Tuesday, September 21, 2010

Day seven preview.

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Today, once David Boies finishes up with Jamie fairly early, her side is expected to rest. Then, it will be Stephen Susman's turn to call witnesses. Jamie could not recall several key meetings and events in her testimony yesterday, and you can be sure Frank's legal team has assembled an array of folks who will try to fill in the gaps.

First will be the to-this-point mythical Larry Silverstein, the Boston attorney who represented the McCourts in several matters, including the creation and execution of the MPA. While yesterday's action mostly bolstered Frank's claims concerning the effect of the MPA, Jamie's most potent challenge is to its enforceability. The existence of diametrically opposing Exhibits to the Agreement--one specifically including the Dodgers in Frank's separate property, the other specifically excluding the club--is the biggest hurdle Frank must overcome.

He will start today by eliciting testimony from Silverstein that the Dodgers were always meant to be included, Jamie knew it, and she never even knew of the mistaken Exhibit A. It's more than a little surprising that Silverstein elected to show up this week. As you can imagine, the events which led to his involvement in this litigation seem to be either an honest, but dreadful, mistake, or something far more nefarious. It's possible that whichever McCourt loses will believe Silverstein cost their side at least a half-billion dollars. His participation in this litigation is risky, to say the least.

Also expected in court today is Reynolds Cafferata, a lawyer from the same firm as Silverstein, Bingham McCutchen. Cafferata will likely testify to his role in the creation of the MPA. Further, Jamie kept notes from what seems to be a fairly detailed conversation with Cafferata concerning the effect of the MPA. Jamie claims she did not understand what she was writing down; she was merely keeping records. Cafferata may testify to knowledge of Jamie's true understanding of the MPA, which would help Frank's arguments in favor of enforcing the MPA.

On cross, expect David Boies to find out just why Silverstein handled the "mistake" as he did. I don't think it's unfair at all to suggest that, if it was an honest mistake, a more thorough and immediate remedy might have prevented the litigation from dragging out this long. Of course, Jamie's side does not believe it was a mistake. Rather, they contend that her version of Exhibit A was always intended to be executed, and the substitution of the more-favorable-to-Frank Exhibit A was in bad faith.

It will be interesting to see how Silverstein answers Boies on cross. If Frank's story is true, Silverstein might be forced to throw himself under the bus. If Jamie's is true, it's at least possible that we might be steaming toward a conclusion this evening. Susman v. Jamie was expected to be the highlight of the litigation, but her sudden unfamiliarity with basic legal terminology took the wind out of Susman's sails. Frank's side needs today's witnesses to strike a blow, and he needs to avoid land mines in the process. Jamie, represented by the ultra-competent David Boies, will search out those land mines.

Should be a fun day. Stay tuned.
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18 comments:

  1. Hey Josh, Congrats on your success. I'm glad they did not win the bid on the Red Sox. Why don't you come to Boston and learn more about them, where they were born and how they made their $?

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  2. I just changed my votes to Jamie's worse - that she suddenly forgot remedial Law School facts is an embarrassment to female lawyers everywhere.

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  3. ESPN reporting MPA lawyer testifying that he switched doc's without Jamie knowing.

    SELL SELL SELL!

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  4. Josh,

    Would you say that Jamie's testimony (or lack thereof) hurt or helped her? I mean, admitting documents weren't read and not understanding million dollar decisions seems off to me. The Harry Potter line was over the top, but there has to be some untruth in Jamie's words.

    Did she hurt herself with that approach or was she better coached by acting ambiguous and taking the Roger Clemens "mis-remember" approach?

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  5. Didn't her testimony and Frank's pretty much lie in what this lawyer had to say today. He pretty much validated her "I was ignorant and uninformed" stance didn't he?

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  6. Actually, the MPA lawyer testified that he did notify Jamie of the switch.

