Top trial lawyer joins U.S. in Microsoft case

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The Microsoft Trial: A special section
WASHINGTON — Philip Beck awoke, sleep-deprived and disoriented, and took a few seconds to remember what he was doing in a Radisson Hotel in Tallahassee, Fla.

"Oh, yeah," the Chicago trial lawyer recalls realizing, "I'm trying a case over who will be the president of the United States. I'd better get up."

By the time he had finished his assault of two of Vice President Al Gore's expert witnesses, C-SPAN and CNN viewers, too, were clear on why Beck had come to Florida. Having failed to push George W. Bush over the top at the ballot box in Illinois, Beck had helped Bush score a decisive national victory in the courtroom.

Bush appointees in the Justice Department had that in mind earlier this month when they named the otherwise low-profile Beck to replace his Florida nemesis, Gore lawyer David Boies, as the lead trial lawyer in the government's landmark antitrust case, United States vs. Microsoft.

Whether Beck will get the chance to take on the Redmond company is uncertain. Microsoft executives have already met with Justice officials to talk about potential settlement discussions, talks to which the Bush administration seems more inclined than its Democratic predecessors were.

If the two sides do wind up in court, the company will again find itself facing one of the nation's most formidable trial lawyers.

"If I was a Bill Gates or a Microsoft, I'd pay close attention," said Kimball Brace, a Gore election consultant who faced Beck.

Beck was widely praised for the effectiveness, if not the manner, of his Florida performance. Time magazine called him "sneering, sardonic and sometimes downright vicious." The New York Times said he "somehow makes his every mention of the `Gore legal team' sound as if he were referring to the Washington, D.C., chapter of the Hell's Angels." Describing a particularly intimidating player on ABC's "Monday Night Football," commentator Dennis Miller said, "This guy's a killer, just like Phil Beck."

In the go-for-the-jugular parlance of trial lawyers, those are compliments.

"That's kind of my approach," said Beck, who reserves his most combative questions for paid witnesses. "You can be aggressive in cross-examining experts. If you're cross-examining some person who has information on the case and has no particular ax to grind, you have to be more deferential."

Court watchers often compare Beck's style to that of Boies. Both lacerate opposing witnesses in soft-spoken tones and distill complex concepts — from voting-machine technology to computer-programming codes — into simple terms, using analogies and visual aids.

Both also agreed to work on the case for about $50 an hour, not including nights and weekends — about one-tenth of Beck's usual rate when paid by the hour.

"The American taxpayer is getting a hell of a deal," said Arthur Miller, a litigation specialist at Harvard University School of Law. "When you look at David Boies and Phil Beck, you are looking at two of the greatest lawyers in the United States. Neither one of these guys are fire and brimstone. They don't invoke thunder and lightning and the Lord. They just cut away and cut away — and kill you with a thousand paper cuts."

Beck attributes the similarity in style to a shared background.

"I hesitate to compare myself with Boies, since he's widely perceived as the best trial lawyer in America," Beck said. "But we both have Midwestern backgrounds and grew up in middle- or lower-middle-class surroundings, with normal people rather than in rarefied circumstances."

Both are reputed for their prowess in wearing down witnesses. In defending IBM against a government antitrust case, Boies once took 38 days to cross-examine a government economist.

In Florida, Beck took mere hours to chip away at Brace, the Gore consultant, over his knowledge of voting-machine mechanics. Brace claimed that hardened rubber strips kept chads from falling to reveal a vote for Gore. Beck, who had spent two days with a polymer expert learning how rubber ages, said, "Your opinion as a political-science major is that rubber gets harder?"

In "Overtime! The Election 2000 Thriller," a book due out Aug. 13, two Gore legal advisers chronicle the day as both a public-relations and courtroom disaster.

"Beck shredded him. It was embarrassing," said the book's editor, University of Virginia government-affairs professor Larry Sabato. "That was a low moment for the Gore recount team. Everyone in the Gore team knew that was simply a disaster."

Despite similar backgrounds, Boies and Beck contrast starkly on key points.

Both were born in Illinois, but while Boies was raised mostly in Southern California, Beck remained close to home, except to attend the University of Wisconsin and Boston University School of Law. In Florida, they were two true believers in rival faiths.

"I voted for Bush, so it was, I think, easier for me to go down there and support the person that I was hoping would ultimately be certified as president," Beck said. "If the Gore people had asked me, I probably would not have."

Legal observers expect a dramatic contrast in styles between Beck and the man who has led Microsoft's court arguments, John Warden of the Washington, D.C., firm Sullivan & Cromwell. If Beck is a bland suit, Warden is a courtroom dandy in colorful suspenders and vests.

