An American court of law is in many ways un-American. In our everyday lives we Americans celebrate the subversion of the social order; everywhere a visitor to our country looks he will find a poor American boy trying to make good, usually with the encouragement of his society. An American courtroom is designed first and foremost to preserve the social order, to keep the poor boy down. The judge sits on a raised dais from which he can condescend to the lawyers, the lawyers stand up so that they may condescend to the seated witness, and the witness, though he may have no one to whom he can plausibly condescend other than perhaps the curiosity seekers on the hard benches at the back of the room, at least has the comfort of his upholstered chair. If anyone dares to step the slightest bit out of line, a large man emerges from the back to shout, “Order in the court!” If the judge decides he needs to relieve himself, the large man appears again to shout, “All rise!” And everyone in the room stands and waits stupidly until the judge has ambled off to pee. There is not a “please” or a “thank you” or a “by your leave” in any of this. Our democracy’s system of justice is a feudal society in miniature.
The U.S. District Court in Washington, D.C., had the charm and efficiency of a Soviet customs office. The ceiling of grime-streaked white tiles was lit by horrible fluorescent lights. The seal of the United States over the full-moon face of Judge Thomas Penfield Jackson appeared to be made of the same hard plastic as a Halloween mask. For a number of reasons not worth going into, the main one being that the DOJ was not seeking monetary damages, there was no jury. The judge would render a verdict. Although it was one of the great antitrust trials since the antitrust laws were created back in 1890, the judge elected to hold it in the small courtroom. Most of the 450 reporters who turned up on the first day were left to rot in halls.
The judge permitted each side to call just twelve witnesses. The DOJ’s case now included companies other than Netscape, but Netscape was still the centerpiece. Microsoft stood accused by its government not merely of being a monopoly—in itself, not illegal—but of abusing its monopoly powers to put Netscape (and others) out of business. Netscape offered the best documented example of Microsoft’s abuse of power, thanks in large part to the early heads-up from Clark. As a result, the government wanted one strong witness from Netscape. “We thought about calling Jim Clark,” one of the Justice Department lawyers told me during a recess, “and in many ways he might have been great because he was so knowledgeable about the technology. But the guy is a kind of maniac. He’s not someone who you can discipline enough so you can say, ‘Jim here is what we want you to do.’”
And so in the end the DOJ settled on Jim Barksdale, who, after all, had been hired by Clark and Doerr because he knew how to play his role. He put the same acceptably conventional face on Netscape’s legal affairs as he did on its business affairs.
The trial’s opening arguments lasted just two days. The DOJ introduced endless e-mails and memos showing how Microsoft bribed and blackmailed companies into harming Netscape. (“How much do we have to pay you to screw Netscape?” Gates asked executives of America Online in early 1996.) On the third day Microsoft called Barksdale to the stand. His job—from the point of view of the DOJ—was (a) to lend further credence to the notes supplied from the June 21, 1995, meeting between Microsoft and Netscape; (b) to explain how Microsoft had abused its monopoly to undermine Netscape; and (c) to come across as a reasonable, trustworthy guy. This last assignment was maybe the most critical because the judge, who hadn’t the first clue about software, was forced to chose between conflicting accounts of the same events. It was made difficult by Microsoft’s lead lawyer.
This lawyer was a natural heavy, a great Hogarthian ball of pink flesh with jowls that rippled over his white starched shirt. The potted biography said that his name was John Warden and that he had grown up in Evansville, Indiana, graduated from the Harvard Law School, and been for twelve years a partner at a fancy New York City corporate law firm, Sullivan & Cromwell. Through it all he’d somehow preserved an accent that would have made a hillbilly blush. He was proud of it, too. He’d lean into his microphone in the well of the U.S. district courtroom and boom out his questions in the Voice of God, causing the fifty spectators in the back of the room to jolt upright on their hard wooden pews. He was a hick, or pretending to be a hick, probably out of some old-fashioned belief that hicks, even make-believe hicks, are more appealing to juries than $1,000-an-hour New York lawyers, which is what he actually was.
