Sonics questions remain

Given the fate of the Sonics' future in Seattle now lies in the hands of Marsha Pechman, it's impossible not to wonder what the U.S. District Court judge was thinking as she sat through the six-day trial between the team's Oklahoma City ownership group and the city of Seattle.

Judging which way a judge might be leaning is difficult, however. Pechman gave few clues during the 30 hours of testimony, but one intriguing difference was the number of questions she posed to the opposing lawyers during closing arguments Thursday.

Pechman seemed particularly intent on pinning down Paul Lawrence, lead attorney for the city, as she engaged him at length on 10 different topics during his closing.

On the flip side, Pechman interrupted PBC attorney Brad Keller three times during his finale.

While judges never ask questions during closing arguments of a jury trial, it is common to break in during a bench trial where the judge wants specific responses. Pechman not only supplied the attorneys with questions before closing arguments, she also weighed in during the arguments with numerous queries.

Lawrence declined to comment on any aspect of Pechman's questions after the trial, and Keller remained off limits on all topics to the media throughout. But lawyers not affiliated with the case say it's unwise to assume anything from the way a judge responds during closings.

Sometimes judges will actually ask more questions of the side they're favoring, looking for the attorney to help fill in the gaps on any uncertainties before writing their decisions.

Or judges ask more questions because they are troubled by one party's position and want to explore holes in their case.

So while it's impossible to infer which way Pechman was leaning as the trial wrapped up, it is interesting to look at the issues she raised with each side.

Pechman seemed particularly pointed in pushing Lawrence about former Sen. Slade Gorton's dual role in the situation, as well as whether Mayor Greg Nickels would be able to work with Sonics chairman Clay Bennett if she forced the two parties to remain together for two more years.

Pechman clearly is concerned about the "dysfunctional relationship" charge by the PBC, which is one of the major defenses against a specific enforcement ruling. The judge said she's not thinking about minor issues between the two parties concerning ticket sales and concession prices, but the sort of ugly feuds raised by the trial lawyers.

"What I'm worried about," she said, "is are we going to have an ongoing allegation about the city undermining its tenant by plotting to have someone else buy them out, forcing them to increase loss, going to the NBA and undermining their business position or leaking their secrets?

"I would like to know how I can be assured that we're not going to be back here with those kinds of problems."

Lawrence said Nickels and Bennett are both sophisticated businessmen who would get along just fine once the lease issue was settled. Pechman responded by noting it's not very sophisticated when two people "go to their own corners and refuse to talk with one another."

After Lawrence suggested Nickels was merely sticking to his agenda of promoting KeyArena as a solution and refusing to talk with Bennett if he wasn't of the same mind, Pechman got down to basics.

Pechman: Mr. Lawrence, answer my question.

Lawrence: I'm trying to.

Pechman: Did the mayor ever call Mr. Bennett back and say let's sit down, let's talk about this and see what we can do?

Lawrence: The mayor ...

Pechman: I didn't hear it.

Lawrence: The mayor's position has been consistent that he's willing to talk about -- the only thing he's willing to talk about is something that would allow the Sonics to stay through the end of the lease and hopefully something future going forward. Since that was not a discussion that Mr. Bennett was willing to have there was no discussion.

Pechman: So the answer to my question is no?

Lawrence: Not -- the mayor was not willing to sit down and discuss an early exit, correct.

Pechman: Let's move on.

The judge seemed equally stern in noting Gorton violated a confidentiality agreement with the NBA after meeting with league officials and Bennett's representatives Oct. 15 in New York about the the city of Seattle's KeyArena proposals.

Less than 24 hours later, Gorton, already employed as the city's lead counsel for K&L Gates, sent an e-mail to former team president Wally Walker and a group of private investors that was seeking to force Bennett to sell the team, filling them in on the NBA meeting.

After confronting fellow K&L Gates attorney Lawrence about that situation, Pechman asked if the one way to "ameliorate the harm here to the Sonics is to sever your ties with the city" if she were to award specific performance, thus suggesting she is looking at ways to enforce the lease despite the "unclean hands" conflict.

"That would be entirely within your discretion," said Lawrence, noting the City Attorney's Office could readily assume further legal oversight.

Pechman also quizzed Lawrence about whether or not the maintenance obligation in the lease meant the city needed to maintain KeyArena as a "viable venue." The lawyer responded by saying that agreement just required keeping the facility in good repair, not at some "state-of-the-art" NBA level.

The two engaged in a lively debate over the role of "sentimentality," given the city wants to strictly enforce the lease, but also is arguing the fans' love for the team is part of the package.

"Can a corporate entity have sentiment?" Pechman wondered. "I understand that the fans do. We have spent a lot of time and the fans obviously feel they have a stake in this. But in fact, the fans aren't parties to the lease. And I don't think you're going to find anything in there about the fans. So if you want me to stick to the lease, is that really something that I should be looking at? I don't know that there is such a thing as corporate tears."

Lawrence responded by arguing the city is a public entity that differs from a corporation in that its purpose isn't to make money, but to provide benefits to citizens.

When it came time for Keller's closing, Pechman largely let the lawyer run with his thoughts. She did interrupt early to ask whether he felt the PBC owed the city any obligation for the remaining five years of debt on KeyArena's bonds that would remain after 2009-10.

Keller said no, unless the rent obligation agreed to subsequently was sufficient to cover the leftover debt, which he didn't expect given PBC's estimate of $9 million to $10 million owed compared to the current arena debt of $35 million.

In that vein, Pechman later wondered about her position if she did agree to let the Sonics go in exchange for a lease payment that would be considerably less than the $26.5 million buyout already offered by Bennett.

"Is it up to me to tell the city leadership you're asking for a bad bargain? That's not my role, is it?" she asked.

"No," Keller said. "Your role is to determine whether under the facts of this case specific performance is an available remedy. And if the answer is no, well, they are going to have to revisit what their approach was to that buyout offer."

Pechman's final question to the PBC counsel concerned whether he disagreed that Seattle had a right to file suit to enforce its lease, given his arguments that city leaders are using the lawsuit to force Bennett to sell.

"Does it have the right to try and work with the tenant to get the tenant to stay longer? Of course it does," Keller said. "But if the tenant doesn't want to because it believes ... the arena is inadequate both existing and renovated, it has no right to force its tenant to sell or engage in any course of conduct that is designed to try and accomplish that end.

"And when you do that you go over the line from a proper purpose to an improper purpose. And when you join hands and actively become complicit with others to engage in acts to effectuate that improper end you go from what is just a lawful exercise of a legal right and cross over into the world of unclean hands and improper behavior."

Pechman will issue her ruling Wednesday at 4 p.m.