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  7. Check that. L.A. Times says MPA lawyer did notify Jamie, but the AP reports he did not. oh the irony

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  8. Josh -- as I said on Twitter, on some reflection it's actually not surprising that Silverstein would show up in court. Jamie's main strategy is showing Exhibit A was changed, possibly maliciously, after the fact of signing. That is a direct implication of either Silverstein or of his subordinates, and in either case, of his practice in general. A nine-figure failure like that cannot be allowed to go uncontested.

    However, what's strange is his actual testimony. From what I can tell in Molly Knight's and your Twitter feeds, it seems like any hope of Silverstein reclaiming his reputation from this on the stand are utterly shot, especially with the conflicted confession of exactly when he knew the documents were switched. An attorney of this caliber has got to have calculated just how he'll defend against the inevitable malpractice lawsuit one or the other side will launch.

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  9. The problem in all of this, is that both sides knew for close to two years that there was a big problem with the MPA, and one side refused to fix it. This could had been easily fixed, but Frank's side refused to concede this, and now wants a slam dunk win with a MPA that wasn't designed for transmutation of separate property.

    Now if Frank wants to sue Bingham McCutchen for the typo of the MPA, or the switch of certain pages, I don't see him getting $250 million, or more. Frank will sue Bingham McCutchen, because he is a litigator, that is how he has made his money..

    I really sincerely believed that Larry Silverstein blew it by not advising both McCourts to get outside counsel to review the documents. I believe they didn't, and didn't really read the MPA, because the documents at the time, were of medium to minimum purpose, they were to shield their properties from Dodger creditors, by stating the assets were not used in the Dodgers' purchase or the running of the Dodgers, as of March 31st 2004.

    If both McCourts wanted a strong and comprehensive MPA, that would stand up in bankruptcy court and in a family law court, it would be pretty comprehensive of who owns what property in the marriage, but the rights waive by the other spouse. There would also be a financial incentive or compensation for each person in the marriage to sign a transmutation agreement. The MPA doesn't do this, whether it has the wrong words, there are added pages or not. It is more of a recorder of deeds so it has some standing against creditors in a bankruptcy court.

    Silverstein is a nice pinata to blame all this on, but both Frank and Jamie should had settled a long time ago, and it shows how pathetic both are, arguing over one document, its intent wasn't to divide a major and complex business organization.

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  10. When I go to Josh's twitter page on the web (I don't subscribe to real twitter as I don't want stuff clamoring for my attention), I don't see any tweet newer than last night (20 Sept. "about 11 hours ago" : "Fox 11 at something like 10:06"). But some of you are referring to info today. Is Josh tweeting somewhere else? Or are you just getting your info somewhere else?

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  11. Not here. That's where I was going, and the latest update I see is still last night's "Fox 11 at something like 10:06".

    I checked Molly Knight's twitter page and got newer info about 30 minutes ago, but it's not updating further yet either.

    I don't know whether that means my browser is just accessing the cache instead of updating, even though I'm doing a Reload (Refresh). Actually I've now tried it in two browsers - Firefox mac and Safari. Same thing. Strange.

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  12. Berk, I am having the same problems. I think they might be due to the twitter hack from earlier in the morning.

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  13. Same here berkowit. The last thing I see on Josh's twitter is the fox 11 news thing. Im not a twitter follower neither so maybe we have to subscribe to get updated news.

    So, with Silverstein's testimony today, is a Dodger sale looking more likely now? That's all I want, a new owner.

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  14. Wasser: we are *not* trying to enforce the California ExA. We want the whole thing tossed.

    Wait, what's the difference if either outcome means joint ownership?

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  15. If the whole thing is tossed, then *all* properties referenced on it become community property. Jamie's real estate, Frank's businesses, everything.

    If the California ExA is the one upheld, then only the Dodgers become community property. Jamie gets to keep the houses and Frank gets to keep all businesses other than the Dodgers.

    Now that last is more favorable to Jamie since Jamie gets to keep the real estate, but Frank probably doesn't much of value outside of the Dodgers. but this would be litigated forever. Wasser is essentially throwing Frank a bone, a basis for opening settlement negotiations.

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  16. You have so much documentation and information on training on various topics! just great! A good server, but would like more specifics.

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