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AT LARGE: Boies will be Boies

AT LARGE: Boies will be Boies

My Christmas was a bit disappointing. I got one of those "Interactive Yoda" toys (that "teach" you how to use a lightsaber, master The Force and so on). Excitedly, I tore open the box (carefully retaining my Jedi Master Points), put in the batteries and switched the device on. It insists I'm too old to begin the training.

But I'm not afraid. Unlike David Boies, the Government attorney in the Microsoft doo-dad. Bill's people have appealed against the court ruling last year that said Microsoft was a monopoly and ought to be split down the middle, on the grounds that the judge was biased against the company. They've offered quotes from interviews Judge Thomas Penfield Jackson gave during and after the trial, illustrating this bias.

For example, they have Jackson on record as saying Gates "has a Napoleon complex", the company's executives "behave like children" and the company "has had too much unfettered success, with no real drawbacks". In response, the Government dug up an interview from before the trial began, in which he said he "had nothing really against Microsoft". I love that: "nothing really". Sure, Bill's a great guy, I just don't like him is all.

If that's the best the Government can do, and if judicial bias is grounds enough for appeal in an antitrust case (I don't know this for a fact), then the company will certainly win. Someone should ask what on earth the judge was doing giving interviews and appearances on talk shows during the trial. In Australia, we're used to lawyers associated with important trials appearing in front of the cameras with a curt "no comment", and a refusal to discuss matters that are under judicial consideration. Contrast this with the judge cozying up to Oprah, and you see why I'm concerned.

Just before the decision was announced last year, Boies said to the media that the Government had effectively proved Microsoft was a bunch of big bullies that had been really mean to Sun and Netscape and Apple and Compaq and a bunch of others. He said they proved that Windows cost too much, and it shouldn't be so hard to change the startup screen on your PC. He seemed very proud of himself - except that these weren't the issues at the trial. The issue was whether or not bundling Internet Explorer with Windows constituted a violation of a consent decree Microsoft had signed years before. For my money, that wasn't effectively proven.

Memories of all this came flooding back just before Christmas, when the US Supreme Court was weighing up whether you have to count all the votes before an election can be final - difficult question that. Naturally, they took a few days to think about it. And at the end they said maybe they ought to count the votes, but there just isn't time. Maybe if they had a few more days . . .

Ugh, don't get me started. In the middle of all this, in one of the hearings, Boies (acting as lead attorney for Al Gore) was asked by one of the judges, "if we were to find in your favour, what would you want us to do?" Effectively, he was being asked to write the judgement he wanted. All he had to do was tell them to count all the votes, set a standard for doing so, and a deadline by which it must be finished. Badda-boom, badda-bang, it would have been done.

Did Boies express, eloquently, the finding he wanted? No. His response was, and I quote: "uh . . . um . . . uh . . . that's a very hard question". Actually, Dave, it's not a hard question. It's your goal. His answer revealed that he had gone into the courtroom - into the trial, even - without a clear idea of what his desired outcome was.

And it's the same kind of woolly-headed thinking he used against Microsoft. Proudly proclaiming the number of his minor victories only demonstrated that he had lost sight of his true goal. And as it was with Gore v Bush, so shall it be with the US v Microsoft: Boies will lose.

Now I'm not claiming to be a great legal mind. I admit I know little of lawyering. But I do know that success in any endeavour begins with knowing what you want before you start. Every one of you knows that too - this is why you are successful. David Boies needs to learn it, and fast.

But I fear he's too old to begin the training.

Matthew JC. Powell stayed in bed on January 20 and hid under the covers. Give him a reason to continue on mjcpowell@ozemail.com.au


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