Although Warden was born just 300 miles from Chicago in Evansville, Ind., he has lived on the East Coast since the 1960s. He speaks in a gruff, booming voice that betrays none of his Midwestern roots.

Beck, 50, was raised in Homewood, a working-class suburb south of Chicago, and now lives in the North Shore suburb of Winnetka with his wife, Janice, and the youngest of his three sons. The 44 miles that divide the two towns span a wide socioeconomic spectrum.

His parents founded Beck's Bookstores, a chain of five shops selling academic books. The business kept the family in Chicago Cubs tickets, if not always in Michigan Avenue style. Their devotion to the baseball team borders on the fanatical: Beck's father has attended Cubs games for more than 35 years and owns both a condominium overlooking Wrigley Field and a Mesa, Ariz., vacation home a half-block from the team's spring-training camp.

Since he started buying his own season tickets after law school, Beck and his father have shared a block of eight seats. In 1984, when the Cubs won their division for the first time since 1945, the three major television networks each offered Beck and his family as examples of long-suffering fans.

The Chicago offices of Beck's firm, Bartlit Beck Herman Palenchar & Scott, occupies the third and fourth floors of Courthouse Place, a landmark in the Loop. The building is off the beaten path of the city's larger law firms, ringed by small advertising agencies and dot-coms. Its arched stone entrance, visible in the opening shots of "Hill Street Blues," features the carved feminine forms of truth and justice.

Inside, where Beck warms up for trial in a private oak-paneled courtroom, he treads the ground where the Chicago White Sox were acquitted of throwing the 1919 World Series and where Clarence Darrow's eloquent critique of the death penalty spared the lives of convicted murderers Nathan Leopold and Richard Loeb in 1924. Four years later, Chicago reporters Ben Hecht and Charles MacArthur emerged as playwrights from a fourth-floor pressroom where they wrote "The Front Page."

Within the historic trappings, the 45-member firm practices a modern brand of law that rejects a litany of time-honored legal traditions. Like the venerable billable hour. Bartlit Beck bills by the job, earning bonuses for success.

The approach encourages efficiency, including reliance on time-saving technology. Unlike Boies, who began the Microsoft case having never surfed the Internet or checked his own e-mail, Beck is a technophile. Arriving at courtrooms where many lawyers remain content to work with a yellow legal pads, Beck totes a laptop, mobile phone, laser printer and, occasionally, a bar-code scanner to pull up exhibits.

As Beck works against the world's largest software maker, his laptop is loaded with Microsoft's Windows operating system, Word, PowerPoint and Access database software — a little like driving a Chevy to a job at the Ford plant.

"We use all the Microsoft programs," Beck said unapologetically. "I suppose it's interesting to use Microsoft products in the case against it. What other operating system is there?"

Beck's windowed office overlooks the late Cubs announcer Harry Caray's restaurant, the twin cylindrical Marina Towers and a bridge that spans the Chicago River. But unlike the capacious suites reserved for the partners of mammoth firms, it is modest in size and décor.

Its large double doors open into the building's unique feature, a war room called The Forum, where the firm plans major trials. Beneath the room's 17-foot ceiling hangs a basketball hoop, with a regulation key and 3-point line marked on the carpet. The walls are covered by white marker boards on which Beck maps out his theories of each case. The room includes a 14-foot projection screen on which attorneys can watch mock trials in the neighboring courtroom.

The trial record of the firm's six founding partners was 85-8-1 when last tallied in 1999, a record that includes some difficult cases in hostile territory. Beck won a jury trial in Philadelphia for NL Industries, accused of contaminating a residential community with lead. He won jury trials for Alpha Therapeutic after hemophiliacs received blood products tainted with the AIDS virus. A judge reversed a third jury's finding against Alpha. Beck's defense: Some perils can't be foreseen.

Despite Beck's aggressive courtroom style, he gets uncomfortable when hearing anyone tout his victories to clients, said his partner and mentor, Fred Bartlit.

Unless Microsoft reaches an out-of-court settlement with the government, Beck will press the government's case that Microsoft violated not just one category of antitrust law but two, and to seek a new remedy. An appeals panel last month found Microsoft guilty of illegally maintaining its monopoly over the Windows operating system but threw out a lower court's order to break Microsoft in two.

If Microsoft fails to persuade the appeals court to reconsider its opinion, the lower court must then decide whether Microsoft illegally linked two separate products, and then decide what to do about it.

In a 1999 Seattle Times op-ed piece, Morgan Stanley general counsel Donald Kempf called the Microsoft case the Justice Department's "most misguided antitrust enforcement effort" in years. Unfortunately now, said Kempf, who has worked with Beck, the government has improved its chances of prevailing.

"Microsoft just found itself a worthy adversary," he said.