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653
1
2
3 IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA
4 CASE NO. 00-5682-CI-11
5
DELL LIEBREICH, as Personal
6 Representative of the ESTATE OF
LISA McPHERSON,
7
8 Plaintiff,
9 vs. VOLUME 5
10 CHURCH OF SCIENTOLOGY FLAG
SERVICE ORGANIZATION, JANIS
11 JOHNSON, ALAIN KARTUZINSKI
and DAVID HOUGHTON, D.D.S.,
12
Defendants.
13
_______________________________________/
14
15 PROCEEDINGS: Defendants' Ominbus Motion for
Terminating Sanctions and Other Relief.
16
DATE: June 6, 2002, morning session.
17
PLACE: Courtroom B, Judicial Buiding
18 St. Petersburg, Florida.
19 BEFORE: Hon. Susan F. Schaeffer,
Circuit Judge.
20
REPORTED BY: Donna M. Kanabay RMR, CRR,
21 Notary Public,
State of Florida at large.
22
23
24
25
654
1 APPEARANCES:
2 MR. KENNAN G. DANDAR
DANDAR & DANDAR
3 5340 West Kennedy Blvd., Suite 201
Tampa, FL 33602
4 Attorney for Plaintiff.
5 MR. LUKE CHARLES LIROT
LUKE CHARLES LIROT, PA
6 112 N East Street, Street, Suite B
Tampa, FL 33602-4108
7 Attorney for Plaintiff.
8 MR. KENDRICK MOXON
MOXON & KOBRIN
9 1100 Cleveland Street, Suite 900
Clearwater, FL 33755
10 Attorney for Church of Scientology Flag Service
Organization.
11
MR. LEE FUGATE and
12 MR. MORRIS WEINBERG, JR. and
ZUCKERMAN, SPAEDER
13 101 E. Kennedy Blvd, Suite 1200
Tampa, FL 33602-5147
14 Attorneys for Church of Scientology Flag Service
Organization.
15
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655
1 INDEX TO PROCEEDINGS AND EXHIBITS
2 PAGE LINE
3 Recess 748 5
Recess 790 5
4 Reporter's Certificate 791 1
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656
1 (The proceedings resumed at 9:04 a.m.)
2 THE COURT: Good morning.
3 I have a request, please. I have a date that I
4 would like to know. And maybe you all can agree on
5 this. Maybe you can't. And I'm sure that it's in
6 this or in the testimony. But frankly, I figured
7 maybe you all would know it before I would.
8 What I want to know is two things:
9 I want to know when is the first time that the
10 parties -- well, the parties to this lawsuit knew,
11 in deposition or otherwise, that a check from a
12 foreign country had been received by either Dandar,
13 Dandar, Ken Dandar, or the LMT.
14 MR. WEINBERG: So far as Dandar, Dandar, not
15 until Mr. Minton came forward --
16 THE COURT: That's what I thought.
17 MR. WEINBERG: -- whenever that was.
18 THE COURT: LMT?
19 MR. WEINBERG: LMT, Mr. Moxon can probably
20 address that.
21 MR. MOXON: I'm pretty certain, your Honor,
22 that within Ms. Brooks' deposition of August 10th,
23 2001 --
24 MR. FUGATE: 15th.
25 MR. MOXON: August 15th. Excuse me.
657
1 I'll verify that.
2 THE COURT: August 15th. I'm not sure if I
3 have her deposition here or --
4 MR. MOXON: There was a production -- a
5 document production from LMT that had a transfer --
6 No, it was August 15th.
7 THE COURT: Now, was that in a deposition?
8 MR. MOXON: That's correct.
9 THE COURT: Where she said so?
10 MR. MOXON: She produced a document, your
11 Honor.
12 THE COURT: So the document was produced? And
13 it was a check? Is it one of those UBS checks?
14 MR. MOXON: No. It was a wire transfer.
15 I'm being corrected by Sarah. She said there
16 were no documents produced at that deposition. But
17 I'll verify that.
18 THE COURT: That would be the other thing I
19 want to know is, when did you both first learn about
20 a foreign check, verbally or otherwise; and then
21 when did you first get the -- literally get the
22 first document from a foreign bank or a wire or
23 whatever it was.
24 MR. MOXON: Let us just research that, your
25 Honor, and --
658
1 THE COURT: Okay. I remember there had been
2 some discussion Ms. Brooks had provided that
3 information. I think there was some testimony that
4 Mr. Minton was annoyed. I'm not sure -- maybe it
5 wasn't about that.
6 But in any event, I need some dates on that,
7 okay? First date it was testified to orally; second
8 thing -- and that's on either -- you know, in other
9 words, LMT or the Lisa McPherson Trust -- and I
10 assumed that it was based on the testimony of the
11 $500,000 check -- was -- I fairly well knew that,
12 but I didn't know about the -- I think there's a
13 $500,000 check and a $300,000 check that LMT got.
14 MR. FUGATE: There was a wire transfer, I
15 believe, of 500,000, and there was a $300 check.
16 And again, I preface everything with, "I
17 think." But I think what we'll get, when we go back
18 and look at it, is that at the August 15th, 2001
19 deposition, the judge ruled that -- that Ms. Brooks
20 had to answer the questions about the bank records.
21 And I think at that time there was oral testimony
22 that there had been foreign moneys that had gone
23 into the LMT, but that the bank records themselves,
24 and/or the checks, whatever actually demonstrated
25 that, we didn't get until after August 15th, or we
659
1 didn't get at all.
2 Well, let's -- we'll check.
3 THE COURT: Yeah.
4 MR. FUGATE: And Judge, on the subject -- I put
5 into your binder Tuesday's daily transcripts, so
6 you're up to date as of Tuesday. It's that last
7 binder that you've got your hand on.
8 THE COURT: Okay. You all have given me some
9 binders on that testimony. Have you given me
10 testimony from day one?
11 MR. FUGATE: Yes.
12 THE COURT: Okay.
13 MR. FUGATE: Those are -- you know what? I
14 think we have --
15 THE COURT: Well, you know, I remember one day
16 the court reporter handed me a separate copy --
17 THE REPORTER: That was a rough draft, your
18 Honor.
19 THE COURT: Rough draft.
20 Well, I got that, and then I got something that
21 wasn't a rough draft.
22 MR. FUGATE: I think I gave you two binders.
23 And if I'm not mistaken that was the Friday or
24 Thursday, when we last met. And it was everything
25 up to that point in history. And then what you have
660
1 on the far left there is everything from this week,
2 through Tuesday.
3 THE COURT: And just keep it -- if you're doing
4 that, that's great. And if you'll just keep adding
5 to it until it gets too heavy --
6 MR. FUGATE: Mr. Dandar's only request is we
7 not highlight anything, which we showed him there
8 was no highlighting.
9 THE COURT: I know I have at least one other
10 binder. And I just -- I couldn't seem to find it at
11 home. But as I said, I have this stuff strewn --
12 that's why I keep all the evidence copies here,
13 except, when I take them home, I try to bring them
14 back.
15 MR. FUGATE: And Judge, on the binder that I
16 gave you yesterday that has the -- each iteration of
17 the complaint --
18 THE COURT: Yes.
19 MR. FUGATE: -- what we did is we have gotten
20 the face page of each one, with the "filed" stamp on
21 it. And at some point in time I'll take out the one
22 that just has the -- the regular front page and put
23 the file stamp on. I'll show those to Mr. Dandar
24 too.
25 THE COURT: Good. And that will be -- then we
661
1 would know they were actually filed --
2 MR. FUGATE: Actually filed --
3 THE COURT: -- as opposed to served. That's
4 good.
5 Let me see if I have that book here. You gave
6 me two different books. Then I think you might have
7 taken one back.
8 I'll tell you what I'm going to do, I'm going
9 to look through these two books that I think you've
10 given me recently, which may be the same thing.
11 No, you did take one back. You took one back
12 yesterday. Okay. So I only have one. I think this
13 is it.
14 You want to take --
15 MR. FUGATE: If you'll just -- if you don't
16 mind, Judge, I'll --
17 THE COURT: If you'll just take mine back --
18 I notice the first one, for example, has -- one
19 of them has the date stamp on, but then the next one
20 doesn't.
21 MR. FUGATE: What I did -- and I just showed
22 these to Mr. Dandar, for the record. And it's the
23 face page of each pleading. It's in there with the
24 stamp.
25 THE COURT: Right. And if you would fix --
662
1 MR. FUGATE: Circuit court stamp.
2 THE COURT: And if you would fix mine, that
3 would be very helpful. Maybe. I think we
4 established yesterday we were using the certificate
5 of service date, but now we can use the filing
6 date --
7 MR. FUGATE: That's fine.
8 THE COURT: -- or either date if it's
9 necessary.
10 Okay. Are we ready?
11 MR. WEINBERG: Yes.
12 MR. DANDAR: I have one more request.
13 THE COURT: All right.
14 MR. DANDAR: We're in a -- the plaintiff finds
15 itself in a bind, and we need the court's help.
16 THE COURT: Okay.
17 MR. DANDAR: You know, we're being -- we have
18 to deal with this Texas judgment that's come into
19 Florida from the federal court in Texas.
20 THE COURT: I don't know what that means. I
21 don't know much about federal judgments. What do
22 you mean, it's coming into Florida?
23 MR. DANDAR: Well, it's coming into Florida.
24 It's a motion to domesticate it. It's currently
25 before Judge Boyer. We're going to file a motion to
663
1 bring it here because it arises out of this order of
2 Judge Moody in this case.
3 THE COURT: You're going to file that in front
4 of Judge Boyer for him to decide, right?
5 MR. DANDAR: I don't think so. I think it has
6 to come to you.
7 THE COURT: Oh, okay.
8 MR. DANDAR: I'm sorry. I believe it has to
9 come to you.
10 THE COURT: All right.
11 MR. DANDAR: But anyway, Mr. Pope and Mr. Rosen
12 are hot to -- I shouldn't say hot -- they are eager
13 to resume the hearing before Judge Baird on the
14 motion to disqualify. We're here, of course, doing
15 that. I don't know when we're going to get
16 finished. But the court has already given us dates
17 when the court is not going to be available, and the
18 court told us use those dates in this wrongful death
19 case for the 10 or so depositions that were
20 cancelled because of this motion to disqualify so we
21 can get ready for trial, which I still anticipate's
22 going to happen in July.
23 THE COURT: July. You've got to be kidding,
24 Mr. Dandar.
25 MR. DANDAR: Well, we --
664
1 THE COURT: I mean, you really have to be
2 kidding.
3 In the first place, I wonder if you really
4 think that I could just -- when this is all done,
5 which may be the end of June, that I could just rule
6 on it off the top of my head. Probably not. I'll
7 probably ask you all to put something together for
8 me in writing. May not. I may be able to rule. I
9 may not.
10 I mean, it's a lot of stuff. And as you all
11 know -- I hope you know by my orders -- I try to
12 reflect and look and do and do the right thing. So
13 I try not to make hasty judgments. Sometimes I can
14 pretty well know what I'm going to do at the end of
15 a hearing. And if I know what I'm going to do, I'll
16 tell you. You know, I always try to let you know
17 when I've made up my mind. And then I may
18 subsequently put something together in writing. But
19 you don't have to delay for that. You can go on
20 ahead. Because you can't take an appeal, I guess,
21 from anything, or cert or whatever you want to do,
22 until I put in it writing. So I try to let you know
23 when you can go forward.
24 But I don't know that I can tell you when this
25 is over, okay, "Everything's denied and let's set
665
1 the trial dates." You know what I'm saying? I
2 don't know that. I sincerely doubt it. Right now I
3 certainly do not have it in my head.
4 MR. DANDAR: We previously talked about
5 July 8th, after your vacation.
6 THE COURT: Well, I mean, that's assuming
7 that -- that -- that you prevail in the motion.
8 It's assuming I don't disqualify you.
9 MR. DANDAR: I'm always assuming --
10 THE COURT: Right.
11 MR. DANDAR: -- presuming --
12 THE COURT: And --
13 MR. DANDAR: -- yes.
14 THE COURT: Assuming -- I remember you said
15 Mr. Lirot would be ready to go. You know, I'd
16 surely want to hear from Mr. Lirot on that at the
17 time.
18 I mean, this is -- this is fairly phenomenal to
19 me. Because I can't remember, to tell you the
20 truth, what the doctors said. I mean, a lot of
21 times, if you all don't agree, I have to go back.
22 And I've read them. And you know, I don't -- I
23 can't imagine how somebody could be ready in the
24 short amount of time he's been on it. And I don't
25 doubt that he's spent an awful lot of time on it.
666
1 But in any event, if all those things happen,
2 then whenever I've made up my mind, we can set it
3 for trial. I can't just --
4 I mean, I'll do this for you: I'll go ahead
5 and set a tentative trial date for -- for you all.
6 You know, we can discuss that and set a tentative
7 trial date so you can know when it's going to be.
8 But it ain't going to be July. This thing is
9 dragging too slowly for it to be July. The best it
10 would be is August. And that's assuming, as I said,
11 that you prevail on everything; that the depositions
12 can be taken, and whatever has not been taken --
13 Which I assume you all are pretty well down to
14 the wire on it. I don't know, but I would hope you
15 are.
16 MR. DANDAR: Well, we had 10 depositions set
17 and cancelled because of this hearing.
18 THE COURT: How many?
19 MR. DANDAR: 10.
20 THE COURT: Okay.
21 MR. DANDAR: They're experts. Defendant's
22 experts I had scheduled.
23 THE COURT: Okay. So you have to take those.
24 MR. DANDAR: Right.
25 THE COURT: That would be most likely 10 days.
667
1 MR. DANDAR: At least.
2 THE COURT: Well, there you have it. So I
3 mean, here it is. I mean, it's June whatever. I've
4 already announced that the last week of June, first
5 week of July, I'm unavailable. I would be most
6 surprised if we were really truly done with this by
7 July, whatever trial week is.
8 MR. DANDAR: But if -- if the Church of
9 Scientology goes back to Judge Baird with multiple
10 days of the same hearing before him, they're
11 going -- no matter what you decide, they're going to
12 win no matter what. Because their intent is just to
13 make sure this trial never happens. And we're going
14 to be into September, and we're going to be sitting
15 here saying, "When are we going to set a trial
16 date?" And I hope that doesn't happen.
17 THE COURT: Well, as I said, I will be happy to
18 set a trial date.
19 MR. DANDAR: All right.
20 THE COURT: But a realistic one.
21 Remember, for me to get -- you know, this -- I
22 already had to cancel a lot of stuff with the jury
23 coordinator. She was calling me every day. You
24 know, "I need to send out --" you know, I've asked
25 her to send out a lot more summonses simply
668
1 because -- by virtue of the fact that the length of
2 the trial will eliminate just slews of jurors. I
3 had even suggested to her that we might want to call
4 in panels of jurors every day, you know. And so she
5 was prepared to do that. But I called it off at the
6 first available time.
7 This is not easy. You know, this has to be
8 done. They have to be drawn. Everything has to be
9 drawn correctly. It has to go out. Excuses have to
10 be taken. There's a certain amount of time the
11 citizen has.
12 So you're kidding yourself. July's out.
13 That's an absolute out, you know. And after that, I
14 can -- I would say September would be the first
15 realistic date we could have. I mean, that's
16 just -- I'm just being realistic.
17 I mean, what -- what if I enter a ruling on
18 this thing and one side or the other takes the
19 matter up to the DCA and they enter a stay? I mean,
20 it always just -- it's just too tenuous for me to
21 crank up the machinery in that short a time.
22 And frankly, I think we'd be foolish, in light
23 of the fact that you have at least 10 depositions,
24 to set it in August. I don't want to set it and
25 then move it. I mean, I want to have it because of
669
1 all of the stuff that the court has to go through.
2 So I mean, I would say September would be the
3 absolute earliest, if -- if this thing finishes and
4 you prevail on everything and you're still the
5 lawyer, that this can go.
6 MR. DANDAR: It's just an extreme --
7 THE COURT: I mean, I know you disagree. You
8 think that July --
9 MR. DANDAR: It's an extreme financial hardship
10 on the plaintiff. It's just outrageously terrible
11 to have to sit here all this time. Everyone over on
12 this side is getting paid by the hour. We're
13 sitting over here wondering what happens to our law
14 practice.
15 And I have cases set for trial in late
16 September through the rest of the year, because we
17 had a trial date certain. And I had my experts who
18 had vacations, whenever they're going. And all that
19 was coordinated.
20 THE COURT: Well, didn't we have four months
21 set aside?
22 MR. DANDAR: Three to four months, right,
23 beginning July -- June 10th.
24 THE COURT: So June, July, August, September.
25 MR. DANDAR: Right.
670
1 THE COURT: Can't you try -- you know, so if I
2 set it in September, you go first.
3 MR. DANDAR: But if it's three to four months,
4 starting September, it'll be terrible for my other
5 clients, 'cause their trials are set in October,
6 November, December, all the way.
7 THE COURT: Well, then, you know, you have a
8 choice to make, is all I can tell you.
9 MR. DANDAR: I know.
10 THE COURT: I can't set it in July. It's not
11 going to be ready. I'm not going to set it in July.
12 If you think that everything can be done and
13 reasonably done by August, I'll set it. But if it's
14 not, then I'm going to be most aggravated.
15 I mean, you're the one that doesn't have the
16 depositions taken yet. If you think that by the
17 time I rule on this you can be ready and ready to go
18 in August, I'll set it. I mean, they -- they've
19 kind of got four months spanned here, I presume,
20 where you plan to be with me.
