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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It’s “Moot”, not “Mute”

People come to see me it seems, just to use this word. Then they botch it. Once in my office they try to work the conversation around so they can say “moot”.

Most of the time when they get to that crescendo moment where they get to use the legal term they invariably say “mute”, like the button in the lower right corner of the television remote control.

Example:

tv remote

If the other side gives up then the whole thing is mute, right?

After which I am tempted to merely mouth words but offer no sound to illustrate the errata. But I merely nod and move on.

Errata. Now there is legal term I wished more lay people recognized.

The Estate of Elvis

Well of course there had to be a lawsuit when Elvis passed.

elvis

His will referenced “lawful” children being beneficiaries of his testamentary trust. Now who would that be? Children born during his marriage, certainly. Those adopted, OK, but there were none.

elvis and lisa marie

What about those Elvis may have sired on tour and never claimed? What if Elvis dies before a paternity action can be brought?

elvis in concert

Well as it turned out The King of Rock and Roll successfully defended a paternity suit in California, only to have the claimant return to haunt him post mortem, like in a horror picture. One wonders what forgettable music would be produced for that film, something from “The Trouble with Girls” perhaps?

Elvis the trouble with girls

If that Elvis love child was sired in Washington State it means that poor child should have you get nothing. Same in Tennessee apparently. Text from his Will:

..the Trustee is authorized to accumulate the net income or to pay or apply so much of the net income and such portion of the principal at any time and from time to time for the health, education, support, comfortable maintenance and welfare of: (1) my daughter, Lisa Marie Presley, and any other lawful issue I might have, ….

There is no Equal Protection argument either, it’s the parent that failed the child, not the state. Yes, New Age reader, “Lawful Issue” still means something.

Indeed, every word of a will means something, and how carefully chosen each word may be will not be examined post mortem, as this unfortunate appellant tried to claim. It is presumed every word means what it says.
elvis easy come easy go
It should be noted there are about 40% of children born in America to unwed parents at the present time. Even among the highly educated, it seems an acceptable practice. It’s remarkable people who clearly love their children simply chose to ignore great bodies of law that will have an impact upon them should they perish without taking care of matters.

What do you say to this child? Return to Sender?

elvis stamp
So, for those that presume the law has caught up with your Brave New World of family, take care to ensure terms are not thrown around in your will like “lawful” when you mean “all”.

Regardless of new concepts of family, people who have had children without benefit of clergy also want their offspring to say kind things about their parents when they pass, perhaps the way Elvis would end a concert:

Thank ya, Thank ya vury much.

elvis grave

Escheat- Your Property Goes to the State

Recently I heard an account of the Roman leader Sulla, (138 BC-78 BC) who decreed not only his political opponents but also those of wealthy families should be slaughtered so as to have their property escheat to the state so as to pay his army.
Sullahead

Even today, those without obvious takers of property like children or siblings, nieces and nephews, are at risk for this Roman escheat to the state, unless they have a will of course. However even after the fall of Rome it was not always so.

Things were more civilized by 1066 when Britain was successfully invaded for the last time.
Invasion of England

By then it was just a given that when you died, even though you may have paid for the land with a lifetime of rents and military service, the real property of which you were “seized” reverted to the feudal lord.

You really wanted to be a lord then, unless you were King Harold II, who died after receiving a Norman arrow to the eye at Hastings.

arrow in the eye

All his feudal retainers lost their rights in land to the Norman conquest; William was in charge and started parceling out the country to his army.

Of course sometimes the land was given to the vassal who fought for William with extras, such as adding the term “and his heirs” meaning the knight would be able to leave the property to his children. Thus it was not best to die childless in feudal England however, or the land will escheat back to the William once again.

William the Conqueror

The record keeping wasn’t all that good the either. Paper was expensive and it took a lot to make up a deed. One had to know Latin, and then find the right rock from the field to represent the transfer to tie to the deed.

medeval deed

If the lord had no paper or couldn’t write, let alone in Latin, typically he would call together the neighbors for a ceremony where he took up a dirt clod from the land in question, and placed it in the hands of the grantee vassal, thereby making the latter “seized” of the land.

Hopefully people remembered whether you were seized of the land for your heirs as well. I guess the take away from this sort of transfer is the vassal wants lots of witnesses, preferably young and healthy.

In consideration for these grants the lord got a share of the crops or other profits from the land.
Medeval farming 2

These ancient dues predated the Conquest, and William apparently liked them so much he just kept the rent the same. Perhaps that is why no one has successfully invaded England since, and loyalty to the Crown remains intact.

