Coop's Courtside: Taking the Prof to school

Going into this trial, I had a couple of high hopes.

Along with many of my brethren in the peanut gallery, I was itching to watch Microsoft sic Richard Urowsky on some unsuspecting piece-of-meat witness for the government. This would have been blood-and-guts entertainment at its best.

More than any other lawyer used by Microsoft, Urowsky is truly detested by Judge Penfield Jackson and the chemistry between these two men is pure poison. Indeed, there were moments during the pre-trial arguments when I thought the judge was going to jump down from his high seat and bang his gavel on Urowsky's bullet-bald head.

Unfortunately, Microsoft's braintrust decided to keep Urowsky out of the lineup, saving him for the friendly redirect of its leadoff witness, MIT economist Richard Schmalensee.

Well, we can always hope Urowsky's natural contempt and condescension for Jackson will somehow spill over and send the judge into a ballistic rage. In the meantime, I finally had my other wish fulfilled, which was to watch David Boies play offense.

Until now, the court only saw Boies, the government's lead litigator, assume the role of prosecuting attorney from a distance. During selected video excerpts from Bill Gates' deposition, Boies was smooth and effective. But you had to wonder how much credit should have gone to Boies or to Gates, who seemed so intent on being an uncooperative jerk that he hardly needed prodding to come off looking badly.

Until now, Boies has had it relatively easy. There's good karma between the judge and Boies, who has sat at the prosecution's table, listening with one ear as he shuffled through legal papers and filing periodic objections. His redirect was strong but how would he handle himself once the other team took its turn at bat? Could he avoid coming off as an obnoxious heavy when he went after Microsoft's witnesses?

Easier said than done and during the first half of the trial, the various and sundry Microsoft lawyers who fell into that trap wound up getting slapped down by Jackson.

After the government finished with its last witness Wednesday afternoon, Boies was asked outside the courtroom whether he'd change styles during the upcoming cross-examinations.

"No, what you see is what you get," he answered.

And so it was as Boies started in on Schmalensee, gently but deliberately walking the professor into a unmarked minefield.

Schmalensee is the Microsoft witness brought in to debunk the testimony of DOJ witness Franklin Fisher, who, like Schmalensee is also an MIT economist. (Interestingly enough, Schmalensee took his thesis under Fisher.) But Schmalensee argues that Microsoft does not exert monopoly control over the PC desktop operating systems market because it can't exclude competition and control prices.

Contradiction city
Schmalensee's testimony covers 328 pages, but Boies pointed him away from familiar territory. Before long, he got Schmalensee to talk himself into a trap. First Schmalensee conceded that Microsoft doesn't face any competition in its OEM business. Yet, the professor added, there are some up-and-comers who may someday pose a challenge, citing Linux development house Red Hat Software.

That got ears to perk up because only a few minutes earlier, Schmalensee told Boies that neither Linux nor Be Inc. (which makes the Be operating system) offer serious competition to Windows.

Schmalensee, who portrayed Microsoft as a company that enjoys anything but a hammerlock over the market, at one point even suggested that Windows faced a serious potential threat from the PalmPilot operating system.

Boies could barely contain his laughter as he circled in for the kill. Schmalensee recovered somewhat but definitely got bloodied during the exchange. "Is it a significant competitor today?" he said. "No. But it is a germ of a potential competitor."

There were sundry other occasions when he talked himself into trouble -- or more precisely, Boies got Schmalensee to talk himself into trouble -- such as when it came to Apple and Be, making statements that contradicted public declarations by senior executives from both companies.

Schmalensee also seemingly contradicted his previous testimony in another case about how to define the concept of "market," prompting the judge to intervene and ask several questions of Microsoft's star witness. That's not the kind of attention the Redmondians had in mind.

It was a tour de force as Boies didn't thunder and he didn't use theatrics. But he pressed. And he pushed. And Schmalensee ultimately tripped. It wasn't the way Microsoft hoped to start off its defense.