An attorney acknowledged under oath Tuesday that he changed a key word in the contested property agreement between Frank and Jamie McCourt — after the parties had signed the agreement and without informing either one.
In the most riveting trial testimony to date, Jamie McCourt's attorney relentlessly attacked the actions of Larry Silverstein, the Massachusetts lawyer responsible for substituting language that could decide whether the Dodgers are Frank's alone or property he shares with Jamie.
The McCourts might be the headline attractions at their divorce trial, with ownership of the storied team hanging in the balance, but Silverstein was the witness whose appearance turned an oft-tedious proceeding into a dramatic one.
Silverstein is scheduled to complete his testimony Wednesday or Thursday, after which settlement negotiations are planned, according to sources on both sides of the case.
"Did you think it was OK to switch an exhibit to a legal document after it had been signed and notarized?" attorney David Boies asked.
"In certain circumstances, yes," Silverstein replied.
Silverstein changed the word "exclusive" to "inclusive" to indicate the Dodgers were Frank's sole property and not subject to California community property law.
Frank's attorneys downplayed the significance of Silverstein's admission, saying he owned up to making a mistake and fixing it.
"He came across as very honest and very ethical," said Victoria Cook, an attorney for Frank. "It's not unethical to make a mistake."
But Jamie's attorneys said they were not notified of the change until three weeks before the trial, even though the other side had long been aware of the issue. They also said Silverstein never should have changed a word without checking with his clients first.
"It wasn't up to Mr. Silverstein to make the decision about what was innocent and what wasn't innocent," said Bruce Cooperman, an attorney for Jamie.
Silverstein testified he had practiced law for 33 years.
"In all of your experience," Boies asked, "have you ever known a situation in which a lawyer, after a document has been signed and notarized, has removed a schedule and substituted another without the express written permission of the parties to that agreement?"
Silverstein replied, "Express permission or implicit permission, no."
Silverstein said he had not notified Jamie McCourt of the switch.
Boies asked Silverstein whether he believed he had an "absolute ethical obligation" to tell his client what he had done.
"No, I did not," Silverstein said.
Silverstein made his appearance in the second week of the trial, with a doctor's note that precluded him from testifying for more than half the day. His testimony could be critical to Judge Scott M. Gordon's ruling.
Gordon, who scarcely interrupted during five days of testimony by Frank and Jamie, jumped in with several questions of his own for Silverstein.
Silverstein said he made the switch simply to confirm the McCourts' desire to put their homes in Jamie's name and the team and other businesses in Frank's name, so business creditors could not seize the homes.
"There's nothing sinister," said Steve Susman, another attorney for Frank. "They're claiming it's sinister because it's all they have."
Jamie's attorneys said she never intended to surrender ownership rights to the Dodgers. The attorneys also said Gordon should throw out the agreement, which would make the Dodgers community property and likely result in a sale of the team.
Without Silverstein's switch, three of the six copies say the Dodgers belong solely to Frank and the other three say they are joint property.
"There's no contract when the parties don't have an agreement," Cooperman said.
Boies displayed drafts of the agreement, some of which described the Dodgers as "exclusive" of Frank's separate property, not "inclusive." Boies asked Silverstein whether the word "exclusive" in those drafts meant that the property in question was excluded from Frank's separate property.
"They certainly could be read that way," Silverstein said.
"Could they be read any other way, sir?" Boies said.
"It's hard for me to answer that, because I know what the intent is," Silverstein said. "I just mis-wrote it."
Boies wanted to know why Silverstein corrected what he said was an error without telling either of the McCourts.
"Who gets to determine what an error is?" Boies asked.
"I believe Frank and Jamie fully understood …" Silverstein said.
Boies cut him off.
"Who gets to determine which of the two versions is in error?" Boies said. "Is that up to you unilaterally?"
"No," Silverstein said.
Boies said Silverstein had not notified Jamie he had switched the document to reflect what Silverstein said was the desired wording.
"Indirectly, I did," Silverstein said.
He said he did so on the day Jamie signed the agreements — March 31, 2004 — and at that Boies thundered. Silverstein had said earlier he made the change on or about April 20, after he caught the alleged error in Exhibit A and after the agreements had been signed and notarized.
"On March 31, it's your testimony you didn't even know there were two separate versions of Exhibit A," Boies said. "So, on March 31, you could not have told Jamie McCourt there were two separate versions.
"You told her all six copies were identical. That was false, wasn't it?"
Said Silverstein: "It turned out to be false."