Resolve and Fortitude : Microsoft's ''SECRET POWER BROKER'' breaks his silence (33 page)

The Feds’ technical experts told the judge that they could find little if any consumer benefit in the integration of Windows and IE. Judge Posner, in his book,
Antitrust Law,
made a wise comment about such experts: “There are very few genuine neutrals in the technical field judges can rely on.” And this one was not one of them. The benefits were obvious for consumers and software programmers alike! The judge himself did not ask too many questions. He fell asleep on the bench now and again—a bit detached.

After the Feds had presented their witnesses, the onlookers were eager to glimpse at ours next. Our legal team decided to call me as witness eleven, with just one to go after me. Playing excerpts from Bill’s videotaped deposition the day the first MS witness showed up, Boies stunned the courtroom and alarmed our legal team. At once our lawyers contested the legality of his exploit; Jackson allowed it. Bill had done a lousy job during his interrogation, fighting David Boies tooth and nail every step of the way. Not picking the winnable fights, he looked unreasonable, had numerous lapses of memory, was evasive, and stubbornly refused to explain the most obvious details. A certain degree of complicity is necessary to a witness’ credibility. Bill wanted none of that.

For the rest of the trial, David Boies mischievously introduced supplementary snippets of Bill’s video footage to convincingly manifest that our dear leader could not be trusted. It worked. The court of public opinion was turning sharply against him and consequently all of MS when played on TV nightly. True to form, Boies had achieved what he set out to do without putting Bill on the stand.

Jackson expressed this in a comment made to a journalist later: “Here is the guy who is the head of the organization and his testimony is inherently without credibility. At the start, it makes you skeptical about the rest of the trial. You are saying if you can’t believe this guy, who else could you believe?” In Boies’s own words, “The chairman of the company doesn’t have any credible explanation for what she did, even though he was intimately involved. If he doesn’t have an explanation, then how can you credit the explanations of his underlings?” The strikes were mounting. Any company executive following this spectacle would face a nearly insurmountable task of convincing Jackson of being trustworthy. Brilliant lawyering by Boies, which Jackson later dubbed an “ingenious strategy,” had achieved its first objective.

Next, our intent to crush competitors while gaining and defending our market position was on public trial. Franklin Fisher, the DOJ’s expert witness, had formerly written about this subject in an academic publication: “The subject of intent of a company is difficult to determine and will usually reflect nothing more than a determination to win all possible business from rivals—a determination consistent with competition.” He expanded his thinking into “On retrospect evaluation of whether there were more desirable alternative actions that could have been chosen, would be to elevate competitors above competition and threaten the entire competitive process.” His former opinion no longer counted. Was intent alone enough reason to condemn us on moral grounds? All eyes were on Jackson: would he boldly opt to carefully weigh the tangible impact we had actually caused or blindly believe Boies’s version of the truth?

The court battle raged on as I was preparing to enter the tribunal in February of ’99. To be certain I was thoroughly prepared, I took some days off and went to Hawaii,
45
carrying two suitcases. My personal belongings in one and several thousand pages of documents in the other. The handle broke from the latter’s weight as I checked it through. I spent the next ten days mostly in a hotel room, examining the material. The few beach walks and swims I took were well deserved and helped me to stay focused.

My next stop: Washington DC and the law offices of Sullivan & Cromwell. Here I met with a portion of our legal team. Steven Holley, the lawyer who had been assigned to me, was present along with Dave Heiner, Bill Neukom, and much of the time, Richard Urowsky. Compared to my deposition prep, the one for the trial was brutal and exhausting. We worked ten to twelve hours daily, combing through relevant documents and discussing the potential issues from all possible angles. Even during dinners and lunches, we stayed on the subject. I made notes during the day and, before going to bed, typed them into my notebook to better memorize them. Two days before my scheduled court appearance, I snuck in under radar, familiarizing myself with the courtroom surroundings, the judge’s imposing style, and the crafty vagaries of the prosecution.

During the last day of preparation, my nerves went into overdrive. The legal team had decided to involve me in a series of merciless mock trials. In no time they tricked me and tied me up in knots. We tried again and again, and eventually I got used to the mind-set and methodology a prosecutor was likely to employ. The team effectively used the very words and tactics Boies had used with former witnesses—one benefit of being next to last. The team had studied him with careful precision. I felt better than in the morning, but my confidence was waning, so I skipped dinner and spent much of the night browsing through my notes, reading depositions and former testimonies over and over again. I am glad I did—my memory, now refreshed, helped tremendously to overcome most traps and snares David Boies had waiting for me.

