From Sports Business Daily
ZIMBALIST TESTIMONY ALMOST RESULTS IN MISTRIAL IN ATP-HAMBURG TRIAL
By Daniel Kaplan, Staff Writer, SportsBusiness Journal
Judge Dismisses Jury Early After
Noticing Witness Using Notes On Stand
Sports economist Andrew Zimbalist’s testimony at the ATP antitrust trial in Delaware today caused an uproar, leading the defense to call at one point for a mistrial and the judge to dismiss the jury by noon, at least five hours early. Zimbalist, an expert witness for the organizers of the Hamburg, Germany, tour stop that is suing the ATP for demoting the event, took with him to the witness stand a 17-page document on which he apparently based some, if not much, of his testimony. Only after 90 minutes of testimony was this noticed and his appearance halted.
Witnesses are not allowed to bring notes up to the stand, and Hamburg’s lawyer, Rob MacGill, told Judge Gregory Sleet, according to a transcript, he had told Zimbalist this morning not to bring the outline. The outline was prepared in conjunction with MacGill, the lawyer told the judge. While the fact the document was not disclosed to the defense is an issue, said Brad Ruskin, the ATP’s chief counsel, “The most important issue here is what happened on the stand without question. So now you have a lawyer’s outline from which he is testifying in that situation.”
At one point during his testimony, Zimbalist corrected MacGill and asked him if he asked the right question. This kind of prepared testimony is not allowed because the witness could then be viewed as simply parroting the lawyer’s opinion, not issuing his own.
Judge Sleet dismissed the jury and said he would consider striking the testimony from the record. Sleet said to the lawyers after discussing the issue, “Well, I have seen it all.” The ATP twice, including yesterday, tried to convince the judge to dismiss Zimbalist as an expert witness because of concerns about his methodology. Sleet turned down those requests. The question now is whether the Zimbalist testimony, even if stricken from the record, will be viewed as having tainted the jury.