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to prove his or her conduct on a specified occasion. And if we look further into the comments of 1101(a), it...
the legislature specifically states... I'm going to read it for
Judge: "civil cases. Section 1101 excludes evidence of character to prove conduct in civil cases for the
following reasons. " I interposed an objection, requested to go to sidebar. The court said, "you can make your
record after. " so at 20 to 5:00, I was able to state my basis for the objection, after it had been shown to the jury,
after extensive questioning had occurred. There is no question this is textbook character evidence, because
why...
Ms. Bina: It's not.
Mr. Panish: ... else is it being offered other than to show that he would do this in the future? What other
relevance could it have? Let me read you what the legislature and the comments to the evidence code section
said, which I hadn't read before but were exactly the objections that I made to the court when it was offered:
"no. 1. Civil cases"...
Judge: I mean, it's the same analysis he's likely to do concerts in the future; he's likely not to do concerts in
the future.
Mr. Panish: Well, I... can I read the analysis?
Judge: Sure. Go ahead. Read it.
Mr. Panish: It doesn't seem like...
Judge: I'm listening. I don't think...
Mr. Panish: That exactly... what you said...
Judge: I don't think it's being offered for character evidence.
Mr. Panish: Your honor, exactly that reason, that he's done all these concerts in the future or he's done in the
past, that's not admissible. That's character evidence. And that's specifically what it says in 1101(a). And let
me read it to you.
Judge: Yes, you may.
Mr. Panish: Evidence code section 1101: "excludes evidence of character conduct to prove conduct in
A. Civil case for the following reasons: "first. Character evidence is of slight probative value and may be very
prejudicial. " the grounds that I raised. "second. Character evidence tends to distract the trier of fact from the
main question of what actually happened on a particular occasion and permits the trier of fact to reward the
good man and punish the bad man because of their respective characteristics. "third. Introduction of character
evidence may result in confusion of the issues and require extended collateral inquiry. " another grounds under
which I objected under evidence code section 352. They have offered this evidence for the specific purpose to
show that Mr. Jackson wouldn't do this in the future. Now, if you continue to read on, evidence of good
character is not admissible in a civil case, just like you said, "well, he's done concerts in the past, why can't
he"...
Judge: That's what you presented.
Mr. Panish: I did not say that with this witness; that he had done concerts or that he was going to do concerts
in the future because he did them in the past. No. 1, I didn't say that; no. 2, there was no objection to any
testimony about his concert history, which, if you remember, I didn't bring out Mr. Jackson's specific
performance. But that's not allowed anyway. And read what it says: "evidence of good character is not
admissible. Assault. Evidence of defendant's bad character for quiet and peace was held inadmissible. Assault.
Evidence of defendant's good character is not admissible. " and so this is classic character evidence. I... first of
all, it was improperly judicially noticed without time in writing, and there's a whole bunch more about the case.
I haven't gotten into that yet. But now we're into the collateral inquiry. I objected. I didn't have notice. It was
put up without me being able to look at.
Judge: So what's the prejudice? Tell me about the notice. What's the written notice?
Mr. Panish: Well, I could come in and show you all of what happened in that case; how it's not relevant to
this case. It's a completely different situation. It has nothing to do with a future contract that he's going to
breach. And they're offering it to say, "well, Mr. Erk, you didn't consider this. He could have breached that
contract based on this judgment," this jury judgment, which was later settled confidentially, what I've learned so
far. Settled; okay? And how...
Judge: Well...
Ms. Bina: Your honor...
Ms. Strong: Actually...
Judge: Settled after judgment?
Mr. Putnam: Yes.
Ms. Strong: With respect to that, the judgment was for $5. 3 million. Mr. Avram appealed, seeking more
damages. Upon appeal, the parties settled for $6. 5 million...
Mr. Panish: That's not...
Ms. Strong: ... which comes from a brief submitted by Michael Jackson's own lawyers, admitting the totality
of the settlement. And so in fact the appeals were abandoned, and the judgment was final.
Mr. Panish: It was not a final judgment. It was a settlement, no. 1; no. 2, it was $20 million. He claimed he
put out 10 million. So now we have Mr. Avram served three and a half years in prison; okay? But this is
character evidence. This is the whole reason that this is not admissible. This is classic...
Judge: I'm listening to you, Mr. Panish, but I don't...
Mr. Panish: I understand you're not agreeing with me...
Judge: I'm not persuaded.
Mr. Panish: ... and you also said that it would just be like introducing evidence that somebody did concerts,
once again, that they have a propensity to do, which would also be character evidence. I disagree with your...
Judge: The propensity of character would be a propensity to be violent or...
Mr. Panish: It's a breach of contract. What's the difference?
Ms. Bina: Your honor, if I could briefly respond, just to put it on the record. I don't want to undue delay
things. First of all, evidence code 455 requires notice when there's... when it's talking about a matter specified
in 452 that is of substantial consequence to the determination of the action. I don't think anyone is claiming this
judgment was a substantial consequence to the determination of this action. So just putting this aside, I don't
actually think that provision is applicable, and there's certainly no prejudice. Turning to 1101, your honor, very
briefly...
Judge: And certainly not on cross, and certainly not a judgment of which Mr. Jackson would be presumably
aware of and his attorneys. It's a judgment, not...
Mr. Panish: So would AEG
Ms. Bina: Your honor, a judgment where an appeal...
Judge: Not as though it's hidden.
Ms. Bina: An appeal that was abandoned makes the judgment final. The fact that there was a separate
settlement that was dealt with later, that didn't affect the finality of the judgment that was originally ruled and
the appeal that was abandoned. That judgment stayed. And the fact that Mr. Jackson settled for more than what
the jury awarded against him...
Judge: That's not in evidence. I don't know that.
Mr. Panish: That's not true.
Ms. Bina: And nobody is putting that in. The point is, we put in the judgment, which is final and judicially
noticeable. As far as 1101, your honor, this part that I think we're on the same page: "evidence of character is
not admissible when offered to prove his or her conduct on a specified occasion. " none of this was offered to
prove any specified occasion on which Mr. Jackson did or did not do something; however, in wrongful-death
cases, your honor, evidence of decedent's habit, thrift, spending, business interactions are all relevant to his
future earning capacity and his likelihood of future earnings. I think that's wide open fair game. It's not
character evidence; it's not offered to prove that he did something on a specified occasion, and it's just not what
we're talking about here, your honor.
Judge: Right. Okay. So let's keep going.
Mr. Panish: And so the next point is: why was my judicial notice of the same type of inquiry denied?
Judge: I don't have any memory of your prior judicial notice, and I don't want to revisit it.
Mr. Panish: Well...
Judge: At least not at this point. All I remember was a district court decision on something.
Mr. Panish: Which is the same as a superior court decision on something...
Ms. Bina: Your honor...
Mr. Panish: And it was a judgment of the district court, exactly like this, regarding the eeoc matter that they
brought up and misrepresented to the jury.
Judge: Well, Mr. Panish, at your request I had the jury completely disregard all the eeoc matter, so I don't
know why you would want to bring this up again.
Ms. Bina: Your honor...
Mr. Panish: Because...
Judge: That would just be reopening the whole case. We're not going to do that.
Ms. Bina: That is exactly why you excluded it, your honor. We have... there was an eeoc policy. I, without
meaning to, your honor, thought it was referring to a regulation. You suggested judicial notice. I didn't realize
policies weren't noticeable.
Judge: Guidelines.
Ms. Bina: Guidelines weren't noticeable. I was under the impression that they were. We rectified the issue
the next day. Mr. Panish then sought to introduce lawsuits relating to the eeoc on redirect. And your honor was
like, "we're done with this issue. It's not relevant," and that's why you excluded it.
Judge: I instructed the jury, at plaintiffs' request, and you both came up with a jury instruction, and I gave it
to them, and we dropped the issue.
Mr. Panish: No, that's not...
Judge: That's why there was no further...
Ms. Bina: And your honor has taken judicial notice of a number of judgments like this one against Conrad
Murray that were offered by the plaintiffs. So, you know, when it actually relates to the parties in the case, your
honor has taken judicial notice for both sides. So I don't... the eeoc lawsuit was when we were getting in
tangential territory on redirect that had already been instructed on.
Mr. Panish: It was not a lawsuit; it was a judgment, just like this is a judgment, which showed what the
actual eeoc did; okay? I never had a chance to argue it, because when I brought it up, the court said, "oh, no. I
denied it. " there was no chance or opportunity afforded me to bring it up in front of you.
Judge: Well, yes, because you had asked that I instruct the jury and that we disregard it.
Mr. Panish: But you never even looked at...
Judge: I don't want to rehash this.
Mr. Panish: I won't. But I'm going to ask, if they're going to get into this controversial... they should have
approached the bench before they put it up before I had a chance to see it. It was put up multiple times
yesterday.
Judge: It is cross-examination.
Ms. Strong: That is not true. I did hand it to him before I put it up.
Mr. Panish: That's not the truth.
Ms. Strong: I handed it to you before I put it on the screen.
Mr. Panish: I didn't look at it, and it was put right on the screen. I mean, don't I have... it's not on the exhibit
list...
Ms. Bina: Your honor, it was only put on the screen after you overruled Mr. Panish's objection.
Mr. Panish: No, that's not true.
Judge: Well, if they handed it to you ahead of time, then you had prior...
Mr. Panish: I had no time. They dropped it on the table and put it up. I would ask that...
Judge: That's what I've been seeing throughout the whole trial, exchanging exhibits as the witnesses go on.
Mr. Panish: I've asked if it's improper to put it up before I do that.
