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This chapter is from the book

Every Transcript Tells a Story

During the widely covered courtroom proceedings associated with U.S. v. Microsoft, most trial observers realized that Bill Gates was testifying as a witness to facts—and as something like an interested party witness. While Gates was clearly not the corporate party to the lawsuit, he was at least the personification of Microsoft in the popular mind, and his testimony was probably the most important testimony in the entire case. Gates's special status as a witness, whether regarded as a fact, expert, or symbolic party witness, was especially apparent given his testimony regarding e-mail communications and meetings with Microsoft officials during which competitive strategies were discussed. However, few commentators acknowledged that, at times, Gates also could have been perceived by the fact finder, who in this case was a federal judge rather than a jury, as testifying (or at least as having been characterized by the government examiners from time to time) as an expert. After all, Gates was acknowledged for his technical acumen and was certainly able to address and explain technical details of Microsoft's software products to the court.

When perusing all the examples of testimony contained in this book (and in the online and videotape versions available for sale or library loan), keep in mind that when someone is called to the stand, that witness may be qualified as an expert but used only to testify about what he or she saw, heard, or did. In this role, the witness's expertise may be largely irrelevant to his or her role as a witness in a particular hearing or trial. In the example cited here, Gates is a special kind of witness, offering testimony that can be considered by the fact finder as going well beyond his knowledge of the facts and touching on his presumed expertise. He is also testifying in a context that places him in a very similar position to a party witness in the case, which heightens the importance of his performance to the fact finder. Gates is, in the eyes of the fact finder, at least the most influential person in deciding on and recalling in his testimony the acts of Microsoft, the corporate party, which were alleged to have given rise to the claims made by the United States. For such witnesses, certain expectations and presumptions by the fact finder naturally come into play as to how to view and consider the testimony that the witness chooses to give.

This is high-risk testimony for anyone placed in such a role, especially with the well-known expertise and depth of involvement that this witness is assumed to have had in the technologies his company produced. Nevertheless, any witness, whether a routine fact witness or the most important representative of a party involved in high-profile, high-stakes litigation, arrives at the witness stand in possession of his or her skills and experiences. This accompanying baggage of expertise or the lack thereof can be injected into the case by either or both parties. More importantly, perhaps, in the case in point is the assumption the fact finder is likely to make about the knowledge and expertise that such a witness has that can help the fact finder determine all the facts in the case. It therefore behooves the attorneys and the witness to consider carefully how this potential expertise may be used or abused and what the fact finder can be anticipated to make of it. In the Microsoft case, the reasonable expectations of the fact finder as to how such a witness should behave in the course of testimony apparently came into play, to the dismay of the defendant company. The judge's determination of the credibility of this key witness, as well as other witnesses for the company, and the judge's decision in deciding the outcome of the case tried before him may have been affected by Gates's behavior during the three days of deposition testimony.

Quibbling with Counsel Can Be Counterproductive

On further review of the transcript, several commentators suggested that Gates was less helpful than he might have been to the questioners in his deposition, weaving and dodging what appear to be the simplest questions asked him by the government's counsel.

(Mr. Boies)

Q:

Let me show you a document that has been marked as Exhibit 386. The second item here purports to be a message from you to a number of people dated April 6, 1995. Do you see that?

(Gates)

A:

Yes.

(The document referred to was marked by the court reporter as Government Exhibit 386 for identification. . . .)

Commentary: Note that this is one of many instances during the deposition when the government's attorneys confronted the witness with a copy of an e-mail and introduced it into the record so that it would be clear to the fact finder what was being discussed. This forces the witness to admit or deny that this e-mail is indeed his prior statement, regardless of what interpretation he attempts to give its text. This is also an example of the power of e-mail and other recorded statements to shape and control the examination of a witness and to limit or change the inclinations of witnesses to explain away suggestions of counsel in the absence of such prior statements.

Attorneys also recognize that this power can serve as an impediment to an expert in communicating with attorneys appropriately, effectively, and efficiently during the assignment. As they further recognize that e-mail exchanges have replaced telephone conversations and that the rules of procedure dictate what attorney-expert communications must be disclosed, they often enter agreements not to subpoena e-mail communications between attorneys and their experts during the expert's assignments.

Let's return to Gates's deposition.

Q

(Mr. Boies): Did you send this message on or about April 6, 1995?

