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This chapter is from the book

Testimony—Take Two

In April 2002, as this book went to press, Bill Gates returned to the witness stand in U.S. v. Microsoft, this time concerning the claims of nine states and the District of Columbia. This set of claims asserted that the settlement reached between the Department of Justice and Microsoft was insufficient to serve the best interests of the consumers in their respective jurisdictions.

The media and press celebrated a "different Bill Gates," one who was well prepared and appropriately deferential to the judge and the plaintiff counsel. According to press accounts, Gates was initially nervous but soon regained his composure, delivering a clear message to the judge that the punitive measures proposed by the plaintiffs would inflict significant damage on both Microsoft and the U.S. economy as a whole.

Consider and contrast this description of Gates's assuming the mantle of the prepared and composed expert with his previous performance in the original deposition:

On Monday, Gates began his testimony with an elaborate PowerPoint presentation and painstaking definition of technical terms. He said that arbitrarily "removing code" from Windows would have disastrous consequences because software would lose application program interfaces—he called it "published ways of calling on functions"—and cease to work.9

In another turnabout from his previous witness persona, Gates was clear and candid when asked by the states' attorney about a previous claim of improper activity:

"Cloning is a strategy that Microsoft has employed, isn't it?" asked [states' attorney Steven] Kuney.

"We have done it," Gates responded, adding that he believes cloning is appropriate if a company does it without improperly obtaining another firm's source code.10

Consider the contrast between this succinct exchange and Gates's endless parrying with Boies during the deposition (and consider the difference made to the court). Clearly Gates learned from his first experience as a witness in the deposition. In reflecting those lessons learned in his return visit to the court, he demonstrated that with experience and preparation, an expert can indeed learn new tricks about the art of testifying!

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