Microsoft: The Teflon Don?

— 9:21 PM on February 28, 2001

Ronald posted yesterday that Microsoft day before the U.S. Court of Appeals for the District of Columbia had finally arrived. The arrival of this event is of great interest to people on both sides of the fence.

The Appeals Court is not all that different from Supreme Court in the way in which data is presented. I am not a lawyer, but a little to much time in front of the tube watching Law & Order has given me – I hope – a somewhat realistic understanding of how legal battles rage.

It is my general understanding that you can’t just appeal a ruling. That in order for an appeal to be considered one must be able to show that something in the previous trail denied you from your rights to a fair trial.

Microsoft’s sword for this appeal seems to revolve around the idea that Judge Jackson is biased against them and thus they could not receive a fair and just ruling. Given the size of the briefs that both the US and Microsoft filed to the judges before this trial began it seems that both sides have more ammunition to debunk or to prove whether a fair trail was received than just Judge Jackson’s bias.

It is these briefs that the court will ultimately use to base their questions upon and hit both the plaintiff and defendant with in order to bring about a further clarification. The potential exists for this questions and answer session to become very lively. Especially if the answers don’t meet up with expectations the judges have. It is by far more interesting and to the point than the long and drawn out initial trails in which the prosecution presents all the evidence to show you are guilty and the defense presents all the evidence in order to contradict the prosecution claims and hopefully add something extra to show that you are innocent. It is like comparing reading stereo instruction to watching your favorite sport.

Putting the infantile legal lesson aside for the time being we should talk about what happened into today’s trail just a little bit. According to C|Net the second day of trial was simply not representative of the fence sitting that was seen yesterday. Apparently strong questions and solid retort filled today’s trial as the some of the Judges simply found themselves unsatisfied with both Judge Jackson’s Finding of Fact and the Governments answers to their questions.

Chief Judge Harry Edwards questioned whether U.S. District Judge Thomas Penfield Jackson’s findings of fact sufficiently defined what he called "the browser and platform market."

The District Court slipped back and forth on the relevant market, Edwards said. He added that Jackson’s "findings are absolutely unclear," accusing him of "sleight of hand."

Sleight of hand? Ouch. Is it just me or was that a rather subtle flame? It only gets more interesting from there though.
Appeals court Chief Judge Harry Edwards said he saw no reason to "defer to the findings of fact." He described them as "merely conclusionary," adding, "I find no support for them."

Edwards in particular riveted the courtroom. The chief judge asserted that just because Jackson said something doesn't make it true without support in the court record.

"It has to be fact to be a fact," Edwards said.

While Edwards only one of seven judges the way he argues, the questions he poses, and even his own answers for his questions can and will have impact upon the judges around him.

Such scathing remarks from Edwards against Jackson makes one wonder if the US Federal judges don’t each have a little axe to grind with one another.

Many of the analysts feel confident that a majority of the judges are seeing it Microsoft’s way. The news articles are quotes confined to certain judges who did something a bit sensational. This limits my own and the reader’s ability to perceive a larger image, I must admit though, seeing the Chief Judge that fired up doesn’t paint a pretty picture for the DOJ.

You can read the relevant articles here, here, and here.

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