Today's Lawyers Must Be Mindful of Social Media and Pretrial Publicity

Des Moines attorney Charles Kenville has a great post on the need for lawyers to be mindful of the new media exposure in their cases.  Chuck has a criminal law bent to his post but his reminder is just as true for civil cases.

I know from experience that savvy businesses are acutely aware of blogs and other social media in their trial preparation.  In particular, Microsoft did a great job a staying in contact with Des Moines patent attorney Brett Trout and I when the Microsoft-Iowa litigation was going full steam.  But the plaintiffs were not to be outdone.  We routinely received updates from the plaintiffs' public relations team as well.

The bottom line is that lawyers engaging in trial law today ignore blogs and social media at their peril.  Learn how to read RSS feeds to stay on top of pretrial publicity.  You will be glad you did.

Claims Deadline in Microsoft-Iowa Case Fast Approaching

The deadline for filing claims in the Microsoft Iowa Class Action Settlement is December 14, 2007.  If you have any questions about how to file a claim be sure to email the claims administrator at

For a recap of articles on the Microsoft Iowa case click here which includes one of my most popular blog posts entitled On the Seventh Day She Rested.

Microsoft-Iowa Class Action Settlement Hearing

It's been a long time since I have written about the Microsoft-Iowa case but the hearing for final approval of the $179.95 million settlement is this Friday, August 31.  The settlement received preliminary approval from Judge Rosenberg back in April and I anticipate the judge will grant final approval of the settlement.

Class members are entitled to receive $16 for each copy of Windows or MS-DOS they purchased; $25 for each copy of Microsoft Excel; $29 for each copy of Microsoft Office; and $10 for each copy of Microsoft Word, Works and Home Essential software. Consumers do not need proof of purchase to be reimbursed for up to $200.

Microsoft will provide one-half of the difference between $179.95 million and the unclaimed cash and vouchers to Iowa public schools in the form of vouchers that may be used by the schools to purchase a broad range of hardware products, Microsoft and non-Microsoft software, and professional development services.

One of the more interesting aspects of the settlement is that claims from consumers are trickling in very slowly.  As of August 1, 2007, the AP reported that only a little more than 55,000 Iowans have filed claims.  Class members are able to claim $200.00 without a receipt.  It is likely that most of the claims are far below $200 but even if the 55,000 Iowans claimed an average of $200 that  means the total payout for the class members is approximately $11 million at this point.  Probably not too surprising because I think most people have a hard time working up any outrage over Microsoft's actions.  

The plaintiffs lawyers, on the other hand, have requested $75 million in legal fees and expenses for the case.  Initially Microsoft objected to the amount of the fees when Conlin requested more than $75 million but it is my understanding there will be no objections because Conlin has agreed to reduce her claim to no more than $75 million.  (What would Brett Rogers say about this?)  The judge will decide how much is awarded in fees. 

For details on how to file a claim please go to  You must file your claim by December 14, 2007 or within thirty (30) days after the court grants final approval on the settlement, whichever is later.  

Iowa-Microsoft Settlement Agreement

For those Iowa-Microsoft class action case junkies you can view the settlement agreement here.

I have received several emails on how to file a claim in the case.  For details on how to file a claim be sure to go to

There is a Frequently Asked Questions section to help you with your filing. 

Iowa-Microsoft Settlement Receives Preliminary Approval

Judge Rosenberg gave preliminary approval today of a $179.95 million dollar settlement in the Iowa consumer class action against Microsoft.  Unlike other settlements across the country, Microsoft has agreed to pay cash to consumers as opposed to vouchers for future purchases of software.  As I predicted, the settlement is substantial and actually in line with a previous Minnesota settlement from a dollar standpoint.

According to reports, class members are entitled to receive $16 for each copy of Windows or MS-DOS they purchased; $25 for each copy of Microsoft Excel; $29 for each copy of Microsoft Office; and $10 for each copy of Microsoft Word, Works and Home Essential software. Consumers do not need proof of purchase to be reimbursed for up to $200.

