Judge Colleen Kollar-Kotelly might be presiding over one of the most controversial legal battles in US history, but she's handling it with a grace and intelligence that contrasts sharply with the behavior of Judge Thomas Penfield Jackson, who oversaw the original Microsoft antitrust trial. Unlike Jackson, Kollar-Kotelly appears to understand the technical complexities of the case, and she professes to spend hours each night studying those points and the arguments made by both sides. Jackson's behavior in the first trial landed him in hot water: He openly criticized Microsoft and often appeared to be on the verge of falling sleep during the trial.
Not so with Kollar-Kotelly, who has acted decisively at every step since taking up the Microsoft case last fall and has done little to betray whether she's leaning toward either side. Kollar-Kotelly has even addressed her stylistic differences with Jackson. "I realize that the first trial was handled differently," Kollar-Kotelly said last week during the remedy hearings, after throwing out entire sections of written testimony, which she ruled as hearsay.
One of the most controversial aspects of the remedial hearings is whether the nonsettling states will be permitted to introduce new evidence to prove that Microsoft is continuing the predatory behavior that landed it in court in the first place. Microsoft's lawyers argue that such an approach would turn the hearings into another liability trial, opening up Microsoft to charges that it can't defend against because a remedial hearing isn't a trial. Kollar-Kotelly has worked to limit new evidence but has admitted that it might be necessary to determine whether Microsoft's proposed settlement was adequate. Last week, she told attorneys for the nonsettling states that she had spent a substantial amount of time considering this aspect of the hearings. "I now understand your approach \[to these hearings\]," she told the states' attorneys. "I'm not going to make any comment on whether I agree with it or not, but I understand." The biggest problem for the states, however, is that any remedy that results from these hearings can't punish Microsoft for crimes that weren't addressed in the original trial.
This week, three new witnesses for the states will appear at the hearings. Novell senior vice president Carl Ledbetter; former Intel executive Steve McGeady, who appeared in the original trial; and Palm executive Michael Mace will all testify.