New Yorker columnist Ken Auletta admits that, when sitting in the federal courtroom covering the Microsoft antitrust case, he nodded off to sleep a couple of times.
But then, the judge presiding over the trial also fell asleep -- several times -- during the trial, said Auletta during his Oct. 12 visit to campus as a Poynter Fellow.
The Poynter Program brings distinguished journalists to campus for activities designed both to let students interact with leading media figures and to deepen the fellows' understanding about Yale. During his stay, Auletta spoke at a Law School forum, talked about writing with undergraduates in an English class and was the guest at a Silliman College master's tea.
At the Law School, Auletta offered his perspectives on the Microsoft case, which he covered for The New Yorker and wrote about in his forthcoming book "World War 3.0: Microsoft and Its Enemies."
Auletta believes the Justice Department won its case against Microsoft due to the trial's "human factor," rather than the strength of its legal arguments. Thomas P. Jackson, the federal district court judge who tried the case, "both misread the law and misread the facts of this case," contends the journalist, adding, "one of the reasons why the judge came to the decision he did has to do with intent -- how he read Microsoft's intent."
Auletta described several errors he believes the Microsoft attorneys made in presenting their case. First, they "never tried to understand the judge and what would motivate him," he said. Jackson was not computer savvy, noted Auletta, but instead of trying to help him understand the technology being discussed, the Microsoft lawyers "tried to talk down to the judge, to treat him with disdain," which only served to offend him.
When questioning witnesses, the Microsoft attorneys by and large "stuck to a script," rather than reacting to what was said -- an approach that was "tedious" and at times put "half the press section" and Jackson himself to sleep, said Auletta, noting that he charts how many times the judge dropped off in his book, which will be published in January by Random House.
By contrast, David Boies, the lead attorney for the Justice Department (and a Yale Law School graduate), logged many hours observing Jackson as he tried his other cases, seeking to understand the jurist, said Auletta. And Boies never used a script when questioning witnesses, carefully taking time to "build a narrative" and "create a context so the judge could follow."
The Microsoft lawyers, said Auletta, believed that this case "was about roughly 300 facts" and that if they could prove their facts were right, "even only 290 of them," they would win. Boies, on the other hand, held that the case "was about 10 facts," and his strategy was to show that Microsoft was "lying or misleading the court" about those 10 facts, explained the journalist.
In this regard, Bill Gates himself was a liability to the Microsoft defense, contended Auletta. While he is a brilliant businessman, Gates "is not a man who has developed social skills," Auletta said. In his videotaped deposition, Gates set the tone for the Microsoft defense. "Gates was saying, 'All we're trying to do is help the consumer. ... All we're trying to do is push the envelope. ... I don't know what you mean by market share. ... ,'" said Auletta.
Yet, throughout the videotape, which was filmed over three days, Gates sat slouched in his chair, rocked back and forth, never looked up and was "dismissive of the questions ... just basically contentious," recalled the reporter.
As a result, when deciding whether the "famous meeting" between Microsoft and Netscape was simply an attempt to provide technical support (as Microsoft claimed) or to muscle Netscape out of the browser business (as the government contended), "this judge concluded the latter," said Auletta. "And he did so based on email and based on Gates' deposition -- because he didn't believe him."
Auletta thinks it would have been "smarter" for Microsoft to adopt a different defense. "Instead of denying that they were a de facto monopoly, and piously pretending they never did anything untoward, Microsoft might have adopted the defense that Intel adopted before the FCC in the spring of 1998 -- basically saying, 'Yes, we have a tremendous market share. And yes, we have sometimes operated in a tough way. That's business. These people are trying to kill us. So we're trying to fight for our survival. That's the nature of capitalism ...'
"But Microsoft wouldn't do it. ... They wouldn't adopt a more honest rationale," he noted. "I think, in part, that was a human misjudgment, not just a legal misjudgment."
-- By LuAnn Bishop
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