2007-03-06 thoughts on trial
Staddon vs. Griever: thoughts on the trial
written the day after the trial (2007-03-06) and substantially expanded the day after that (03-07)
OverviewI'm not sure who I'm writing this for, as the Grievers and all their associates seem convinced of the rightness of their case and aren't interested in looking at the evidence or understanding an opposing point-of-view, while everyone on my side of the issue thinks I should have ditched the Grievers ages and ages ago and that I'm wasting my time even thinking about this.
But I do think about these things, and I need to set it down in writing while it's still fresh in my mind.
The defense made a big deal out of how we were "friends", and how the business relationship was like a "marriage" gone sour. I want to make it completely clear that I was never in favor of doing business on the basis of friendship. From the very beginning, I pushed for there to be some kind of agreement in writing, if only for our own reference purposes. It didn't need to be legally binding; it just needed to be a clear statement of what we had each agreed to do. The Grievers steadfastly resisted every attempt on my part to arrive at a written agreement. "Written agreements and contracts are how people get screwed" is something Bubba said on at least one occasion.
No. Written agreements are how people avoid getting screwed. Failure to have a written agreement is how I've been screwed, and how the Grievers apparently ended up feeling screwed.
In any case, throughout the duration of our working relationship, the Grievers repeatedly made a big deal about how we were all friends and "we're all in this together". In the context of the court battle, however, they do their best to make it sound like I was the one claiming we were all friends and using that as a tool to maintain their trust. I never did this. I attempted to set forth my understanding of our working relationship in writing on many occasions. The Grievers either ignored these or rejected them, verbally, without making any suggestions of their own. It seems to me that their motive at all times was to keep things vague.
2007-04-15 addendum: I may not remember a lot of things, but I do remember that I said to Lynne at the very beginning, before a single shirt had been put on the web site, that I was uncomfortable using friendship as a basis for doing business -- because as soon as there's any kind of dispute, the friendship is the first thing to suffer. I would be saying "told you so" now except that I don't think they ever had any sincere friendship for me, beyond a certain shallow level. (Which is fine, because I never really did for them either, beyond a certain shallow level. Unlike them, however, I never claimed anything more. There was no real loss of friendship, from my point of view, because I never really deeply trusted them; the real shocker was how completely they turned on me as soon as the free ride was obviously over, and how much hraka they were able to get away with.)
J. Whitehill's testimony
For those who weren't there, this is in regards to (Lynne's daughter) Jess's testimony of an incident in which I said something along the lines of "Bubba, what do I have to do to convince you that I'm not trying to steal the store? The merchandise is yours, it has always been yours, and I would never try do that do you." (I am hoping I can get a transcript of the trial so I can quote this more accurately.)
This obviously bothers me a great deal, because it certainly looks as if I promised something and then blatantly violated that promise. It also seems to contradict the basic premise of one of our main arguments during the trial, i.e. that there was no effective business arrangement because they never provided the merchandise, so therefore the merchandise belongs to me.
This testimony came as a surprise to me; I had forgotten the incident, and it has taken some time to figure out what happened. I'm still piecing it together, but here is what I've figured out so far.
- At the time I said this, it was true. I considered the merchandise to belong to the RDA, and I had no intention of "running off with the store".
- Those two facts were contingent upon certain understandings, however, including: (1) that the RDA acknowledged their personal debt to me and was continuing to work towards paying back, which is what I had been led to believe; and (2) that we were able to continue working together productively.
- Both of those understandings were later violated by Lynne and/or Bubba:
- Bubba began conducting his area of the business in a way that was extremely destructive of the business's health.
- Both of them denied that my accountings were accurate or valid, but they refused to offer any corrections or produce any accountings of their own. More on this under #Accounting.
- In other words, although I probably shouldn't have said it, it is actually true: I meant it the way I said it. I did consider the merchandise to belong to them – as long as they were really going to pay me back for it. I wouldn't ever "just run off with the business"; I finally cut Bubba loose after many many months of attempted reconciliation, with Bubba and Lynne both taking hardline positions and repeatedly demonstrating a lack of interest in my point of view. What I said was true, and I stand by it.