21 MR. WEINBERG: Yes.
22 I mean, I would like at some point to address
23 when in August.
24 THE COURT: It would be the second week. I
25 mean, a trial week is a trial week.
671
1 MR. DANDAR: Judge, I can take the depositions
2 while you're not available in June and July.
3 MR. WEINBERG: Hold it --
4 MR. DANDAR: And they should be available
5 because they were available for trial on June the
6 10th. I don't want to hear excuses from them that
7 they can't do depositions.
8 THE COURT: Just a minute. You'll have your
9 chance. Let him finish.
10 MR. DANDAR: They're available.
11 I'm telling the court it's my humble opinion
12 that all this motion practice before you now is just
13 to make sure the trial does not go forward; that I
14 become financially strapped; because yeah, I
15 cancelled all my trials at the beginning of this
16 year so we could do all this discovery for the
17 June 10th trial date, and now we keep pushing it
18 back. I've got to start cancelling my other trials.
19 That is a tremendous financial hardship on me and my
20 law firm.
21 However, on this side we're dealing with a
22 billion-dollar company that has all these lawyers.
23 They don't care when this thing goes to trial
24 because they don't suffer financially.
25 We have to -- and I know --
672
1 THE COURT: I just asked you, do you want me to
2 set it in August?
3 MR. DANDAR: I want you to set it in August.
4 THE COURT: All right.
5 MR. DANDAR: I want to you set it in July, but
6 I'll take August.
7 THE COURT: Well, I'm not going to set it in
8 July.
9 MR. DANDAR: I'll take August.
10 THE COURT: All right.
11 MR. WEINBERG: I just don't think it should be
12 set until we see where we are in this hearing.
13 THE COURT: Well, that's --
14 MR. WEINBERG: And that's reasonable.
15 THE COURT: He wants a date certain so he can
16 deal with his experts. I understand that. I mean,
17 if you lose, the matter's going to trial. It was
18 supposed to go to trial in June. We assumed two to
19 four months. August should be a perfectly
20 acceptable date.
21 MR. WEINBERG: I would ask -- if it is going to
22 be set in August, I'd ask that it be set toward the
23 end of August.
24 THE COURT: It'll be set, for picking a jury,
25 the second week in August, because that's when we
673
1 have jurors.
2 MR. WEINBERG: I didn't know what the --
3 THE COURT: Yeah. In other words, trial week
4 starts -- it's a date certain. I don't know what it
5 is. I'll tell you when it is. I mean, it's set.
6 All of our trial weeks are set for jurors coming in.
7 I certainly don't want to have to pull in -- I mean,
8 I'll have to pull in enough special jurors, but I
9 want to get the same 2- or 300 that they pull in for
10 trial week.
11 MR. WEINBERG: I just don't -- I want to make
12 sure the court doesn't think, for us being silent to
13 what Mr. Dandar said about this hearing being just
14 to keep him from going to trial -- I mean, that is
15 about as --
16 THE COURT: Look --
17 MR. WEINBERG: -- preposterous as I have heard.
18 THE COURT: -- Mr. Dandar -- you know, I think
19 I may have jousted with him one day when I said that
20 his pleadings always start out that this is an
21 outrageous claim; this is -- well, fanciful. That's
22 not a word he uses, but -- I mean, it's outrageous.
23 This is ludicrous. This has no business going --
24 If I didn't think this was necessary, I
25 wouldn't be doing it.
674
1 MR. WEINBERG: I understand.
2 THE COURT: I mean, there is nobody in this
3 circuit that thinks -- they're starting to tease me
4 and tell me I'm like Judge Ito, because they always
5 used to know I was one of the speediest, fastest
6 judges in the circuit, and they just can't imagine
7 I'm not. And of course, I've told them I'm not done
8 because I'm not. It's taken as long as it's taken
9 because it's a serious matter. If I thought I could
10 speed it up, I'd speed it up. If I thought I could
11 be done in two days, I'd say I could be done in two
12 days. I take it seriously. I think it's a serious
13 motion.
14 I have no doubt, if I ask for closing
15 arguments, Mr. Dandar's first line will be, "This is
16 an outrageous claim." Obviously, if I thought it
17 was outrageous, we wouldn't be having it.
18 MR. DANDAR: I won't say that.
19 THE COURT: Well, you'll say something just
20 like it. I mean, that's what all your pleadings
21 say.
22 And of course, what happens is I just
23 absolutely ignore it. I mean, if I'm going to sit
24 down and try to figure out something and try to
25 figure out what's correct, and I'm spending time, it
675
1 isn't outrageous. So when I see that I just move
2 over it, probably two or three or four or five
3 lines, till I see where we're getting down to the --
4 So I presume that must be for some district
5 court, because it does not impress me.
6 MR. DANDAR: I'll keep that in mind, Judge.
7 THE COURT: Okay.
8 MR. DANDAR: I'll skip that paragraph.
9 THE COURT: That's good. I think it's
10 something you must have in your machine. It comes
11 out the same every time.
12 No. I do not take your silence as any
13 suggestion that you think that this is being done to
14 interfere with his law practice. I do concern
15 myself with the -- the matter that the Second
16 District raised. The Second District raised it.
17 And you know, that hasn't come up here, and so --
18 MR. WEINBERG: I understand.
19 THE COURT: But as far as this hearing is
20 concerned, I assume you're going forward with good
21 faith. Everything I've seen here indicates there's
22 an issue to be decided, and that's why I'm taking
23 meticulous notes, and that's why I'm listening
24 carefully, and that's why I'm telling you all that.
25 You know, this is serious business.
676
1 MR. WEINBERG: And this is costly, not just in
2 money, but in many other ways, to our client, the
3 Church of Scientology. So for Mr. Dandar to stand
4 there and say that the only ones suffering from this
5 is him is just not so. And --
6 THE COURT: Well, if this case has shown
7 anything to me to date, it was that my motion -- my
8 ruling on the motion to dismiss the counterclaim was
9 correct, and that any motion for summary judgment
10 would probably be ill-advised, because there are
11 issues of fact. I think you've filed one already.
12 But I mean, this -- this hearing has certainly
13 alerted me to the fact that there are issues to be
14 resolved in abuse of process. And I can only assume
15 that these kinds of things may well be at issue in
16 that count or that counterclaim or whatever. So you
17 know, there are things that affect this lawsuit that
18 I'm learning.
19 And yes, I realize it's expensive for both
20 sides. And it's expensive for me, by the way. I
21 have got a lot of cases that are pending.
22 MR. WEINBERG: And for all of us lawyers in my
23 office, I have to reintroduce myself once every week
24 or so, because it's very difficult, when you have
25 six people in the office, and not be able to go
677
1 there --
2 THE COURT: I understand.
3 I will, at Mr. Dandar's request, set this
4 for -- tentatively for August. I frankly would
5 prefer September, but I'll set it for August.
6 And -- basically, because he says he's got a lot of
7 cases that are set later. And I will honor that.
8 If you're not going to be ready, I want to hear
9 about it early on, before I have the jury
10 coordinator -- and I will probably have to tell her
11 by July, but I'm hoping that we'll have -- I'll have
12 a ruling by July, by the time I would need to tell
13 her to crank up that process.
14 MR. DANDAR: Well, if we don't take depositions
15 because they want to be before Judge Baird instead
16 of getting ready for trial here, there's going to be
17 a huge problem for getting ready for trial in
18 August.
19 THE COURT: Well, I can't -- that's what I'm
20 trying to explain to you. I can't tell Judge Baird
21 he can't have a hearing.
22 MR. DANDAR: Well, they don't even have an
23 operative complaint filed with Judge Baird right
24 now. They want to add me and other people on as
25 defendants in that case, that hasn't even been heard
678
1 yet. There's not an operative complaint --
2 THE COURT: You're complaining to the wrong
3 person. I'm not Judge Baird.
4 MR. DANDAR: Okay.
5 THE COURT: This argument needs to be made in
6 front of Judge Baird.
7 I've set it in August. Obviously, if Judge
8 Baird decides he wants to go forward with the
9 hearing and it's anything close to the hearing like
10 we've had here, and you're there --
11 I mean, I thought your brother was handling
12 that case.
13 MR. DANDAR: No. My brother is trying to
14 maintain my law practice while we're here.
15 THE COURT: Okay.
16 MR. DANDAR: We can't just stop everything for
17 this matter.
18 THE COURT: All right. Well, then, you know,
19 as I said, I can only do what I can do in my court.
20 And I've set this for August.
21 I'm not -- I'm not going to be in a position to
22 tell Judge Baird he can't hold a hearing. As I
23 said, I told -- I told you I would --
24 I know he's already called, and I have not had
25 the time, quite frankly, to get back with him, to
679
1 see, you know, about whether he's going to have his
2 hearing on whatever date it is that it's scheduled.
3 And -- he -- I'm sure he thinks I'm a lunatic. I
4 haven't even called him back yet. He's probably
5 thinking, "Well, who does she think she is?" If
6 you'll remind me, I will call him during the first
7 break.
8 MR. WEINBERG: I don't think he would have used
9 that --
10 THE COURT: Yeah, he would have. He would have
11 said I was being rude and I was absolutely giving
12 him no deference. I should -- and I absolutely
13 should have. And I should have returned his call
14 long before now, and I haven't. Because when I get
15 out of here I've got a jillion calls from judges all
16 over the place that need this or that, and I've just
17 put him on the back burner, so --
18 MR. DANDAR: The reason I brought it to your
19 attention and asked you to help us out is, I believe
20 there's a rule that says trials take precedence over
21 anything else.
22 THE COURT: Well, that may be. And as I
23 said -- but that's -- and if Judge Baird's -- you
24 know, the last time that Judge Baird and I had a
25 situation, your brother was sitting with me, because
680
1 you had taken -- gone to a conference that you had
2 planned. And I certainly gave you permission to go,
3 and I had no problem with that. I had your brother
4 here waiting for a jury. I would not release him,
5 quite frankly -- I got a jury out -- to go up to
6 Clearwater. I don't know if you all were assessed
7 sanctions or not.
8 MR. DANDAR: No. I believe, in the end, Judge
9 Baird declined to assess sanctions.
10 THE COURT: Okay. But I know certainly that
11 was an issue.
12 MR. DANDAR: It was a big issue.
13 THE COURT: He was not happy. He was not happy
14 with me. You know, he would not let -- I suggested
15 that your brother could appear by phone. That was
16 not acceptable to him. I said I wasn't going to
17 release him. That was just that simple. I had a
18 jury out. He was not happy. So there it was --
19 I can't imagine anything more important than
20 having somebody wait for a jury, a jury that had
21 already had two questions -- and by the way, came in
22 with a couple more, if you'll remember. I couldn't
23 release the only lawyer the plaintiff had.
24 MR. DANDAR: Fortunately we settled that case.
25 THE COURT: Did you?
681
1 MR. DANDAR: Yes.
2 THE COURT: Wonderful.
3 MR. DANDAR: Quite nicely.
4 THE COURT: Did it help that I asked the jury
5 the questions that I asked them?
6 MR. DANDAR: Yes.
7 THE COURT: Good.
8 Off the record.
9 MR. WEINBERG: Fine.
10 (A discussion was held off the record.)
11 THE COURT: Back on the record.
12 So I'm going to set it for August. I'm going
13 to tell you what that day is when you go out,
14 because it's a set day. And the only thing I will
15 probably do is -- I don't know. I hate to take
16 everybody else's rejects, especially if they've been
17 rejected because they don't want to stay two or
18 three days.
19 So I think in this case I was going to try to
20 do it a week earlier or a week later. So I'll give
21 you the date in August, okay?
22 MR. DANDAR: All right.
23 THE COURT: All right. If you're not going to
24 be ready, you let me know early.
25 MR. DANDAR: Yes, I will.
682
1 THE COURT: Okay? And then I would move it
2 month to month, if you like. I'd move it to
3 September --
4 Once we get out past October, I presume that
5 they have the same problem you have with other
6 trials, so --
7 MR. DANDAR: Let me ask you this: How long are
8 you going to be in this division?
9 THE COURT: That is up to the chief judge. In
10 other words, I only can anticipate that -- as a
11 prior chief judge, it has always been my
12 understanding that chief judges, one of the perks of
13 having been an ex-chief judge is you get to stay
14 where you want to stay. And I like civil. And
15 frankly, I've done my dues in criminal, and would
16 have -- be very surprised if Judge Demers would move
17 me against my wishes.
18 But it is not my call. I mean, my request is
19 going to be to stay in the civil division. I don't
20 care which civil division. It's not customary to
21 rotate judges around and switch --
22 MR. WEINBERG: I think --
23 THE COURT: -- them around.
24 MR. WEINBERG: -- his concern was somebody else
25 would come in, but that would be very unlikely --
683
1 THE COURT: Very unlikely.
2 MR. WEINBERG: -- that the case would be given
3 to someone else.
4 THE COURT: Very unlikely. 'Cause if I say I
5 want to go to crime, I'll be moved.
6 MR. DANDAR: You know so much about this case
7 that it would be terrible to both sides to have
8 someone come in cold turkey.
9 THE COURT: Well, it certainly would be if they
10 tried to catch up. Someone would probably --
11 You know, you can go to trial, it is very true,
12 without knowing a thing about the case. We've all
13 done it. We go down, take each other's cases and go
14 in, don't know a thing about it. Here's a five-day
15 medical malpractice. You just go in and do it. So
16 it can be done. But it would be awfully hard to
17 deal with motions.
18 MR. WEINBERG: In this case, it would be hard.
19 THE COURT: I think it would.
20 But if they saw how much they had to read, they
21 wouldn't do it. I don't know one of them that would
22 do it. I'm not sure I would if I got it, saw all
23 that. I'll say, "Look, I'll learn as I go."
24 MR. WEINBERG: It's not like the other judges
25 aren't aware of this case. I don't think you could
684
1 give it away.
2 THE COURT: I don't imagine I could give it
3 away. I don't think I could -- they wouldn't be
4 very happy.
5 Now, remind me, would you, when I get ready to
6 take a break, that I will call Judge Baird, and so
7 you all know the answer to whatever date that is,
8 and that I'm going to check and see when the trial
9 week is.
10 MR. DANDAR: Yes.
11 THE COURT: Okay.
12 MR. DANDAR: Yes.
13 THE COURT: You may proceed.
14 MR. DANDAR: I assume you want me to get up --
15 THE COURT: Yes, I do.
16 MR. WEINBERG: I'm just going to have the clerk
17 mark these. I'm cleaning something up from
18 yesterday.
19 THE COURT: I've got so many things that aren't
20 marked, if I needed to know what they were and refer
21 to them, I guess someone could tell me.
22 MR. FUGATE: Judge, for the record,
23 Mr. Lieberman is out still.
24 THE COURT: Still sick.
25 MR. WEINBERG: He had a bad stomach virus.
685
1 THE COURT: I presumed he was working on
2 motions for reconsideration.
3 MR. WEINBERG: He's actually in bed.
4 THE COURT: I was certainly teasing, but --
5 MR. WEINBERG: Slow on the take today.
6 THE COURT: I hope you do tell him that I hope
7 he feels better.
8 Okay. Go ahead.
9 MR. WEINBERG: All right. This is just
10 finishing up -- this'll be fairly quick from
11 yesterday. But these are -- one, two, three, four,
12 five more pleadings in which the allegation with
13 regard to murder was made, and we're marking
14 those --
15 Madam Clerk, the Exhibit is what, 166?
16 THE CLERK: 167.
17 MR. WEINBERG: 167 A, B, C, D and E.
18 THE COURT: All right.
19 BY MR. WEINBERG:
20 Q Now, the first one, 167-A, Mr. Dandar, is an
21 answer brief filed by you in a -- one of the many Second DCA
22 appeals. This one taken by the Church of Scientology
23 International versus the estate. That's a brief you filed,
24 is that correct? And --
25 A This was on the PC folders, that's correct.
686
1 Q And that was filed September 22nd, 1999, right?
2 A Yes.
3 Q And on page 1, you opened the brief by saying,
4 "The case involves the murder of Scientologist Lisa
5 McPherson by the Church of Scientology"?
6 A Correct.
7 Q And then in the first -- second paragraph you say,
8 among other things, that -- that, "After enduring 17 days of
9 torture, she died from profound dehydration only after the
10 officials of the Church of Scientology, including the
11 appellant," in that case being an organization, CSI, "made a
12 decision not to save her life and to let her die," right?
13 A Yes.
14 I believe OSA is part of CSI, if I'm not mistaken.
15 Q And then --
16 A So all this is true.
17 Q Okay. And then on page 12 you said, "Since the
18 trial court determined these folders are relevant to this
19 case involving murder," and then you make your argument,
20 right?
21 A That's right.
22 Q Okay. 167-B -- go to the next exhibit. You
23 appeared before Judge Greer in the probate case, the second
24 document, 167-B, and you appeared, as did I and some other
25 lawyers, in front of Judge Greer December 16th, 1999 in the
687
1 probate case, correct?
2 A Yes. That's when we actually prevailed in that.
3 Q Well, I didn't ask you whether you prevailed or
4 not.
5 If you go to page 58 of the transcript, you said,
6 in court, quote, "We are also going to show that you,
7 Ms. Dell Liebreich, hate Scientology because Fannie
8 McPherson, the mother hates Scientology, because they
9 murdered her daughter. They have every right in the world
10 to express their feelings on what they think about the
11 murder of Lisa McPherson." You remember saying that?
12 A That's right.
13 Q 167-C is yet another brief that was filed in
14 another appeal in the Second DCA. This was an appeal taken
15 by David Miscavige with regard to attorney fee issues, I
16 believe, as to whether you should be assessed attorney fees,
17 I think it was. But if you go to --
18 And that's a brief you filed, is that correct?
19 A Yes. And Miscavige lost that appeal.
20 Q Okay.
21 A And then he sued us in Texas.
22 Q All right.
23 A Amazing.
24 Q All right. I just got to --
25 THE COURT: What is this? What is this appeal?
688
1 THE WITNESS: This is --
2 THE COURT: I do see David Miscavige, I think.
3 The first page is very hard to read. It's black.
4 MR. WEINBERG: You know why it is? This is on
5 these -- it's those colored page folders, and they
6 just don't copy.
7 THE COURT: Oh, okay.
8 MR. WEINBERG: Every time we have a Second --
9 you can tell it's a Second DCA appeal pleading
10 because you can't copy the first page of it.
11 THE COURT: So he was the appellant.
12 THE WITNESS: Yes. This was after Judge Moody
13 said he was not covered by the agreement. We tried
14 to serve him, we got a false address from Flag of
15 where he lives and works, and we couldn't serve him.
16 He comes in with Mr. Rosen to dismiss because of
17 insufficiency of process, and then they file also --
18 simultaneously file a motion for summary judgment.
19 I allege that they waived service of process if
20 they're going to invoke the jurisdiction of the
21 court to get a summary judgment, but they said no,
22 we want you to decide the jurisdiction and service
23 of process first. So Judge Moody did, and then they
24 moved for fees. And Judge Moody said, "Well, if you
25 want attorney fees, you need to submit to my
689
1 jurisdiction," and they said, "No."
2 They appealed that and the appellate court
3 said, "No, you don't get attorney fees or anything
4 if you're going to claim you weren't served
5 properly." So when they lost that, they went to
6 Texas and sued us for the same thing.
7 BY MR. WEINBERG:
8 Q All right. Well, now, if you go to page 12 --
9 this is the pleading that you filed on February 8th, 2001,
10 is that right?
11 A Page 12?
12 Q Of your brief. That's where the certificate of
13 service is.
14 A That's what it says.
15 Q Okay. And if you go to page 8 in your argument
16 section, you say, "In moving for summary judgment, Miscavige
17 admitted as true the well-pled facts of the fifth amended
18 complaint, which includes Miscavige's decision to let Lisa
19 McPherson die, i.e., murder, as stated by counsel Samuel
20 Rosen."
21 A That's what Mr. Rosen said, that's right.
22 Q No, but that's what you said with regard to
23 whether -- the decision to let her die, i.e, murder. You
24 said that in your brief.
25 A Show me. Because that's what Mr. Rosen said
690
1 before Judge Moody.
2 Q I.e, murder?
3 A Yes. And I quote him on the next page.
4 Q All right.
5 A And I attach it as appendix E.
6 Q Okay. Well, what Mr. Rosen said, you put on -- on
7 the -- the next page. He -- I mean, you did accuse
8 Mr. Miscavige of premeditated murder, right?
9 THE COURT: I think what Mr. -- I think what
10 he's trying to say is his argument here is that he
11 was admitting, by moving for summary judgment,
12 but -- so this one just isn't -- let's not deal with
13 this one.
14 MR. WEINBERG: Okay.
15 THE COURT: You can make it part of the exhibit
16 but --
17 MR. WEINBERG: I'll make it part of the
18 exhibit.
19 THE COURT: Okay.
20 MR. WEINBERG: Actually, if you look at Exhibit
21 E, you'll see what Mr. Rosen -- what he attaches as
22 Exhibit E of -- or appendix E of the brief, what
23 Mr. Rosen said in court. Do you have that?
24 THE COURT: I don't know, because I don't know
25 what Exhibit E is.
691
1 MR. WEINBERG: I'm sorry. It's right here.
2 Appendix E, I think.
3 THE COURT: Okay. I have appendix E.
4 MR. WEINBERG: And it was attached like this to
5 the brief.
6 BY MR. WEINBERG:
7 Q Right, Mr. Dandar?
8 A Yeah.
9 And I'm pretty sure I didn't use the word
10 "murder."
11 Q No -- you know, I'm just going to read what
12 Mr. Rosen said in court.
13 A Well, I don't have appendix E.
14 Q Yeah. You do.
15 A All right.
16 MR. WEINBERG: May I approach?
17 THE COURT: Well, we don't need to read what
18 Mr. Rosen said. This is a question of what
19 Mr. Dandar said, and you've got it in the record.
20 He was saying --
21 MR. WEINBERG: Fine.
22 THE COURT: He --
23 MR. WEINBERG: I really want to go through this
24 quickly.
25 THE COURT: Yeah.
692
1 BY MR. WEINBERG:
2 Q The next exhibit is -- is actually the same --
3 it's another -- it's another -- in this same matter,
4 response to Mr. Miscavige's motion to dismiss, you filed on
5 April 24th. But again, it's the same argument where you're
6 saying, "Miscavige's decision to let Lisa McPherson die
7 i.e., murder," which you say you're quoting Mr. Rosen, is
8 that --
9 A Well, show me what you're talking about now.
10 Q Page 5.
11 THE COURT: Mr. Dandar, I think in fairness to
12 both sides here, you're saying -- you're alleging
13 that when he moves to summary judgment, he's
14 necessarily admitting certain truths, and then
15 you're saying that the truth he's admitting is in
16 the fifth amended complaint, which includes
17 Miscavige's decision to let Lisa McPherson die,
18 i.e., murder. So you're saying that that is what
19 the fifth amended complaint says.
20 THE WITNESS: Actually, Judge, I'm quoting
21 Mr. Rosen again.
22 THE COURT: Well, okay. That's --
23 MR. WEINBERG: I mean, we can argue that, but I
24 don't think that's what it was. But in any event --
25
693
1 BY MR. WEINBERG:
2 Q And then the last exhibit was filed by your firm.
3 Now, this one is signed by your brother, but it's a answer
4 brief in the Second DCA, dated September 11, 2000.
5 You were involved in all of the -- the pleadings
6 filed in the Lisa McPherson case, correct?
7 A Yes.
8 Q And if you look at page 1, again the opening line
9 of the brief is, "Flag is a defendant in a civil action
10 concerning the murder of Lisa McPherson." You see that?
11 A Yes. All these -- all these statements are based
12 upon my medical experts.
13 Q Not Mr. Prince. Just your medical experts.
14 A No. Mr. Prince couldn't possibly give me an
15 opinion on murder. He can only answer the question "Why?"
16 THE COURT: What number was that, Madam Clerk?
17 MR. WEINBERG: 167-A through E, I think.
18 THE CLERK: E.
19 THE COURT: Okay. Thank you.
20 MR. WEINBERG: Okay. Now -- now I'm going to
21 ask a few questions about the agreement, your Honor.
22 THE COURT: All right.
23 MR. WEINBERG: Strange as it may sound.
24 BY MR. WEINBERG:
25 Q Let me see if I can sort of get us to the -- to
694
1 the point by asking a few questions that I hope that you can
2 agree on without having to pull out transcripts.
3 Am I correct that in May, 1999, each of your
4 clients -- and you've identified your clients to be Dell
5 Liebreich, Ann Carlson, Lee Skelton, the sisters, and the
6 brother, Sam Davis.
7 A Correct.
8 Q Am I correct that in May of 1999, each of your
9 clients announced in their depositions in Dallas that they
10 had agreed to donate the bulk or a percentage of the
11 proceeds from the case to an anticult group, hopefully a
12 group that would be named -- would be in the name of Lisa
13 McPherson. That's what they said, isn't it?
14 A It was -- well, to be exact and precise, it was a
15 group that the family was going to create and name after
16 Lisa McPherson, and it was going to be a nonprofit.
17 Q And that they would -- they intended, had agreed
18 to, intended to, had -- family had come to an agreement that
19 they would donate a percentage -- and I think they indicated
20 a large percentage -- of the proceeds to this group,
21 correct?
22 A Yeah. Their -- their group.
23 Q Now previously --
24 THE COURT: Their group, meaning --
25 THE WITNESS: The family.
695
1 THE COURT: The family?
2 THE WITNESS: The family group. It wasn't a
3 third party.
4 BY MR. WEINBERG:
5 Q Excuse me?
6 They said that they were -- they said it was going
7 to be some sort of an anticult group that was going to be
8 established, hopefully, in the name of Lisa McPherson.
9 A By the family of Lisa McPherson. Them. The aunts
10 and the uncle.
11 Q But they weren't going to give it to themselves.
12 A The majority of the funds was going to go into
13 this nonprofit corporation that they would establish.
14 Q Okay. Now, previously --
15 A That was the first time they came to that
16 decision.
17 THE COURT: Well, when was the first time?
18 A At the -- at this deposition --
19 THE COURT: Okay.
20 THE WITNESS: At a dinner. May, '99.
21 BY MR. WEINBERG:
22 Q You --
23 THE COURT: That's the dinner --
24 MR. WEINBERG: Sorry.
25 THE COURT: -- that's been referred to?
696
1 THE WITNESS: Yes.
2 THE COURT: Okay.
3 BY MR. WEINBERG:
4 Q And you were at that dinner.
5 A Yes.
6 Q Is it your recollection, by the way, when your
7 clients testified, that they indicated that no one other
8 than them were at the dinner?
9 A No. I'd be surprised. 'Cause I was at the
10 dinner.
11 Q Was there anybody else at the dinner other than
12 the family and you?
13 A I think Brian Haney was there, as my trial
14 consultant at that time. I think he was at the depositions
15 as well --
16 Q Now --
17 A -- if my memory serves me correct.
18 Q Now, previous, prior to May of '99, going back in
19 time, in December of 1997 you had a meeting or two with Bob
20 Minton, in which you discussed with Mr. Minton your idea
21 that the family would donate the bulk of the proceeds or a
22 percentage of the proceeds to an anticult group, correct?
23 A Well, I didn't have a meeting with Mr. Minton. I
24 don't want to have to play on words here. But we had a
25 lunch. It was just a happenstance. We talked about that.
697
1 We talked about the family thought it would be a great
2 idea -- not the family, actually. It was my idea to put
3 money into a group to help former Scientologists.
4 Q And -- and you said to Mr. Minton -- and he has
5 testified -- that you would talk to your client -- I think
6 at that time you were talking about Dell Liebreich -- you
7 would talk to your client to run the idea by him -- by her,
8 and see whether or not they would agree. Do you remember
9 that?
10 A Something to that effect, yes.
11 Q And you remember getting back to Mr. Minton,
12 telling him that the -- that the family agreed that they
13 would -- that this was a great idea, and that they would
14 donate a percentage or bulk of the proceeds to some anticult
15 group?
16 A No. I remember telling Mr. Minton at some point
17 after that -- and it might have been in Boston in January of
18 '98 for his deposition -- that Dell Liebreich, the personal
19 representative, thought that was a good idea to set
20 something up to -- in Lisa's memory, nonprofit, run by the
21 family. She thought that was a good idea. But she did not
22 talk about that, as far as I knew, to anyone else.
23 Q Right. But you reported that back to Mr. Minton.
24 A Well, I didn't report it back. It just came up in
25 conversation again, either in Boston -- which I believe
698
1 that's where it happened, where we had a cup of coffee.
2 Q And then you were at, as was I, Mr. Minton's
3 deposition in January of '98, when he announced publicly in
4 his deposition that in fact you had had these conversations,
5 and there was this, what he called, agreement that the
6 family was going to donate -- I think he used the word --
7 bulk of the proceeds, but whatever the word was that he
8 used -- to an anticult group.
9 A No. That's not true. I think he said we talked
10 about ideas. An idea is an idea. There's no agreement.
11 Q Well, we'll pull that testimony.
12 A And there was no -- certainly no --
13 THE COURT: No, you're not going to pull the
14 testimony of Mr. Minton. He's testified, and he may
15 testify different from Mr. Dandar. But what he
16 says, I get to compare with what Mr. Dandar says.
17 He doesn't get to be impeached by Mr. Minton's
18 deposition. It isn't going to happen, Counsel.
19 MR. WEINBERG: Okay. I wasn't really going to
20 impeach him. I was going to try to refresh his
21 recollection as to what he said, 'cause he was
22 there.
23 THE COURT: All right. You can refresh his
24 recollection if you need to, but you cannot use
25 it --
699
1 MR. WEINBERG: Well, that's what I was --
2 THE COURT: And the truth of the matter is, on
3 Mr. Minton's depositions, there isn't one I've
4 read -- you can use one part of the testimony --
5 that he doesn't change later. Mr. Minton's
6 testimony regarding this agreement is all over the
7 place in the depositions. All over the place. He
8 changes his testimony from one spot to the next time
9 he talks about it in the deposition.
10 So quite frankly, unless you're going to let
11 him read the whole deposition, I'm not going to let
12 you refresh his memory from Mr. Minton's deposition
13 on this agreement.
14 On -- which one was it? Which date?
15 THE WITNESS: January, '98.
16 MR. WEINBERG: This is January --
17 I'm just trying to get some background is what
18 I'm doing, your Honor.
19 THE COURT: But you can't use part of
20 Mr. Minton's deposition.
21 MR. WEINBERG: Well, it's only a page where he
22 talks about this.
23 THE COURT: Well, I think you're probably
24 wrong.
25 MR. WEINBERG: All I was going to show him was
700
1 what Mr. Minton testified to about what he said
2 Mr. Dandar told him about Mr. Dandar's conversations
3 with Ms. Liebreich and what they said.
4 A I specifically remember that deposition transcript
5 showing that Mr. Minton said it was an idea; there was no
6 group identified; he may have mentioned some names, but the
7 family certainly didn't mention any names of any group,
8 especially Mr. Minton, Stacy Brooks or anything that they
9 may create, 'cause that wasn't even --
10 BY MR. WEINBERG:
11 Q All right.
12 A -- an idea.
13 MR. WEINBERG: Well, you know, we'll argue this
14 later, your Honor. It's on page 65, lines 14 to the
15 bottom.
16 I'll go on because it's really not --
17 MR. LIROT: What's the date on that deposition?
18 MR. WEINBERG: It's January of '98.
19 BY MR. WEINBERG:
20 Q Mr. Minton posted on the Internet after his
21 deposition that at least he understood that there was an
22 agreement of some sort that the family was going to donate
23 the bulk of the proceeds to an anticult group.
24 A How many months afterwards?
25 Q I'm just asking your recollection. I'm trying to
701
1 do this as foundation.
2 A My recollection is that he posted something false
3 on the Internet, that I didn't even know about, of course,
4 that came up -- I found out he just did it to rile up
5 Scientology.
6 Q You were at Ann Carlson's -- your client Ann
7 Carlson's deposition in July of 2000, right?
8 A Yes. She's the eldest of the siblings and the one
9 that makes the most mistakes in her deposition.
10 Q And do you recall in that deposition that she said
11 under oath, while you were there, that the organization that
12 was going to get the bulk of the proceeds that they had all
13 testified about back in May of 1999 was the Lisa McPherson
14 Trust?
15 A Well, they didn't all testify about the Lisa
16 McPherson Trust getting anything. That's not correct. She
17 may have said something like that.
18 Q Well, do you recall that that's what she did say?
19 A She may have.
20 And I would not have interrupted her and corrected
21 her like you suggest. I don't think that's appropriate for
22 a lawyer to do.
23 Q No. But she did have the opportunity to do an
24 errata sheet, correct?
25 A Right.
702
1 Did she do one?
2 Q Yes.
3 A Okay.
4 Q And she didn't correct that testimony --
5 A Okay.
6 Q -- did she?
7 Is that your recollection?
8 A No. But if you say so, I'll take you at your
9 word.
10 MR. WEINBERG: Well, can I approach, your
11 Honor?
12 THE COURT: You cannot use the deposition -- if
13 you want to bring her down here and let her testify,
14 you may do that.
15 MR. WEINBERG: This is his client, and what --
16 THE COURT: It is not his client.
17 MR. WEINBERG: She said it is -- he said it
18 was. Ann Carlson's his client.
19 THE COURT: All right.
20 MR. WEINBERG: One of the beneficiaries.
21 THE WITNESS: Well, she is my client, Judge.
22 THE COURT: Well, I understand you think she's
23 your client.
24 Go ahead.
25 MR. WEINBERG: Okay. Can I approach or --
703
1 THE COURT: Do whatever you want. But you're
2 wasting my time, quite frankly.
3 MR. WEINBERG: All right, your Honor.
4 THE COURT: I don't know how many times I'm
5 going to tell you that I'm not going to care what
6 somebody said in some deposition unless you bring
7 them in to testify --
8 MR. WEINBERG: All right.
9 THE COURT: -- in this hearing. And I am not
10 going to consider it as evidence.
11 MR. WEINBERG: All right.
12 THE COURT: It is just that simple.
13 MR. WEINBERG: All right.
14 THE COURT: So you're wasting my time.
15 MR. WEINBERG: Okay.
16 BY MR. WEINBERG:
17 Q Now, at the end of 2000 is when the affidavits of
18 Dell Liebreich and Bob Minton were done, correct, that are
19 in evidence in this case.
20 A In the middle of 2000.
21 Q No. December of 2000, remember?
22 A Oh, the affidavit. I'm sorry. I'm thinking
23 depositions.
24 All right. Go ahead.
25 Q And in those affidavits -- the issue as to whether
704
1 or not there was an agreement to donate the bulk of the
2 proceeds is addressed in each affidavit, correct?
3 A Right. That was addressed by Mr. Merrett. And we
4 went over this before. And the whole purpose of those
5 affidavits was to tell the truth to the court, that there is
6 no connection between the LMT and the Lisa McPherson
7 wrongful death case.
8 Q Right.
9 But Mr. Merrett didn't prepare Ms. Liebreich's
10 affidavit.
11 A No.
12 Q You did that.
13 A I did that.
14 Q And you coordinated with Mr. Merrett the
15 preparation of Mr. Minton's affidavit with the preparation
16 of Ms. Liebreich's affidavit, because you filed them at the
17 same time in the same pleading, correct?
18 A Well, yes. Coordination, meaning timing. We were
19 both working on the same thing at the same time.
20 Q Okay. Now, the testimony of Mr. Minton in this
21 proceeding is that -- is that he entered into a secret
22 agreement with you and your client with regard to the
23 maintenance of this bulk of the proceeds after he said you
24 all agreed to backtrack publicly from there ever being an
25 agreement, correct?
705
1 THE COURT: You're going to have to rephrase
2 that question.
3 MR. WEINBERG: It's a bad question. I'll ask
4 it again.
5 THE COURT: It's a very bad question.
6 MR. WEINBERG: It is.
7 I'll re-ask it.
8 BY MR. WEINBERG:
9 Q Did you ever tell your -- Mr. Minton that he had
10 to backtrack from what he'd said about the agreement?
11 A No. I did tell him, "What in the world are you
12 putting this junk up on the Internet that is false?" Now,
13 he put on the Internet something about "The Lisa McPherson
14 Trust will be forever endowed with the money from the
15 wrongful death case." I said, "What are you doing that for?
16 That's not true. You don't have any agreement with us."
17 THE COURT: Okay.
18 A So I don't think I ever used the word "backtrack."
19 But if I did, which I don't think I did, that's what we were
20 talking about. 'Cause he's just doing this crazy stuff on
21 the Internet, which is causing Mr. Moxon and Ben Shaw to go
22 crazy in this court, saying, "Look. Look. Look what's
23 going on here." And I told Mr. Minton --
24 And so he comes in his deposition, he tells the
25 truth under oath. But on the Internet he's wild guy, wild
706
1 and crazy.
2 BY MR. WEINBERG:
3 Q When did you have that conversation with
4 Mr. Minton?
5 A I have -- it might have been after his deposition.
6 I think that's the first time I saw those postings.
7 Q Well, there's a lot of depositions. Which one are
8 we talking about?
9 A I can't tell you. Wherever is the first
10 deposition of his Internet postings, he was questioned about
11 this money going to the Lisa McPherson Trust, which was --
12 Q So that would --
13 A -- false.
14 Q That would be May of 2000. The May 24th, 2000 --
15 THE COURT: He doesn't know. Whichever one
16 it's in.
17 BY MR. WEINBERG:
18 Q Now --
19 THE COURT: Had you seen those postings prior
20 to his --
21 THE WITNESS: No.
22 THE COURT: -- talking about them or their
23 being brought up by Mr. Moxon or whoever it was at
24 the deposition?
25 THE WITNESS: No.
707
1 THE COURT: So that was the first time you knew
2 what he was saying on the Internet.
3 THE WITNESS: First time. I don't receive his
4 postings. I mean, he's posting, I believe, on
5 alt.religion.scientology, which, as I said the other
6 day, I still don't know how to access.
7 THE COURT: You mean you just don't go in and
8 type up at the top, alt.religion.scientology?
9 THE WITNESS: Well, you can get there --
10 No, it's not that easy.
11 THE COURT: Oh.
12 THE WITNESS: You can get there, but after you
13 get there, they give you all these options. And
14 it's just like --
15 THE COURT: Okay.
16 THE WITNESS: To me, it's gobbledygook.
17 BY MR. WEINBERG:
18 Q Now, you -- after the meeting in New Hampshire
19 with Mr. Minton, you sent a letter on February 26th, 2002 to
20 Mr. Minton, is that right? What he's referred to as the
21 suck-up letter.
22 A Okay. The letter he requested, right.
23 Q Right. Now, just before we get to the -- to the
24 details of the letter, how is it that this letter came
25 about?
708
1 A He requested it. He told me -- he said, "I have
2 no more money for you. However --"
3 THE WITNESS: And honest to God, Judge, I, to
4 this day, believe when he tells me and he told me,
5 "My friends in Europe --" I think -- I think that
6 has a big deal to do with this. I think that's a
7 true statement, because he said it to too many
8 people about his friends in Europe that he deals
9 with, that "These people have more money than we can
10 count."
11 THE COURT: I have no doubt in my mind that
12 there is a possibility that he said that, for
13 reasons that are very obvious to me.
14 THE WITNESS: I understand that.
15 THE COURT: What I'm suggesting to you and what
16 I was trying to say to you the other day is, as you
17 sit there, looking at somebody, you should have
18 known the same thing that I would know. But maybe
19 that's not true because maybe I've got a good old
20 IRS background, and therefore I would be quite --
21 I would be thinking, "Yeah. Right."
22 THE WITNESS: Well, I believe we heard
23 Mr. Merrett even testify that he was --
24 THE COURT: As I said, I can imagine and
25 envision all reasons -- manner of reasons why
709
1 Mr. Minton would not want to tell you that the money
2 was coming from him. I would have thought, as a
3 lawyer, you might have been more suspicious than
4 apparently you testified that you were. And I've
5 heard --
6 THE WITNESS: I just --
7 THE COURT: -- heard you and I know what you
8 say. And that's --
9 THE WITNESS: All right. I just had no reason,
10 and I still have no reason to believe that he ever
11 lied under oath in his depositions about this. I
12 just don't.
13 BY MR. WEINBERG:
14 Q Now, going back to the letter, what did he --
15 A I'm sorry.
16 Q So he asked you to send the letter.
17 A Okay.
18 Q What did he tell you that he wanted in the letter,
19 covered by the letter?
20 A He wanted me to express what I felt about his
21 support in the case, when he was supporting the case,
22 because everybody was -- everybody -- two people were
23 criticizing him for breaching his promise never to give up
24 supporting the litigation in the case.
25 Q And who was supposed to be reading this letter? I
710
1 mean, who was it written -- was it just written --
2 A It was --
3 Q -- written for Mr. Minton --
4 A It was --
5 Q -- or some other audience?
6 A It was written from me to him, and then he was
7 going to give it to his friends in Europe.
8 Q And this is how you --
9 THE COURT: What letter -- number is that
10 exhibit? I think it's already in evidence. I just
11 don't know, so I can reference here.
12 THE WITNESS: It's in evidence.
13 THE COURT: I know it is. Do we know what the
14 number is?
15 MR. WEINBERG: We'll check.
16 THE COURT: Madam Clerk, can you look --
17 Lord, that was so unfair.
18 MR. WEINBERG: I've got copies. I'm going to
19 hand it up. And by the time we get done with it,
20 we'll know what the exhibit number is.
21 THE COURT: Maybe you could hand it to the
22 clerk and it would help her to know --
23 THE WITNESS: You can just write across the top
24 "suck-up letter." That's what he calls it.
25 THE COURT: Well, I know that's what it's been
711
1 referred to, but I suspect in the record it's got a
2 number.
3 MR. WEINBERG: 110, apparently.
4 THE COURT: 110?
5 MR. WEINBERG: Defense 110.
6 THE COURT: Defendant's 110?
7 MR. WEINBERG: Defendant's 110 is what I'm
8 told.
9 THE COURT: Okay.
10 BY MR. WEINBERG:
11 Q So the idea was -- so the understanding was that
12 if you wrote this letter, Mr. Minton was going to send it to
13 his friends in Europe, and that's how he was going to get
14 money for you for the trial?
15 A He was going to use it to let them know that I
16 wasn't participating in this vicious attack against him.
17 And he wanted me to express what I thought about his -- him.
18 And I did.
19 Q But how -- how exactly was -- was a letter like
20 this going to help -- going to convince somebody in Europe
21 to give you money?
22 A You know, that wasn't my -- this letter is from me
23 to him. This is -- these are all truthful statements in
24 this letter. So how he used it after that, I have no idea.
25 Q All right. Well, let's go to the second paragraph
712
1 of the letter, and --
2 By the way, was there anything specifically that,
3 in addition to saying just what a nice guy -- was there any
4 specific allegation that he asked to be addressed in the
5 letter?
6 A I don't think so.
7 Q Okay. So in the second --
8 THE COURT: Didn't he testify that he wanted --
9 something that he wanted -- that -- well, somewhere
10 I heard something. Maybe it was from you,
11 Mr. Dandar -- that he wanted some -- he wanted some
12 appreciation to be shown for the money he'd given?
13 I haven't even read this.
14 THE WITNESS: I think --
15 MR. WEINBERG: I think --
16 THE WITNESS: I think that's --
17 MR. WEINBERG: You want to spend a moment and
18 read it or --
19 THE COURT: Yeah. Let me look at it again.
20 MR. WEINBERG: Okay.
21 THE COURT: So -- see if that refreshes my
22 memory. I know we --
23 MR. WEINBERG: I think what Mr. Minton said,
24 this wasn't what he had in mind, but he called it
25 the suck-up letter.
713
1 THE COURT: Okay. I know he referred to it as
2 the suck-up letter.
3 Here's Mr. Dandar's favorite word.
4 "Outrageous." "Despicable." I think I've seen that
5 in his pleadings too.
6 THE WITNESS: I've got to find a better word
7 than "outrageous."
8 THE COURT: Well, it's all right once in a
9 while, but when you use it in every pleading, you
10 finally think it doesn't really make it -- it
11 doesn't mean anything here.
12 THE WITNESS: I don't think I've ever used it
13 in any other case, in a pleading.
14 THE COURT: Okay. I've read it.
15 BY MR. WEINBERG:
16 Q Now, you -- you thought that by indicating in this
17 letter about the campaign of harassment and all the, quote,
18 numerous false allegations; by putting that in a letter,
19 that that was going to be helpful in convincing somebody in
20 Europe to get involved?
21 A No. I can't answer the question yes or no. I
22 mean, I put in the letter what I was feeling at the time,
23 which is all true.
24 Q Now, if you go to the second paragraph, the second
25 sentence, you say, "Among the more outrageous and
714
1 unsupported claims are that you hijacked the case for
2 monetary gain --"
3 And that was a claim, correct?
4 A Yes.
5 Q "-- tampered with witnesses and dictated how the
6 case is to be litigated."
7 And those were claims as well that were made by
8 the Church of Scientology in the counterclaim and in other
9 pleadings in the case, right?
10 A Correct.
11 Q And you say, "Although I've addressed these
12 despicable and false allegations in court on various
13 occasions, I again, for the record, will make it clear, your
14 support of the case was a loan, the details of which are a
15 matter of court record."
16 Why did you find it necessary to say that in this
17 letter to him, that "your support was a loan"?
18 THE WITNESS: Well, this is -- this is really
19 invasive, Judge. I don't see how this has to do
20 with their motion. And they're asking me to
21 explain --
22 The document speaks for itself. You know, I
23 told you it's all true. It's not part of your
24 motion. And everything in here is true.
25
715
1 BY MR. WEINBERG:
2 Q Well, let's go down to the last sentence of the
3 second paragraph, where you say, "There are no secret
4 agreements between or among you, me, or Dell." Do you see
5 that?
6 A Yes.
7 Q Now, no one from the Church of Scientology in this
8 case had ever accused you or Dell Liebreich or Bob Minton of
9 having a, quote, secret agreement, had they; or the LMT.
10 A I'm not so sure about that.
11 Q Well, can you --
12 A I think it's just the opposite.
13 Q Can you cite any pleading, anywhere, that the
14 Church of Scientology filed in this case, prior to
15 Mr. Minton coming forward a month or so ago with his
16 affidavit, where he coined the phrase "secret agreement,"
17 where the church ever said that there was a, quote, secret
18 agreement, anywhere?
19 A Well, the first thing that comes to mind is the
20 September and October depositions.
21 Q No. Could you just answer that question?
22 THE COURT: He is --
23 A I --
24 THE COURT: -- Counselor.
25 MR. WEINBERG: Okay. All right.
716
1 THE COURT: Go on ahead.
2 A It's either the September or October -- October
3 for sure. I remember Mr. Rosen's behavior at the deposition
4 of Mr. Minton, without a master -- and that's the case
5 before Judge Baird -- where he was basically accusing
6 Mr. Minton of lying because of the Internet -- Internet
7 postings versus his sworn testimony in deposition. And he
8 was implying, if not saying directly, "Well, there must be
9 something secret or under the table or something nefarious,
10 because your under-oath deposition testimony conflicts with
11 your Internet postings."
12 BY MR. WEINBERG:
13 Q All right. And you could find that somewhere
14 where he said secret agreement?
15 A No. You can find it. I'm not going to --
16 THE COURT: He didn't say he said secret
17 agreement; he either used that or nefarious or under
18 the table or something like that.
19 BY MR. WEINBERG:
20 Q Did you talk to Mr. Minton while you were in New
21 Hampshire -- did you have a conversation with Mr. Minton
22 about what he's described as the secret agreement; the
23 agreement where there was still an understanding that the
24 estate was going to donate some percentage of the proceeds?
25 A No.
717
1 Q All right. So this was your choice of words here:
2 Secret agreement?
3 A Well, you know I'm the author of the letter. The
4 answer is yes. These are all my choice of words.
5 Q Okay. What secret agreement are you talking about
6 here?
7 A The one that the Church of Scientology keeps
8 alleging exists, that doesn't and has never existed.
9 Q And just tell me which one is that?
10 A The -- the agreement that Scientology insists
11 exists concerning giving the bulk of proceeds from this case
12 to the Lisa McPherson Trust or Mr. Minton.
13 Q Yeah. But that -- but that agreement -- there was
14 nothing secret about it. I mean, Mr. Minton was all over
15 the Internet; your clients testified about it, you know, in
16 May of '99. The position that the church took was there was
17 an agreement. Now, we can debate whether -- whether it's
18 enforceable; we can debate whether an oral agreement's
19 enforceable --
20 You would agree that an oral agreement is
21 enforceable, correct, if there's a meeting of the minds.
22 A No. There's more conditions --
23 MR. LIROT: Judge --
24 A -- than that.
25 THE COURT: Yeah. That is certainly not going
718
1 to be debated in this court as to whether or not any
2 such oral agreement, if there was one that had the
3 terms, which of course there isn't, would be
4 enforceable. And you've got statute of fraud
5 problems. Perhaps it couldn't be performed within a
6 year. There's all manner of problems. And frankly,
7 I don't want to go into them here.
8 MR. WEINBERG: Well, I'll ask the question
9 differently.
10 A But there was never an agreement.
11 BY MR. WEINBERG:
12 Q You had an agreement with regard to what you say
13 is a loan --
14 THE COURT: And all I can tell you, Counselor,
15 if Mr. Minton thinks he's got an agreement he can
16 enforce, he needs to go into court and try.
17 MR. WEINBERG: Well, there's two agreements
18 that he's talking, I suppose. I mean --
19 BY MR. WEINBERG:
20 Q Well, let me ask you --
21 A There's only one agreement, right, the loan.
22 Q The loan agreement. And that's not in writing,
23 and yet you say it's enforceable, correct?
24 A Well, it's partly in writing. It's Mr. Minton's
25 handwritten note on his card, that has "Robert Minton"
719
1 printed on it --
2 Q All right.
3 A -- that he talked about in his January, '98
4 deposition and his September and October deposition.
5 Q Right. But it doesn't say loan to you, it says
6 loan to the estate.
7 THE COURT: We don't need to go there.
8 A They --
9 THE COURT: We can argue that at the right
10 time --
11 A They --
12 THE COURT: -- Counselor.
13 A All the depositions say loan to me, all three
14 depositions.
15 BY MR. WEINBERG:
16 Q The --
17 THE COURT: I guess the only way we'll ever
18 know whether that -- whatever it is you all are
19 calling an agreement, is if in fact you all lose at
20 a trial, and mega, mega, millions are awarded, and
21 you all pay mega, mega, millions. And if in fact
22 the estate doesn't give Mr. Minton whatever it is he
23 thinks he's entitled to, then he can go into court
24 and see if he can get a judge or a jury to buy that
25 he's got an enforceable agreement.
720
1 MR. WEINBERG: I mean, obviously we have --
2 this comes up all the time in the law. In the cases
3 I'm involved in, conspiracy cases, there's never
4 anything in writing.
5 THE COURT: I understand that, Counselor. I
6 used to teach at Stetson Law School. And I taught
7 commercial cases. And I'm somewhat of a whiz on
8 commercial cases and commercial litigation in the
9 state of Florida. And you know, you have your views
10 and I have mine. As I --
11 MR. WEINBERG: I understand.
12 THE COURT: As I asked your legal expert,
13 Mr. Lieberman, one time, and as he candidly asked
14 (sic), I asked him how he'd like to take that case
15 on a contingency agreement, and he clearly expressed
16 he would not. And neither would any other lawyer,
17 that I know of. Certainly, Mr. Lieberman's a legal
18 scholar.
19 But we don't need to debate that. I mean,
20 that's -- that's -- you know, we'll have to see how
21 this plays out and --
22 MR. WEINBERG: I understand.
23 THE COURT: Okay.
24 MR. WEINBERG: The point I made was -- I mean,
25 the point I'm making is what is the reference to
721
1 secret -- no secret agreement --
2 THE COURT: What's important here is whether or
3 not Mr. Dandar told Mr. Minton --
4 MR. WEINBERG: Right.
5 THE COURT: -- to lie about something.
6 MR. WEINBERG: Exactly.
7 THE COURT: It's not whether or not something
8 can be enforced or can't.
9 Quite frankly, I would tell Mr. Minton, as I
10 think I made clear to Mr. Minton, I think he's
11 wasting his time and his money if in fact it ever
12 comes to that. However, that isn't important.
13 MR. WEINBERG: What's important is whether or
14 not they have an understanding that he was going to
15 lie about the nature of whatever the understanding
16 was.
17 THE COURT: What's important is whether or not
18 Mr. Dandar and now, of course, we know
19 Mr. Merrett --
20 MR. WEINBERG: Right.
21 THE COURT: -- got people to lie under oath and
22 file false affidavits. That's important.
23 MR. WEINBERG: Right.
24 THE COURT: The truth of the matter is there
25 wasn't a thing wrong with the agreement, if there
722
1 was one, in my mind. So I mean, that --
2 MR. WEINBERG: No --
3 THE COURT: The only issue here is whether or
4 not there was some -- some foolishness going on;
5 more than that, some -- some subornation of perjury
6 going on. That's what I want to hear about. I
7 don't want to debate the legalities.
8 MR. WEINBERG: The reason I brought up this
9 letter was to -- was to --
10 THE COURT: And I understand that.
11 MR. WEINBERG: -- identify --
12 THE COURT: You've made your point. Although
13 it was made before by somebody else with Mr. Minton.
14 So you can't -- you don't need to beat a dead horse.
15 It was important to have him say why --
16 MR. WEINBERG: Right.
17 THE COURT: -- he used the word, you know. I
18 guess he's testified to that.
19 MR. WEINBERG: Right.
20 Well, we'll put that down and we'll --
21 THE COURT: All right.
22 MR. WEINBERG: -- go to the next subject.
23 Just give me a second, okay?
24 BY MR. WEINBERG:
25 Q Now, you were present for the May 24th, 2000
723
1 deposition of Robert Minton.
2 We're about to talk about the perjury of
3 Mr. Minton.
4 A Yes.
5 Q You were present for his deposition.
6 A Yes.
7 Q This came right during the time that there was
8 accelerated LMT -- Lisa McPherson Trust -- discovery issues
9 that were beginning to pop up.
10 A Well, I don't think they -- I don't know if you
11 could call them accelerated, but they were discovery issues.
12 Q Right. This is where we went over the other day.
13 You had appeared for the Lisa McPherson Trust in April and
14 early May, and then Mr. Merrett came in sometime right
15 before Mr. Minton's deposition, right?
16 A No. I did not appear for the Lisa McPherson Trust
17 in the wrongful death case. I appeared once before Judge
18 Penick on the injunction. I was a go-between.
19 THE COURT: We've been there. Whatever he's
20 testified to is in the record.
21 MR. WEINBERG: Right.
22 BY MR. WEINBERG:
23 Q At the deposition -- at the deposition of
24 Mr. Minton on May 24th, 2000, on page 212 --
25 THE COURT: I'm sorry. Where are you now?
724
1 MR. WEINBERG: Mr. Minton's May 24th, 2000
2 deposition.
3 I'll hand up a excerpt to Mr. --
4 THE COURT: You're not going to put it in the
5 record.
6 MR. WEINBERG: I got to ask him if this is what
7 he testified to.
8 THE COURT: You can do that.
9 What page are you on, Counselor?
10 THE WITNESS: 212.
11 THE COURT: 212.
12 THE WITNESS: Yes.
13 MR. WEINBERG: 212.
14 THE COURT: Okay.
15 BY MR. WEINBERG:
16 Q Mr. Minton was asked, "Tell me all the amounts
17 that you have given him." He's talking about you.
18 "Answer: I don't know all the amounts. The total
19 amounts to a little over a million dollars, a
20 million-fifty-thousand.
21 "Question: Did you make these checks to him
22 yourself?
23 "Answer: Did I what?
24 "Did you make the checks to him yourself?
25 "Yes.
725
1 "Each check was drawn on one of your personal
2 accounts.
3 "I believe it was, yes.
4 "Did you instruct anyone else to write the checks?
5 "Answer: No.
6 "Did you physically write them?
7 "I think I physically wrote them all. There may
8 have been a wire transfer in there. I don't remember."
9 Now --
10 A "I don't remember" is a real key phrase there,
11 isn't it?
12 Q I don't know.
13 But do you remember that Mr. Minton, at that
14 deposition, when asked how much money he had given to you,
15 said a million and fifty thousand?
16 A Yes.
17 Q The truth was that just before the deposition, a
18 few weeks before, he had given you a $500,000 UBS check at
19 the Bombay Bicycle Club, right?
20 A That's correct.
21 Q And he didn't disclose that check during this
22 deposition.
23 A That's right.
24 Q Now, you told him at the time, or just before
25 that -- he gave you this check, that you needed a
726
1 substantial sum of money for trial. That's how the check
2 came about.
3 A Let me think about that.
4 I never gave him a figure. But the trial was
5 pending in June, just a month away.
6 Q I mean, he didn't just appear one day with a
7 $500,000 check. There had been some conversation before
8 that; you told him you needed a substantial amount of
9 money --
10 A Well --
11 Q -- in order -- in order to be able to get through
12 trial.
13 A Something close to those words. But saying I
14 needed $500,000, no. I saw the check for -- $500,000 check,
15 I was in shock.
16 Q By that time, in May of 2000, Mr. Minton and
17 Mr. Minton's money had become a distraction, hadn't it,
18 to -- to your case.
19 MR. LIROT: Judge, I don't know what that
20 means.
21 A I don't know what --
22 THE COURT: I don't either, so --
23 BY MR. WEINBERG:
24 Q It had become an issue that was giving the estate
25 of Lisa McPherson and Ken Dandar problems in the litigation.
727
1 A No. It was just annoying because it was an issue
2 for some reason.
3 Q Did you tell Mr. Minton, prior to the deposition
4 at the time -- either before or at the time that you -- you
5 got this money, that you wanted a way to get money from him
6 that was not traceable back to him?
7 A No.
8 Q Did you tell him that you wanted money in order to
9 conceal it from other members of your trial team?
10 A No.
11 Q Did you discuss with him that -- that prior to --
12 prior to the deposition in May of -- May 24th of 2000, did
13 you discuss with Mr. Minton that he could ignore the
14 $500,000 check that he had just given you because, words or
15 effect, it had not been written by him?
16 A Not prior to his deposition.
17 Q Did you have any discussion with Mr. Minton at any
18 time that it was okay for him to ignore the $500,000 check
19 that you had given him in response to questions -- that he
20 had given you in response to questions about how much money
21 he gave you?
22 A Well, the only time I think I talked to him about
23 that was when we had a stay in effect. And I think that was
24 September, '01, before his September, '01 deposition. I
25 announced to him or John Merrett that there was a stay. I
728
1 never told Mr. Minton not to talk about any checks in his
2 deposition.
3 Q Well, what did -- what was this conversation you
4 had with Mr. Minton, if it's in September of 2001, about not
5 having to disclose a check?
6 A Well, no, I think it's either him or John Merrett,
7 where I said, "There's a stay in effect." And you know,
8 maybe it was -- I don't think it was September, 2000. I
9 think it's September, 2001. But I can't be a hundred
10 percent sure. The record will speak for itself. But that
11 deposition, I believe Mr. Minton was truthful in his
12 answers, the deposition of May, 2000, the way the questions
13 were phrased. And quite frankly, you know, you got more
14 information out of him than what Judge Moody had ordered me
15 to produce as of January, 2000. So he -- he disclosed the
16 other checks he had given to me after January of 2000.
17 Q Did you tell Mr. Minton, in words or effect, that
18 you were going to put these funds in a secret account so
19 that they couldn't be traced?
20 A No.
21 Q Did you discuss with him putting these funds in
22 a -- in some sort of a -- a special account that couldn't be
23 found?
24 A No.
25 Q Did you -- did you discuss with -- did you conceal
729
1 the fact that you had gotten this money from anyone on your
2 trial team?
3 A All of them. I conceal all the money I get, as
4 far as I can remember, from anybody that works for me,
5 except maybe my brother. I'm sure he knew about it. But if
6 you're talking about Tom Haverty and Rick Spector and
7 Dr. Garko and other staff, they don't -- I don't tell them
8 my business.
9 Q Well, but prior to that, obviously -- I mean, at
10 the -- at the deposition of Mr. Minton and prior to that, it
11 had been disclosed that he had given you, you know, for the
12 litigation, over a million dollars, right?
13 A When it became a deposition disclosure, that's
14 when -- that's the only time anyone else found out about it.
15 Q So the last million dollars, the $500,000 UBS
16 check in May of 2000, the $250,000 personal check to Ken
17 Dandar -- I think it was the Bank of Boston -- in May of
18 2001, and the $250,000 check, UBS check, in March of 2002 --
19 those three checks, you did not disclose to anyone on your
20 trial team.
21 A I don't think so.
22 Q I mean -- so the answer is yes.
23 A The answer is I don't remember ever disclosing any
24 money to a trial team member. The only thing I could
25 possibly come close to is, "I got some money."
730
1 Q Did you instruct -- not to use that word.
2 Did you have a discussion with Mr. Minton that he
3 didn't have an obligation to produce the $500,000 check
4 pursuant to the subpoena that had been served on him prior
5 to the May, 2000 depo?
6 A No.
7 Q Did you create a special account for the $500,000
8 check?
9 THE COURT: I'm not going to require him to
10 answer that, Counselor.
11 MR. WEINBERG: Okay.
12 THE COURT: And I've told you that.
13 MR. WEINBERG: Well, I'm not -- I don't care
14 whether he -- you know --
15 THE COURT: Well --
16 MR. WEINBERG: I think it goes -- I mean,
17 look --
18 THE COURT: I understand what you're saying,
19 but I've told you you're not going there --
20 MR. WEINBERG: Okay.
21 THE COURT: -- and you're not going there. And
22 I'm not going to make him sit here and answer that
23 question when I've told you you can't go there.
24 That's based on what I perceive are improper
25 questions pursuant to an appellate decision, so it
731
1 isn't going to happen --
2 MR. WEINBERG: All right.
3 THE COURT: -- until that opinion is reversed.
4 And if it's reversed, why then that would be
5 perfectly all right.
6 MR. WEINBERG: I need -- I -- what I was --
7 where I was going was -- had to do with -- with
8 Mr. Dandar's motive and --
9 THE COURT: I understand, Counselor. I'm
10 obliged to follow the dictates of what I perceive to
11 be an appellate court decision. And I asked you all
12 not to go there, and I'm asking you again. And
13 there may come a time when I'll order you not to do
14 that. And if I order you and you violate it, you'll
15 suffer the consequences.
16 And I really think I have. I really think I've
17 entered an order.
18 MR. WEINBERG: I'll try not to.
19 THE COURT: Mr. -- while you're trying to get
20 whatever you're trying to get --
21 Dr. Garko is not a permanent employee of yours?
22 THE WITNESS: Oh, no.
23 THE COURT: So he's just an independent
24 contractor that you've employed for this.
25 THE WITNESS: Yes.
732
1 THE COURT: Would you normally discuss your
2 finances and who's paying you what to somebody
3 you've hired for a case?
4 THE WITNESS: No.
5 THE COURT: Do you know any lawyer that does?
6 THE WITNESS: No.
7 THE COURT: Let's see. Who is Mr. Haverty?
8 THE WITNESS: He's also an independent
9 contractor.
10 THE COURT: And you've hired him for this case,
11 as well as maybe some others.
12 THE WITNESS: Lots of others.
13 THE COURT: Do you discuss your financial
14 business, who pays you what?
15 THE WITNESS: No.
16 But what I did say is -- I may say, "I got some
17 money."
18 THE COURT: But I mean, do you tell him who
19 gives you how much money --
20 THE WITNESS: No.
21 THE COURT: -- how much your law firm is
22 making --
23 THE WITNESS: No.
24 THE COURT: -- this type of thing?
25 THE WITNESS: No, no.
733
1 THE COURT: Other than what your secretary --
2 my secretary used to know everything about my
3 business, mostly because everything went through the
4 secretary.
5 Do you discuss this with your investigators?
6 Do you tell your investigators that you hire who's
7 paying you what kind of money?
8 THE WITNESS: No.
9 THE COURT: Do you know of any law firm that
10 does?
11 THE WITNESS: No. In fact, I don't even
12 think -- if we settle a case, I don't even think
13 they know what -- investigators or anyone knows
14 about it.
15 THE COURT: So as far as you know, your
16 practice is the same as any other law firms that
17 you're aware of, as far as who you tell your
18 business, your financial business to.
19 THE WITNESS: Yes. Yes.
20 THE COURT: All right.
21 I did want to know -- Donna is your permanent
22 employee.
23 THE WITNESS: 19 years.
24 THE COURT: Okay. Your brother --
25 THE WITNESS: Yes.
734
1 THE COURT: -- is your law partner.
2 THE WITNESS: Yes.
3 THE COURT: Do you have some agreement to --
4 to -- I don't know what you'd call it -- share
5 money? I mean, do you all have a --
6 THE WITNESS: It's 50 -- yeah. It's a 50/50.
7 THE COURT: So what you make, he gets part of.
8 THE WITNESS: Yes.
9 THE COURT: Okay. This is not an arrangement
10 where you got what -- you share expenses and you get
11 to keep what you bring in and he gets to keep what
12 he brings in.
13 THE WITNESS: If it were, we'd be in pretty bad
14 shape, right now.
15 THE COURT: But it is not.
16 THE WITNESS: It's not.
17 THE COURT: Because I mean, I've been involved
18 in those kinds of partnerships.
19 Other than your secretary, who's a full-time
20 employee, and your law partner, do you have any
21 other full-time employees in your firm?
22 THE WITNESS: Oh, yes.
23 THE COURT: Who are they?
24 THE WITNESS: I have -- my brother has a
25 secretary/paralegal, and we have a legal assistant.
735
1 THE COURT: Okay. But -- but none of these
2 people on this trial team that you're talking about
3 are permanent members of your staff, other than your
4 secretary?
5 THE WITNESS: Secretary and my brother.
6 THE COURT: Okay. Did you tell any -- anybody
7 else that you perceived to be on your trial team how
8 much money you were getting from Mr. Minton or any
9 other person?
10 THE WITNESS: Other than my trial team?
11 THE COURT: No.
12 THE WITNESS: I mis--
13 THE COURT: Did you tell -- other than your
14 brother and maybe your secretary, who would maybe
15 know your financial business because stuff usually
16 goes through a secretary, did you tell anybody on
17 your trial team how much money you were getting from
18 any source --
19 THE WITNESS: No.
20 THE COURT: -- regarding this case?
21 THE WITNESS: No, no. It was always --
22 THE COURT: Do you in any other case?
23 THE WITNESS: It was always vague. It was
24 always vague, like, "I got some money," something
25 like that.
736
1 THE COURT: Do you, in any other case, keep
2 your trial team, whoever they might be on that case,
3 advised of your finances?
4 THE WITNESS: Never. Never.
5 BY MR. WEINBERG:
6 Q And if you go to that -- back to that transcript
7 that I had in front of you, 212, line 14, I just want to
8 focus on the question.
9 "Tell me --" Mr. Minton is asked, "Tell me the
10 amounts that you have --"
11 THE COURT: Where are you, Counselor? I'm
12 sorry.
13 MR. WEINBERG: I'm sorry. 212, line 14.
14 THE COURT: 212?
15 MR. WEINBERG: That's what -- that's what I had
16 given you before.
17 THE COURT: I thought I was on page 2 --
18 something else.
19 Okay.
20 MR. WEINBERG: Maybe I'm -- I think that's what
21 I --
22 THE COURT: Okay. I'm sorry. Mr. Minton --
23 Which depo?
24 MR. WEINBERG: May of 2000. May 24th of 2000.
25 THE COURT: Okay. Page --
737
1 MR. WEINBERG: 212. Line 14. I want to go
2 over this question.
3 THE COURT: I think I'd been there and then I
4 think I'd gone somewhere else.
5 Now I'm back to it, all right.
6 BY MR. WEINBERG:
7 Q Line 14, the question is, "Tell --" Mr. Minton's
8 asked, "Tell me the amounts that you have given him,"
9 meaning you. And then he says, a million and fifty
10 thousand --
11 THE COURT: I'm sorry. I'm not -- I'm not
12 where you are, apparently. What line are you at?
13 THE WITNESS: 14.
14 THE COURT: Tell me the line.
15 THE WITNESS: 14.
16 MR. WEINBERG: 14.
17 THE COURT: My line says, "What records did you
18 check?"
19 THE WITNESS: On page --
20 THE COURT: I'm on the wrong page. No wonder.
21 MR. WEINBERG: You got it. Line 14.
22 THE COURT: Yes. I've got it. I'm with you
23 now. Okay.
24 BY MR. WEINBERG:
25 Q "Tell me all the amounts that you have given him."
738
1 And that's when he says, "A million and fifty."
2 A Well, he says, "I don't know all the amounts."
3 That's the first thing he says.
4 Q "The total amounts to a little over a million
5 dollars, a million and fifty."
6 And my question to you is -- the question is,
7 "Tell me the amounts that you have given him."
8 I mean, did it -- did it concern you at all, as
9 you sat there, that -- that just three weeks before,
10 Mr. Minton had handed you -- had given you a $500,000 check?
11 A No. Mr. Minton delivered to me a $500,000 check
12 from a third party. It didn't concern me at all.
13 Q Well, you don't think that when the question is
14 asked how much he's given you --
15 THE COURT: Argumentative, Counselor. He's
16 going to -- that's his testimony.
17 MR. WEINBERG: Okay.
18 THE COURT: You're going to have to save it for
19 argument.
20 BY MR. WEINBERG:
21 Q Now --
22 A In hindsight.
23 Q Hindsight what?
24 A Hindsight, you know --
25 Q And when he's asked, on 19 -- on the same page,
739
1 212, "Did you make these checks to him yourself? Did you
2 make the checks to him yourself?" And the answer is, "Yes,"
3 did it concern you that -- having received a 500,000 check
4 that you knew had not been made by him himself, that he was
5 lying here? Did that concern you?
6 A No. He's telling the truth.
7 THE COURT: Counselor, you're not -- you're
8 wasting your time. That's also argumentative. The
9 deal is, Mr. Dandar has his version, Mr. Minton has
10 his. You can make your argument, he'll make his.
11 I'm going to resolve this.
12 MR. WEINBERG: Okay.
13 BY MR. WEINBERG:
14 Q All of the checks in this case that are -- that
15 are in evidence, the 2 million and fifty thousand dollars,
16 all of those checks have on the legend Re: McPherson or
17 McPherson case, other than the two UBS checks, is that
18 right?
19 A That's correct.
20 Q And did that -- do you agree that those checks
21 were intended by Mr. Minton to be used for the Lisa
22 McPherson case?
23 A In part.
24 Q And not to be used by you personally for some
25 personal expense?
740
1 A I could use that money any way I saw fit, period.
2 I could buy five estates and a warehouse and cars and yachts
3 and planes and everything else that Mr. Rosen accused me of.
4 But -- I could do anything I wanted to with that money.
5 Q All right. And that -- and the -- and that
6 understanding emanates from what document?
7 A From the mouth of Mr. Minton. There's no
8 document.
9 Q It obviously emanated after Mr. Minton's January,
10 1998 deposition. Because you recall that he said in that
11 deposition that you couldn't spend it for personal things.
12 Do you remember that?
13 A That depo will speak for itself. I think you're
14 right.
15 Q Okay. So when was it, in the course of time, that
16 Mr. Minton told you orally that even though these checks say
17 "McPherson case," you, Ken, can use them to buy anything you
18 want to?
19 THE WITNESS: Is this violating the Second DCA,
20 Judge? I think it is.
21 THE COURT: I'm sorry. What was the question?
22 I was --
23 MR. WEINBERG: Could she read it back?
24 THE REPORTER: "Okay. So when was it, in the
25 course of time, that Mr. Minton told you orally that
741
1 even though these checks say "McPherson case," you,
2 Ken, can use them to buy anything you want to?"
3 THE COURT: I don't think so.
4 THE WITNESS: Should I -- are you saying to
5 answer?
6 THE COURT: Yes.
7 THE WITNESS: All right.
8 THE COURT: As I said, the truth of the matter
9 is, the Second District didn't want an --
10 And to some extent, I could say yes, it's
11 covered by the Second District, because the Second
12 District said you weren't entitled to know what he
13 got. That would include the 500 and that would
14 include the 200 and that would include every other
15 thing.
16 But I think what I've said at this point is
17 that it is out in the open, so -- and it's been a
18 subject of this motion and it's out in the open, and
19 therefore it seems as if, as to the checks and as to
20 the moneys received at this time, it -- even though
21 they have said clearly you're not to know about it,
22 it seems odd that we would now try to enforce that.
23 THE WITNESS: Well, he's --
24 THE COURT: So Mr. Minton has had his say. And
25 I would assume that you can do one of two things.
742
1 You can say to me, "I want the Second District
2 opinion to stand." And then what happens is you
3 have no response, and we have Mr. Minton's
4 testimony --
5 THE WITNESS: Oh.
6 THE COURT: -- and Ms. Brooks' testimony, if it
7 relates to this. I don't know if it does or it
8 doesn't. I can't remember.
9 On the other hand, since he's testified it
10 would be -- if you want to explore these moneys
11 issues and since that's been alleged as a part of a
12 perjury, I think, claim --
13 THE WITNESS: See that's --
14 THE COURT: -- then I'll go ahead and let you
15 discuss it and not say that in any way, by your
16 discussing it, you're waiving what you have received
17 under the Second District opinion. But -- but I
18 will also let you claim it and not discuss it.
19 But I would -- I would think that since there's
20 been a lot of discussion about this, and since
21 there's an allegation about this, that you would
22 want to.
23 THE WITNESS: All right.
24 THE COURT: So I will let you do that without
25 waiving the -- the opinion. But once you start
743
1 talking about this area, then I think you need to
2 understand that it -- it can be explored.
3 THE WITNESS: Well, now, that puts me back
4 where I was before. Because if it can be
5 explored --
6 THE COURT: Explored as to what Mr. Minton told
7 you; what if anything you have in writing; when did
8 he tell you --
9 I mean, you know, quite frankly, here again,
10 I've read Mr. Minton's deposition. He will
11 sometimes say it can be only used for the estate and
12 he will sometimes say it can be used for anything
13 Ken wanted to use it for. Mr. Minton is anything
14 but completely clear all the time on this. And if
15 you need to, I can find the page and line. I mean,
16 it just is that way. I have no idea. If you want
17 to explore this --
18 But I don't think that his deposition is
19 necessarily consistent with his in-court testimony.
20 THE WITNESS: Oh, no. Most definitely not.
21 THE COURT: So I think you should have your
22 say.
23 A All right. There was --
24 THE COURT: But it's up to you.
25 A Well, there was a time -- I just can't -- yeah.
744
1 Since there's nothing in writing, it's hard to pinpoint a
2 time. It's either '99, late '99, early 2000. That's what
3 my best recollection is.
4 BY MR. WEINBERG:
5 Q And was it a -- a time when you were
6 eyeball-to-eyeball with him or over the phone?
7 A It could have been either one.
8 What triggers my memory is that in 2000, I
9 cancelled all my trials so you could take discovery and I
10 could take discovery for our June, 2000 trial date, just
11 like I did this year, except for one. And that certainly
12 affects the income to a law firm. And he knew that. So
13 that's -- that's the only thing I can try to use to pinpoint
14 the approximate general time frame.
15 Q So you told him that -- that because of the nature
16 of the case, that you needed to be able to use the funds
17 yourself as opposed to using them for the case?
18 A Well, the -- in general -- generally speaking,
19 that's correct.
20 Q And -- and Mr. Minton was okay with the idea of --
21 of giving you funds that -- as you say, with no strings
22 attached, that you could use for personal things as opposed
23 to fighting Scientology?
24 A Mr. Minton didn't care how I spent the money. He
25 didn't even care -- back in the end of '97, after the first
745
1 check was written, he didn't care. Didn't care in January,
2 '98 deposition. He didn't care in '98 and '99. He didn't
3 really care about anything.
4 THE COURT: What was the conversation? Can you
5 tell us as best you know --
6 THE WITNESS: I can't.
7 THE COURT: -- what it was he said and what you
8 said?
9 THE WITNESS: I said, you know, "I need to --"
10 something to the effect of, you know, "We're
11 cancelling our other work for this case. The case
12 is very burdensome and we need to -- I need to be
13 able to put the money into general operating and
14 just use it the way we use any other money we put in
15 there, including fees and whatever." And he said,
16 "There's no problem with that. I trust you. Go
17 ahead."
18 This thing he said in court about the $60,000,
19 September, 2001, I don't know where he came up with
20 that one. I don't ever remember that conversation.
21 BY MR. WEINBERG:
22 Q Did you document this in writing?
23 A No.
24 Q Why not?
25 A That's the kind of relationship we had.
746
1 Q Well, what's that mean?
2 A Total trust.
3 Q Well, did you -- did you -- I mean, you've
4 produced already in this litigation the letters between --
5 or the one letter -- actually, the letters between your
6 office and Mr. Minton with regard to some of the early
7 checks; Mr. Minton's letter to -- the Kleenex-box letter,
8 and a letter that you wrote to Ms. Liebreich as well about
9 the money.
10 And my question is, is there anything where you
11 have documented this new understanding as to what you could
12 do with the money either to Ms. Liebreich or -- you know,
13 your client in the case, or to Mr. Minton?
14 A No.
15 Q And did you get -- did you get any approval
16 from -- any approval from Ms. Liebreich that it was okay to
17 take money that had, you know, "McPherson case" on the
18 checks --
19 THE COURT: Well, that money didn't, did it,
20 Counselor?
21 MR. WEINBERG: All the checks except two.
22 THE COURT: Oh, right.
23 MR. WEINBERG: So --
24 THE COURT: That's a lot of money. That's
25 $750,000.
747
1 MR. WEINBERG: $750,000 didn't. But a
2 million -- whatever that -- you know, your math is
3 better than mine -- a million -- a million-two-fifty
4 did.
5 BY MR. WEINBERG:
6 Q So my question is, for the -- for the
7 million-two-fifty that had "McPherson case" on it, including
8 that -- including the next to last check in May of 2001 that
9 was made out to you personally that had "McPherson case,"
10 250,000, on it, is there anything in writing that said, new
11 deal, new arrangement, money can be used by Ken Dandar any
12 way he wants to?
13 A Nothing in writing.
14 Q Either between you and Mr. Minton.
15 THE COURT: You know what, Counselor? He's
16 said nothing in writing.
17 MR. WEINBERG: Okay.
18 THE COURT: That means nothing in writing.
19 Are you done with this area?
20 MR. WEINBERG: Almost.
21 THE COURT: Okay. My court reporter needs a
22 break, and so do I, and so does everybody else.
23 MR. WEINBERG: Why don't we take a break? I'm
24 sort of flipping around.
25 THE COURT: All right.
748
1 MR. WEINBERG: Figure out --
2 THE COURT: We'll take a break till about five
3 till 11 or 11, somewhere around there. 15 or 20
4 minutes.
5 (A recess was taken at 10:42 a.m.)
6 (The proceedings resumed at 11:17 a.m.)
7 THE COURT: Okay. I have spoken to Judge
8 Baird. He was just waiting to talk to me to see
9 what was happening down here. And so I told him
10 that if he could cancel his hearing for the 11th, I
11 would use the time here. He was going to look and
12 see what it was and let me know. And I also told
13 him that since I had used up an awful lot of time
14 here, that if he really wanted to have his hearing
15 on the 11th, I'd let him do that too; that it was
16 really his call.
17 So he -- he would like -- he was going to look
18 into it and see what it was and let me know. And so
19 that's where that is. And I assume he'll do that
20 fairly quickly.
21 Okay. Mr. Dandar?
22 You ready, Mr. Weinberg?
23 MR. WIENBERG: Yes.
24 THE COURT: All right.
25 MR. WIENBERG: I've only got -- I've only got
749
1 two of these.
2 BY MR. WIENBERG:
3 Q Now, Mr. Dandar, on January 25th, 2001, you were
4 deposed in the breach case, is that correct?
5 A Yes.
6 Q And in that deposition, you were asked if
7 Mr. Minton's testimony, that he had provided a million fifty
8 thousand funding -- that is the testimony back in May of
9 2000 -- was accurate. Do you remember being asked that?
10 A I'm looking at it, yes.
11 Q In fact, you volunteered that Mr. Minton testified
12 a million-fifty. Do you see on line 14?
13 A Yes.
14 Q And then on line 18 Mr. Rosen said, "Was that
15 number accurate?" And you said, "Yeah." And then the
16 question is, "This is for defraying costs in the wrongful
17 death case?" And you said, "Yes."
18 Do you see that?
19 A Yes.
20 Q And my question is, when you were asked those
21 questions, "Is that money -- is that number accurate," did
22 you consider the $500,000 May, 2000 check from Mr. Minton?
23 A Yes. Because the question was, "How much he has
24 paid you," and my answer was, "Minton -- Mr. Minton
25 testified a million fifty thousand." So all that was
750
1 accurate.
2 Q Okay. My question was did you think about or
3 consider the $500,000 check when you were answering that
4 question?
5 A No.
6 Q And then you said -- then the question was, "This
7 is for defraying costs in the wrongful death case," and you
8 said, "yes," right?
9 A That's correct.
10 Q And that means that as of the time of your
11 deposition in January of 2001, that there had not yet taken
12 place this phone conversation or meeting with Mr. Minton --
13 A No.
14 Q -- where he --
15 Let me just finish --
16 A I'm sorry.
17 Q -- the question.
18 Does that mean that as of the time of this
19 deposition, the understanding was still, as indicated in the
20 first letter from Mr. Minton and in the various letters with
21 your client, that the moneys from Mr. Minton was for
22 defraying the costs of the litigation?
23 A No.
24 Q So had -- when you were asked the question, "This
25 is for defraying costs in the wrongful death case," and you
751
1 said, "Yes," what did you mean by your answer, "yes"?
2 A I was talking about Mr. Minton's testimony in May
3 of 2000.
4 Q So you were talking about the first million fifty
5 thousand.
6 A Right.
7 And that question, as Mr. Rosen framed it, didn't
8 say, "And this was only -- and only -- for defraying costs
9 in the wrongful death case." The question he asked was
10 answered correctly in my deposition.
11 Q So you didn't think it was necessary at that point
12 to tell -- to testify that in fact the arrangement was -- is
13 that this was your money and you could do with it what you
14 wanted to?
15 A My -- the purpose was to answer only the question
16 that's asked.
17 Q So the answer to my question is you didn't think
18 it was necessary to explain that you had an understanding
19 that you could -- that there were no strings attached and it
20 was your money.
21 A Correct. Because he did not ask me that question.
22 Q Now --
23 THE COURT: Was --
24 Okay. Thank you.
25 MR. WIENBERG: Go ahead.
752
1 THE COURT: That's all right. I -- I remember
2 now.
3 BY MR. WIENBERG:
4 Q Now, I'm going to hand you a copy of a petition
5 for writ of cert that you filed.
6 MR. WIENBERG: And for the record, that is --
7 excuse me. That is dated January 29th, 2001.
8 BY MR. WIENBERG:
9 Q Which I think we've looked at before, but I want
10 to refer you to -- to -- to a particular part of it.
11 You're the one that prepared this writ?
12 A Yes.
13 Well, wait a minute. There's Minton and Brooks on
14 here too, and the trust. So I prepared this somehow in
15 conjunction with Mr. Merrett, who represented those other
16 three petitioners.
17 Q But you approved -- I mean, this was something
18 that you approved when you -- when you did it, is that
19 right?
20 A Well, I approved it, yes. I mean, I signed it.
21 THE COURT: I think you can assume that when a
22 lawyer files something, he's approved it.
23 BY MR. WIENBERG:
24 Q Okay. If you'll just look at page 4 --
25 A Right.
753
1 Q -- please --
2 A Page 4?
3 Q Yes.
4 A All right.
5 Q Now, let me just go over this paragraph. And it's
6 not just what's in yellow. There's actually a little bit
7 more.
8 "During the discovery --" you say in this
9 pleading, "During the discovery process and as a result of a
10 court order, the estate disclosed, in answers to
11 interrogatories, that Robert Minton, an individual unrelated
12 to the estate or its beneficiaries, had unconditionally
13 given the estate's counsel a hundred thousand dollars in
14 October, '97 to defray costs associated with litigating the
15 action below. Minton did not expect this money to be
16 returned unless the estate recovered enough funds in this
17 case to permit repayment. Since that time, Minton has given
18 the estate's counsel a total of a million fifty thousand."
19 Do you see that?
20 A Yes.
21 Q Now, you said in here that the money was to defray
22 costs associated with litigating the action below. Do you
23 see that?
24 A It says a hundred thousand -- the initial hundred
25 thousand dollars was given to defray costs associated with
754
1 litigating the action below, correct.
2 Q But as of January 29th, 2001, when you filed this
3 petition in the Second DCA, is it your position that the
4 agreement at that point, the understanding -- I guess the
5 oral understanding you had with Mr. Minton, had changed by
6 that time --
7 A I believe --
8 Q -- and that --
9 A -- to the best of my recollection, yes.
10 Q It had already changed.
11 A Yes.
12 What I was doing here when I said -- the next
13 sentence, "Since that time, Minton has given the estate's
14 counsel a total of a million fifty thousand," I footnoted
15 that, number 4, referring the reader back to footnote number
16 3, which was pursuant to his deposition testimony of May --
17 which I think is May, 2000.
18 Q Did it concern you -- when you put in this
19 pleading to the Second DCA, which says, "Minton has given
20 the estate's counsel a total of a million fifty thousand,"
21 did it concern you that -- that the $500,000 should be
22 included because he gave that money to you as well, at the
23 Bombay Bicycle Club?
24 A No.
25 Q Did that concern you when you wrote this?
755
1 A Not at all.
2 Q Did you think about it?
3 A I'm sure I did.
4 Q Did you discuss it with anyone?
5 A No.
6 Q Did you discuss it with -- well, you didn't
7 discuss it with anyone; you didn't discuss with it
8 Mr. Minton.
9 A That's right. He didn't know about that.
10 And I always -- I was doing this pursuant to the
11 testimony of Mr. Minton.
12 Q Now --
13 A Certainly --
14 THE COURT: Let me ask a question on this
15 thing, on -- because I don't know when it was filed.
16 MR. WIENBERG: January 29th, 2001.
17 THE COURT: Is it 2001?
18 MR. WIENBERG: Yes.
19 THE COURT: I see a "1" through the "0." Is
20 that -- do we all agree that's right?
21 THE WITNESS: Where's that?
22 THE COURT: On the back page it says, "The
23 foregoing has been furnished by U.S. Mail this 29th
24 day of January. The type is 2000, but "1" is
25 written over the "0," so I'm assuming that's
756
1 correct.
2 MR. WIENBERG: The reason we know that it's
3 2001 is that Mr. Merrett signed this as well, and he
4 didn't appear until May of 2000.
5 THE COURT: Okay. You all didn't make this a
6 "1." This is --
7 MR. WIENBERG: We didn't --
8 THE COURT: -- something that came to you like
9 that.
10 MR. WIENBERG: Right.
11 THE COURT: Okay. I assumed it is 2001.
12 BY MR. WIENBERG:
13 Q That's correct, isn't it, Mr. Dandar?
14 A I -- yes. Yes, I would think so.
15 Q Well, you know --
16 THE COURT: We can always check it.
17 THE WITNESS: Yeah.
18 THE COURT: But I mean if we can agree -- we'll
19 assume, unless we learn otherwise, that it's
20 January, 2001.
21 MR. WIENBERG: Right.
22 BY MR. WIENBERG:
23 Q I mean, what makes you feel comfortable about
24 that, Mr. Dandar, is that Mr. Merrett didn't arrive on the
25 scene until May of 2000, right?
757
1 A That's true.
2 Q Okay.
3 A And I'm already talking about a May, 2000
4 deposition at footnote 3.
5 Q Right. So obviously it's 2001.
6 THE COURT: 1.
7 THE WITNESS: Yes.
8 THE COURT: Okay.
9 BY MR. WIENBERG:
10 Q Now, that -- actually, this pleading that was
11 filed in the Second DCA, talking about the money, where it
12 says, "Since that time --" and you're talking about since
13 the first hundred thousand, "-- Mr. Minton has given the
14 estate's counsel a total of a million fifty thousand --"
15 It turns out, based on Mr. Minton's testimony
16 now -- regardless of what you knew at the time, it turns out
17 that that's false, because Mr. Minton has already
18 testified -- and I believe I heard you tell Judge Schaeffer
19 yesterday, in response to a question, that you don't dispute
20 the fact at this point that it's Mr. Minton's money -- that
21 that $500,000 was his money, and therefore he'd given you a
22 million five hundred and fifty thousand.
23 A I do dispute that. I don't -- I don't believe,
24 based upon the way Mr. Minton answered questions in this
25 hearing before Judge Schaeffer, by pleading the Fifth
758
1 Amendment and not telling me and showing us proof that he's
2 telling us the truth, based upon everything he told other
3 people and Mr. Merrett, his own counsel, that the money was
4 given with these UBS checks from third parties, not him. I
5 believe Mr. Minton's lying in this courtroom when he says
6 it's his money.
7 Q So you -- so you still believe it's the fat man's
8 money or somebody who goes by the moniker "fat man."
9 A I do. 'Cause it makes no sense to me for it to be
10 his money and lie about it.
11 Q So therefore you don't think you have any
12 obligation at this point to notify the Second DCA that this
13 representation with regard to the money in this pleading of
14 January 29th, 2001 is false --
15 A No. It's --
16 Q -- based on Mr. Minton's testimony.
17 A It's true. The petition language is true. The
18 deposition language is true.
19 THE COURT: Would it also be fair to say that
20 the -- I don't know, 'cause I don't know what this
21 is all about -- is the exact amount of money as
22 important as the fact that he's given a substantial
23 amount of money? I don't know, because I don't know
24 what --
25 THE WITNESS: No. The amount of money has
759
1 nothing to do with the petition.
2 THE COURT: Does the amount of money have
3 anything to do with it?
4 MR. WIENBERG: Well, it does if it's false,
5 sure.
6 THE COURT: Well, that could probably be
7 debated too. I would assume -- I don't know what it
8 is that --
9 Well, let's look and see what it is.
10 MR. WIENBERG: Let's look.
11 THE WITNESS: They were trying to get personal
12 financial information from Mr. Minton and Ms. Brooks
13 and the LMT and try to relate it to the wrongful
14 death case.
15 THE COURT: Is this one of the ones that we
16 have one of the opinions on from the Second DCA?
17 MR. MOXON: No. This is the one that we won,
18 your Honor.
19 THE COURT: Oh. That's definitely a different
20 one.
21 THE WITNESS: They denied cert.
22 MR. MOXON: This is the one where they
23 dismissed it in July, allowing all the discovery to
24 go forward in the summer of 2001 as to the moneys
25 that Minton had given to Mr. Dandar. That's why it
760
1 was -- that was there was a conflict with different
2 panels. The first panel ruled one way and the
3 second panel ruled another way after Mr. Dandar made
4 these representations.
5 THE COURT: Well, the third panel must have
6 ruled consistent with the second panel then.
7 Because there was a different panel on the third
8 case than there was on cases 1 and 2.
9 THE WITNESS: Yes.
10 MR. WIENBERG: There was some overlap.
11 THE COURT: One. Judge Parker, I think was
12 overlap.
13 MR. MOXON: Right.
14 THE COURT: So the majority were different. I
15 mean --
16 MR. WIENBERG: I don't remember who was on the
17 first panel.
18 THE COURT: Well, the -- the third panel could
19 have overruled Judge Parker, presumably, 'cause this
20 was maybe the first time they ever heard it.
21 Now, if there was some of them on the third --
22 the third case, that were also on whatever this
23 petition was about, you might have individual judges
24 making what could be argued were two different
25 decisions. It wouldn't be -- hate to say this, it
761
1 wouldn't be the first time that had happened. We
2 try not to point that out, but it does happen.
3 THE WITNESS: I think there's a total of five
4 Second DCA judges, now, involved in these three
5 decisions.
6 THE COURT: We have Mr. Dandar's testimony.
7 I'll read this over sometime and decide what --
8 MR. WIENBERG: Do you want me to mark --
9 Well, I think it's --
10 THE COURT: I think it's --
11 MR. WIENBERG: I think it's in there somewhere.
12 THE COURT: I think it is too.
13 BY MR. WIENBERG:
14 Q Now, in light of what you just said about --
15 'cause I had heard you -- I thought you said something
16 different yesterday -- about your continued belief that this
17 was not Mr. Minton's money. Mr. Dandar, you must be in
18 somewhat of a quandary as to -- at this point as to who to
19 pay back that $750,000 to.
20 A No. They're going to -- you know, when the time
21 comes to pay back this money, Mr. Minton is going to be the
22 one, even after all this, to tell me who the check is made
23 payable to, and I will make two separate checks for the UBS
24 checks.
25 Q Well, what if Mr. Minton says, "You make it
762
1 payable to me, Mr. Dandar, 'cause it's my money"?
2 A Well, then he's going to have to prove it.
3 Q So if he says -- so this man that gave you and
4 your firm $1,250,000 in checks written in the United States,
5 you're going to tell him, if he says, "This is my money," at
6 the end of this case, that you've got to prove it before
7 you'll pay him?
8 A That's right.
9 Q But then if he says -- but if he gives you a name,
10 you'll just write out a check to some -- to some name
11 without knowing who the guy is?
12 A I'll cross that bridge when I get to it.
13 And it's none of your business how I do it.
14 THE COURT: And we don't need to have that in
15 court. You don't need to tell him --
16 THE WITNESS: I'm sorry.
17 THE COURT: -- it's none of his business.
18 THE WITNESS: I'm sorry.
19 THE COURT: That's really kind of rude.
20 THE WITNESS: I'm sorry. That is rude.
21 THE COURT: Not for one lawyer to say -- I tend
22 to agree with you that those decisions and those
23 bridges will have to be crossed at the appropriate
24 time.
25 However, I would say that if Mr. Minton wants
763
1 to bring a lawsuit on that issue, he'll probably
2 prevail.
3 And -- and you could get a lawyer to take that
4 on a contingency fee, would be my guess. If I --
5 Mr. Minton doesn't have a lawyer, why -- and I'm
6 retired by then and practicing law, I would take
7 that case. I would not take the other agreement
8 case, however.
9 MR. WIENBERG: There might be a line of
10 people --
11 THE COURT: Might be a line of people. I'm
12 going to have to get in line for that.
13 MR. LIROT: We'd just do an interpleader,
14 Judge.
15 MR. WIENBERG: All right. Let me go to a
16 different area, your Honor.
17 I think I'm moving along, Judge.
18 THE COURT: Good.
19 MR. WIENBERG: I'm making progress here.
20 THE COURT: I'm proud of you.
21 MR. WIENBERG: Thank you.
22 THE COURT: I really am expecting you to finish
23 with him today.
24 MR. WIENBERG: Well, I'm making progress. And
25 I've cut out stuff and I have to move around a
764
1 little bit, but I'm doing --
2 BY MR. WIENBERG:
3 Q Let me hand you a document --
4 MR. WIENBERG: This one, I'm going to have
5 marked.
6 If you can just put the next exhibit number on
7 it, please?
8 THE CLERK: 168.
9 MR. WIENBERG: 168.
10 BY MR. WIENBERG:
11 Q Now, do you remember -- is this a document that
12 you prepared and submitted to Judge Quesada in or about
13 January 3rd, 2001?
14 A Yes.
15 Q Now, if you'll look at -- and this has to do with
16 a motion for contempt and sanctions against Robert Minton,
17 the Lisa McPherson Trust and Stacy Brooks for failing -- for
18 refusing to answer questions dealing with personal financial
19 matters? Is that what this had to do with?
20 A And as well as the plaintiff's motion to strike
21 witnesses and motion for protective order.
22 Q And was there any particular reason why you
23 prepared this document in behalf of -- of Mr. Minton, the
24 Lisa McPherson Trust and Stacy Brooks?
25 A No. I prepared this document on behalf of the
765
1 plaintiff, in its motion to strike witnesses and motion for
2 protective order, as the document states.
3 Q All right. Now, if you go to paragraph --
4 Then you -- you submit various findings of fact
5 that you propose that Judge Quesada adopt, is that correct?
6 A Yes.
7 Q If you go to number 6 on page 3, you say, quote,
8 Robert S. Minton has provided funding to the estate of Lisa
9 McPherson through plaintiff's counsel to defray the costs of
10 the wrongful death lawsuit against the Church of Scientology
11 for the death of Lisa McPherson. He begun -- he began this
12 funding in October of '97, long before the Lisa McPherson
13 Trust was formed. Consequently, Robert Minton's funding has
14 nothing to do with the -- with the trust."
15 My question to you is, as of the time you
16 submitted these findings of fact to Judge Quesada in January
17 of 2001, where you said that the funding -- you don't limit
18 it to the first hundred thousand dollars -- was to defray
19 the costs of the wrongful death case -- at the time you
20 submitted this, did you -- had you already entered into this
21 new oral agreement with Mr. Minton, where you could use the
22 funds any way you wanted to?
23 A I'm pretty sure.
24 Q And is there a particular reason why you submitted
25 these findings of fact to Judge Quesada?
766
1 A No. Because --
2 Well, yeah. That's because that was the evidence
3 that was presented to him.
4 Q Well, is there any reason why you didn't present
5 the evidence that this was your money to use any way you
6 wanted to, as opposed to it was the estate's money to defray
7 the costs of litigation?
8 A Well, it doesn't say it was the estate's money.
9 It said it was provided through counsel.
10 Q To defray costs of the litigation --
11 A Right.
12 Q -- in the wrongful death case, right?
13 A Because that was the -- Mr. Minton's -- that was
14 the evidence that was before the court. And that still
15 covers -- I mean, that doesn't change anything.
16 Q Well, isn't that diametrically opposed to -- to
17 the position that -- that you are taking; that this is
18 no-strings-attached; you can do anything you want to with
19 the money?
20 A No. Costs are costs, whatever they may be.
21 THE COURT: Was there a time when Mr. Minton
22 said this was only -- I mean, the letter's in
23 evidence. I mean, the Kleenex box, and then your
24 response.
25 At that time, the money was to be used solely,
767
1 it appears, to defray the costs --
2 THE WITNESS: Absolutely.
3 THE COURT: -- which --
4 THE WITNESS: Absolutely.
5 THE COURT: All right. And then what you're
6 suggesting is there was some later time where
7 Mr. Minton said -- where you told him you were
8 having to --
9 THE WITNESS: Cancel trials --
10 THE COURT: -- cancel trials and what have you,
11 and he just said, "Use the money however you need to
12 use it."
13 THE WITNESS: That's right.
14 THE COURT: So there was always, always, an
15 agreement that the money -- a certain portion, I
16 presume, up till that time he said, "Use it however
17 you want to," it was be used solely to defray the
18 costs.
19 THE WITNESS: Right.
20 THE COURT: And then there was a subsequent
21 time when it's your testimony that you could use it
22 how you wanted to.
23 THE WITNESS: It broadened. That's right.
24 THE COURT: All right.
25
768
1 BY MR. WIENBERG:
2 Q But your testimony is that that subsequent time
3 happened before you submitted these findings of fact to
4 Judge Quesada, is that right?
5 A That's right.
6 Q And are you able to designate how much of the --
7 of the -- at this point, it's a million fifty thousand, plus
8 the 500. And however you want to count that -- how much of
9 that money was treated to defray --
10 THE COURT: That really isn't fair. He has
11 testified at all times and continues to maintain
12 until this very minute that that $500,000 is not
13 from Mr. Minton. So that -- that $500,000 has
14 nothing to do with this.
15 MR. WIENBERG: Okay. Well, I'll ask the
16 question differently.
17 BY MR. WIENBERG:
18 Q Was it your understanding from Mr. Minton, when he
19 gave you that $500,000, that the money was to be used to
20 defray the costs of litigation in the case?
21 A No. At that time he just handed me this check
22 from these third parties and said, "Here." That was it.
23 Q So -- well --
24 A You talking about the check in May of 2000?
25 Q Yes.
769
1 A Or did I miss something?
2 THE COURT: The check -- the UBS check. That's
3 the one we're talking about.
4 THE WITNESS: Right.
5 THE COURT: At the Bombay Bicycle Club.
6 THE WITNESS: Right.
7 BY MR. WIENBERG:
8 Q So he didn't -- did he tell you that this is to be
9 used from this anonymous source in Europe, the fat man, to
10 defray the costs of litigation?
11 A No.
12 THE COURT: I don't think the fat man came into
13 that check, did it?
14 MR. WIENBERG: You're right.
15 BY MR. WIENBERG:
16 Q Were you talking about the fat man in that check?
17 A No.
18 Q All right. The anonymous source.
19 THE COURT: No. Don't. Friends in Europe.
20 BY MR. WIENBERG:
21 Q Friends in Europe.
22 But he wouldn't tell you his name.
23 A His or their or her. I mean, who knows?
24 Q Did he tell you, when he handed you the check,
25 gave you the check that you could use this any way you
770
1 wanted to --
2 A No.
3 Q -- and it didn't have to be used on the case?
4 A No.
5 Q Had you already had the conversation with him, and
6 the new understanding at that point, when you got the
7 $500,000, that you could use Minton's -- Mr. Minton's money
8 any way you wanted to?
9 A Yeah. As I answered before, that's my best
10 recollection. It happened at the beginning of that year or
11 at the end of '99.
12 Q Okay. So is it -- is it -- is it fair to say
13 then, whenever this happened, that -- that after that point
14 that you had this understanding, this new understanding with
15 Mr. Minton, that money was not the estate's money. It was
16 your money. Is that a fair -- is that a fair statement?
17 A No. The money was never the estate's money.
18 Never, never.
19 Q Okay. So --
20 THE COURT: Maybe --
21 BY MR. WIENBERG:
22 Q -- all of the money --
23 THE COURT: Excuse me.
24 BY MR. WIENBERG:
25 Q All of the 2,050,000 money, regardless if it was
771
1 written on a Mr. Minton personal bank account or a UBS
2 check, all of that money -- none of that money was the
3 estate's money.
4 A That's correct.
5 Q All of that money was either the law firm's money
6 or Ken Dandar's money, right?
7 A Right.
8 THE COURT: A loan, he has always said, I
9 believe.
10 THE WITNESS: Yes.
11 BY MR. WIENBERG:
12 Q So the $500,000, the UBS check, was a loan from
13 friends in Europe to you to do anything with it that you
14 wanted to.
15 A There were no conditions or restrictions placed on
16 that check. It was just handed to me.
17 Q All right. So the answer to my question is yes,
18 you could do with it what you wanted to.
19 A That's right. And that's only because of the
20 trust relationship that I had with Mr. Minton.
21 Q Well, did Mr. Minton tell you that these people in
22 Europe were interested at all in supporting the litigation,
23 the wrongful death case?
24 A He didn't talk about them at all except the words
25 and phrase "friends in Europe."
772
1 Q Well, did he tell you -- did he explain to you --
2 because it must have come as some surprise -- why people in
3 Europe would be interested in giving you or loaning you that
4 much money?
5 A No. We were more concerned with the person that
6 was following us into the restaurant than discussing about
7 his friends in Europe.
8 Q So the $500,000, and for that matter the $250,000
9 UBS check, those are not contingent on winning the lawsuit
10 as far as your obligation to repay?
11 A That's an incorrect statement. I don't know
12 why -- I don't understand what you're trying to say, but --
13 Q Well --
14 A -- it doesn't make sense.
15 Q -- let me make it simple.
16 You say that the 500,000 UBS check and the 250,000
17 UBS check have nothing to do with the wrongful death case.
18 There's no condition that you use them for the wrongful
19 death case.
20 A Well, that's two different statements,
21 Mr. Weinberg. Those checks are like all the other checks,
22 all right? I treat them all the same at the end of the day.
23 Q So your obligation on trust to repay these
24 anonymous people the 750 is still contingent on the estate
25 collecting money?
773
1 A Correct. That's never changed.
2 Q So is it the estate, from the collection of the
3 money from either a settlement or a judgment, that actually
4 is going to give you the 750,000 to repay these people in
5 Europe?
6 A That's where the money comes from, that's right.
7 Q So you get the money, you can do with it what you
8 want to -- I think you said buy a car or a house or
9 whatever -- but the estate has to repay it.
10 A I was being facetious when I said that.
11 But I -- there was no restrictions on the money.
12 And when the estate prevails in this case and there is money
13 as a result of that, collection, of whatever -- however we
14 do it, that's the moment in time when I will repay those
15 loans.
16 Q From the settlement proceeds.
17 A That's right.
18 Q So you don't have any risk at all in this matter.
19 A Well, if you want to count five years of
20 litigation and all my time and my law firm's time as being
21 no risk, you can feel free to do that, but I don't look at
22 it that way, 'cause I'm sure there's going to be five more
23 years of appeals.
24 THE COURT: If the money that you had -- if --
25 if there is money -- I'm not asking you to tell me
774
1 if you have done this, but if there is money that
2 you have used for some personal purpose as opposed
3 to the estate, then I would presume that you would
4 pay that from your -- your personal money instead of
5 the estate's money.
6 THE WITNESS: Absolutely. It would come out of
7 my fee.
8 THE COURT: Or -- yeah. In other words --
9 okay. If you -- if -- if you have used it all for
10 the estate --
11 I never did see this. There was a disagreement
12 or a dispute -- I know Rosen started reading off of
13 your contingency fee, which of course is a standard
14 contingency fee, and then you indicated that you had
15 a later letter, and I never saw it. I don't know
16 what it is.
17 Is there a letter --
18 THE WITNESS: Yeah.
19 THE COURT: -- that you have where it says that
20 you are to pay the costs and you are responsible for
21 the costs?
22 THE WITNESS: Yes.
23 THE COURT: And they do not pay the costs?
24 THE WITNESS: Never. They --
25 THE COURT: Well, then you better get that in
775
1 the record at the appropriate time.
2 But in any event, I would presume that a
3 standard contingency fee is, you get paid off the
4 top --
5 THE WITNESS: Yes.
6 THE COURT: -- and then costs are paid --
7 THE WITNESS: Yes.
8 THE COURT: -- and then the balance goes to
9 the -- whoever these people are.
10 THE WITNESS: Yes.
11 THE COURT: All right. Now, if --
12 THE WITNESS: Actually, the balance goes into
13 the estate before the probate court.
14 THE COURT: Right. It goes into the estate.
15 It goes -- that's who's suing, so therefore it is to
16 the estate --
17 THE WITNESS: Right.
18 THE COURT: -- right?
19 Okay. Now, if in fact -- I'm going to use a
20 hypothetical here -- you had spent $250,000, as is
21 suggested from time to time, for property, cars -- I
22 don't know what -- I mean, I know you say that's
23 facetious, but let's say that that's true.
24 THE WITNESS: Okay.
25 THE COURT: I would assume that that money
776
1 would be paid out of your fee --
2 THE WITNESS: Absolutely.
3 THE COURT: -- and not out of the proceeds that
4 would otherwise go to the estate.
5 THE WITNESS: That's right.
6 THE COURT: And I would assume that whatever
7 you have paid on the estate for costs or whatever
8 would come out of the money that would otherwise go
9 to the estate before that money is paid to the
10 estate.
11 THE WITNESS: That's correct.
12 There's nothing hocus-pocus about this.
13 THE COURT: I mean, whether you'd have to or
14 not, I would assume that that's how you would handle
15 it.
16 THE WITNESS: That's exactly right.
17 MR. WIENBERG: Okay, your Honor, since you
18 raised it, why don't we just hand up this document,
19 which Mr. Dandar's already produced, which I think
20 sort of addresses this issue.
21 THE COURT: Okay.
22 MR. WIENBERG: If we -- if -- we can ask him if
23 that's the one he's talking about.
24 THE WITNESS: This is the letter that explains
25 and clarifies and amends the normal retainer
777
1 agreement that is -- that was signed by Dell
2 Liebreich and Fannie McPherson, but it only --
3 BY MR. WIENBERG:
4 Q Well, hold on. I don't think the judge has
5 finished reading it.
6 A All right.
7 Q I had a question --
8 THE COURT: Well, it doesn't really clarify it
9 to me.
10 MR. WIENBERG: It doesn't to me either, and I
11 was going to ask that question.
12 BY MR. WIENBERG:
13 Q All it says is that the individuals aren't
14 responsible, but the estate is. Where does it say that
15 you're responsible for paying back money that you've used
16 personally?
17 THE COURT: No. That's not what I was looking
18 for.
19 MR. WIENBERG: Okay.
20 THE COURT: I was looking for that -- what I
21 presumed in the -- in the -- in the standard
22 contingency fee --
23 MR. WIENBERG: Here's the agreement --
24 THE COURT: Right.
25 MR. WIENBERG: -- too.
778
1 But -- but -- I don't have another copy of it,
2 but we can share.
3 THE COURT: Right. This is how it always
4 works. It says they're responsible for the costs.
5 THE WITNESS: Right at the top, Judge, the
6 second paragraph.
7 THE COURT: Yeah. It says, "We understand that
8 we are obligated to pay these costs whether or not
9 our claim is successful."
10 MR. WIENBERG: See, I think that all the letter
11 says is that the individual people aren't
12 responsible, but that the estate, which is the real
13 client in this case, as you've pointed out, is
14 responsible for the costs.
15 THE COURT: What I know, just from my practice
16 of law, is that when a -- when a law firm undertakes
17 a contingency fee from a poor person that does not
18 have any money to pay costs, there is no thought
19 that those people are going to advance the costs;
20 that the law firm advanced the costs -- advances the
21 costs.
22 MR. WIENBERG: Yeah.
23 THE COURT: And the agreement and the
24 understanding is usually that if there's a recovery,
25 the -- the --
779
1 MR. WIENBERG: Costs come off the top.
2 THE COURT: -- the costs come off the top after
3 the lawyer's fee.
4 MR. WIENBERG: Right.
5 THE COURT: But -- and here -- here's the
6 little confusing part, is, there's -- there's a
7 problem if in fact there is not a recovery as to
8 whether or not there's ever to be any lawsuit
9 against the -- in other words, whether the lawyer
10 could recover from the individual if they should win
11 the lottery the next week. Because some -- some law
12 firms, you know, clearly advance the costs. And if
13 they lose, they eat them.
14 MR. WIENBERG: Right. And this agreement says
15 that the estate, the client, is responsible for the
16 costs --
17 THE COURT: Right.
18 MR. WIENBERG: -- which means that the law firm
19 could go against it if it wanted to.
20 THE COURT: If it wanted to.
21 MR. WIENBERG: And this letter says the same
22 thing.
23 THE COURT: Yeah. That's what I said.
24 MR. WIENBERG: The last --
25 THE COURT: Yeah. I assumed that there was
780
1 going to be something that said, "Look, if you don't
2 win, I pay the costs, and I just have to absorb
3 those somehow."
4 THE WITNESS: That's paragraph 3, the first
5 sentence.
6 MR. WIENBERG: Yeah. But that's just the
7 individuals.
8 THE COURT: Right.
9 MR. WIENBERG: It says, "In the unlikely
10 event --"
11 THE WITNESS: Well --
12 MR. WIENBERG: "-- the defendants obtain a cost
13 judgment," meaning that we lose, "only the estate,"
14 which is your real client, "is liable for those
15 costs."
16 BY MR. WIENBERG:
17 Q Doesn't say you're liable for them, does it?
18 A No. This is if Scientology wins and gets a cost
19 judgment, only the estate is liable for that. And we
20 already know the estate has no assets.
21 Q Yeah. But that's what the original agreement
22 says.
23 THE COURT: No.
24 A No. The original agreement is actually signed by
25 Fannie McPherson and Dell Liebreich.
781
1 THE COURT: Well, where is that?
2 THE WITNESS: That right there, Judge.
3 THE COURT: And this says they're responsible
4 for the costs.
5 THE WITNESS: Yes. And I changed it in the
6 letter, and I added Ann Carlson, because Fannie had
7 died by this time, February 10th of '97.
8 THE COURT: But what you changed it to read is
9 that the estate is liable for the costs.
10 THE WITNESS: No.
11 THE COURT: Well --
12 THE WITNESS: Only if they're -- Scientology
13 were able to get a cost judgment against the estate.
14 They would not be personally liable for my costs.
15 That's what the first sentence of paragraph 3 says.
16 THE COURT: So you're saying that there's a
17 difference here. This -- this sentence, "Neither of
18 you are personally liable for the costs incurred."
19 THE WITNESS: Right. That would be my costs.
20 THE COURT: Well, of course that's true in any
21 event. They are not --
22 Well, he says they're his clients. See, this
23 is the unusual thing --
24 MR. WIENBERG: Yes.
25 THE COURT: -- as to who's the client. Because
782
1 you see, I think of the client as the estate, and
2 then -- but you're saying because they are your
3 clients; that you are telling them they are not
4 personally responsible.
5 THE WITNESS: That's right.
6 THE COURT: Now, you don't --
7 You make that real clear, I might add.
8 THE WITNESS: I made --
9 THE COURT: And then you're saying in the
10 unlikely event -- you're saying, "Win, lose or draw,
11 you're not responsible for the costs."
12 THE WITNESS: They aren't.
13 THE COURT: But if the church wins and costs
14 are assessed, only the estate's liable for the
15 costs.
16 THE WITNESS: Correct.
17 THE COURT: What; is that to be sure you're not
18 liable for the costs? Is that it?
19 THE WITNESS: That means that the client is not
20 responsible for any cost judgment entered against
21 the estate; the client being the individuals.
22 THE COURT: I suspect that that's subject to
23 interpretation. I mean --
24 MR. WIENBERG: Right.
25 THE COURT: -- that is -- that is the -- that
783
1 isn't the way I'd write mine. I mean, I would make
2 it real clear, not only because I would want it to
3 be very clear for the clients; I would want it to be
4 clear, that in fact what I would be very careful of
5 is I would want to be sure that if I -- that if in
6 fact they lost, that somehow the prevailing party
7 couldn't come against me personally --
8 MR. WIENBERG: Right.
9 THE COURT: -- with guaranteed costs for the
10 costs, and I'd want to make sure that it was real
11 clear.
12 THE WITNESS: But --
13 THE COURT: And this is anything but.
14 But you know --
15 MR. WIENBERG: Just for the record, I'm going
16 to mark these --
17 THE COURT: Yeah.
18 MR. WIENBERG: And they were put --
19 THE COURT: You don't mind if we put these in
20 now?
21 THE WITNESS: No. No.
22 That was the intent of that letter, though,
23 they would never be liable for costs by me or
24 Scientology.
25 THE CLERK: 169.
784
1 MR. WIENBERG: The retainer agreement will be
2 169-A. And unfortunately, it's my only copy.
3 THE COURT: Yeah. I don't think you can ever
4 sign an agreement that would bind the other party
5 with your client. I mean, if they want to sue your
6 clients for costs --
7 THE WITNESS: Well, they'd have to go outside
8 of the estate to do that.
9 THE COURT: Well, that's their -- I mean, they
10 can -- if they prevail and they decide to go after a
11 cost judgment, they can go after that any way they
12 want.
13 Now, whether they --
14 As I said, this is why I would say that the
15 party is the estate, and that's who they would have
16 to go after costs. And of course, if you say the
17 estate didn't prevail, there wouldn't be anything in
18 the estate to collect.
19 THE WITNESS: Correct.
20 THE COURT: However -- that's what I said --
21 I'd want to be sure my agreement was very carefully
22 drawn. Because if my client was the individuals and
23 not the estate, and that's who you're really
24 representing then, you know, I suppose an argument
25 could be made they can go against the individuals.
785
1 You can't alter that by some letter that you send to
2 your clients.
3 THE WITNESS: No. They would have to have
4 something that shows that the individuals are
5 responsible for their cost judgment over -- outside
6 of these --
7 THE COURT: How about you? If you're
8 responsible for the costs, can they come against you
9 if they win?
10 THE WITNESS: No. They can only go by the law,
11 who's responsible for costs.
12 THE COURT: Well, it depends. You just said
13 you were. So if you are, does that mean they can
14 come against you?
15 THE WITNESS: No. No.
16 THE COURT: Well, that may be an issue too one
17 day.
18 THE WITNESS: When you say they, you talking
19 about --
20 THE COURT: The church.
21 THE WITNESS: Oh, no, no. They can only go
22 against the estate.
23 THE COURT: Well, I suppose it just depends.
24 And that's why I said if it were me and I were
25 entering into this type of litigation, my agreement
786
1 would be very carefully drawn and very clearly
2 drawn, so that in the event anybody was ever going
3 to interpret who was responsible for the costs, it
4 would be very clear.
5 Your -- your agreement and your letter does not
6 make it clear. I understand what you're saying and
7 I understand how you're testifying, but it's not --
8 You know, I remember the old parole evidence
9 rule, trying to vary and what have you terms of
10 written agreements, and how difficult that is and so
11 forth.
12 I would suggest in the future that if you draw
13 more of these things, that you are more careful,
14 quite frankly.
15 BY MR. WIENBERG:
16 Q Now, from time to time in this litigation, you
17 have filed pleadings in which you have raised objections
18 regarding discovery concerning financial disclosure issues
19 and other issues alleging that it is a waste of the assets
20 of the estate. Do you -- do you remember saying that?
21 A Yes.
22 Q Wasting valuable assets of the estate?
23 And my question to you is, what assets are you
24 talking about?
25 A Time and expense necessary to have me or my client
787
1 respond to the frivolous discovery.
2 Q So you're not talking about the Minton money that
3 was given to defray costs of litigation.
4 A No.
5 THE COURT: I wonder if you ever wonder how
6 annoying it must be to me, to Judge Moody, to Judge
7 Baird and everybody else to hear you continually say
8 that? There have been an awful lot of judges that
9 you have basically thought that their orders were
10 wrong -- that may be one thing. It's one thing to
11 say that a judge is wrong. And you can take that up
12 on appeal, although many of these very judges have
13 been affirmed on appeal. But when you talk about
14 frivolous, if they're doing something and a judge is
15 saying they're correct, it hardly is frivolous.
16 THE WITNESS: I'm not talking about that.
17 Judge Moody agreed with most of the time -- in
18 fact I would say 99 percent of the time when we said
19 it was frivolous. He greatly restricted the scope
20 of discovery against the Lisa McPherson Trust,
21 Mr. Minton and Ms. Brooks.
22 THE COURT: Well, then perhaps you can impress
23 Judge Moody, but my colleagues happen to be Judge
24 Beach, Judge Quesada and myself.
25 THE WITNESS: But --
788
1 THE COURT: I can understand that you can
2 disagree with the court's order. I have it happen
3 all the time. There probably is no one in this room
4 that agreed with every -- not one person that would
5 have agreed with every order that I put out the
6 other day. That is a given. I understand that, and
7 I can almost tell you who agreed with which ones.
8 However, you don't say that the other side,
9 when they did something and you lost, was frivolous.
10 You might say, "I can't believe the judge ruled that
11 way."
12 THE WITNESS: No. Judge, that's why I'm trying
13 to correct you and your impression of what
14 Mr. Weinberg just said. I never called the court's
15 order frivolous; I called the request by the Church
16 of Scientology frivolous.
17 THE COURT: Yes. But if the church won --
18 THE WITNESS: That's when --
19 I don't use the word anymore.
20 THE COURT: Okay.
21 THE WITNESS: I'm going to try not to use the
22 word, or "outrageous," again.
23 THE COURT: Well, be real careful when you talk
24 about something that they've done as frivolous, when
25 they've won and a judge has entered an order
789
1 allowing whatever they'd asked for, that you call
2 frivolous, to happen.
3 THE WITNESS: Right. I have never --
4 THE COURT: Because I find it offensive, and
5 I'm sure another judge would find it offensive too.
6 THE WITNESS: I would agree with that. I would
7 never say frivolous after the court ordered me to do
8 something.
9 THE COURT: Somehow it comes across that way
10 when I read some of your stuff.
11 THE WITNESS: All right.
12 THE COURT: So be very careful.
13 THE WITNESS: I certainly will.
14 THE COURT: Excuse me.
15 MR. WIENBERG: I was just going to go on or --
16 THE COURT: Well, actually, let's stop for
17 lunch.
18 MR. WIENBERG: Okay.
19 THE COURT: That was my last lecture,
20 Mr. Dandar, for the day. Maybe.
21 Probably not.
22 THE WITNESS: It's not 4:00 yet.
23 THE COURT: Probably not. I'll probably have
24 several for all of you.
25 MR. WIENBERG: I'm hoping I can avoid it today.
790
1 THE COURT: All right. We're in recess until
2 1:30.
3 I'm sorry to take such a long lunch. I've got
4 some calls I've got to make.
5 (A recess was taken at 12:02 p.m.)
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791
1
2 REPORTER'S CERTIFICATE
3
4 STATE OF FLORIDA )
5 COUNTY OF PINELLAS )
6 I, Donna M. Kanabay, RMR, CRR, certify that I was
authorized to and did stenographically report the
7 proceedings herein, and that the transcript is a true and
complete record of my stenographic notes.
8
I further certify that I am not a relative,
9 employee, attorney or counsel of any of the parties, nor am
I a relative or employee of any of the parties' attorney or
10 counsel connected with the action, nor am I financially
interested in the action.
11
12 WITNESS my hand and official seal this 6th day of June,
13 2002.
14
15 ______________________________
DONNA M. KANABAY, RMR, CRR
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