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This time they succeeded. Frank — or perhaps, Frank and Jamie — acquired the Dodgers from News Corp. in 2004 for $430 million, and the family moved west. The Dodgers started winning more games, and the pair enjoyed a meteoric rise to fame and fortune. As CEO of the Dodgers, Jamie became the highest-ranking woman in Major League Baseball, and the Los Angeles Business Journal named the McCourts its 2008 “Power Couple of the Year.”

The McCourts employed an asset protection technique not uncommon among the wealthy. Business assets were titled in Frank’s name while Jamie owned personal assets, such as homes. With the move to Los Ange-les, they asked Bingham McCutchen to create a marital property agreement (MPA) to protect their assets under California law.

During the process, the pair signed multiple copies — and more important, two versions — of the agreement. Unfor-tunately for all concerned, the language in the two versions was not consistent as to who owned the couple’s most valu-able asset: the Dodgers.

And then the marriage failed. Alleg-ing that Jamie had an affair with her driver (a Dodgers employee), Frank fired her from her position as CEO. Jamie then sued Frank for divorce, seek-ing $988,845 in monthly spousal sup-port, reinstatement as CEO, and co-ownership of the baseball team.

Just before the trial, In re McCourt, No. BD514309, Los Angeles Superior Court (2010), one of Jamie’s lawyers — Michael Kump, of Santa Monica, Calif.’s Kinsella Weitzman Iser Kump & Aldsert — and a team of forensic experts dis-covered the contradictory versions of the agreement. Bingham partner Law-rence Silverstein later testified in court that to correct what he called a “draft-ing error” in some copies of the agree-ment, he had switched pages in three of the six copies the couple had signed to

Frank Mccourt strikes outIt wasn't instant replay, it was TrialDirector software that helped the judge determine who owns the Dodgers.

Lawyers often dream of their very own Perry Mason moment where, on the eve of trial, they find the

"smoking gun" evidence that wins the case. Sometimes it happens in real life.

In 1977, Frank McCourt launched The McCourt Company (now The McCourt Group) to develop commer-cial real estate projects. After meeting as undergraduates at Georgetown Univer-sity, McCourt and Jamie Luskin married

in 1979, forming a personal and pro-fessional partnership that would span three decades.

Frank, whose grandfather was a co-owner of the Boston Braves, launched several unsuccessful bids to buy sports franchises — his hometown Boston Red Sox, the Anaheim Angels, and the Tampa Bay Buccaneers. Undeterred, the McCourts set their sights on the Los Angeles Dodgers.

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make all copies match. The most impor-tant change was switching the word “exclusive” to “inclusive”— a change that would have given Frank sole own-ership of the Dodgers. Silverstein tes-tified he made the switch without tell-

ing Frank or Jamie, and admitted that he changed the pages after both had exe-cuted the agreement.

The discovery was critical because if the contradictory versions invalidated the marital property agreement, Jamie stood to get half of the Dodgers under California community property law.

Jamie’s trial team included David Boies (Boies, Schiller & Flexner) and Dennis Wasser (Wasser, Cooperman & Carter). Coordinating the trial technol-ogy was Litigation-Tech's Ted Brooks, (a frequent contributor to LTN).

Frank's team was led by Stephen Susman (Susman Godfrey) and Sor-rell Trope (Trope and Trope). Matthew Boles of Legal Media coordinated trial technology.

The case was assigned to Los Ange-les Superior Court Judge Scott Gor-don, and under normal circumstances, would have been heard in his regular courtroom, Department 88 at the Stan-ley Mosk Courthouse. But that court-room was too small, not only due to the size of the legal teams and their technol-ogy support personnel, but because the

court had received an avalanche of news media credential requests. And Depart-ment 88 couldn't support more than minimal technology. “The only video capability was basically a plasma on top of a file cabinet,” Boles recalled.

The matter was moved to the larger Department 2, but even that venue was tight — reporters were literally breath-ing down the necks of the technology teams who were seated in what would normally be the first rows of the gallery. “It was awkward with rows of them right behind us,” said Boles. To protect the confidentiality of their data, both sides used 3M laptop privacy screens. (Brooks used a 3M GPF 17.0W for his Dell Studio 17. Boles used the 3M PF15.6W with his Lenovo ThinkPad T510 laptops.)

