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Mr. Cravens' testimony at the trial of the test cases was
brief. Mr. Cravens testified that he participated in stock
subscription programs in 1979 (Candace) and 1980 (Delta).
Mr. Cravens testified that he participated in the Kersting
programs mainly for the tax benefits; he did not offer any other
motivation for his participation. Mr. Cravens did not testify
regarding the validity of his promissory notes or his level of
sophistication as an investor. Mr. Cravens testified that he
closed out his participation in the Kersting programs by
endorsing his stock certificates and returning them to Mr.
Kersting in exchange for his promissory notes.
Although we believe that Mr. Cravens' testimony at the trial
of the test cases was truthful in all material respects, we do
believe that counsel could have assisted Mr. Cravens in
presenting a more detailed and better organized case,
particularly with regard to Mr. Cravens' motivation for
participating in Mr. Kersting's programs and Mr. Cravens' view of
the validity of his promissory notes.
We have also found that Messrs. Sims and McWade misled the
Court and the remaining parties to these cases by not disclosing
the Cravens settlement before the trial of the test cases. We
recognize that Judge Goffe might have removed the Cravens cases
from the test case array had he been informed of their settlement
before the trial. Indeed, an argument can be made that Judge
Goffe would have removed the Cravens cases from the test case
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