As Clive Cussler stumbled through seven days of trial testimony during his legal showdown with billionaire Philip Anschutz, Judge John P. Shook expressed skepticism about the 75-year-old novelist's performance on the witness stand.
"Mr. Cussler is smart like a fox," Shook said. "He has got an iron-trap mind. He knows what is going on here."
The judge made the statement April 20 when he huddled with lawyers to discuss Cussler's responses before the jury. Like nearly all of the sidebar conferences held in the high-stakes Hollywood trial, the meeting took place behind closed doors.
Transcripts of the sessions obtained by The Times provide rare insights into legal maneuvering, finger-pointing and posturing in the breach-of-contract case. They reveal how entertainment lawyer Bertram Fields prevailed in persuading Shook to ban explosive testimony about Cussler's alleged use of racial and anti-Semitic epithets. And they show Anschutz's attorneys repeatedly challenging the way Fields sought to try the case.
The documents also raise questions about the court rulings and oral arguments that took place inside Shook's private chambers. Legal experts say that routinely closing parts of a civil trial to the public and the press violates the U.S. Constitution and California's long-standing "open court" statute.
"This judge needs a little reminder of the 1st Amendment," said Laurie Levenson, a professor at Loyola Law School. "In no circumstances should every hearing be held in secret."
Cussler is seeking $40 million in damages based on claims that Anschutz and his movie production company reneged on contractual rights that gave the author "sole and absolute" approval over the adaptation of the novel "Sahara."
Anschutz alleges that Cussler acted unreasonably in exercising those approvals and committed fraud by flagrantly inflating sales of his Dirk Pitt novels to extract an unprecedented $20-million fee for rights to "Sahara" and one other book. Anschutz has lost about $105 million on the adventure film, which starred Matthew McConaughey and Penelope Cruz.
Closing arguments continue today and the case is expected to go to the jury Wednesday.
Lawyers who practice in Los Angeles County Superior Court said it was highly unusual for judges to close trial proceedings unless there were compelling reasons such as the need to protect national security interests or trade secrets.
Yet one morning last week, Shook, a court reporter and several lawyers shuffled in and out of the judge's chambers five times in the span of an hour to discuss rebuttal testimony. The participants offered conflicting explanations for convening in private at least 59 times during the 58-day trial.
Marvin Putnam, Anschutz's lead counsel, said the hearings were closed at the request of Fields. "I didn't want this," Putnam said. "It is beyond extraordinary. I've never seen it."
According to the transcripts, however, Putnam's associates from the O'Melveny & Myers law firm argued at least twice against holding hearings in open court. In one instance, an Anschutz lawyer specifically cited "the problem" of trying the case "in the press."
Fields said it was Shook who wanted to hold sidebar conferences in private. "I see nothing sinister about it," Fields said.
Last week Fields declined to discuss what took place during several closed-door meetings. "This judge gets very upset when we talk about what goes on in chambers," he said.
Shook replied: "This judge doesn't get angry about anything." In an interview, he said the lawyers asked to retreat to his office. "They wanted to have sidebar conferences in chambers so the jury wouldn't hear them," Shook said. "It doesn't matter to me one way or another."
The litigants have paid about $180,000 for more than 9,000 pages of daily transcripts, which include the sessions in chambers. Although the transcripts are not available to the public, Shook said he instructed attorneys to provide copies to the press. It was not until last week that The Times obtained nearly all of the transcripts.
The documents show that in at least three cases there is no record of the meetings. These sessions are described as "in chambers not reported."
Before the trial, Fields said in interviews that he was outraged at plans by Anschutz's lawyers to portray Cussler as a "crazed racist and anti-Semite." They claimed in court papers that Cussler made derogatory remarks about blacks and Jews while exercising his screenplay approvals. The author has denied the allegations.
"They want to get these charges in front of a jury," Fields said, "so blacks and Jews will hate him."
Shook ruled that the alleged remarks were too prejudicial to be introduced as evidence. The transcripts reveal that Fields was vigilant about making sure no witness so much as suggested to the jury that his client had uttered a racial or anti-Semitic slur.
On March 27, Fields raised concerns in chambers about potentially damaging testimony by screenwriter David Weisberg.