Jury Is Still Out on Judge’s Performance
The antitrust case against software titan Microsoft Corp. is the kind that can make or break a legal career. So in the wake of federal jurist Colleen Kollar-Kotelly’s ruling Friday, many observers are trying to answer the question: How will the judge be judged?
The 4-year-old dispute already has blemished two of her colleagues who presided over the proceedings. Both former U.S. District Judge Stanley Sporkin and current U.S. District Judge Thomas Penfield Jackson were very publicly booted off the case by an appeals court that reprimanded them for inappropriate behavior outside the courtroom.
Now legal experts are debating how history will view U.S. District Judge Kollar-Kotelly, who on Friday approved most of the provisions of Microsoft’s settlement with the Justice Department in an opinion that quoted from such literary classics as Niccolo Machiavelli’s “The Prince” and Miguel de Cervantes’ “Don Quixote.”
In her five years on the federal bench, Kollar-Kotelly had racked up scant experience with technology or antitrust litigation before she was randomly chosen to resolve what is widely considered the most important business case since the breakup of Standard Oil Co. a century ago.
Digesting the Ruling
She spent most of her career handling routine murder and drug cases, along with an occasional business spat or government agency dispute.
Her role in the Microsoft trial, some experts say, could propel her to legal stardom -- or infamy -- once analysts have a chance to fully digest her 344-page ruling.
If it is seen as “a well-reasoned decision that resolves a case that has defied solution by others, that would enhance her stature,” said Robert H. Lande, a law professor at the University of Baltimore.
Some experts aligned with Microsoft foes wasted little time blasting the decision. Former Supreme Court nominee Robert H. Bork predicted it would be overturned on appeal.
Kollar-Kotelly’s ruling represents “a substantial abandonment of antitrust law as it applies to one of the most important industries in America,” said Bork, who is now an attorney with ProComp, a trade group backed by AOL Time Warner Inc. and Sun Microsystems Inc.
Few judges have seen their careers blossom as a result of handling a single case. But there have been exceptions. U.S. District Judge Harold H. Greene gained considerable fame for presiding over the breakup of the Ma Bell telephone monopoly after a landmark federal antitrust case against AT&T; Corp. in 1984.
Kollar-Kotelly was an unlikely candidate to decide the Microsoft case.
Before becoming a judge, she spent 12 years working as chief legal counsel to St. Elizabeth’s Hospital, the city-run psychiatric institution in Washington. She also worked for three years in the Justice Department’s criminal division during the Nixon administration. President Reagan appointed her to the District of Columbia’s Superior Court in 1984, where she served for 13 years before President Clinton elevated her to the federal bench.
The 59-year-old jurist from New York was selected for the Microsoft case in a courthouse lottery in 2001 from among more than a dozen full-time U.S. district judges. Once chosen, she could have demurred, citing her lack of antitrust experience, according to a courthouse spokesman.
Eager to Take On Case
But Kollar-Kotelly, a graduate of Catholic University of America School of Law, appeared eager to take on the case. In a depressed stock market, she sold tens of thousand of dollars’ worth of stock in International Business Machines Corp. and other technology companies whose fortunes might be affected by her verdict in order to avoid any conflicts of interest.
She also persevered despite criticism that her husband’s work could present a conflict of interest. Washington attorney John T. Kotelly represented Microsoft archrival Corel Corp. in the 1990s. Kollar-Kotelly has said her husband had only limited involvement with the Canadian software company and ended his representation in 2000. Therefore, she said, she was not required to recuse herself from the Microsoft case.
Kollar-Kotelly has conducted a painstaking and methodical examination of the Microsoft case during a nearly 3-month-long trial and five months of deliberation, going so far as to carry files home and phone lawyers at odd hours to ask questions.
Is a Higher Court Next?
The Microsoft case certainly is the most high-profile matter that Kollar-Kotelly has handled since she became a judge. It’s also the type of case that could land her on the federal appellate court or on the lecture circuit, presuming her opinion is upheld by higher courts.
“She’s quite happy being on the District Court, but I think she’d make a very good appellate court judge,” said Mike Madigan, a prominent Washington attorney and friend of Kollar-Kotelly’s since their law school days.
Kollar-Kotelly was highly regarded before she took on the Microsoft case.
“Experience in mental health issues might have put her on the map, but Kollar-Kotelly excels in virtually every type of case,” according to a 1996 article in a local city magazine called the Washingtonian. “On the bench she is all business, extremely organized and efficient.”
Colleagues echo the observations today and add that Kollar-Kotelly’s legal acumen, persuasive skills and relative lack of experience may have made her the perfect candidate to preside over the Microsoft case.
“People overstate the challenge” of hearing an antitrust case, said Sporkin, who is now in private practice in Washington. “There is a lot of complexity in the law, period. But she is a very competent judge -- decisive and smart as hell.”
When it comes to deliberating cases, of course, judges tend to care more about how their opinions are received by the appellate courts than the court of public opinion. “Judges do not like to be reversed on appeal,” said Andy Gavil, an antitrust expert and law professor at Howard University in Washington. “She wants to write an appeal-proof decision.”
Such an outcome would stand in sharp contrast to the fallout that accompanied the antitrust rulings of previous Microsoft judges Sporkin and Jackson.
Sporkin was removed from the case by the U.S. Court of Appeals after he rejected a proposed 1995 out-of-court settlement as being too soft on the Redmond, Wash.-based software giant.
Sporkin said his ruling was informed, in part, by a book on the computer industry called “Hard Drive” that his son gave him to read. The appeals court ruled his extracurricular reading was improper, although other judges have been known to read outside materials when they are hearing cases.
Five years later, Jackson was yanked from the case after it was revealed that he granted interviews to journalists and authors while conducting the trial. In those question-and-answer sessions, Jackson likened Microsoft Chairman Bill Gates to Napoleon and compared company executives to gangland killers.
Jackson’s controversial remarks prompted the appeals court to throw out his sweeping ruling to break up Microsoft into two companies.
The appeals court also criticized Jackson for not gathering any evidence about possible remedies before concluding that Microsoft should be broken up as punishment for illegally protecting its monopoly for Windows, its flagship operating system for personal computers.
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Times staff writer James S. Granelli contributed to this report.
