A Day in the Life of the McCourt Divorce Case and the Los Angeles Dodgers

September 3,2010 was the only day that both Frank and Jamie McCourt testified in their divorce trial to determine ownership and the fate of the Dodgers, one of America's most storied franchises.

     A dolly carrying eight boxes stamped “Susman Godfrey LLP” sits outside of Courtroom 217 of  the Stanley Mosk Superior Courthouse in downtown Los Angeles.   Two lawyers become four, four become eight and before long the hallway has the feeling of a social reception.  A cluster of attorneys bellow in laughter because “at least we can agree on what one fact means:  it is a good thing that it is Friday!”  Another tells a colleague he has an upcoming case he is looking forward to in representing a Mexican billionaire in a divorce, but that right now he has something more important to discuss:  “Where are we going to eat dinner?”

     Jamie McCourt arrives into this small sea of lawyers, paralegals, and sprinkle of reporters.  She is wearing a lavender skirt and jacket, gold high heels, and enjoys showing her team of lawyers that she has switched it up from the cream white outfits from earlier in the week because she “didn’t want you guys to get bored.”  Her lavender outfit matches the lavender tie of one of her lead attorneys and she is proud of the color coordination.  She is tan, fit, slender, and feels at home smiling, laughing, and being in the company of her legal team.   She shares a friendly forehead to forehead greeting with David Boies, one of her attorneys, who also represented Al Gore in the 2000 Presidential Election Recount.

     Frank McCourt turns the corner and approaches down this second floor wing of the courthouse.  He has his game face on.  He is stern.  He sits further down the hall away from the courtroom doors.  He huddles with one of his attorneys. 

     The bailiff unlocks the courtroom doors at precisely 8:30 a.m.  The lawyers and the McCourts file in with reporters and the general public in tow.  Frank McCourt is seated on the left side of the courtroom and Jamie McCourt is on the right.  Each sit at a table with three attorneys and each has a second table behind them for another four members or their legal brigades.  Behind these second tables are five rows of seats for the general public and the reporters sit off to each side.  Frank and Jamie McCourt intermittently turn around to steal glances of who has entered the courtroom and to find solace and smiles in familiar faces.  

     At 8:50 a.m. the courtroom falls to a silent hush in anticipation of the judge’s entrance.  A bailiff instructs to “all rise” for the Honorable Scott M. Gordon, the flag, and the Constitution of the United States.  Judge Gordon enters and asks that all please be seated.  He takes his seat perched above the proceedings in the front center of the courtroom.  Behind him the wall cascades in slabs of granite, the center of which is imposingly adorned with the Great Seal of the State of California.   The clerk asks that Frank and Jamie McCourt please stand to be sworn in. 

     “Do you swear that all that you will testify to is the truth, the complete truth, and nothing but the truth?”  If so, please say “I do.”

     The McCourts, in tandem, say “I do.”  The irony is lost on no one that these same utterances marked the beginning of their marriage thirty years before.

     Frank McCourt is called to the stand to be questioned on direct examination by his attorney, Mr. Susman.  The witness’s seat is to the right and several notches lower than Judge Gordon’s seat. 

     At issue in McCourt v. McCourt is whether the Los Angeles Dodgers are the community property of Frank and Jamie McCourt or whether they are Frank McCourt’s separate property.  Community property law, which exists in a handful of western states and derives from Spanish law (which in turn derives from Arab law), presumes that property acquired during marriage is community property.  However, this presumption can be overcome by an agreement.  The question is whether a marital property agreement drawn up in 2004, of which there are six versions, three of which contain contradictory wording to the other three, defeats the presumption that the Dodgers are community property.  Frank McCourt argues that the agreement made the Dodgers his separate property while Jamie McCourt contends the agreement did not make the Dodgers Frank’s separate property and, thus, the Dodgers are community property.  If the Dodgers are found to be community property then the McCourts will likely have to sell the team because neither can afford to buy out the other’s half.  Another possibility is that either could put together a group of investors to buy out the other.  The future of one of America’s most storied franchises hangs in the balance.