Today in the United States you can will your property to whomever you wish, just be sure to do so, lest the lords who govern your state end up with it.

The Existentialist Parent Names Her Child

child with tatoosI have decided the spate of new and inventive names which process through my practice must be the desire to ensure ones child is a unique individual, not part of the faceless masses living an existentialist challenge, otherwise lost in an vast and uncaring world, but taking solace in the reality his mother gave him a name that no one will forget, and at the same time cannot spell but phonetically.

I see divorces, custody cases and wills where I have to speak with a straight face about children named “Breeze”, “Shady” or the worst: “Swastika”.

Then I have to spell the names too, which are also cast forever in the new and inventive spelling the parents come up with shortly after the birth. Jane becomes “Jeayne”, Richard becomes “Reshard”, and Sally becomes “Saily”.

Whatever happened to names that evoked love and caring like those of my grandparents generation: Clara, Martha, and Lenore or strength and morality like Stephan, Ralph or James?

Some names seem to be drawn from the Presidents; Madison, Jefferson, and one client whose last named happened to be Lincoln, well, you know.

Media plays a huge role. After Star Wars was released in 1977 all kinds of “Leah’s” and “Luke’s” were named. No “Darth’s” I am aware of, nor “Chewbacca”, but a few “Hans” have crossed my desk, but then that is a strong European name in any case. Besides, I think Harrison Ford played a man with the shortened version “Han”. His mother was an existentialist too.

Then there is gender shifting. My grandfathers first name was Leslie, which was popular in 1905 for men, yet when when my cousin was born in the 1960’s she was given that name as it was popular for girls. “Taylor” is a name I see often and have to ask the client, “girl or boy?”

Finally no one uses a last name anymore. “Hi, I am Jim” is the introduction, rather than “Hi, I am James Smith, it is a pleasure to meet you”. Formal greetings are apparently as out of style as anything traditional.

Fortunately the law allows for the existentialist child to change his name in a District Court action after turning 18. This is so common I believe there are forms available at the courts themselves. Perhaps Swastika will change his name to something less political, like Adolf.

Little Sheets of Paper

Tonight my Dad is in the rehabilitation center following knee surgery. From what I gather this is a little like giving birth; it is awful for mother and child but both are really happy a few weeks later.

Upon admission, transferring from the hospital and full of pain medications, a vast array of paper was placed in front of him requesting his signature. Some was about insurance, some about care, and some could end his life.

These little sheets of paper included a health care directive to physicians that gave the facility permission to end his life had he checked a box that said so. Four days after surgery and still in considerable pain, I question his competence to make a reasoned decision. The directive is green in color; green for “go”.

Because my mother was there she stopped the process until I could arrive. Upon my arrival the nurse explained again to my parents, and me, the purpose behind the health care directive was “so the doctor would not have to read through all the legalese of a more complex document” . That is literally what she said during her remarkably practiced speech for all incoming patients.

In other words the Doctor has no time to understand the intent of the patient about whether he lives or dies as expressed when contemplating these issues in a competent, sober manner while consulting with his lawyer who then drafted the same based on the law and his experience.

Just check the box on the little sheet of paper sir, it is better for all of us. That’s right, the green one. Green for “go”.

Licensed Legal Technician: Not Quite A Lawyer

Our state seems to be a testbed for the rest of the country for everything; gay marriage, legalized marajiuana and now legal advice with a stamp of approval that really ought to have a lot of warning labels.

What appears to be an effort to manage the free market of legal advice, not all of which is licensed, the Supreme Court of Washington has developed a rule to annoint persons who have not gone to law school with the approval to discharge limited legal tasks. This can be of great help to persons who cannot afford or do not need a full service firm. Or it can be a disaster because there are tripwires in the legal landscape no one but a lawyer with some experienc is going to know about.

The standards are tough however, so who knows- this might work out. The Bar has yet to accept any applications as they are still working out the operational details but first thing applicant must show is “good moral character”. I think that means you have no felonies as a start, but in my time on the Character and Fitness Board it meant generally a disregard for the Rule of Law.

Next there needs to be some education, either an associates degree in law or postgraduate work in legal studies.

Finally, and most appropriately, one has to work for a lawyer for at least two or three years so the applicant has some idea how this all really fits together.

Then the applicant sits for an exam, not quite the Bar Exam. Perhaps we should call it Bar Exam Lite.

This all sounds vigorous, and yet I cannot help but be worried about unintended consequences, like people relying on legal techs when they really need a legal engineer called a lawyer.