Coop's Courtside: DOJ lawyer a killer

In the meantime, Richard Schmalensee gamely soldiers on.

Schmalensee, the MIT professor who, in one capacity or another, has been tendering his expert advice to Microsoft since 1992, spent his second day on the stand in the Microsoft antitrust trial Thursday -- and it was not a pretty sight.

Microsoft's witness, who already faces a nigh impossible task -- convincing the court that Microsoft is not a monopoly -- again got whacked around by Department of Justice lead attorney David Boies. And the scary part is that Boies is only warming up.

'One good lawyer'
For the last three and a half months, I've had an opportunity to observe Microsoft's legal team ply their craft. They are indeed as good as advertised and know how to pin down hostile witnesses. But as talented as they may be, the Sullivan & Cromwell lawyers handling the software maker's defense don't hold a candle to Boies.

Boies, who led IBM's antitrust defense for 13 years, knew just where to cut as he conducted a nerve-rattling dissection of Schmalensee's testimony with all the coolness of a gimlet-eyed killer. His interrogation was so good that it drew grudging praise from his opponents.

"He's one good lawyer," one Redmondian told me, shaking his head while leaving the courtroom.

Yes, he is. But by the same token, Schmalensee is turning out to be a dud of a disappointment. He was supposed to be the 'anti-Fisher,' that is, an expert who could refute the testimony of the other MIT economist, Franklin Fisher, who testified earlier this month that Microsoft enjoys monopoly power.

Schmalensee has been anything but a hard numbers guy who could provide the court with the sort of rigorous quantitative analysis promised by Microsoft.

Instead, he has peppered his statements with logical assumptions about what may or may not happen in the future: If Linux takes off or if the Macintosh soars in popularity or if OS/2 enjoys a smashing renaissance -- then Microsoft could wind up with the losing end of the stick.

Elements of style
Perhaps Schmalensee got worn down. Boies often asks the same question over and over -- albeit in slightly modified forms -- until he gets the answer he wants. (Now I understand why his style drove Bill Gates absolutely nuts.) Yet he works with a low-volume sledgehammer and has so far avoided incurring the wrath of the hanging judge, who has been super-protective of all the witnesses in this trial.

After another day of intense questioning, Boies got Schmalensee to make to several odd admissions:

Although "significant platform threats have appeared" from time to time, none of the wannabes have displaced Windows, Schmalensee said. That's not something his paymasters really wanted to hear him say. Anything that promotes the idea that the Windows franchise is unassailable plays into the government's hands.

What's more, Boies got Schmalensee to acknowledge that computer makers can't choose viable alternatives to the Windows operating system. That's also bad news for Microsoft. The company needs to prove this point to the court's satisfaction because it wants to advance the view that low barriers to entry exist in the software operating system market. All you need is a great idea, ambition and guts.

Schmalensee's a great government witness
But the only guts on display belonged to the good professor. He was absolutely feckless -- so much so that he's made a great government witness. Only problem is that he's supposed to be testifying on behalf of Microsoft.

In the meantime, Richard Schmalensee gamely soldiers on.

Press notes
But the real intrigue Thursday was happening outside the courtroom, where a clutch of reporters swearing fealty to the ghost of John Peter Zenger were hopping mad about the evening escapades of the DOJ.

The Justice Department inadvertently released a copy of Microsoft's OEM Windows price list, accidentally leaving the juicy item in a document box in the pressroom. By the time the government had discovered its error, the damage had been done. Reporters for the Associated Press and the Washington Post had got their hands on the memo before the DOJ came around to retrieve the goodies.

This was a mondo mistake and the feds sought to muscle the two news organizations into giving back the memos. That went nowhere but it did make for a nice round of gossip Thursday morning.

Of course, that didn't make for a very happy press contingent Thursday morning. What's more, several reporters were seen in various states of rip-snorting indignation at the DOJ's give-and-take routine. By the time I cornered her, the government's chief spokeswoman had obviously filled her quota for tolerating obnoxious reporter questions.

"It was a confidential document," she said when I broached the question.

"But your people came into the pressroom and took it back," I countered.

"It wasn't meant for release," she said with the kind of crisp delivery indicating this was clearly not an invitation to more small talk. "It was confidential."

"Yeah," I said. "But it ain't confidential no more."

Judge Thomas Penfield Jackson ended court an hour early Thursday. Reliable sources say the good judge had a cross-town appointment to get his hair coiffed.