      On the witness stand Frank McCourt confirms his understanding that the marital property agreement made the Dodgers his separate property.  He states that he never would have helped pay the debts on houses in his wife’s name had he not believed that Dodgers were his separate property, nor would he have given her a quitclaim deed to one of their Malibu houses worth twenty-eight million dollars, nor would he have used two thirds of a sixty million loan taken out on Chavez Ravine, the site of Dodger Stadium, to help pay off her personal debts if that was not his understanding.    He points out that the Chavez Ravine loan was signed by him alone.

      Mr. Susman asks why agreements were made between Frank and Jamie McCourt that she receive a sum of money each month rather than just assuring her that that they were joint owners of the Dodgers.   “Because we weren’t,” Frank responds.

   To ward off the argument that Jamie McCourt did not understand the nature of the marital property agreement Frank confirms that she is more formally educated than he.

     Frank testifies to an e-mail sent to Jamie in which he tells her that he is trying to diminish their personal debt and that he cannot accomplish this if the debt is a moving target when two houses become four and four become eight.  He describes a divergence in lifestyles in that she wanted more and more houses and to be surrounded by more and more people.

     Mr. McCourt testifies that it was at a meeting referred to as the “Four Corners Meeting” at which he first understood that divorce was a possibility.  He testifies that he, his wife, and their estate lawyer were at this meeting and that he began to discern that the attorney was no longer acting as their joint attorney, but rather as her advocate.  Jamie wanted it established that the Dodgers were community property.  It was at this meeting that he first had the hunch that if he did not agree his wife would resort to the “nuclear option” of divorce.  Furthermore, at this meeting, his wife demanded that she receive two-hundred and fifty million dollars in cash from him.

     Another e-mail exhibit from Jamie McCourt to their estate attorney is displayed on the power point screen in the front left of the courtroom.  Frank McCourt testifies that it represents Jamie McCourt’s desired amendment to their marital property agreement; that the houses remain her separate property and that everything else be community property. 

     The next exhibit is Frank’s response to Jamie's having sent this e-mail to their estate attorney:  “Please consult me first before sending e-mails like this out.”

     Mr. Susman asks Frank:  “Why were you not more forceful in responding to your wife’s suggestion of how the property should be characterized?  Your e-mail is such a ‘namby pamby’ response.”  The courtroom erupts in laughter and Frank McCourt blushes at this characterization.

     “Are you married, sir?” Frank asks his own attorney to explain his passive response.  In retrospect Frank agrees that he should have been more forceful but that he wanted to save his marriage and did not want to “throw another log on the fire.”  He says that he loved his wife and that she remained the beneficiary in his will right up until the day that she filed for divorce.  While he tried to accommodate her, she was growing more forceful.  “If we’re going to be life partners, we’re going to be business partners,” she told him. 

     Things came to a head when she gave him an amended marital property agreement that she wanted him to sign.  “And how would you characterize the amended agreement that your wife proposed?” asked Mr. Susman.

     “What’s mine is mine and what’s yours is ours,” responded Frank. 

     However, to accommodate his wife and try to save their marriage, he said he would think about it.  He testifies that she gave him an ultimatum:  “If you love me, you’ll sign.”

     “But the more she pushed the more I withdrew.” 

     Ultimately he decided that he would not sign such an agreement because he thought it was patently unfair.

     Mr.  Susman’s direct examination of Frank McCourt wraps up around 10:15 a.m. and Judge Gordon orders a fifteen minute recess. 

 

    In the main family law hallway of the courthouse are families, moms, dads, and children there for adoption procedures, custody hearings and family services.  They are just around the corner and yet worlds away from the testimony about sixty million dollar loans, twenty-eight million dollar Malibu houses, and the construction of indoor swimming pools. 

 

     Court comes to order again at 10:30 a.m.  Jamie's lawyer, David Boies begins his cross-examination of Frank McCourt.

     Boies is slender.  He wears a black suit and a thin red tie with wide stitching.   His shoes are formal, yet informal; business shoes with training shoe like-soles.  They convey a high level of comfort in the courtroom.  Like Frank McCourt he alternates between examining documents with his reading glasses on and removing them when in the flow of conversing.  