- Furthermore, I was confused. I had forgotten, at the time, that the "80-20 split" was based on an assumption that the "artist" (RDA) was supposed to provide the merchandise up front, and that I had (reluctantly) agreed to "loan" them the money to provide this merchandise when they were unable to – said arrangement also being something I never should have agreed to, as this meant I was taking all the financial risk and they were still getting 80%, in exchange for unspecified services. I shouldn't have agreed to that, and yet I did; mea culpa.
- However: The question remains that if they were depending on this arrangement, and had begun to distrust my motives, why didn't they ask me for something in writing? A verbal promise is hardly any basis for a business relationship, and I certainly was not trying to dissuade them from setting down an agreement in writing. Whatever it was that they were asking for, to which my response was presumably the words to which Jess testified, it was not anything in the nature of a promise or guarantee. Had we made one at that time, our situation now would be much less ambiguous.
- It seems to me much more likely that Lynne was well aware of the sweet deal they had in this situation, and that she hoped to prolong its exploitation by leaving things as ambiguous as possible. This is the only possible explanation I can see for the consistency with which she and Bubba worked to blur any and all understandings we might have achieved.
- On at least one occasion, I told them not to depend upon anything I told them verbally, and that if they were counting on me to live up to something which they believed I had promised, they should confirm that understanding via email. What was I supposed to do if they chose to ignore this advice? I wasn't deliberately misleading them. At worst, I was making verbal promises and then forgetting that I had made them – and they were choosing to believe and act on those promises in spite of my warnings not to. More likely, I think, they made a regular habit of taking things I said in an informal context and re-imagining those words as binding promises. That's hardly fair or reasonable.
I don't know if it is a willful misunderstanding on their part or simply ignorance, but they seem to have no clue of the process by which a mutually acceptable accounting is worked out on paper; they seem to have the idea fixed in their head that it is necessary to meet in person and verbally hash things out. This point came up again during the trial, when Bubba seemed baffled by the suggestion that his claim of "a stack of checks that Nick doesn't have in his accounting" should have resulted in Bubba sending me a list of those checks so that I could include them.
The only point I can see at which such a meeting might be helpful is after everyone's transactions have been compiled together and any corrections or deletions have been suggested and after everyone has gone through their paperwork (which in our case would have been at different locations, so "getting together" would have meant that one of us would be at a serious disadvantage). At that point, it might make sense to do a little give-and-take: "Well, I can't find backing for this transaction, but I'll grant you this transaction of yours if you'll grant me this one of mine" kind of thing. We never got anywhere near that point.
In any case, it is my understanding that it is standard accounting practice to put all accountings, claims, disputes, et cetera in writing. This is even more true when there are disputes to be resolved.
Accounting, Part 2
Another thing that came up during the trial was the following argument (which I hope I am paraphrasing correctly):
- The Grievers believe my sales accounting to be in error
- However, they do not have the numbers/figures with which to create their own accounting
In other words, "We're owed money, but we can't prove it because Nick has all the paperwork." This argument apparently maintains their position that my accounting is in error without requiring them to offer corrections or create their own accounting.
I have just a couple of comments about this:
- If they don't have the figures necessary to calculate what they are owed, what is the basis for their belief that they are in fact owed money? I can think of two possible answers to this:
- They saw figures at some point, but were not able to retain the relevant paperwork.
- In that case, couldn't they at least put together an estimate? If they have any basis at all for believing that I owe them money, they should at least be able to show some hypothetical numbers for this (a low estimate and a "best guess" would seem reasonable).
- They are assuming that they are owed money because there were sales.
- Although this is incorrect, it would at least have been a valid line of argument which could have been answered in court. Again, they could have put together one or two sets of figures showing their best guesses as to what they were owed.
- They saw figures at some point, but were not able to retain the relevant paperwork.
Both of these guesses, however, fail to explain the sheer certainty with which the Grievers claimed to be owed many tens of thousands of dollars in sales.
