Ted Brooks, CEO of Litigation Technology, tells Monica Bay, LTN magazine's editor-in-chief, how his team used TrialDirector in the divorce trial of Dodgers' owners Frank and Jamie McCourt to show the differences in key documents representing their marital accords.
Lawyers often dream of their very own Perry Mason moment where, on the eve of trial, they find the "smoking gun" evidence that wins the case. Sometimes it happens in real life.
In 1977, Frank McCourt launched The McCourt Company (now The McCourt Group) to develop commercial real estate projects. After meeting as undergraduates at Georgetown University, McCourt and Jamie Luskin married in 1979, forming a personal and professional partnership that would span three decades.
Frank, whose grandfather was a co-owner of the Boston Braves, launched several unsuccessful bids to buy sports franchises — his hometown Boston Red Sox, the Anaheim Angels, and the Tampa Bay Buccaneers. Undeterred, the McCourts set their sights on the Los Angeles Dodgers.
This time they succeeded. Frank — or perhaps, Frank and Jamie — acquired the Dodgers from News Corp. in 2004 for $430 million, and the family moved west. The Dodgers started winning more games, and the pair enjoyed a meteoric rise to fame and fortune. As CEO of the Dodgers, Jamie became the highest-ranking woman in Major League Baseball, and the Los Angeles Business Journal named the McCourts its 2008 "Power Couple of the Year."
The McCourts employed an asset protection technique not uncommon among the wealthy. Business assets were titled in Frank's name while Jamie owned personal assets, such as homes. With the move to Los Angeles, they asked Bingham McCutchen to create a marital property agreement (MPA) to protect their assets under California law.
During the process, the pair signed multiple copies — and more important, two versions — of the agreement. Unfortunately for all concerned, the language in the two versions was not consistent as to who owned the couple's most valuable asset: the Dodgers.
And then the marriage failed. Alleging that Jamie had an affair with her driver (a Dodgers employee), Frank fired her from her position as CEO. Jamie then sued Frank for divorce, seeking $988,845 in monthly spousal support, reinstatement as CEO, and co-ownership of the baseball team.
Just before the trial, In re McCourt, No. BD514309, Los Angeles Superior Court (2010), one of Jamie's lawyers — Michael Kump, of Santa Monica, Calif.'s Kinsella Weitzman Iser Kump & Aldsert — and a team of forensic experts discovered the contradictory versions of the agreement. Bingham partner Lawrence Silverstein later testified in court that to correct what he called a "drafting error" in some copies of the agreement, he had switched pages in three of the six copies the couple had signed to make all copies match. The most important change was switching the word "exclusive" to "inclusive"— a change that would have given Frank sole ownership of the Dodgers. Silverstein testified he made the switch without telling Frank or Jamie, and admitted that he changed the pages after both had executed the agreement.
The discovery was critical because if the contradictory versions invalidated the marital property agreement, Jamie stood to get half of the Dodgers under California community property law.
Jamie's trial team included David Boies (Boies, Schiller & Flexner) and Dennis Wasser (Wasser, Cooperman & Carter). Coordinating the trial technology was Litigation-Tech's Ted Brooks, (a frequent contributor to LTN).
The case was assigned to Los Angeles Superior Court Judge Scott Gordon, and under normal circumstances, would have been heard in his regular courtroom, Department 88 at the Stanley Mosk Courthouse. But that courtroom was too small, not only due to the size of the legal teams and their technology support personnel, but because the court had received an avalanche of news media credential requests. And Department 88 couldn't support more than minimal technology. "The only video capability was basically a plasma on top of a file cabinet," Boles recalled.
The matter was moved to the larger Department 2, but even that venue was tight — reporters were literally breathing down the necks of the technology teams who were seated in what would normally be the first rows of the gallery. "It was awkward with rows of them right behind us," said Boles. To protect the confidentiality of their data, both sides used 3M laptop privacy screens. (Brooks used a 3M GPF 17.0W for his Dell Studio 17. Boles used the 3M PF15.6W with his Lenovo ThinkPad T510 laptops.)
Surprisingly for a jurisdiction that routinely has celebrity cases, there was no public wi-fi in Department 2 (although it's available in other civil courtrooms). Frank's team created a hard-wired local area network for his lawyers to use, said Boles, who also set up a wi-fi hot spot that supported five connections, but due to security concerns was used only by the technologists. Brooks set up a Sprint Overdrive 3G/4G hotspot for Jamie's team. "Because 4G is available in Los Angeles, connection speeds were very good when we had a decent signal," he said.
Legal teams could not access the courtroom before it was opened to the public, so there was no time for bootups. Brooks would bring laptops "already running and on standby, so they would immediately start up," said Brooks.
But the larger courtroom offered a crucial technology tool: a 100" Da-Lite InstaTheater screen. That allowed both sides to use the most important technology in the divorce case: TrialDirector, from Arizona's inData.
TrialDirector helps teams manage transcripts, video, and documents, and present that content to judges and juries. Among its key features, its transcript tools help users issue-code transcripts, create and print digests, view linked exhibits, and print condensed transcripts with word indexes.
Teams use its video tools to create clips and synchronize video depositions to transcript text. With the document management resources users can create witness and trial workbooks, and manage exhibit lists. Presentation options run from creating a "tear out" section of a document to playing depositions (with or without scrolling transcript text). Of particular interest in the McCourt case was the software's ability to do side-by-side document comparisons of exhibits, and other tools to help compare signatures.