     He begins his questioning by redirecting Frank McCourt’s attention to his “namby pamby” response to his wife’s e-mail suggestion to their estate attorney that Frank had characterized as proposing that her separate property remain her separate property and that everything else be made community property.  Boies reminds Mr. McCourt that he had stated that Jamie McCourt had no response after Frank had requested she not send such e-mails out before consulting him first.  Boies shows Frank the e-mail in which Jamie did respond by asking Frank, “Why?  Did I miss anything?  Did I get anything wrong?”

     Frank answers that he did not remember testifying that she did not respond.  He blinks rapidly when answering Mr. Boies’ questions.  Mr. McCourt states that he did not reply to his wife’s question about whether she had gotten anything wrong because he again did not want to throw another log on the fire that was threatening to burn down their marriage.

     And that two-hundred and fifty million dollars that Frank McCourt had testified his wife had demanded from him?  Boies displays an e-mail from a business advisor to Frank suggesting that keeping such a sum in cash was a wise business move because it could be earning interest.  For every fact each side has a counter explanation. 

     Boies turns his attention to the heart of the dispute: the 2004 Marital Property Agreement.  He presents a version of the agreement signed in April, 2004 to Frank and there is a glaring problem:   Paragraph Two of a “schedule” to the agreement reads that certain properties are excluded from Frank McCourt’s separate property and included in that list are the Los Angeles Dodgers.  There is a red arrow from “excludes” to “Dodgers” on the overhead projector displaying the document to the courtroom. 

     “Can you please lose the red arrow?” bellows Judge Scott M. Gordon.  “I think we all get the point.”

     Frank McCourt replies that he never really bothered to read the agreement, that everyone understood what was trying to be done and that it was simply an obvious mistake.  This flawed agreement, referred to at the judge’s behest as the “California Agreement,” conflicted with the “Massachusetts Agreement,” which was signed in March, 2004 and accurately included the Dodgers as his separate property. 

     However, there is also another problem:  the original “California Agreement” was signed by Frank and Jamie and notarized. At some point lawyers for Frank McCourt realized their error of excluding the Dodgers as his separate property, replaced the schedule with one that included the Dodgers as his separate property, but failed to notify Jamie that they had made this switch and never gave her a copy of the original agreement.

     While Frank testifies that this was all innocent enough and done in good faith Mr. Boies points out that her lawyers were only able to obtain a copy of the original “California Agreement” by subpoena and that no one from Frank’s legal team could pinpoint when or by whom the all important change in the language of the agreement was made.   The mistake and subsequent correction is perhaps the result of the McCourts’ east coast lawyers’ lack of familiarity with California community property law.  Using “exclude” rather than “include” could be a one-word mistake that will cost Mr. McCourt ownership of the Dodgers.

     “Mr. McCourt, if you had signed a real estate contract with another party, do you think that it would be proper to unilaterally change a list of assets in the agreement after it had been signed?”

     “No, Mr. Boies, I think that would be terrible.”

     “But you think that it is okay in this case to change the language of the agreement after it has been signed and notarized?”

     “In some instances, if the intent of the parties is known and agreed to and an innocent and obvious mistake was made, then in such a case - as is this one - that would be okay, Mr. Boies.”

 

     The court recesses for lunch. In the main family law hallway families and children await their scheduled appearances.  The color of their skin, their clothes, the lack of lawyers and dollies of evidence surrounding them, their waiting… all stand in sharp contrast to the McCourt trial.

 

     The Court reconvenes at 1:32 pm.  There are whispers in the gallery that Mr. Boies will try to kill time.  The Los Angeles Times had reported that Jamie McCourt would testify, but after today the trial will recess for two weeks and perhaps her team wishes to give her that time for additional preparation.  Mr. Boies’ questioning of Frank McCourt appears to bear out these suspicions.

     “Without the Marital Property Agreement did you believe that there was a chance that the Dodgers would be community property?”

     “Without the Marital Property Agreement did you believe there was a chance that the houses (of which there eight) would be community property?”

     “Without the Marital Property Agreement did you believe there was a likelihood that the Dodgers would be community property?”

