It’s Soap Opera, But Also Law

In the post-O.J. Simpson world, it seems all law has become soap opera. The truth-seeking function of a trial is reduced to a clash of characters, heroes and villains whose fortunes wax and wane daily: Marcia Clark vs. Johnnie L. Cochran; independent counsel Kenneth W. Starr vs. President Bill Clinton; Monica S. Lewinsky vs. Linda R. Tripp. As with daytime drama, there is always the cliffhanger at the end of each installment: the prospect of new evidence, a surprise witness or reversal on appeal.

So it is even when the subject matter is as dry and technical as antitrust law. United States vs. Microsoft may be the name of the case, but the story is Judge Thomas Penfield Jackson vs. William H. Gates.

This personalized antagonism is not simply a media creation. It reflects how much this case, surely one of the most important of our time, has become a contest of wills between the judge and the business titan whose company sits in the dock. Though the final script of this series is not yet written, that the case has become so deeply personal between these two characters, evident in the astonishingly frank post-trial remarks of both, does not change the fact that, despite the views of most commentators, Jackson’s order breaking up Microsoft will endure.

It is exceedingly rare for the judge to emerge as the lead in a trial drama. The parties to the case, plaintiff and defendant, or perhaps their lawyers, are the usual antagonists. Scanning back over the great cases of the century--Scottsboro, Scopes, the Lindbergh kidnapping, Dr. Sam Sheppard, Jimmy Hoffa, Patty Hearst, John J. Gotti--who even remembers the judge, much less views him as the embodiment of good or evil? John J. Sirica, President Richard M. Nixon’s foil, was perhaps the last judge to receive the lofty billing Jackson has now attained.

This rare casting for the judge was cleverly orchestrated by the government’s lead counsel, David Boies, perhaps one of the best trial attorneys alive. Armed with Gates’ videotaped deposition--sworn testimony that made Clinton seem candid and forthright by comparison--Boies turned a complex case about complicated technology into a simple case about the moral virtue of a single man. He set out to convince Jackson that Gates was so arrogant and dissembling, so contemptuous of the legal process as to pretend memory loss at every incriminating moment, that Jackson, as a straight-shooting, serious-minded jurist, had no choice but to despise him in return. In short, Boies wanted to make the case against Microsoft into Jackson’s crusade, not his own.

Boies succeeded in spades. When Jackson watched Gates quibbling and evading in his video testimony, debating the definition of words such as “we” and denying knowledge of even his own e-mails, the judge dropped his impartial demeanor and started shaking his head. There is nothing judges hate more than thinking they are being lied to; and Jackson’s every action now reflects this is his overarching judgment of Gates. As Jackson has now indiscreetly admitted to the press: “If someone lies to you once, how much else can you credit as the truth?”

Jackson’s ruling last week betrays this emotion. The most remarkable feature of his order breaking up one of the engines of America’s high-tech revolution is not the severity of the remedy (which many had forecast), but the vitriolic memorandum that accompanied it. In three pages of scarcely veiled fury, Jackson accuses Microsoft “as it is presently organized and led” of being “not credible,” “untrustworthy” and “disingenuous.” Indeed, Jackson has become so jaded toward Gates he hints that the CEO’s continuing protestations of innocence (which trumpet Gates’ reciprocal contempt for the judge) are mere pretext to continue and perhaps expand his company’s illegal practices.

For Microsoft investors and employees, and the rest of us hooked on this saga, the key question is whether the fact that a lawsuit between the federal government and a gigantic corporation has been distilled into a personal battle between the judge and the defendant’s CEO will make any difference now that the case is passing out of Jackson’s hands. The conventional wisdom seems to be that Jackson, driven by an excessive emotional commitment, has overreached himself and is likely to be overturned by a court of appeals or Supreme Court generally hostile to rigorous antitrust enforcement.

The conventional wisdom, however, may well have misjudged the likely effect of Jackson’s antagonism toward Gates. It is easy to be swept up in the drama and, hoping for yet another exciting plot twist, to forget the confines of law. And the law, despite Gates’ confident predictions of ultimate vindication, renders Microsoft’s appeal exceedingly difficult.

A trial judge such as Jackson has one extremely powerful weapon to protect his rulings from reversal on appeal. He gets to establish the facts of a case. Under the rules of procedure, when the court of appeals (or the Supreme Court) considers Jackson’s ruling, it will have to take the facts of the case as he has found them, unless those findings (as very rarely happens) are deemed “clearly erroneous.”

An experienced and savvy judge, Jackson has channeled all his contempt for Gates into his findings of fact. In 412 carefully scripted paragraphs copiously quoting Gates’ own words, as well as the internal e-mails of his handpicked executives, Jackson has thoroughly rejected as untrustworthy and incredible Gates’ version of his tough-but-fair relationship with potential competitors and enshrined as legal fact essentially all the government’s allegations about how Microsoft, at Gates’ instruction, used its dominant position in the market to illegally damage potential competitors and the public at large. In essence, Jackson has written the official history of Microsoft’s relationship with IBM, Apple, Sun Microsystems, America Online and Netscape, and the court of appeals, having neither heard a word of testimony nor observed any of some two years of trial proceedings, is all but required to follow Jackson’s account.

In this sense, the Microsoft tale includes a touch of irony: Jackson reveals himself to be remarkably similar to the portrait he paints of the evil monopolist Gates. Both men exhibit a keen sense of how to wield the power they possess to maximum advantage. For Gates, that talent may prove his downfall. But in Jackson’s case, as he moves into the wings, it means he can script not only his own lines, but many of those that will necessarily be uttered by the appellate judges who follow him to the stage. *