In Pursuit of a Civil Judgment

The Lord helps those who help themselves, and the Law is no different. More than a decade ago, the Law gave Fredric Goldman a $19 million wrongful-death civil judgment for the loss of his 25-year-old son, Ron Goldman. That civil judgment reflected a jury’s conclusion, by clear and convincing evidence, that Ron was murdered. The bulk of that judgment, more than $12 million, was punitive. The jury determined that the murderer was guilty and needed to be punished. The Law gave Fred that judgment, and then it said to him, “Now go out and enforce it . . . if you can.”

Imagine if your loved one was murdered. (Tragically, many do not need to imagine it, for they have lived it.) Now imagine that the only justice you have been given is a monetary judgment against the murderer. A monetary judgment? If that judgment is to be enforced, you have to enforce it. No one else will. You will need the help of many people, especially lawyers, whom you cannot afford to pay, and you are in for a long fight – every step of the way. The murderer is popular and charismatic, many people still support him, he has publicly bragged that he will never pay anything on the judgment, and he has the help of his own lawyers, whom he can pay.

Anyone in such a position faces a dilemma: to fight for justice or not to fight. Under such circumstances, it might be best simply to leave justice to the hand of fate. No one should be faulted for choosing that path, for choosing not to fight. By the same token, no one should be faulted for choosing the other path. Some might even say that it is not a choice at all, but rather a function of what we are compelled to do or not do, based on who and what we are, on what we believe and feel.

Fred and his daughter, Kim Goldman, felt compelled to fight. And fight they did. Ron was Fred’s only son and Kim’s only sibling. Ron was savagely ripped from their lives, and nothing could change that. But they could do their best to enforce the civil judgment any way they could under the Law. It is very difficult to try to follow the Law while others break it. Fred and Kim have faced terrible obstacles and choices. At times, public pressure has been overwhelming. There are those who have called them “greedy” for trying to enforce their judgment. Of all the criticisms leveled against them, that one is the most obscene.

It is difficult to defend such a system of justice, but I do defend it. I am one of the many lawyers who have tried to help Fred and Kim pursue their civil judgment. I am also a resident of Los Angeles. I have lived here since 1991, when I began my studies at the UCLA School of Law. My tenure in Los Angeles spans the years before the murders and the years after, including both trials, criminal and civil. Many members of the legal community, here and elsewhere, have been touched or impacted by this case. There are those who see it is a terrible mark on our legal system. I do not. I respect and accept the many careful determinations and sincere efforts which judges and jurors have devoted to this matter, and, above all else, I adhere to them.

But the problem remains, how does one collect a civil judgment that appears to be uncollectible and unenforceable? The answer was undeniable: try to follow the Law. With O.J. Simpson, however, that was difficult. He has two significant defenses, which make him nearly impenetrable. First, he now lives in Florida, which gives him an unlimited homestead exemption. That means that he can own a home in Florida, and that home cannot be foreclosed upon to pay his debts. Second, the bulk of Simpson’s identifiable income comes from pensions (a number of which he created with the assistance of other lawyers), and pension proceeds are exempt from judgment collection. O.J. and his lawyers did a good job of protecting him from the judgment.

I first became involved in this matter in the summer of 2006, when Jonathan Polak, a seasoned intellectual property attorney with the prominent Indiana law firm of Sommer Barnard, asked me to serve as local counsel on a unique motion – a motion to try to acquire O.J. Simpson’s “right of publicity” in an attempt to satisfy the judgment. The motion was the idea of one of Jonathan’s clients, Karl Manders of Continental Enterprises. I believed then, as now, that it was a novel idea. The right of publicity is a transferable property right. It is the right of an individual to control the commercial use of his or her own name, image, and likeness. There are essentially two components of this right: the right to profit and the right to control. The right to control is an extension of the right to privacy, which gives one the right to prevent the use of their name, image, or likeness in association with commercial endeavors they do not like or find offensive. For example, former baseball pitcher Don Newcombe, a recovering alcoholic, did not want his likeness used to promote the sale of beer. With the rise of media and increased commercialization, however, the right to be paid for the use of one’s name, image, and likeness has outgrown the privacy right. These days, celebrities tend to be more concerned with compensation than prevention. If we could somehow acquire or control Simpson’s right to profit from his name, image, or likeness, then the proceeds from that right could go be used to partially satisfy the judgment. Those currently using Simpson’s name, image, or likeness would have to pay for such use.