Microsoft will provide one-half of the difference between $179.95 million and the unclaimed cash and vouchers to Iowa public schools in the form of vouchers that may be used by the schools to purchase a broad range of hardware products, Microsoft and non-Microsoft software, and professional development services.

There will likely be an uproar over the amount requested by the Plaintiffs' lawyers. Over $75 million in attorney fees and expenses!  Microsoft indicated in court today that it objects to the amount of attorney fees requested.  The judge will ultimately decide how much is awarded.

For details on how to receive your payment please go to  The hearing on final approval of the settlement is currently scheduled for August 31, 2007.

Gone for Lunch: Be Back Soon

In small retail businesses you might occasionally see a sign on the door of a business at lunch time: 

Gone for Lunch - Be Back Soon

You are unlikely to get upset when you see the sign and most people will return to the shop at a later time.  But in a jury trial things are a little different.  Believe it or not, juries apparently expect the lawyer to be present during all the phases of a trial.  (Particularly if you are watching boring video-taped depositions with lots of highly technical language that only computer geeks understand).

Anne Reed of Deliberations does a great job of breaking down one of the final events leading up to the Iowa-Microsoft trial settlement.  The fact the case settled was not surprising to me at all.  There was too much risk on both sides to let the jury make the decision.  What surprised me most was this note from a juror to the judge:

"Just wanted you to know that several of the jurors are remarking about the absence of Ms. Conlin during our videotape viewing and that [defense counsel] is here every day. They ... think Ms. Conlin is probably taking vacation on those days and we don't get vacation. And that's not fair because it's her fault that we're here."

As Anne points out in her blog post, the lesson is that a trial lawyer (especially a plaintiff's trial lawyer) must assume the jurors assume the worst.  We will never know whether the jurors would have held it against Conlin and her clients.  Of course, she could always take them to dinner to make up for it.  Oops, I guess Microsoft already beat her to it

A thank you dinner for jurors?  Now that is something unheard of in Iowa litigation.  There is no prohibition against it but the gesture just doesn't sit right with many Iowa lawyers.  I don't think jurors will actually decide cases based upon who might provide the better meal as one lawyer suggested in the Register article.  And lawyers often do speak with jurors after a case to learn about what the jury thought was important and how the jury perceived the lawyers' presentation or certain evidence.  As one Iowa lawyer told me, "I actually think it sounds kind of nice."  Of course, she was one of those touchy-feely defense lawyer types.

Forbes Includes Rush on Business in Article on Microsoft Settlement opinion writer Daniel Lyons sure doesn't think much of the settlement between the Iowa Plaintiffs and Microsoft in an article in which he links to Rush on Business.  His quote:

"I'm sorry, but I can't work up any outrage over having to pay $100 for the student edition of Office.  And though I'm not a fan of Windows, I've managed to discover an alternative.  It's called an Apple Macintosh.  You can buy them online or in stores."

It seems as though most business people tend to hold this view but I am confident the settlement reached will be substantial - albeit less than the $330 million plaintiffs were requesting.  So, who won you ask?  Perhaps Iowa schools, as Microsoft will donate half of any unclaimed settlements to the Iowa Department of Education for use by public schools.  In the Minnesota case, more than $100 million was unclaimed out of a $175 million settlement and the schools received more than $50 million.

Did Iowa consumers get a victory?  I'll leave that up to you but most people I know aren't getting warm fuzzies over this one.      

Update:  A somewhatmore flattering post about Roxanne appeared in the Wall Street Journal Law Blog yesterday.  She was the Lawyer of the Day.

Iowa Microsoft Case Settles

The Iowa consumer class action case against Microsoft has settled.  Check out Des Moines patent lawyer Brett Trout's blog post for details.  I'll post more on the settlement at a later date.  Details of the settlement are confidential and will be announced this spring after court approval.

I'll bet there are some happy jurors on this Valentine's Day.

