A landmark case however he rules

Antitrust: With unprecedented speed, Judge Thomas Penfield Jackson could reshape the future of Microsoft.

Sun Profile

October 29, 1999|By Michael Stroh | Michael Stroh,SUN STAFF

WASHINGTON -- When he drew the last great antitrust case of the 20th century, Thomas Penfield Jackson swore he wouldn't let United States vs. Microsoft become his legal Vietnam.

He knew what happened to David Edelstein, the New York judge who postponed retirement in 1971 to take over a case against IBM that dragged on for 13 years.

He knew what happened to Judge Harold Greene, who played baby sitter to a million documents during the Justice Department's eight-year assault on AT&T.

Instead, the courtly 62-year-old Jackson whipped through the Microsoft case in just 76 trial days. His ruling, the first part of which is expected any day in U.S. District Court in Washington, will come less than 19 months after the case was filed.

"That's the speed of light in the antitrust business," said William Kovacic, an authority on antitrust law at the George Washington University Law Center. "He showed you could try these cases in less than a lifetime."

Perhaps this speed is appropriate for a decision that could reshape the world's largest software company -- and with it a technology industry that is reshaping the nation's economy day by day.

At the heart of the complex case is this question: Did Microsoft use its near-monopoly on computer operating systems to crush competitors selling other software products?

The stakes for the industry might never be higher, which is why Thomas Penfield Jackson has become an instant, if unlikely, celebrity. Time magazine recently listed him as one of the 50 most influen tial movers and shakers in technology today -- although he still writes briefs in longhand and uses his computer mainly to swap e-mail jokes.

Yet Jackson -- "Pen" to his close friends -- remains the great enigma of United States vs. Microsoft. Who is he? How will he pull it off? What does it feel like to put the world's richest man on trial and make a decision that could remodel the U.S. economy?

Jackson, whose gruff candor has landed him in hot water in the past, won't say. In fact, he takes pains to avoid the press. As a result, every nuance of Jackson's demeanor -- the pallor of his sagging cheeks, the yawns he chokes back, the ice cubes he munches during testimony -- has become grist for courtroom mindreaders.

But Jackson is no stranger to pressure-cooker assignments. In the 1980s, he fined former Reagan aide Michael Deaver $100,000 for lying about his lobbying activities. He ordered Sen. Bob Packwood to give up the salacious diaries whose details drove the Oregon Republican from office. In 1990, he sentenced Washington Mayor Marion S. Barry Jr. to six months in prison for cocaine possession.

Still, the specter of IBM and AT&T haunted him as he prepared for the Microsoft case. "Whatever was done in those cases, I wanted to avoid," he told a gathering in Atlanta this summer.

A student of history, Jackson pored over both cases and sought the counsel of AT&T survivor Harold Greene, now a senior judge on the D.C. Circuit.

He found mistakes aplenty. For example, there was Edelstein's resolve to let lawyers in the IBM case dredge up anything and everything. The result: 17,283 pieces of evidence and a transcript whose volumes could be measured by the yard. Then there were the 70 days lawyers spent reciting their depositions aloud into the record -- on the judge's orders. The process became so tedious that even Edelstein stopped showing up.

Over time, the irascible Edelstein grew more and more querulous. Once, when IBM requested a delay for a witness stuck in Thailand, Edelstein ordered the man to return to New York immediately -- just in case he decided to deny the request.

"Judge Edelstein went kind of berserk," said attorney Thomas D. Barr, who led the army of IBM lawyers.

When both sides agreed to drop the case, Edelstein refused -- forcing the court of appeals to stop the bloodshed.

"We went out as we went in -- to the sound of Looney Tunes," one lawyer mumbled as he left court for the last time.

Judge Harold Greene fared a bit better with the breakup of Ma Bell. He set a firm trial date and forced the antagonists to hash out many differences beforehand -- thereby hacking 900 proposed witnesses from AT&T's list alone.

Still the case gave trust-busting a bad name. As the battle dragged on, lawyers on both sides married, raised children and struggled to hold their families together. As one AT&T attorney quipped: "This is the biggest antitrust case of the century. And when it's all over, all our wives are going to file the largest class-action divorce suit of the century."

Lessons learned

Sixteen years later, when the government and 19 states filed their case against Microsoft, Jackson likewise set a firm trial date. But he also limited both sides to 12 witnesses, forced lawyers to submit testimony in writing, and abandoned his habitual courtroom schedule -- which some lawyers have called glacial.

As a result, the entire court record of U.S. vs. Microsoft fits on a single compact disk.

"His innovations will be copied," said Georgetown's Kovacic.

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