At­tor­ney says he changed key word

At is­sue in McCourt trial is the word ‘in­clu­sive’ in­stead of ‘ex­clu­sive’ on dis­puted prop­erty agree­ment.

Los Angeles Times - - Sports - Bill Shaikin and Carla Hall

An at­tor­ney ac­knowl­edged un­der oath Tues­day that he changed a key word in the con­tested prop­erty agree­ment be­tween Frank and Jamie McCourt — af­ter the par­ties had signed the agree­ment and with­out in­form­ing ei­ther one.

In the most riv­et­ing trial tes­ti­mony to date, Jamie McCourt’s at­tor­ney re­lent­lessly at­tacked the ac­tions of Larry Sil­ver­stein, the Mas­sachusetts lawyer re­spon­si­ble for sub­sti­tut­ing lan­guage that could de­cide whether the Dodgers are Frank’s alone or prop­erty he shares with Jamie.

The McCourts might be the head­line at­trac­tions at their divorce trial, with own­er­ship of the sto­ried team hang­ing in the bal­ance, but Sil­ver­stein was the wit­ness whose ap­pear­ance turned an oft-te­dious pro­ceed­ing into a dra­matic one.

Sil­ver­stein is sched­uled to com­plete his tes­ti­mony Wed­nes­day or Thurs­day, af­ter which set­tle­ment nego-

tia­tions are planned, ac­cord­ing to sources on both sides of the case.

“Did you think it was OK to switch an ex­hibit to a le­gal doc­u­ment af­ter it had been signed and no­ta­rized?” at­tor­ney David Boies asked.

“In cer­tain cir­cum­stances, yes,” Sil­ver­stein replied.

Sil­ver­stein changed the word “ex­clu­sive” to “in­clu­sive” to in­di­cate the Dodgers were Frank’s sole prop­erty and not sub­ject to Cal­i­for­nia com­mu­nity prop­erty law.

Frank’s attorneys down­played the sig­nif­i­cance of Sil­ver­stein’s ad­mis­sion, say­ing he owned up to mak­ing a mis­take and fix­ing it.

“He came across as very hon­est and very eth­i­cal,” said Vic­to­ria Cook, an at­tor­ney for Frank. “It’s not un­eth­i­cal to make a mis­take.”

But Jamie’s attorneys said they were not no­ti­fied of the change un­til three weeks be­fore the trial, even though the other side had long been aware of the is­sue. They also said Sil­ver­stein never should have changed a word with­out check­ing with his clients first.

“It wasn’t up to Mr. Sil­ver­stein to make the de­ci­sion about what was in­no­cent and what wasn’t in­no­cent,” said Bruce Coop­er­man, an at­tor­ney for Jamie.

Sil­ver­stein tes­ti­fied he had prac­ticed law for 33 years.

“In all of your ex­pe­ri­ence,” Boies asked, “have you ever known a sit­u­a­tion in which a lawyer, af­ter a doc­u­ment has been signed and no­ta­rized, has re­moved a sched­ule and sub­sti­tuted an­other with­out the ex­press writ­ten per­mis­sion of the par­ties to that agree­ment?”

Sil­ver­stein replied, “Ex­press per­mis­sion or im­plicit per­mis­sion, no.”

Sil­ver­stein said he had not no­ti­fied Jamie McCourt of the switch.

Boies asked Sil­ver­stein whether he be­lieved he had an “ab­so­lute eth­i­cal obli­ga­tion” to tell his client what he had done.

“No, I did not,” Sil­ver­stein said.

Sil­ver­stein made his ap­pear­ance in the sec­ond week of the trial, with a doc­tor’s note that pre­cluded him from tes­ti­fy­ing for more than half the day.

His tes­ti­mony could be crit­i­cal to Judge Scott M. Gor­don’s rul­ing.

Gor­don, who scarcely in­ter­rupted dur­ing five days of tes­ti­mony by Frank and Jamie, jumped in with sev­eral ques­tions of his own for Sil­ver­stein.

Sil­ver­stein said he made the switch sim­ply to con­firm the McCourts’ de­sire to put their homes in Jamie’s name and the team and other busi­nesses in Frank’s name, so busi­ness cred­i­tors could not seize the homes.

“There’s noth­ing sin­is­ter,” said Steve Sus­man, an­other at­tor­ney for Frank. “They’re claim­ing it’s sin­is­ter be­cause it’s all they have.”

Jamie’s attorneys said she never in­tended to sur­ren­der own­er­ship rights to the Dodgers. The attorneys also said Gor­don should throw out the agree­ment, which would make the Dodgers com­mu­nity prop­erty and likely re­sult in a sale of the team.

With­out Sil­ver­stein’s switch, three of the six copies say the Dodgers be­long solely to Frank and the other three say they are joint prop­erty.

“There’s no con­tract when the par­ties don’t have an agree­ment,” Coop­er­man said.

Boies dis­played drafts of the agree­ment, some of which de­scribed the Dodgers as “ex­clu­sive” of Frank’s sep­a­rate prop­erty, not “in­clu­sive.” Boies asked Sil­ver­stein whether the word “ex­clu­sive” in those drafts meant that the prop­erty in ques­tion was ex­cluded from Frank’s sep­a­rate prop­erty.

“They cer­tainly could be read that way,” Sil­ver­stein said.

“Could they be read any other way, sir?” Boies said.

“It’s hard for me to an­swer that, be­cause I know what the in­tent is,” Sil­ver­stein said. “I just mis-wrote it.”

Boies wanted to know why Sil­ver­stein cor­rected what he said was an er­ror with­out telling ei­ther of the McCourts.

“Who gets to de­ter­mine what an er­ror is?” Boies asked.

“I be­lieve Frank and Jamie fully un­der­stood …” Sil­ver­stein said. Boies cut him off. “Who gets to de­ter­mine which of the two ver­sions is in er­ror?” Boies said. “Is that up to you uni­lat­er­ally?” “No,” Sil­ver­stein said. Boies said Sil­ver­stein had not no­ti­fied Jamie he had switched the doc­u­ment to re­flect what Sil­ver­stein said was the de­sired word­ing.

“In­di­rectly, I did,” Sil­ver­stein said.

He said he did so on the day Jamie signed the agree­ments — March 31, 2004 — and at that Boies thun­dered. Sil­ver­stein had said ear­lier he made the change on or about April 20, af­ter he caught the al­leged er­ror in Ex­hibit A and af­ter the agree­ments had been signed and no­ta­rized.

“On March 31, it’s your tes­ti­mony you didn’t even know there were two sep­a­rate ver­sions of Ex­hibit A,” Boies said. “So, on March 31, you could not have told Jamie McCourt there were two sep­a­rate ver­sions.

“You told her all six copies were iden­ti­cal. That was false, wasn’t it?”

Said Sil­ver­stein: “It turned out to be false.”

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