A Microsoft trial primer

November 09, 1998|By Bruce Gottlieb

Q. Why is the Microsoft case being tried before a judge, not a jury?

A. If the plaintiffs (the Department of Justice and 20 states) were seeking damages (money) from Microsoft, then either side would be entitled to request a jury trial.

However, the plaintiffs are not seeking money -- they only seek injunctive relief, such as stopping Microsoft from packaging its Internet browser in Windows 98. The Microsoft trial thus falls under a category of law called "actions in equity."

According to a tradition dating back to English law, "actions in equity" are tried before a judge, not a jury.

The Justice Department complaint does seek to recover "costs" from Microsoft, such as the money spent while preparing depositions. Likewise, the states' complaint, filed Aug. 17, seeks to be "awarded their costs of suit, including reasonable attorneys' fees." However, costs and fees are minor sideshows of the case, and neither of these constitutes damages.

Q. What does the government want from Microsoft?

A. The government thinks Microsoft violated antitrust laws. But what does the government wish to do about this? What remedy is the government proposing?

The reason the newspapers don't tell you is that the Justice Department hasn't said what it wants to happen. This antitrust suit, like all civil cases, begins with a plaintiffs' complaint detailing the alleged offenses.

It is common, though not mandatory, for the complaint to suggest remedies, such as a cash award.

In this case, however, the Justice Department is waiting to see how the court rules before deciding what remedy to ask for. The antitrust laws are both vague and in flux. The remedy request will depend not merely on whether the government wins the case, but on the judge's analysis.

The judge may accept the government's proposed remedy or fashion one of his own. And of course any remedy can be appealed to a higher court.

Bruce Gottlieb writes The Explainer column for Slate magazine, in which this first appeared. Slate is owned by Microsoft.

Pub Date: 11/09/98

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