Microsoft Renews Attacks Against Conlin

Microsoft has renewed its attacks against Roxanne Conlin in the Iowa consumer class action case.  This time Microsoft wants the right to question the named plaintiffs about their connections to Conlin before the lawsuit.  Apparently Microsoft believes Conlin recruited these plaintiffs to file the lawsuit.  According to the Des Moines Register, Conlin acknowledges she was friends with some of the plaintiffs before the lawsuit began.

Judge Rosenberg had previously ruled that Microsoft could not ask the individual plaintiffs about their connections to Conlin.  Microsoft now claims Conlin and her co-counsel opened the door when they told the jury the plaintiffs were "just regular people".  A ruling on this issue is expected soon.

Earlier in the case Microsoft attempted to disqualify Conlin alleging she had engaged in misconduct while obtaining certain documents.  Judge Rosenberg said there was no misconduct by Conlin and allowed her to stay in the case.

Recruitment by plaintiffs' counsel would be inappropriate and could raise questions about whether the class is properly certified.  On the other hand, there is nothing that prevents a lawyer from representing a friend.  Many lawyers represent friends or acquaintances.  But rarely do cases involve $300 million in damages.  The stakes are high and Microsoft is pulling out all the stops.   

UPDATE:  Judge Rosenberg ruled in favor of Conlin and the plaintiffs.  Microsoft is not allowed to question the named plaintiffs about their connections to Conlin before this lawsuit.  That's strike two in misconduct allegations against Conlin.


Iowa Microsoft Public Records On Web

The Plaintiffs have now set up a Web site to post the public records in the Iowa consumer class action against Microsoft.  Just go to  The site currently has transcripts available.  Exhibits and further information will be available later this week.  A permanent Web site is expected to be set up during the week of January 21st.  Judge Rosenberg has ruled that a document may be posted three days after it is admitted into evidence.

Iowa Microsoft Trial Resumes

The Iowa consumer class action against Microsoft resumed this week with testimony from the first live witness in the trial, Ronald Alepin.  Alepin is a computer consultant and a technology advisor with MOFO in San Francisco.  Groklaw has some interesting information about Alepin and his past dealings with Microsoft.

Alepin has been called to describe the tactics allegedly used by Microsoft to thwart and crush competitors.  A potentially damaging part of Alepin's testimony is his accusation that Microsoft's "innovations" are really just Microsoft's attempts to copy others' programs and catch up with other developers. 

Judge Scott Rosenberg did limit Alepin's testimony in some regard.  Alepin could not offer opinions on whether Microsoft's conduct was anti-competitive, nor could he offer opinions on other legal matters involving antitrust cases against Microsoft.  Alepin also could not testify on "what would have been" had Microsoft acted differently.

Iowa Microsoft Case Adjourns for Holidays

The Des Moines Register reported that the Microsoft trial recessed for the holidays on Thursday afternoon.  So far jurors have seen ten hours of the video taped deposition of Bill Gates and two hours of tape from a Microsoft competitor. 

The first live witness is expected to testify next week when an industry expert on liability issues is expected to take the stand for the plaintiffs.  I recently had the occasion to talk with Microsoft's associate general counsel, Rich Wallis.  He thought jurors will pay close attention to live witnesses because so much of the case is being presented through video tape.

I am sure the lawyers, jurors and Judge Rosenberg could use the break.  Wallis told me the lawyers have been working about 15 hours per day during the trial.  Now that is what I call a full day.

Microsoft Iowa Case: Evidence Begins

The opening statements have ended in the Iowa consumer class action against Microsoft.  The Plaintiffs' side of the evidence began on Friday with the Plaintiffs playing a video taped deposition of Bill Gates from 1998.  The deposition was taken during the government case against Microsoft back in the 90s. 

Sources have said Gates was "evasive" and "unresponsive" during this deposition.  It is widely believed the deposition is not exactly the Microsoft CEO's finest hours

It is expected that Gates will testify live next year during the defense portion of the case.

