By Siobhan Kennedy
Attorneys for Microsoft Corp and the Department of Justice will tomorrow submit documents containing key findings that both sides believe help prove their case in the long-running antitrust trial in Washington. The documents, legally referred to as proposed findings of facts are an attempt by each side to tell the factual story, drawing on evidence heard in court, as well as highlighting points that disprove the other side’s arguments.
The ultimate aim is to get Judge Jackson, presiding over the case, to use the arguments as part of his written summing up, which experts say will be issued by the end of the year. Rich Gray, a silicon valley attorney familiar with the case, described the findings stage, common in legal cases like these, as a factual roadmap….which leads to the conclusion that each side wants to the judge to reach.
Each finding will be numbered and presented separately and will be delivered in the form of a set of affirmative statements, which may or may not be backed up by witness depositions or testimony heard in court or submitted in writing. For example, one DOJ finding might begin with the premise that the operating system marketplace consists of Microsoft’s Windows software and no other competitive product, Gray said. While Microsoft, on the other hand, will present findings that it thinks prove an absence of anti-competitive behavior in those markets.
Once the findings have been delivered, Judge Jackson will give both sides a month to review the other’s documents and come up with a revised, or actual findings of facts – effectively a new summary that includes reaction to the other’s arguments. This must be submitted by September 10. According to Bill Kovacic, an antitrust professor at George Washington University, the purpose of this second phase is the judge’s attempt to coax Microsoft and the DOJ to define the differences between their arguments as much as possible, thereby narrowing the range of issues which he has to consider when producing his own summary. He’s inviting them to identify, specifically, what they regard to be the key areas of difference between their two arguments and to explain why he [the judge] should go with one set of arguments over the other.
The revised findings will form the basis of both sides’ closing arguments, which are due to be heard in court on September 21. That will be the last chance attorneys for Microsoft and the DOJ have to present their key arguments and during that time, the judge will be free to ask as many questions as he sees necessary. Based on what he learns during that hearing, and using the facts he thinks are most compelling from the revised findings, he will then retire to write his own summary.
Jackson’s summary is a crucial part of the legal process. It is the first time the judge will lay down the facts of the case as he sees them, having listened to all the arguments and summaries. Although not his formal ruling – which experts say won’t be issued, at the earliest, till the beginning of next year – Kovacic says the summary will include enough information for both sides’ attorneys to make a confident prediction about which side the judge will rule in favor of.
Copies of the summary, which should take around a month to produce, will be issued to Microsoft and the DOJ for the next stage in the legal process; the conclusions of law. This is where the judge tells the opposing parties to read his summary and come up with what they think he should conclude in his final judgement. It’s at this stage, Kovacic says, that Microsoft will get its final chance to go for a settlement. If the summary includes facts like Microsoft occupies a dominant position in the personal computing market, or there are no substitutes or threats to Microsoft’s competition, then Microsoft’s lawyers could reasonably infer that the judge will rule it has a monopoly position and take steps to address that, Kovacic said. He added: Microsoft may consider a settlement or, if it thinks the judge is being too demanding in his summary, it might decide to take its chances and not surrender.
Depending what the two parties decide, they will either enter into settlement talks, in which case the trial could go back to court and the judge could be forced to hear more testimony which could go on until spring. Or, the parties will decide not to settle, and judge Jackson will retire to consider his final ruling. That being the case, the ruling should issued some time in the new year. á
