The courtroom battle over regulatory goodwill is quickly becoming the banking industry's equivalent of the O.J. Simpson trial.
Observers said the goodwill case, like the famous California trial of the former football star, has gotten bogged down by a judge who has lost control of his courtroom, by plaintiffs obsessed with getting every detail into the record, and by a defense committed to lengthy cross-examinations and frequent objections.
The result: a trial originally slated to take three weeks has now entered its fifth month and closing arguments are not expected until October. In fact, the plaintiff is still presenting its case, with at least three more witnesses scheduled.
"This trial should be over," said one lawyer following the case. "It is inexcusable that this case has dragged on so long."
The goodwill cases date back to the thrift crisis of the 1980s. Glendale Federal Bank and about 100 other thrifts agreed to acquire ailing institutions in exchange for regulatory goodwill, which is the difference between the value of the sick thrift's assets and liabilities.
The government voided these contracts in 1991, forcing scores of thrifts to write off goodwill in five years. As a result, many of the thrifts either failed or suffered major losses.
The thrifts sued for breach of contract. The Supreme Court last year agreed, finding the government liable. It ordered the U.S. Court of Federal Claims to decide how much each thrift deserves. Glendale alone is seeking $1 billion.
One of the biggest impediments to a fast-moving trial has been Chief Judge Loren A. Smith of the claims court. Observers said he has allowed both sides too much leeway in presenting duplicative evidence and asking repetitive questions.
"It is a style thing," a second lawyer said. "Some judges are real dictators, while others let everything in so the losers cannot complain after the opinion comes down. Judge Smith gives everyone an opportunity to put in everything they want to."
The judge also has suffered from two medical crises since the trial began in February. The more serious occurred this spring, when he suffered heart trouble. Although a spokesman for Judge Smith did not return calls, the judge has said in open court that he has begun taking medication. The ailment caused a several-week delay shortly after the trial began and continues to cause smaller delays.
The judge also suffers from gout, a type of arthritis that results in highly inflamed joints. That condition got so bad last week that the judge was forced to delay the trial's start one day until 1:20 p.m. "I'm on three Advil every four hours," the judge said when things finally got started.
Despite the judge's woes, observers said the trial could have been over by now if Glendale had not insisted on getting every minor detail into the record. "The plaintiffs are erring on the side of over-inclusion," one lawyer complained.
The government isn't any less detail-oriented. It has spent days cross- examining witnesses, going over their direct testimony with such a fine- toothed comb that some observers are questioning whether they just want to drag the trial out.
"The defendants are taking an incredible amount of time on cross- examination," a second lawyer said. "This is not entirely a Glendale problem."
Just how bad is it? Glendale chief executive Stephen Trafton alone spent 11 days on the witness stand, five on direct examination and six on cross- examination.
The slow pace already has delayed the start of other goodwill cases, including the trial in the so-called Statesman case, originally set for spring. That trial is not expected to start until late fall or early winter. The goodwill trials for 10 so-called "priority cases" will not begin until 1998, about six months later than originally scheduled.