Judge: All right. Are the jurors ready?
The jury entered the courtroom
Judge: Good morning, everybody. The jury: good morning.
Judge: And good morning, counsel. Will you make your appearances?
Mr. Panish: Yes. Good morning. Brian Panish for the plaintiffs.
Mr. Boyle: Good morning, everybody. Kevin Boyle for the plaintiffs.
Ms. Strong: Sabrina Strong for the defendants.
Ms. Bina: Good morning. Jessica Stebbins Bina for the defendants.
Mr. Putnam: And Marvin Putnam for the defendants.
Judge: Thank you. Mr. Erk, you're still under oath.
Witness: yes.
Judge: Okay. Thank you. You may continue.
Ms. Strong: Thank you, your honor.
Arthur Erk, recalled as a witness by the plaintiffs, was previously sworn and testified as follows: cross-
examination resumed by Ms. Strong:
Q. Good morning, Mr. Erk.
A. Good morning.
Q. We left off yesterday talking about your consumption number...
A. Yes.
Q. ... and we'll go back to that in just a minute. But first I want to clear something up about your testimony
from yesterday. I believe you said a number of times yesterday that you relied on AEG Live's numbers in
coming up with your calculations; right?
A. That's correct.
Q. And you repeated that in your testimony several times; right?
A. Yes.
Q. But let's be clear about something: AEG Live never projected that Michael Jackson would earn anything
close to the $900 million figure you're saying Michael Jackson would have earned with the 260 "This Is It"
shows; is that right?
A. That's correct.
Q. There are no AEG Live budgets reflecting the numbers anywhere close to that; isn't that right, Mr. Erk?
A. That's correct.
Q. In fact, there are no AEG Live documents of any kind projecting that Michael Jackson would earn anything
approaching a billion dollars that you're saying Michael Jackson would have earned on the "This Is It" tour?
A. That's correct.
Q. And AEG Live never projected that Michael Jackson would do 260 shows?
A. That's correct.
Q. And there certainly are no AEG Live budgets reflecting any 260-show tour; right?
A. Correct.
Q. In fact, there are no documents at all reflecting a contemplated 260-show tour for Michael Jackson on "This
Is It"; is that right?
A. Correct.
Q. All right. So let's go back to consumption. And, again, consumption, what we're talking about is the
amount you think Michael Jackson would have spent had he lived his life day by day; correct?
A. Yes.
Q. And you explained to us yesterday that in coming up with your consumption number, you relied on the
Dewey Leboeuf legal memo?
A. Yes.
Q. And that was the sole document that you used to come up with the consumption numbers; right?
A. Not completely correct, no.
Q. But that's where the numbers came from?
A. For my schedule it came from there, yes.
Q. And we talked about that memo. It was from a law firm; right?
A. Yes.
Q. Not from Michael Jackson's accountants; correct?
A. I think the numbers came from Cannon.
Q. You don't know?
A. Specifically, I would tell you that after I did my testimony yesterday, I went back, and I looked and found an
exhibit in Cannon's deposition that called for
A. Consumption. You know, the only difference between the consumption he had and the consumption I had
was the amount of legal fees on a monthly basis, which was $70,000.
Q. Well, you didn't... when you came up with your numbers, you didn't know it was in those notes; correct?
A. No. But I assumed they came from the accountants. Attorneys are not accountants.
Q. And I don't know what document you're referring to with respect to Mr. Cannon, because you certainly
didn't have it at your deposition at your fingertips; right?
A. Not at that time, but I believe it's exhibit 11 to his deposition.
Q. Okay. And you know that there are significant... we already established that your numbers didn't take into
account any of the business expenses of the Michael Jackson company, MJJ Productions, thing like that; right?
A. Not for that schedule, I didn't. I used the Dewey Leboeuf schedule.
Q. Right. And you have no idea how much Michael Jackson, through the Michael Jackson company and MJJ
Productions spent on expenses, do you?
A. Well, if you go to that Cannon exhibit, he lays out all the expenses with the vendors and the payees and the
accounts payable, and it basically encompasses everything that I have on it. He's got a lot more details, but the
numbers tie out to the numbers I have with the exception of legal. And if you remember yesterday, we had a
slide where we deducted 10 percent, which would include legal, personal manager and accountant. And we had
legal at about 5 percent, which, quite frankly, would have worked out to 3 to $5 million a year, far exceeding
Cannon's numbers.
Q. And at the time of Cannon's numbers... and again, I'm not sure what document you're referring to... but
Michael Jackson...
Q. And in fact, let's assume Barry Siegel testified that he never saw any interest in Michael Jackson in stopping
his spending. Would that affect his spending?
A. I'm sorry. Repeat the question.
Q. Let's assume that Barry Siegel testified that he never saw any interest by Michael Jackson in trying to make
a change in stopping his spending. Would that impact your opinion with respect to Michael Jackson's
consumption numbers?
A. No.
Q. Do you recall Mr. Siegel talking about the Bashir documentary?
A. No. There's a lot of documents I don't recall, and you could refresh my memory for me.
Q. This is Mr. Siegel's deposition. You don't recall him talking about the Bashir documentary where Michael
Jackson went on a spending spree?
Mr. Panish: Your honor...
Judge: Sustained.
Mr. Panish: Ask her to be admonished. She continues to do it.
Judge: Okay. Counsel, you really should be refreshing recollection first before you proceed in that manner,
so...
Ms. Strong: And just apart from the testimony, and just... do you remember the Bashir documentary...
Judge: He said he didn't remember. Refresh his recollection.
Ms. Strong: This is separate from Mr. Siegel.
Mr. Panish: She's going to do it again, your honor. I'm telling you. "do you remember where he said," blah,
blah, blah. That's improper, and she continues to do it.
Ms. Strong: I was asking separate from the deposition. It's something that was quite public, your honor, in
terms of a shopping spree.
Judge: He just doesn't remember.
Ms. Strong: I didn't hear his answer. I'm sorry, your honor.
Judge: If he doesn't remember, you give the witness a chance to remember.
Mr. Panish: If he knew ever.
Judge: He might if his recollection's refreshed.
Mr. Panish: There's been no foundation for any of this yet.
Ms. Strong: I'm going to try to speed this along, your honor.
Ms. Strong: Let's see if you recall anything about Mr. Froelich's testimony. Did you review his deposition?
A. I believe so.
Q. And who is Mr. Froelich?
A. He was a former accountant.
Q. And business manager for a period of time?
A. Yes.
Q. Do you remember the time period?
A. It was after Barry Siegel. I know Whitman was in for about three years. I don't remember exactly how long
Froelich was in.
Q. But you're sure he was after Barry Siegel?
A. No, I'm not sure.
Q. And in fact he was before Barry Siegel. He was in the late 1990s, Mr. Froelich.
A. Okay.
Q. And do you recall any testimony about returning items that Mr. Jackson had purchased? Having to return
them because Michael Jackson couldn't afford them?
A. I may have seen that. I don't recall the specific items.
Q. But you generally recall testimony about Michael Jackson having to return items because he couldn't afford
to pay for them?
A. I believe so, yes.
Q. And let's assume there was testimony about a $1 million watch that had to be returned. Do you recall
anything about that?
A. Well, I recall the watch, but not the watch being returned.
Q. So let's assume that Mr. Froelich testified that Michael Jackson tried to purchase a watch of a million dollars
or more and that he had to return it because he couldn't afford it. Would that affect your opinions about Michael
Jackson's consumption numbers?
A. I don't know what it has to do with consumptions.
Q. Well, your consumption number was that Michael Jackson would have spent about $570,000 a month;
correct?
A. Correct. But then you have to take into account the 10 percent deduction that we talked about yesterday to
cover the professional fees. That's millions of dollars.
Q. Okay. The answer to my question was that your consumption numbers assumed that Michael Jackson spent
a $570,000 a month; correct?
Mr. Panish: Well, objection. He answered the question.
Judge: I don't understand what you mean by "the answer to my question. "
Ms. Strong: The question I just asked is that your consumption numbers assumed that Michael Jackson spent
$570,000 a month; correct?
Judge: Was that your number, 570 a month?
Witness: the number specifically on the schedule says that. But the slide we introduced yesterday also
introduced another 10 percent of his net income.
Judge: So it's higher?
Witness: it's in the millions. Much higher.
Ms. Strong: And that 10 percent goes to lawyers' fees, entertainment...
A. Personal manager, accountant.
Q. And in fact, at your deposition, you said those ranges could actually get up to 40 percent; isn't that right?
Mr. Panish: Again, it's improper use of the deposition.
Witness: you'll have to tell me...
Judge: Overruled.
Witness:... what I said or refresh me as to the construction of the 40 percent.
Ms. Strong: You don't recall saying there could be ranges for each of those figures and in fact it could go up
to 40 percent?
A. I just said I didn't recall. Could you show it to me?
Q. We don't need to spend the time. If you don't recall, you don't recall. But with respect to the $570,000
monthly number, that doesn't account for a million-dollar shopping spree, does it, Mr. Erk?
A. No, because consumption doesn't normally call that. It's what he uses for living expenses to sustain his life.
Q. Buying a watch is not part of a living expense?
A. No, I wouldn't call it that.
Q. What would you call that?
A. I'll go on eBay, and I buy something. What do you call that? Do I call that consumption? No. I call it fun
money I spent.
Q. But your consumption numbers assume that he would be spending much, much less than he earned every
year; is that right?
A. But if you're quoting Cannon, take a look at his exhibit. He put together his monthly consumption. I
believe, as his accountant, those were the numbers being spent at the time.
