Microsoft's heart-attack strategy backfires

Of course it might have been the bad soup in the basement of the courthouse that I had for lunch, but I couldn't figure out what the ever-loving heck was going on.

Then it hit me -- "Inherit the Wind."

Of course; It was all so crystal clear. In that 1960 film fictionalization of the Scopes Monkey Trial, a lawyer, played by March, dies on the witness stand following a blistering barrage by his opposite number, Spencer Tracy. That must be Microsoft's secret strategy!

Well, MIT professor Fisher is no Fredric March, and he's in little danger of kicking the bucket any time soon. Then again, Microsoft lawyer Michael Lacovara is no Spencer Tracy, and he won't walk away with any Academy Awards after his big-time flop Wednesday. But more about that later.

A very public quiz
Lacovara, who has been perhaps Microsoft's most effective litigator in this trial, was out to paint Fisher as a novice about the computer industry. He asked about non-PC devices and network computers and the details surrounding the AOL-Netscape merger.

And that was just a warm-up. In time, he threw in everything but the kitchen sink as the professor found himself taking a very public quiz.

So far, so good, as Lacovara presented Fisher as a generalist who had no granular knowledge of the computer industry. Microsoft was looking to score a couple of points on the cheap: If Fisher didn't know much about things like Java and Linux, how could you trust his conclusions about the software maker's supposed predatory and monopoly practices?

Lacovara enjoyed a good run, even at one point throwing quotes from Fisher's older writings back at him. Indeed, Fisher failed to provide authoritative answers to a range of questions, making matters worse a couple of times by letting his mouth run before his brain could intercede.

But when the questioning resumed after the midday break, Microsoft's tactic went sour.

Lacovara gaffe
It was almost as if Lacovara had ingested a pound of red-hot chilies for lunch. Instead of the crisp and urbane questioning that's been his trademark, Lacovara tried to bully and befuddle Fisher with a rat-a-tat barrage of sneering questions.

Fisher, who is lugging around five massive loose-leaf notebooks filled with statistics and documents, was often forced to reach over and thumb through the massive tomes.

Instead of pacing himself, Lacovara then committed a huge gaffe by stepping up the pressure. Even before Fisher could respond, Lacovara would zap him with another question, a routine that quickly got on Judge Thomas Penfield Jackson's nerves.

Judicial backhander
All throughout the trial the hanging judge has been exceptionally protective of witnesses, often stepping in when Microsoft's lawyers asked needlessly belligerent or cynically repetitive questions.

And that's what happened Wednesday as Jackson told Lacovara to cool it.

In a telling aside, Jackson also told Lacovara that the "memory test" he was serving up to the witness would not influence his opinion of Fisher's credibility.

The last thing Microsoft wanted was to create sympathy for the government's witness. But this get-tough line of questioning accomplished just that.

Lacovara, who was forced to beat a hasty retreat, then sought to assuage Jackson's anger by offering to provide advance warning before carpet-bombing Fisher with more minutiae.

Not only was it too little, too late, but it also robs Microsoft of its element of surprise when the questioning resumes.

No heart attacks, please
Microsoft can thank the two legal masterminds running the show, Bill Neukom and John Warden, for this mess. Like all the Sullivan & Cromwell lawyers arguing the case, Lacovara was simply taking orders.

But you have to wonder: The strategy ordered up by these two geniuses has irritated the judge throughout the trial, but they keep returning to the same playbook.

It's also surprising to see Microsoft challenge Fisher's credibility in this fashion.

Does it really matter that he can't supply a treatise about the ins and outs of the Java Virtual Machine? That won't hurt his standing as an expert economist one iota.

The economic analysis supplied in Fisher's deposition relies heavily on facts and data. And that's where Microsoft needs to turn its attention -- not on giving the old guy a heart attack.

In the end, the smart guys may have outsmarted themselves.