Thursday, September 23, 2010

A (not so) quick day nine wrap.

I'll be back very early tomorrow morning with first thoughts on the day's mediation proceedings. Also tomorrow, we'll dig deeper into the chronology of the Exhibit A's to the MPA, comparing the parties' conflicting stories. For tonight, a recap of the day that was.

The beginning of the morning session went quite well for Frank. Larry Silverstein, the McCourts' Boston attorney, described in detail the process of the creation and execution of the MPA. His testimony suggested that Jamie understood the agreement from the very beginning and, indeed, was a driving factor in its existence.

Perhaps the most important part of Silverstein's early testimony concerned the revisions made to Exhibit A and details of its execution. Silverstein explained the drafts which led to the "exclusion" of Frank's assets on a misunderstanding of his handwritten notes. He testified that he meant to be editing the Exhibit to detail assets "exclusively" belonging to Frank, but made an unfortunate error leading to the flawed Exhibit. He also asserted that he walked Frank and Jamie through the relevant portions of the MPA, including the Massachusetts Exhibit A, before signing it. The McCourts, according to Silverstein, never reviewed the California version of the MPA, which appeared to be identical to the one they examined in some detail.

There was commotion in the morning as the parties' lawyers haggled some over how much time each could have with Silverstein. As mediation talks begin tomorrow, it was extremely important to finish with Silverstein today. He is the last witness expected to offer heavily contested testimony (by both sides), and it would have been difficult for the parties to even begin to approach a settlement in the absence of his complete testimony. All told, Silverstein has given about a calendar week to this litigation between his depositions and appearances on the stand.

Late in the morning, and well into the afternoon, David Boies got his hands on Silverstein. Boies attacked Silverstein's credibility from every angle. Silverstein often confused dates and facts, and his testimony at trial often conflicted with that given during his depositions. Heck, even his depositions conflict a fair amount. He was not the image of a detail-obsessed lawyer, and, surely, his testimony to Boies will make Judge Gordon think twice before believing his accounts of the MPA confusion.

Perhaps the most difficult moment of the day for Frank's side was Silverstein's non-recollection of several events that turned out to be momentous in the trial's context. Silverstein had difficulty describing in detail the handling of the three copies of the MPA with the "wrong" Exhibit A. Further, he had no recollection of the actual when and how of substituting the "correct" Exhibit A into the document. His testimony was based on a reconstruction of the facts through a review of computer, telephone, and handwritten records. He may well be right, but it was a strong point by Jamie's side.

The day drew to a conclusion with Boies alleging that Silverstein did not submit the MPA for filing in April, as he testified, but at some time during the Summer. Boies eventually handed Silverstein back to Victoria Cook, but only after a rapid-fire series of questions and answers raising further questions about Silverstein as a witness. Cook closed the week, and Silverstein's presence at the trial, by eliciting testimony concerning Jamie's intent in the MPA. She never once, according to Silverstein, expressed a desire to own the team--much the opposite.

If much of this sounds repetitive, the balance of the day largely was; it was tough to tell who was on trial today, the McCourts or Silverstein. As Judge Gordon surely noted, there was little today that was all that new. Frank's story is the same: the parties only ever knew of and intended to execute the Massachusetts version of the MPA. A lawyer's mistake, however egregious, shouldn't be the focus of the court's decision. Jamie's main argument, too, is still mostly intact. The documents, when executed, conflicted as to a material term. The version less favorable to Jamie was made to disappear without any notice to her, before or after the switch.

The truly important part of today's proceedings is that there is plenty enough on the table to lead to a productive beginning of settlement talks. Each party's side has a glaring weakness; Jamie's is the aggregate course of events leading to and ratifying the MPA, Frank's is the screaming appearance of impropriety. In the public's eye, neither is winning the popularity contest; Anyone Else has a commanding lead. And that will only become more important as we inch toward a resolution.


  1. This MPA was a bad idea to begin with. It totally messed up their marriage. Now it's mucking up their divorce.

  2. Silverstein put the MPA in jeopardy by...

    Not having outside counsel for Frank and Jamie look over the documents, (it was Leah Bishop in December 2007, who caught the problems)

    Stating something different in his deposition than what he testified on the stands, especially when the California Exhibit was discovered after his deposition.

    The questions by Judge Gordon are pretty important for the case, much more than the grandstanding by Boies and Cook.

    The MPA is flawed for to stand up a separate property document in a divorce trial. California Family is pretty specific that a legal notarized document should more than assets listings and who's has the property titles. It needs to have a waiver and some sort of clearly written financial compensation for one of the parties waiving their rigtht to contest the separate property..

    The MPA can probably stand in a bankruptcy court to shield all the McCourts' properties from creditors acquired before March 31st 2004, and not tied to the purchase or the running of the Los Angeles Dodgers.

    The MPA wasn't constructed as a bombproof post nuptial.

  3. Good input from okojo. It seems to me that, on a basic level, how can a court uphold either version when the parties unknowingly signed to separate versions. The parties' testimony is diametrically opposed on the subject of intent. It appears that the best solution would be for the court to throw the whole thing out as ineffective.

    That way, they would have to split everything and both McCourts can take their happy &*(es back to Boston where they belong. Maybe that part is just me hoping....

  4. Good points. It really depends on California Law. I think sadly that there will be a settlement and Frank keeps the team, because they both realize that despite how much they hate each other, it's the only way to keep the team for their kids. There are solid points on both sides and both have too much to lose if the judge rules against them.

    Hopefully, they now hate each other so much that settlement will be impossible.

  5. Now that I saw Josh Fisher on MSNBC this morning and came to your site, it looks like I have a lot of reading to do regarding this issue. I didn't realize this was such a big deal...I'd been a Dodger fan for 40 years, but it started in the days of Steve Garvey, Davey Lopes and my personal favorite, Ron Cey. When these players left, I lost most of my interest, but maybe this will reinvigorate it. That's not a really great thing to base it on, but such is life.