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To: Daniel Schuh who wrote (22783)	2/26/1999 10:49:00 PM
From: Gerald R. Lampton	Respond to of 24154

But what's the simple explanation? That Microsoft is expecting DoJ and Jackson to go too far in the remedies phase? It's all going to be appealed forever, regardless. Do you think they're trying to get Jackson to get himself thrown out, and have a whole new trial? That could be, I don't know how that would work. We are well past the stage of trying to get Jackson thrown out. A simple change of venue motion made in the beginning might have accomplished that, but they had their Sacred Court of Appeals Decision, and, although it is always hard to tell, I would guess that Williams, Stephens and Wald in the D.C. Circuit would have been a lot more deferential to that decision than Pregerson, Reinhardt and Nelson in the Ninth. So a transfer out was out of the question, which left trying to get him disqualified, not easy to do since Jackson has not made the same mistakes Sporkin made. On the other hand, getting Jackson to overplay his hand seems achievable. Judge Jackson blew up at Muglia today, as you know. So the judge appears to be losing even what little patience he once had with Microsoft. That three-part article you linked a while back had some interesting comments from Reback about how behavioral remedies will never work with Microsoft, citing the history of the Consent Decree as an example of how Microsoft always evades them. So, we have McNealy, Bork, Reback and who knows who else arguing stenuously in favor of a breakup. These people, Microsoft's competitors, do seem to have real sway with the DOJ. In addition to the psychological pressure of the trial, there is going to be a lot of political pressure in favor of doing something serious to deal with Microsoft. The worst thing for the government would be to go through the expense of this trial and then have to do it all over again in five years because the remedies were not effective. Boies has gone for somewhat showy credibility attacks on the witnesses instead of plowing through the written direct testimony. That may be a mistake, I don't know how that will play out on appeal. No, I disagree with you. I think Boies' credibility attacks have been extremely effective. Mark Murray notwithstanding, the government does not need to refute each and every one of the points made by Microsoft's witnesses. All the government has to do is show that a given witness is a liar, and the judge can throw out the witness' entire testimony. Getting such credibility findings overturned on appeal is extremely difficult. Assuming Microsoft is not doing it on purpose, this is another reason Mark Murray should be sent home. ;)