But such a motion would be difficult to win, if not impossible. And sure enough, it failed. The Law currently does not provide for the wholescale, involuntary assignment of an intangible right, although some day it might, under certain circumstances. We filed our motion in early September of 2006, and on October 31, 2006, it was formally denied. Among other things, the Court was understandably concerned about the inherent right of an individual (even Simpson) to prevent the use of his name, image, or likeness. The Court also emphasized that California has a comprehensive statutory judgment collection scheme, and that scheme does not allow for the assignment or transfer of intangible property rights. The scheme essentially allows for the collection of money and/or the liquidation of assets into money. Nothing less, nothing more.

Shortly after the motion was lost, I appeared on Nancy Grace’s television show. A nice woman called in and was put on the air. She lived in another state (I believe it was Pennsylvania), and she could not believe that Simpson could get away with not paying the judgment. She insisted that in her state, the Judge would simply throw someone like that in jail for “contempt of Judgment.” But that is not the Law. Generally, a judge can hold someone in contempt for willfully violating a court order, but not a judgment. A civil judgment marks the end of a civil lawsuit, and it typically reflects a final determination that a debt is owed. Like all debts, it is up to the judgment creditor to enforce and collect it from the judgment debtor. The judgment debtor, however, cannot be forced to work to pay off his debts (involuntary servitude), nor can he be thrown in jail for failing to pay them (debtor’s prison). That is the Law.

In October of 2006, while our motion was pending, the National Enquirer reported that Simpson was to be paid $1 million for a book and television interview project entitled “If I Did It”, which was described as a hypothetical account of how and why the murders occurred “if” Simpson had actually committed them. In response to the Enquirer report, Polak spoke directly to Simpson’s long-time lawyer, Yale Galanter, about whether the report was true. Galanter assured Polak there was no truth to the report. Galanter later apologized for being mistaken.

While we were pursuing our right of publicity motion, we really did not have a clear idea of how Simpson’s right of publicity could be commercialized. Had we known about the book project, we could have gone after the proceeds before they were paid. Moreover, the book itself was a graphic and tangible example of how Simpson’s right of publicity could be commercially exploited.

As previously noted, our motion was formally denied on October 31, 2006. Under California law, a party may move for reconsideration of a ruling, if there are new facts or evidence that warrant such reconsideration. A reconsideration motion, however, must be brought no later than 15 days after the order is issued. The “If I Did It” book and television interview were publicly announced on November 15, 2006, exactly 15 days after the ruling. Simpson received his last payment on November 16. In all, Simpson was paid a total of $630,000, all of which appears to have been spent soon after it was received. The evidence indicated that Simpson used the money to pay his bills, including taxes and a home equity line of credit.

The If I Did It news shocked and angered our camp. Not surprisingly, Fred and Kim had an instant visceral reaction. How could they react otherwise? Simpson and others were profiting from the murders, and they were all doing so with full knowledge that Simpson owed millions of dollars to the families of his victims. Simpson was evading justice once again, he was doing so in a callous and demeaning manner, and this time everyone was helping him do it.

I had heard from a person that I deemed to be a reliable source that Simpson engaged in shell games. He would go to cities and make appearances at autograph signings. The promoter would supposedly give a satchel of cash to a member of Simpson’s entourage. The bag allegedly would pass from hand to hand, and eventually it ended up in Simpson’s hands before he left town. On at least one occasion, as I understood it, Simpson apparently received his little bag moments before boarding a plane to return to Miami. If Simpson or anyone else was ever asked if Simpson had been paid for the appearance, the response would be no. The monies had been handed to a member of his group, not to Simpson himself. This is what I had been led to believe. But in the end, it did not really matter much. We could not afford to travel all over the country chasing duffel bags supposedly filled with $30,000 to $50,000 in cash.