     “Without the Marital Property Agreement did you believe there was a likelihood that the houses would be community property?”

     “How large did you think the chance was?”

     “How large did you think the likelihood was?”

     “Can you compare this chance to that likelihood?... This chance to that chance?...  This likelihood to that chance?...”

     “How was your wife supposed to live off of just having houses if she was not to receive any of your income from the Dodgers?”

     “She had a menu of houses.  She could have eight houses and a lot of debt.  She could have four houses and a little debt or she could have two houses and a lot of money.”

      Frank and Boies haggle over a chart scheduling the value of their homes, the debt owed on them, and the equity in each.  Mr. Boies is trying to point out that there is only substantial equity in three of them… at some point there is a discrepancy in the numbers they are working with.  Mr. McCourt tries a failed attempt at humor in shrugging off a difference of a million dollars in the figures they are working with:  “What’s a million?  Right, Mr. Boies?”

     No one in the courtroom laughs.

     Mr. Boies and Mr. McCourt do loops trying to define “Dodgers.” 

     “When I say ‘Dodgers’ I mean…” (Boies)

     “That’s not what I mean when I say ‘Dodgers.’  When I say ‘Dodgers’ I mean…”  (McCourt)

     Questioning resumes.

     The “Dodgers” are again mentioned.  This spins them right back into what the other means when he says “Dodgers.”

     What Frank McCourt means when he says “Dodgers” never becomes clear, but one thing is clear:  it is a dry interpretation of assets and companies that has almost no relationship to what Dodgers fans mean when they say “Dodgers.”

     The judge has had enough.  “I think we’ve trampled the same path over and over again.  If we’re going to trample a path to make room for another lane on the freeway, then I’m all for it, but that’s not what we seem to be doing here.”

     The courtroom has thinned out from Mr. Boies’ stalling tactics, but those who have left were wrong:  Jamie McCourt will now take the stand.

 

     At 3:21 pm Mr. Boies begins his direct examination of Jamie McCourt.  She received a law degree from the University of Maryland.  She received a business degree from MIT. Frank McCourt will use these facts to argue that it is bogus that she did not understand the Marital Property Agreement, which he claims delineated the Dodgers as his separate property.  She even testifies that although she worked in family law, she never studied or had any expertise in community property law.

     She testifies that a pivotal meeting that Frank McCourt had testified to never happened.

     As far as she knew, the lawyer who drew up the Marital Property Agreement, Mr. Silverstein, represented both her and her husband; not just her husband.  If the lawyer was purporting to represent both of them but was acting in the best interest of Frank alone, then Jamie should have been advised to seek independent counsel.  Mr. Boies presents her with an e-mail from Mr. Silverstein which indicates that she along with Frank was his joint client.  “And what impact did this e-mail have on you regarding your impressions of whether Mr. Silverstein represented Frank solely or whether he represented both of you?

     “Hearsay Your Honor!” objects Mr. Susman. 

     “Overruled” counters Judge Gordon.  “The question does not go to the truth of the matter, but rather the effect that the writing had on mind of the witness.  The witness may answer the question.”

     “The e-mail reinforced my belief that Mr. Silverstein represented both my husband and myself.”

     “The objection is now sustained, the testimony shall be stricken and the document excluded because it had no impact on the frame of mind of the witness because it only made her continue to believe what she already believed” Judge Gordon chimes in.

     Jamie continues her testimony. Never in any of the discussions about the agreement did she understand that it was designed for her to give up her rights to the Dodgers assets.  She and Frank had “raised each other,” owning a profession sports team was everything they both had ever worked for and for her to just give up her interest was “preposterous.”

     The McCourts had previously tried to acquire the Boston Red Sox, but she was happier about acquiring the Dodgers because it is “warm” in Los Angeles.  Her hollow reasons for being happy to own the Dodgers rather than the Red Sox complement Frank’s dry definition of “Dodgers.”  There is no mention of Jackie Robinson, Roy Campanella, Sandy Koufax, or the heroics of Kirk Gibson and Orel Hershiser in leading the Dodgers to the 1988 World Series.  To one the “Dodgers” are a portfolio of interrelated real estate assets and companies and to the other the "Dodgers" mean that one can get a better tan in Los Angeles than Boston. 