Surprisingly for a jurisdiction that routinely has celebrity cases, there was no public wi-fi in Department 2 (although it's available in other civil courtrooms). Frank's team created a hard-wired local area network for his lawyers to use, said Boles, who also set up a wi-fi hot spot that supported five connections, but due to security con-cerns was used only by the technol-ogists. Brooks set up a Sprint Over-drive 3G/4G hotspot for Jamie's team. “Because 4G is available in Los Ange-les, connection speeds were very good when we had a decent signal,” he said.

Legal teams could not access the courtroom before it was opened to the public, so there was no time for bootups. Brooks would bring laptops “already running and on standby, so they would immediately start up,” said Brooks.

But the larger courtroom offered a crucial technology tool: a 100” Da-Lite InstaTheater screen. That allowed both sides to use the most important technol-ogy in the divorce case: TrialDirector, from Arizona's inData.

TrialDirector helps teams man-age transcripts, video, and documents, and present that content to judges and juries. Among its key features, its tran-script tools help users issue-code tran-scripts, create and print digests, view linked exhibits, and print condensed transcripts with word indexes.

Teams use its video tools to create clips and synchronize video deposi-tions to transcript text. With the docu-ment management resources users can create witness and trial workbooks, and manage exhibit lists. Presentation options run from creating a “tear out” section of a document to playing depo-sitions (with or without scrolling tran-script text). Of particular interest in the McCourt case was the software's ability to do side-by-side document compari-sons of exhibits, and other tools to help compare signatures.

Because it was a family law matter, In re McCourt was a bench trial, which often results in a less dramatic approach to trial presentation than required when attempting to persuade a jury. “Typically, in a bench trial, we would go with fewer bells and whistles,” explained Michael Kump. “It takes time, and most judges prefer to see docu-ments in their hands — instead of on a screen.” But because the trial was under scrutiny from celebrity, business, and sports reporters, who overflowed the courtroom at key moments, both teams adjusted their presentation protocols, treating the media as a de facto jury.

“A lot of the technology was more for the audience than for the judge,” said Boles. “You need some showmanship to convey information clearly so every-

Deliverables

Exhibit A: The ownership of the Dodgers turned on the words "exclusive" and "inclusive" in the property agreement.

one understands,” agreed Kump. “If you don’t put on a good technology show, they feel cheated.”

“Even without a jury, an electronic presentation was the best way to pres-ent the contradictions in the versions,” explained Brooks. “Using TrialDirector, we were able to show both versions of the agreement on the screen at the same time,” he said. “We highlighted the key terms, such ‘Frank’s Separate Property,’ ‘exclusive of,’ and ‘Los Angeles Dodgers’ — and then used it to draw an arrow to show the Dodgers were not Frank’s sep-arate property.” (See exhibit, left.)

“I was able to display both versions of the MPA, and then zoom in and high-light the key differences in them. We also used this technique to show the progressions, where Silverstein’s hand-written edits later became the Massa-chusetts version of the MPA — Dodg-ers included as Frank’s separate prop-erty,” said Brooks. “Forensic handwrit-ing analysis demonstrated that cop-ies of the Massachusetts version were never actually signed with the entire set, because there were no impressions from the pen that signed the document, which was inconsistent with the others. ...Silverstein suggested that maybe all of the other pages — without pen pressure impressions — had been folded under, on only that set.”

Frank McCourt's team also used TrialDirector to showcase key paper-work. “We focused on many docu-ments: e-mails, handwritten notes, not just the two versions of the Marital Property Agreement,” explained Boles. “For every document we brought up, I zoomed in or called out and highlighted the relevant portions of the text.”

Not everyone was impressed with the teams' presentations. Joshua Fisher, a University of Minnesota law student who became a minor celebrity cov-ering the trial on his blog, Dodger- Divorce.com, said he understood the legal necessity of the tactic, but said the constant zooming and document com-parison became tedious.

Brooks remains unapologetic. “Did we go over, and over, and over that doc-

ument with our system? Absolutely. But presenting that document was key to the case, and — unless the judge told us to move along — we were going to do it.”

As happens in all trials, some prepa-ration ends up on the cutting room floor. In this case, Brooks and his team had used TrialDirector to prepare numer-ous deposition video clips, but the judge preferred not to play them. “Instead, we displayed the text — sometimes side by side, sometimes scrolling down from one page to the next,” said Brooks.

