Lacovara Bores, Annoys but Does Not Dissuade Fisher

Computergram International, June 4, 1999

By Rachel Chalmers in Washington

The same tactics that failed against government expert witness Franklin Fisher yesterday failed again today (Thursday June 3, 1999) as the antitrust trial against Microsoft Corp dragged on. Fisher accuses the software giant of engaging in anti-competitive conduct to defend its monopoly in the PC operating systems market. Rather than addressing his central argument, Microsoft attorney Michael Lacovara has tried to undermine Fisher's credibility as a witness by demonstrating in exhaustive detail that there are facets of the case Fisher has not studied and facts about the industry that he does not know.

Lacovara started his second day of cross-examining the witness by asking a fairly subtle question about pricing. Fisher had suggested that if Microsoft seriously believed its monopoly in the PC operating systems market were threatened, the company would raise prices "to earn while the earning is good." Lacovara asked whether a rational firm in that situation might not choose to spend money on R&D instead. "Monopolists have incentives to innovate," observed Fisher dryly. "So do non-monopolists," Lacovara retorted. "Yes," Fisher said, "but the incentives are different."

There was much, much more, and it followed the same pattern. Lacovara would introduce some topic: the value of Netscape as a "connected client"; whether Microsoft's practice of giving IE away could be justified by extra revenues earned from including it in Windows 98; the various distribution channels for Netscape Navigator and the effectiveness of each. Fisher would admit to certain gaps in his knowledge. Lacovara would pounce, only to find that Fisher dismissed these topics are essentially peripheral to the main tenets of his argument.

For example, Lacovara tried to get Fisher to concede that Windows 98 confers benefits on the user which cannot be obtained through the combination of Windows 95 and IE4. "I do not know of anything that could not have been easily produced some other way," Fisher said loftily. "Now, you have no basis for saying that, do you?" said Lacovara. "You have said many times that you are not a software engineer." "Well, I didn't invent arithmetic either," said Fisher, "but I know how to use it."