Hello, this is TwistNHook from SBN's Cal site, California Golden Blogs. We've been taking a ponder at the impending Sterling trial for the last few weeks. This is part 9 and here are the other first parts:
Part 2: Mental Capacity And The Law
Part 3: Shelly Sterling's Filings
Part 4: June 23 Trial Setting Conference
Part 5: June 30 Trial Setting Conference
OK, so here we are. The 4th Day of Trial. This trial was not supposed to last more than 4 days, but it's seemingly endless. If you remember, at the June 30 pre-trial conference, the Judge set two issues for the trial:
*Did Shelly Sterling properly comply with the terms of the Sterling Family Trust in having Donald removed as a co-trustee, or was Donald defrauded by Shelly and/or two doctors who examined him and found him to be mentally incapacitated?
*After Donald exercised his right to revoke the trust agreement on June 9, did Shelly have the legal right to go ahead with the sale of the Clippers to billionaire former Microsoft CEO Steve Ballmer?
The first issue is very fact intensive, while the second issue is very legally-focused. So, we've had a week of testimony and we're really only touching on one of the issues. It's not clear to me how the Judge wants the parties to approach the second topic. Shelly Sterling's witness list included proposed testimony from a well respected Trust attorney, so we may see them. Not sure.
But the reality is that the testimony we are seeing here is focused on the first issue. The overall picture is whether or not Shelly Sterling appropriately removed DTS. The Judge is not necessarily needing to find any facts about the NBA's ban of DTS or or what DTS thought about the sale before it happened or the terms of the sale itself. He could, if he so desired. That stuff is not as relevant, though. DTS could have been 100% against the deal from day zero and if he is not the Trustee, then he has no control over the matter. Certainly, anybody who isn't DTS will look at the 2 bil sale and say it is in the best interest of the Trust.
Today, in particular, seemed packed with mostly irrelevant seeming testimony. There was some key testimony, like this bit that notes DTS was aware of the examinations, which was in dispute:
Shelly said she told Donald about the examinations. He knew he was being examined.— Arash Markazi (@ArashMarkazi) July 10, 2014
I want to note that there is nowhere in the Trust that requires the Trustee to be aware he is being examined. DTS has some amount of mental capacity, but many times the Trustee wholly lacks capacity. They think its 1952 and you are their long dead mother. If there was a requirement that they have awareness of the meaning of the examination, it would defeat the purpose of the provision itself. How can you remove somebody for lack of capacity if the lack of capacity itself precludes you from alerting them to the potential removal? A modern Buddhist koan up there with "Can one drag and drop a file folder into itself?" and "What is the sound of one hand selfie-ing?"
So, I think the thread of questioning about what DTS did and did not know is not wholly relevant here. It is more relevant than the extensive discussion about the NBA ban and the sale discussions that was most of Shelly's testimony.
"His biggest concern was to stop the sale of the team by the league." - Shelly on Donald's mindset before 6/3 NBA meeting— Dan Woike (@DanWoikeSports) July 10, 2014
Shelly said she had an understanding with Donald that she had the right to sell the team before June 3 so NBA would cancel the meeting.— Arash Markazi (@ArashMarkazi) July 10, 2014
Bidders would come to Sterling home in Malibu for an interview. Shelly spent about 12 hours interviewing bidders she said.— Arash Markazi (@ArashMarkazi) July 10, 2014
Shelly said there were 3-4 bids. 1.2B, 1.5B, 1.62B, 1.99B. The last bid was Ballmer's and became 2B.— Arash Markazi (@ArashMarkazi) July 10, 2014
Shelly said Donald was adamant about selling the Clippers before June 3 and suddenly changed after the $2 billion agreement with Ballmer.— Arash Markazi (@ArashMarkazi) July 10, 2014
I think that Shelly Sterling's attorneys want to cover all bases. They want to paint DTS as untrustworthy. They want to show all the hard work that has gone into the sale. They want to show that they got the best deal they could. They don't want to leave anything out. I understand the thought process, but I don't know if there is much reason to talk about the NBA stuff in more detail. In one sense, it doesn't matter.
She did have some testimony about what might happen if the Trust is revoked:
Since DTS revoked trust, banks have tried to recall $500 million in loans, per Shelly— Dan Woike (@DanWoikeSports) July 10, 2014
Shelly said Sterling Family Trust has over $500 million in bank loans.— Arash Markazi (@ArashMarkazi) July 10, 2014
OK, so that's something. However, the second issue, like I said, is technical in nature. The question is not what happens to this Trust in specific when it gets revoked, it is what happens to Trusts in general. Whether this Trust has 0 million in liabilities or $500 million in liabilities does not matter. What would matter is whether the revocation of a Trust leads to the "immediate cessation" of all Trust activities or whether the Trustee still has the power and authority to finalize Trust matters (including the completion of a legally binding sales contract)?
