Microsoft's Tormentor
BRAD CHASE, A SENIOR MICROSOFT executive, was under oath--and under siege. His tormentor: David Boies, the government's lead attorney in the antitrust clash against Microsoft. The topic: the company's decision last year to abandon plans to put new restrictions on its partners. Boies wanted to know if the decision was influenced by concerns that the restrictions might play badly in upcoming Senate hearings into Microsoft's dominance. On the stand, Chase says he has only a ""vague recollection'' of who within the company was worried about the Senate's probe. Haltingly, Boies, a rumpled lawyer, refers to ""Exhibit Number 1847A,'' an e-mail message from a Microsoft staffer that is copied to Chase. ""Brad mentioned . . . new concerns'' about the hearings, the message says. Boies looks up: ""Is that Brad that's referred to there you, sir?'' he asks politely. In a corner, Chase answers: ""I can't be positive, but I assume it was me.''
Score one for the Feds. It was another quiet gotcha moment for Boies, whose consciously unflashy courtroom style is turning the Microsoft trial into a clash between the concede-nothing culture of Redmond and a lawyer with the understated canniness of a courtroom Columbo. Boies's exchange with Chase illustrates three of the main reasons many people expect the Justice Department to prevail: the depth of research that has gone into pulling out precisely the right e-mail (out of some 3.3 million subpoenaed documents) just when they would do the most damage; the give-no-ground defensiveness of Microsoft's executives, from Bill Gates on down, and the deftness with which Boies has exploited the first two factors. The real story of the trial may turn out to be Boies, whose civility, flare for drama and gift for making the other guy look bad is consistently scoring points against the software giant. ""They have given me more opportunity than I thought I'd have,'' Boies told NEWSWEEK.
He's certainly been lucky in his enemies. Bill Gates's defensive videotaped deposition suggested--improbably--that the richest man in America was forgetful and out of the loop. But Boies is not merely capitalizing on the other side's missteps--he's helping to trip them up. ""In every case he's in,'' says Jonathan Schiller, Boies's law partner, ""people comment on how the other side keeps making mistakes.'' How does he do it? In an informal, conversational way, he tries to win concessions that track with the government's facts while undercutting the credibility of anyone who supports Microsoft's. His weapons: witnesses' own words, which he slips around their neck so they can hang themselves. ""Once you throw their words back at them,'' he says cheerfully, ""they're boxed in.''
Boies hopes to convince the judge that Microsoft's witnesses can't be believed. An appellate court, which gets only transcripts, would be likely to accept the trial judge's decisions about who's credible and who's not. ""You always have in mind two audiences: the trier of fact and the appellate division,'' he says. And if he loses, ""You want to have a record that you can win on appeal.'' To build his record, Boies asks questions that can't lose--where one answer scores a point on the factual record while the opposite response damages the witness's credibility. Last week Boies asked Microsoft's Chase if it was ""very clear that [AT&T] really, really wanted to be in the "Windows Box'.'' When Chase said he didn't recall, Boies ""refreshes [his] recollection'' with an e-mail from a staffer to Chase using the very words in Boies's question. If Chase had acknowledged AT&T's hopes, it would have bolstered the government's point about Microsoft's power. As it was, his resistance enabled Boies to call his credibility into question.
Boies is a happy warrior. Born in Illinois in 1941, he moved to California as a kid. One of his first tough jobs, his wife, Mary, says, was delivering newspapers in Watts. After graduating from Yale Law School, Boies took a job at the tony New York law firm of Cravath, Swaine & Moore, thinking he'd soon leave to become a professor. His legendary cheap navy suits, which he used to buy from Sears (""It was a dark day in our lives when they stopped making them,'' says Mary), and mail-order shirts and ties make him look like an underpaid academic. But he found that he loved the arena. ""I like what I do,'' says Boies, smiling.
One of his finest hours was working the other side of a massive antitrust case. Boies defended IBM in a 13-year battle against the government; the Feds ultimately folded. When the Justice Department was bringing its case against Microsoft, it reached out to Boies. The thinking: a guy who got one giant off the hook would understand how to hang another. He was happy to oblige and took a pay cut to $33.33 an hour.
The government's getting a bargain, and Microsoft knows it. On paper, the company says, its defense is ""very strong.'' Indeed, the written testimonies of its witnesses, which Boies doesn't attack point by point, are far stronger than their courtroom cameos. Microsoft's amiable general counsel, William Neukom, contends that if Microsoft seems obstinate, it is because of the government's cheap shots.
The stickiest point for Microsoft is the judge's skepticism about the company--or at least his rapport with Boies. During the cross-examination last week of a Compaq executive testifying for Microsoft, the judge peppered him with Boies-like questions. Weeks earlier Boies revealed that a Microsoft video, which purported to show one PC, actually starred several, prompting the judge to say Boies did ""a very professional job of discrediting'' the video.
If the court ultimately sides with Boies, he may be in the tricky position of having to recommend a remedy. Government officials are already mulling the possible prescriptions, including an AT&T-style breakup. Microsoft could counter with a Clintonian defense: the punishment doesn't fit the crime. Boies insists he's just thinking about the trial. ""One of the things you never do is try to figure out whether you're going to win,'' says Boies, who has a penchant for blackjack. ""You play the hand, and at the end you know whether you've won or lost.'' For now, David Boies is having a lot more luck at the table than Bill Gates.
GOTCHA WATCH Both sides have scored some legal points. But the government team, led by Boies, has notched far more gotchas than Microsoft. AT least they make for great headlines. Some Perry Mason moments:
GOTCHA! In his deposition. Gates says he wasn't paying attention to Netscape. Oh, yeah? What about that "powerful deal" you proposed?
GOTCHA! Boies discredits a Microsoft videotape demo by showing that the leading role, one PC, was actually played by several machines.
GOTCHA! Integrating the browser has consumer benefits--the same ones as the separate products, a Microsoft exec painfully admits 19 times.
