"That's When We Were Going to Get Married", Part II.

One avenue I pursued at trial was to show that the purported will or trust amendment was not merely “transcribed” from the decedent’s dictation (as the Respondent claimed), but was actually drafted by the Respondent. (Generally, California law invalidates testamentary documents benefiting such drafters).

One my clients served as a university professor, with a Ph.D. in linguistics, in addition to being familiar with his father’s speech and writing patters over several decades. After laying this foundation (and introducing exemplars of his father’s communications), I asked him if the language contained in the subject handwritten note (which Respondent admitted was her own handwriting) could have been his father’s. Focusing on the numerous grammatical, spelling and word choice errors, he opined it could not be the product of his father’s speech or writing. For example, the note used “dismiss” and “dismissal” in place of “death” in two places. Because the other side had not served a demand for exchange of expert witness information, and this witness (the son) had been on the witness list from the beginning, my opponent could only watch as this damaging testimony came in without rebuttal.

In the ruling, the trial court found the decedent “did not dictate” the disputed document “based on the” fact that “the language … contain[ed] spelling and grammar errors in addition to the use of incorrect words” which the court found in contrast to how the decedent communicated.

Nice bonus to have a client who can offer salient expert testimony.

"That's When We Were Going to Get Married", Part I.

On my cross-examination of the Respondent, she blurted out, "That's when we were going to get married in Las Vegas."

And that's when I knew we were going to win this trial.

By way of background, the Respondent was a caregiver to a gentleman north of 90 years of age. At the very end of his life, while in the endstages of lung cancer (and suffering from hypoxia), he had allegedly signed two documents which she posited changed his will or trust to give her one-third of his considerable estate.

When we subpoenaed this gentleman's bank records we uncovered that he had signed numerous checks to the caregiver towards the end of his life, which she cashed. These checks included one for $20,000 and one for $1,350 (apart from her wages). In her deposition, she gave an explanation for the $20,000 and claimed that she couldn't remember what the $1,350 one was for.

At trial, she changed her story about the $20,000, and then I impeached her with her deposition testimony and earlier interrogatory responses.

Regarding the $1,350 check, I showed it to her on the stand and expected to get the same response that she allegedly didn't know its purpose.

Instead, I got a gift.

As noted above, she said that it was for their hotel expenses in Las Vegas to get married. Given that the case involved issues of undue influence, I pursued the matter. I had remembered from earlier discovery responses (under oath) that she was married, so I asked her, "You were married at the time, right?"

She said she hadn't been with a man for years.

I replied, "That's not my question; you were married when you went to Las Vegas with this 91-year-old man thinking that he was going to marry you, correct?"

She hedged: "I was separated."

I persisted: "Again, that's not my question; you were not divorced at the time you went to Las Vegas with this 91-year old man thinking he was going to marry a woman he could not legally marry, true?"

She finally conceded that he was not legally divorced and hence still legally married.

My trial instincts impelled me to inquire just a bit further about the Vegas trip (even though I didn't know the precise answer to the next question, because I quickly calculated the risk was minimal to my side to ask). After she said they travelled by bus to Vegas and stayed only a weekend, I asked where they stayed in Las Vegas, thinking the only accomodations that could reasonably explain this huge charge would be the Venetian, Bellagio or the like. She incredibly testified: "the Super 8". So, $1,350 was the alleged charge to stay at the "Super 8" in Las Vegas for a couple of nights. Obviously implausible. I wondered, but didn't ask, if the charge also included bullet-proof vests for them.

We received the ruling this week. Relying heavily on the complete evisceration of her credibility at trial via the cross-examination, the Court declared the purported will/trust amendments to be invalid, and ordered the money the caregiver "wrongfully" took from the decedent returned
--multiplied by a factor of two pursuant to California Probate Code Section 859--and then ordered that my clients (the gentleman's two children) receive their attorneys' fees from the Respondent.

Part II will involve how I turned one client into an expert witness on linguistics in the trial.

Book Review: A Bold Fresh Piece of Humanity by Bill O'Reilly.

Bill O’Reilly’s “simple and straightforward.”

Just ask him. That’s how he characterizes himself in his 2008 book, A Bold Fresh Piece of Humanity. (p. 59.) I’ll resolve the mystery at the outset: the title comes from how his exasperated teacher described him in elementary school. (p. 3.)

I prefer O’Reilly’s self-description to the teacher’s because it frames the thoughts that follow. While the book mostly operates as a memoir, it is interrupted with large sections containing O’Reilly’s “simple and straightforward” views of the world on such topics as politics (chapter 1 and passim), evil (chapter 4), and religion (chapter 5).

