Trading Blows, but No Knockout Punches
So far, neither side is clearly ahead, but Justice may need only a small edge to prevail

Punch and counterpunch. That has been the pattern so far in the Justice Dept.'s landmark antitrust suit against Microsoft. First, government witnesses offer up written testimony that hits the software giant with explosive charges of predatory conduct. Then Microsoft strikes back with strong cross-examinations in which it releases new evidence that indicates the witnesses are stretching the truth and condemning Microsoft for things they do themselves.

When Netscape Communication Corp.'s James Barksdale complained that Microsoft wounded his company by giving away Internet browsing software, for example, Microsoft countered by producing credible evidence that Netscape had planned to give away its product anyway. Next up was America Online's David Colburn. He said AOL had selected Microsoft's Internet Explorer browser because of the software giant's monopolistic distribution muscle. But Microsoft lead attorney John Warden put Colburn on the hot seat with internal documents indicating that AOL's own staff considered Internet Explorer a superior product.

This week, Apple Computer's Avadis "Avie" Tevanian Jr. charged that Microsoft had bullied his company into embracing Internet Explorer on its computers. But Microsoft introduced internal documents showing that Apple threatened Microsoft with a billion-dollar patent lawsuit -- successfully muddying Tevanian's clear story line.

So who is winning this fight? Right now, it's too close to call. There's no doubt that Microsoft has tarnished each individual witness, says William Kovacic, a professor of antitrust law at George Washington University. But he adds that, collectively, their stories may add up to an attack that is bigger than the sum of its parts. "If a chorus of Microsoft's competitors all say the same thing, that's going to help Justice prove that there is a consistent, systematic pattern to Microsoft's actions," says Kovacic.

BATTLE FOR POINTS. With so much of the evidence in this case already public, neither side is expected to land a knockout blow. Instead, experts think Justice and Microsoft will continue to battle for points -- with victory going to the side that does the better job of supporting its version of the facts. "The legal test is going to be whether, looking at all the evidence, the preponderance of it suggests illegal activity by Microsoft," says George Mason University antitrust professor Ernest Gellhorn. "It's a 50.1% test. All the government has to do is get over the middle line."

In the absence of any smoking guns, the only way for Justice to meet this burden will be if the combined impact of all its witnesses wins over Judge Thomas Penfield Jackson. Expected on the stand next week: Intel Corp.'s Steven McGeady. The trustbusters will try to prove that Intel was another victim of Microsoft's predatory practices -- in spite of the chipmaker's stature in the industry.

But, once again, Bill Gates's legal team is likely to mount a strong counterattack. Intel and Microsoft have been close business partners for years and have done more than their share of fighting and making up. It won't be easy for Justice to prove that Microsoft's threats against Intel are anything other than business as usual between two cooperative, yet competing, business partners. But it will have to if it wants Intel to join forcefully with its chorus of Microsoft critics.

France is Business Week's Legal Affairs editor. His weekly commentary will appear each Friday during the trial