THE GOOD, THE BAD AND THE BOSS

Three different personas during testimony

There are matters to consider before you enter a courtroom as plaintiff, defendant or witness: for instance, what you say, your body language, how you present yourself and what you wear. The judge will be watching you. You don’t believe me? Read for yourself!

The judge about the defendant:

Murdock tried out three different personas during his testimony. During his deposition, he showed the true force of his domineering personality. During the first day of trial, Murdock tried to appear more reasonable and conciliatory on direct, but on cross-examination, he could not resist being combative. He denied basic points and made long speeches. Both during his deposition and on the first day of trial, many of Murdock‘s assertions were not credible or plainly wrong. To rehabilitate him, the defendants tried to portray him as a confused 91-year-old man, but it was clear that Murdock‘s intellect remains sharp. Murdock‘s problem was different. By dint of his prodigious wealth and power, he has grown accustomed to deference and fallen into the habit of characterizing events however he wants. That habit serves a witness poorly when he faces a skilled cross-examiner who has contrary documents and testimony at his disposal.

On the second day of trial, Murdock tried a different approach: He became evasive and attempted to cast himself as an uninvolved CEO who lacked any meaningful knowledge about what was going on at his company. He even denied being involved in major decisions, such as when Dole started giving intra-quarter earnings guidance in the months before the Merger. This version of Murdock was not credible either.

In addition to offering the ‘confused old man’ theory, the defendants sought to blunt the cumulative effect of Murdock‘s testimony, demeanor, and actions by citing his philanthropy, which is commendable. But it does not inoculate his business dealings. Tycoons like Vanderbilt, Carnegie, and Rockefeller built great fortunes as aggressive businessmen, then devoted substantial portions of their wealth to the betterment of all. More recently, Bill Gates led a company that was prosecuted successfully for antitrust violations, yet his foundation appears (at least to me) to be a force for good. The ultimate balancing is for posterity and the divine. My task is far narrower: to evaluate how Murdock and his fellow fiduciaries behaved in connection with a specific transaction.

Source: August 27, 2015 post-trial opinion (click here), Delaware Court of Chancery, Vice Chancellor Travis Laster

Karel Frielink

(15 December 2015)

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