Mooning the giant, mooning the truth
Each day, a chosen representative -- chief Microsoft flakster Mark Murray, lead DOJ attorney David Boies or former FTC commish (and Netscape hired hand) Christine Varney -- take turns interpreting what everybody just heard in the courtroom.
So it wasn't at all surprising on Monday to listen to the Rashomon-like interpretations each side offered after Microsoft attorney John Warden concluded his grueling four-day interrogation of a visibly fatigued Jim Barksdale.
It was another good day for Microsoft, Murray crowed, repeating his daily refrain -- the world now knows this antitrust case was designed to help Netscape.
Boies smilingly brushed aside all the charges leveled by his $500-per-hour opponent -- and hinted that the best is yet to come.
And to complete the hat track, there was Varney, yammering about how the facts spoke for themselves.
They may be certain, but the only thing I know is that Judge Jackson, his impenetrable meat slab of a face betraying no bias, must be dying for a beer. Other than that, everything is still up for grabs.
So many questions
And so it went outside the courtroom Monday as Warden went after Barksdale inside. Desperate to trip him up before the day was out, Warden flailed at Barksdale with all the delicacy of a wart hog in heat.
Isn't it true, he thundered, that Netscape simply couldn't compete on the merits of its Web browser, and therefore lost the AOL contract because Microsoft did a better job?
And isn't it true that Netscape flubbed a chance to land Intuit's business because the company was just too late with a "componentized" version of its Navigator browser?
And isn't it true that OEMs were never coerced into taking Microsoft's Internet Explorer browser -- instead, they chose what was in their own best interests?
If I was on the receiving end of Warden's barrages, I'd want to wring his neck. But I'm not. And I've warmed to his schtick.
But the man does have an endearing bluster -- something akin to Johnny Cochran or Alan Dershowitz, the kind of legal lackeys you love to hate ... unless you're in desperate need of a top defense attorney.
Ward of the DOJ?
But the best moment came when Warden finished his interrogation of Barksdale just as he began it last week -- by painting Netscape as the ward of the DOJ.
Hurling his most explosive charge of the trial, Warden pointed to a chronology of memos between Netscape and the DOJ to back his claim that Netscape had been in cahoots with the feds.
Microsoft was the victim of a setup, he said, pointing to love notes between lawyers representing Netscape and DOJ officials recounting the minutes of a now-famous June 1995 meeting between the two companies.
This was supposedly the date that Microsoft made its godfatherly offer: Divide the browser market ... or else.
Netscape, said Warden, had invited Microsoft to the meeting for the sole purpose of providing the government with fodder to later use against the Redmondians.
"Absurd!" an obviously annoyed Barksdale shot back.
And so it went all day, as the two men continued to argue about everything except the weather.
Counting the minutes
This was like Yom Kippur -- everyone was miserable stuck in the stale, increasingly tropical courtroom, just counting down the minutes to the next break.
Warden, who got Barksdale to admit that Netscape depended upon Microsoft to supply certain key software features, repeatedly got on his high horse to cast doubt on Barksdale's claims.
If Netscape had been the recipient of threats, Warden asked, why in the world would it rely on Microsoft for key products?
Happens all the time, Barksdale said. "We have no interest at Netscape in mooning the giant," he said, in what rates so far as the quote of the trial. We're just trying to do business, he said.
It made for good pyrotechnics, but here's the nut: All the finger-pointing and bleating in the world is not going to change the truth that this trial will be decided by facts.
Coming up: AOL
Barksdale's obviously got an ax to grind, so the court may take his claims with a grain of salt. But what about tales of pressure tactics that the court may hear from less-biased sources? Netscape's contingent is rubbing its hands in anticipation of a slam dunk when AOL testifies later this week.
Until now, Warden has had it easy. The case has been about how you interpret the same set of documents or conversations.
Until someone provides an incontrovertible fact, it's all he-said, she-said palaver -- with no clear winner emerging.