Next morning, on February 24, ’99, the legal team accompanied me to the US district court at 333 Constitution Avenue in Washington, DC. The air was sharp, clear, and chilly. I felt tension heating up inside me. Major national TV networks had their communications trucks fitted with huge satellite antennas parked around the building. To reach the courthouse, I wended a maze of press and a crush of onlookers—a pulsing mob of dozens of bulb-flashing photographers as well as dissonant platoons of journalists shouting provocative questions, trying to elicit a careless response. The fella granting no interviews for over ten years, MS’s secret power broker, had arrived for his day in court. Bill Gates’s alleged enforcer supposedly wielding the pricing sword for MS, no longer hiding—open game.

The zoo-like atmosphere created by the paparazzi was startling and nerve-racking. TV cameras all aimed directly at me, the flashes of the Nikons stinging and nearly blinding my eyes. Inside the courthouse, the atmosphere was equally hectic as many people tried to get close, hoping for a printable snippet. I quickly disappeared into a small witness prep room where I patiently waited my turn. The judge had not finished with the former witness. Instead of being called at 10:00 a.m., I endured another long and restless ninety minutes before my chance to testify.

Once I was up on the stand, I could no longer consult my attorneys until my testimony was in the record in its entirety. Legal or not, I considered Jackson’s order unfair. I found out later that Mr. Norris, an IBM rebuttal witness, was indeed allowed to talk to his IBM attorney between his days on the stand. How could the judge justify such inconsistency? I left my briefcase containing my handwritten notes and a notebook behind as I was finally called upon.

By now, I knew Jackson was in a rush to wrap up the first leg of the trial by Friday afternoon, two and a half days away, allowing him to leave on time for the weekend. There was one additional witness after me, so I assumed that I would be on the stand for two days at most, not the three originally planned. Plotting in my head how to best take advantage of the rush to justice, I assumed the prosecution would now have to squeeze all questions into the much shortened time span. Something I hoped to capitalize on. Long-winded answers without annoying the judge came to mind!

The first ninety minutes were occupied by Steven Holley, presenting the videotape we had prepared. Waiting on the stand settled my nerves and let me study a courtroom filled to the last seat by the press and the public. Our legal team was positioned in the back, well in sight of the judge, not being able to signal me as long as he stayed awake. We always had up to five attorneys in the courtroom. The government had a platoon. Piles of papers were stacked up on benches close to the witness stand. I rightfully assumed that these government lawyers had a narrowed focus. While I was responsible for the full spectrum, the prosecution confronted me with the laser-tight expertise of boutique lawyers, each one with their own niche. They had ample time to burrow into any vital detail the capacious recesses of Mr. Boies’s prodigious memory failed to instantly summon and stack the odds against me.

If Boies was truly as good as advertised, why did he need such an elaborate backup system? Maybe in the end he was beatable! My inner voice issued a stern warning: “Don’t get too confident, Joachim. Be on guard.” Two artists were present, scratching away at sketches of me and the prosecutor. With no cameras allowed in the courtroom, these were the only real-time pictures the public would see the following day. I tried to buy one of them but considered the price too steep. I still regret walking away from that purchase.

After Steven finished, he handed me over for cross-examination. Here he was, the man my legal advisors had cautioned me to respect. Mr. David Boies, a lion of a litigator. Brimming with subtleties and unseen currents! With his penchant for intentional drama, his tall gleaming cranium, and his Midwestern patois
,
he had me finally close to his fangs. In an ordinary-looking, baggy suit, curly gray mane, darting eyes, and a quick tongue as I would soon find out! Supposedly a beast in court—a striking and disarming presence with no need to wear expensive suits! In his trademark black sneakers and his slight, mobile stature, he was an unsettling admix of Philip Spitzer and Bill Murray. “Intuitive and resolute.” For the next two days, I would be at his mercy—a word not to be found in his dictionary. His reputation of extracting from our witnesses precisely what the Feds wanted the judge to hear preceded him. I was armed with the discomfiting foreknowledge that he’d earlier eviscerated a couple of my colleagues.

