Kearns' column: Stuck on the Microsoft trial

I have been a fan of television courtroom drama for many years, so it comes as no surprise that I've been watching the Department of Justice vs Microsoft antitrust trial and imagining it as a TV show.

Halfway through the proceedings, I'm torn as to how to characterise the players in this drama, especially Microsoft's lawyers. Bill Neukom, John Warden, and especially lead questioner Michael Lacovara, appear to go out of their way to alienate and insult the press, the public, the government witnesses and especially Judge Thomas Penfield Jackson. A couple of examples will illustrate what I mean.

First, after the announcement of the purchase of Netscape by America Online, many industry analysts reported the deal as a win for Microsoft. Yet Microsoft's spokespeople repeatedly tried to paint it as a sign that competition was alive and well. When Judge Jackson said the deal would probably have an impact on the case, Neukom et al began dancing in the street -- convinced, they said, that the judge would now rule in their favour, and perhaps even dismiss the case. Instead, Judge Jackson took pains to introduce into evidence (a rare move for any judge) a news report of an interview with AOL's Steve Case, which strongly bolstered the government's contentions about Microsoft's monopoly powers.

Second, Lacovara has almost continuously drawn warnings from Judge Jackson about the length, scope and demeanor of his cross-examination of government witnesses. For example, rather than questioning final government witness Franklin Fisher about the economics of the marketplace -- Fisher's area of expertise -- Lacovara kept asking him questions about the inner workings of Java. The lawyer could have asked those questions of Sun's James Gosling, the man who created Java, but instead asked him about economics!

If this were a fictional trial, the tactics of Microsoft's lawyers would already have drawn contempt citations from the judge. Here in the real world that probably won't happen, but it will probably bring them a loss in this case. And it's a case Microsoft could have easily stopped with a consent decree heavy on platitudes while short on any actions that would hamper Bill Gates' software empire. How could Microsoft get to be that rich and yet be that dumb?

Kearns, a former network administrator, is a freelance writer and consultant in Austin, Texas. He can be reached at

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