Microsoft hasn't learned courtroom humility

All along we've thought Microsoft was one of the world's greatest marketing companies. Is it possible we were wrong? Or is it just its legal team that doesn't understand how to market a product?

All along we've thought Microsoft was one of the world's greatest marketing companies. Is it possible we were wrong? Or is it just its legal team that doesn't understand how to market a product?

We've noted in the past Microsoft appeared to go out of its way to irritate Judge Thomas Penfield Jackson. Now in their brief to the Court of Appeals, Bill Gates' lawyers have once again egregiously insulted Jackson by, in essence, calling him incompetent and unethical.

There are four possible outcomes to the appeal:

a ) Microsoft will win all points (and the government will appeal to the Supreme Court);

b) the appeal will be thrown out (and Microsoft will appeal to the Supreme Court);

c) the appeals court will remand the case to Jackson's district court; or

d) the appeals court will remand the case to another district court.

In two possibilities (b and d), Microsoft will have to convince a judge or panel of justices that the appeals court and the district court were wrong. In another case (c) it will have to go back before the judge it has insulted. In only one case (a) will it be able to defend a court's action.

Good marketing practice says you try to make the judge look good while attacking the outcome - similar to telling a child, "Oh look, the milk spilled. Let's clean it up." Rather than, "Idiot, you spilled the milk!"

Add to this the shotgun approach Microsoft took in the points raised in the appeal, which most lawyers found odd because one normally tries to narrow the issues to be looked at, limiting it to those that make the strongest case for you. Microsoft's brief brings up the judge's actions, the manner in which the trial was conducted and the witnesses' testimony. Again, bad marketing.

It seems one of the reasons Gates stepped down as CEO was to spend more time with the legal issues. If that's the case, the board of directors should take every step necessary to see that someone with marketing savvy is put in charge of legal strategy.

Kearns, a former network administrator, is a freelance writer and consultant in Austin, Texas. He can be reached at wired@vquill.com.

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