Thursday, October 29, 2009

Letter of the Week

This letter came from Vernon Merritt, who felt strongly enough on this subject to dedicate 554 words to it. We felt strongly enough to post all 554 words here:

Mr. Friedman continues to impress with his analysis of the respective parties legal arguments in NY Supreme Court. His latest report from the frontline, "Part 48," was perhaps one of the most interesting because he was able to create a somewhat disturbing account of what he clearly believes - and what I now believe - has become a theater of the absurd.

Everything that seemed good and right about having a knowledgeable Judge and the best attorneys that money could buy to parry back and forth over arcane but not inconsequential matters relating to the AC competition has apparently gone out the porthole. Whereas hale matters of precedent and procedure and the Deed all seemed as though they should be integral to the ever-changing lines of engagement, now the matters are fluff, hype, outright prevarication(s), and other deceptions. How can the process EVER permit such legal minds to engage so aimlessly and ineffectually in what should be purposeful fact-finding and argument? It is a disgrace. And it seems as if (despite the correctness of Judge Kornreich's bench decision re: venue) that you can see these dubious rulings, empty argument and et cetera coming in painfully slow motion. OUCH!

How does each billionaire hire such hapless legal talent?

How does the uber-well paid, hapless legal talent so ingloriously prepare for their supreme moment in the brightest limelight of this world's foremost yachting royalty? Not to mention just REALLY rich, REALLY well-connected society with REALLY big bank accounts and personal and professional legal matters they believe are REALLY important?? As in, a theater filled with potential future clients all easily capable of paying multi-thousand dollar/hour legal fees...

How does a Boies get away with NOT having anyone from Ellison's team at his side to not only provide him with helpful, necessary perspective on the case, but also to just shut him up when that would be appropriate?

How is a Judge at this stage of the game with this litigation and at the Supreme Court level permitted to simply state - in a potentially backbreaking, revisionist history kind of way - that there is an allegedly "unrebutted" affidavit re: the rules that really was already extensively "rebutted" in open Court by Jim Kearny? And then THAT statement is allowed to go "unrebutted" because Boies didn't have the aforementioned legal lieutenant at his side?

And no clerk there to whisper into Judge Kornreich's ear that Barry Ostrager was taking such liberties with the truth that her Courtroom was in imminent danger of becoming irreparably desecrated?

If there was ONE aspect of the entire - SO PREDICTABLE what with dueling, bratty, self-absorbed, "it's all about me" billionaires controlling events - AC33 acrimony that should have and could have been a source of peace, wisdom and common sense (especially with so much foreign media-types watching closely), it is the venue of the NY Supreme Court. So far, Judge Kornreich has proven that we cannot have faith for that. One can only hope that when she rules on the rules later this week, she reaches out to Cory Friedman for some much needed guidance!! It would seem that any perception of the good Judge as a masterful jurist is also at risk, as is any hope that the rest of the world will have faith in her rulings.

Oy vey!!!

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1 Comments:

At 4:25 AM, Anonymous Anonymous said...

Below is an unpublished comment I sent to the editor of Scuttlebutt on the 6th August 2009, but I stand by my observations now as much as I did then:
I've particularly enjoyed Corey Friedman's analysis of the legal shenanigans in which the America's Cup has become ensnared. But I take issue with him on one point -
specifically his assertion that "The only way a judge gets the information he or she needs to reach the correct result in this case is for the lawyers and sailors to work closely to make sure everything the judge needs is clearly and completely laid out in the papers." (Part 42, 04/08/09)

I agree with his qualifier that " While this case turns on the legal issues framed by the Deed, applying the Deed rationally requires an understanding of how the sailing game and its rules work...running too far from the RRS can leave the court deciding what the Deed requires in a vacuum."

In any case a judge will examine the pleadings & hear oral testimony but cannot entertain a claim which is not in the pleadings. Ultimately the judge has three possible courses of action:
(1) Find for the Plaintiff/Appellant;
(2) Find for the Defendant/Respondent;
(3) Find a "Third Way" which may accommodate one or both parties to varying degrees.

The judge cannot be entirely dependent on the lawyers as to reaching an understanding of the common course of dealing in the matter in dispute. Both parties are of course partial & their pleadings & testimony should be treated with circumspection & skepticism. Only an independently minded judge versed in the conventions of the disputed area will have sufficient understanding to weigh-up the submissions & if necessary accept neither of them & substitute a "third" course of action. Without this background understanding the judge is making legal decisions in a vacuum & the law does not exist nor operate in a vacuum but in the real world where its impacts on people can be profound.In this respect this case should only be heard by a judge who is conversant with the conventions of staging international regattas at the highest level, or should at least have researched the field or received the requisite advice. It is for this reason that there exists in various jurisdictions the "Master of the Rolls" - that is the judge who assigns cases to the other members of the bench. Because a judge needs to know so much more than just the law, the Master will assign judges with relevant skills and experience to particular cases.In this case Justice Kornreich should have either done more homework or the case should have been assigned to another judge with the required experience in the field of sailing, not merely Equity & the Law of Trusts.

Alas, if common sense had prevailed in the Mercury Bay case (1988) & the words in the Deed "...for friendly competition between foreign countries" had been strictly enforced we might all be witnessing a regatta in 21st Century "Super Js" - 130 foot carbon fibre monohull sloops weighing 30-odd tons & sporting 6000 sq of upwind sail...now where have I seen such a craft?

 

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