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MS attorney becomes marketing spinmeister, judge gets bored

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MS on Trial Although IBM exec Garry Norris was personally subpoenaed to appear at the trial, he received a great deal of support from IBM legally, meeting IBM lawyers two to four times a week for three weeks before his testimony. From time to time there have been hints of internal dissension at IBM, but Norris seemed to be well-schooled in avoiding any responses that might have thrown light on it. Richard Pepperman, Microsoft counsel of Sullivan & Cromwell, at times acted like a Microsoft marketing person, as Microsoft expects from all its paid help. He sometimes made propaganda statements in court, rather than cross-examining Norris. An example was in citing the revenue of IBM versus that of Microsoft ($81.7 billion versus $14.5 billion), and how IBM's software revenue was $11.9 billion last year. Norris was not prepared for such debate, so did not point out how Microsoft's asset value considerably exceeded that of IBM because of its bloated share value. Pepperman did not do well personally with Judge Jackson. He attempted to ask Norris about IBM's antitrust record, but was told by the judge "I don't think it's worth the time", so Pepperman did not succeed with his intended propaganda point. His courtroom inexperience showed when he broke court etiquette three times by starting to ask questions about exhibits before they had been accepted by the court, prompting the judge to say: "May I admit it into evidence before you ask him questions about it?" Pepperman made another mistake, and was admonished: "Mr Pepperman, don't refer to it as an agreement, yet. You misstate the character of the document. It's an IBM/Microsoft alliance proposal which, apparently, was a work product of Microsoft." Pepperman several times tried to quiz Norris on documents he had not seen, and to find out what he knew from hearsay. This provoked Judge Jackson to say somewhat irritably: "He can only testify as to what he had personal knowledge about". At one point, there was a discussion about the link between two documents, so Pepperman offered to get Baber or Kempin to clarify this to the court, but the judge remarked: "Well, if you're going to call Mr Kempin or Mr Baber, there is a lot more they're going to have to testify besides who wrote these documents." It was another indication that Judge Jackson was none to keen on Kempin. Another non-relevant attack was on IBM's excessive hierarchy. Norris was only five levels below Gerstner, so he is of course quite senior. He also introduced much talk about "your boss' boss", but there was no mention that Baber, Norris' Microsoft equivalent, was several levels below Gates as well. Pepperman tried to diminish Norris in ways that went beyond normal cross-examination practice, but Norris weathered the attacks well while Pepperman emerged battle-scarred. Pepperman managed to develop some of the religious fervour seen in Microsoft's so-called evangelists in following lines of questioning as to why IBM did not promote Microsoft products. Norris explained patiently (20 times) that IBM would not exclusively promote Microsoft products. There was a nice example of Norris turning the tables on his inquisitor: Pepperman: Now, pursuant to this "IBM first" initiative, IBM attempted to market and sell IBM products to customers first; correct? Norris: What's wrong with that? Pepperman: Nothing. Pepperman may have been under pressure from OEM boss Joachim Kempin to put in the boot, because Kempin was sore that he had "stuck his neck out" in an attempt to bring about an alliance with IBM, and been made to look a fool in front of Gates when IBM refused his terms for this. Dean Dubinsky, IBM's Kirkland, Washington-based relationship manager was something of a loose cannon, although there seems to be no evidence that he went native as a result of his geographical proximity to Fort Redmond, judging from a draft briefing that he prepared for the incoming svp of the Personal Systems Group, Sam Palmisano. Norris thought that Dubinsky's remark that "IBM turned the tables on Joachim Kempin" a bit too strong for the briefing, and excised it. Several times Pepperman failed in his point scoring. In one instance he pounced on what he thought was an error made by Norris in his deposition concerning the authority to sign contracts. Norris had said there were two places to sign, but Pepperman had not considered that this might be an either/or situation, rather than requiring both signatures, so Norris sent him away with his tail between his legs. Microsoft failed to produce a document to the DoJ during discovery but it wanted to use it to make a point. Judge Jackson allowed it to be admitted, but thought it was "a self-serving out-of-court statement" without provenance and which could result in a sanction against Microsoft. It raised the spectre of other documents that had not been produced by Microsoft. Unfortunately, many of the juicy exhibits being presented in court have not yet been posted, nor are they available at the courthouse in Washington. Judge Jackson became bored at Pepperman's trivial line of examination, and asked pointedly how much longer he would be, to which Pepperman replied five or six hours. Judge Jackson offered a sage suggestion: "I'm not sure how much progress you have made so far... but be economical with your examination". The judge enquired whether that would "keep you on schedule". A recess was then taken. after which there was a bench conference with the transcript taken under seal, which probably concerned timing issues. It therefore seems that there is an implicit agreement that each side has eight court days for rebuttal, meaning that the present phase will end on 1 July, in good time for the independence day weekend, and possibly a well-deserved holiday for Judge Jackson, while the litigants scrape together their legal arguments for the next stage. ® Complete Register trial coverage

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