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"That lost the case right there," he says. The real clincher may have come during Mr. Phillips' closing argument, which Mr. Engel describes as "prejudicial use of my testimony against my client."
Mr. Phillips, who has represented Journey, Santana and the Doobie Brothers, as well as the late Bill Graham, says he had every right to comment on Mr. Engel's testimony.
"He put his legal fees in issue," says Mr. Phillips. "In his opening statement he discussed why he could feel justified in charging such gigantic legal fees to Paul [Ahern] because he had supposedly achieved such a fabulous result [on the recording contract for the third album]. His testimony became an issue of credibility."
Mr. Phillips also maintains that Mr. Engel "created defense issues that only he could testify to." Primary among them was a fraud claim Mr. Scholz made against Mr. Ahern, the evidence of which was allegedly obtained in discovery during previous litigation.
"Everyone was on notice that I had every intention of calling Engel as a witness," says Mr. Phillips.
Although Mr. Engel knew he might be questioned about factual matters, he says he "never anticipated I would be [made to be] an expert witness against my client. They didn't ask me what happened, they asked me my opinion."
He says he did not learn he would be called by the plaintiff until a week before trial, when the judge ruled he would have to testify about certain events. Mr. Scholz then asked Judge Harrington for a 30-day continuance so he could find substitute counsel. The judge denied the request.
"The fact that we couldn't get new counsel in when we realized I was going to have to give percipient testimony put us in an extremely awkward position," says Mr. Engel. "I was very uncomfortable with my client having to decide whether to keep me on the case, knowing I would have to testify, or whether to bring in an attorney on a weekend's notice who knew nothing about the case."
Shortly after the verdict the judge wrote a blistering opinion, finding that the accounting given by Mr. Scholz was a "deliberate and blatant attempt" ebony porn to deprive Mr. Ahern of royalties. The judge called the accounting "a shocking display of arrogant disdain for Ahern's contractual rights" and wrote: "Artistic excellence does not excuse one from complying with the norms of decent behavior."
That, says Mr. Phillips, is the message this case sends to the music industry. As he puts it, "You can't say, 'I'm the star. I created the music and my manager can go to hell.'"
And the music, after all, is what it's supposed to be all about. While Boston's plans for a tour were put on hold during the litigation, word is the show is soon to be back on the road: Boston has announced plans to go on tour early next year.
But that could change quickly, depending upon the outcome of Mr. Engel's motion for a new trial. Mr. Scholz, he says, will consider whether to appeal after that decision is entered.
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