Microsoft's Warden saving the best for last

Coming into Tuesday's final summations, John Warden, the lead Sullivan and Cromwell attorney defending Microsoft, had been deftly outmaneuvered by his opposite number across the aisle, David Boies.

Warden's frustration was on full display in his cross-examinations of former Netscape CEO Jim Barksdale and AOL Senior Vice President David Colburn. After hitting one brick wall after another, Warden would all too often wind up bellowing at the witnesses until the exasperated judge would invariably tell him to shut up.

But Warden has finally lived up to his press clippings Tuesday. In an afternoon presentation lasting nearly three hours, Warden offered a cogent rebuttal of the antitrust charges against Microsoft.

Who knows whether it will convince the judge to rule in the software maker's favor. Probably not. But as someone who has had to spend major quality time in Thomas Penfield Jackson's cramped court room, this one rates as the software maker's best moment in the 11-month-old trial.

It wasn't so much that Warden sprang any surprises. Indeed, both sides spent their allotted time recapitulating arguments that the judge had already heard -- and read -- ad infinitum. To be sure, anyone expecting big surprises likely went away disappointed as Microsoft and the government treaded familiar ground.

Litigation, Foghorn Leghorn-style
But for the first time since the first day of the trial, Microsoft had an opportunity to go before Jackson and present all its challenges in a single session. And that's where Warden did his best work with a folksy, Foghorn Leghorn-like delivery -- first trotted out during the interrogation of Mississippi-born Barksdale -- again on display.

"The case was meritless when brought and it remains meritless," Warden said with a growl that was meant to hail from somewhere south of the Mason-Dixon line.

It was the right touch for starting upon a narrative that took the judge on a guided tour of what Microsoft's attorney described as the government's "red herrings, misstatements and omissions."

Jackson, who has struggled to maintain interest during spots in the trial, listened carefully as he chewed his way through a water pitcher's worth of ice cubes. Warden, his voice at times cracking, dismissed the antitrust charges as nothing more than the result of "a coordinated attack" upon Microsoft by collusion between the government and the company's chief rivals.

Then for good measure, he gave the government a taste of its own medicine, showing a videotaped excerpt of the deposition of Netscape co-founder Jim Clark in July '98. Asked if Microsoft had interfered with Netscape's ability to distribute the company's browser software, Clark answered no.

So much for the government's foreclosure argument, an obviously pleased Warden said.

Superstar letdown?
And so it went, as Warden grappled with each of the charges against Microsoft, offering up "facts" and testimony to offset the government's "facts" and testimony. This has been a rancorous case in which the two sides have drawn sharply different conclusions from the same testimony and same evidence.

During courtroom breaks, even government attorneys and their supporters conceded that Warden was turning in a bravura performance.

But they suggested -- with much truth -- that the press had become so infatuated by Department of Justice attorney Boies that anything less than a superstar appearance would come across as disappointing.

Throughout the case, Boies has had his way with Microsoft's witnesses. By definition, the summation stage of the trial was going to be a less exhilarating exercise. (No more jolly fun for Boies deconstructing excerpts from the Stepford Wives-like videotape of Bill Gates' deposition.)

The script moved along accordingly. The government opened first with attorney Steven Houck saying the evidence reconfirmed the obvious -- that Microsoft was a monopoly that had abused its position. The upshot was harm to customers to the tune of hundreds of millions of dollars, he said.

That set the stage for Boies to step up the attack.

Barely glancing at his notes during the course of a two-hour delivery, Boies said Microsoft had pursued a concerted effort to crush the competition, showing itself to be a monopoly that knows no limits.

And then Warden took over. All of this was good theater. Still, it remains unclear how much any of this will influence the decision to be rendered by Jackson.

Both Microsoft and the government believe the judge is already well underway in writing his opinion. After all this time listening to testimony and reading the evidence, they say, he may have already reached a verdict.