Sitting in the public gallery of the Los Angeles Superior Court, it is easy to see why the trial scene has been the trump card of dramatists for centuries. From the ancient Greeks to The Merchant of Venice to Twelve Angry Men to A Few Good Men, a good trial scene is hard to beat, and Los Angeles has seen some of the best.
It's hard to enter an L.A. courtroom without thinking that it holds the dark spirits of the Manson Family, the Hillside Strangler, OJ Simpson or the Black Dahlia. It's also hard to avoid comparisons – the courtroom is smaller and less pristine than its counterpart on The Practice, and the lighting makes everyone look guilty.
Civil, but Contentious
We are running late, and the three-man team for the plaintiff is wheeling a huge projection screen into place, trying for the best viewpoint for judge and jury. After three attempts, the screen still obscures the view of the public crowded into the gallery. Judging sightlines and focusing projectors is not their strong suit, an irony not lost on the industry veterans on hand to lend moral support. They would do it all differently, but this is not their show.
The set design may lack luster, but even though this is a civil and not a criminal trial, we expect the script to be dynamite. In case we think this will be a trial by PowerPoint, a metal bookcase containing no fewer than 40 black three-ring binders of analog evidence sits within easy reach.
This is a full jury trial, with discovery, depositions, jury selection and a defense team. Pre-trial legal costs for either side could buy you a good-sized lighting rig with some video thrown in. There is talk that this trial might go a month or more. In this town, murder cases have been wrapped up in half that time. That the trial is taking place at all means that back-room settlements, plea bargains and off-the-table deals have all failed.
A High-Stakes Contest
Most cases reach a negotiated secret settlement long before a court date is set. Disputes rarely get this far for good reason. A trial by jury is only exciting for the onlookers. For the plaintiff and defendant, it has all the appeal of taking your life savings, business assets and your reputation, pushing them into the center of the poker table, and waiting for the final card to turn. For XL Touring Video and Chaos Visual Productions, the stakes are no less than their economic survival. Their internal practices and the characters of their executives will soon be laid bare. The plaintiff, Phil Mercer of XL Touring Video and defendant, John Wiseman of Chaos Visual Productions, dress rock ‘n' roll formal (boots, jeans, dress shirt, crumpled jacket.) They stand out in a sea of suits and uniforms.
At the heart of the XL Touring Video suit is the claim that the defendant, John Wiseman, now of Chaos Visual Productions, used company time and resources while he was still CEO and president of XLTV to set up a competing company, into which he siphoned tour business and clients.
The Plaintiff's Case
In a clipped monotone against a background of production stills and e-mails highlighted in yellow, the attorney for the plaintiff paints a picture of Wiseman as a man more concerned with his own business interests than those of his employer. The team for the plaintiff lays out the detailed timeline of Wiseman's creation of Chaos in the months prior to his resignation from XLTV in November 2008. Strong on Hollywood elements, the case includes secret meetings with tour managers, lavish meals with video designers, an NBA basketball star and a billionaire angel investor. One jury member seems to be writing it down verbatim.
It is alleged that Wiseman used an ex-XLTV chief financial officer to craft a business plan to pitch to investors. The plan included the acquisition of CW Productions (an automated lighting company) and the creation of a video company with the extremely unfortunate name of Double Cross Video. The financial projections show immediate revenue from touring acts, whom the plaintiff claims were persuaded by Wiseman to commit to the new entity he was forming while still CEO of XLTV. Additionally, claims were made that Wiseman approached XLTV employees with job offers, one of whom reported this to XLTV's Belgium-based owners.
The plaintiff's lawyer takes pains to explain the efforts and expertise it has taken to recover deleted e-mails from Wiseman's laptop. Ironically some of the e-mails instructed the recipients to delete and destroy the incoming mail.
An impressive client roster, including Beyonce, Keith Urban and Jay-Z, were alleged to have been illegally diverted from XLTV to Chaos. The suit claims, amongst other things, the loss of revenue from seven tours. An additional suit claims that Wiseman shared secret proprietary information about artists and their tour plans.
The opening statements fell short of attaching a dollar amount to the allegations. By now the sight of all that "deleted" e-mail has everyone in the courtroom re-considering the long term effects of hitting the "send" button too hastily and the woeful misnaming of the delete command.