In any case, his voice had the dull rolling groan of thunder from a bolt of lightning that has struck nothing, far away. And it hadn’t taken him long to prove that high technology sounded far less impressive when discussed by a fat hick. He went on about “Web sahts” and “Netscayup” and “the Innernet” and “mode-ums,” and with every syllable he made the whole of the modern condition sound a little bit ridiculous. When he mentioned AOL, it sounded like a yodel. AOOOLLLLL! The witness he addressed as Mis-ter Barksday-ulll.
Before he ever heard of Jim Clark, or of Netscape, or of this mess of a trial into which Clark, with a flick of his left wrist, had thrust him, Jim Barksdale had made a reputation for himself as a manager at Federal Express and McCaw Cellular. He’d grown up in Mississippi and retained just enough of the piney woods patter to offer a passing imitation of a good ol’ boy. All that was left of his linguistic origins was the just-below-upper crust southerner’s habit of transforming soft consonants into hard ones. (He said “ma-toor” instead of “machoor.”) Clearly he’d arrived at a point where he himself did not comprehend hickspeak. When Warden thrust a document into his hand and asked him to “read the first sayntance” of one of Gary Reback’s memos aloud to the courtroom, Barksdale replied, “The first sentence?” “Just read the sayntance, Mister Barksdayul,” the lawyer boomed back at him, rudely. Everyone with the possible exception of Barksdale viewed the fat hick’s rudeness as a ploy to get under Barksdale’s skin.
For nearly five full days the two men argued violently about subjects neither fully understood. Neither had a software engineers’s grasp of Internet browser technology. But Barksdale was nothing if not shrewd. He soon figured out that he knew more than Warden, or for that matter any of the lawyers, and used his superior understanding to embarrass his tormentors—subtly, of course. For instance, Warden asked Barksdale whether before the critical meeting between Netscape and Microsoft on June 21, 1995, he knew that Microsoft intended to include “all the functions of a browser” in its operating system—thus implying that the meeting could hardly have been the shock Barksdale now claimed it was. “A browser or the functions of a browser?” asked Barksdale, cleverly. This threw Warden, who stammered a bit. For five days he wore the expression of a C student who has been asked to explain to the whole class the difference between an algorithm and a logarithm. He was a triple agent in his own soul: a big-city lawyer who thought he had adopted strategically the surface mannerisms of a stupid hick but who was, for the purposes of this trial, a stupid hick.
“A browser is a separate, stand-alone product,” said Barksdale, pressing his advantage. “It’s a thing. It walks like a duck, quacks like a duck, it’s a duck!”
“It is?” hollered Warden, recovering. “Show me one! Whey’s the duck?” “One” was two syllables. Wuh-uhn.
“Right here!” shouted Barksdale, pointing over the sleek dark wooden bar of the witness box to one of the U.S. District Court’s computers, which looked nothing like a duck.
End of discussion. Having proved nothing, Warden then proceeded to establish, beyond a shadow of a doubt, that the people who worked for Netscape (“Netscayup”) had funny names. He proved his point by pronouncing them. A Netscape salesman named Ram Shriram (pronounced “Rom Shree-Rom”) he called Ram Sha-ram (rhymes with Sha-ZAM!). He referred to Mitchell Baker, a Netscape lawyer, as Mister Mitchell Baker. “That’s Missus Mitchell Baker,” said Barksdale. “Some of these nayums,” said Warden, “you just can’t tell. Could go either way.” By the time he was confron
ted with a Netscape employee named Alan Louie, the Microsoft lawyer knew better than to assume anything about these people from Northern California. “It is Mister Alan Loueeee?” he boomed. Barksdale nodded. “And I assume it is Lou-eeeee?” His tone said, “These Netscayup people got the girls with the boys names and the boys with the girls names. What the hayl kind a ennaprise you runnin’ anyway?”
Soon came the time for the Microsoft lawyer to question the letter Jim Clark had told Gary Reback to write to the Justice Department, immediately after the critical meeting between Microsoft and Netscape on June 21, 1995. Brandishing the letter, Warden asked Barksdale to concede that it omitted any mention of Microsoft’s alleged offer to divide the market for browsers. (The idea was that if Microsoft had indeed made such a blatantly illegal suggestion, Netscape’s lawyer would have at least mentioned it in his complaint to the DOJ.)
