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This chapter is from the book

What Fact Finders Say about the Importance of Testimony

You may wonder what impact Gates's demonstrated difficulties in deposition had on the outcome of the case. In other words, what real damage could testimony, perceived as Gates's performance was generally perceived, actually incur? This is an unusual case because shortly after the trial the judge supplied a journalist with significant evidence that supports the conclusion that the fact finder did score points against the defendant and for the plaintiff, based on his analysis of the witness's performance. Ken Auletta, a reporter for The New Yorker, interviewed Judge Robert Penfield Jackson (who presided over the Microsoft case) many times during the trial. Ultimately, Jackson's comments on the trial were published in an article that appeared in The New Yorker in January 2001.5 Jackson's remarks quoted in the article led to a remanding of his judgment against Microsoft on appeal and to further proceedings. Furthermore, the Court of Appeals returned the case to the lower court and assigned a new judge to reconsider it.

In his article (and in his subsequent book on the Microsoft case6), Auletta quoted Jackson as saying that Jackson became irritated with what he called Microsoft's "obstinacy" displayed, for example, by Gates during his videotaped deposition. Jackson was also disturbed by the apparent contradictions between the text of some Microsoft e-mails presented as evidence and the testimony of its witnesses.

Another exchange, this time between Gates and Stephen Houck, illustrates a key problem.

(Stephen Houck)


Do you understand that in this e-mail here Mr. Siegelman is opposing a proposal to give MCI a position on the Windows 95 desktop as an Internet service provider?



I don't remember anything about MCI. This talks about how we'll have a Mosaic client in Windows 95. I don't see anything in here about the desktop.


It references in this e-mail the Windows box. What do you understand the Windows box to mean?


Well, the Windows box is certainly not the Windows desktop. The Windows box is a piece of cardboard.

Jackson later asserted in remarks to Auletta that Gates's deposition was a critical mistake because it essentially supported the prosecution's contention that Microsoft was arrogant and unfair. The judge asserted that after observing Gates's testimony, he had no choice but to rule for the prosecution, returning a judgment that ordered a split of Microsoft into two separate companies.

Gates himself later came close to admitting his mistake in the approach he took as a witness in the case. After Jackson's findings and his order to break up the company, Gates offhandedly acknowledged that perhaps he should have chosen to testify in Microsoft's defense. "If we look back, I think it's clear that the whole story of personal computing—how the great things that have been done there and how we created an industry structure that's far more competitive than the computer industry before we came along—that story didn't get out," Gates said on Good Morning America. "And I do wonder if I'd taken the time to go back personally and testify, if we might have done a better job in getting that across."7

When Auletta was asked to identify the most critical flaw in Microsoft's legal team's strategy, he responded, "[The Microsoft legal defense team] ignored things like credibility, intent. They handled [the trial] like an engineer would. And they are paying for it."8

Testifying Effectively Is Not the Same as Solving Engineering Problems

Auletta's analysis of the flaws in Microsoft's legal strategy is of special interest to those who might serve as expert witnesses. Technologists often want to believe that the law is logical and that they can therefore understand the tenets of the law and how it applies to most situations. This view might lead them to believe that they can afford to ignore the illogical details of the legal ritual that has evolved over centuries. This is a disaster in the making.

We live in an age when the massive effect of technology on everyday life has accorded those who demonstrate mastery of technology the status of court magicians. Understanding technology involves a great deal of academic effort and certain analytical talents, attributes that do not come easily to everyone. Technologists are understandably proud of their skills and their accomplishments won by using those skills. It's only natural to believe that the systematic analytic process learned in the course of a technical education can be generalized to dealing with all the challenges of life. However, this technical approach does not satisfy some of the key requirements of the adversarial legal system, which relies in the end on the understanding by judges and jurors of the facts that are crucial to reaching a decision. In every case the facts are developed either in whole or in part by the testimony of lay and expert witnesses. It is often the credibility of those witnesses that makes all the difference.

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