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.
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