“Mr. Barksday-ul,” said Warden, “does the letter say anything about a proposal to divide markets?”
Barksdale replied that he hadn’t read Reback’s letter, which was now before him. Warden asked him to look it over. “You want me to read this?” asked Barksdale, incredulously, holding up the letter like a turd.
“Yes,” said Warden.
Once earlier Barksdale had waved his hand over some documents placed before him and declared, “These things are totally useless.” Now he snorted, “A four-page single-spaced letter?”
“I was able to read through it fairly quickly,” said Warden, plaintively.
“Well, you’re a much smarter man than I am,” said Barksdale, his voice dripping with condescension. The journalists in the bleacher seats exploded in laughter. Rich businessmen were honestly incapable of treating lawyers with anything but disdain.
“No,” boomed Warden, in a desperate bid to recover whatever advantage there was in being the only fat hick in the room. “You’re a much smarter man, Mr. Barksday-ul. That’s why you’re worth wu-uhn hunnerd million dollars, and the bank owns my howwwwwse.”
At this point the judge peered down from the bench and said, sharply, “Are you through, Mr. Warden?”
He was. Barksdale wasn’t. He’d been asked to recall the late stages of negotiations between Microsoft and Netscape, after Netscape had concluded that Microsoft never would divulge the critical code Netscape needed to make its browser compatible with Windows 95. He’d be damned if he wasn’t going to recall it. He gazed out over the courtroom. It was, of course, filled with lawyers. “By now it had gotten down to the lawyers,” Barksdale sighed, “and when that happens, you might as well forget about it.”
Again, the journalists exploded in laughter. There it was again, plain as day. Oh, the disdain! Oh, the contempt! And if the disdain could be expressed just like that to some of the most highly paid lawyers in the land, what did it say about all those other lawyers rowed up along the conference tables in the well of the courtroom, who spent all their day tapping keyboards and whispering secrets. What about all those bright young things who had sacrificed the best years of their lives to the Harvard Law School and who now lived for the merest word of approval from the fat hick? Who did Jim Barksdale, Serious American Executive, think these whisperers of secrets and tappers of laptops were? Serfs!
As the disorder in the court subsided, Barksdale smiled and leaned over to the judge, like a man about to tell a joke in a duck blind. “I mean that in an appropriate way, Your Honor.” His Honor blushed. What could he say? He was a lawyer. And this man was worth $100 million.
The only man who could peer down upon Barksdale with the same Olympian disdain as Barksdale peered down upon lawyers wasn’t present to do so. But he made a dramatic appearance. Clark didn’t come in person; he spent the early days of the Microsoft trial rushing to ready his boat to cross the Atlantic Ocean. But his image appeared on the giant screen in the courtroom, and he answered a few questions in a tone that suggested that people who worked as lawyers for Microsoft could not begin to understand the new new thing. “You obviously aren’t a businessman,” he said sarcastically at one point. Bidnessman. The law changes everything it touches, however, and it now did so in a way for which Clark was ill prepared, by probing his past. The American legal system opened up the cardboard boxes beside the old tuba in Clark’s guest bedroom and went digging for damning evidence.
Up until then Microsoft’s defense was not much more than a gloriously indiscriminate, flailing attack on Netscape. It consisted of four arguments. (1) Microsoft never bullied Netscape, especially not in the critical June 21, 1995, meeting between the two companies that had inspired Jim Clark to call the Department of Justice in the first place. (2) Even if Microsoft did bully Netscape in that meeting, the meeting was “a setup” to frame Microsoft for an antitrust suit. (3) Microsoft could not possibly be held responsible for Netscape’s failure, because Netscape hadn’t failed; it was still a market leader and a powerful innovator in Internet browser technology. (4) Netscape had failed badly, but through its own ineptitude. As evidence of this last point Microsoft’s lawyer introduced a new book by two Harvard Business School professors, called Competing on Internet Time. The professors argued that Netscape courted disaster from the start, by taunting Microsoft. “Mooning the Giant” was what the business school professors had called this tactic. Clark had mooned the giant, first by referring to Microsoft in public as “the Death Star” and then by permitting his twenty-two-year-old associate, Marc Andreessen, to brag to journalists that Netscape would put Microsoft out of business.
