The Microsoft Trial June 8, 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.

Now I know how plaque feels.

Ninety-eight degrees in the District of Columbia. Hot and liquidy in the federal courthouse and everyone jammed against one another like teeth. Garry Norris of IBM is one of the Justice Department’s star rebuttal witnesses in its case against Microsoft and the seats are full as he testifies for a second day.

In a bizarre reversal of the standard ornament/tree relationship, a pine-tree-shaped air freshener hangs from the metal stand designating which side of the hall outside the courtroom is for “Press.” The little yellow air freshener is deceptively shaped, one learns, because instead of scenting the hallway like an afternoon amid the pines of Seattle, it wafts out “Vanillaroma” so that hot sticky journalists can smell like Twinkies as they wait for Judge Thomas Penfield Jackson’s marshal to unlock the courtroom doors each morning.

When the Vanillaroma finally becomes intolerable today, I move to the line on the other side of the hallway, where the stand designating the “Public” section remains unadorned. I thus find myself shepherded into the “Public” section of the courtroom behind the Microsoft table today where I sit–say the cynics and detractors–where I belong, in the Microsoft camp. Microsoft owns Slate. My colleagues in the press remind me of this fact 30 times a day.

This morning, Justice’s Phillip Malone leads IBM executive Garry Norris through a few more refrains of yesterday’s song about how Microsoft conditioned the licensing of its products to IBM not on fair negotiations but on a demand that IBM stop producing or promoting competing products. As he did yesterday, Norris responds to more than one of Malone’s “Who said that?” inquiries with his cheerful hearsay: “Microsoft.”

Ohhhhh. “Microsoft” said it. You know, that guy Microsoft? We play doubles with him at the club sometimes …? Monopolist bastard.

Of course, Microsoft’s up to its neck in its own silliness as it emerges that its outrageous euphemism for a PC free of all those pesky competitors’ software is a “neutral system,” which they evidently demanded from IBM executives at every turn in the negotiations. A “neutral system”–in case you hadn’t yet figured it out–replaces IBM’s preferred browser with Microsoft’s, the Lotus organizer with Microsoft’s, the IBM games with Microsoft’s, and the World Book reference program with … well, Microsoft’s. Yep. Neutral like a unilaterally disarmed Finland, as Calvin Trillin might say.

This afternoon, a nervous Rick Pepperman from Sullivan & Cromwell takes up the reins for Norris’ cross-examination and never quite manages to dig himself out of a snow bank of mislabeled documents, confusingly numbered documents, documents with dates changed by the automatic re-dating function, and documents of which there appear to be infinite drafts with infinitesimal changes. Pepperman, who looks exactly like last week’s Sullivan & Cromwell attorney–Michael Lacovara–but with a higher part line, is having a tough time making the three simple points he’s trying to make. The three points are: a) that Norris is five men down from the real power in an insanely hierarchical IBM organization (a point that would be less laughable were it not emanating from the insanely hierarchical Sullivan & Cromwell); b) that IBM had lots more bargaining power than Norris has suggested in its negotiations with Microsoft, as evidenced by the fact that it gained all sorts of concessions from Microsoft (of which Norris was unaware since he is five men down from the real power at IBM); and c) that it’s a good idea to organize your documents well in advance of trial.

Actually, he makes this third point quite well. The Georgetown law student seated two-crowded-people down from me writes on her pad: “Many mistakes by Microsoft lawyer.”

Of course, Norris is making this all a lot harder for Pepperman by claiming he is five men down in the IBM hierarchy so he can’t be expected to know anything but the little bit he knows. Aha. This is the defense in which the witness is, in his own words, both the “lead negotiator” on the Microsoft deals but also far too insignificant to have been privy to any documents from his superiors that are damaging to the government’s case. Norris is a moving target–apparently he’s both down in the trenches and leading the charge. And rather than pinning him down and thumping at him until he tells us whether he’s an executive or a pawn, Pepperman dances round and round.

Remember the Lambada? Now imagine it in navy pinstripes. In hundred-degree weather.

The highlight of my day comes when Microsoft tries to introduce into evidence an approximately 400-pound document that is the Proposed Findings of Fact and Conclusions of Law in an unrelated IBM antitrust suit. When the government objects to the materials, Pepperman tells the judge that he will “explain if I can and let you be the Judge …” Judge Jackson, emboldened by the imprimatur of Pepperman’s appointment, rules the evidence inadmissible.

But the document fun does not stop there. Late this afternoon, as Microsoft introduces document upon document never before seen by the witness, the government’s Phillip Malone moves to strike the evidence based on a lack of foundation. The judge takes up the colloquy with Pepperman. He asks Microsoft’s lawyer how Norris can testify about documents he’s never seen before. He asks what Pepperman is offering to tie these documents to documents about which Norris testified earlier. He gets testy. Pepperman says that if the judge hadn’t limited the number of rebuttal witnesses, Microsoft would call witnesses to testify as to the origins and foundations of these documents. The judge snaps back that they’d end up testifying about a whole lot more than that. And then he quite literally flings the document in question onto his table. And then he denies the motion to strike and lets in the documents. People whisper. “Did he just say deny?” Judge Jackson appears to have let in documents he didn’t care to let in because he is not going to bend on his three rebuttal witnesses limit.

A parting thought: On Sunday my friend Liam was trying to explain the Internet to me. He tried to access Slate using Netscape Navigator and got an error message. No such trouble doing so via Internet Explorer. Today my Dad, the intrepid economist referenced in last week’s dispatch, informs me that he cannot seem to read his little girl’s columns using Navigator either. That might not be monopolistic, Mr. Gates. But it’s sure mean.

EDITORS’ NOTE: We don’t know why our correspondent and her dad are having problems, but Slate is fully accessible using Netscape Navigator. In our last reader survey, most Slate readers got it that way.

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