Slashdot Mirror
Microsoft Proposes Lengthy Appeal Period
ackthpt writes: "Yahoo News is carrying this short article indicating Microsoft's preference for a five month appeal process."
← Back to Stories (view on slashdot.org)
← Back to Stories (view on slashdot.org)
I hardly think five months will be enough time to make M$ appealing...
________________
________________
Private Essayist
Check the US Constitution. Especially that bit where it says that no fact, once determined by a court, can ever be judged by a second court. This is not some bit of legal procedure: this is a Constitutional safeguard against judge-shopping.
The standard is not clear error; it is egregious error, error so profound that it violated the Constitutional guarantee of a fair trial. If you have a reference where a court has merely overturned "clear error" in a Finding, I invite you to post it here.
I hope so! It would be cool to see live chase of Bill Gates in a white Bronco driving around for hours threatening suicide. Then, after the trial is over he could devote himself to finding "the real monopolist". If
That Microsoft be tried by Combat. Put Bill Gates in one corner, Al Gore in the other and let them fight to the death. You know who wins in that fight? HUMANITY!
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
One way or another this was going to stretch out for years, given the realities of the legal system. As the last trial proved, the technical complexities are beyond most court's ability to fully comprehend, forcing them to rely on relatively misleading evidence such as out-of-context emails (on both sides), slanted expert testimony, and the impression of honest or lack thereof the judge gets from the testimony of high-tech execs.
I'm all for a breathing period to pull together reasonable, comprehendible cases if it will lead to an informed decision by the court. Regardless of which way the decision goes, the last thing we want is another vulnerable-to-appeal misfire like Jackson's.
How many new releases of Windows M$ can come out with in that 5-month period? WindowsME, Windows 2k, Windows blah blah blah... honestly, it's getting a tad bit ridiculous. It's starting to look like the titles of all the Street-fighter games (you know what I mean.. street-fighter alpha-beta-turbo-gamma 2). Done bitching now, thanks for wasting your time to listen :-)
Essentially, Microsoft is asking for twice the amount of time that is normally allowed to file a written brief. When you look at it from the perspective that it's a particularly complex case, giving the parties 60 days to file an appellate brief instead of the typical 30 days is not out of the ordinary.
Of course, if the government responds quickly to the Microsoft brief, then the case can be heard sooner rather than later.
Under the circumstances, I do not feel that the government will argue against this. Microsoft's attorneys have been working on a brief for a very long time, and the government won't get to see it until it has been filed with the court. While arguably, Microsoft does not need 60 days, the government will want 60 days to respond.
Also, the idea that Microsoft is delaying the case so that George Bush can get elected and drop the whole matter isn't really critical here. Under ordinary civil procedure rules, the case would not be heard before the appellate court until after the election anyway, and any decision, either for or against Microsoft, is going to be appealed to the U.S. Supreme Court.
In the final analysis - I just do not see that this story is indicative of a Secret Microsoft Plot to Rule the World.
Now Microsoft Bob on the other hand - that was just plain evil.
144l. ph34r my 133t l3g4l 5k1lz!
Keep in mind that preparations increase to the square of the level of the court. Microsoft blew it big-time at the trial level; they have a massive undertaking ahead of them. The Findings of Fact are especially devastating, especially because barring the most extreme circumstances, Findings of Fact cannot be overturned.
(There's a colorful bit of caselaw about overturning FoFs: according to caselaw, the sheer magnitude of the error must offend the senses like a three-day-old fish in order for it to be overturned.)
Unfortunately for Microsoft, Judge Jackson gave the government almost everything they could have asked for in his Findings of Fact. He also detailed, at length, the legal reasoning behind each of his findings. Even if the Appellate Court disagrees with Jackson's Findings of Fact (which is very likely), the Appellate Court will not be able to overturn them unless Jackson's FoF fails the three-day-old fish test.
Microsoft's number one job right now is to figure out how to make the FoF fail the fish test. This is going to be an uphill battle for them, and probably doomed to failure.
Then the Findings of Law (FoL) has to be scrutinized. This is where the Appellate Court has the most opportunity to hand it back to Jackson. The Findings of Law are where Jackson says "this is what the law reads, and this is what it means"; the Appellate Court can say "well, Thomas, we like you a lot and all, but you need to talk to your dealer about the purity of your rock." That's going to be Microsoft's second target. Unfortunately, Jackson's FoL was very well researched; this, too, is going to be an uphill battle.
If I were Microsoft, I'd be begging for a full year for the appeal process.
Next, compare this to other large appeals, like the Telecommunications Reform Act of 1996. That one bounced around the Eighth Circuit Court of Appeals for the better part of a year. (The TRA involved just about every long-distance carrier in the country, and a lot of the local carriers. While it didn't have the cachet of the Microsoft case, it had a comparable amount of legal wrangling going on in it.) While the TRA appeal lasted a lot longer than people would have liked, it does show that five months for an appeal of a case of this size isn't entirely unreasonable.
The wheels of law move excruciatingly slow; but, on the plus side, they grind things up excruciatingly well.
Finally, keep in mind that this is what Microsoft is requesting. It's not what the government is going to request, nor is it going to be what the appellate court finally grants. The appellate court may well decide to grant more than five months' time; remember, the judges have dozens of other cases to hear as well, and their schedule may be so overfull as to require US v Microsoft to be pushed back.