The Microsoft Trial June 9, 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 reprimand awaits me this morning as I take my seat in court. David Lawsky, of Reuters, who has been unfailingly generous with both insight and feedback, accuses me of being unfair to Microsoft in last night’s dispatch. Seems he’s had no trouble at all accessing Slate via Netscape Navigator. I apologize to Microsoft. However, on closer questioning, David concedes that he may not be seeing all the “bells and whistles” when accessing Slate using Netscape but, he tells me, he’s only interested in the words.


As the self-proclaimed shallowest person in the courtroom, I must disagree, respectfully, with Mr. Lawsky. I heard waaaay too many words today. Let’s frolic amid the bells and whistles.

First a bell.

Garry Norris is on the stand today for the third day. He’s the IBM executive testifying for the government that Microsoft held IBM more or less hostage by insisting IBM either stop competing with Microsoft or suffer the consequences in higher prices and generalized Microsoft petulance. He’s being cross-examined again today by Sullivan & Cromwell’s Rick Pepperman, and the whole display is excruciating.

Pepperman is a bulldog and will ask the same question in 40 different ways to elicit the response he’s seeking. Norris has a pattern that’s become equally annoying, if not more so. He will read the document Pepperman puts before him in its entirety. S-L-O-W-L-Y. Then he answers Pepperman’s question with a question of his own. Then, he will either disavow any knowledge of documents produced by either his superiors or inferiors at IBM, or he will say he now needs to provide “context.” Context, for Norris, is a code word for long canned explanations he’s already used on his direct exam with Phillip Malone from Justice. He resuscitates whole phrases: “We had no other viable alternative but Microsoft,” “We wanted the deal they had with Compaq,” instead of answering the question. He inevitably does this while glancing toward the counsel IBM has provided him for this trial–as if he’s hoping to get the sign to steal third.

It took all morning for Pepperman to get Norris to say that yes, IBM has said some bad things about Microsoft and all afternoon to get him to say that yes, IBM managed to negotiate prices with Microsoft a little more than Norris’ direct may have suggested. It’s all positively Schumpeterian in its significance to the antitrust claims.

Now Judge Thomas Penfield Jackson is not exactly sphinxlike when it comes to gauging his moods. He drinks when he’s thirsty, he naps when he’s bored, he takes copious notes when he’s engaged. and when he says it’s lunchtime, the attorneys’ stomachs growl in unison. At noon, after Pepperman has finally elicited from Norris the stunning testimony that IBM said some mean things about Microsoft, he begins to question Norris about yet another document. Judge Jackson interjects with the gentle suggestion that Pepperman might pick a convenient time to stop for lunch.

Pepperman, not understanding that this means “Pepperman, stop for lunch.” asks whether the court wants to stop at some point prior to 12:30.

“Yes,” says the court.

Pepperman asks for clarification, “Is the court saying I should pick the next convenient place to stop?”

“Yes,” says the court.

All around me the press are hissing: “Pepperman, stop for lunch.”

Pepperman says he will just conclude the subject of the IBM audit with one more document. He hands another internal IBM document to Norris. Norris reads it, and the tectonic plates shift a little. Judge Jackson, usually a gentle pink in tone, is growing crimson. Finally Norris is ready for the question. Pepperman asks it. More fencing. Norris answers another question with another question. Pepperman, unable to take any more spits out, “I ask the questions, you give the answers!!!” And the Judge growls, “Break for lunch.”

Pepperman stops for lunch.

Now for the whistles:

United States vs. Microsoft is a Man’s Trial. I don’t just mean a Man’s Trial, but rather, a Man’s Man’s Trial. This is a trial manned by Men Who Flip to the Boxscores, Men Who Do Not Giftwrap, Men Who Wear Suspenders. This is a trial of men who work their jaws manfully, the way they did it in the 1940s. This morning the docket sheet lists seven attorneys, none of them women, although there has been a woman at the Microsoft table this week.

Antitrust lawyers are macho guys. Big lawyers smashing up big business worth big bucks and billing billions of hours. Big books too. I’ve been carrying around a huge green antitrust treatise, helpfully tabbed by an antitrust lawyer, so that I might bone up on (read: “learn”) the nuance of “tying doctrine.” Aside from damage to a vertebra from lugging it around on the metro, the treatise has yet to affect my life until today. Today I sat on it in court. From three inches higher, I could suddenly see a whole lot more of the Microsoft trial.

And it looks like the Sigma Nu house out there.

For instance, I counted 14 attorneys around both counsel tables. One woman. I inquired as to the number of women attorneys who’ve spoken during the trial and was advised–anecdotally mind you–that it’s zero. I will check the record. From my newfound vantage point atop Hovencamp’s Federal Antitrust Policy, I tried to count the number of women in the well between the bar and the spectators. I saw a handful on the Justice side, but that includes a sketch artist.

Just for diversion from Norris’ refusal to answer questions, I counted women journalists. Journalists don’t sit still long enough to count but it was roughly six women out of 34 journalists.

Another reason I’ve been having a tough time getting up to speed on antitrust law is that each time an attorney friend offers to put me in contact with an antitrust guy (always a guy) at their firm, they inevitably call back seven seconds later to recant. “On second thought,” they’ll say, “not a good idea. He’ll probably hit on you …”

“I just want to talk to him,” I’ll insist.

“Mmmmmm, nope,” they will say.

Eventually it comes out. This was the guy who hit on a ficus at the Christmas party.

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