Do Not Write on the Evidence

How many times has a client come in with a great piece of evidence only to find it is ruined because they have indelibly added their testimony to the face of it in blue or black ink. It is as if the intense need to control events blots out any kind of judgment they might have had, or restraint to action until they can get some legal advice.

A letter might have proved their point, but who can say who is the author of all the rest of the commentary?document

I can hear the objection already, the document is not authentic because the author is undetermined.

Or in the case of a bank statement which was certainly produced by the bank, but who wrote “Uncle Charlie told me I was supposed to get this!!!” on the face of it?

 

 

I have vivid memories of a judge examining the offered exhibit then angrily declaring “Some one has written all over it!” knowing that someone was seated at counsel table next to me.

 

Objection Sustained.mean judge

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Family Law Tip: Do Not Bring the Subject Matter to Court

This may sound fairly obvious but if you are litigating over children, the judge does not need to see them. They have a pretty good idea of what children look like, some of them are even parents. They will not be swayed by who is holding the subject matter.

babes in arms

I am just back from the family law motions calendar and found as many babes in arms as there were lawyers and litigants.

One boy was a bit older, and was waiting out in the hall with his aunt presumably. He had a toy gun, which he aimed and fired at everyone.
boy with assault touy
We have security, how did he get that thing into the courthouse? security at the courthouse

All Things Being Equal

I saw this bumper sticker in Seattle yesterday.

equality

I am a student of how far that love goes. I mean, should we put weights on the flamenco dancer so I can keep up with her? flamenco guitar and dancer

Or take hiring a lawyer for example. Do you really want him to be an equal? I seriously doubt this, but I have to say, there are multiple occasions where I have been asked to buy into my clients emotional state as the place from which decisions are taken, rather than remaining the objective advocate I think the client wants.

Sometimes I have a guy come in and tell me he “has a great case” and goes on to demonstrate with remarkable detail why we are not equals and the law school education and 30 years of experience really does mean something.

Note I do not say lawyers are better than their clients, but they rarely think like a lawyer and if they could they probably wouldn’t be in my office.

If I could write down how to think like a lawyer I would but here is the best I can do:

What a lawyer has to do is sort out the wheat from the chaff.
wheat thresher
I am not sure that would fit on a bumper sticker, and our task cannot be diluted into a catchy, likable sound byte but here are the facts:

When the client arrives with the plan for what the lawyer, like a chess piece, is to do it is the job of the lawyer to decide what to do, and disregard the directions from the less experienced client, as all things are not equal, unfortunately.

The Power of Myth at Death

Neptune
What ends up happening with a mans estate is often just a question of how strongly a myth about “what ought to be” is held by those who survive him, rather than what it says in black and white in the will.

This goes far beyond the “what Dad really wanted” comment I hear, literally, every day in my office and am powerless to use as evidence.

images rolling rock

Instead I refer to the mythical powers people assume they have upon the death of another. Conduct they would never dream of adopting when the man was alive suddenly becomes the standard for these new demi-gods.

centaur

First it is the personal property that disappears. The thought process must be “He doesn’t need this any more” or the more morally justified “I better take this for safekeeping”.

What disappears? Guns of course, jewelry ( often a ring ), watches and other valuables but even step stools and kitchen knives. I am not making this up. The Ring

Next comes the money. Often people claim to have been told by the decedent the life insurance is “for” someone else than is named in the policy. This may be true but it is a myth that the benefactor will do the right thing every time without a trust actually being drafted.
Frodo

Worse is the personal representative ( or executor ) who, upon gaining access to the funds of the departed become a Gollum-like creature, cursed with the evil ring that bends the mind to the dark side and a bright side; a schizophrenic.
gollum

On the surface Gollum is a fiduciary taking great care of the estate. But alone, the personal representative assumes special powers which, after making certain incantations, can rationalize use of the funds of the estate for personal purposes while the rest of the heirs sleep through the process.
wizard
Often myth infects those waiting for the money. Memories of how the personal representative behaved on any given occasion in the near or distant past which might imply a likely failure to act with strict adherence to the terms of the will and duties imposed by law somehow become fact, and extrapolated into current, on going theft of the estate.

Gollum 5

But this is not without some basis, even if it is not theft that occurs. For example other myth frequently encountered is that a “good person” who is named as personal representative is not necessarily up to the task of managing not only the assets of the estate timely, but also managing the other myths the heirs named in the will have preloaded into their minds which activate as the news of the death spreads.
Frodo 2

Objectivity is often the first casualty in probate. If you happened to be named personal representative of an estate in a will, take a deep breath and consider the evidence before you, not the bias of your mind. Also consider declining the appointment. Stay in the Shire, away from the ring.

Juror Number 12 Never Returned, No She Never Returned

I read an article in my hometown newspaper today about juror misconduct leading to the guilty getting away with crime.

In one case the jury had deliberated for 2 hours and decided to take a break. Juror #12 never returned, the entire trial was over with no verdict, a mistrial. Now the state has to decide whether to spend the states resources to prosecute or cut the accused a deal. I am betting on the latter because that is what happened in another case of juror misconduct.

In the second case the accused was charged with a sex crime against his own daughter. The juror decided to conduct his own internet research on the nature of these cases at home during the trial. This effort to enhance what competent evidence was adduced at trial cost the state the verdict and meant the 6-year-old would have to testify all over again. After all the man has a right to face his accuser, twice it seems.

Instead the guilty plead to a lower charge and will spend about a third of the time in prison he would have otherwise spent.

 We doctors of the law spend a lot of time with the Rules of Evidence. We are careful about making sure the evidence is trustworthy, and candidly, we don’t really need any help. Some of the least trustworthy evidence I have seen is what someone decides to post on the internet, free from the vigor of cross-examination.

Like the Rules of Evidence, our system of laws has been developed over generations to be as fair and competent as possible. We need 12 good citizens to believe in that system and make a decision based on what they hear.

But good citizens seem to be in short supply. We are apparently so full of our rights we need not care about our civic duties.

Meanwhile I hope Juror #12 had a good afternoon because no one else did, she never returned and her fate is yet unlearned. It is good I am not deciding what to do about Juror #12.

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.

Dad Wanted Me To Have That Speedometer

Shortly after a death personal property of the decedant t starts to disappear. This is not pursuant to a will,  or any court order. Instead it is some knob that is turned in the mind of the people who “knew him well” they all say, followed by “he wanted me to have this speedometer” or whatever.

What they really mean is “he doesn’t need this anymore and I want it”.

Most wills in our state have a provision for a list to found with the will at death declaring who is to get what after the author dies. The list has to be dated and signed but not witnessed, which is an exception to the normal wills acts formalities. Even so, no matter how easy the law is to follow most of the time people do not fill out the list and this leads to all kinds of mischief.

Instead things tend to evaporate causing friction among those of us left behind. Some of what is fought over is of little value, take this speedometer for example. I literally spent a day trying to prove the existence of old car parts and tools, as the decedant had left a large tract of land littered with old junked cars and the parts to go in them. This proved fruitless, let alone who entered the property and removed this speedometer to some “classic” auto which was still rusting there on the lot.

It is much harder it seems to remove a car that will not start and is covered in blackberry vines than a speedometer that is supposed to be entombed with the car.

It’s madness really. Stuff that was junk before the man died is now some prize to covet and obtain by any means and at any price. I was paid my fee for the effort. We lost.

Dad Wanted Me to Have This

I have literally fought in court over this speedometer