A:

I don't remember sending it, but I don't have any reason to doubt that I did.

Q:

Now, attached to this message, as it was produced to us, I believe, by Microsoft, is a two-page document headed "Netscape as Netware." Do you see that?

A:

I see a three-page document, yes.

Q:

Yes, three pages. Pages 3558 through 3560. Have you seen this before?

A:

I don't remember seeing it before.

Q:

Now, the title of this three-page attachment is "Netscape as Netware" and there is a footnote that says, "The analogy here is that the major sin that Microsoft made with Netware was to let Novell offer a better (actually smaller and faster with simpler protocol) client for networking. They got to critical mass and can now evolve both client and server together." Do you see that?

A:

Uh-huh. Yes.

Q:

In or about April of 1995, was Microsoft concerned with Netscape getting to what is referred to here as critical mass?

A:

I don't know what Paul meant in using that word.

Q:

Do you have any understanding at all about what Mr. Maritz meant when he referred to a competitor getting "to critical mass"?

A:

He seems to be using that phrase with respect to Netware or Novell, but I'm not sure what he means by it.

Q:

He is also using it with respect to Netscape in the analogy, is that not so?

A:

It's not clear that the term "critical mass" is part of the analogy, is it? It's not to me.

Q:

Okay. This document is about Netscape, it's not about Novell; correct, sir?

A:

I didn't write the document. The document appears to refer to "Netscape as Netware" as its title, so Novell is talked about in this document and a lot of things seem to be talked about here. Do you want me to read it?

Q:

If you have to, to answer any of my questions. Netware is something from Novell; correct, sir?

A:

Fact.

Q:

What?

A:

Fact.

Q:

Does that mean yes?

A:

Yes.

Q:

And what Mr. Maritz here is doing is analogizing Netscape to Netware; correct?

A:

It's kind of confusing because Netscape is the name of a company and Netware is the name of a product and so I'm not sure what he is doing. Usually you think of analogizing two products to each other or two companies to each other, but he appears to be analogizing a company to a product, which is a very strange thing.

Q:

Well, sir, in April of 1995, insofar as Microsoft was concerned, was Netscape primarily a browser company?

A:

No.

Q:

It was not?

A:

No.

Q:

All right, sir. In this document do you understand what Mr. Maritz is saying is that Microsoft should not make the same mistake with Netscape's browser as it did with Novell's Netware?

A:

I'd have to read the document. Do you want me to?

Boies continues the questioning.

Q:

And the question is, do you understand that what this document is saying is that Microsoft should not make the same mistake with Netscape's browser as it did with Novell's Netware? And you can read any portion that you want, but I am particularly interested the heading which says "Netscape as Netware" and the footnote right off that heading, "The analogy here is that the major sin that Microsoft made with Netware was to let Novell offer a better (actually smaller and faster, with simpler protocol) client for networking. They got to critical mass and can now evolve both client and server together."

A:

Are you asking me a question about the whole document?

Q:

No, I didn't think I was. I thought it was possible for you to answer the question by looking at the title and first footnote.

A:

I thought you were asking me what the document is about.

Q:

I think it's possible to answer the question by looking at the heading and that footnote. My question is whether, as you understand it, what Mr. Maritz is saying here is that Microsoft should not make the same mistake with Netscape's browser as it did with Novell's Netware?

A:

Does it say "mistake" somewhere?

Q:

All I'm asking you is whether you interpret this that way.

A:

Does it say "mistake" somewhere?

Q:

Mr. Gates, we have had a conversation about how I ask the questions and you give the answers. I think—

A:

I don't see where it says "mistake."

Q:

It doesn't say "mistake." It says "major sin." If you think major sin is something different than mistake, you can answer the question no, that's not what you think Mr. Maritz means. My question is clear. You can answer it yes, no, or you can't tell.

A:

What is the question?

Q:

My question is whether—as you understand what Mr. Maritz is saying here, is he saying that Microsoft should not make the same mistake with Netscape's browser as it did with Novell's Netware?

A:

No, I think he is saying something else.

Q:

Okay. Do you think that when Mr. Maritz uses the term "major sin" that Microsoft made, he is referring to what he thinks is a mistake?

A:

Probably.