On the Seventh Day She Rested: Microsoft Begins Opening in Iowa Case

The Plaintiffs, represented by Roxanne Conlin, finally ended the longest opening statement in Iowa trial history (I am joking but I believe it to be true) in the consumer class action case against Microsoft.  Microsoft's lead trial attorney, David Tulchin of Sullivan & Cromwell said he felt like he had waited a long time to give his opening statement and he "probably wasn't waiting all that patiently at times."

Tulchin said the real issues are not complicated. 

"This case is about the quality of the products.  It is about value.  It is about prices, and it's about causation.  Was there anything from the government case or the allegations made here by the Plaintiffs that caused the market to be so different from what it otherwise would have been that prices would have been dramatically different from the very low prices that Microsoft charged?"

He said Plaintiffs experts have created an imaginary "but-for" world; that is, a world that they say would have existed but for the conduct they claim was wrongful. 

Tulchin also touched on the history of Microsoft from the very early days when Bill Gates and Paul Allen set out to improve the Basic language for the first minicomputer. 

"And Mr. Gates' idea right from the start, right from the start in the 1970s was to charge a low price for software, a low price with the hope--with the basic idea that a low price would generate high sales.  It is not a new idea. . .it goes back to Fredrick Maytag in Iowa with the washing machine.  Make a good product, keep the price low, and you'll sell lots of them and do well."

It sounds as though Tulchin will continue his opening over the next few days.  It appears as though he plans on hammering the Plaintiffs for providing only "little snippets" of data or documents for the jury to see which do not tell the whole story.  It is apparent Tulchin is a fine lawyer.  His bio indicates he has won dismissals with prejudice in 20 major antitrust actions against Microsoft, and victories in all seven appeals he has argued for Microsoft in the United States Courts of Appeals.

This is shaping up to be an interesting trial on so many fronts.  Best of all, it is practically a class on juror persuasion.  Stay tuned for more as the trial progresses.

Iowa Microsoft Case Update: Plaintiffs Continue Opening

The Plaintiff continued with their sixth day of opening statements as the week ended.  Roxanne Conlin is expected to turn over the opening to her co-counsel soon for a discussion regarding damages.  According to reliable sources, Microsoft does not plan on taking nearly as long to lay out their side of the case.

It is interesting that Conlin has taken so long in delivering her opening statement.  It is widely believed people are used to getting information in short bursts from television, computers or other technology and therefore their attention spans as jurors is much shorter.  Most lawyers would say you need to keep trial shorter, not longer. Yet many fantastic trial attorneys, such as Gerry Spence, believe it is most persuasive to tell the entire story in detail - even if that means taking hours or days to complete an opening statement. 

So far Conlin has focused on the history of the computer industry and her stories of nine companies she alleges were injured or destroyed by Microsoft's conduct.  She has referred to emails and lots of internal memos in a very. very detailed manner.  At this point I am told six months is an underestimate for this trial.

Iowa Microsoft Case Update: Plaintiffs Flip-Flop Trial Strategy

Plaintiffs' attorney Roxanne Conlin has decided not to call Bill Gates and Steve Ballmer in her case-in-chief, contrary to her earlier strategy.  Conlin reconsidered her position after Judge Rosenberg ruled that Microsoft could question Gates and Ballmer directly after Conlin rather than waiting until Microsoft presented its side of the case.  Instead, Conlin will now show the entire videotaped deposition of Gates taken during the federal antitrust trial in the late 1990s.

It could be a good move by Conlin but I think it is a bit unusual for her to be changing course after her initial announcement.  Sounds like a little indecision on her part.  It's possible the move hurts Microsoft a little bit because I am sure the company's lawyers would have liked to question Gates right after Conlin's examination in order to rehabiliate him.  The video does not show Microsoft's CEO in the best light but it was taken several years ago.  Will jurors think Conlin has something to hide by not calling him directly?

At this point, opening statements continue on.  Conlin's opening is expected to last at least a few more days.