But a shell game was exactly what O.J. played on the “If I Did It” deal. We later learned that a friend of Simpson’s, Miami attorney Leonardo Davinci Starke, created a sham corporation, entitled Lorraine Brooke Associates, Inc. (LBA). Two judges subsequently found that LBA was a sham, a fraudulent corporate alter ego of Simpson himself. It was our understanding that “Lorraine” and “Brooke” were the middle names of Simpson’s two children, Sydney and Justin, which he had with his late wife, Nicole Brown. Simpson assigned his publicity rights to LBA, and then LBA entered into the deal with HarperCollins Publishers to do the If I Did It project. LBA entered into that deal by and through an exclusive agent and representative based in Santa Monica. All monies from HarperCollins passed to the Santa Monica agent (which took 15%), then to LBA, and then to Simpson. LBA eventually received $663,000 in advance payments for “If I Did It.” Of this sum, $630,000 went to Simpson. Most of the remainder, only about $33,000, was used to pay Starke, and it was also used to purchase a Lincoln Navigator for Simpson’s daughter from a prior marriage, Arnelle Simpson, who was the ostensible president of LBA. Arnelle later testified that the Navigator had been leased by O.J. When the lease expired, they decided to buy it for Arnelle, using LBA’s funds. Some of LBA’s money was also used to pay Arnelle’s cell phone bills. When LBA finally filed for bankruptcy, it only had about $300.

Simpson and Starke had named Arnelle as the president of LBA because they could control her. When I spoke with Arnelle in her deposition, she repeatedly admitted that she was overwhelmed. I actually felt a little sorry for her. She knew the business purpose of the corporation, to promote and sell the If I Did It book, but she had no knowledge of the day-to-day operations. She admitted that Starke handled the company, and Starke himself testified that Arnelle was really just a “people person.” It was Starke’s job to run LBA, which effectively meant that Simpson was in control. It seemed to me that Arnelle did whatever Starke and her father told her to do.

Incidentally, if you owe people a lot of money, and you create a corporation to shelter your assets, and that corporation is ostensibly owned and operated by your children, the Law tends to view that as a badge of fraud upon your creditors. Simpson has four children. Two of them, Sydney and Justin, are his children with Nicole Brown. Each of his children was an ostensible officer and 25% owner of LBA.

According to Arnelle, all the children knew about the contents of the book, and all expected to receive money from the publication. That seemed noteworthy, because a wrongful-death judgment for $14 million was also awarded against Simpson and in favor of the estate of Nicole Brown. The beneficiaries of that estate, and therefore the beneficiaries and effective stakeholders of that judgment, were and are Sydney and Justin. Thus, it seemed that everyone was trying to profit on the If I Did It project, including the holders of the Brown judgment. Everything about the project was an orchestrated attempt to pass money and assets, and keep all such money and assets beyond the reach of Fred and Kim. And everyone appeared to be in on it.

I had originally signed on for a very limited purpose, an attempt to acquire the right of publicity. At the time, I knew little about such intellectual property rights. Now, we were being asked to try to collect the monies that had been paid to Simpson. I knew nothing about collections. On another Nancy Grace show, she asked me point blank what we were doing. All I could say was that we were considering different options. “Excuse me,” she said. “You are thinking about it?” She was right, of course. In law school, the professor frequently asks the students questions in front of the whole class. This was national television – live. I said the only thing I could, the truth. “I don’t know how to collect money that has already been spent.” Indeed, we could not.

