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MS on Trial The judge in the Microsoft trial moved into action quickly yesterday, proposing that the remedies phase of the trial (the 'sentence,' as it were) be conducted in 60 days, and raising the possibility of fast-tracking the appeal straight to the Supreme Court. Judge Jackson also wants both sides to produce the last offers they made for a negotiated settlement before talks collapsed, and told them to come back today to start making decisions. Microsoft's lawyers don't seem to have been happy about most of this; chief trial lawyer John Warden said they weren't prepared to agree the 60 day period or to put forward their position until they knew what the government side wanted. Warden also resisted the notion of putting Microsoft's previous final offer into the pot, even under seal. In a bid to achieve a settlement Microsoft, he said, had offered more than the government would have achieved via an imposed settlement. So effectively, Microsoft is now trying to downgrade its proposals, maybe even to wipe the slate clean, for the remedies phase. All of the concessions, or half-concessions (depending on who you hear it from), even that extra mile, are off the agenda again. Warden does of course have a point, and for the government the DoJ's David Boies was civil enough to agree with him "a bit," saying that during negotiations different kinds of offers from those likely to be made before a court would be thrown in. This however bodes ill for the judge's 60 day schedule, and if Microsoft's lawyers succeed in being able to hold off until they hear from the other side, slippage will look even more likely. Nor is it certain that the judge will succeed in getting the appeal heard straight away by the Supreme Court. He said yesterday that he'd ask the government to move a motion under the expedition act to provide for "direct review in the Supreme Court." But neither he nor either side's lawyers were sure if the law allowed this, so it mightn't work. One change that should move things along is Judge Jackson's decision that he'll allow the states and the DoJ to make separate remedies proposals, if their positions turn out to differ. He'd previously been determined to get them to agree on a single proposal, so his change of mind speaks volumes about the alleged 'unity' of the government side. Even so, he'll have his work cut out in trying to get the case finished, once and for all. One of Microsoft's best shots is to try to spin the case out for as long as possible, buying time for changes in the market to make the government's case ancient history and the remedies pointless. And if it can be strung out for long enough, a Bush administration may ride to the rescue. Warden's been slapped down by the judge before for excessively stately progress, so we could be in for some interesting transcripts. ® Related stories: Judge uses verdict to torpedo MS appeal chances Complete Register Trial coverage

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