A landmark case however he rules; Antitrust: With unprecedented speed, Judge Thomas Penfield Jackson could reshape the future of Microsoft.; Sun Profile


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.

Those who know him say Jackson's approach reflects his background as a ferocious litigator and connoisseur of legal swashbuckling who gives lawyers plenty of slack -- if they can handle it.

Steve Newborn, a Washington antitrust lawyer and Federal Trade Commission veteran, recalls uncorking a particularly devastating cross-examination in Jackson's courtroom. Afterward, the judge took the young lawyer aside and told him: "Mr. Newborn, that is what I miss most about being a lawyer -- destroying a witness."

But if they forget their manners in his courtroom -- or breach his military sense of decorum -- lawyers say the 6-foot Jackson will erupt like a grizzly rousted from a winter nap.

"If you're a good lawyer, he loves you; if you're a bad lawyer, he has no time for you," Newborn said.

Participants in the Microsoft trial learned this the hard way. When a Microsoft executive on the stand repeatedly tried to reinterpret a damaging e-mail from Chairman Bill Gates, a weary Jackson finally stepped in: "I don't think it can be read any other way," he declared. "So let's not argue about it."

When the witness launched into the argument anew, Jackson suddenly thrust out a meaty palm.

"No! Stop!" he snapped. Then, cheeks flushed, he stalked off to chambers to cool off.

Friends say the Microsoft trial has been a struggle for Jackson, who on a typical day was forced to slog through gobbledy-gook such as this answer to a lawyer's question:

"They would be the user 32.dll, U-S-E-R 32.dll; gdi32.dll; kernel32.dll, K-E-R-N-E-L 32.dll; often vgadrv.dll, shdocvw.dll, shell32.dll, shell32.dll, advapi32.dll, comctl32.dll, C-O-M-C-T-L 32.dll."

Not surprisingly, Jackson was spotted lugging home thick case binders on the weekends. And despite a little media ribbing for his techno-troubles, he proved a quick study. For example, with the help of an aide, he showed that Microsoft's Internet Explorer Web browser could be removed from Windows operating system -- a key point in the dispute.

An instant expert

In fact, Jackson is used to wading in unfamiliar waters -- and even enjoys it. As a litigator, he specialized in insurance and medical malpractice suits, boasting that he wasn't afraid to dive into scientific journals to win a case. And, with 200 cases on his docket, he is regularly called on to become an instant expert -- a demand that most judges face.

Former law clerk Lawrence Kasten recalls complaining about a convoluted milk pricing case that he found "tedious and boring." The judge gently scolded him: "This is what makes this job so exciting. Who would have thought you'd be an expert on milk pricing this week?"

When his robes come off, so does his formal demeanor. He prefers sweat shirts and khakis to suit and tie and opts for the Orioles over opera. (Not surprisingly, he likes to score the games himself.) He shuns gourmet tobacco and stuffs his pipe with bottom-shelf Captain Black Gold. He rides the subway to work.

Weekends find him on the Chesapeake Bay in his 33-foot sloop Nisi Prius (Latin for "Trial Court"), or curled up with one of Patrick O'Brian's timber-splitting tales of 19th-century ship captain Jack Aubrey -- a 20-book epic once described as "crack for intellectuals."

He lives with his third wife, Pat, director of development at Sidwell Friends School, in a luxury apartment building near Georgetown. His two daughters from a previous marriage are grown.

Although some lawyers who have faced him call him "mean" and "tyrannical," he nursed his wife's dying cat through its final months, gingerly spoon-feeding the creature and injecting its medicine.

The early years

The son of a prominent Washington attorney, Jackson grew up in Montgomery County and attended St. Albans School on a choir scholarship. When hormones finally muddied his crystal soprano, he transferred to Bethesda-Chevy Chase High School, where he became a lineman on the football team and editor of the school paper.

After graduation from Dartmouth College and three years on a Navy destroyer, he went to Harvard Law School and joined his father's law firm, Jackson & Campbell, where he gained a reputation as a cocky trial lawyer who always did his homework.

"Tom did not like to lose," said Jim Schaller, a colleague at Jackson & Campbell.

In 1982, President Ronald Reagan made him a federal judge.

"For a change, I was expected to keep my mouth shut rather than open," Jackson once recalled. "And I've tried to live up to that."

It hasn't been easy. At a Harvard Law School symposium a few days after he put Marion Barry in jail, Jackson criticized the jury for its lenient verdicts -- an attack that drew intense fire from the legal community. This summer, in the midst of the Microsoft case, Jackson raised eyebrows again by sitting on an American Bar Association antitrust panel.

The slightest gaffe could have called his impartiality into question -- but he remained Sphinx-like throughout.

"It was the equivalent of walking through a minefield," said Kovacic.

Jackson has scolded lawyers in open court for breaches of lawyerly decorum and, in one bizarre instance, removed himself from a case because he suspected a lawyer of bad-mouthing him to the press.

"He's not shy about telling you what he thinks," said George S. Carey, a Washington attorney who has appeared in Jackson's courtroom.

His booming voice and blustery self-confidence rub some lawyers the wrong way. A 1996 article in Washingtonian magazine -- based on unattributed conversations with lawyers -- named Jackson "one of the least-respected judges on the federal bench." Former clerks quickly fired off a letter in his defense, but friends say the story still stings.

Although Jackson has said he struggles with decisions when human lives are at stake, those who have worked alongside him say they would be surprised if the biggest antitrust case of the decade has caused him sleepless nights.

"Something like Microsoft is not going to bother him that much," said Kasten, his former clerk. "Ultimately, it's just a case about money."

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