Microsoft judgement: headed for the fast track?

According to the common wisdom among trial watchers, delay is Microsoft's strongest weapon against the Department of Justice.

Given the glacial pace of the legal system and the lightning pace of the tech industry -- not to mention a presidential election on the horizon -- many are operating under the premise that the case may no longer be relevant by the time a decision is finalised.

After all, via the appeals process, Microsoft could drag the case out until at least 2003 or 2004.

Not so, say some legal experts. A rarely used section of the federal antitrust statute may allow the DOJ to circumvent most of the standard process. If so, Microsoft could run out of appeals by the fall of next year.

Under the Antitrust Expediting Act, if Judge Thomas Penfield Jackson enters a final judgment in the case and Microsoft appeals, DOJ attorneys could file a motion arguing that "immediate consideration of the appeal by the Supreme Court is of general public importance."

If Jackson agreed, the case would go straight to the Supreme Court, rather than first hitting the D.C. Court of Appeals.

The Supreme Court could choose to send the case back to the circuit court without an opinion, whereupon the litigation would proceed just as in a normal appeal. The Supreme Court also could opt to put the case on its normal docket, consider arguments next fall, and issue an opinion in late 2000 or early 2001.

Alternatively, the Supreme Court could also expedite the case, hearing arguments at the end of its current session or in special session, and potentially could issue a decision as early as late summer or early fall of 2000.

Such a ruling may not be final -- the Court could remand the case to Judge Jackson for further findings -- but it would certainly speed up the process.

"It's difficult to speculate," says U.C. Berkeley law professor Jesse Choper. "The Supreme Court doesn't like to jump in to the appeals process and they don't like to rush these things, but if they really wanted to, they could hear arguments by June."

A direct appeal could also present Microsoft with a second problem. The D.C. Court of Appeals is rumored to have a low opinion of Judge Jackson and has shown sympathy for Microsoft's position in earlier rulings. Many trial watchers say they expect the Court of Appeals to be looking for ways to give Microsoft a way out.

The Supreme Court's position on many key issues in this case is unclear, and it may be more willing to defer to Jackson.

"A direct appeal [to the Supreme Court] could change everything," according to antitrust attorney Rich Gray. "The Supreme Court is very protective of its docket, and may not appreciate a trial judge telling them what cases they have to hear. On the other hand, this case is so important and affects so much of the economy that they could say, 'Uncertainty is bad--let's get this settled.' If they do, all bets are off."

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