For example, I found O’Reilly’s understanding of Christianity (he’s Roman Catholic) to be rather startling: “There’s a reason the cross is the symbol of Christianity. It is a powerful statement: that a good man suffered for me, that a just God was looking out for me, and if I lived a good life, I would be rewarded after death.” (pp. 74-75; emphasis added.) Likewise, “The endgame, of course, is to earn God’s reward in the afterlife by rejecting evil. And in Catholicism and other Christian religions, the actions of Jesus demonstrate how to do that.” (p. 88.)

On one’s legacy: “[Y]our legacy will be defined by two simple [there’s that word again] questions: “How many wrongs did you right, and how many people did you help when they needed it?” (p. 51.)

In the midst of this quasi-memoir, an entire chapter (“Mysteries of the Universe”) is oddly dedicated to O’Reilly’s random musings about mostly antiquated cultural relics, which I could only conclude constituted filler material to stretch the manuscript to an acceptable length for a hardcover book. In this chapter, O’Reilly ponders such “mysteries” as “Captain Kangaroo”, the 1965 song “Hang On Sloopy” by the McCoys, Vice President from the Nixon Administration Spiro Agnew, the “Mummy” from the 1932 movie starring Boris Karloff, 1960s character “Tiny Tim”, long since cancelled tv shows "The Beverly Hillbillies", "Green Acres" and "Gilligan’s Island", and the 1970 film Love Story, among other irrelevancies (pp. 217-21).

When the book reads as a memoir it improves. It contains many intriguing aspects to O’Reilly’s background. For instance, he taught high school for two years in Miami. He played football in college. He organized adventure trips with his friends. He includes stories about his climb through the ranks of television news, with the constant being O’Reilly’s determination in the face of extreme resistance. He seems to live fearlessly. He sees his purpose as almost messianic. "I can wield the pen and speak my mind without fear. These gifts were given to me, I believe, by a higher power." (p. 111.) Similarly, “When people ask me what drives my fierce work ethic, why I work so hard when I don’t have to anymore, I simply tell them that I’m still on a quest to make sure others get treated fairly.” (p. 238.)

Leaving the memoir track again, the book contains "self-help" tips that fit neatly within his own characterization of being "simple" such as grooming (p. 249), eating healthily (pp. 245-48), helping others (p. 239), thinking first (p. 243), and practicing (p. 243) are important.

If you are able to parse through the lesser portions, you can mine some funny vignettes (and some understanding) about this cultural force.

Justification as Legal Term.

In a recent interview, theologian N.T. Wright once again showed the interrelatedness of law and theology:

"I understand justification as basically a law-court term, where it means the judge’s creative declaration that a person is ‘in the right’ in terms of the lawcourt."

via: http://trevinwax.com/2009/01/13/interview-with-nt-wright-responding-to-piper-on-justification/

"That's You", Part II.

From my Respondent's Brief, an excerpt of the introduction:

“Appellants’ Opening Brief (“OB”) comes with much sound and fury, but in the end signifies nothing.

"Inflammatory, inapt words like “evil” (OB, p. 9) and “immoral crime” (OB, p. 13) are bandied about with abandon (even including accusations that the trial court was “morally wrong” [OB, p. 18]), but they do not obfuscate the appeal’s overall lack of merit, persistent neglect of the facts and findings against them, and numerous fatal procedural defects.

***

"As has been said about this case, it is like arranging a car accident and calling it a personal injury case. (RT, p. 22:4-5.)

"In doing so, Appellants have failed to surmount mandatory procedural hurdles, which should result in the appeal being dismissed (at least in large part) without even having to reach its purported merits.

"First, while explicitly bringing a challenge to adequacy of damages (OB, pp. 2-3), Appellants failed to first bring a motion for new trial as required (as discussed more fully below). (E.g., Jenkins v. Dahnert (1962) 202 Cal.App.2d 567, 568 [21 Cal.Rptr. 15].)

"Second, while mounting a sufficiency of the evidence challenge (in large part), Appellants failed to cite a plethora of material evidence that supports the judgment (and is against their proffered conclusions). In such a case, “All the material evidence on the point and not merely their own evidence” must be presented to the appellate court. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [19 Cal.Rptr.3d 416, 430]; emphasis in original.) “Unless this is done the error is deemed waived.” (Id.) Accordingly, where the sufficiency of evidence standard applies, Appellants’ claimed errors are waived.

