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Will Sullivan & Cromwell, Microsoft's principal trial lawyers, be shown the Yellow Card by Microsoft? It's clear that John Warden, Theodore Edelman and Steve Holley have been upsetting Judge Jackson over procedural matters. Warden has not succeeded in establishing a reasonable rapport with the judge. He slowness at cross-examination was clearly not accidental, and may well have been part of a plan to induce the judge to express his frustration at Warden's speed, so giving more ammunition for the appellate or supreme court. Edelman has made two bad mistakes that had the opposite effect to what he desired. One was when he tried to demonstrate how easy it was to change from Internet Explorer to Navigator on the Mac. Judge Jackson did not agree at all, and clearly sided with Apple software VP Avie Tevanian on this. A second example came at the end of Tevanian's examination, when a video extract of Steve Jobs' announcement of the Microsoft deal at MacWorld in May 1996 was greeted by booing and jeering, but with cheering when Jobs said that "other browsers would also be available". This was shown by the Microsoft defence team, and presumably they hadn't considered its effect. Most probably, they had only seen a transcript of Jobs' politically correct remarks (including the interesting information that there were "multiple patent disputes"). No wonder David Boies, the DoJ's trial lawyer, was delighted when Microsoft said they would like to show the extract: he was grinning when he said he had no objection at all. Judge Jackson was also amused. Sullivan & Cromwell did not succeed in preventing the humiliation of Bill Gates publicly by finding some way of stopping the videotaped deposition being shown in court -- and even worse, being released to the media. And Holley did not appear to understand sufficiently the technical issues during his cross-examination of Intel's Steven McGeady. Microsoft is unforgiving with any sub-standard performance, and it may well be that the legal team will evolve as a result. ® Complete Register trial coverage

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