Who Won?
From Joe Markowitz's Mediation's Place Blog
How can I be so cynical as to suggest that it doesn't matter who wins? First, because there may be a number of ways for the judge in this case to split the difference so that neither side comes out the clear victor. Second, because of appeals. The parties have the ability to continue to litigate this case for years to come, regardless of which side wins at trial. But it is not clear that the business of baseball has time to wait for the results of all those appeals. Therefore, there will be pressure to resolve the ownership issue long before the legal process is finally concluded. Third, because of the parties' financial situation. Even if Frank retains ownership of the Dodgers, his other financial obligations, including of course to his ex-wife, may compel him to sell the team. If they are forced into joint custody over the boys in blue, sale becomes even more likely.
So what did the trial accomplish? I am not an expert on the legal issues--I only know what I read in the papers--but the main effect of the trial seems to have been to publicly humiliate both parties and tarnish their reputations. T.J. Simers summed it up in the LA Times sports pages (the Dodgers' season is long over, so all Dodgers fans can do is watch the trial) this morning:
"Frank's lawyers successfully drove home the point that Jamie is just not credible. Jamie's lawyers successfully drove home the point that Frank is just not credible. They've got that right."Court-watchers have concluded that Jamie probably came out ahead at trial. That may be because Frank started out with what appeared to be a stronger legal position, while Jamie had the always difficult burden of proving that the document at issue was not enforceable or did not mean what it was thought to mean. She seems to have succeeded at least in muddying the waters considerably, and could succeed in getting the agreement tossed out entirely. Frank's case, on the other hand, might have been as strong as it ever was before the first word of testimony was uttered at trial, and if he loses, he may still be able to fall back on his interpretation of the documents and argue that nothing that was said at trial means anything.
Maybe it was necessary for Frank and Jamie to suffer through the cathartic experience of this public trial to bring them to a fair resolution of this dispute. Somehow, I doubt that. The real shame in this case, however, as I mentioned in an earlier post, is that not only have both parties to this dispute spent a lot of money only to emerge deeply damaged as a result of this trial, but they have also caused untold harm to an important civic institution. Both parties may now be forced to give up what they were ostensibly fighting over to salvage the team, and Dodgers fans would probably consider that justice.
How often does this sort of thing happen in real life? A lot more often than people think. Clients who approach me with a problem that potentially needs to be resolved in court are generally preoccupied with the merits of the dispute. Who is right and who is wrong? Which side's position going to stand up at trial? My answers to those questions are usually filled with contingencies, and then I have to throw in some practical questions. How is the other side likely to approach a potential lawsuit? How much is at stake as compared to the amount that the case will cost to litigate? Once we start talking about those questions, the issue of who is right and who is wrong starts to recede in importance. I'm not saying that the merits of a case do not matter. The strength of each side's position is what drives the dispute, and often determines the value of the ultimate resolution, whether by settlement or verdict. What I'm saying is that procedural concerns are just as important as the merits, and also that trials do not always reach a nice, neat conclusion that vindicates the position of one side over the other.
I have tried some cases with a clear winner and loser: either the plaintiff walked away empty-handed, or the defendant was assessed a judgment. But I have also tried cases in which the outcome of the trial did not seem to accomplish very much at all. That can happen where the plaintiff wins the empty victory of an unenforceable judgment, or where the amount the plaintiff wins was less than the cost of litigation, or where the defendant prevails at what he considers an excessive cost, or where the result of trial is essentially a draw.
What will happen next in the McCourt case? They are going to try mediation again of course, the only place that gives them a chance of reaching a result better for both sides than the alternative of endless litigation.
(LA Times photo)
Biography
Joseph C. Markowitz has over 30 years of experience as a business trial lawyer. He has represented clients ranging from individuals and small businesses to Fortune 500 corporations. He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own. In addition to general commercial litigation, Mr. Markowitz has expertise in intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation. Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in the Central District of California, as well as private mediations. He has served since 2010 as a board member of the Southern California Mediation Association.
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