Speaking for the Defense
{mosimage}After a brief recess, the attorney for the defense strikes a more folksy tone exploring the themes of loyalty in its various guises. Loyalty to employer, to co-worker and to customers is examined. In a presentation more impassioned but less polished, the defense presents Wiseman as a man hired for the very qualities that XLTV so badly needed. A climbing graph chronicles the immediate sales success that Wiseman scored, taking XLTV from $3 million in U.S. revenue in 2004 to over $25 million by the end of his term in 2008. Wiseman also showed his stripes as a company man by co-signing lease guarantees to the tune of $2.8 million during his term as CEO. His industry and loyalty take XLTV from nowhere to the big time in four years.
The point is made repeatedly that Wiseman was hired for his sales skills and his Rolodex (a circular rotating device containing white cards, for those born after 1990). In one of many colorful sports analogies, Wiseman is variously described as the MVP, team captain and, finally, the reluctant free agent. In a town obsessed by local teams, he is looking less like Manny Ramirez and more like Kobe Bryant. Stretching the sports metaphors to the limit, the defense attorney asks if the Cleveland Cavaliers should sue the Miami Heat if the loss of their star player gives them a bad season. (Let's hope there are no Cleveland fans on the jury.)
It seems that, in the rush to get the shows on the road, Wiseman's three-year management contract with stock options has expired, and may not be renewed. Wiseman is then, according to the defense, left with no choice but to look out for his own interests. The defense has deposed, or intends to bring as witnesses, a team of Wiseman's longtime designer, director and producer friends, who will confirm that the concert industry is service- and personality-driven, and they like what Wiseman has given them for the past 25 years. They will follow him regardless of his employment status.
In this game, that is the loyalty that is bankable, unlike that other loyalty that is merely expected. Customer service and tech support is everything – the rest is just gear in road cases.
The defense concludes that XLTV neglected their star player, even trying to fire him seven months after he resigned, allegedly to avoid payment of stock options, and has a terminal case of "sour grapes." They are trying to recover lost touring revenue through the legal system.
The concert industry is characterized as a free market environment where no proprietary secret can live for long. The defense does not so much deny Wiseman's actions as seek to explain them. It takes a "wouldn't-you-do-the-same" tone.
Not surprisingly, recovered "deleted" e-mails return to play a starring role in the defense strategy.
The Gray Zone
Regardless of the outcome, this case will shine a light into the gray areas of the concert industry. Like low-resolution video, those may look better viewed from a distance. On trial are the assumptions we make every day as designers, account executives or business owners.
When your star salesman leaves, will your customers follow, or will they stay loyal to the company? Is the concert industry a web of influence-peddlers, with the ability to subvert the rules of conventional business and get away with it? Should we have more (or fewer) employment contracts? Is a handshake no longer worth the paper it's written on? Is it okay to take a quote from one vendor and disclose it to a competitor to drive a better price? Is it okay to write an equipment spec that purposely excludes a vendor from being able to quote competitively?
The bidding practices of military contractors are subject to high levels of scrutiny – a Google search will show that they are permanently in litigation. Most retain full-time legal counsel passing the costs on to their customers. Is this our future? If you think the fun is seeping out of our industry now, just wait. Nothing can erode your bottom line quicker than paying legal costs.
Big Eggs, Small Baskets
For the two companies facing off in court, the situation is made more intense because their client pool is small, their capital investment enormous and their equipment has an obsolescence curve that is downright scary. They may only do 10 major jobs a year and are completely at the whim of artists' schedules, show cancellation and other variables that cause insomnia and anxiety. Losing a customer for whatever reason is serious business – losing three or more customers is life-threatening
A successful company at this level needs to have top-notch gear, endless technical support and the ability to make very nervous high maintenance customers feel that they are getting what they are paying (a lot) for. There may be a contract, there may even be vestigial traces of customer loyalty, but mostly it's a leap of faith. Behind the wall of technology and production techs, it's one guy trusting another to get the job done. It's a blend of charisma, confidence and longevity, and it's hard to attach a dollar figure to it. That, however, is the task for judge and jury, who will never look at a concert quite the same way again.
For the rest of us, we are planning to dunk that old laptop in sulfuric acid and hurl it into the Grand Canyon.
