Thursday, December 10, 2009

Details on timing.

Yesterday, Shaikin provided a few more details on the McCourts' recent agreement and the shape of things to come. Having come to formal terms on temporary financial support until an April hearing to officially resolve the matter, the purpose of Tuesday's hearing seems to be to set a trial date for the post-nup litigation. Shaikin reports:
Frank McCourt . . . has asked the court for a February trial date. Jamie McCourt . . . has asked for a later start.
This seems to jive with my reading of the parties' arguments in their filings. From my perspective, the facts put forth on Frank's side, if proven true, are stronger than Jamie's counter-arguments. Given that Frank has the advantage, an early trial date is certainly preferable. Jamie, on the other hand, has the more difficult challenge of first finding evidence outside of the post-up itself which might invalidate the agreement, and second of figuring out how to convince the court to admit that evidence into the record. A validly executed agreement carries with it a presumption that it embodies the parties' full intent, and employing a hindsight bias to attack a duly negotiated and documented contract is generally disfavored. Because of the issues complicating an assault on the post-nup, Jamie wants all the time she can get.

Frank will likely say that a February trial date is more convenient for him, as the baseball season begins in April. Setting aside the hollowness of this argument--it can be said that April, May, and June are the least important months of the front office calendar--Frank's recent abdication of day-to-day responsibilities probably works against him here. Frank's main hurdle in arguing for the earlier trial date is that it would be unfairly prejudicial to Jamie, who deserves more time to put her case together. Frank's best approach is to convince the judge that the marital asset at issue--the team--is being damaged by the pendency of the litigation over the post-nup.

I like this argument, because it forces Jamie's hand. I could absolutely see a judge (or, in this case, a commissioner) asking Jamie why the court should sanction a timeline which devalues the very asset from which she seeks wealth. It's a delicate balance; Jamie would have to convince the court that her case would be so harmed by an early trial date that she is willing to put the value of the asset she seeks in question. That's really awkwardly worded--just imagine Jamie having to argue she's so worried about the impact of an early trial date that she accepts the possibility of a lesser take should she win.

I don't have a prediction at this point about which way Commissioner Gordon will rule. Maybe as the hearing draws closer, we'll have more information at our disposal and can talk with a little more certainty about things to come.

Oh, and lest you feel downtrodden about the Dodgers' lack of activity at the winter meetings, remember that sometimes inaction is preferable to movement for sake of movement. I recommend Keith Law's take, as well, but do know that it requires Insider. Sneak preview: the words inexplicable, outrageous, staggering, and hobbling all come up. And, of course, "wrong."