This is how desperate the U.S. Justice Department is to win its epic fight against Microsoft: It hired as lead attorney an outsider who doesn't use a computer, dresses like a car salesman and humiliated the government the last time it tried a case like this.
But 57-year-old superlawyer David Boies has a fearsome knack for winning.
The stakes will be high in U.S. vs. Microsoft Corp., which begins today in federal court in Washington. The outcome will help determine how much success is too much for an American corporation and who will lead the computer revolution into the next century.
"The Microsoft case is possibly one of the most important cases in history. Not just to antitrust, but to the future of the information industry," says Alan McAdams, a Cornell University economist.
No wonder then that the government's list of witnesses reads like a roll call of victims of Microsoft and Bill Gates, its co-founder: Apple. Sun Microsystem. Intuit. Netscape. They will all be there, bitter adversaries that couldn't catch Microsoft in the marketplace and are hoping the government will harpoon it in a courtroom.
Their hopes will be riding on Boies, a man with a comic lack of computer savvy -- he writes his briefs by hand and has his secretary retrieve and print out his e-mail -- and a penchant for blackjack and "Star Trek" reruns.
But he is a merciless, unrelenting litigator who opponents underestimate at their peril. He won the last big case like this, when the government failed in 1982 to break up International Business Machines Corp.
"It was a brilliant move for the Justice Department to hire him. It is like a football team hiring the coach of its opponent," says William E. Kovocic, a visiting law professor at George Washington University and an expert on antitrust law.
Boies, who has been preparing for trial and hasn't responded to recent interview requests, has a roster of trophy clients, including the New York Yankees and the government of France, who pay $600 an hour for his advice. As "special trial counsel" for the government, he will get the prorated equivalent of $101,142 a year -- roughly the hourly fee of a telephone repairman on overtime.
But U.S. vs. Microsoft Corp. is about more than money. It is about history, says Jonathan Schiller, Boies' partner at Boies & Schiller, explaining why the two agreed to Boies' hiatus from their 1-year-old firm.
Near-photographic memory
Friends and foes alike credit Boies with a masterful courtroom presentation. He has a near-photographic memory and works largely without notes. He eschews complicated vocabulary in favor of a down-to-earth manner that endears him to a jury.
Others say Boies can be demanding and sharp-tongued, even with members of his team. He doesn't take losing easily: When a key ruling goes against him, he has been known to turn red and shake with anger.
This he keeps from juries, however.
"He's very low-key, thoughtful. He takes his work, but not himself, seriously," says Mike Wallace, the CBS newsman and "60 Minutes" correspondent. Boies defended Wallace and CBS in a libel suit brought by retired Gen. William Westmoreland over a 1982 story criticizing his conduct of the Vietnam War.
Wallace credits Boies and his cool courtroom demeanor with pushing the Westmoreland legal team to a no-cash, no-apology surrender before a verdict was rendered. "He scared the dickens out of them," he says.
Scaring opponents has been lucrative for Boies, who reportedly has earned $2 million annually in recent years. He and his third wife, Mary, a lawyer he married in 1982, built a brick mansion on 10 acres overlooking the rolling hills of Westchester County in Armonk, N.Y. The house has a pool, a tennis court, and a pair of teen-agers (he has six children; two from each marriage).
Between trials he can be found bicycling through France with his family or sailing the Caribbean at the helm of Coconut, his 75-foot sailboat.
But that's where the resemblance to a typical Wall Street lawyer ends.
"He's a wild duck. He doesn't fly in formation," says George Vradenburg III, senior vice president and general counsel for America Online Inc. and a former colleague of Boies.
Boies often needs a haircut and buys his plain blue suits off the rack. He spent much of his youth in Southern California playing bridge or the ponies, and he still likes to unwind at the blackjack tables in Las Vegas and Atlantic City, N.J. He prefers television -- "anything that moves and is in color" -- to high-minded literature, Vradenburg says: "He's not a guy that sits at home and reads Kissinger's memoirs."
Clients don't seem to mind. Boies' resume is studded with high-profile victories. He got Westinghouse Electric Corp. off the hook when the Philippine government accused it of winning a nuclear power plant job with bribery. Working for the Federal Deposit Insurance Corp. in its insider-trading case against junk bond king Michael Milken and Drexel Burnham Lambert Inc., he negotiated a $1.1 billion settlement.
Rise of a legal star
But it was his work on the IBM case that made him a star. The New York Times Magazine in 1986 called him "The Wall Street Lawyer Everyone Wants."
