Law Religion Culture Review

Exploring the intersections of law, religion and culture. Copyright by Richard J. Radcliffe. All rights reserved.

Wednesday, February 01, 2006

Win some, lose some.

"Win some, lose some."
-- Judge Chamberlain Haller to Vincent Gambini in My Cousin Vinny.

Place this one in the win column. I just tried a probate case where our clients were seeking to oust a trustee for self-dealing, commingling, and other breaches of fiduciary duties owed to the beneficiaries. This trust owned several real properties and involved a substantial amount of assets and income to the beneficiaries.

It doesn't really matter whether the case is criminal, civil, probate or administrative, effective trial attorneys (for plaintiffs, petitioners or the people) should seek to highlight the defendant's "dastardly deed" ("DD"). I define the "DD" as the one irreducible, irrefutable and inscrutable "bad act" that will hopefully color the other evidence in the case. In this matter, I had a few candidates, but I determined that one stood out for its simple profundity.

Of course, to do this correctly at trial, one needs first to close the "escape hatches" for the defendant to try to explain the "DD" away (according to former prosecutor Vincent Bugilosi).

It also helps where you can use the defendant's own sworn statements against him or her. In this case, I had two sworn "accountings" from the trustee. In each, he averred that he had received no compensation as a trustee. So, I simply wanted the witness to confirm that these were his accountings, and they were accurate. Since the last one was a couple of months before the trial, I asked him if he still had not received any compensation. Perhaps thinking at the time that this statement would make him look altruistic (and perhaps victimized), he heartily agreed.

Then, I asked him where he lived. On the surface, this query appeared inconsequential or innocuous. However, I already knew that he was living in the one of the income properties owned by the trust. I also knew that he had paid no rent since moving in. I also knew what the rent was for this property immediately before he moved in. I also knew that the beneficiaries (my clients) were entitled to the rental income stream. Therefore, the trustee was in effect taking money out of their pockets and placing in his own. A simple concept that offends one's sense of justice, right?

At this point, the trustee had no real choice but to admit where he lived (as he had previously testified in his deposition), and probably didn't see the hammer looming when the question was posed. However, when the reality sunk in, his attorney recalled him to testify later. At this point, he futilely tried to spin this benefit as his compensation. Unfortunately, we had already closed this loophole. He had nowhere to go, and not surprisingly, the judgment specifically referenced this "bad act" as a ground to remove the trustee "forthwith" and to surcharge him for the damages and attorneys' fees.

Next post(s) will explore some other amusing aspects of this trial.