There was also, I remember, an incident where Bubba did in fact show me a set of calculations of his in which the Grievers were owed some money for sales. The papers mysteriously vanished in between his showing them to me and my driving back to Durham. This disappearance may have been my fault, but it certainly is not my fault that he never gave me another copy when I told him that the original copy had gone missing. Note that this is the only time, prior to the discovery process in this lawsuit, that either one of them gave me any kind of written accounting, aside from Lynne's occasional listings of expenditures using my check cards.
Ownership of Merchandise
The Grievers offered, if I recall correctly, two arguments towards their continued ownership of the merchandise.
One of those arguments was that under the "Standard Artists' Agreement", a.k.a. the "80-20 split", the merchandise belongs to the "artist", i.e. in this case RDA/Grievers. Our argument, of course, was that that arrangement depended upon the "artist" providing the merchandise up front; the Grievers did not do this, and I ended up buying all the merchandise.
The Grievers made a claim, at one point, that Bubba offered to pay for the merchandise.
- I'm not sure what this would prove if it was true; regardless of intentions, Bubba did not pay for the merchandise. The implication seems to be that I somehow tricked them into violating their side of the agreement, thus allowing me to "run off with the store" with impunity while twirling my moustache. This is kind of ridiculous; if they thought they had failed to live up to the original agreement, whether deliberately or accidentally, surely at the very least they could have sent me an email making it clear that this had happened and stating their intention to fix the situation by paying me back for the merchandise I had paid for? I am not aware of any such claims on their part. This argument was invented from scratch solely for the trial.
- Also, I remember Bubba's offer as being only for the short term – in that he would need the money back within a few days or weeks – rather than being a statement that he felt able to cover the cost of the merchandise in an ongoing fashion. This did not seem like a practical offer; if I "paid him back" for paying for merchandise, who then owns the merchandise? Why would I be interested in a short-term loan which serves only to confuse the issue, and doesn't really relieve me of any risk?
- If Bubba was truly able to pay for the merchandise without guaranteed compensation, why did he need my permission to proceed? Don't ask, just buy it! Don't involve me! It's true that they didn't have their own check card, but they could always send money orders to the suppliers and accept a few days of delay, or else pay COD (as I often had to do when we were having cashflow issues). In any case, it was never my responsibility to help "artists" procure their merchandise; merchandise was always provided up front, in advance, with no financial involvement from me. The moment Bubba needed my help to obtain merchandise, we were no longer operating under those rules.
- If they decided to continue having me pay for the merchandise and yet still expected to own it, they should have obtained from me a statement in writing that this did not breach our agreement and that the merchandise would still be theirs. (Had they asked for such a statement, I would have made it clear that I expected to be repaid, I probably would have set up a system for keeping track of their debt for merchandise, and the circumstances under which ownership would revert to me would have been spelled out. This is probably why they did not obtain such a statement.)
It is true that I said, in several different circumstances, that I considered the merchandise to belong to them. As I said above, I was confused when I said this, but even so I was still under the impression that we were in the process of working out a new arrangement under which I would be adequately compensated for the extra risk of paying for the merchandise. No such arrangement was ever reached. My statements that they still owned the merchandise and that the 80-20 split was still in effect were statements of intent that I was still willing to work toward an agreement which could be based on those terms; those statements should not have been taken as a promise or binding contract, and I never would have asked or expected the Grievers to do so.
Furthermore, even if the agreement somehow was still in effect (which it would have been if we have been able to work out a new arrangement), it seems to me that their denial that they owe me for the merchandise "drove the final nail in the coffin" of their ownership; they can't both own it and not owe me for buying it for them. The only way out of that dilemma would be to argue that they actually paid for a substantial chunk of it (equivalent, at least, to whatever stock they have remaining), and they haven't tried to argue this, much less produce any evidence for it – with the possible exception of the following (extremely lame) argument.
The other argument they brought up is that their share of profits from the store were to be used to pay me back for buying the merchandise for them.
This would have made sense if (a) I had agreed to fronting them the money for providing the merchandise (partly true; I offered to do this, but as mentioned above they would have had to provide some additional value in compensation for my taking over their financial risk, and we never worked out what that would be) and (b) there had actually been profits owed to them with which to repay me (which, as I determined back in 2005, there was not; their share of "profits", much like my share, is based on a loss of over $9000). Finally, even if all of these things were true, there would need to have been paperwork showing that I accepted their share of profits as adequate repayment for my up-front investment; I didn't even agree to this verbally, much less in writing.