Iowa Microsoft Opening Statements: Plaintiff Outlines Nine Stories

The Iowa consumer class action case against Microsoft has officially begun.  Roxanne Conlin began her opening statements Friday.  Her case will include nine separate stories about how Microsoft has undercut competitors and acted illegally.  She will focus not only on IBM and Linux but also lesser known companies such as Go Computers and Acer Co.  Conlin's opening will actually take several days.

Microsoft lawyer, Rich Wallis, says the anticompetitive activites Conlin complains about are all in the past.  He says the company has not violated the law since it agreed to a consent decree with the federal government in 1999.

Check out this Des Moines Register story written by David Elbert for the details.

Iowa-Microsoft Opening Statements Delayed

The opening statements in the Iowa Mircosoft litigation were delayed today.  Pre-trial instructions took hours.  Check out Brett Trout's blog.  He sat in on the trial today.

Here is something to keep in mind.  If opening statements are tomorrow, I'll bet that Roxanne Conlin takes all the day and more to give her opening.  The jurors will go home having heard only the Plaintiffs' side of the story the first weekend.  The only way this doesn't happen is if Judge Rosenberg dismisses the jurors for the day after the remaining instructions.  First impressions are lasting impressions.

Opening Statements In Iowa Microsoft Trial

Opening statements in the Iowa consumer class action case against Microsoft begin November 30, 2006.  Several readers each day have been hitting this blog reading posts relating to the case.  To make it easier for readers I have added a Microsoft Iowa Litigation category on the right side of the blog.  This should make it much easier to identify all the posts related to the litigation.

I will cover important highlights of the trial as it proceeds.  The trial is expected to last six months.  Of recent note, it is my understanding that Judge Rosenberg has ruled Bill Gates and Steve Ballmer will only be required to testify once in the trial.  The Plaintiffs' attorney, Roxanne Conlin, had wanted to complete her case-in-chief before allowing Microsoft attorneys the opportunity to question Gates and Ballmer fully.  This is helpful to Microsoft as it allows the defense to complete any necessary rehabiliation of these two key witnesses before she completes her side of the case. 

On the other hand, Conlin won a procedural victory in that she is able to present deposition testimony of Gates from 1998.  This infamous deposition does not protray Gates in the best light and is considered by many as damaging to Microsoft.  Conlin also gets to present a mountain of emails, many of which are considered damaging to Microsoft.  For the jurors sake, let's hope the parties only present a portion of the 25 million documents that have been gathered. 

Microsoft will counter with the many innovations the company has created and how Gates and Co. positively transformed the computing world.

The Plaintiffs are asking for over $300 million in damages so there is no question this case will be hotly contested.  It has been in the court system for nearly seven years and right now I wouldn't doubt it could go for seven more, no matter who wins at trial.

For those interested in more on the Microsoft case you may want to check out Iowa patent lawyer Brett Trout's blog, Blawg IT.  Brett has periodic articles on the case and always has an interesting take. 

Iowa Microsoft Case Update

When you go to court you are putting your fate into the hands of twelve people who weren't smart enough to get out of jury duty. - Comedian Norm Crosby

The jury in the Iowa consumer class action case against Microsoft has been picked. (Of course, these jurors should be commended for their service and the joke above is not intended to reflect upon them in any way.  These jurors are making a sacrifice and I admire anyone who makes such a commitment to upholding our system of justice).  The jury consists of seven men and five women.  In a typical Iowa state civil court case you would normally only have eight jurors.  Several of the jurors have apparently purchased Microsoft products which makes them eligible to receive damages in the event the jury decides against Microsoft.  I seriously doubt that will be much of a factor.

Opening statements are expected to begin November 30th.  I'll continue to keep readers posted as the case moves forward.  It should be an intriguing but lengthy trial. (You gotta feel for those jurors).  It is expected that both Bill Gates and Steve Ballmer will testify live in the case. 

The Plaintiffs are asking for over $300 million in damages.  The Des Moines Register also reported that both sides have hired PR firms to handle the publicity in the case.  I will enjoy seeing how that plays out giving the number of blogs that will likely cover this trial. 

So tell me your opinion?  How do you feel about this case?