Judge's mood may affect Microsoft strategy

From the bench, Judge Thomas Penfield Jackson has looked alternatively bored, interested, amused and impatient with the witnesses and evidence presented thus far in the US government's antitrust trial against Microsoft But he didn't get obviously angry until Friday, when he repeatedly criticised Microsoft's attorney during his cross-examination of Apple's Avadis Tevanian. The issue now for Microsoft is determining whether Jackson was just having a bad day or was sending a strong message to Microsoft about the direction of the trial.

From the bench, Judge Thomas Penfield Jackson has looked alternatively bored, interested, amused and impatient with the witnesses and evidence presented thus far in the US government's antitrust trial against Microsoft But he didn't get obviously angry until Friday, when he repeatedly criticised Microsoft's attorney during his cross-examination of Apple Computer senior executive Avadis Tevanian.

Jackson accused Microsoft attorney Theodore Edelman of using "misleading language" in his questions and urged him to finish up his cross-examination. Scowling from the bench, the judge told the attorney at one point: "You keep mischaracterising what he told you."

The issue now for Microsoft is determining whether Jackson was just having a bad day or was sending a strong message to Microsoft about the direction of the trial, say antitrust attorneys who have been following the case.

"It's clearly a sign that he was impatient," said Michael T. Gass, an antitrust attorney at Palmer & Dodge LLP in Boston. "When you start proceeding down a path and find out that it doesn't impress the judge and he doesn't care about it, it's not good news."

Jackson has been trying to move the trial along at a speedy pace. He has instituted a number of rules to accomplish that, such as limiting the number of witnesses and having them submit their initial testimony in writing. But until yesterday, Jackson hasn't done much to speed up the cross-examination process.

During the course of the now 3-week-old trial, Jackson occasionally asked attorneys on both sides how long they will take to finish questioning a witness. But his inquiries didn't seem less than friendly until yesterday, when he insisted that Edelman finish up Tevanian's cross-examination that afternoon. "I urge you to try," he said sternly.

"A trial like this can go on forever and ever if left to the lawyers," Gass said.

Jackson may be among a number of judges showing "less and less tolerance" for repetitive testimony and witnesses, Gass said. I think this is a statement by the judge that he only needs to hear it once and he'll be able to figure it out from that," he said.

What happened yesterday may be merely an isolated incident, or it could indicate a larger concern, said William Shieber, an antitrust attorney at Arent, Fox, Kintner, Plotkin & Kahn in Washington. "You can draw a number of conclusions," he said. One thing for certain, Shieber said, is that Microsoft attorneys are "thinking through the issue."

"Whenever a judge indicates a criticism of what you're doing, you have to take that very seriously. But you also have to protect your client's interest," Shieber said.

Microsoft spokesman Mark Murray says Tevanian's testimony has helped the company's case. But he wouldn't comment on the judge's behavior.

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