The Microsoft anti-trust trial resumed recently, after a lengthy recess in which the trial judge attended to other pressing matters in his court. Microsoft, badly wounded, as you may recall, in the earlier round of the trial, has come out swaggering. To hear Microsoft tell it, they've embarked on a new strategy. There doesn't seem to be anything new about it, but given that several months have elapsed--an eternity in the short American attention span--we can all safely pretend so.

Microsoft's trial strategy Version 2.0 is to attack the credibility of the government's witnesses. Like the Internet, Microsoft seemingly woke to this avenue late. It has been standard trial procedure since way back to attack your opponent's credibility in court. If Microsoft's attorneys were really as shocked and dismayed by this tactic as they claim, Redmond's software barons are not getting the legal advice they are paying for. Of course, we don't really believe Microsoft's expensive lawyers are so innocent to the ways of the world. They are simply trying to conduct the same out-of-court theatrics that they say the government attorneys are so adept at. Yes, they complain that the government having exposed Bill Gates for the arrogant, weasly, huckster he really is, was dirty pool. But that's just how lawyers talk. It's actually their job to present absurd arguments no reasonably informed person would believe. They call it a vigorous defense.

With the credibility of Microsoft's own witnesses thoroughly shredded, their defense strategy now aims at showing that, while Microsoft engaged in systematic deception, it was simply industry-standard deception, and thus of no concern to the Federal Judiciary.

There is a certain logic in this approach. Deception is a large part of what makes the economy, politics, and the legal system work the way they do. Microsoft's behavior during trial does fall within the bounds of industry standards. Witnesses generally align with one side or the other, and they try very hard to say what will help their side and not say what will hurt it. This is standard, precisely because it is normal human behavior. We all do it, every day.

There is a potential flaw in Microsoft's revised strategy. While prevarication is normal human behavior, the court system was invented to mitigate the damage from errant human behaviors. If everyone were perfect angels, we wouldn't have courts--or governments, probably. Just because everybody lies when given the chance doesn't make lying a valid legal defense. Microsoft has to convince the judge that the government's lies speak directly to the charges, while Microsoft's own lies are irrelevant. As Microsoft so far has been shown to consistently mis-speak the truth with almost computer-like efficiency, this could be difficult.

Microsoft did show documents recently that contradicted the government's witnesses from Netscape. On the witness stand, Netscape's president, Jim Barksdale, said that Microsoft's unfair practices had limited Netscape's Navigator web browser to 10% of the world's computers. Microsoft unveiled documents subpoenaed from Goldman Sachs that show Netscape stating at the time that their browser was installed on 24% of personal computers.

There is one interesting element in Microsoft's new strategy. They have retreated from even attempting to defend Bill Gates' credibility. They have even accepted his tweaking of the facts as part of their defense. Microsoft has been arguing that the computer market, where they have a Godzilla-like presence, is itself threatened. A whole new universe of fancy consumer devices will soon make the Windows PC obsolete. Whether Microsoft holds an illegal monopoly is irrelevant. Market forces will soon cause the company to rejoin the world of mere mortals, without government intrusion. Case closed.

This is where Microsoft's defense displayed its new strategy of attenuating Mr. Gates' pronouncements from any relation to credibility. In an essay in Newsweek magazine, Bill said that reports of the PC's extinction are overblown. When confronted with the contradiction, Microsoft's witness responded: "Isn't that exactly what you'd expect Mr. Gates to say publicly, given what business he's in?"