Lawyers around the nation interested in the courtroom debate couldn't discern whether the journal entry was particularly damning or innocent. But lawyers and business experts agreed that it was a highly unusual look into a senior executive's thoughts during a stressful situation. Such an intimate glimpse in a journal is also rare, given that Capellas and other senior executives are likely to have received hours of training from company attorneys. In general, attorneys and their trainers recommend that senior executives refrain from writing or publicly stating negative, definitive emotions precisely because they could be subpoenaed or leaked to third parties -- and misconstrued by opposing legal counsel. "Unfortunately, an innocent remark written at the time, when viewed in hindsight, can be made into something it was not intended to be by a skillful trial attorney," said Scott Vernick, a trial attorney who counsels and represents attorneys and law firms in legal ethics for the Philadelphia office of Fox Rothschild O'Brien & Frankel. "You must understand that litigation is as much a part of business as effective communication or anything else, and you should be mindful that at some point your writing could be subpoenaed," Vernick said. The journal entry was the latest in a string of embarrassing peeks inside what could become the largest merger -- or largest collapsed merger --in the computer industry. Because of Walter Hewlett's vocal opposition to the merger and antimerger sentiment from a number of large shareholders and employees, executives faced enormous pressure to drum up support earlier this year. Meanwhile, the media has been scrutinising every twist and turn in the drama -- in some cases publicising embarrassing comments never meant to be public. Earlier this month, the San Jose Mercury News reported that HP chief Carly Fiorina left a voicemail to Wayman two days before the shareholder vote stating that the company might "have to do something extraordinary" to sway two large stakeholders to approve the deal. Open to interpretation
Hewlett's attorneys and others interpreted the voicemail to mean that HP improperly influenced an institutional shareholder by holding its banking relationship with the company as leverage. Wayman then scrambled to deny the charge, branding the mere allegations "both insulting and infuriating." Cynics might argue that Capellas and other top executives publicly advocated the deal, regardless of their private misgivings, simply to fatten their nest eggs. Although compensation figures for top executives have not been finalised, Hewlett revealed a proposed compensation package in February that could have netted Fiorina and Capellas more than $115m combined, in the event that the deal was completed. Others said the remark could have been a totally innocent jotting. "What it seems to imply or connote (is) that if we continue the way we're going, we're not going get the votes we need to merge with HP," said Warren Bennis, a professor and leadership expert at the University of Southern California's Marshall School of Business. "What is either damaging or helpful about that statement? Sounds to me like a reflective midcourse question about how things are going," Bennis said. "I have no idea -- and leave it to those who get a kick of trying to make sense of legal arcane -- how that would help or hinder the Compaq-HP merger." Legal experts say the bizarre entry should be a lesson for all executives in careful note taking. Judges and juries often give extra credence to journal entries or other statements provided in the midst of struggle -- particularly as lawyers are showing a willingness to subpoena email and instant messages. Such written or taped testimony typically carries more weight than subsequent testimony on the witness stand, when executives have had more coaching and come off as more polished and less genuine. "People aren't thinking about being sued or being witnesses in lawsuits, so they don't worry about what they write in email or in a journal," said Robert M. Bloom, a law professor at Boston College Law School. "Maybe these kinds of cases that get all this publicity force people to think twice. If you anticipate litigation, you'll be careful."
For a round-up of the latest tech business coverage, see the Business News Section.
Have your say instantly, and see what others have said. Go to the ZDNet news forum.
Let the editors know what you think in the Mailroom.