     Court adjourns at 4:02 because the judge has previous business to attend to involving a child custody dispute.

     Frank McCourt thanks a bailiff on his way out of the courtroom.  He holds the door open for a member of the general public exiting the courtroom. 

 

     Four or five news outlets have cameras waiting outside the Stanley Mosk Courthouse’s side entrance on West First Street in downtown Los Angeles.  Parked by the curb are several luxury vehicles, including one which is a cross between a mini-bus and a limousine " perfectly suited for a battalion of lawyers.

     Two marble walls four feet tall with a two foot wide surface on top flank the side entrance to the courthouse. On either side of the entrance stand two homeless people with all of their worldly belongings stacked neatly on the surfaces of the walls.  The McCourts and their lawyers will walk right by them when they exit the courthouse and make their way into their awaiting town cars and limousines.

 

     At 4:50 pm on Olvera Street, blocks away from the courthouse where the nascency of Los Angeles’s Spanish beginnings and buildings are preserved, a three-piece Mariachi band serenades a young Latino couple in a Mexican restaurant.  The woman gazes longingly at the musicians as they play music with which she shares a lifetime of familiarity.  An elderly gentleman sings while shaking maracas, another strums an acoustic guitar accompanied by a teen doing the same.

     Passing by, a man with a southern accent with a bent brim Dodgers hat enjoys the booths of odd trinkets that adorn Olvera Street with his family. 

     A young group of Latinos enters the Mexican restaurant.  A girl wears a t-shirt scrawled with the words “American Eagle.”  A young man wears a "Dodgers" shirt.

     Passersby have on jerseys and t-shirts bearing the names of Dodgers past and present.   Olvera Street is a perfect place to grab a meal, a three dollar Dos Equis during happy hour, and enjoy the sights and sounds of old Los Angeles before heading up to Dodger Stadium to watch a game.

 

     At 7 p.m. the Los Angeles police are being honored before tonight’s game at Dodger Stadium. Policemen and women line the first baseline.  Frank McCourt stands at home plate beaming much the way his wife was when greeting her legal team earlier that morning before the day’s legal proceedings.  A policewoman sings the national anthem in impressive fashion.  As she hits her final triumphant notes, four police helicopters appear from over the stadium from behind home plate and fly out towards and across centerfield into the distance of the San Gabriel Mountains that adorn the view beyond the outfield walls of Dodger Stadium.

     After the conclusion of the pregame ceremonies Frank McCourt takes a seat three rows back behind home plate on the third base side.  One of his attorneys sits beside him.  Behind Frank sit his younger legal assistants.  It is a Friday night outing for his legal team.

     The crowd is compacted into the seats on all three levels around home plate and the infield lines.  The outfield seats are largely empty.  The Dodgers are out of contention in the National League West.

     Despite the Dodgers’ languishing in the standings and there being no big free agent signings on the horizon, all is well with the friendly yet boisterous fans in the crowd because Vin Scully, who has been announcing Dodger games since 1950 when they were still the Brooklyn Dodgers, has announced that he will return next year to announce for another season.   

     The Dodgers are lifted to victory over the San Francisco Giants this evening in part by a two run home run by Rod Barajas, a journeyman catcher and Los Angeles native, who Vin Scully had earlier joked was part of his inspiration for returning for another season.  The decisive RBIs are contributed by Chad Billingsley in a 4 - 2 victory, illustrating the ineptness of an offense that was fortunate enough to have the pitcher contribute to their output.

     High above home plate on the uppermost tier of the stadium the “Dodgers” logo in cursive with a baseball shooting towards the sky stands above the festivities much like the Great Seal of the State of California hangs above the courtroom.  In a press box two decks above home plate sits Vin Scully, his voice resonating throughout the stadium when one stands in line to buy a twelve dollar Dos Equis.  Vin Scully’s eminence in this baseball cathedral is unquestioned, his voice reminding us that the Dodgers belong to the generations.