Because it was a family law matter, In re McCourt was a bench trial, which often results in a less dramatic approach to trial presentation than required when attempting to persuade a jury. "Typically, in a bench trial, we would go with fewer bells and whistles," explained Michael Kump. "It takes time, and most judges prefer to see documents in their hands — instead of on a screen." But because the trial was under scrutiny from celebrity, business, and sports reporters, who overflowed the courtroom at key moments, both teams adjusted their presentation protocols, treating the media as a de facto jury.
"A lot of the technology was more for the audience than for the judge," said Boles. "You need some showmanship to convey information clearly so everyone understands," agreed Kump. "If you don't put on a good technology show, they feel cheated."
"Even without a jury, an electronic presentation was the best way to present the contradictions in the versions," explained Brooks. "Using TrialDirector, we were able to show both versions of the agreement on the screen at the same time," he said. "We highlighted the key terms, such 'Frank's Separate Property,' 'exclusive of,' and 'Los Angeles Dodgers' — and then used it to draw an arrow to show the Dodgers were not Frank's separate property." (See exhibit, left.)
"I was able to display both versions of the MPA, and then zoom in and highlight the key differences in them. We also used this technique to show the progressions, where Silverstein's handwritten edits later became the Massachusetts version of the MPA — Dodgers included as Frank's separate property," said Brooks. " Forensic handwriting analysis demonstrated that copies of the Massachusetts version were never actually signed with the entire set, because there were no impressions from the pen that signed the document, which was inconsistent with the others. ...Silverstein suggested that maybe all of the other pages — without pen pressure impressions — had been folded under, on only that set."
Frank McCourt's team also used TrialDirector to showcase key paperwork. " We focused on many documents: e-mails, handwritten notes, not just the two versions of the Marital Property Agreement," explained Boles. " For every document we brought up, I zoomed in or called out and highlighted the relevant portions of the text."
Not everyone was impressed with the teams' presentations. Joshua Fisher, a University of Minnesota law student who became a minor celebrity covering the trial on his blog, Dodger-Divorce.com, said he understood the legal necessity of the tactic, but said the constant zooming and document comparison became tedious.
Brooks remains unapologetic. "Did we go over, and over, and over that document with our system? Absolutely. But presenting that document was key to the case, and — unless the judge told us to move along — we were going to do it."
As happens in all trials, some preparation ends up on the cutting room floor. In this case, Brooks and his team had used TrialDirector to prepare numerous deposition video clips, but the judge preferred not to play them. " Instead, we displayed the text — sometimes side by side, sometimes scrolling down from one page to the next," said Brooks.
"I was caught by surprise the first time, and had to quickly convert the transcripts to .tif images, using TrialDirector. We were also able to capture screen-grabs of many of the more complex document arrangements."
Usually, trial teams would want the very latest version of software with the newest bells and whistles, but Brooks played it safe. "We did our preparation work in TrialDirector 6 because the new version has some huge improvements in its sort capabilities, accessing of fields, and audio editing ability," he said.
"We were able to set up interrogatories and responses on one slide, working with the trial presentation view, then capturing it. We also used the trial exhibit field to quickly access trial exhibits, and the second exhibit field to create shortcuts for quick access to specific transcript pages. We were able to easily manage more than 30,000 images."
But the upgrade changed some keystrokes, so for the actual presentation in the courtroom, he stayed with the familiar 5.2 edition. "In this kind of trial, we didn't have the luxury of hoping we were going to get it right," Brooks said.
Like sportsmanship in a ball game, even in the most adversarial of situations, courtesy and a sense of fair play between technology teams are usually the norm. Boles was able to leave his small laser printer in the courtroom, while Brooks found he had to lug a Canon portable inkjet back and forth each day. " We shared his printer, which helped me, because I didn't have to set up my portable each time I needed it."
In another situation, redacted text was revealed accidentally by Frank's team when a Social Security number appeared on the screen. The judge subsequently ordered the teams to redact all such personal information.
"I located and redacted all exhibits that I could find with confidential information, using TrialDirector, using the search tool in the OCR database," said Brooks. "Boles' team also redacted their exhibits that they could find, and sent us the PDF files. When I loaded them, there were no redactions," Brooks continued.
"Looking at the PDF, the redactions were showing. What we found is that you can see through the redactions made in Acrobat — when using TrialDirector 6. Because Boles was using TrialDirector 5, he could not see the problem. We notified him that this was an issue," said Brooks.
On Dec. 7, 2010, Judge Gordon issued his 100-page Statement of Decision: It was a victory for Jamie McCourt. He held that the contradictory versions of the MSA invalidated the agreement that gave Frank sole ownership of the team. The parties will now litigate how to divide the McCourts' assets, including the Dodgers. As this issue went to press, Bingham was not a party in a malpractice suit, but the firm has turned to Gibson, Dunn & Crutcher partner Kevin Rosen for advice.
EXTRA INNINGS ONLINE
For the Petitioner, Jamie McCourt:
Michael Kump, partner
SuAnn MacIssac, partner
Kinsella, Weitzman, Iser, Krump & AldiserSanta Monica, California
Dennis Wasser, partner
Bruce Cooperman, partner
Wasser, Cooperman & Carter
David Boies, managing partner
James Fox Miller, partner
Boies, Schiller & Flexner
For the respondent, Frank McCourt:
Stephen Susman, partner
Matthew Berry, partner
Marc Seltzer, partner
Victoria Cook, partner
Ryan Kirkpatrick, partner
Sorrell Trope, partner
Trope and Trope