Holdout juror talks about his experience in Novell-Microsoft case

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SALT LAKE CITY — But for one juror, Novell might be enjoying the spoils of victory over Microsoft.

The phrase "but for" came up a lot in Novell attorney Jeff Johnson's arguments before the seven-woman, five-man jury that ended up deadlocked Friday after two months of testimony and three days of deliberation in federal court.

Provo-based Novell sued Microsoft in 2004, alleging Microsoft pulled a "bait and switch" to give its software for Windows 95 an anticompetitive edge. It sought $1.3 billion in damages. Though U.S. District Judge J. Frederick Motz declared the trial over, both companies expect future court battles in the prolonged case.

Jurors had to determine whether a decision Microsoft co-founder Bill Gates made 17 years ago to withdraw support for a tiny piece of published computer code kept Novell from getting its word processing products on the market to coincide with the launch of Windows 95. Novell intended to use the code in its WordPerfect software for Windows.


But for that decision, Johnson told the jury in closing arguments, Novell's PerfectOffice suite would have been ready to go.

"WordPerfect would have been a game changer in the but- for world," he said.

Eleven of the 12 jurors apparently saw it that way. Corbyn Alvey did not. His holdout hung the jury. Alvey voted "no" on the marketplace issue, saying there wasn't enough proof Microsoft caused Word Perfect's demise. But he voted "yes on the allegation of anti-competitive tactics. He said Gates's testimony in the trial was somewhat contradicted by emails he wrote many years ago.

"There was a lot of speculation in this but-for world, and we had some evidence. But it's hard to draw inferences to a but-for world with only so much evidence," said the 21-year security guard from Magna.

"The problem was there was so much differing in the understanding of the evidence and what could have happened in the but-for world and what happened in the real world."

Alvey, whose computer training consists of using word processing, spread sheets and presentations software, said he and his fellow jurors understood the case's technical complexities. Both legal teams, he said, made good arguments and presented their material — hundreds of emails, memos and corporate documents — clearly.

Jury foreman Carl Banks said he tried his hardest to get a verdict. Ultimately, he handed the judge a note reading, "I am sorry, very sorry we cannot come to an accord. I've done the best I knew how."

The problem was there was so much differing in the understanding of the evidence and what could have happened in the but-for world and what happened in the real world.

–- Jeff Johnson, juror

After the trial, jurors and lawyers for boths shook hands and some embraced. Several jurors were in tears.

"It was stressful to have 11 people coming down on me and telling me it would be my fault if we had a hung jury," Alvey said.

Alvey, who has a two-year degree in criminal justice, said the jury had constructive discussions based on the evidence. "I want to make it clear the disagreements were based on valid opinions on both sides," he said.

He called it "wonderful" to be part of the legal system, hear and discuss evidence, try to convince people to see things his way and try to understand others' positions. He also enjoyed being able to hear from some "amazing, intelligent" people, including Gates.

Microsoft's star witness spiced up the trial's head- splitting drudgery. His banter with Novell attorney Johnson on cross examination made for entertaining courtroom theater.

"The man was a little sarcastic at times," Alvey said. "If anything, it provided a little break from the monotonous questions and answers."

Many of Gates' emails from the mid '90s that Novell presented as evidence against Microsoft painted him as almost obsessed about competition.

"I think from his testimony, what I heard, and what I saw in the emails, Bill Gates was a man who took every threat extremely seriously. I think he spoke with a lot of hyperbole and that's because the language in court was a lot less powerful than the language in the emails. It could be the 17 years time difference. I think he had very clear testimony. I don't think he backtracked or contradicted himself much," Alvey said.

Overall, Alvey described his experience as "wonderful" and "difficult" and said he's at peace with his decision even though it prevented the jury from reaching a verdict.

"It was rewarding because we gave the case due diligence," he said. "I can say that without any doubt in my mind."

Written by Dennis Romboy with contributions from John Hollenhorst.

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