"Third, Appellants improperly seek for the first time on appeal to hold the estate of [L] (who died before the complaint was filed) responsible despite they have failed to sue it in the trial court, or make any timely claim against it. ([Statement of Decision], pp. 6 and 12; and [Clerk's Transcript, p. 9, 10:7-9 and 45.) Principles of due process as well as California law regarding the separateness of trusts and estates preclude this prejudicial, untimely effort.

"[Appellants’] appeal fails to provide any basis for this Court to disturb the considered judgment on appeal. Accordingly, this Court should affirm in all respects.”

At oral argument, Appellants’ counsel picked up where his brief left off and spoke about the “disgusting” work his clients (in-home care providers) had provided, including dealing with incontinence, bathing and cleaning. Another of the justices interjected “I have to say counsel that when I found that kind of language in your brief I was very offended.”

When the justice made that comment, I wondered if he was saying he was offended by Appellants’ counsel’s attempt to emotionally sway the court with inflammatory (and irrelevant) language—a point I made in my brief (see excerpt above).

It didn’t turn out that way.

The justice then explained why he was offended. He said that his mother had been an in-home care provider and therefore found the description of the work as “disgusting” to be “very offensive”. He lectured the other attorney that the work they do is "honorable". This connection didn’t exactly cut my way either for obvious reasons.

Nevertheless, that justice as well as the other two voted to affirm in favor of my clients.

"That's You", Part I.

Despite the rain, I appeared early for oral argument in the Court of Appeal that sits in downtown Los Angeles.

My opponent didn't.

When the case was called, the clerk had to tell the Court that the appellants' attorney (the other side) wasn't there yet. So the Court called another case instead.

During that argument, I saw that my counterpart had arrived. We acknowledged each other with a wave.

Our case was called next. I approached Respondent's table. My counterpart stood up, but didn't move. He displayed a quizzical look on his face. Even though he saw me stand up and move to counsel's table, he evidently didn't realize that was his cue to advance as well. Finally, one of the justices said to him, "That's you." I knew this justice had been a Los Angeles Superior Court trial judge who had handled a very famous criminal case some years ago. My opponent's cases were mostly litigated in Los Angeles. I surmised they must have known each other.

In any event, since the other side had appealed, he went first. This same justice picked up with the first argument in my brief: that the appeal should fail because appellants had not filed a motion for new trial in the trial court. He fired a question that went something like this, "Isn't the appeal barred because you didn't bring a motion for new trial?" The answer boiled down to appellants' view that such a motion would be "surplusage" because they brought a flurry of post trial challenges to the trial court's ruling. The same justice then challenged that answer by saying something to the effect of, "Isn't the trial court better positioned to make this determination because it involves weighing credibility?" Appellants' counsel dismissed that inquiry by saying there was no credibility to weigh--it was a simply a matter of applying the law to certain facts.

At my turn, I looked at the appellate justice who asked the first question and remarked that the Court's question was particularly apropos because the trial judge specifically stated that he did not find appellants' story to be "believable" in a crucial respect--the very essence of a credibility determination that cannot be disturbed on appeal. I quoted this part of the statement of decision and also where this quotation appeared in my respondent's brief. I also responded to statements in appellants' reply brief (which could not be responded to earlier). The justices had no questions for me. While my estimated time was five minutes, I concluded with time to spare (taking to heart Justice Scalia's brevity admonition in 2008's Making Your Argument: How to Persuade Judges [reviewed here on December 23, 2008].)

The appellate opinion came out this week. My clients won with a 3-0 decision, affirming the trial court's decision in full. In part two, I will include an excerpt of my Respondent's brief with a comment that another justice made to my counterpart at oral argument.

Compliments.

Today, we brought a motion for attorney's fees following a trial I won a little while ago. After the court awarded over $100,000 in fees and another approximately $10,000 in costs, the judge complimented me several times for conducting an organized and clear trial and making clear what seemed at first to him (before trial) to be a "very confusing money story." I don't know if judges receive such training in their "judges' college", but they almost invariably dole out kudos following a trial. It's a nice touch, and good for the clients (and counsel) to hear.

Often people are stingy with compliments in the workplace or otherwise. It doesn't take much to make someone's day, and it really costs nothing--only sincerity. Leaders know this.

Old Becomes New.

"If you don't believe in God and the Argument from Design doesn't keep you up at night, then you don't understand it."
--Dr. James F. Sennett (quoted in Why I Became An Atheist: A Former Preacher Rejects Christianity [2008] by John W. Loftus).

The Argument from Design is one of the hottest areas of contention in apologetic/atheistic circles right now.

