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This chapter is from the book

So What Happened in This Deposition?

We do not intend to second-guess the strategy of Gates and his legal team. Many analyses performed by experts in the business and legal communities alike criticize either the behavior of the witness or the legal team's performance. A typical critique comes from David Bank, staff reporter at The Wall Street Journal, in his book Breaking Windows:

As a legal tactic, Gates's approach backfired. Microsoft's attorneys claim they believed the videotaped deposition would never be played in court. That's plausible, if only because they could hardly have staged the deposition more poorly. In the harshly lit Microsoft conference room, Gates projected a visual image of an evasive smart aleck. It was a win for the government. The video effectively countered Gates's popular persona as Chief Digital Seer.2

  1. All quotations of Gates's deposition testimony in this chapter are taken from the U.S. Department of Justice Antitrust Division Web site, accessed in July 2002 at http://www.usdoj.gov/atr/cases/ms_gates2.htm.

  2. Bank, David. Breaking Windows: How Bill Gates Fumbled the Future of Microsoft. New York: The Free Press, 2001, p. 149.

Regardless of the Microsoft legal team's strategy and its relative effectiveness in the final analysis, the transcripts of Gates's testimony emphasize the importance of a witness considering what the fact finder sees when testimony is given. What becomes evident to a spectator who is also a technologist is the mismatch between the naïve expectations of the technical witness and those of the ultimate fact finder in the formal context of a trial. Technologists may initially think this is reasonable and appropriate conduct for an antagonistic exchange between two technically savvy people. But this may not be as apparent to a fact finder who is reviewing these deposition tapes at a later date to determine what actually happened and to decide an important legal case. So, what could conceivably be considered acceptable, though rather cantankerous, technical discussions by an acknowledged technical expert with an attorney, about things they both presumably know a great deal about, can still place the witness in a bad light with a judge or jury. The sort of demeanor that is necessary to present and preserve personal and professional credibility in formal legal proceedings turns out to be oceans apart from just getting the best of another techie or dodging a difficult question posed by an astute attorney. In this particular case, such decorum was even more important, given that Gates's opponent had a stacked deck comprised of hundreds of prejudicial e-mails to and from the witness, already thoroughly analyzed by a team of lawyers and now in the mind and hands of a highly skilled cross-examiner.

It was no secret that the government and Boies had powerful statements in the form of e-mails before the deposition began. The record of the decisions by the witness as to how to react to such locked and loaded questions, obviously based on Gates's and others' multiple prior statements, allows future witnesses the luxury of benefiting from Gates's discomfort. These transcripts can provide hours of free training in considering how you would have handled these kinds of questions in a deposition or trial. The point of this chapter is not to criticize Gates or his lawyers for what happened in the Microsoft trial but to learn from the record of that performance. Fortunately, these videos of one of the most important depositions in the world of IT litigation are all available for viewing, through the interlibrary loan services of state depository libraries for public government documents.

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