Q. And he was $400 million in debt?
A. Yes.
Q. And his mother was about to lose her home due to foreclosure on June 26th, 2009?
A. Yes.
Q. Now, with respect to some of the debt service that Michael Jackson had at the time... you admit Michael
Jackson was heavily in debt, obviously, at the time of his death; right?
A. Yes.
Q. And in fact, some of those notes, again, those same handwritten notes with respect to Cannon's testimony,
your notes on Jeff Cannon's testimony indicated that Michael Jackson's most significant assets were subject to
more than 500 million of debt and creditor's claims, with some of the debt accruing at extremely high interest
rates, and some debt in default; is that right?
A. He said 500, but I think the general knowledge is 400.
Q. Between 4-- and 500. There's been documents indicating up to 500 million up to his death.
A. I believe one of your experts created a schedule, and it showed the increase in debt, and it goes up to $400
million.
Q. You're not aware of any other documents, court documents, indicating that the debt might have been 500?
A. I don't know the construction of it that would have brought it to 500 million.
Q. And you did have a note in your work product that Jeff Cannon testified that it got up to approximately $500
million; right?
A. Right. But he didn't give the components of it, so I don't know if that's correct or not.
Q. And some of that debt, that $320 million loan, perhaps, that was at issue?
A. I guess.
Q. You don't know that Michael Jackson had a $320 million loan on Sony/ATV?
A. It was secured by Sony/ATV. He had a loan on the Mijac catalog. He had loans on his assets. I'm aware of
that.
Q. So you're aware of the 320...
A. Absolutely.
Q. Just so we're not talking over each other, you're aware there was a $320 million loan...
A. Yes.
Q. ... on the Sony/ATV catalog at the time Michael Jackson died; correct?
A. Correct.
Q. And in your notes, with respect to Mr. Kane's testimony... who is Mr. Kane again?
A. Mr. Kane was the last business manager when Michael Jackson was alive. He was only hired a short time
before. He is currently the accountant/business manager for the estate of Mr. Jackson.
Q. And with respect to your notes from Mr. Kane's deposition, the notes say "Sony/ATV loan was coming due
in 9-09," so September '09, or by the end of 2009. Do you recall that?
A. Yes.
Q. And they went on to say "Michael Jackson had no ability to meet that obligation"; correct?
A. Correct.
Q. Now, you testified that Michael Jackson... you believed Michael Jackson was going to go and do this tour
because he needed to go back to work to pay his debts; correct?
A. Absolutely.
Q. But your calculations of consumption don't take into account any amounts to pay off the hundreds of
millions of dollars of debt that he had at the time; isn't that right?
A. That's correct.
Q. So it's your testimony that Michael Jackson was going to make a billion dollars or more and wasn't going to
pay anything to his debts?
A. That wasn't my job, to consider that.
Judge: So you were just asked to calculate how much he would have made?
Witness: had he lived.
Judge: Right. Not to do any other calculations?
Witness: not the distribution of funds or anything.
Judge: Just to calculate that number?
Witness: absolutely.
Judge: Okay.
Ms. Strong: And, your honor, I believe on direct Mr. Erk testified that this somehow is a damage number. So
you have to take into account what in fact Michael Jackson...
Judge: Well, Ms. Strong, I don't want to hear your argument. I'm allowing you to ask questions. I'm just
trying to understand what the scope of his obligation or scope of work was.
Mr. Panish: I would ask that Ms. Strong stop doing these things.
Judge: Mr. Panish, I've spoken to her already. Continue.
Mr. Panish: She keeps doing it.
Judge: Continue.
Ms. Strong: So to be clear, you did do a consumption analysis; correct?
A. You have that exhibit. Yes, it's in my exhibits.
Q. And we've talked about what's included and what's not included; correct?
A. Correct.
Q. Mr. Erk, can you tell me how much Mr. Jackson earned in 2001?
A. No.
Q. How about 2002?
A. No.
Q. How about 2009? When you came up with your opinions, you had no idea what Michael Jackson earned in
any given year of his life, did you?
A. Didn't have any relevance for my objective and job.
Q. And so the answer to my question is when you... if you could answer my question.
A. No.
Q. "no," you had no idea how much Michael Jackson had earned in any given year of his life when you came
up with your earning capacity projections; correct?
A. Correct.
Q. And you didn't review the 47,000 pages of financial records produced by Gelfand, Rennert & Feldman, did
you?
A. No. It was, like, 20 years ago.
Q. And you think that they were all about 20 years ago? Those records were 20 years?
A. Gelfand represented Michael Jackson from approximately 1982 to somewhere in the '90s. I don't remember
the final date. And then he went to Richard Sherman. I don't remember the exact sequence of events. And you
asked me if I considered it, and I said, "no. "
Q. And you did not review the 24,000 pages of records produced by Yucaipa company, one of Michael
Jackson's former business?
A. Well, the Yucaipa documents that I reviewed was Dewey Leboeuf, who I believe got the numbers from
Cannon, his accountant.
Q. This memo, you think that memo, the Dewey Leboeuf memo, was... it indicated they got the numbers from
Mr. Cannon?
A. It didn't indicate it. That's where I said I believe that's where the numbers came from.
Q. Do you remember when we looked at that memo and the numbers came from Raymone Bain and Diane
Willis?
A. Yeah, but they're not his accountants.
Q. Do you know who they are?
A. I think they were just investment advisors.
Q. Is that what you think?
A. Yes.
Q. You don't know... you don't remember what kind of role Raymone Bain had in Mr. Jackson's life?
A. Doesn't matter to me, no.
Q. And Diane Williams, no idea?
A. No.
Q. That's what that memo indicated, that they were getting numbers from Raymone Bain and Diane Williams;
correct?
A. They might have been the ones to be the go-between to get the numbers from Cannon. I don't know.
Q. Do you have any idea if they had a relationship with Cannon at all?
A. I already said, "no. "
Q. You don't know. All right. So you reviewed that one document. But did you review the 24,000 documents
that were produced by Yucaipa?
A. No.
Q. And did you review the 15,000 pages of documents that were produced by the Holthouse Carlin, which is
Mr. Froelich's firm?
A. No.
Q. And how about the 9,000 pages of financial records produced by provident financial management, which is
Barry Siegel's firm?
A. No.
Q. How about the 9,000 pages produced by Cannon & company, which is where Mr. Cannon worked?
A. Just reviewed his deposition and exhibits.
Q. So the answer is?
A. The answer is, "no. "
Witness: your honor, can I interject something on this, on that last question?
Judge: Okay. You may.
Witness: exhibit 11 is really the summary of the product of the Cannon papers. It gives his monthly
consumption. So did I need to review the, what you said, 9,000 pages or whatever it was? The answer is, "no.
" so I saw the summary of his product.
Ms. Strong: How do you know that's the summary of his product when you didn't review his 9,000 pages of
documents?
A. Because I believe...
Mr. Panish: It's argumentative.
Judge: I'm sorry. Was there...
Mr. Panish: It's argumentative.
Judge: Overruled. You may answer.
Witness: because it was attached to his deposition, and it said that that was his monthly and annual
consumption.
Ms. Strong: You have no other basis to make that opinion; correct? You didn't review the documents?
A. I thought that was a pretty good basis. No, I didn't read the other documents.
Q. And, again, it would... you never even asked for this information in forming your opinion; correct? You
never asked for his historical financial papers?
A. It was an enormous amount of documents. We screened out what we thought was relevant to do our job.
Q. And you said that your team spent about 650 to 700 hours on this matter to date? Is that to date?
A. Correct.
Q. And I know you testified about your billing rate was 475 an hour. The billing rates of the others in your
firm, what were those?
A. I believe Gary Karlitz was 550 an hour. Howard Fielstein was either the same or lower than Manny.
Manny Diakogeorgiou, the same or lower. And the staff are much, much lower.
Q. And so how much in total has it cost for your work in this matter?
A. About 300,000.
Q. And is there still more that's going to be owed in your work now, testimony, et cetera?
A. No. We're up to date, and this is my testimony.
Q. But in the time that it took to do the work and the $300,000 worth of work, you didn't review the thousands
of pages of production that I just described; correct?
A. As I said, we had access to them. We eliminated what we thought was unnecessary for us to do; otherwise,
we would have spent millions of dollars. I didn't think it was necessary to do it. I'm an experienced
professional. I can judge, you know, to get rid of whatever to come and use the documents to reach my final
conclusion. I mean, I've been doing this for 34 years.
Q. And I think you testified yesterday that it would take an untold number of man hours to come up with a
cohesive number out of the financial records. Is that what you said?
A. I think I just said that now.
Q. And you didn't think it was worth putting in that kind of time before you put out your million-dollar
number?
Mr. Panish: Excuse me. Billion dollars.
Ms. Strong: I'm sorry. My mistake. Thank you for the correction.
Ms. Strong: Before putting out your billion-dollar number?
A. As I just said, in my experience and my partners' experience, we're very good judges of the documents
produced in huge volumes. And we boiled down what we thought was necessary for us to do the calculations.
It's as simple and as complex as that.
Q. Well, let's look at some of what you did in your analysis. Your opinion contemplates that Michael Jackson
would do things he's never done before; right?
Mr. Panish: Excuse me. We went through all of these questions yesterday.
Judge: We went through some; maybe not all.
Mr. Panish: This exact question.
Judge: Overruled. You may continue.
Ms. Strong: Okay. So this is an overview, right, of your 260 shows that you project Michael Jackson would
have done for "This Is It" had he lived; correct?