One might argue that Gates was, in these depositions, fulfilling his responsibility to answer the questions posed by the opposing counsel and furthermore to answer them in as truthful a fashion as required without volunteering any information. One might further posit that he answers these questions while complying with the most minimal requirements of testifying. Unfortunately, he may have neglected one of the most important considerations for an effective witness—appearing credible in the eyes of the court. It is typical for attorneys to advise almost any witness, whether an expert or not, to just answer the questions and in doing so to avoid volunteering information beyond that necessary for an adequate answer to what is being asked. Before depositions were routinely videotaped, this served as standard operating procedure. Everyone knew that if the case did not settle, as most cases do, the witness would testify at trial anyway. Furthermore, and perhaps more importantly, concise answers were advisable because reading lengthy depositions was boring for the jury. Videotaping depositions changes this. When a deposition is videotaped and can be introduced as substantive evidence at the trial in lieu of calling the witness to the stand, the witness must balance the original desire for terse answers with the desire to enhance his or her credibility.

Fact finders (in this case the judge) take many factors into account when considering the testimony of witnesses. The most crucial of these is credibility. A necessary part of establishing and maintaining credibility is acting with a demeanor proper to a witness who has a great deal of relevant information to bring to bear on the issues in a given case. For whatever reasons (strategic or otherwise), Gates is generally considered by his critics to have missed getting the highest marks in demeanor, which may have undermined the credibility of his deposition.

When Bad Strategy Happens to Competent Technologists

As the deposition continued, Gates's testimony descended into increasing murkiness.

(Mr. Boies)

Q:

The November 27, 1996, Nehru e-mail that you sent around is headed "Netscape Revenues"; correct, sir? And it is a discussion of an analysis of Netscape's revenues?

(Gates)

A:

I didn't send it around. Amar sent it around. I enclosed it.

Q:

I thought we established that you then sent it around.

A:

I enclosed it, yes.

Q:

When you say you enclosed it, that means it's enclosed with what you have written so that it goes around to everybody that your e-mail is directed to; correct?

A:

Well, Amar had already sent it to quite a large superset of the people I copied on my e-mail, so he sent it to them.

Q:

He sent it to them and then you sent it to everybody that is on the addressee or copy list of your e-mail; correct?

A:

I enclosed it to those people who had already all gotten it from Amar.

Q:

And by enclosing it means you sent it around?

A:

That's not the word I would use, but it was enclosed in the e-mail I sent to those people who had already received it directly from Amar.

Q:

So when people got your e-mail—all I'm trying to do is—I don't think this is obscure. All I'm trying to do is establish that when you sent your e-mail to the five people that you sent it to, with your e-mail they got Mr. Nehru's e-mail?

A:

Which they had already gotten.

Q:

And they got it again?

A:

As an enclosure, yes.

Q:

As an enclosure to your e-mail?

A:

Right.

Q:

And that e-mail from Mr. Nehru that you enclosed with your e-mail is a discussion of Netscape's revenues; correct, sir?

A:

That's the subject line of his e-mail.

Q:

Not only is it the subject line, that's what the substance of the e-mail is?

A:

Do you want me to look at it?

Q:

If you need to to answer the question.

A:

It appears to be a discussion of Netscape's revenue, or what he was able to find out about it at a 70 percent confidence.

Q:

And the first line of your memo that you sent to the five people indicated here, including Mr. Maritz and Mr. Ballmer, is, "What kind of data do we have on how much software companies pay Netscape?" correct, sir?

A:

Yes.

Q:

And did they furnish you with that information?

A:

I don't think so.

Q:

You say in the next line, "In particular, I am curious about their deals with Corel, Lotus and Intuit." Do you see that?

A:

Uh-huh.

Q:

You've got to say yes or no for the—

A:

Yes.

Q:

Did you ever receive information about what revenues Netscape was getting from any of those companies?

A:

I'm quite sure I didn't.

Q:

Netscape was getting revenues from Intuit. You knew that in December of '96; correct, sir?

A:

I still don't know that.

Q:

You still don't know that? You tried to find that out in December of 1996; correct?

A:

I did not myself try and find that out.

Q:

You tried to find it out by raising it with people who worked for Microsoft, didn't you? That's what this message is?

A:

It says I'm curious about it.

Q:

Well, the first line says, "What kind of data do we have about how much software companies pay Netscape? In particular I am curious about their deals with Corel, Lotus and Intuit." That's what you wrote to Mr. Nehru, Mr. Silverberg, Mr. Chase, Mr. Ballmer and Mr. Maritz; correct, sir?

