“I’m somewhat like a detective,” says Steve Strauss. “The part of the litigation job I like is to go back and study the facts of the transaction, the drafts, and the communications to see if there’s evidence that would support the interpretation that the client wants to prevail.”

Strauss, head of litigation practice for Procopio, Cory, Hargreaves & Savitch, has been hired as outside litigation counsel by the city of San Diego to turn his magnifying glass on the controversial “trigger clause” that allows the Chargers to shop the football team to other locales. Strauss garnered one of the largest jury awards ever in the state of Arizona, $40.1 million, while representing The Pointe resort and Gosnell Builders in a breach of partnership case. He also is on the board of the Junior Seau Foundation.

With the Chargers’ residence, a prime piece of San Diego real estate, and more than a few political futures hanging in the balance, Strauss is tight-lipped when asked to comment on the issues and likely outcomes.

“I’ve been hired to protect and defend if necessary the city’s rights and interests in the city’s dispute with the Chargers. There’s no idea yet if this will end up in litigation or not. Hopefully it won’t,” he says. “As to specific strategies and issues, I can’t talk about that.”

By most accounts, the Chargers’ ability to trigger their out clause is determined by showing “hardship,” which is in turn determined by resort to revenue formulas known only to the Chargers and the National Football League. The apparent ambiguity is what the city and Strauss may have to litigate to decide whether they can litigate to enforce the Chargers’ contract with the city.

Whether the Chargers or the city ultimately prevail, attorneys not directly involved with the case say the dispute serves as a cautionary tale of how not to draft a contract.

“Out clauses vary,” says Fish & Richardson’s Eddie Rodriguez. “The Chargers’ out clause was based on revenue figures and a formula that apparently the Chargers and the NFL get to determine without the city’s input, which is a little surprising. The key for companies negotiating transactions is to make sure the out clauses are fairly well defined.”

Luce Forward Hamilton & Scripps’ Blake Allen says the key to drafting a litigation-proof out clause is to tie the triggering event to a concrete event, such as a stock price, for example, that can be verified by a third party.

“The way the trigger clause is structured, it’s largely controlled by the Chargers and the NFL, which is not something you want to do,” Allen says. “You typically don’t want a clause to be within the control of the parties. To find out if this trigger clause has been legally triggered, you have to audit the Chargers, and go to the NFL and obtain lots of internal documentation. You have to have litigation to find out whether to have litigation. Your goal is to have something that’s easy. This is so complex that you can’t readily determine what’s going on.”

Allen and Sheppard Mullin’s Frank Johnson agree that when a contract confers benefits primarily to one party in the early years, one might expect the benefited party will want to get out once they’ve had the dessert, such as a ticket guarantee period that is 60 percent complete.

“If there was a clever attorney who drafted an out clause, if you’ve got a right to exercise that out clause, that’s something that should have (been) foreseen,” says Johnson. “What I suspect happened is that (the Chargers) are saying that the ability to get out is subject to their interpretation of that clause.”

Rodriguez, Allen and Johnson caution that their opinions are for educational use only. Or as Rodriguez put it, “I haven’t been following the case too closely because I’m frankly a Raider fan.”

— Richard Acello