A. Correct.
Q. And you got this happening in 37 months; correct?
A. Correct.
Q. And so that's from June 2009 to July 2012; is that right?
A. Well, July '09, not June.
Q. July 2009 to July 2012; is that right? July or August?
A. It was August.
Q. Okay. And let's look at 2009. You've got 23 shows there; right?
A. Correct.
Q. And you indicate these are the 23 scheduled "This Is It" tour dates in the UK; correct?
A. Correct.
Q. And then for 2009... I mean 2010, the next box, you have Michael Jackson supposedly performing 97
shows; correct?
A. Correct.
Q. And if we look to the right, you see 27 scheduled "This Is It" tour dates in the UK; correct?
A. Yes.
Q. And then let's look what's right after that. Plus 60 shows in India; right?
A. Yes.
Q. And there's a little footnote after "India"; correct?
A. "footnote 1," yes.
Ms. Strong: And so let's go to where footnote 1 takes us to see what that means right below. The first box of
footnote 1. 1, all the way down. Let's look at that.
Ms. Strong: So we've got 60 shows in India, and you've got... footnote 1 says: "2010 India tour dates are
based on the following stadiums and capacities"; right?
A. Correct.
Q. And you've listed one, two, three, four, five stadiums there; correct?
A. Correct.
Q. And the first stadium you've got a capacity of 120,000 seats; correct?
A. Correct.
Q. And you have Michael Jackson performing there for 10 shows?
A. Yes.
Q. And then going down from there, another 60,000-seat capacity stadium; correct?
A. Yes.
Q. And Michael Jackson performing 10 shows there?
A. Yes.
Q. And so on. I mean, you have one at the bottom there for 60,000 with 25 shows?
A. Correct.
Q. These are all in India?
A. Yes.
Q. And we're going to dig into some of these numbers a little bit, but I just want to get an overview of what
your 260 shows is. So let's go back to the box and look at 2011. And, again, by the way, there are no AEG
Documents reflecting 60 shows in India; right?
A. That's correct.
Q. So 2011, we've got 90 shows in 2011; right?
A. Correct.
Q. And...
Ms. Strong: After the 60 shows in India, it actually shows 10 shows in Japan, too? I didn't want to miss that.
A. That's correct.
Q. That those are 10 shows at the Tokyo dome; right?
A. That's correct.
Ms. Strong: And let's go to the next box for 2011.
Ms. Strong: You've got 90 shows in 2011. And let's look at the details of that, what that means. It's another
40 shows in Japan, in addition to the 10 you had in the box above?
A. That's correct.
Q. And there's a footnote after "Japan" there, too; correct?
A. Correct.
Q. No. 2.
Ms. Strong: So let's... Pam, drop down to see what footnote no. 2 says. Describes those 40 shows in India...
I mean in Japan.
Ms. Strong: And so here we've got footnote 2 says: "2011 Japan tour dates are based on the following
stadiums and capacity"; right?
A. Correct.
Q. You've got 55,000-seat capacity, Tokyo dome, with 15 shows; right?
A. Correct.
Q. And you already had 10 shows in 2010 at that same place; right?
A. Correct.
Q. So that will be 25 shows at the Tokyo dome; right?
A. Correct.
Q. And we've got several other stadiums down here with five shows, two shows, and ranging capacities from
anywhere from 49,000 to 72,000; correct?
A. Correct.
Q. And that's for Japan.
Ms. Strong: So let's go back up to the box for 2011.
Ms. Strong: And after he's done his 50 shows in Japan, you have Michael Jackson going to the United States
and doing 50 US Arena shows; right?
A. Correct.
Q. But you actually don't identify any of the arenas anywhere; right?
A. No.
Q. You didn't map out that part of the schedule?
A. No, I didn't.
Q. And you gave an average capacity of 19,000?
A. Correct.
Q. And with a maximum capacity of 82,500; correct?
A. Correct.
Q. And you've got three shows down at the rose bowl; right?
A. Yes.
Q. With a maximum capacity there of 92,000?
A. Correct.
Q. And, again, these aren't any of AEG 's numbers, are they?
A. No, they're not.
Q. And I just want to ask you, before we move on and dig into some of the details now that we have an
understanding of what the 260-show tour is you have planned out, I believe you testified yesterday that there
was a possibility that he might do a 48-month tour in addition to a 37-month tour?
A. Just that there was testimony to that effect.
Q. And that your numbers, you had a higher range of number for that; right?
A. Well, if he in fact expanded it to 48 months, it would be approximately 30 percent more, yes.
Q. But you never talked about those numbers at your deposition; right? What the numbers would be, the dollar
numbers associated with the 48-month tour?
A. That's correct.
Q. So how many extra shows would be added to make the 48-month tour?
A. Didn't do a calculation to that effect. I would have assumed, if you just take, you know... and I know this is
a simplistic calculation... the ratio of 48 months to 37 months, we would have increased the shows
approximately 30 percent. But I didn't give you the details.
Q. But, I mean, we're talking about a number in terms of an increase of dollar amounts of about $400 million?
Something like that?
A. I don't recall the exact amount.
Q. Is that ballpark? Can you ballpark it for me?
A. Which? The 48 months?
Q. The increase. If you were to have a tour... a 37-month tour with 260 shows over the 37-month tour, if you
were going to do a 48-month tour, which you talked about yesterday, how much would that increase your
numbers?
A. Well, you would increase the tour and the merchandising numbers, possibly endorsements. But I didn't
consider the endorsements at that time.
Q. And that was about a $400 million difference; right?
A. Well, what I found out when I was testifying yesterday when Mr. Panish put the slide up, I noticed that...
this is not a slide that Citrin Cooperman prepared, it was prepared by counsel... that the numbers weren't
completely correct. I had e-mailed a copy of that slide to my office. And after my testimony, I was contacted
and said, "your numbers are wrong. " and they worked last night to correct the numbers, and we have correct
numbers.
Q. What are the corrected numbers?
A. I believe counsel has a copy of the exhibit. I don't have a copy of it.
Ms. Strong: Can we see that, your honor? I haven't seen the corrected numbers. Nothing was provided to
me.
Mr. Panish: I don't have it.
Witness: they were going to photocopy it. I have a copy on my iPad.
Mr. Panish: I'll ask at the break, but I don't have it on me. I haven't seen it.
Ms. Strong: What counsel did you give it to, Mr. Erk?
Judge: You don't have the corrected version with you?
Witness: not in print copy, no.
Ms. Strong: What counsel did you give it to, Mr. Erk?
A. Mr. Sanders.
Q. Mr. Sanders?
A. Yes.
Q. And Mr. Sanders...
Judge: He's not here.
Ms. Strong: He's not here.
Mr. Panish: I'll find out whatever it is.
Ms. Strong: So this was a document and a slide you're referring to, is it this red slide?
A. The red slide.
Q. The red slide was wrong?
A. That's correct.
Q. And that is because it was prepared by plaintiffs' counsel and not by you?
A. That's correct.
Mr. Panish: Not me.
Ms. Strong: Someone working for the plaintiffs' side of the case?
A. Yes, that's correct.
Mr. Panish: That's true.
Ms. Strong: And, again, you have no recollection of how much more your number would increase if you
expanded it to this?
A. As I just testified, it should have been only the tour and the merchandise, not the endorsements, not Vegas,
not the Vegas royalties.
Q. But we're talking hundreds of millions of dollars; right?
A. Well, if you take 30 percent of $450 million, that's, what? $130 million, just off the top of my head.
Q. So...
A. Then you have the merchandise. The merchandise was 123 million. 30 percent of that is, I don't know, $40
million. Maybe a little bit less. $36 million.
Q. Okay.
A. So that would have been the increase.
Judge: I can give him a calculator, just in case.
Witness: all right. I mean, the exact increase is 29. 73 percent, to be precise on that. All right. So we need the
corrected numbers. You gave me the exhibit that was in my deposition. We had put in slides yesterday with
new numbers, which I believe you have, which is about $452 million, not 460. If you want me to calculate
them in 460, I can do that.
Ms. Strong: What I want to have an understanding of is, if you went from your 37-month, 260-show touring,
to a 48-month tour, you don't know how many more shows would have been done, because you didn't plan that
out?
A. That's correct.
Q. But we're talking about an increase in the hundreds of millions of dollars in terms of the number you're
putting before this jury; right?
A. Between 100 and 200, I guess. I don't know.
A. 38.
Q. 338 shows to a reasonable degree of certainty? Is that your opinion?
A. Yes.
Q. And Mr. Randy Phillips has never testified that Michael Jackson was going to do 338 shows, did he?
A. No. He didn't testify to the number of shows.
Q. Nothing even close to that; correct?
A. I don't recall the number of shows that he testified to.
Q. All right. Well, why don't we go ahead and look at...
Judge: Can I just ask a question? He didn't testify to the number of shows, so was it that he testified to the 4-
year number? Is that what it was?
Witness: that's correct.
Ms. Bina: Your honor...
Judge: All right. I was trying to understand.
Ms. Bina: Just for the record, I do not believe Mr. Phillips testified to that. They're talking about an e-mail
that he wrote in 2009 where he said that they had a 4-year plan, including Australia. I think Mr. Phillips
testified... no. 1, his testimony stands on its own, but I believe the 02 was certain, and some ideas and plans
after that, but nothing was solidified.
Mr. Panish: Not what he testified to.
Judge: So it wasn't in the testimony...
Mr. Panish: Yes, it was.
Judge: ... it was in an e-mail?
Mr. Panish: It was in testimony, e-mail, and Mr. Ortega's contract, which listed out the countries he was
going on.
Judge: That's not Randy Phillips's testimony.