A:

Right, because Amar's mail didn't seem to have any data about that.

Q:

And is it your testimony that you never got any data about that?

A:

That's right. I don't remember getting any data. I'm quite sure that I didn't.

Q:

Did you follow up to try to get an answer to those questions?

A:

No.

Q:

After December of 1996, Microsoft entered into an agreement with Intuit that would limit how much money Intuit paid Netscape; correct, sir?

A:

I'm not aware of that.

Q:

Are you aware of an agreement that Intuit entered into with Microsoft?

A:

I know there was some kind of an agreement. I wasn't part of negotiating it, nor do I know what was in it.


When reading this portion of the transcript of the deposition and when viewing the videotapes, one can almost sense the frustrations building in the witness, who at various points appears not to want to be testifying. The novice might assume that Boies is also frustrated by Gates's vague and evasive answers. However, experienced experts and legal strategists can recognize when the playing field of a deposition is under their control. The extraordinary number of prior e-mail statements that Boies could use to control the ability of Gates to answer and explain his answers represented a formidable advantage. Regardless, it is clear at this point in the deposition that any witness would be in for a rough time. Almost any strategy that attempts to get around the massive amount of impeachment material is likely to make it look like the witness is attempting to frustrate the legitimate efforts of the examining attorney to establish the facts that are most relevant to the lawsuit.

Furthermore, Boies is widely acknowledged in legal circles as an expert linguist and a consummate examiner of witnesses. We get the idea that he was delighted with what he was eliciting from the witness over the three days of the deposition. Therefore, he was content to appear in the video and written transcript to be fairly but futilely attempting to get from the witness a straight answer that contained all the information that was available as to a particular issue. From the government's perspective, Boies was in a win-win situation. After all, he had already obtained most of the essential evidence in the form of admissible prior statements of the witness or others discussing these issues. Gates's only real hope was to come across as a knowledgeable and helpful witness while explaining these e-mail messages, in order to score any points at all with the fact finder.

On the other hand, in fairness to the witness, the last exchange is also an example of testimony that, in the absence of the cumulative effect of dozens of other exchanges that put Gates at a distinct disadvantage, might almost as easily be scored by the fact finder in favor of the witness. Such an isolated exchange as the one quoted immediately above could reasonably be interpreted as nitpicking questioning by the lawyer, rather than as a failure by the witness to be responsive or cooperative and therefore completely credible. It is important for technical experts to pick their fights carefully and not to assume that if they consistently react defensively to all lines of questions, the fact finder will continue to empathize with the witness. After enough of these defensive answers, the most open-minded fact finder may conclude that the witness is simply refusing to explain what he or she knows, whether the questions are reasonable or not.

Some legal observers have wondered why the Microsoft counsel did not call more time-outs. From time to time the Microsoft counsel objected and in other ways attempted to smooth over a situation that was, in retrospect, not helping to make the witness appear credible. This loss of control over the impressions made during the deposition had an impact on the future trial strategy. Some commentators have suggested that after viewing the videos, the existence of the taped deposition may have convinced the legal team members of their inability to effectively rehabilitate the witness once the deposition was introduced into evidence at the trial. This may have persuaded the Microsoft counsel not to present Gates as either a factual witness or as an objective and wise expert—his bias and interest in the outcome of the case notwithstanding.

Although it may appear to the reader that Boies is being unnecessarily picky in his repeated questioning of Gates on details of the e-mail messages, he is expertly and dramatically drawing the attention of the court to the witness's antagonistic and picky behavior, which could be construed as that of someone failing to adequately respond to a legitimate line of questioning.

David Bank has a less generous interpretation of Gates's intent:

Gates tried to stall Boies. While he otherwise had crisp recall of the pros and cons of every strategy debate since Microsoft's inception, he, in his deposition, claimed not to remember whether he did or did not write or receive any of the dozens of e-mails put before him. . . .

In what turned out to be his only chance to influence the trial, Gates had opted for obfuscation rather than clarity. His evasiveness and forgetfulness in the deposition had disqualified him as a witness in the courtroom. The forceful defense he might have later chosen to make would be fatally undermined by his lack of credibility. So Gates effectively gave up his chance to defend Microsoft's strategy as simply the best adapted to the new form of competition in high-technology markets. . . . 3

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