“I was caught by surprise the first time, and had to quickly convert the transcripts to .tif images, using Trial-Director. We were also able to capture screen-grabs of many of the more com-plex document arrangements.”

Usually, trial teams would want the very latest version of software with the newest bells and whistles, but Brooks played it safe. “We did our preparation work in TrialDirector 6 because the new version has some huge improvements in its sort capa-bilities, accessing of fields, and audio editing ability,” he said.

“We were able to set up interrog-atories and responses on one slide, working with the trial presenta-tion view, then capturing it. We also used the trial exhibit field to quickly access trial exhibits, and the second exhibit field to create shortcuts for quick access to specific transcript pages. We were able to easily manage more than 30,000 images.”

But the upgrade changed some key-strokes, so for the actual presentation in the courtroom, he stayed with the familiar 5.2 edition. “In this kind of trial, we didn’t have the luxury of hoping we were going to get it right,” Brooks said.

Like sportsmanship in a ball game, even in the most adversarial of situa-tions, courtesy and a sense of fair play between technology teams are usu-ally the norm. Boles was able to leave his small laser printer in the court-room, while Brooks found he had to lug a Canon portable inkjet back and forth each day. “We shared his printer, which helped me, because I didn’t have to set

up my portable each time I needed it.”In another situation, redacted text

was revealed accidentally by Frank's team when a Social Security number appeared on the screen. The judge sub-sequently ordered the teams to redact all such personal information.

“I located and redacted all exhib-its that I could find with confidential information, using TrialDirector, using the search tool in the OCR database,” said Brooks. “Boles’ team also redacted their exhibits that they could find, and sent us the PDF files. When I loaded them, there were no redactions,” Brooks continued.

“Looking at the PDF, the redactions were showing. What we found is that you can see through the redactions made in Acrobat — when using Trial-Director 6. Because Boles was using

TrialDirector 5, he could not see the problem. We notified him that this was an issue," said Brooks.

On Dec. 7, 2010, Judge Gordon issued his 100-page Statement of Deci-sion: It was a victory for Jamie McCourt. He held that the contradictory versions of the MSA invalidated the agreement that gave Frank sole ownership of the team. The parties will now litigate how to divide the McCourts’ assets, includ-ing the Dodgers. As this issue went to press, Bingham was not a party in a mal-practice suit, but the firm has turned to Gibson, Dunn & Crutcher partner Kevin Rosen for advice.

Attorney David Horrigan, formerly a reporter with ALM, is based in Washing-ton, D.C. E-mail: dh@horrigan.pro.

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Playing field: Dept. 2 courtroom diagram.

Player roster: Trial lawyers and firms.

Opening pitch: Exhibit A.

The closer: Plaintiff's PowerPoint.

Final score: Statement of Decision.

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gambling on new trial technologyIn a high profile wrongful death trial, two partners bet that an iPad and app will help persuade the jury.

One week before starting a trial that would become the larg-est verdict of our careers, my

law partner Matt Minner and I were still debating on how best to present our evi-dence. We had discussed it before, of course, but we couldn’t quite come to agreement on the best approach to try a politically sensitive wrongful death case involving the tragic death of a young Alabama police officer, Daniel Golden.

Our firm — Hare, Wynn, Newell & Newton, based in Birmingham, Ala. — represented Golden’s family and his estate in a civil wrongful death suit that followed the criminal adjudication of the case.

We had settled upon our case the-ory, and narrowed down our list of documents to be used as trial exhib-its. What we lacked was a comprehen-sive vision for presenting our evidence and our trial story. As with most cases we take to trial, we had predictably nar-rowed down our technology options for evidence presentation to either inData’sTrialDirector — with a dedi-cated IT professional in the courtroom — or a low-tech approach with old-fash-ioned blow-up foam boards to display crucial information.

In the context of our case, either choice offered advantages and disad-vantages. We wanted to give the jurors a sense of intimacy with the evidence,

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without excessive back-and-forth com-munication between the lawyers and the IT professional running TrialDirec-tor. Often, there is an intangible but dramatic power and immediacy when a lawyer shows the jury a foam board rep-resenting a key document in the case. But just as a little bit of salt perfects a steak but too much ruins it, using ulti-ple foam boards can backfire. We antic-ipated that we had too many exhibits to easily use and manage foam boards.