Mr. Panish: No. But he testified that... as part of the negotiations with Mr. Ortega, Randy Phillips...
Judge: So...
Ms. Bina: Again, your honor, these are possibilities. I think Mr. Panish is slightly misstating the record, but
the jury will remember what Mr. Phillips said.
Mr. Panish: I think she's misstating.
Judge: I think this sounds like maybe it's testimony, e-mails, maybe contracts. It's all in there somewhere.
All right.
Mr. Panish: I didn't write the e-mail.
Judge: I was just wondering... I was just trying to clarify if... you've got a 4-year number, but we didn't get
the exact number of concerts.
Mr. Panish: Right. That's all.
Ms. Bina: No, your honor.
Judge: Is what we're talking about.
Ms. Bina: I don't think there is any testimony...
Judge: That's what he's saying.
Ms. Bina: I don't think Mr. Phillips gave any number of concerts other than the 50... number of shows.
Mr. Panish: Wait a minute.
Judge: I'm just saying that's what his testimony is.
Mr. Panish: Mr. Phillips wrote an e-mail to that effect, and we showed it yesterday.
Ms. Strong: All right. Let's go to reality. Let's look at what Michael Jackson actually did. Let's look at
Michael Jackson's history of shows. His record high for number of shows that Michael Jackson ever did was
123; right?
A. I believe so.
Q. And that was the "Bad" tour?
A. Yes.
Q. And that was in 1987; correct?
A. Thereabouts, yes.
Q. And when Michael Jackson was 29 years old?
A. Okay. Yes.
Q. So I'd like to...
Ms. Strong: Instead of using a chart, your honor, I'm going to ask Pam to keep track of some numbers for me
as we go and build it as the testimony comes up. Is that all right, your honor?
Mr. Panish: What does that mean?
Judge: I'm not sure what you mean.
Ms. Strong: Instead of using paper to write some numbers down, I'm going to ask Pam to write some
numbers down on the screen.
Judge: Okay.
Ms. Strong: So I want to keep track of the tours we're talking about.
Ms. Strong: So Michael Jackson, in 1987, he did the "Bad" tour, which was 123 shows. And he was 29 years
old; correct?
A. Yes.
Mr. Panish: Is this a demonstrative exhibit that we haven't been shown?
Judge: Probably should mark it.
Mr. Panish: And we haven't been shown.
Judge: Well, it's summarizing testimony as we go along.
Mr. Panish: Oh, no. It's already been prepared.
Judge: Overruled. What is the exhibit?
Ms. Strong: Exhibit 13,465, your honor.
Judge: Okay. (defendants' exhibit no. 13,465, a demonstrative, was marked for identification. )
Ms. Strong: Okay. So the next tour that Michael Jackson did...
A. Well, it was 22 years ago, so he would have been 28, maybe.
Q. We've got him born August 29th, 1958.
A. Okay. So he's going on 30. He died at 50, so whatever. Okay.
Q. All right. And the next tour was the "Dangerous" tour; correct?
A. Yes.
Q. And that began in 1992 when Michael Jackson was about 33 years old; right?
A. Yes.
Q. And that had about 70 shows; right?
A. 73, I believe.
Q. Approximately... Mr. Gongaware testified that it was actually scheduled to be about 70 shows.
Mr. Panish: Is that a question?
A. All right.
Q. Okay. And then the next tour that he did was the "History" tour; correct?
A. Correct.
Q. And that began in 1996; correct?
A. Yes.
Q. Michael Jackson was 38 years old at the time?
A. Okay. Yes.
Q. Do you recall how many shows he did on the "History" tour?
A. In the 80 range, I guess.
Q. 82. Does that sound about right?
A. Yeah.
Q. Okay. All right. So these are the three shows, the three solo tours that Michael Jackson did before he died;
correct?
A. For extended tours, yes.
Q. And so if you add these all up together, that's 275 shows; correct?
A. Yes.
Q. And now you have him in one tour, 12 years later, at the age of 50, doing 260 shows?
A. Yes.
Ms. Strong: Let's go ahead.
Ms. Strong: All right. Again, it's not based on AEG 's numbers of 260 shows?
A. Not for the number 260, no.
Q. And you're saying that he would have grossed more than 10 times what he'd ever grossed before on any
show; isn't that right?
A. In total, yeah. You mean in one tour?
Q. One tour, exactly.
A. Yes.
Q. In terms of... and, by the way, I think you testified yesterday that your numbers are conservative; right?
A. Yes.
Q. So this is conservative?
A. My numbers are conservative.
Q. Those numbers... that's your number; right? 260? That's your number?
A. Yes.
Q. And in fact, your number might be 338; right?
A. I don't know where we would end up, but I would have to construct how many more shows.
Q. But you testified that you thought it would be about 338 shows.
A. No. We did a simple calculation if we multiplied 30 percent... yeah, 30 percent of 260 would have added
that number of shows. Do I know if it would have ended up there? No. I would have to sit down and do the
calculation.
Q. That wouldn't be very conservative, would it, to come up with a number like that?
A. No. I disagree.
Q. All right. Well, let's look at what Mr. Jackson actually grossed on his prior tours.
A. Okay.
Q. He grossed on... his highest grossing tour ever was "History"; right?
A. I believe so, yes.
Q. And he grossed $165 million on that tour; right?
A. Which was a record for the time. So that means my numbers are less than 10 times. I have 1. 4 million.
Q. Let's talk about that. You've got in front of you your...
Ms. Strong: Can you put up exhibit 774-1?
Mr. Panish: Excuse me. Could I have a copy of the exhibit, your honor?
Ms. Strong: This is your exhibit from yesterday.
Judge: Are they printed out?
Mr. Panish: They have it. It's all printed out.
Judge: All right. It's printed out.
Ms. Strong: Can we put up a graphic that was used yesterday... well, actually, you want a break before we go
on to this?
Judge: The jurors want a break? They want to keep going. Let's keep going.
Ms. Strong: Okay. Let's keep going. This was a graphic used by the plaintiffs yesterday. And this is your
list of the highest grossing numbers of all time... highest grossing tours of all time; right?
A. Yes.
Q. And you used this to come up with your figures in connection with this case? Or you considered it; correct?
A. I considered it to come up with the average ticket price.
Q. And you've got this off Wikipedia; right? The data here?
A. Well, yes. Well, this is billboard. It's not Wikipedia.
Q. Do you want to take a look at your exhibit there?
A. Sure.
Q. It's on page 9 of what you have before you, 13,128, page 9 and page 10 . Do you see that?
A. Yes.
Q. And you see your source for this data? "footnote 1"?
A. So it looks like it would be pollstar.
Q. Footnote 1 on page 10.
A. Hang on one second. I have to find it.
Q. It's...
A. Yes, you're right. I'm sorry. You're right. Wikipedia.
Q. Wikipedia is the source for this information; right?
A. Yes.
Q. So you relied on Wikipedia for this. And if you look... on this list, this is where we can see where Michael
Jackson's "History" tour is on this list; right?
A. Well, you only have the first page on there.
Q. Do you think he's included in this list?
A. I don't recall.
Q. I think yesterday you testified that Michael Jackson, these were the kinds of artists that were just not in the
same category as Mr. Jackson; right? The artists in this list?
A. They are top tier artists, but I said Michael Jackson was in a category all his own, the king of pop.
Q. Well, let's see. Michael Jackson is actually on this list. If you look at no. 26.
A. Yes.
Q. I'm looking at a different document. So if you look at 26 on the list there, you see that?
A. Yes, I have it here. You have it as a second page here, yes.
Q. Right. And it's no. 6 on the rankings of the highest grossing tours of all time; correct?
A. 26. Not 6.
Q. 26. Thank you for correcting me. 26. You see that?
A. Yes.
Q. And it shows $165,000 for the gross number?
A. 165 million.
Q. Thank you. And let's be clear: that's gross; right?
A. Correct.
Q. And that's not net to the artist?
A. That's correct.
Q. That's not what Michael Jackson made on the tour at all?
A. No.
Q. That's just what comes in from tickets and also from merchandise; right?
A. Yes. It could be.
Q. Yes. And so these numbers on this document reflect both ticket revenues and merchandising revenues in
terms of gross revenues for tours; correct?
A. I'm not sure about the merch part, but I'm pretty sure these are the actual revenues for the ticket sales.
Q. Okay. Well, let's look at the first entry on the chart. .
Ms. Strong: And the first one there is "U2. " do you see that?
A. Yes.
Q. But in terms of your gross numbers for your tour, you've got, in ticket sales alone... what do you have on
your 260-show tour? Ticket sales, gross number? What is that number?
A. What do you mean? Just the tickets?
Q. Uh-huh.
A. 12.9 million is the corrected number.
Q. 12 point...
A. ... 9 million tickets.
Q. And so your dollar... your gross revenue associated with ticket sales is what?
A. Somewhere in the neighborhood of 1. 4 billion.
Q. $1.4 billion gross for your 260-show tour.
A. Right.
Q. Ticket sales alone. And to make it comparable to the numbers on this chart, we have to add merchandising,
too; right?
A. Yes.
Q. Okay. So merchandising associated with your 260-show tour, how much did you project for that, Mr. Erk?
A. Somewhere in the neighborhood of 123 million.
Q. Okay. So if you add those together, what do you have?
A. 1 1/2 billion. I'm sorry. Still under $1.4 billion range. Just adding $123 million to it.
Q. Might be 1.5?
A. No, it's not 1.5. Whatever it adds to. 1. ... yeah. 100 million? Yes. I'm sorry. 1.523.
Q. All right. You've got a gross revenue on your 260-show tour of $1. 5 billion, and the highest that you ever
knew that Michael Jackson ever did was $165 million; right, Mr. Erk?
