Evidence : As Seen on TV

There are no rules of evidence on television but that is where most folks learn to practice law.

On television lawyers can do anything, present anything and say anything and the judge always follows the script. The problem of evidence in real courtrooms is that this is not television and what may be admissible in fiction may not be admissible in a real court.

If you think about it Rules of Evidence are important so the fate of people and their property are not just a question of emotion or prejudice or the right scriptwriter, and instead their fate is based on what is reliable, or authentic, or can withstand a good questioning.

People come to me with their opinions and declare it to be evidence. Bits of paper that may support their position become facts set in stone when handled by them, but go up like so much smoke when marked by the clerk, offered as evidence then objected to on any number of basis; hearsay, authentication, the best evidence rule, the list goes on.

Then they get mad. Well fine, be mad, but what you see on TV is not evidence.

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A Six Pack of Lawyer

My client is getting divorced from her husband who works at Costco. He has a sizable retirement account which we must divide by “qualified domestic relations order”, or “QDRO”.

What this does is segregate money to her own account which she would own free and clear when the divorce enters and without tax consequences. Of course Costco, like any other company, has a say about what the order looks like. It is common that we more or less follow whatever rules the given company may want to impose on how this gets divided.

Costco is the first company I have seen that actually charges the couple for the task of reviewing the order for accuracy.

This has led me to question what this is going to cost. I wonder whether the Costco lawyers come in multi-packs, shrink wrapped together and on a pallet. Individually the lawyer is not that expensive, but a six-pack of lawyer taken all at once the fees tend to add up.

I am glad they take American Express. My firm does too, but you can see us one lawyer at a time.

Another Myth: The Right Lawyer can Win

Nope. not true. The lawyer cannot change the facts. Nor can he or she change the law. At best they can persuade. Here is something Aristotle taught me about persuasiveness (Yes, I am old enough to have known him personally):

What you want to persuade the court to do must be logos or logical.

What you want to persuade the court to do must be ethos or ethical.

What you want to persuade the court to do must be pathos or likable.

WHAT? The court has to like what they do? That’s right ladies and gentlemen we have to count the Judge’s emotions, reactions, take aways or whatever you want to call that have a dramatic impact on your case. I recall one chambers conference where my father was discussing possible outcomes in the case when the judge said to him “I wouldn’t do that even if I liked your client”. I am not making this up.

So, the right lawyer cannot change the outcome of the case. But the wrong lawyer can certainly lose it. Is the lawyer you might hire logical, ethical and likeable? Do they seem to be on a mission or really interested in your case?

And candidly ask yourself, do you think your case is logical? Is it ethical? Do you think it is likable?

Pathos. Think about it.

Its the Lawyer’s Fault

I was fired today. So were the other lawyers working on an estate. I believe the perception is we were making the simple will complex. Mind you, this was day two of the estate for this lawman, and just a few weeks after the probate was opened.

The problem originates with how we count money; yours, mine or ours? In lawyers terms; your separate property, my separate property or community property. Depending on what chair you sit in the perception is different.

Now that is an educated comment. Now instead the estate will be divided on the basis of ignorance, force of personality, and power structures in the departed’s family. Might makes right.

Never you mind that. It is the lawyers fault for pointing out the law.  Shame on us for charging a fee to help them. From the chair they sit in the perception is all lawyers are just there to use up the estate.

Not so. Most of the estates lawyers I practice with or against are second generation lawyers not really in it for a quick buck. That was the case today.

Recently I was asked how long has it been that a non-lawyer could just go to court and explain his side and have the judge make a ruling without the assistance of counsel. “About a thousand years” I said. Sure you can go, but the number of trip wires that have been laid down in front of you are so numerous you will not recognize yourself or your case on the other side.

Here is how this happened. We The People make a rule, but the rule doesn’t seem right in all circumstances, so We The People start erecting exceptions to the rule and before you know it, it is so criss crossed and cratered you do not really know what it means. If you have any doubt try reading the tax code.

