This may seem like a stretch, but as Conrad Murray was on trial for the death of Michael Jackson, Google was on trial in Congress for anti-competitive behavior. While the crimes are vastly different, the defense that both Murray used and Google is using is very similar. In other words while the crime seems obvious, we aren’t looking at the rules correctly. This approach was also used to a large extent by Microsoft in the 1990s in their own anti-trust trial, with disastrous results.
At the core of the problem appears to be the assumption that the governing body, the jury in Murray’s case, the court in Microsoft’s, and Congress in Google’s, is stupid. And, in fact, with respect to all three defendants, the plaintiffs – Murray in medicine, Microsoft in software, and Google in search – are far more knowledgeable. However, none of these groups is stupid either and the apparent arrogance in the approach worked against Microsoft and Murray and likely will work against Google.
Real courts aren’t like the TV shows we all watch and love; they aren’t scripted to assure the criminal gets convicted nor are they scripted to assure the innocent get acquitted. The side that wins is the one most capable of getting the deciding body to accept the artificial reality that they present and neither side is fully accurate.
Over the years I’ve covered a number of trials, been on several criminal juries, was pre-law, in law enforcement, and actually spent a great deal of time in court. Those that seemed to win the most were the best able to tell a story without making the jury think they were being talked down to. The defense that Murray’s team put on tried to get the jury to believe that Michael Jackson accidentally committed suicide, which they were never going to buy. Think of it this way – if you had a child who liked to play with guns and got shot because their parent left a loaded one on the child’s nightstand, the person that left the gun there is going to get convicted. At the end, they did try to argue that the drug didn’t cause Jackson’s death but by then it was too late.
So too, when Microsoft was being tried for anti-trust, the attempts to falsify evidence just alienated the judge and the reality was that their better, cheaper path, was to just separate the browser from the OS. Something they effectively did eventually anyway. Or they could have simply focused on showcasing why the consumer is better off with the two elements combined, limiting the downside to where they eventually ended up with the product anyway. Instead they tried to argue they weren’t a monopoly, that they couldn’t separate the two products even if they wanted to, and tried to outsmart the judge and got caught. It was one of the few times that the judge got so upset he actually exceeded his authority and had to step down. They basically treated him like he was an idiot and almost got broken up as a company.
Google’s Coming Lesson
Google is a search monopoly, arguing that they are just really successful, makes it look like they are making fun of congress in a contemptuous fashion. They point to little search engines and Microsoft, much as Microsoft pointed to little operating systems and Apple and it is pretty clear no one is buying their story. It is more like they are just burning credibility and the only thing that is working for them is they aren’t in court yet against a prosecutor who is building a more credible story but they are. Like Microsoft did before their own court appearance, setting a foundation that will come back to bite them later as all of their testimony, including the inconsistencies, are read into the record. In the end, Google’s problem, much like Murray’s and Microsoft’s, will be an inability to tell a credible story. Their version of reality just won’t be believed.
Wrapping Up: Litigation is Simple if You Are Believable
Once you get that the person that tells the more believable story wins, you can separate yourself from how you see the facts and fashion a story based on the facts that the court will see is more believable. Litigation has nothing to do with reality, it has everything to do with telling a believable story and that means you have to respect the audience. If you don’t they won’t believe you and you’ll lose and this is the mistake Murray and Microsoft made and now Google is making. I doubt it will end well.
President and Principal Analyst, Enderle Group
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