A. Yes.
Q. And that's conservative?
A. Yes.
Q. So let's go... focus on this part again.
Ms. Strong: Pam, if you would go up to no. 1 on the chart. There's U2 at $736 million.
Ms. Strong: So your numbers for Michael Jackson are double that; correct, approximately? More than
double.
A. Yeah. But U2 did 110 dates. I have 260.
Q. Right. 260 dates.
A. Which, if you doubled it, you're coming darn close to where my numbers are.
Q. Let's look at the highest solo artist on that tour... on this list. No. 4... you have U2, Rolling Stones, AC/DC,
and next on the list is Madonna; correct?
A. Yes.
Q. She's no. 4 on the list.
A. Okay.
Q. She's the highest solo artist on the list; right?
A. Correct.
Q. And her gross number, including ticket revenue and merchandising, based on your understanding, is $407
million; correct?
A. Correct. But please expand the chart so I can point something out to you. Okay. She's 407 million; 85
shows. Multiply that by three. You're up close to my 260, and you're at 2. 2 billion at that point.
Q. You need to believe that Michael Jackson wanted to perform at least 260 shows to do your numbers; right?
A. That's my calculations.
Q. And let's go ahead and look at some other tours around the time of Michael Jackson's "History" tour.
"History" was in 1996 to 1997; correct?
A. Yes.
Q. Well, let's go ahead and look at no. 8 on the list.
Ms. Strong: Pam.
Ms. Strong: No. 8 on the list is "Rolling Stones"; correct?
A. Yes.
Q. And that was in 1994 to 1995; correct?
A. Yes.
Q. So that's earlier than "History"; right? "History" was a more recent tour; correct?
A. Yes, I agree.
Q. And the Rolling Stones grossed $320 million on that tour; correct?
A. That's what it says, yes.
Q. When Michael Jackson came out with "History" and did a show after the Rolling Stones, he actually grossed
less than the Rolling Stones did on their tour; isn't that right?
A. Ticket price difference.
Q. And... well, now that you brought up ticket price, I think you said yesterday Michael Jackson would have
really high ticket prices; right?
A. No. I said it was a possibility because of the exceeding demand.
Q. Right.
A. We used $108. That was a conservative number.
Q. Do you know historically how Michael Jackson's ticket prices have been on his tours?
A. Tends to not get crazy on ticket prices.
Q. He tends to charge lower amounts for his ticket price; isn't that right?
A. Yes, that's true.
Q. That's what this chart shows: that Michael Jackson historically charged less than his counterparts for his
tours; correct?
A. At that time, yes.
Q. And let's go ahead and look at one other show for Michael Jackson that's also on this chart, which is "Bad"
down at no. 40 . And there you see for "Bad" in 1987, 1989, Mr. Jackson grossed approximately $125 million
on that tour; correct?
A. Excuse me. I want to correct something, counsel. With respect to the "History" tour, Michael Jackson only
did 82 dates. The Stones... let's see, "Voodoo Lounge" tour did 124. You'd have to adjust the numbers to put a
better comparison to them.
Q. But Michael Jackson didn't choose to do that many dates, did he?
A. No. But you have an unfair comparison. You have the Stones doing 124 shows, 320 million, comparing to
Michael Jackson who did 165 million, but he only did 82 shows. So it's an unfair comparison. So it's not just
ticket prices. So maybe it's not ticket prices. I'd have to do another calculation to figure that out.
Q. There's lots of factors that can play into this; right?
A. Absolutely.
Q. But at the time, it wasn't as though he did some show that was twice as much as had ever been done before?
A. No. But what I wanted to clarify is it might not be the ticket price that caused the difference.
Q. Right. There's lots of factors that go into these numbers. Understood.
A. Absolutely.
Q. If we look at no. 40, with respect to that, there we have Michael Jackson grossing $125 million; correct?
A. Yes.
Q. That was a pretty impressive tour; right?
A. I personally went to see it, yes. That's when I met him.
Q. That's one of Michael Jackson's hottest tours at the time; right?
A. I'm telling you, that show was fantastic.
Q. He got in the Guinness book of world records associated with that show?
A. Yeah.
Q. You know about that?
A. Yeah. It was great. I'm telling you, it was great. The man was phenomenal.
Q. And it wasn't even the highest grossing tour really in its time period, either, was it?
A. May or may not have been. I didn't focus on whether it was his highest grossing tour. But I sure enjoyed it.
Q. It was a great show.
A. Absolutely.
Q. But it wasn't anything out of the realm of what his counterparts were doing on tours?
A. Maybe; maybe not. I didn't focus on the other acts.
Q. Let's look at no.33 on your list . There's a tour noted for Pink Floyd; correct?
A. Yes.
Q. And it's also in 1987 to 1989; right?
A. Yes.
Q. And it has Pink Floyd grossing $135 million on that tour; correct?
A. Yes. But they did 76 more tours.
Q. But at this time Michael Jackson's tour is not double what everyone else was doing at the time; right?
A. That's correct.
Q. In fact, it was less than what the other bands were doing at that time?
A. Not that many, but yes.
Q. So what you're projecting here is completely inconsistent with Michael Jackson's history, wasn't it?
A. You know what? It wasn't a matter of history. This tour was named "this is it." this was going to be a final
extravaganza, a blowout tour, earn a lot of money. And, yes, I remember from the testimony he didn't want to
tour after that, even though, my opinion, he would have toured again. So I packed a lot of shows in to go out
with a bang.
Q. And this is inconsistent with his history, though; right, Mr. Erk?
A. Inconsistent? I don't know that you can compare the two.
Q. There is no comparison.
A. Also, the other tours, two years, if you adjusted the numbers, you'd bring the numbers up somewhat.
Q. Right. But he's never done this before; isn't that right, Mr. Erk?
A. I would agree with that, yes.
Ms. Strong: Are we going to go through to lunch? Keep going?
15 minute recess was taken by the Jurors
Talk held without Jurors Present:
Judge: The jurors have asked how long is plaintiffs' case, and how long is defendants; case, so I want to give
them an answer.
Mr. Panish: We want to finish this week for plaintiffs.
Judge: Plaintiffs, this week. Defendants?
Ms. Bina: We've been estimating. It's tough for the current schedule to figure out, there's so many gaps.
Mr. Putnam: Can we answer tomorrow? That's why I wanted to do it this afternoon.
Judge: I'll tell them...
Ms. Bina: We want to take our estimate, compare it against the current calendar.
Mr. Putnam: If I say six weeks, I'm thinking five days a week, but that means I go to October. I want to try
to fix it.
Mr. Panish: Six weeks, 30 days.
A. Yes.
Q. And, again, just like the number of shows, he's never sold anything close to 13 million tickets before in his
history; correct?
A. That's correct.
Q. And in fact, with respect to... and just so we can follow along, if we can do this quickly.
Ms. Strong: If you can put up the exhibit, Pam, with the history of tours, 774-2.
Ms. Strong: If you look at no. 40 on there, and that's the Michael Jackson's "Bad" tour. He sold about 4.5
million tickets; correct?
A. Yes.
Ms. Strong: Right after the shows, Pam, if you pick up the ticket number. That's the number of tickets sold.
Ms. Strong: So 4.5 million tickets on that tour. That was "Bad" in the 1980s; correct?
A. Correct.
Q. And then if you go and look at the "History" tour, which is no. 26 on the list, we'll look at the same number
there. He sold about the same number of tickets. .
Ms. Strong: No. 26. And there for the "History" world tour, Michael Jackson sold about 4 1/2 million
tickets on that tour as well; correct?
A. Yes.
Q. And that was in the mid '90s?
A. Correct.
Q. I know at one point you referenced Cher doing, it was over 300 shows?
A. 326.
Q. So she's no.19 on this list.
Ms. Strong: Let's look at Cher. No.19.
Ms. Strong: She had 326 shows, and that was "living proof: the farewell tour," and she sold 3.5 million
tickets; correct?
A. Correct.
Q. So she sold less than what Michael Jackson had done on his other tours; right?
A. Looks that way.
Q. But, you know, in terms of when Michael Jackson sold 4 1/2 million tickets for his shows on "Bad" and
"History," that was before he ever went to trial to face child molestation allegations; isn't that right?
A. I don't know the exact timing, but it appears that way.
Q. You don't know the timing of the child molestation trial?
A. Why should I?
Q. You don't think that's relevant to your analysis?
A. No, of course not.
Q. You don't think that's relevant as to whether people are going to want to come see his shows?
A. No. And I believe if you looked at what AEG's plan was, was to start in London, to go throughout Asia, and
then come back to the States. And by that time, he would be... his image would be rehabilitated.
Q. They certainly hoped for that, didn't they, Mr. Erk?
A. It was in that plan.
Q. They certainly hoped... there was no plan beyond 50, Mr. Erk.
A. Well, "hope" is a word. They expected, I believe. Yes, they hoped; they expected.
Q. And they expected at the time of Michael Jackson's death, what was everyone's expectation, and what
people knew at that point in time was that Michael Jackson would do the 50 shows; right?
A. No. They had it where he signed a contract, a 3-year deal, and it was supposed to become a worldwide tour.
Q. They certainly had hopes that it would be a worldwide tour; correct?
A. I don't know "hopes. " it was in the contract. I mean, contract is not hope. It's in the contract.
Q. And I don't want to go back over the testimony we've already covered, but you agree the artist has to agree
to do the shows before they agree to carry it beyond 50; correct?