Shortly thereafter, we had the good fortune to enlist the help of someone who, how shall we say, is very unique. We actually did not meet him, he sort of forced himself upon us. “You need me,” he said, and he was right. David J. Cook is a debt collection specialist in San Francisco. He has his own law firm, Cook, Perkiss & Lew, Collection Attorneys. They have a website called “squeezebloodfromturnip.com”. If you click on it right now, you should see an American flag flapping in the wind. David actively markets the slogan, “Winning is Nothing. Collecting is Everything.” He sent us t-shirts and calendars. At first, I thought he was a fanatic. I was right. He sent me e-mails everyday with ALL CAPS in the re-line. I was exhausted. He wore me down even more. Polak and I spoke about it. We eventually agreed that we should retain Cook. The man was and is a tornado. I have come to look up to him and admire him tremendously. He has taught me much. For that alone, I am grateful, and for much more.

David had many strategies, but his basic tactic was simple: attack, attack, and attack. Repeat as needed. Quickly, quickly, quickly. He spoke of creating a cascade of events, of putting the debtor and his camp on the run. Fine words, to be sure. But how? He was annoying and irritating at times. He was perfect for the job. I called him Captain Cook. He scoffed, and demanded the rank of Admiral. I gave it to him. We had some early failures. We filed a motion in federal court in Los Angeles to try to set aside the fraudulent transactions with LBA. The judge told us to go to Miami, and Simpson’s lawyers repeatedly dared us to go there. That same day, we lost a motion in state court as well. Galanter was quoted as saying that he had “kicked us to the curb.” Later, he was also quoted as saying that Fred was a “greedy pig.” Denise Brown, Nicole’s sister, has made similar comments.

Eventually, David set upon the essential strategy, and he issued a written levy on all of the book rights, which at the time were held by HarperCollins, but the rights would eventually revert back to LBA. The effect of the levy, which later proved pivotal, was that it gave us a secured interest in those book rights, much like a bank’s security interest in a home. We could not seize the monies paid for the If I Did It project, because they were long gone. We also could not seize the book, per se, because it was an intangible property right. But we could go after any and all future monies that the book might earn, and we could also ask the Court to order a sheriff’s sale of all of LBA’s and Simpson’s rights, title, and interest to the book project. In other words, much like a home foreclosure, we could ask the Court to sell those rights, whatever they might be, to the highest bidder, then we could take the monies generated from the sale to satisfy the judgment.

There were a number of problems, not the least of which was that the demand for the book, after the public outrage, was minimal. David had a backup plan. We could use our own judgment to credit bid at the auction. Under California law, the unpaid $19 million judgment accrued interest at 10% per year. So in 10 years, it had doubled and was now $38 million. If we did not get a good bid at the auction, then we could buy the book ourselves and reduce our judgment accordingly. We had a huge credit card, and it was unlikely anyone would approach our credit limit. But bless them if they could.

Of course, there was one other big problem. If we acquired the book it would be for the ultimate purpose of continuing to shop it so that we could sell it, most likely to a publisher, and use the proceeds to satisfy the judgment. Needless to say, Kim and Fred were not entirely pleased. Believe me when I tell you that we attorneys had to persuade Kim and Fred to pursue this remedy, and it was not easy. In the end, I did the only thing I could do as a lawyer. I followed the Law, and I strongly encouraged Kim and Fred to do the same. (David, of course, was more adamant.) The law gave us a judgment, and it imposed on us the duty to enforce it. Either we enforced that judgment, or we let it go. If we were going to enforce it, we would enforce it in the manner that the Law allowed. If the Law allowed us to acquire and sell the book, then so be it. I had to believe, and I encouraged my clients to believe, that if the Law supported that result, then it was the result that should be pursued, even if the end was not clear.

Blood money? Everything from Simpson is blood money. I do not believe he can earn a clean dollar. If nothing else, the If I Did It book indicates that most of what he has left to sell is his own infamy.