You can blame it on the lawyers if you want. Frankly I was a bit surprised Jimmy Buffett didn’t blame it on us rather than a woman in his famous tune Margaritaville.

Some people claim there’s a lawyer to blame,

But I know, its my own damn fault.

After Death Facebook Lives On

Todd Pack is to be thanked for this issue, his blog post this past week is entitled “What Happens to Our Facebook Account After We Die?”

The comments following the post describe a litany of unintended events both by the team at Facebook as well as the individual subscriber, who is now across the Great Divide and cannot now edit the profile. Like everything else that a dead person has an interest in here on earth, they fall into the control of your personal representative as soon as some probate court admits your will to probate.

I guess I will call the dead man’s interest in his Facebook page a “license” but I am sure the people who practice in the field of “intellectual property” ( yes that is what it is called ) might have a more elegant name for what Mark Zuckerberg hath begotten. Instead Facebook is there for us all to use, as long as we follow the rules. Given that Mr. Zuckerberg is only 27 years old today, I doubt he has given much thought to death and what the rules will be then.

One woman describes how her mother passed in 2007, she developed a profile in 2008 on Facebook, and then started getting requests she “friend” her dead mother.

For me the “autocomplete” feature of the software tears the bandage off each time I am writing to my surviving friends about the loss of our close friend Doug, then the sentence automatically spells out his name and a picture of his once happy family. The ostensible purpose is to ask me to include him in the discussion. Yes Mr. Zuckerberg, I would love to have another conversation with Doug, but I have a few years left thank you.

Meanwhile the other social networks are not any better. Linkedin sent me a solicitation to connect with Doug recently as well. I am thinking of Mary Todd Lincoln and seances held to have contact with her lost son in the White House might have had better luck.

So what to do? One commentator to Mr. Pack’s posts suggests directing the personal representative of the will  go about the process of winding these things up. This is a good idea, but I suspect the Letters Testamentary issued by our state court may not be recognized in Massachusetts, or wherever Facebook seems to be headquartered. The company, unlike it’s product, is not public.

Lets try it. At worse this latest generation of billionaires will ignore us and thoughtlessly interrupt our efforts at closure.

There is Nothing Simple About a Simple Will

I hear this every day, “we just need a simple will”. Listen up folks this is not that Jeffersonian America where we all exist as simple farmers who gather after the harvest is in to debate how our democracy should function then vote before planting time.

That simple America is what we all want but we just do not have. Any one with a retirement account of any kind and children needs to talk to a lawyer about whether or how this yet to be taxed asset should be handled in some kind of an estate plan that recognizes the reality of what you are leaving your kids or your spouse whether you know it or not.

Often I learn there are preset designations in retirement plans made part of the fine print of an employment contract you never read that takes control of the disposition of your retirement at death no matter what your Will says. Sometimes you can change it. Sometimes you can’t. Probably better to know when.

But we don’t want to know. Nor do you want to know what happens with the time share in Hawaii can’t be moved by the probate court in the other 49 states to the people you name in the will and a second probate might need to be filed there.

You really don’t want to know when and when not to use a will substitute like Revocable Living Trust, if you believe  you “just need a simple will”.

When I use the term “myth”, I don’t mean something that is false or a lie. When I use the term “myth” it is in the same spirit as the Greeks. A myth is how we explain ourselves. It answers the “why” in “why are things the way they are?”.

We want to live that Jeffersonian myth of plain folk who do the work of living and loving until they die and leave the world a better place for their kin and friends than when they arrived. Diving into the reality of how a marriage changes things, a divorce really changes things, that child you never adopted but raised changes things from how you would want it to be, or how your hard work will be bled away by a tax scheme that seems to punish your industry, all tends to make a mess of the American Myth.

“Besides, lawyers are expensive and we can’t afford it”.  Yes you can. My fees are flat for estate planning to encourage problem solving before there is real cost. If you want to see expensive, try estate litigation which heats up when the will isn’t right. That is where I more or less make a living, cleaning up the messes left by those who sought to live that American myth that we are a simple people without complex problems.

Ok, that’s enough for now. I gotta go.