Long ago--about ten and a half months ago, to be exact--we were just a couple weeks into a conflict that is nearly certain to last over a calendar year. Each McCourt had filed their opening salvo, and, in between jokes about Jamie's pool demands, we were just beginning to get a grasp on the issues involved in the divorce. On November 10, I wrote:
From my perspective, unless Jamie can prove that Frank was misleading, fraudulent, or otherwise acted in bad faith, she's going to have a difficult time getting out of the agreement. Just because she later decided she gave up too much in the deal doesn't mean she can just get out of it. See Juan Pierre, 5 years, $44 million. The kind of smoking gun I'd look for is Frank concealing the fact that the Dodgers were included in the agreement. Because of her heightened burden [as a lawyer], I don't think she can win on this unless Frank took active steps to hide the fact that ownership of the club was involved.Well, here we are. And, what do you know: Jamie has found and relied upon evidence that something terrible took place: a switcheroo. Yes, the substitution of the "corrected" Exhibit A is just the sort of event we long ago knew might lead to a Jamie victory. But, on the eve of closing arguments, the switcheroo is hardly Jamie's only theory.
While sexy and media-friendly, Jamie's lawyers just haven't been able to get to the bottom of the switcheroo. Larry Silverstein contends it was a minor mistake--to him, anyway--that he cured without thinking twice about it. Yes, it would have been "best practice" to inform the couple of the "correction," but he was simply acting in accordance with the couple's wishes. And Frank's lawyers have certainly done a good job laying out Jamie's role in the separation of the couple's assets. I still strongly believe that "the only textual version of the MPA Jamie understood to exist in 2004 was the only one she even suspected to exist when she filed for divorce last Fall."
But the facts might not be enough to carry the day for Frank. For as difficult a time Jamie has has fighting the contention that she was wary of the risk, Frank's had just as dreadful a time proving Jamie knew the implications of the MPA. If that was all Jamie had--that she never meant it to be this way--I'd give this one to Frank tonight. She's a lawyer. She doesn't get the protection of not knowing what simple documents mean. But that's not all she has.
She has a lawyer who put an Exhibit in an agreement the couple signed that is completely opposed to another Exhibit attached to another signed agreement. And that lawyer never sought permission to correct the error nor acknowledgement of the correction. She has lawyers who either acted directly against her best interests or, at least, without the diligence she had every right to expect. And there were other ways to protect the homes without having the drastic effect of divesting her of the Dodgers in the event of divorce. And she has very much won the point that divorce, while mentioned, was never considered during the construction of the MPA. It was a document for happier people in happier times.
As we go into closing arguments, the legal question is whether a valid, enforceable contract ever existed. Tomorrow, Frank's lawyers will say that Jamie got exactly what she wanted in the post-nup. And that she shouldn't be allowed to benefit from the protection she needed early in McCourt ownership and now, in retrospect, also share in the upside of what turned out to be a good investment. And Jamie's attorneys will say that her inadequate (at best) representation and the entire stain of the switcheroo raises serious doubt as to whether the parties ever agreed to the terms of the MPA Frank tries to enforce.
As Judge Gordon has 90 days from tomorrow to issue a decision, I am not going to guess as to the outcome prior to hearing the closing arguments, except to say: each party very much knows it might lose. And each party very much knows that the litigation in McCourt v. McCourt won't end here, unless the parties and their representatives come together to end it on their own terms. I still believe that a settlement is the only reasonable outcome, and that, eventually, we will see that the McCourts are reasonable people.