Teflon, I know how you feel. Here is good wrap up of the trial from the SeattleTimes with some dates about the possible decisions. Don't think it includes today's testimony
seattletimes.com
Microsoft trial: Settlement hopes rise as testimony winds up
by James V. Grimaldi
Seattle Times Washington bureau
WASHINGTON - With the final witness set to leave the stand in the Microsoft antitrust trial today, the company's chief attorney is holding out hope "the government comes to its senses" and both sides can settle the historic lawsuit.
Buoyed by a rebuttal free of the missteps that plagued Microsoft's earlier defense, Bill Neukom, the company's general counsel, said having a strong rebound may help negotiations that stalled before the trial resumed this month.
"We feel very good about this phase of the trial," Neukom said. "Any time you have a good segment of a trial, it forces your adversaries to go back and check their cards."
After agreeing that any out-of-court settlement would exclude breaking up the software giant, Microsoft and the Department of Justice and 19 states had embarked on formal negotiations. But those talks reached an impasse over proposed restrictions on Microsoft's business practices.
The likelihood that settlement talks will resume grows today as the trial moves toward conclusion.
There is plenty of time to talk, too.
In about a month, both sides will suggest factual findings drawn from trial evidence and write briefs for U.S. District Judge Thomas Penfield Jackson, who will issue the first of two rulings as early as October and a final opinion sometime early next year.
The factual record is to close today, concluding an unprecedented view of controversial practices by one of the century's most successful companies.
After withstanding a relentless government battering during 78 days of trial over five months, covering 30 witnesses and more than 2,500 exhibits spanning tens of thousands of pages, Microsoft attorneys asserted the government had failed to prove its case.
However, they acknowledged they could have established a better case. Although they think they scored all the right legal points, they noted the highly scrutinized trial's format was a poor one for telling their story. In the early stages, direct witness testimony was presented in writing, but during the rebuttal, witnesses testified in person.
"It didn't turn out as well as we had hoped," said Tom Burt, a top Neukom associate. "The use of written direct testimony worked to our disadvantage. I think we've seen that change a bit as we got into the rebuttal phase."
While Neukom thinks Microsoft holds the better hand, state and federal antitrust enforcers believe they have proved Microsoft has a monopoly in personal-computer operating systems, using it illegally to crush competitors.
Again this week and last, the Justice Department's chief trial attorney, David Boies, relied on the trump card he has played over and over: credibility. In cross-examining Massachusetts Institute of Technology economist Richard Schmalensee and Silicon Valley businessman Gordon Eubanks, Boies probed for the kind of contradictions and ulterior motives that tripped up many of Microsoft's 12 witnesses in the October-to-February primary phase of the trial.
Without putting a single Microsoft employee on the stand during the monthlong rebuttal, the company also avoided the kind of embarrassing moments that highlighted the primary phase.
Expectations were high before the testimony of the government's chief rebuttal witness, Garry Norris of IBM's personal-computer division. He had kept detailed handwritten notes and follow-up memos related to allegations that Microsoft raised prices for Windows after IBM refused to drop competing software.
Under cross-examination, though, Norris withered on the stand and watered down some of the allegations.
"It looked like the government came stronger out of the starting blocks with Norris," said Robert Litan, a former federal antitrust enforcer. "But Microsoft has had strong push-back."
While Microsoft prevented the government from leveling significant new hits, it remains to be seen whether the company's rebuttal repaired earlier damage. The biggest impact, Litan said, may have been to influence the judge on what remedy he might seek should he find Microsoft guilty of using a monopoly to smother competition.
"Microsoft appears to have been successful in preventing the worst-case outcome," Litan said. "They probably have made the judge nervous about doing radical surgery, so that the relief is likely to be more minimal than drastic."
But Litan, like many trial observers, remains convinced Jackson is leaning strongly toward finding Microsoft guilty.
If Jackson's public statements are any gauge - and they are almost the only barometer of the nonjury proceeding - then the trial's turning point came not in the rebuttal stage but in mid-November, when the government showed Microsoft Chairman Bill Gates' deposition.
From the beginning, Gates has loomed large at the trial - in the form of e-mail, documents and particularly the videotaped deposition, which Boies trotted out early.
Boies changed strategy after first planning to play Gates' deposition to follow testimony by Jim Barksdale, former chief executive of Netscape Communications, and David Colburn, a dealmaker at America Online. Instead, he played Gates' testimony before each new witness, depicting the Microsoft chairman addressing major issues as they emerged in the trial.
Denying knowledge of e-mail he had sent and received, Gates appeared vague, evasive and combative, and wound up looking like an executive with something to hide. Jackson reacted by shaking his head in apparent disbelief.
When Microsoft attorney John Warden demanded the government be forced to play all of the tape on one day rather than dribble out bits throughout the trial, Jackson refused. The judge's comments were the first and most skeptical up to that point, but they foreshadowed moments when he would question Microsoft's case, shaking his head or rolling his eyes.
"If anything," Jackson said, "I think your problem is with your witness, not with the way in which his testimony is being presented. Mr. Gates has not been particularly responsive to his deposition interrogation."
James Grimaldi's phone message number is 206-464-8550. His e-mail address is: jgrimaldi@seattletimes.com
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