By
The Associated Press
WASHINGTON - Microsoft will try to convince an appeals court this week that the breakup of the software giant is unwarranted in a high stakes legal showdown that may focus as much on the judge who made the ruling as the legal underpinnings for it.
U.S. District Judge Thomas Penfield Jackson's comments outside the courtroom - comparing Microsoft chairman Bill Gates to Napoleon and suggesting company officials were not "grown-ups" - have injected a new wildcard into the case.
Experts say that makes the job more difficult for government lawyers who are trying to preserve their historic antitrust victory ordering the breakup of Microsoft for anticompetitive practices.
"In conscious or unconscious ways, the court of appeals will feel fewer inhibitions to second-guess Jackson's findings concerning crucial pieces of evidence," George Washington University law professor William Kovacic predicted. "Nothing good will come to the government plaintiffs from all of this."
Microsoft has "a 50 percent chance of walking completely" thanks to Jackson's post-trial statements, University of Baltimore law professor Bob Lande said. Before the comments, he gave the government a 2-to-1 edge.
"Those wonderful findings of fact all have a cloud cast on them because of Jackson's unjudicial statements," Lande said.
In interviews with reporters and authors writing books on Microsoft's legal ordeal, Jackson made scathing attacks on Gates, the company's legal team and the U.S. Court of Appeals for the District of Columbia Circuit, which was to hear the company's appeal today and tomorrow.
Jackson accused the appeals court of "making up 90 percent of the facts on their own" in an earlier Microsoft ruling, and said the judges were "supercilious" and without practical trial experience.
The appeals court set an unusual amount of time for the argument - six hours over two days, even more than the parties requested.
The extra time will be spent questioning Jackson's factual findings, in which he laid out how he thought Microsoft used anticompetitive practices and harmed consumers, the appellate judges said.
At least publicly, the Justice Department and Microsoft have both played down the significance of Jackson's words.
"The press was always hammering the Microsoft mistakes and having fun with them, and I think the judge piled on," said C. Boyden Gray, a one-time adviser to former President Bush and now a Microsoft supporter. "I don't think it will affect the outcome."
Gray blamed the suit on Microsoft's business rivals.
"It's not a proper use of the antitrust laws to have competitors who want to hurt Microsoft who want to expand their own market share to go in and generate this kind of litigation," Gray said, adding that "the notion that Microsoft retards innovation is laughable."
Generally, appeals are heard by only three judges. One former member of the court, Whitewater prosecutor Kenneth Starr, said it was unprecedented for all the judges to hear it.
Starr, who now works for ProComp, a group financed by Microsoft competitors, said the court scheduled more time because it wants to be taken more seriously and reduce the chances its findings will be overturned.
"The D.C. Circuit is viewed as the minor leagues," Starr said, noting that the government requested that the Supreme Court hear the case instead. "The D.C. Circuit has every interest in showing that it is a very capable, able and highly intelligent court."
Starr said the court will ask frequent and direct questions, so many that both lawyers may struggle to make their points clear. He offered some suggestions.
"Try to talk (as) quickly as you can in a very responsive way," he said, "and never interrupt the judge."