I encouraged Kim and Fred to blame it on their lawyers, including me. To their credit, they would not. They sat in front of cameras and explained, as best they could, why they had changed their minds and decided to pursue a course of action that would likely lead to the publication of the book. It was very unfair. I have more than 15 years of legal experience which informed my advice to pursue the book, and it has taken me all these pages just to try to explain it. It cannot be done in a television sound bite. Kim and Fred have struggled to maintain their dignity though all of this, and it is an impossible task. They would not sign off on the concept until we had convinced them that we really had no other choice. We either enforce the judgment, or we walk away. All the while, Simpson taunted Fred. Moreover, we had come to believe that the publication of the book would ultimately expose the truth about Simpson, in his own words. Kim and Fred gradually came to see this as well, but it was difficult to accept.

In March of 2007, the Los Angeles Superior Court, the Hon. Gerald Rosenberg, heard and considered our motions regarding the “If I Did It” book. Judge Rosenberg had the patience of a saint. He listened carefully to everything that everyone had to say. We felt certain that some of our requested relief would be granted. Judge Rosenberg awarded us any and all of Simpson’s rights to future income from the book, if it was ever published, and he indicated that we could sell Simpson’s rights. But the rights in question ostensibly belonged to LBA, not Simpson. In the end, Judge Rosenberg ruled that, for purposes of the book, LBA and Simpson were the same, and he granted our request. The battle, however, was not over, not by a long shot. We went back to Court a number of times to clarify aspects of the ruling, and to resist renewed challenges by Simpson’s lawyers and new lawyers who were hired to represent LBA. The Court eventually affirmed the prior rulings, and the sheriff’s sale of the book rights was set to go forward on April 17, 2007.

Shortly before the sheriff’s sale was set to occur, I made an appearance on Catherine Crier’s show. Galanter also appeared and raised a number of challenges to the book sale. I maintained that the Court had cleared the sale, and the sale would go forward. Galanter said something that he had said on other occasions. “Don’t pop the champagne just yet,” he told us. At the time, I really did not think much of his comments. In retrospect, it was clear that Galanter and Simpson had a fairly obvious back up plan. David Cook saw it coming. I did not.

The sheriff’s sale was scheduled for Tuesday, April 17. On Friday, April 13 (a fateful day), we appeared before Judge Rosenberg to address one final challenge to the court-ordered sheriff’s sale. This time the Browns were trying to stop the sale. The chief spokesperson for the Browns is Nicole’s sister, Denise Brown. The Brown judgment, however, is held by her father, Lou Brown, as the representative of Nicole’s estate. As previously indicated, the beneficiaries of Nicole’s estate are Nicole’s and O.J.’s children – Sydney and Justin.

The Browns essentially argued that the sale should not go forward, but if it did go forward then they were entitled to half the proceeds. Their request could not be granted. Among other things, they had not perfected the renewal of their judgment. Under California law, judgments are valid for 10 years, and then they must be renewed. Our judgment had been renewed, as had the Browns, but, ironically, the Browns had not properly served notice of their renewal on Simpson himself. This defect was fatal to their claim. Until they properly served notice of their renewal, they could not take steps to enforce their judgment.

By 11 a.m. on Friday the 13th, our hearing in Santa Monica had ended. We discussed plans to travel to Sacramento where the sheriff’s sale would take place. By 11:30 a.m., we were advised that LBA had filed for bankruptcy in Miami. It was our understanding that the federal bankruptcy petition was filed shortly after the denial of the Browns’ last-ditch effort to stop the sale.

The bankruptcy filing meant that the sheriff’s sale could not go forward. When a debtor files for bankruptcy, there is an immediate stay on enforcement of any debt or claim against the debtor, in this case LBA. The sheriff’s sale was on hold, indefinitely.

We now faced another decision. Do we take the fight to the bankruptcy court in Miami, or do we try to get out of that court and pursue the sheriff’s sale in California? We had grounds to try to extricate our claim from the bankruptcy case. It turned out that LBA’s bankruptcy petition and bankruptcy schedules were a mess. Among other things, they were not accurate, they had been drafted in haste, and they were not signed under oath by an authorized representative of LBA.

