Did Andrew win today?
I wouldn’t count on it
We don’t yet know whether Andrew Brettler has persuaded Judge Lewis Kaplan that the settlement agreement I wrote about yesterday protects Brettler’s client Prince Andrew from the claim brought against him by Virginia Giuffre. But I don’t suppose the Andrews are feeling very confident this evening.
The hearing, which lasted little more than an hour, was mainly about what the agreement meant. Kaplan began by asking Brettler what he understood by the phrase “other potential defendants” in the passage I quoted yesterday.
Brettler answered, reasonably enough, that it meant people who could have been sued by Giuffre in 2009 and who could now claim the benefit of the agreement — such as his client. The judge seemed unconvinced.
Brettler then referred to Professor Alan Dershowitz as an example of someone who had been protected by the agreement. There was no mention of his case on the court record, Kaplan pointed out. And Dershowitz might be covered by a provision in the agreement relating to Epstein’s lawyers.
Brettler put his arguments firmly and, at that point, it was hard to say whether the judge was persuaded by them. By comparison, Brettler’s other points received very short shrift.
Then the court heard from Giuffre’s lawyer, David Boies. The judge asked him to explain two passages in the agreement. This was the first:
First Parties and Second Parties agree that the terms of this Settlement Agreement are not intended to be used by any other person nor be admissible in any proceeding or case against or involving Jeffrey Epstein, either civil or criminal.
Boies appeared unprepared for this question and struggled to identify the first parties (Giuffre and her associates) and the second parties (Epstein and his associates). Once that had been sorted out, the judge helped Boies towards the answer he wanted — which was that only Epstein and Giuffre could enforce the agreement.
That was not how I had read this passage myself. I thought it meant the document could not be used in any civil or criminal proceedings that might be brought against Epstein. But that’s the trouble with convoluted, unpunctuated sentences. Far from avoiding ambiguity, they encourage it.
Then we reached the clincher, buried in a paragraph headed “reciprocal confidentiality”. It says:
…neither this Settlement Agreement, nor any copy hereof, nor the terms hereof shall be used or disclosed in any court, arbitration, or other legal proceedings, except to enforce the provisions of this Settlement Agreement.
Didn’t that mean the agreement was meant to be private? And if it was never meant to be shown to anyone without the consent of Epstein and Giuffre, how could it have been intended to benefit someone in the Duke of York’s position?
The proceedings were conducted briskly, by UK standards, and I didn’t hear every word of it: reporters missed the opening minutes because of a technical problem with the sound relay.
I may be reading too much into Kaplan’s probing questions. And as he drafts the judgment he has promised to deliver “pretty soon”, the judge may modify the initial views he’d formed when reading the papers.
But I wouldn’t count on it.
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