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MS on Trial Microsoft will know who to blame for the inadequacy of its legal defence. Sullivan & Cromwell, its main trial law firm, has made some epic errors of judgement. It may be that orders as to how the case should be conducted came from Microsoft via head lawyer Bill Neukom, whom we tip for an early bath. In any event, it was a high risk strategy to call AOL svp David Colburn again as a hostile witness when it should have been clear that he knew very little of value to the defence. It seems probable that the pressure for this came from John Warden, and was an attempt to redeem his earlier inadequate cross-examination of Colburn. As a result, Microsoft did not discover that the AOL-Netscape merger was about to happen. Colburn's constant refrain was that "I'm not the technical guy" and "I'm only a deal guy". Warden foolishly tried to lambast Colburn for not pointing out in his deposition that embedding the Netscape browser had become relatively unimportant as a result of the pending deal, but of course Warden had not asked the right questions. Warden volunteered that MSN was "a tiny fraction" of AOL, something not entirely welcome to Microsoft as it tries yet again to launch its lead balloon. He was also concerned that "by gaining ownership of the Netscape client, AOL would gain a strong base to claim increasing amounts of the user's desktop time, especially in business and education markets." He was expressing the unbridled fear that Microsoft's dominance of user time might decline. Earlier in the trial, Microsoft had detected some concern on the part of Judge Jackson about the AOL-Netscape-Sun deal, so it conducted an intensive examination of the documentation of the merger in the search for anything that might help Microsoft's failing defence. No stone was left unturned in the search for dirt, but it didn't work. In the event, it became clear that there was nothing in the agreements to cause concern. What was unfair was that Microsoft had gained sight of highly sensitive documents about the merger. Warden' performance was flawed not just by the gross error of examining the wrong witness, but by many procedural errors. It was not good to refer to Colburn as the defendant, for example, but the slip was indicative of how Microsoft's lawyers have come to regard anybody opposing the bully. When Colburn had nothing to offer in response to a question, Warden editorialised by saying he wished to "draw the court's attention" to some propaganda point or other. Judge Jackson became increasingly frustrated at the inappropriateness of Colburn as a witness. In a second bench conference that he called, he let forth: Judge Jackson: Mr Warden, I confess, I'm not sure where you're going here. I think you had long since exhausted this witness's personal knowledge, and the examination that you are conducting right now is more of a dialogue than anything else, "Do you agree with this, do you agree with that?" My suggestion would be that if you got some more free-floating documents here as to which he has no personal knowledge but which otherwise has a provenance which would permit them to come into evidence, just offer them into evidence and let this guy go. Warden: I'm trying to show that the browser client part of the deal was an important part of the deal to Netscape and AOL. Judge Jackson: Well, he isn't going to agree to that, and he hasn't. Warden: I think he has. He says the browser is important to the portal because there is traffic there, and I'm coming back to the fact in a minute. Judge Jackson: He said he that a half a dozen times... I want to make sure that I know what your point is, what you're driving at... He says he's a deal maker, that he's an ops man, and that insofar as corporate strategy is concerned, he simply does what they tell him... I'm going to suggest that you exhaust his personal knowledge, put the free-floating documents in, and let's get him off the stand today... I'm rather surprised at the lack of personal knowledge he has about the things you're asking him, but he's demonstrated it. The best person to call you don't want to call [meaning Gates]. And I don't blame you. Warden: The government can call him. Judge Jackson: They don't want him, either. Mention of the glaringly obvious fact by the judge that Gates should have appeared in person to defend Microsoft was bad news for the monopolist. Nor did it help that Warden sought to enter into evidence a self-serving statement from Gates to his executives, dated 1 December 1998, and on which he could not be cross-examined. It was very strange that the memo should have found its way to AOL, by whom it was marked "highly confidential", and from whom it was "discovered" by Microsoft. To add mystery, there was a phone number handwritten on the document that Colburn did not recognise when asked by Warden. It was inconceivable that Microsoft did not know whose number it was. Colburn knew nothing about it. The most likely explanation was that it was deliberately leaked to AOL by Microsoft so that it could be offered in evidence. Boies objected to its use, and the judge sustained his request. Warden was given a basic lesson in examining witnesses and offering exhibits by the judge: "Without some testimony to give it some context, it doesn't prove anything to me... You have got to have a witness that can give it some context who have some knowledge about it, before it becomes probative evidence. Just a free-floating document doesn't prove anything to me." Warden ended up as the court fool, but there was no humour in his performance. He had groped his way forward, stumbling as he went. Microsoft's defence crumbled even further. ® Complete Register Trial coverage

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