This clearly favored the use of Trial-Director — which we normally use only in complex medical malpractice trials or product liability cases, which can involve many hundreds (and sometimes many thousands) of documents.

Let’s put our dilemma in the con-text of our case posture. In 2005, Dan-iel Golden was a 27-year-old police offi-cer with the Huntsville, Ala., police department. Huntsville is Alabama’s third most populated city. It is home to NASA’s Marshall Space Flight Center and is surrounded by dozens of space, military and defense contractors. So we knew our jury would be well-educated and tech savvy, and would undoubtedly include at least a few engineers and gov-ernment contractors.

On a slightly rainy, warm afternoon on Aug. 29, along the outskirts of the officer Golden responded to what he perceived to be a routine domes-tic disturbance at the Taqueria Jalisco Mexican Restaurant. The 911 call was placed by Laura Castrajon, the wife of the assailant, Benito Albarran. Police tapes revealed a frantic young woman worried about her own safety as well as the safety of others. Her husband was drunk and “fighting,” she told the 911 operator.

Golden arrived alone, and stepped out of his patrol car. From the eyewit-ness accounts, he hadn’t quite taken four steps toward the front door of the restaurant when Albarran, who was hiding along the front of the building,

suddenly opened fire. Although struck by Albarran’s gunfire, Golden managed to free his Beretta service pistol and fired several shots before it jammed.

Albarran, the restaurant’s cook and manager, then approached the wound-ed officer — who was sitting on the ground and struggling to unjam his weapon — and fired, at point blank range, two bullets into Golden’s head.

On June 19, 2008, Albarran was con-victed of capital murder, and subse-quently sentenced to death.

After the verdict, our firm began to investigate a separate civil case against the Jalisco Restaurant. Initially, it was clear that the restaurant could not be held vicariously liable for the acts of Albarran due to his intervening crim-inal act. In other words, the crime was obviously outside of the line and scope of his duties and thus Jalisco could not be held accountable for the employee’s criminal actions.

However, further investigation revealed that Albarran was almost cer-tainly intoxicated during the event. Later, we were able to trace back his intoxication to beer he consumed — provided by the Jalisco restaurant in violation of several Alcohol Beverage

Control regulations. Furthermore, we were able to link

Alabama’s 100-year-old Dram Shop Act (which generally prohibits serving intoxicated individuals) with the res-taurant’s ABC violations in allowing an employee to consume alcohol.

Under these two laws, it would be illegal to allow Albarran, an employee, to drink Jalisco’s beer during working hours. Thus, if we could ultimately prove what we believe occurred, Jalisco could be held civilly liable for Officer Golden’s death under both the 1909 Dram Shop law and the ABC regulations.

In April of 2011, we began the trial. We structured our trial plan and pre-sentation around these overarching themes, using the ABC Regulations and Dram Shop provisions as key demon-strative exhibits.

In addition to our live witness testi-mony, we would need a variety of med-ical records and films, several police investigation reports and witness state-ments, the 911 transcript and audio tape, several diagrams and photos, and the ability to play a videotaped deposition.

In all, we had more than 45 key trial exhibits, which we felt would be easily manageable in almost any presentation system.

In view of our focus, and the chal-lenges the case presented, we decided to take an entirely different approach — and turn to an Apple iPad for our trial evidence presentation. We would still use a couple of documents blown-up on foam boards for effect, but we decided against using TrialDirector or bring-ing in an independent IT professional. Instead, everything was managed directly from counsel table with mini-mal hardware and technology.

Just prior to trial, I purchased all three of the then-available trial pre-sentation apps from iPad’s app store — Exhibit A, Evidence, and TrialPad. From testing, we found that all three were functional for most purposes. Just

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Case: Donnesa Golden, as Administra-trix of the Estate of Daniel Golden, v. Las Americas, LLC, Beretta USA Corporation, and Benito Ocampo Albarran, No. CV-07-900512.

Judge: J. Scott Vowell, Madison County Circuit Court, Alabama. Defense Counsel: Benjamin Rice; Wilmer & Lee, Huntsville, Ala., for Benito Albar-ran, Taqueria Jalisco Mexican Restau-rant.

