By October 15, lawyers representing Frank and Jamie McCourt will submit what amount to proposed orders to Judge Gordon. These documents, while not supposed to be additional arguments, will lay out the facts and law each side will use to support its proposal. Judge Gordon will review the submissions and use them as the basis for a written ruling he is expected to issue before the holiday season.
Jamie McCourt's lawyers will lay out, in no uncertain terms, the nearly-unbelievable sequence of events surrounding the contested Exhibit A to the MPA. How, she will argue, can the court justify upholding a document with two materially different signed, notarized copies? How can the court justify upholding a document Jamie signed with counsel that was arguably inadequate--at best? How can the court justify upholding a document in a context the couple hardly considered when it was executed--if they considered it at all?
Many of Jamie's strongest arguments rely on events that occurred after all six copies of the agreement had been signed. The "switcheroo," as her attorneys describe it, should not only be regarded as fraudulent at the time--she was neither asked for permission nor informed of the switch--but it should also speak to Jamie's lack of independent, effective representation. How, she argues, can the court justify upholding an agreement drafted by a lawyer so seemingly beholden to Frank?
The way I see it, Jamie's case relies principally on raising doubts as to the basic fairness of the creation and execution of the MPA. By displaying the dizzyingly confused history of the document, she contends that it must be disregarded on its face. I think her lawyers have an easier job here than Frank's; her argument is dramatic, sympathetic, and media-friendly.
Frank's case is simpler, but perhaps more difficult to win. As I laid out last weekend, I think his version of the facts is much closer to the truth. I think Jamie McCourt should really not be allowed to walk away from an agreement she asked for, one she appears to have the training, background, and intelligence to fully understand. I think that, whether she contemplated divorce or not, she surely benefited from the protections of the agreement, and is now seeking to avoid its consequences. I think Frank's basically right, but he's going to have a hell of a time giving Judge Gordon enough reasons to agree.
Though this might seem odd, judges often love to be told what they can and cannot do. Many judges specifically ask the lawyers in front of them to explain why the judge is empowered to rule in their favor. Lawyers are tasked with offering statutory, case law, and public policy reasons the court can rely on. Judge Gordon said during the trial that he sees the court's job in this litigation to decide how the contested Exhibit A's fit in with the whole of the agreement, that it will be the court's challenge to do so. It is here that, no matter the accuracy of the totality of the facts, Frank will run into his most difficult hurdles.
Has Frank given Judge Gordon enough to disregard the chicanery that went into the creation, execution, modification, and handling of the MPA? Frank's lawyers say yes. Look at what Jamie wanted, they say. Don't worry a ton about what happened after April 14, 2004; Jamie wanted what she signed on March 31, and she shouldn't be allowed to get out of it just because it didn't turn out as she expected. "If Jamie McCourt, Esq., is not bound by her MPA, no one ever can be," her lawyers argue.
And I think they're right. But I don't know if they have enough to allow Judge Gordon to publicly agree.
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