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To: Bearded One who wrote (22796)	2/27/1999 4:46:00 PM
From: Gerald R. Lampton	Read Replies (1) \| Respond to of 24154

I think I've seen that type of defense used in sitcoms. Pray tell, what sort of mistake could the DOJ make? And suppose they do make some mistakes---would that actually cause a reversal? This is no police-setup drug bust where someone forgets to read someone their rights in their native Spanish, after all. Not that I am any good at the game, but good poker players know better than to overplay their hands. In one of the articles I saw, I forget where, it talked about how Boies was in some case with another laywer. All through the case, Boies was complimenting the laywer about how devastating his cross-x was of one of Boies' witnesses. So, the other lawyer went on and on, using up limited cross-x time on this one witness. When other witnesses came up, he had used up all his cross-x time, and Boies ended up winning the case. In a sense, this whole fiasco with Microsoft's defense kind of reminds me of that story about Boies. Coming up to Microsoft's defense, everyone in their whole PR spin machine from Ballmer on down built up their defense and how it was going to prove what liars the government witnesses were. After the Consent Decree victory, which I do not deny was important, Neukom talked about how the big antitrust case was in the bag, how the Sacred Court of Appeals Decision was going to save the day for them. To this day (well, last week, actually) we had Mark Murray making facially and demonstrably idiotic statements about how "most of the testimony" of some witness whose credibility Boies had just gotten through demolishing came in uncontradicted. In court, Microsoft and its lawyers seem like the gang that can't shoot straight. From Richard "What was I thinking when I said that" Schmalensee to James "Nineteen Benefits of Integration" Allchin, to Robert "No, stop" Muglia, they all looked God-awful. Even one of Sullivan's own lawyers, unnamed, of course, says he can't understand why all the mistakes -- his colleagues are better than that, he says. And, we have even run across stories about how the bad defense is adversely affecting the morale of the ranks inside Microsoft. And then there's the whole media, going on and on about how awful Microsoft's defense is. Hardly a day goes by that there is not some story by some guy scratching his head over why Microsoft has crashed and burned, how great Boies is, and how a case that started out as a toss-up now looks like a government slam-dunk. The comment I love was the one by the former head of the ABA Secton on Antitrust about how Microsoft is "doomed." Bill Gates should tape that to his mirror so he can read it every morning when he gets up. And the frenzy seems to be having its effect. Forget the public; the relevant audience is the actors in the courtroom. Boies called the case "appeal-proof." The judge is beyond disbelief; his patience is wearing out; he's pissed off. Bork, Mc Nealy and Reback have all either explictly endorsed breaking up the company or said remedies need to be severe because, as the Consent Decree has shown us, Microsoft cannot be trusted to abide by a normal injunction. Politically, a slap on the wrist won't do this time. I will be the first to admit that I could be wrong, but it all kind of reminds me of that article about Boies and that other lawyer. The coup de grace would be for Bill Gates to take the stand and say he knows nothing about anything Microsoft does, or, alternatively, unrepentently say he knows about it all and he endorses it 100%, "To heck with Janet Reno." He could say he told his witnesses to deny everything, to say whatever it takes to get the company off. Then he could start quibbling with the judge over the definition of "browser" or "hard core," or tell the judge to his face he's "totally random" and doesn't know anything about how to design software. It would send the judge into orbit. Now that would be a sight to see.