ALM Verdict Search Report: bit.ly/LTN118q

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before trial I chose one and stuck with it: the TrialPad for iPad (www.trial pad.com). Cost: $89.99.

I kept all trial documents loaded on the other two apps as a back-up. To be sure, there were some minor glitches. For example, in testing we discovered that not every app supported each doc-ument format we needed. Some could not play audio (our 911 tape), or display video (our trial video deposition). But we worked around these idiosyncra-sies and found we could display all trial content on the iPad.

To do so, we used the native iPad video app to play the trial video depo-sition with synched transcript, and we employed the native iPod app to play the 911 tape, which was converted to an MP3 file. Switching between appli-cations, while perhaps not ideal, was quick and flawless with a double-tap of the iPad’s home button.

Highlighting words, phrases, or key portions of documents was easily han-dled on the iPad’s touchscreen by simply moving a finger to select the portions of the document that needed emphasis. As with TrialDirector, this can be accom-plished in real time as the lawyer or wit-ness is reading the document aloud.

From opening statement to closing argument, we were never more than a few steps away from quickly accessing any document in the case, enlarging it for the jury through the projector with a pinch of the iPad’s touchscreen, and annotating the document with colored circles and lines, or simply highlighting portions of text in a long police report.

We brought our own computer speakers to the courtroom, with a com-pact auditorium-style speaker as a backup. We also used our own portable large screen for the jury — it was posi-tioned in such a way so that it was also visible to witnesses and the trial judge. (If the courtroom had been equipped with monitors for the jurors, witnesses and the judge, we would have plugged into that existing system.)

With a long VGA cord and adapter connected to the projector, we could walk with the iPad as we moved around

the courtroom, or rest the device on a gallery rail while examining a witness. For the times when audio or video was played, an additional small audio cord ran from the iPad’s audio output to the speakers.

The iPad’s 10-hour battery life meant we never had to worry about running out of juice — but we were very careful to start each day with a full charge, as the iPad will not support charging while

in display mode, as it's limited by its sin-gle dock connector port.

Another feature that became vital during witness examinations was the iPad’s ability, like TrialDirector, to pro-cess markups and highlights on docu-ments. We could “time” our delivery of images, because the iPad allows users to enlarge portions of documents without the image feeding to the projector until the “active” indicator is pressed. This meant that one of us could sit at counsel table readying a document for impeach-ment while the other lawyer examined the witness.

Similarly, TrialPad could mark “hot docs” as well as help us organize doc-uments into separate folders — so we could create a folder for the opening, another for the closing, and one for each witness. As new documents and demonstrative aids were needed, we used Dropbox, a web-based document storage and transfer system. With it, our colleagues at the office could transfer documents directly to our iPad trial app, ready for use.

The device’s brilliance became apparent came when we were examin-ing a witness about the alleged signa-ture of Albarran on a beverage receipt signed the day of the shooting. The res-taurant took the position that he was not an employee, nor was there any evi-dence was working that day.

With the pinch and zoom feature of the iPad’s touchscreen, what was almost an illegible faded receipt showing an obscure signature became “exhibit one” in our case for establishing Albarran’s employment — and his presence at the scene on the day of the crime.

On April 19, 2011, the jury returned a verdict in favor of Golden’s family in the amount of $37.5 million, assessing dam-ages of $25 million against Albarran, as well as $12.5 million against the Jalisco Restaurant. No appeal was filed and the time for appeal has expired.

James Moncus III is a trial lawyer with Hare, Wynn, Newell & Newton, based in Birmingham, Alabama. E-mail: jamie@hwnn.com.

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trialPad 2TrialPad 2 debuted in late June. It helps liti-gators organize, manage, and annotate doc-uments to be used in a trial, hearing, or alter-native dispute resolution setting.

It now supports video files; split-screen displays; expanded file management with three views (icon, thumbnail, list); and new highlight and whiteboard tools. The upgrade also supports 13 file formats, including PDF, Microsoft Office files, and images (.jpg, .tiff, .png, and .gif).

The app was created by Ian O'Flaherty, chief software architect, developer, and managing partner of Miami's Lit Software.

Demo videos: bit.ly/LTN118p. — Source: .www.trialpad.com.

We used the native iPad video app to play the trial video

deposition,with synched transcript,

and the native iPod app to play the 911 tape, which was converted

into an mp3 file.