A. Well, under a contractual arrangement, it's a fluid situation. In the end, as I said, the artist has the final
decision. But he signed an agreement to do these shows.
Q. And he never agreed to do more than 50; correct, Mr. Erk?
A. I don't know that that's a fact.
Q. You don't know that Michael Jackson never agreed to do more than 50 shows?
A. He expressed his intention to do more than 50 shows; expressed his intention to go to India. In Kenny
Ortega's deposition, his daughter, Paris, testified to it. And I spoke with his son prince on Saturday night, and
he told me he didn't know what the 02 was, he just thought it was the name of a tour. Didn't know it was a
facility. And he said specifically his father told him, "we're going to Asia. "
Q. But at the time that he died... I just want to be clear about this. And, you know, we covered this yesterday,
so I don't... I mean, at the time he died...
Mr. Panish: Well, then, asked and answered.
Ms. Strong: Well, sounds like the witness is inconsistent...
Mr. Panish: No, no, no.
Judge: We are kind of going over old ground.
Ms. Strong: I agree. I want to make sure the witness isn't changing his testimony.
Mr. Panish: He didn't change his testimony.
Judge: I don't think he is.
Mr. Panish: No need to ask the same questions over and over.
Judge: Okay. Sustained. Just keep going into a new area.
Ms. Strong: But let's assume, then... you said you didn't know when the child molestation trial took place.
Does it sound right to say 2005?
A. Okay.
Q. That sound about right to you?
A. I said, "okay. " I thought that meant yes. Yes.
Q. Okay. And so "History" was in 1997; correct?
A. Yes.
Q. The "History" tour?
A. Yes.
Q. So that would have been a long time before the very public trial over Michael Jackson's child molestation
allegations; correct?
A. Yes.
Q. And "Bad" was long before that in the '80s; correct?
A. Yes.
Q. And both those tours were also before Michael Jackson did other things in the public eye, like holding a
baby over the balcony. You remember that?
A. Oh, yes. We talked about it at my deposition.
Q. And that was... that hadn't happened at the time of the "History" tour; correct?
A. That's correct. But I also said at my deposition, it had no effect with the public.
Q. You don't think the public cared about the fact that Michael Jackson held his baby over a railing?
A. At the time, for a short period of time, yes.
Q. You think the public forgot about that incident?
A. I don't think it's a factor at all.
Q. And you'd admit that he actually had a better public reputation back in the 1980s, wouldn't you, Mr. Erk?
A. He was... that's when he got the term "King Of Pop," so I guess yes.
Q. So you described that with respect to some of your numbers, you initially calculated your numbers with
A. 20,000 capacity for the 02; correct?
A. That's correct.
Q. And you said after you heard some testimony, you looked a little closer at the materials. Is that what you
testified to yesterday?
A. Correct.
Q. So you corrected it and made it 15,000; correct?
A. That's correct.
Q. So the seating capacity... and I think you just explained this morning something about kills, production
kills?
A. Yes.
Q. And that's because some of the seats are taken out in connection with the production itself?
A. Well, sight lines. So if the stage is massive, they want people to enjoy the show. They can't see the show.
Q. And, also, do you know how Michael Jackson's stage was to be set up in the arena?
A. No.
Q. You don't know about that?
A. No, but it would have taken up a chunk of the arena. So if it's 5,000 seats, he's at one end of the arena, it's
probably that one section there.
Q. So production kills refers to all seats taken out of play, whether by sight lines or in fact the stage to set up all
of the equipment, the lights, the stage, et cetera; right?
A. Uh-huh. Yeah.
Q. Those are the production kills. But when you went... we looked at all of your stadiums where you're
projecting your tour would go, and there's a number of shows at each stadium, and listed are the numbers... the
maximum capacity seating at each stadium; right?
A. Correct, yes.
Q. And those are maximum capacities that are listed on your chart; right?
A. No.
Q. They're the maximum sports capacities for the stadiums...
A. That's correct. It doesn't take into account performances. You have field seats quite a lot. Paris is a classic
example. You have 81,000 seats on the chart. 120,000 seating for musical performances.
Q. All right. So...
A. So it's drastically lower, the number. So I think that would take into account these kills that you're talking
about.
Q. So you think that in the stadium seating capacities, you don't think you have the same issue with production
kills where the stage takes up part of the stadium and kills seats and reduces the capacity of the stadium?
A. I think I just explained. The answer was, "no. "
Q. Okay. So let's take a look at some of what you have.
Ms. Strong: Pam, if we can put back up... this is from an exhibit at his deposition, exhibit 13,128, which is
the overview of what Mr. Erk projected with respect to the 260 shows. The stadium is where they would go,
and the capacities of the stadiums. And, actually, Pam, in terms of what to focus on, why don't we go down to
footnote... the US Tour dates. Let's go to the bottom. The footnote, page...
Mr. Panish: Which page are we on?
Ms. Strong: Page 11 of exhibit 13,128.
Mr. Panish: Thank you.
Ms. Strong: When you went through your analysis, you didn't consider production kills with respect to these
numbers?
A. No. I used the maximum average capacity of arenas, yes.
Q. Okay. So, then, let's just look at a few examples here. The Arlington... the Cowboys stadium in Arlington,
Texas. You see that there? 80,000 seating capacity?
A. Yes.
Q. And you've got him playing there, you have Michael Jackson playing there on your tour; right?
A. Correct.
Q. Have you ever worked a concert at that stadium?
A. No.
Q. Are you aware that AEG Live has done a number of shows at that stadium?
A. Probably.
Q. And on average, for AEG Live shows at that stadium, the maximum seating capacity is about 49,000 seats.
Mr. Panish: Excuse me, your honor. No foundation for that.
Judge: Assumes facts not in evidence.
Mr. Panish: Right. Also that, too. Counsel's again testifying.
Judge: Sustained.
Ms. Strong: I'd like you...
Mr. Panish: I'd like to strike that comment by counsel.
Judge: Motion denied.
Ms. Strong: Okay. So assuming... I'd like you to assume something for me, again, as an expert, Mr. Erk.
Assuming that for shows in that stadium, there are actually production kills, and that the average seating
capacity for concerts AEG Live has put on at that stadium is about 49,000 seats. Your number of 80,000
capacity would be significantly inflated; isn't that right, Mr. Erk?
A. No, that's not true. They may only have anticipated selling 49,000 seats. For whatever shows they put in
there, they thought they couldn't sell more than 49,000.
Q. And my assumption in my question is: assume that the maximum capacity due to production kills for the
shows put on by AEG Live in that stadium averaged... meant that maximum seating capacity was 49,000 seats
for that stadium, that would mean that your number of 80,000 for that stadium would be inflated, significantly
inflated; isn't that right, Mr. Erk?
A. No. You're giving me an assumption, maybe not reality. So I don't agree with you on that.
Q. Well, you didn't look into the production kills at that stadium, did you? Whether there would be production
kills or not?
A. No, because there's going to be grass seating and all that. That would have made up for anything that would
have been killed in the seats.
Q. You haven't done concerts at that stadium, have you?
A. No.
Q. Let's look at another one. Lucas oil stadium in Indianapolis. That's a 70,000 maximum seating capacity?
A. Yes.
Q. Have you ever worked at a concert there?
A. No.
Q. And assuming that AEG Live has done several events there and that their maximum seating capacity for that
stadium is about 51,000 seats, not 70,000, your numbers would be significantly inflated for that stadium, too,
Mr. Erk; isn't that right?
A. Same explanation as Arlington, Texas. So I don't agree with you.
Q. Well, you just don't know one way or another because you've never worked at that stadium; right?
A. That's correct.
Q. You never put on a show at that stadium; correct?
Mr. Panish: Objection. Asked and answered three times already.
Judge: Overruled.
Ms. Strong: Correct?
A. Correct.
Q. And you've not talked with anyone who has put on a concert at that stadium; correct?
A. No, I have not.
Q. And we can go through a number of other examples, but I... assuming it were true that you had lots of
stadiums here that are maximum capacities, but actually when Michael Jackson's concert comes to the stadium,
it kills all these seats, your numbers would be significantly inflated, if that were true, with respect to all these
various stadiums that you projected?
Mr. Panish: Vague and ambiguous, incomplete hypothetical, unintelligible.
Judge: Overruled.
Witness: you overruled it?
Judge: Yes. With the assumptions.
Witness: based on your assumptions, that would be correct.
Ms. Strong: And to be clear here, in case it's not already clear, with respect to... you said your numbers were
conservative; right?
A. Yes.
Q. But you went ahead and projected that Michael Jackson would sell out every single one of these shows at
every single arena, every single stadium, at these maximum seating capacities. That's what you've assumed in
your projections; isn't that right?
A. Based on the huge excessive demand in just England alone, the answer is, "yes. "
Q. And you've got Michael Jackson going to India, Japan and France; right?
A. That's correct.
Q. And you have him selling out 100 percent of the tickets in those countries, too; right?
A. As I said, in France, we only have two-thirds of the seating capacity there for performances. So a 40,000-
seat difference is a huge difference.
Q. Have you ever put on a show in that stadium?
A. No.
Q. Do you know what it would take to put on a Michael Jackson show in that stadium?
A. It's a big production, so sell a lot of seats. That's why I think the 80,000 number is a good number.
Q. You also thought the 20,000 number for the 02 was a good number when you came to your deposition,
didn't you?
A. Yes. But when I was aware of the mistake, I'm an accountant, my job... I have to give you the true facts on
this, so we changed it.