Contracts and Agreements
It does not seem reasonable to me that I should be held to my end of an agreement when the other party was not being held to their end, especially if I did not know that I was going to be held to it or agree to be held to it. Contracts are supposed to be voluntary, not made at the whim of the other party. The Grievers had a repeated pattern of interpreting my statements of intent (and sometimes even statements of pure wishful thinking) as binding contracts.
The Grievers never asked for anything in writing, ignored all my efforts to express our working arrangement in writing, avoided documenting any of their own real contributions, and generally did their best to confuse every issue. My culpability is solely in that I gave them the benefit of the doubt for far too long, thus allowing the problem to accumulate. They were, however, the actual source of the problem.
Under these circumstances, their claims that I violated binding agreements with them are sheerest chutzpah and hypocrisy.
The Bottom Line
- The "80/20 split" was contingent on their providing the merchandise up front. The very latest opportunity for them to uphold their end of that understanding was to acknowledge their debt to me for buying the merchandise in their stead; their failure to acknowledge that debt was the last of many nails in the coffin of any possible contract, the first nail being their failure to provide the merchandise up front as agreed. They can't both keep the merchandise and claim that they don't owe me for it in some regard. Their argument that I was paid for it out of "profits" is completely bogus as shown above.
- If they believed that my accounting was in error, whether or not they had the paperwork necessary to prove it, they must have had some basis for believing this. What is that basis??
Finally, it is my opinion that Lynne is a complete sociopath who happily manipulated a situation to be in her favor for as long as possible, and then viciously turned on her benefactor (me) without a second thought as soon as she realized the free ride was over. I will be happy to engage in civilized written discussion with anyone who has reason to believe otherwise, as I much prefer to think the best of people; I don't, however, see any other reasonable conclusion to draw at this point.
I realize that even if the eventual court verdict is overwhelmingly in my favor (which is by no means guaranteed), there may be those who will still believe that the Grievers were somehow "screwed by the system" or (at any rate) by me. It was never my intention to be unfair with anyone, and as far as I can tell I am the injured party here, many times over.
Anyone (interested or disinterested parties) should please feel free to post any thoughts (neutral/agreeing/disagreeing) on the discussion page, or direct me to another web site if you prefer to make your points there. I won't hold my breath waiting for any such discussion, as experience has shown that opinions tend to be hardened in situations like this, but I did want to make it clear that I am open to it. I am willing to examine my beliefs and assumptions. I don't think the Grievers are willing to do this; they are convinced of the rightness of their actions, regardless of what anyone else may think and regardless of the harm they may do.
I don't know why this didn't occur to me before, but:
Bubba made a big deal (at the trial) about how his contribution to vbz was ideas. "'Hey Nick!' became almost a catch-phrase" is a direct quote (from my imperfect memory) of a point he made which was repeated at least once or twice during the course of the trial. (I seem to recall their lawyer coming back to it as well, though I'm less sure of that.)
If that's Bubba's main contribution, then I certainly can't have "stolen" it from him; he's always free to take his brilliant ideas and get someone else to turn them into code as I apparently did. If the claim is that I've stolen the fruits of those ideas, which "we" had already done the work of turning into working code -- well, gee, guess who did that work? I can't have stolen from myself, now, can I?
Besides, he already has all the code for the back-end of the store, current as of the last time we were officially still working together, and he never actually asked me to give him any of the code for the front end (web site). Wish I had pointed that out at the time -- how can they complain about my having "stolen" the programs "we" wrote if he never asked me for a copy? Either they're absolute idiots, or they fully understand the level of their own dishonesty. I can't really see any in-between, when I look at it closely like this. Unless it's some weird psychological condition? I know I'm being too forgiving when I say stuff like that, but I have to say it anyway.
I think for my own peace of mind, at some point I'm going to have to make a catalog of every claim I've heard the Grievers make, and refute them each in turn. Not that it will change anyone's mind.