Donald Sterling's Chances Are Sinking
The likelihood of Donald Sterling regaining control of the Los Angeles Clippers grew even slimmer after a preliminary hearing yesterday. First, the presiding judge expressed his doubt that there was any need for a trial, because the Sterling Family Trust documents so clearly authorized Donald Sterling's ouster as soon as Shelly Sterling's experts certified that he suffered from mental incapacity. Second, even if the court allows Donald Sterling to present his own medical testimony, Donald Sterling's expert (1) apparently has never previously treated him and (2) is not available to testify during the scheduled trial. Judge Levanas has ordered the parties to file briefs by June 30 and stated that if there is to be a trial, it might last only "five minutes".
Follow below the fold for details on the bad news for Donald Sterling
Judge Levanas Believes The Trust Documents Clearly Empower The Removal Of Donald Sterling As Trustee
After reading the Sterling Family Trust, Judge Levanas stated that the provision providing for the disqualification of a trustee upon a finding mental incapacity by two qualified physicians to be unambiguous and not to allow Donald Sterling to present countervailing medical evidence. Judge Levanas stated that while it may have been unwise for Donald Sterling to agree to such a low threshold for his disqualification, he was "having a hard time seeing how it is ambiguous." In fact, Judge Levanas stated that he read the Sterling Family Trust deed to allow the removal of Donald Sterling as trustee without court intervention.
“I don’t know why you need a court. Essentially, if a trustee has the power, they have the power,” Levanas said. “Why is it you need the court to be involved?”
The attorneys for Steve Ballmer (the purchaser) and Shelly Sterling (the seller) answered that they were seeking court endorsement of Donald Sterling's removal in order to provide clarity that Shelly Sterling had the authority to sell the team. Judge Levanas stated that he saw the only issue for trial being whether the two physicians "checked the boxes" set forth in the Trust. Assuming the answer was yes, Donald Sterling would be out as trustee and Shelly Sterling would be empowered to sell the team.
Donald Sterling's legal team was forced to argue that the court should not enforce the Sterling Family Trust deed in its current form. According to Max Blecher, up until December 2013, the Sterling Family Trust deed provided that a trustee would be restored to his office if a physician provided a conflicting certification of competency. Blecher stated that this provision was "inadvertently" deleted when the Sterling Family Trust Deed was amended in December 2013.
"Somehow (that reinstatement provision) dropped out," Blecher told the judge. "We would tender to you that that inadvertent omission should be corrected as a matter of equity."
Donald Sterling's Expert Has Never Treated Him And Is Unavailable To Testify On July 7 - 10
Even if Judge Levanas allows Donald Sterling to present his own medical testimony, Donald Sterling's proposed expert - Dr. Jeffrey Cumming - appears to me to be the wrong choice. The problem is not Dr. Cumming's training or knowledge. He is a world-renowned expert on dementia who serves as the director of the Cleveland Clinic's Center for Brain Health and a professor at Case Western University Medical School.
The first problem with Dr. Cumming is that he has no history of treating Donald Sterling. According to the affidavit that Dr. Cumming submitted to the court, he has been retained to "review Donald Sterling's medical records, conduct any necessary medical examinations and possibly provide trial testimony." It is clear that Dr. Cumming has never previously treated Donald Sterling and has not yet examined him.
In my experience trying high-stakes competency cases, the testimony of an expert who is paid to conduct a competency evaluation for the purpose of trial is given much less weight than the testimony of a treating physician who has a history with the patient. Even the most highly credentialed expert (like Dr. Cumming) is likely to be regarded by the court as an advocate, rather than a trusted source of medical information. It would have been far better for Donald Sterling's legal team to bring forward his treating physicians, so long as they would testify that he was competent, even if they did not have Dr. Cumming's credentials in neurology.
The second problem with Dr. Cumming is that he is not available to testify during the July 7 - 10 window set for trial. His affidavit states that Dr. Cumming "will be traveling abroad from July 4 to July 20 to attend a medical conference and engage in additional activities." On the basis of Dr. Cumming's unavailability, Donald Sterling's attorneys requested that the trial be postponed until August.
Dr. Cumming's claim of unavailability has already hurt his credibility with Judge Levanas. Judges often bridle at expert witnesses who claim to be too busy to meet the court's schedule. Judge Levanas was dubious about Dr. Cumming's vague claim of unavailability, particularly since he has not yet evaluated Donald Sterling. He ordered Donald Sterling's attorneys to explain why Dr. Cumming had to be absent for two weeks in order to attend a medical conference. He also ordered the parties to explore whether Dr. Cumming's testimony could be given in a videotaped deposition.
The Court Will Likely Allow Donald Sterling To Submit Medical Testimony And Then Rule Against Him
Judge Levanas clearly has a strong pre-disposition to affirm the finding that Donald Sterling is mentally incapacitated. In his view, Donald Sterling signed a revised Sterling Family Trust that authorized his removal upon the certification of two qualified physicians without the opportunity for rebuttal.
Judge Levanas will want to protect his record so that he does not run the risk of reversal on appeal. Appellate courts will often reverse a trial judge for refusing to hear evidence, but rarely reverse a trial judge's evaluation of credibility of competing testimony. I expect that when the parties appear before Judge Levanas on June 30, he will order that Dr. Cumming testify either live in person at trial, live by video terminal, or by videotaped deposition. And, once the record is complete, Judge Levanas will give Shelly Sterling the ruling she needs to sell the team despite Donald Sterling's objection.