Q. You studied that a little closer, and found that it was wrong, so you changed it; right?
Mr. Panish: Argumentative.
Judge: Overruled.
Witness: yeah. I want to give you the correct numbers, so I went back and changed it.
Ms. Strong: But you haven't taken time to study each of the other stadiums to see if in fact your numbers are
right, have you? You haven't taken that time?
A. Not in that regard, no.
Q. You make these projections with respect to sellouts, even though Michael Jackson never sold out any shows
of any of his prior world tours; isn't that right?
A. There was a tremendous amount of pent-up demand, and based on that, yes.
Q. There was this demand to see him, but Michael Jackson hadn't wanted to perform for the past 12 years
before he died; is that right?
A. He needed to. He needed the money.
A. I said that at the time, but I now have a different opinion. Yes, I did.
Q. So at the time you came up with your opinions, in forming your opinions, you had no knowledge that
Michael Jackson had ever performed at any of the US Stadiums in your analysis; is that right?
Mr. Panish: Objection. No foundation that they even existed.
Judge: Okay.
Ms. Strong: Is that right, Mr. Erk?
Mr. Panish: These stadiums. How can he play there if they didn't exist?
Judge: Oh. Well, sustained.
Ms. Strong: Well, the question is: do you know whether Michael Jackson... at the time that you formed your
opinions, you had no knowledge that Michael Jackson had performed in any of the US Stadiums you predicted;
isn't that right?
A. I didn't take that into consideration.
Q. And in answer to my question, you had no knowledge as to whether Michael Jackson had ever performed in
any of the those stadiums when you created your opinions in this case; isn't that right?
A. I believe I said that at my deposition, yes.
Q. Yes. And there's some venues on your analysis where you didn't identify where he would go. The 50
arenas, for example, in the United States. You didn't even identify what the arenas would be in that analysis;
right?
A. You know what? It's easy enough to do that. I didn't plot out every arena's name. There are a lot of arenas
in the US
Q. We have no ability, then, to assess whether the seating capacity is accurate or inaccurate because you didn't
map that out, but it's part of your numbers; right?
A. That's correct.
Q. You also used the same ticket price for all of the shows in your analysis; correct?
A. Adjusted for inflation.
Q. And so you used the same ticket price for London as for India as for everywhere in your analysis; isn't that
right?
A. Adjusted for inflation, yes.
Q. Right. But not adjusted for anything but inflation?
A. That's correct.
Q. And so you didn't take into account the wealth of the country or not?
A. India has a lot of wealthy people in it.
Q. My question is: when you came up with your analysis, did you take into account the wealth of the country in
deciding what ticket price to establish in the region you thought the tour would go?
A. I didn't think it was necessary, so the answer is no.
Q. And so in the touring industry, do you know that it's widely known that ticket prices in India must be lower
than in the UK?
Mr. Panish: Again, your honor, foundation. Counsel's attempting to testify. It's not a proper question.
Judge: If you make it an assumption, it would be better.
Mr. Panish: That wasn't the form of the question.
Judge: True.
Mr. Panish: The form was improper again.
Ms. Strong: Let's assume... I'll modify.
Mr. Panish: Counsel keeps doing that.
Mr. Putnam: He's an expert in the field.
Mr. Panish: It doesn't matter.
Mr. Putnam: I think he understood what it was in terms of the tour.
Mr. Panish: It's not...
Mr. Putnam: A person ostensibly presented as an expert in this arena, one would assume he knows that and
would ask if he doesn't. And if he doesn't, then you can ask assumption... ask it as an assumption.
Mr. Panish: It's an improper question flat out.
Mr. Putnam: He's an expert.
Mr. Panish: I don't care what Mr. Putnam says. It's improper.
Ms. Strong: I disagree with what Mr. Panish is saying, but I'll rephrase.
Judge: Okay.
Ms. Strong: Assuming that it's widely known in the industry that ticket prices actually must be lower in India
than in London, your analysis doesn't reflect that, does it?
A. If that were true, how much lower are you telling me that it's supposed to be? Just supposed to be lower?
Q. And you didn't see that in 2009, the west Bengal government banned all non-sports events from the Salt
Lake stadium, including concerts?
A. No, I did not.
Q. And if that's true, Mr. Erk, Michael Jackson couldn't have performed one concert in that Salt Lake stadium;
isn't that right?
A. If they couldn't negotiate it, that would be correct.
Ms. Strong: No further questions right now, your honor, if this is a good breaking point. And we'll continue
tomorrow. I have more questions, but we're right at 12:00.
Judge: Okay. 9:45 tomorrow. Have a fairly lengthy calendar tomorrow. 9:45. Thank you.
The jury exited the courtroom
Judge: Okay. Thank you. I'll see you at 9:45 tomorrow.
Witness: thank you, your honor.
Judge: Anything you want to talk about before I let you go?
Mr. Putnam: No.
Mr. Panish: Well, today we're going to be filing the brown designations, so I don't think there's that many.
Judge: Okay.
Mr. Panish: If you could possibly rule on it this afternoon, that would be greatly helpful.
Judge: I have a prove-up hearing this afternoon.
Mr. Panish: Well, I said, if you can.
Judge: Okay.
Mr. Panish: And then I have no idea how long Ms. Strong is going to continue on. So I have no idea about
what witnesses to have here, so...
Judge: Well, probably a good idea to have at least one.
Mr. Panish: Well, I was going to do the deposition.
Judge: Brown?
Mr. Panish: Pardon me?
Judge: Brown?
Mr. Panish: Yes. Can we get an estimate of how much longer it will be?
Ms. Strong: Your honor, it's... I'm thinking I should be done in three hours. Probably a half day tomorrow.
Judge: An additional three hours?
Ms. Strong: Two to three. In that range.
Judge: That much longer?
Ms. Strong: Well, your honor, they put up $1.9 billion of damages with no basis, so I need to show there's no
basis to the jury.
Mr. Panish: Okay. Three hours takes... we're not going to finish this week.
Judge: We need to cut that down. How long have you been going?
Mr. Panish: Two hours today, and an hour and 50 yesterday.
Ms. Strong: About right.
Mr. Panish: So 3.50. And so far my direct was about the same amount of time. Maybe less.
Mr. Putnam: With none of the background information. The problem with that is, this is their proof. This is
the person they're putting up for 1.5 to $1.9 billion. They did that with no basis for the showing. And the
reason I believe is, there was none. But we have to show them that, your honor, and that's why it takes a little
bit of time, because the figure is so astronomical, it takes a little bit to show them and also for appeal.
Mr. Panish: It doesn't really matter what Mr. Putnam thinks, your honor. How long is it going to take is the
only question? If it's three hours, it's three hours.
Judge: Mr. Panish, it does matter what Mr. Putnam thinks.
Mr. Panish: Well, your honor...
Judge: Please.
Mr. Panish: Well, for example, your honor, when I make an objection, then he starts speaking objections
when the witness is on, I mean, come on. He gets in there and starts...
Judge: Mr. Panish, I look to everybody at counsel table to assist the court, whether it's Mr. Putnam or Ms.
Bina or anybody. Anybody who can help the court out, I'm happy to hear from them. So please don't try to
restrict those trying to assist me in making decisions.
Mr. Panish: I haven't restricted anyone.
Judge: That's how it feels to me, is you're restricting me from assistance when you do that.
Mr. Panish: I don't think that I... your honor, I'm sorry if you think I'm restricting your ability to make
decisions. I don't think I have in any way in this case. All I asked for was how long it would take so I could
know for the witnesses. If she wants to take three days, she can take three days. I haven't objected to any
length of time of any examination by defense counsel. They've objected to mine. I have never objected to the
length of their time. So however she wants, all I need to know is so I can plan for the rest of the week. I don't
know that I'm going to be able to finish. I certainly would like to, but if it's three hours, it's three hours. All I
need to know is what it is.
Mr. Putnam: We'll try to cut it if we can.
Ms. Bina: Your honor, obviously, Ms. Strong will try to be as expeditious as possible, but it is, as with Mr.
Putnam said, a really important issue that needs to be fully explored on cross-examination.
Mr. Panish: Your honor, they ask so many repetitive questions. How many times has she asked, I can go
down the list of the questions. I don't object... rarely... but it's the same questions over and over and over.
Ms. Bina: If we're going to go down that road, your honor, Mr. Panish had a rolling under-his-breath
commentary and made several speaking objections that did delay the proceedings significantly as well. I don't
think we need to go into any of that, the lengthy sidebars yesterday, a number of lengthy speaking objections,
allegations of improper conduct when he was objecting to just the form of the question, and that also slows
things down. And Ms. Strong...
Mr. Boyle: Rearguing all the motions in limine again.
Ms. Bina: Ms. Strong is proceeding as quickly as she can, but I don't think in actual time with the witness, it's
been that much.
Judge: I'm going to ask, Ms. Strong, if you go back and look at your examination. See if you can cut it down
to two hours.
Ms. Strong: Your honor, I'll certainly try.
Judge: Look at it. See what you can come up with, because it's a long time.
Mr. Panish: Your honor, there have been totally...
Ms. Strong: I'll do that.
Mr. Panish: ... improper questions.
Judge: There's been repetition.
Mr. Putnam: Okay.
Mr. Panish: When counsel... and when counsel injects facts, not an assumption of a hypothetical, but making
a statement, that's an improper question, which I've been objecting to, and the court's been sustaining.
Judge: Well...
Mr. Panish: When she does it in the form... and then I did it...
Judge: Sometimes it's understood as a hypothetical.
Mr. Panish: But it's not asked. There's no understanding. The jury doesn't know that.