The E Will; It’s Not that Easy Being Green

The term “Green” has come to mean a consciousness about our impacts on the environment. When applied to law I am afraid “Green” also means naive.

A “Green” person looks for of opportunities to save trees. The latest is to not printing wills on paper, instead create and verify them somehow on-screen.

At least one state, Nevada, has legislated a means to sign a will without ever picking up a pen. Instead electronic signature is allowed. They have something called the Nevada Lockbox for wills and other documents that are not in original form anywhere else.

This is also “Green” in terms of lack of experience with fraud. Forgive my conservative nature but I see this development as a means to encourage self-help inheritance.

Back when the term “software” was new and “hardware” was something you bought on Saturday for home repairs, our firm had a case where a document damaging to our client surfaced during litigation. It was drafted on a computer and an ostensible cursive signature of our client endorsed the same.

Our client swore that was not her handwriting. It wasnt. Instead it belonged to an early version of the Word program but we were too inexperienced to know the difference. We had to call an expert witness to disprove the document.

I wonder if we would have to call that expert now? Probably not, as we are not that “Green”.

Men, Women and Executrix

Because equality is fashionable now, the law has drained the gender out of everything, even death. No longer is a woman making a will called a Testatrix. Sorry ladies, we are all Testators now. No longer is her husband the Executor of the will. Or if the roles are reversed and he dies appointing his wife the Executrix in his will that name is buried with him.

Instead after we die we appoint a “personal representative”, an androgynous person who is not allowed to cry or be remotely human. We are all faceless government functionaries now carrying out the acts of administration and winding up the estate.

This is what our legislature does with it’s time; rooting out every possible reference to a bit of remaining individuality that is gender. Once doing research I found a statue had been amended, and clicked the hyper link to see what had changed. I stumbled upon a document listing the effort someone in our budget strapped state to take the “he” and “she” out of every statute in the state in favor of androgyny.

It’s almost Stalinist, rewriting history to fit the current power structure. The amendments went on for several pages, single spaced, line after line listing code section after code section so revised. Right, this is an important task someone carried out?

My clients still use gender terms like Executrix, and I allow it in the privacy of my office. Our conversations are confidential and privileged so there is little chance any of them will be denounced as sexist.

Image by Thurber, used apparently with permission.

Night of the Living Trust

What seemed like a good idea at one point often becomes an unwanted “person” that lives on and makes everyone miserable.  Like Zombies, trusts that have outlived their usefulness need to die, but because the residual beneficiaries may not like the idea of a trust being killed off in favor of the person who wrote it to begin with, the Trustor, the resolution of its life moves slowly and infects people with despair. It also infects them with a dislike of lawyers and the entire complex business of dying. Why cant it just be simple? Because it isn’t.

Often the lawyer wrote this thing but they had good reason to; the client came in certain this is what they wanted. Just as often and perhaps more likely they never consulted a lawyer who might have persuaded them that the effort of a living trust is too much. For example usually people forget to put everything they buy into the trust defeating a purpose of avoiding probate.

Most tragically the do it yourself Trustor may forget to make this a revocable trust, meaning the family members obtain a real interest in the property they are residual beneficiaries of when he funds the trust, even before the Trustor dies. This means they all own a piece of the living trust. The remedy is to get everyone to agree to give the property back to the man who made the mistake in the first place.

But lo, there may be a beneficiary out there not willing to let go and hence, we experience the horror of the Zombie Trust.

Be afraid, be very afraid.

The Courthouse Blues

There are two kinds of people to be found in the courthouse: Those on their way to hearings, and those emerging from hearings. It is not unlike a hospital.

Entering either building the litigant or patient is apprehensive or they are overconfident. Some presume the death penalty. Some do not appreciate the peril they are in. All are hopelessly at the mercy of the lawyers or doctors.

Leaving the buildings there is either relief, increased anxiety or profound sorrow.

But the courthouse alone can in one day change the balance of power between litigants. Often the litigant arrives with a smugness, a sense of entitlement or self-righteousness that never plays well. Humility, expressed in pleadings, appearance or speech can go a long way. Unfortunately this is considered unduly meek by some, and they do not even consider they might be wrong.

Emerging from the hearings we hear the long wail of those who have lost. Think of the painting The Scream by Munch.  Or there is the rush outside, the cigarette poked in the mouth and hurriedly lit, family and friends trailing behind.

Like a soldier that has seen too much, I am no longer moved when a woman loses custody of her children. Normally this is because either the father is just a better parent, but more often because the mother has presumed she is “free” and can do just about anything and still retain her children.

It is no longer so. Our state adopted an equal rights amendment to our state constitution when it was fashionable to do so, 1972. The amendment also declares the sexes have equal responsibility.

You have come a long way baby. You have an equal right to the courthouse blues.

Lawyers Never Retire

Lawyers Never Retire. Lawyers spend a week at most in this scene, then return to being lawyers.

My father has been retired now for 10 years. But as soon as he left the office, he somehow managed a desk at the city attorneys office. When there was a car – bus accident he would defend the bus.

He finally gave up that desk a couple years ago. But he still is working; not at a desk, but the mind keeps going.

On the way to the Mariners game this weekend he told me he was having dreams still about practicing. There is a reoccurring dream he and all lawyers have. They are in court and totally unprepared.

Members of the bench have mentioned to me that is no dream, that is the state of the bar now. You see that a lot I am afraid, among the latest generation of lawyers. Perhaps they will retire, or be forced to.

Lawyers never retire, but perhaps it is best to leave the litigation to someone else, and try to get some sleep.