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Even before the trial opens Tuesday on the question of who owns Giants slugger Barry Bonds’ record-setting 73rd home run ball, attorneys are scrambling to exclude certain testimony with their motions in limine. Lawyers for plaintiff Alex Popov asked San Francisco Superior Court Judge Kevin McCarthy to exclude the testimony of former San Francisco Chronicle sportswriter Harry Jupiter. Attorney Martin Triano called Jupiter, who also wrote for the old San Francisco Examiner, “irrelevant to the issues of this case.” Called as a witness by defendant Patrick Hayashi, Jupiter said in his deposition that the law of the jungle applies when fans fight over a ball. “Seems to be kill or be killed,” Jupiter said. “Generally, it’s who ends up with the ball who keeps the ball.” A video of the rush for the ball shows Popov with it in the webbing of his glove, before he disappears into the crowd. After a furious scrum, Hayashi emerges with it in his hand. The two have fought as hard in the courts to gain control of the ball, estimated to be worth $1 million at auction, as they did in the right field arcade at San Francisco’s Pacific Bell Park Oct. 7, 2001. Hayashi’s lead attorney, Michael Lee, wants to keep out the testimony of three law professors Popov has called. They are Paul Finkelman of the University of Tulsa College of Law, Roger Bernhardt of Golden Gate University School of Law and Jan Stiglitz of California Western School of Law in San Diego. Lee argued that the three have formed legal conclusions that are inadmissible and have no business telling McCarthy how he should rule. “Testimony by the law professors also must be excluded because in their depositions, they admitted that in forming their opinions, they relied on evidence that, as we shall see, is speculative and unreliable,” the motion said. Triano also wants to exclude the testimony of retired umpire Jim Evans, whom Lee wants to tell the court about the “rules, custom and practice” of Major League Baseball regarding balls hit into the stands. “Just as a pickpocket in the stands of a Major League Baseball game would not be subject to the rules of Major League Baseball, the claims in this action must be adjudicated by the laws of the state of California,” Triano wrote. Hayashi’s attorney Lee gets to the crux of the issue by asking the judge to exclude references to “catch” or “caught,” which he contends are unclear concepts. “Popov exploits the ambiguity in the terms … by trying to make the ambiguous terms ‘catch’ and ‘caught’ synonymous with the alleged fact that he exercised unequivocal dominion and control of the baseball.”

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