My lawyers had instructed me to be extremely careful with him, no playing of games and cautiously picking only fights I could win. But how do you triumph against a legendary talent and unforgiving monster like this? Concentrate, never drop your guard, and beat him at his own game. Have a better memory than his, and be super context aware. My inner voice called out: “Joachim, he has never run your business. You know more about the IT industry than he could ever dream of. Don’t let him intimidate you. You stood up to Bill and Steve and other imposing figures. You can stand up to a
Panthera Leo
.” With sixteen grueling courtroom hours ahead of me, forbidden to talk to my legal team and ominously warned of having little chance of escaping the stalker in a courtroom-cage setting, I did not despair. On the contrary, game on; who was being hunted?

IN THE LION’S CAGE

He introduced himself in a warm and unassuming voice, piercing eyes glistering and a body language coiled for action. A prosecutor’s role was not necessarily to discover the truth and nothing else, but the truth as people falsely assumed. His job was to artfully manipulate and massage it to his advantage. All being relative, my job was to offer my version and make the judge believe it! Him being a pro and with me being a courtroom novice, I had my work cut out.

The battle heated up quickly as he quizzed me why the content of my remade tape had been significantly altered, contrasting the first one. Very simple: OEMs had gotten bounty greedier. Not appreciating my answer, Boies suddenly asked if I knew what OEMs were allowed or not allowed to do when shipping Windows 95. After four years, I remembered several, yet I decided to make him work for the answer: “If I would keep this all in my head, I would really need to add some memory sometimes.” His response, sinister and swift, revealed how much I had annoyed him: “And it’s harder to add memory to some people than to computers.” Hearty laughter rippled through the courtroom, dispelling tension. My provocation forced him to dig in and remind me of the specific liberties or restrictions he wanted me to address—wasting precious court time. Right away, I had slowed him down; eliciting a sweeping response had not worked.

Not getting too far, he ventured into the freedom OEMs had in altering Windows code and why we had restricted that. The desired answer: to hurt Netscape. He came back to this topic several times during testimony in a kind of blurry concurrency. My countertactic was to address the subject as vaguely as possible, denying him what he was looking for and complaining to the judge whenever possible about the speculative style of his nebulous pursuit. It irritated him visibly.

Another tactic I frequently used early on was to break eye contact with him, turning to the judge when providing answers. Avoiding his piercing eyes diminished his high self-regard. Feeling snubbed, he circled me desperately. My goal in this cat and mouse game was to make Jackson my friend and ally, like him or not. Ever aware, this prowling and hypnotic palavering lion, with his disarming charm, was my true enemy.

As soon as I mentioned that we did not allow OEMs to “tamper” with our core Windows code, the lion took the bait. In the following tense exchange, I turned to the judge, explaining in careful detail what I meant with the word
tampering
. Annoyed with my long-winded explanation, Boies admonished me with “to the extent that you are trying to be helpful, I would like you to wait until counsel examines you just in the process to get this through quickly.” Yes, I was tapping the brakes to moderate the speed of his little joyride. To be sure, I asked the judge if my explanation had been acceptable. He told me to delay my helpfulness until my own attorney examined me. I thanked him respectfully, mentioning this was my first time as a witness and, in my naïveté, I simply did not know better. The lion moaned and groaned, and I envisioned his tail sweeping the courtroom floor, restraining his feline anger.

Suddenly he leaped forward, asking me if we restricted Netscape from being a featured Internet service provider (ISP) in advertising sequences OEMs had inserted into Windows. My prompt answer: “I am unaware Netscape is an ISP.” Wasting a lot of time on technicalities, he exhausted, not for the last time, Jackson’s patience, who interrupted him by saying, “I think we are having a semantic problem here,” prompting me to reply, “That is exactly what I believe too. I am sorry.” The whole Q&A had stalled. But persistent and clever as a pursuing lion is, he simply decided on another path from a differently angled direction to pursue his game. Still not able to extract what he wanted, my accuser tried to trip me up by pointing out that I had answered the same-self question differently in my earlier deposition. The following exchange grew pretty heated as I was able to prove the lion’s prodigious memory had failed him. In response, his fangs let go of the document he was holding, angrily hurling it onto the courtroom floor.