MS trial over by August? The Register predicts…

MS on Trial We believe it is highly probable that the District Court in Washington will be in recess for March. Judge Jackson has a commitment to hear a criminal trial, and because of the Speedy Trial Act (we joke not), the start cannot be delayed beyond the Spring. It is not known how long this trial will last.

Judge Jackson has stressed to both sides that he wishes to get the examination of Microsoft witnesses finished by the end of the month. The reason has not been stated in open court, although there was a very small item in the Washington Post that started the speculation, and an enigmatic bench conference in court last Monday.

By urging this speediness, the judge is putting himself in a vulnerable position should the DoJ object on appeal that it was rushed, and that Microsoft had twice as long to examine witnesses as the DoJ. But if Judge Jackson had pretty well decided that he was going to find for the DoJ, he would not be concerned about this.

It has been noteworthy that David Boies has been cracking along in his cross-examinations. Michael Devlin of Rational must have felt put down to be squeezed in for just a morning (with almost no media coverage) between some flakey Microsoft videos (with encores of media coverage). It now appears that Boies has two reasons for cooperating with the judge. The first is that he is now as sure as he can be that the DoJ will win, and he does not want to antagonise him.

But Boies' second reason is a personal one: he is scheduled to represent Unisys in a case in Philadelphia starting on 15 March, and at his request it has already been delayed twice. He is unlikely to get a further delay. This is a problem for him and the DoJ, rather than the District Court. Boies of course wants his Philadelphia case to last no longer than Judge Jackson's case, but that is a gambler's call. There is no doubt that his presence is now essential for the well-being of the DoJ case, and it is a matter of some concern that he should put energy into Unisys case when he should be working on the rebuttal witness preparation and his closing arguments.

Last October, both the Department of Justice and Microsoft thought that the trial would take some eight weeks. The suspicion lurks that Microsoft's true objective has been to make the trial as drawn out as possible, as was seen from the way in which the DoJ's witnesses were cross-examined from the outset, because Microsoft wanted the media to have as little as possible to report about the trial -- an objective that has been spectacularly unsuccessful.

For its part, Microsoft must welcome all future delays so that its propaganda machine, which is looking more and more like Department of Fiction in George Orwell's Ministry of Truth, can attempt to regain some credibility. For many observers, this would be a very difficult task.

Jackson has not yet decided on his course of action, but he will have to announce this quite soon, or at least make his decision known confidentially to the counsel.

The following witnesses have yet to be heard, although the sequence is not yet certain: Joachim Kempin, senior VP OEM sales; Daniel Rosen, general manager, new technology; Thomas Reardon, program manager, interactive media group; Jeffrey Raikes, senior VP North American sales; and John Rose, senior VP and group general manager for enterprise computer, Compaq. Kempin and Rose are likely to take more time than the others.

Based on our enquiries and best current estimates, The Register puts forward the following Y2K-ready timetable (YYMMDD) and prognosis, which will be updated as events unfold:

990225: Examination of Microsoft witnesses will have ended. Judge Jackson will declare the court in recess until further notice.

990405: The court will sit again unless Judge Jackson has not finished his case. If David Boies had not finished his case, the trial will continue without him if necessary. There will be two rebuttal witnesses from the DoJ and two or three from Microsoft (because Microsoft argued that Gates was being used in effect as a witness by the DoJ, with the extensive videotaped deposition extracts). Neither side has announced who its rebuttal witnesses will be. It is still possible that Microsoft will call Gates, for one or more of several reasons: Gates may insist that only he can salvage the mess that the lawyers have made; Microsoft's lawyers may think Gates could help; or Microsoft may want a fall guy to blame for a bad performance, and to minimise recriminations. It is just possible that the DoJ could call Gates, but they would certainly prefer Microsoft to call him.

990426: Closing arguments by each side, probably lasting about four days. Judge Jackson adjourns the court.

990614: This is probably the earliest time Judge Jackson (assisted by a number of law clerks) could deliver his Opinion. The odds on the DoJ winning substantially are now perhaps 9 to 1, but Microsoft should be able to clutch at a few straws from the judge's decision. ("We are gratified that the judge complemented us for turning up on time each day.") An appeal immediate appeal by the loser is likely, and it is possible that the judge would indicate that in his view the appeal should go directly to the Supreme Court.

990628: Hearing on remedies could begin, subject to not having been stayed by the Court of Appeals, and could last for possibly four weeks, since witnesses could be heard.

It is unwise to speculate (especially with respect to the future, as the Chinese aphorism suggests) about the timing of events in an appeal, but it would be very much in Microsoft's interest to delay further proceedings for as long as possible. We may be proved to be a tad wrong on some of this, and no doubt our errors will be remembered. But if we are substantially right, then tell them you read it first in The Register.

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