colored pencils and ink, the same way they probably did it back in King Solomon’s court.

Dana and Art look like artists, in a sort of wholesome Pacific Northwesterly way that sets them apart from all the suits in the courtroom. Bill, immaculately groomed, could pass for one of the Microsoft lawyers. Dana says this trial has taught her that there are “a lot of different shades of navies and grays.” She says she loves drawing Judge Thomas Penfield Jackson, that “his face has lots of character,” but that her biggest challenge in this trial has been in capturing what she calls the blue “beams” that emanate from the DOJ’s lead attorney David Boies’ eyes when, as she says, “he’s about to grill someone.” She says that Boies has two looks: the beams and his “soft eyes.” I’ve been struggling all week to describe Boies at rest but that’s it: soft eyes.

Art observes nuances unseen from the press section. For instance, he points out that AOL’s Colburn is wearing cowboy boots. Really. Some sort of animal skin, he thinks. And then: “What’s he doing with his hair?” he asks, showing his sketch, “Combing it up from the back and down from the sides with a little poof in front.” Art compares the molasses-slowness of this trial to the McVeigh trial he also sketched. There, he sometimes had to produce 20 sketches a day. “This is the other extreme,” he says. One witness can be on the stand for days. He says he loves to draw Microsoft’s John Warden but, “I wish he were wearing a powdered wig.”

I ask Bill if he just sort of loses himself in his right brain or listens to the testimony. Bill says he has to listen. He’s not just “capturing the moment,” he tells me. “I know that, given the choice, they’d have a camera in here. I have to summarize what’s happened, illustrate the crucial testimony, listen for the key moment, find the key document.” He thinks for a minute and adds, “but I also try to provide something the camera can’t provide: the artist’s perspective. I try to assimilate everything into one view.” He describes the element of time lapse, the accumulation of a day’s testimony into a snapshot that is a still shot but also a narrative.

Dana tells me she tries not to take sides. In fact, all three artists have said that they don’t much care who wins this trial. But, says Dana, “when a side is really taking over there is more body language.” The attorneys gesture more, the witnesses start slumping forward, wringing hands. Here is what Bill Hennessy’s sketch from today looks like: David Colburn sits at the witness stand while the judge looks over at him. John Warden punches an angry finger toward a big screen where an AOL memo is projected under a massive AOL logo. Another huge AOL logo is displayed at Colburn’s side. Warden seems to be shouting that AOL should be the defendant here. Colburn is not slumping or wringing his hands.

Click here   for dispatches from the last session of the Microsoft trial between October 1998 and February 1999.