[an error occurred while processing this directive]   [an error occurred while processing this directive]

Decoding the Trial
NOV. 13, 1998
By Mike France

Now It's Bring on the Experts
So far, Justice has hit Microsoft with embarrassing facts. But pay close attention as the theorists take over. They could be crucial

During the first four weeks of the Microsoft trial, the U.S. Justice Dept. led off with the big guns. The government's key "factual" witnesses, Netscape's James Barksdale, America Online's David Colburn, Apple's Avie Tevanian, and Intel's Steven McGeady, offered up a plethora of names, dates, and embarrassing details documenting in public, for the first time ever, many of Microsoft's allegedly predatory tactics.

Starting next week, the government will be taking a different tack: Instead of focusing on Microsoft's misbehavior, it will move to the more arid realm of theory. The next person to take the stand will be a so-called expert witness: Glen Weadock, president of Independent Software in Golden, Colo. He'll focus on some of the key technological issues in the case, such as whether it makes sense to bundle together a computer operating system and an Internet browser.

Compared with the sometimes lurid testimony of Barksdale, Colburn, Tevanian, and McGeady involving threats, backstabbing, and Silicon Valley intrigue, Weadock's stories are likely to be rather dull. They'll focus on dry topics such as software code and operating system architecture. But no matter, it could still be as important--or more so. In the end, expert witnesses such as Weadock could very well determine whether Justice wins the case.

Consider that so far, for all the fireworks, the government's factual witnesses have not really proved anything. All they have offered the judge is a confusing muddle. For example, while Barksdale and Colburn offered credible evidence that Microsoft took steps to prevent Netscape from distributing its browser, Microsoft responded with strong evidence that it is winning market share because it has a better product. So who is right? And how, if at all, are consumers being hurt?

The experts will supply the answers to these critical questions. It will be their job to sift through the conflicting data and construct a coherent argument that wins over Judge Thomas Penfield Jackson. "They are very important in taking the facts on the table and crystallizing them. More than even the lawyers, they provide the judge with a story," says George Washington University antitrust professor William E. Kovacic.

In this case, the role of the experts is particularly critical. Justice is trying to prove that Microsoft committed a broad pattern of anticompetitive conduct, rather than a few illegal episodes, as was the case, say, with its recent suit against Archer Daniels Midland. Its witnesses are testifying about an unusually wide variety of products, encounters, and business dealings over the past few years. Justice's expert witnesses will be key to pulling together this panorama of events into a coherent narrative.

U.S. v. Microsoft also involves unusually complex legal, technological, and economic issues. That's one reason why Judge Jackson last year tried to sign on Harvard Law School's Lawrence Lessig as an adviser to help him decode the daunting technical complexity.

But Microsoft successfully blocked Lessig's appointment, claiming that he is biased against the company. Because the judge now has to sort out the technicalities of the case himself, he'll be looking to the experts "to guide him out of the wilderness," says George Mason University antitrust professor Ernest Gellhorn.

The primary issue that Weadock is expected to address is whether consumers would benefit if Microsoft hadn't embedded Internet Explorer in its operating system. It's a key point for Justice. If Microsoft can prove that tying the products together was technologically justified, then it will be almost impossible for Jackson to find the company guilty of anticompetitive conduct.

Justice has a few more factual witnesses still to come, including Sun Microsystem's James Gosling, Intuit's William Harris, and IBM's John Soyring. But from here on out, the government's case is going to be dominated by experts, including economists Franklin Fisher and Frederick R. Warren-Boulton, computer scientist Edward Felten, and telecommunications authority David Farber. Their testimony may not garner the big headlines, but pay close attention. It's what's going to make or break the government's suit.

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


Previous BW coverage of the trial

Copyright 1998 Bloomberg L.P.
Terms of Use