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I am writing in regard to your May 20article about the Court of Appeal argument in the case of McIntosh v. Mills, which concerned the enforceability of an alleged oral fee-sharing agreement between my client, Robert Mills, and the plaintiff. Your article notes that my client has always denied that any such agreement existed, but it then proceeds to say that the trial court judge, whose summary judgment ruling in our favor is the subject of the appeal, “found” that the agreement was made. That is not true. From the moment that we were retained in this case, it was obvious to us that there were two ways of achieving victory. We could have gone to trial before a jury, which would have readily concluded that there never was a fee-sharing agreement. As described by the plaintiff, the terms of that supposed agreement were utterly nonsensical, and he had repeatedly denied under oath in prior litigation that any such agreement existed. No jury was likely to find that an agreement that made no sense, asserted by a plaintiff who had previously denied ever entering into one, had nonetheless been formed. Alternatively, we could have avoided a trial entirely by moving for summary judgment on the ground that the alleged agreement, assuming it existed, was unenforceable. As most lawyers would do, we chose the latter course. In the context of the summary judgment proceedings, it would have been counterproductive to join the battle over whether an agreement existed. The plaintiff claimed that it did, and summary judgment is only available where there are no triable issues of material fact. So we “conceded” the existence of the agreement, but solely for purposes of the motion. The trial court was then in a position to reach the dispositive legal issue. It did so, dismissing the case. The only finding made by the trial court was that the plaintiff’s claim was based on an alleged agreement that, assuming it existed, was unenforceable. Your reporter may have been led astray by some of the colloquy at the Court of Appeal argument, in which I noted that my client did in fact deny the existence of the agreement that forms the subject of the case. I conceded, obviously, that, for purposes of the summary judgment motion, and therefore for purposes of the appeal, the existence of the agreement was assumed. Lawyers are sometimes faced with the quandary of whether to conduct a case in a manner designed to fully and squarely vindicate a client’s reputation — by proceeding to trial and having the jury find that the alleged conduct never occurred — or by seeking prompt dismissal of the case on legal grounds, even though that does not afford the opportunity to demonstrate that the accusations are baseless. There may be some instances in which the former course is appropriate. Most of the time, though, the goal is to end the litigation favorably at the earliest possible juncture. It is unfortunate that the efficient disposition of a meritless case can sometimes leave alive, at least in the eyes of the press, the underlying factual accusations. The truth is that Mr. Mills won this case on the law, but he also would have won it on the facts had it come to that. Jonathan R. Bass San Francisco Editor’s reply: Bass is correct that the trial court in its order made no finding as to the existence of the agreement. We regret the error.

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