Ultimately, we decided to stay in the Miami bankruptcy court, because we hoped that the bankruptcy court would give us better title to the book rights. If we proceeded with the sheriff’s sale in California, we would likely have acquired similar rights, but we would have faced other potential lawsuits and claims from those contesting the validity and extent of our title. Under broad federal bankruptcy court jurisdiction, those competing claims could be considered and subordinated.

We also had another good reason to pursue the matter in Miami, excellent local bankruptcy counsel. Jonathan was able to enlist the help of Paul Battista, with the law firm of Genovese Joblove & Battista in Miami. Paul was assisted by one his partners, Brett Amron, and a number of other personnel at the firm. They were all excellent. We could not have been in better hands.

There were several elements that gave us a slight advantage in Miami. First, it quickly became clear that LBA was a sham, and the bankruptcy filing was a bad-faith attempt to stop the sheriff’s sale. Second, we were the only secured creditor of the estate, because Cook had levied on the book assets earlier in the year. Third, Paul’s firm had an outstanding reputation and presence in the Miami bankruptcy community, and for good reason. They clearly knew what they were doing. Fourth, we were in front of an extremely good no-nonsense bankruptcy judge, the Hon. A. Jay Cristol.

We pursued negotiations with the bankruptcy trustee, Drew Dillworth, and his counsel, Brian Reich, both of whom are extremely capable and intelligent lawyers. The trustee is the bankruptcy court’s appointed representative over the bankruptcy estate. His job, among other things, is to supervise the bankruptcy, gather the assets of the debtor, and come to an equitable distribution amongst all the creditors as soon as reasonably possible. We eventually reached a proposed settlement with the trustee to acquire the book rights, publish the book, and give the bankruptcy estate 10% of the gross sale proceeds (i.e., net proceeds after all publishing costs). The deal was a good one for the estate, because if our secured interest was upheld in bankruptcy (which we believed would happen), then we would have been able to take the book rights completely out of the estate and give it nothing. We also agreed that all of this 10% would go to pay administrative claims and all the other creditors of the LBA estate, primarily the Browns. We would not share in any of the 10% distributed to the estate, although we had the right to do so.

At the final hour, the Browns again tried to oppose the settlement. They essentially argued that they were entitled to a greater share of the book proceeds, and they argued that the settlement disproportionately favored the Goldmans. Judge Cristol and the bankruptcy trustee disagreed. They concluded, in part, that any benefit to LBA’s creditors could only come from the successful sale of the book, and the Goldmans were best positioned to maximize any such sale proceeds. They also indicated that if our secured claim was upheld after a trial in bankruptcy (which seemed likely to us), then the estate would get nothing.

On July 30, 2007, Judge Cristol approved our proposed settlement. The Court wanted assurances from Fred that he would do his best to market and sell the asset for the benefit of the bankruptcy estate and all of its creditors. Holding back tears, Fred (who has never experienced any real sense of victory in this matter) thanked the Court for approving the settlement agreement, and he promised to do his best to publish and sell the book, or monetize the asset, as we lawyers sometimes say. Fred and Kim have also promised to donate a portion of proceeds from the sale of the book to the Ron Goldman Foundation for Justice, to help other victims and their families.

So that, in a not-so-brief manner, is how and why we got here. We were never quite sure of the end result (at least I wasn’t), but we felt that the Law would lead us to some appropriate destination. Perhaps the publication and sale of the book will generate sufficient income to compensate Fred, the bankruptcy estate, and the Browns; perhaps it will not. As you can see, many lawyers and others will also be entitled to some measure of compensation, including the publisher, a literary agent, and your’s truly, along with the Foundation. In the end, Fred and Kim will get a share of whatever is generated, along with everybody else. They will not, however, get 90% of the proceeds, as some appear to believe. Their share will be much smaller than that, but hopefully it will be significant. They deserve it.

It has been said that evil triumphs when good people do nothing. We have done all that we can, and we have done it to the best of our abilities. Regardless of the outcome, I am proud of our efforts. We had a very good team.

If I Did It is available at these and other fine retailers: