by feldmanwallach

Thoughts on the Civil Trial of Michael Jackson’s Family against AEG, Live
By Ian Wallach, Feldman & Wallach, http://www.feldmanwallach.com

This case will consume perhaps three months of trial, then years of appeals and other proceedings. It’s about an astronomical amount of money (up to $40 Billion). There is one remaining legal cause of action; one real question (who controlled Dr. Murray); and two great lawyers playing a double-sided game – what does the law require, and how can the law be used to present facts that effect the jury?

Normally, complaints seek unrealistic sums of money. Because of years of this “shoot-for-the-moon” pleading practice, the amount sought in a complaint rarely reflects what a plaintiff really wants. But here, who knows? Michael Jackson’s estate was worth billions. At times, he was worth billions. And the plaintiffs are his family who lost their iconic-pop-star father too early — no one can put a value on that.

The lawyers are among the best in the country. KC Maxwell, representing Michael Jackson’s mother, Katherine, and his children, successfully prosecuted Scooter Libby in the Valerie Plame scandal and got a conviction and a very severe sentence (which was then drastically commuted (reduced) by President Bush). She is trying the case with Kevin Boyle of Panish, Shea, and Boyle — who has won several multi-million dollar trial verdicts.The tour company, AEG Live, is represented by Marvin Putnam of O’Melveny and Myers, who embodies professionalism — towering, impeccable, professional, eloquent, polite, and razor-sharp.

Two of the three original legal theories are gone. The Jackson family previously argued that there was a “special relationship” between the tour company and Michael Jackson, and that the company had a duty to protect him from all foreseeable harms. “Special Relationships” exist under California law for situations where one has almost complete control over the other – for example, a jailor has a special relationship to an inmate (an issue in many of our cases), and a shopping center owner or restaurants can have a special relationship to customers. The Court didn’t believe there was sufficient evidence of control to let this argument proceed to trial. Another theory was that Murray was the employee of the tour company and therefore the tour company was responsible for his actions. But the Court didn’t see any evidence of this, so this was dismissed too.

This leaves a theory of negligent entrustment – did the tour company have and continue a relationship with Dr. Murray, such as an independent contractor relationship, where the tour company should have known that Dr. Murray would put the tour company’s interests above Michael Jackson’s health? That is what the jury must decide. And Murray won’t testify – he has on ongoing appeal of his criminal conviction, so he will have a 5th amendment right to stay silent and will exercise it.

It is a hard theory to prove legally. A jury will have to decide who controlled Murray – the tour company or Michael Jackson. But in making that decision, they will see information that may make them dislike both parties, and be more guided by human sympathies than reason.

Legally, the tour company has a strong case — Michael Jackson used other doctors, and he used Dr. Murray before. And he was a grown man, capable of making his own decisions (and he did make decisions that could seem controlling – he was eccentric and could afford to be). The Court stated that evidence that Murray was in debt could be important, as the tour company apparently never looked into it. But when hiring a doctor, do you hire who you think will heal you, or who has better credit?

Practically speaking, however, it’s tough to decide whose case is stronger. On the side of Jackson’s family, the jury has to consider the mother and children of a beloved iconic pop-star who died too early. A jury will sympathize (that weight is tremendous). The family will argue that the tour company was so concerned about money that it didn’t pay attention to warning signs (including an internal memo about Jackson’s health). And this legal argument will allow the jury to see shady practices of tour promoters, potentially turning jurors against the defendants.

And a parade of celebrities will be condemning AEG and assisting the plaintiff in their pursuit – Sharon Osbourne has stated that she will testify that AEG executives knew that Michael was not doing well and might not be able to perform (an argument of little legal significance, as the Court has already ruled that AEG had no duty of care to Michael, but an argument that will have a strong emotional impact on the jury). And Prince reportedly is ready to testify to talk about how AEG mistreated him in the past (again – not really relevant to the question of who controlled Dr. Murray, and to what extent, but potentially impactful on the jury).

Conversely, the tour company will introduce evidence of the child molestation cases (even though the validity of those cases isn’t relevant to this trial) and argue that these cases stressed Jackson out, and so he ordered Murray to give him more drugs. Just discussing these molestation cases may turn some jurors against Michael Jackson and make them not see him as a victim.

The plaintiffs face an uphill battle as to the law. The tour company faces an uphill battle as to the jury. The war promises to be disturbing, sad, and fascinating.