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MS appeal: judge ‘whopped us upside the head’

Must be some kind of technical expression

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In its initial and chief filing with the US Court of Appeals for the District of Columbia, Microsoft illustrates US District Judge Thomas Penfield Jackson's single-minded and malicious persecution of the company with a little exemplum:

"I like to tell the story of a North Carolina mule trainer," the court brief quotes Jackson as saying. "He had a trained mule who could do all kinds of wonderful tricks. One day somebody asked him: 'How do you do it? How do you train the mule to do all these amazing things?' He answered, 'Well, I’ll show you.' He took a two-by-four and whopped him upside the head. The mule was reeling and fell to his knees, and the trainer said: 'You just have to get his attention.' I hope I’ve got Microsoft’s attention.'"

Clear evidence, the appellants claim, of deliberate bias.

"In making its findings, which adopted nearly all of plaintiff's factual assertions, the district court ignored vast amounts of uncontradicted evidence submitted by Microsoft on the central issues in the case," the brief continues.

While there are a number of arguments of fact in the brief, the company's rhetorical foundation is built on Judge Jackson's apparent, irrational hatred of the Redmond behemoth.

Jackson's own performances in the glare of national media attention also compromised the company's case, the lawyers argue.

"By repeatedly commenting on the merits of the case in the press," the company argues, "the district judge has cast himself in the public's eye as a participant in the controversy, thereby compromising the appearance of impartiality, if not demonstrating actual bias against Microsoft."

These colourful assertions are bait clearly devised for mass media consumption (on which we certainly couldn't resist nibbling); but Microsoft is risking a PR backlash as the public observes them doing precisely what they accuse Jackson of having done.

Another risk here is the overall displeasure among appellate judges whenever lectured by smart-arsed corporate lawyers to the effect that one of their peers on the district circuit is a creep.

Thus the Jackson broadsides are inserted to distort public opinion in Microsoft's favour -- a standard bit of corporate PR which few in business could have resisted; but now Redmond has to hope that the appeals court won't take offence.

Unfortunately, if the MS legal beagles have blown it, they won't know until the oral arguments commence in February, at which time they may find themselves in legal waters just as hostile as those they encountered on the district circuit.

Or worse, for a deliciously sadistic twist of the knife, the appeals court might order a new trial in front of -- you guessed it -- Judge Jackson and his whopping big two-by-four. ®

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