Barksdale adopted a self-deprecating tone. Whenever the Microsoft lawyers set out to argue how successful Netscape remained, Jim Barksdale tried to maintain pretty much the opposite. And so the spectators witnessed the odd spectacle of two companies, both keenly aware that they were in a line of work where the perception of success led to success and the perception of failure to failure, bad-mouthing themselves. The rhetoric of the courtroom was very nearly the opposite of the rhetoric of the business world. The trick for Microsoft was to persuade the judge that it didn’t have a monopoly without also persuading the stock market. The trick for Netscape was to avoid seeming pathetic.
And then Jim Clark entered the courtroom. A man who cared more about his past would have covered his tracks. Some part of his mind would have been devoted to viewing his actions as they would be viewed by history. But that wasn’t the way he was built. Clark was inventing his life as he went along. Pushing forward in this manner, he left a mess behind him for others to clean up. The mess was often inspired, but it was still a mess. And out of the mess the lawyers for Microsoft plucked a single e-mail. It had been sent by Clark to the Microsoft executives Dan Rosen and Brad Silverberg on December 29, 1994, at three in the morning. “I’d like to convince you to reconsider,” it began. It ran on for a full page, but the gist of it could be boiled down to a single passage:
We want to make this company a success, but not at Microsoft’s expense. We’d like to work with you. Working together could be in your self-interest as well as ours. Depending on your interest level, you might take an equity position in Netscape, with the ability to expand that position later…. Given the worry that exists regarding Microsoft’s dominance of practically everything, we might be a good indirect way to get into the Internet business.
He concluded, “No one in my organization knows about this message.”
Projected onto the big screen, Clark’s e-mail had different effects on different people. Judge Thomas Penfield Jackson wore what was becoming his usual expression of profound bemusement. An e-mail sent at three in the morning was just further evidence that these technology billionaires were a bit…touched. The judge had his own idea of work, which was that it ended punctually at five in the afternoon. You wouldn’t be catching him hunched over any little rectangular screen at three in the morning, trying to figure out how to make a billion dollars. His court was in session for two hours and fifteen minutes each morning and the same each afternoon. Four and a half hours a day, four days a week. Fridays were
holidays. So were lots of other days, chosen seemingly at random by the judge. The very idea of someone’s writing an e-mail at three in the morning on December 29, which was, after all, still part of Christmas vacation, struck him as preposterous.
The lawyers for the Department of Justice were glum. They were doing their best to persuade the judge that Microsoft had muscled Netscape around. If Clark had invited Microsoft into his business back in December 1994, how could the DOJ now claim that Microsoft had forced its charms upon Netscape in June 1995? The DOJ’s lawyers were still angry at Clark. He hadn’t told them about his overture to Microsoft; the department’s lawyers had learned about it only when the e-mail was produced by Microsoft in pretrial evidence.
Finally, there was Barksdale’s reaction to Clark’s astonishing e-mail, which amounted to an offer to serve as a kind of Trojan horse for Microsoft’s invasion of the Internet. Clark had talked Barksdale into leaving his job with AT&T. Barksdale had agreed to run Netscape on the condition that he have complete control. Clark and John Doerr had both agreed not to meddle. And now this! Clark’s e-mail inviting Microsoft to sit in on his business was written five days before Barksdale reported for work. And the only reason Barksdale knew about it now was that the Department of Justice lawyers had warned him it was coming before he took the stand.
Forewarned, Barksdale sought to maintain that Clark’s e-mail had been written in “a moment of weakness.” The Microsoft lawyer, of course, hoped to persuade the judge that the e-mail was not the act of a man fighting his demons at three in the morning but a deliberate corporate policy. He wanted to force Barksdale to concede that he and Clark were part of a unified team and that, therefore, Barksdale must have known of the e-mail. Once he had Barksdale under oath, he offered him a terrible choice. Barksdale could agree that he, like Jim Clark, had been happy to invite Microsoft into Netscape’s business, and thus torpedo the government’s entire case. Or he could seem like a fool who was not privy to the intimate affairs of his own company.
The New New Thing: A Silicon Valley Story Page 22