He was assigned to the case at Cravath Swaine & Moore, the blue chip Wall Street firm he joined after graduating from Yale Law School. He became a chief aide to Thomas Barr, a renowned litigator leading the IBM defense.
It would turn out to be a landmark case, considered the antitrust division's Vietnam. The government accused the computer maker of the same monopolistic misbehavior Microsoft is accused of today.
The case, filed in 1969, dragged on for nearly 13 years until the government gave up.
"He certainly understands every trick that a monopolist can play in litigation, and he understands every trick a lawyer can play," says McAdams, the Cornell economist who as an expert witness in the case endured 38 days of cross-examination by Boies.
"He was very bright. He understands what he is doing. He understands economics," says -McAdams. He adds: "I haven't said a word about scruples."
Boies and the other IBM attorneys caused endless delays in a war of attrition, McAdams says. No document was submitted without endless objections; no witness escaped without mind-numbing cross-examination. The lawyers formally accused the judge of bias and an opposing counsel of perjury -- while the case was under way.
"They were scorched-earth type of lawyers," McAdams says.
During a break in a deposition, for example, McAdams and a witness chatted briefly out of earshot of Boies. When the inquisition resumed, Boies demanded the details of the exchange.
So there it is, entombed in the millions of pages of official records in that titanic case: The men's room is down the hall and to the left.
Not surprisingly, Boies has sought to keep the Microsoft case moving.
"One of the things I understand as much as anyone is both the strengths and pitfalls that confront Microsoft -- and the Department of Justice, too because I've seen the kind of tactical approach that works and doesn't work against a large, entrenched, well-staffed and well-financed defendant," Boies told the Seattle Times earlier this year.
U.S. District Judge Thomas Penfield Jackson -- who also presided over the Westmoreland trial -- also said he wants to avoid a repeat of the IBM debacle. Both sides will be limited to 12 witnesses, who will submit testimony in writing and take the stand only for cross-examination. The case, filed May 18 by the Justice Department and the attorneys general of 20 states, including Maryland, is expected to last five to eight weeks. Jackson, not a jury, will decide it.
This being the computer age, the testimony will be flashed on the Internet as witnesses appear. That means people around the world can follow along. Most of them will use Microsoft software to do so.
That's the problem, says the government.
Since its start in 1975 by Harvard sophomore Bill Gates and friends, Microsoft has grown into the Goliath of the computer industry, with annual revenues of $14.5 billion last year. Nearly nine of 10 personal computers in the world use the company's Windows "operating system," a super-program that stores and retrieves other software and controls the computer's communications with disk drives, monitors, printers and other devices.
That means that Microsoft's "desktop" of colorful point-and-click icons is the first thing most people, from Korea to California, see when they turn on their machines.
The government's lawsuit alleges that Microsoft has used this virtual monopoly in operating systems to corner the market in add-on software. Among other things, the government says the company has muscled its way into the market for Internet browsers -- software essential for "surfing the Net," or culling through the millions of Web sites floating in cyberspace.
Windows customers can use browsers made by almost any manufacturer. But the government alleges that Microsoft, fearing that well-designed browsers could supplant its operating systems, exploited its marketplace might to push its own browser, the Internet Explorer.
Century-old laws
And this, says the government, violates the antitrust laws that were passed a century ago to bust up a marauding giant: the Standard Oil Trust, which corralled 90 percent of the U.S. market for petroleum products.
"In essence, what Microsoft has been doing, through a wide variety of illegal business practices, is leveraging its Windows operating system monopoly to force its other software products on consumers," Assistant Attorney General Joel I. Klein, the government's chief trust-buster, says in a statement.
Microsoft denies the charges, and, like IBM did 30 years ago, has marshaled an army of wool-suited lawyers. In its court filings, Microsoft says it has never tried to compete illegally.
Allowing the government to restrict innovation can only obstruct progress, argues Microsoft spokesman Jim Cullinan. "Does that make sense for consumers and the United States?"
In its filings, the government says it wants the judge to force Microsoft to ship competing browsers alongside its own on Windows and to take other, unspecified steps that would even the competition. Kovocic, the antitrust expert at George
Washington University, said that could include a Ma Bell-style break up of Microsoft.
A loss for the government could slow the march of the newly activist antitrust division, which recently sued Visa/MasterCard and targeted other companies.
But it would be a mistake to bet against Boies, warns CBS newsman Wallace: "I would not want him on the other side."
Pub Date: 10/19/98