By coincidence, a couple of days after reading this quote, I was reading Romans and saw Paul made the argument about 2,000 years ago:

"For since the creation of the world His invisible attributes, His eternal power and divine nature, have been clearly seen, being understood through what has been made, so that they are without excuse." (Romans 1:20; NASB.)

The old has become new.

Book Review: How to Lose Friends and Alienate People: A Memoir by Toby Young.

Tocqueville comes to America. Again.

This time, however, he arrives in the form of Toby Young, a Brit who took a writing job at Vanity Fair in the mid-1990s.

The allusion to Tocqueville isn't much of a leap. Young quotes him liberally in How to Lose Friends and Alienate People: A Memoir.

Educated at Oxford, Harvard and Cambridge, Young intersperses incisive commentary on American culture much like Frenchman Tocqueville did in 1835's Democracy in America with hilarious, self-deprecating stories burnishing Young's reputation as one with "negative charisma." As he describes his condition, "I only had to walk across a crowded room in which I knew nobody and nobody knew me and already I'd made ten enemies."

In this cultural commentary, Young makes three poignant and perhaps surprising observations.

First, the United States is in many ways more hierarchical than Great Britain. For example, America "is fundamentally different [in] the way powerful people are treated in London. Anyone expecting their social inferiors to prostrate themselves before them is regarded as pathetically insecure. Indeed, any public display of flattery is considered bad form. The correct way to behave towards a superior [in England] is to be ever so slightly insolent, thereby paying them the compliment that they're confident enough to take a bit of public ribbing....[T]he difference between London and New York is that in London people are rude to your face but loyal behind your back, whereas in New York they're polite to your face but rude behind your back."

Second, despite priding itself as a meritocracy, Young argues that the US is far from it. And Young asserts that Americans' delusion about this is deleterious. "Americans believe their country to be meritocratic whereas Brits don't. Brits acknowledge that the socioeconomic status of your parents can have a crucial impact on your life chances, whereas the majority of Americans believe they all compete on a level playing field. In fact, it's not quote accurate to say that they 'believe' this, since it's so patently false. Rather, it's an article of faith, an example of what Plato called 'a noble lie.' It's a national myth designed to make the extreme levels of inequality dictated by untrammeled market forces more acceptable and to dispute it would be downright unpatriotic."

Young continues: "On balance, however, Britain's more accurate self-understanding strikes me as overwhelmingly preferable. The fact that Brits acknowledge that your changes in life are profoundly affected by who your parents are means they're less inclined to judge people according to how well or badly they're doing. Brits are less worshipful of success than Americans and, more importantly, less contemptuous of failure. The aristocratic tradition of noblesse oblige has been preserved in Britain precisely because Brits don't believe their country is a meritocracy. Unlike America's top dogs, the better off in British society tend to feel a bit guilty and embarrassed about their good fortune, as if they don't quite deserve it. ... Contrast this with America, where anyone who doing well is automatically dismissed as a loser... The casual, unthinking cruelty with which successful New Yorkers treat cab drivers and waiters....was something I witnessed every day."

Third, according to Young, Americans are less free than their British counterparts, especially as it relates to free speech. For example, "Where's that love of liberty that's supposed to burn so brightly in every American breast? I was particularly shocked by the extent to which glossy magazine writers have given up their right to free speech in return for access to celebrities.... It seems far more likely that the gradual erosion of freedom is an irreversible process, the inevitable consequence of the triumph of equality over liberty that Tocqueville warned of in Democracy in America. The thicket of petty restrictions that New Yorkers willingly submit to every day is an example of what Tocqueville referred to as 'mild despotism.' Why do they put up with them? Because they enjoy the support of the majority, making them absolutely irresistible in a society so thoroughly democratic. It's a form of voluntary servitude, the means by which the majority imposes its well on the individual."

As a bonus, Young writes about how he put into practice at Vanity Fair something he learned in a philosophy class. "In Keynes's view, the key to persuading someone of the rightness of your moral point of view lay in asserting it as emphatically as possible." Young took this advice to heart and punctuated his story pitch with "Absolutely" and "No question" to appear as assured as possible. I had to laugh because I have come across this very form of argumentation in Court, but it's not particularly persuasive.
(See, e.g.: http://lawreligionculturereview.blogspot.com/2009/02/totally-irrelevant.html.)

A true "fish-out-of-water" story, with iconoclastic, intelligent Young trying to survive in Darwinian Manhattan, he delivers laughs as well as sobering thoughts about American culture.