Justice's Secret Weapon Against Microsoft: Software

Lead prosecutor David Boies has a database to die for

A year ago, Microsoft's legal team mocked the Justice Dept. for being clueless about software. In a brief, Microsoft even argued that "poorly informed lawyers have no vocation for software design." Well, Justice attorneys may not be able to write code, but in the course of their antitrust trial against Microsoft, they have shown a knack for using technology well enough to embarrass the software giant.

Government prosecutors not only boned up on Microsoft's industry but also adopted some state-of-the-art programs to help their case. So when the videotape rolled in court and William H. Gates III testified that he knew nothing of a Microsoft "hit team" to attack IBM, the Justice team was there with just the right E-mail, culled from millions of pages of documents, to refute his testimony. "They caught Microsoft over and over," says litigation consultant Stephen J. Lief.

"TALENTED AT GOTCHAS." Microsoft's lawyers--and its outside counsel, Sullivan & Cromwell--had their own "litigation-support" software. But it never seemed to deliver the same results that Justice's lead prosecutor, David Boies, got from his database package, Summation from Summation Legal Technologies Inc., or from Trial Director, a package produced by inData Corp. that helped him piece together the most damaging bits of video.

In presenting its defense, which ended on Feb. 26, Microsoft relied more than Justice did on a low-tech overhead projector. Its most memorable gaffe: tapes of technical demonstrations that the Justice Dept. showed had been rigged to bolster Microsoft's claims. Microsoft spokesman Adam Sohn says courtroom clinkers such as this may make good newspaper copy but ultimately won't alter the outcome of the case. "The government is talented at `gotchas' that grab headlines," he says. "But at the end of the day, they'll have to present a record on the facts."

True enough. The trial, which is now in recess, could go either way, and Justice is not declaring victory. Still, one thing is clear: The company so aggressive about its market rivals that it may have violated the law to fend them off grossly underestimated the technical savvy of its courtroom adversary.

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