United States v. Microsoft: David Boies
Beginning bits from David Boies:
Every trial is a search for truth and morality play.
When you have an antitrust trial, they’re interesting to mesh. The search for truth in an anti-trust case is ambiguous, complex, data driver. Morality play has to go on at a very high level. If you were designing a system, you probably would not design something intended on morality play. The way we do it is peculiar. What we’re stuck with is a method of dealing with these kinds of cases, in a forum that inevitably draws you to the dramatically – to making morality play. And teach the judge from your persepective.
David says that luckily in antitrust case you’re in front of a dudge and not a jury. If you give the judge all the tools of decision make (briefs, oral arguments). So most antitrust cases are private, tried in juries. So it becomes even more emphasis on the morality play and less on the data/science.
In government antitrust cases, at least you have a judge. Federal judges are designed to be general purpose jurists. Whenever we have tried to get judges that are particularly expert, what you find are troubling developments. You find the judge is losing the broader perspective.
In an antitrust case, you try to simplify the issues. When you have something particularly diffiucult and complex. The trial comes down to the issue of credibility. Because, if, someone is talking about how to make a sandwich, and the judge can bring to that decision a certain amount of knowledge, he doens’ have to exclusively rely on (?). For trials, each side tend to find people that agree with them. And because each side has this ability, and pick witnesses that agree with them, you almost always get two sets of witnesses, who say to the judge flatly inconsisten things. The judge chooses like most human beings — who do they believe. Part of that believe comes from admissions you get on cross examination, but a lot if it comes from who’s being candid and direct. When you have a witness that a judge concludes has a problem — and the more complicated the subject matter, the more credibility matters.
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