So, Shelly spoke a lot about the NBA issues and touched a bit more on the doctors situation coupled with the revocation. If the two issues above are the only issues the Judge cares about, he might not find there to be too much of interest so far.
DTS' attorneys are trying to create some sort of weird conspiracy theory. They wanted to call Shelly's attorney as a witness.
Ruttenberg says Pierce O'Donnell has "his fingers" on everything that's happened. Setting up case that Shelly's legal team was behind fraud— Dan Woike (@DanWoikeSports) July 10, 2014
Ruttenberg is going after O'Donnell, he wants Shelly Sterling's attorney called as a witness.— Arash Markazi (@ArashMarkazi) July 10, 2014
Judge is hesitant to do that. Judge: "It is somewhat frowned upon to have counsel serve as a witness."— Arash Markazi (@ArashMarkazi) July 10, 2014
They went into that more on cross, but first they had to show up.
Shelly is on the stand but Donald's lawyers aren't here. #Awkward— Arash Markazi (@ArashMarkazi) July 10, 2014
They were apparently late. They talked about the thought process behind trying to remove DTS as Trustee.
Shelly: "I had in mind my husband's welfare. I wanted to know what was wring with my husband's mood swings. I was concerned for his health."— Arash Markazi (@ArashMarkazi) July 10, 2014
Blecher asks Shelly if she fist got idea to "displace" Donald during her meeting with Adam Silver during the playoffs.— Dan Woike (@DanWoikeSports) July 10, 2014
They are trying to paint it as some sort of nefarious plot, but I'm not sure if people are buying it. With DTS' erratic testimony (both on TV and in the Court), it seems appropriate to be concerned about his mental health and fitness as a Trustee. Then, they went even deeper into the conspiracy theory of it.
Blecher questioning Shelly, asking her why her lawyers were talking to the doctors she hired?— Dan Woike (@DanWoikeSports) July 10, 2014
Sounds like it got intense.
Blecher is raising his voice at Shelly, essentially screaming at her and asking her why her attorney is talking to the doctors.— Arash Markazi (@ArashMarkazi) July 10, 2014
But Shelly fought back.
Shelly going after Blecher now, "You told me it was a good idea to sell the team and don't deny it."— Arash Markazi (@ArashMarkazi) July 10, 2014
Can I say how unbelievably normal it is for lawyers to talk to doctors. I've been involved with these medical evaluations before and I've spoken directly with doctors before. It's not part of some weird conspiracy theory.
Then, they talked more about the NBA inside baseball (basketball?).
Shelly Sterling said Adam Silver discussed reducing Donald's ban to a year and 2 yrs of probation.— Dan Woike (@DanWoikeSports) July 10, 2014
Which is, not, um, what the NBA has said about the matter.— Dan Woike (@DanWoikeSports) July 10, 2014
Not sure how relevant any of that is. It sounds as if Shelly Sterling was the only witness to testify today. She has a lot of intrigue to provide to the world and it is all very interesting in a sense. But if we are focused solely on the two issues the Judge outlined, then it was a seemingly wasted day.
That was the extent of the testimony that Shelly Sterling wanted to put on. She had two doctors, Donald, and herself testify. We learned a lot about the behind the scenes stuff of that time period lo those many one month ago. We learned a very little about the medical evaluations. The Judge says we have 1.5 more days of trial.
Sterling trial will reconvene July 21 at 8:30am and go all day and continue July 22 at 1:30pm. End of testimony should be July 22.— Arash Markazi (@ArashMarkazi) July 10, 2014
Then, closing will be a week after that.
Closing arguments will be July 28 at 1:30 p.m.— Dan Woike (@DanWoikeSports) July 10, 2014
The delay is partially (mostly?) due to one of DTS' attorneys.
Sterling trial is off next week because Donald's attorney Max Blecher is on vacation.— Arash Markazi (@ArashMarkazi) July 10, 2014
These people have so many attorneys, I'm sure that he could have found other attorneys out there to take Blecher's place. This may be a bad faith delay tactic or a good faith vacation. It does not matter, really. There was concern about the July 15 deadline, but it never seemed that relevant to me. Additionally, the contract apparently allows for postponements on these sort of things
There is an extension for Clippers sale to be completed by Aug. 15, back one month from the original July 15 deadline.— Arash Markazi (@ArashMarkazi) July 11, 2014
It will be nice to get a break from writing one of these posts every night. We're in the home stretch, guys! Two Mondays from now, we'll see what DTS' team has up its sleeve. How will they prove that Shelly's secret conspiracy plan to reveal DTS' private health information ruined everything? We'll find out then! What are your thoughts? Leave them in the comments and GO BEARS!