(Let me pause and comment on the lexicon; we no longer have gender in Washington, so either what were men or women acting for the estate are referred to as “personal representative”, but the name just is not as cool.

It’s like the word “moot”. Clients love this word and try to work the conversation around so they can use it. Most blow it and say instead “mute”.

If that were to happen the case would be mute? I am asked. Yes, I say, without correction but that concept leaves my mind full of imaginative sketches of what that must look like; for example lady Justice has not only a blindfold over her eyes but a gag in her mouth, her hands full of a scale and sword, so there is just no hope to gain freedom.  Now let’s get back to the topic of this post.)

On the other hand the abuse of power one sibling can have over the rest is often not a good result either. The remedy is litigation, more attorney fees, more delay. The media refers to this as “languishing in the courts” as if there were Biblical or epic proportions to how long conflict can last in courtrooms in America. Now the image is lady Justice wailing and grinding her teeth in a kind of hell.

In an effort to avoid this awful thing called “probate” people contemplating death resort to will substitutes like trusts. Frankly, my experience is the Trustee ends up in just as much trouble as the personal representative, and the beneficiaries are just as scared they are being “taken”. The administration which was designed to take a few weeks actually takes longer than a probate because the rules are not as clear.

People have been dying in this jurisdiction since it was a Territory ( no one died here before that ) and so there is plenty of law on the topic of death. Trusts on the other hand are designed to live on, the zombie version of the dead. As a relatively new way to pass property the legal ground is not as well tread. At least the term “trustee” is gender neutral, and we don’t have to wait for the legislature to emasculate the man in charge, which would otherwise happen because any reference to gender in Washington causes the citizenry to go mute.

There was also a lot of fiction. I recall not who shot JR, but that JR did a lot to deserve being shot. For example he constantly was threatening to put his wife, Sue Ellen, in a sanitarium. I am not sure what a “sanitarium” is in Texas but I suspect it is a home for the mentally ill.

For  us here in Washington State, 30 years later, we can rest assured that marriage alone is not a basis to have one or both members of the union committed. Normally the rules call for the least restrictive alternative for those declared to be incompetent. This unfortunately is not always in the best interest of the incapacitated.

I recall a Judge deciding an elderly lady could be granted her wish, and return to her home so long as supervised 24/7. The caretaker turned her back after the lady appeared to be asleep, only to have her rise, trip and fall to her death on a bed knob. I tore my necktie from my shirt when I heard.

Now let’s think about how that man achieved the title. First there is a great deal of investment to just achieve the license. Four years of college, three years of law school, then a bar exam. One may have thought in terms of art and beauty before law school, but afterward one thinks solely of crime and civil remedies. The study doesn’t really stop there because any lawyer with anything to sell makes the study of law part of the pattern of his life.

Next lets consider the practice. People come in, often with complex fact patterns and are either being sued, suing or worried about both. The conflict most of the time involves another individual who has gone to his own lawyer with his complex version of the facts. Each side “lawyer’s up” to use a vernacular term I heard this week, and the contest is on.

For most of my career I have wondered about the long-term impacts on the individual who takes on this job. What does it mean to the psyche to daily handle human conflict and misery day in and day out? We joined the profession to try to help people, at least most of us have. The steady stream of people needing help often without adequate funding adds to the stress. When the lawyer has to pay the staff at the end of the month it ultimately is the lawyer who pays for the legal needs of those of limited means who nonetheless have complex fact patterns. In a word what does this all mean?

Stress. That is what it means, and the manner in which the individual copes with that stress lays the groundwork for how long he remains alive. In our town we lose a judge or a lawyer on average about once a year. Causation is often cancer or heart disease. The habits to deal with stress vary, but it doesn’t take a lot of imagination to see that a steady diet of stress followed by cigarettes and booze shorten life.

Some die early because they have that genetic marker that means they will. One lawyer was a healthy Himalayan climber. He got cancer and died anyway. Most however are not so destined; they are overweight because the demands of the practice require a remarkable number of hours for study, review, and preparation for hearings. We make about 40 important decisions a week and are often disappointed by results of trials.  It is easier to have a scotch at the end of each day than to go for a walk.

Next time the term “lawyer” comes to mind try not to think about the iconic suit or car. Think of it as a dangerous profession.  Think of lawyers as people who have run the risks to really understand the secret knowledge. They do it for you.

The bank will not give you the money. Much like a car salesmen discussing price, someone in the back room, normally described as “Legal” denies the document is adequate to access the funds. Most of the time “Legal” isnt on the premises, and instead is days from reviewing then rejecting your document.

This is the everyday occurrence of the adult child of elderly parents find themselves in. The remedy is usually an expensive guardianship the durable power of attorney was meant to avoid altogether.

Generally I disagree with the bank, but that doesn’t count for much.

More often the best defense is an active offense. What you want to have had before this point is a lawyer who has actually had the experience of finding what works and what doesn’t work with banks since the apocalypse banking crisis in 2008. Often it is just a matter of naming them directly in the document, but you can’t do that now because Dad isn’t really able to know what he is signing. I am afraid this is something you hope the trusted lawyer knew. Sometimes it is a good idea to visit the bank and develop a relationship with the people in the lobby with your parent along with you well before any of this happened.

Sometimes none of this works, and it is time to ask the trusted lawyer what he knows about guardianship.

But there is one thing I know you will get when you contest a will most of the time: Defeated.

Most of these cases are brought on three basis; 1 )Testamentary Capacity: for example the Dad’s mind was gone when he signed this will or 2) Undue Influence: someone taking an unusually large or unnatural gift had a position of trust with Dad or 3) Fraudulent Misrepresentation in the execution of the document: Dad signed a will when he was told it was a contract to buy a new Ford.

This is a complex area of shifting presumptions of law which start out favoring the will as written, and is peppered with problems of proof to over come that presumption ranging from excluded testimony due to the Dead Man’s Statute to just how good your medical expert is who saw Dad before he signed this will.

This trouble is compounded by the standard of proof. The contestant has to prove these things that would invalidate the will by clear cogent and convincing evidence. That is the civil equivalent of putting a man in jail, well beyond a preponderance.

Often the question is would Dad have any reason to do what the will says. If so, it is doubtful the there is much of a contest. Better off spending the attorney fees on a real box of chocolates.

Lets require a dearly departed’s will actually be read to the assembled grieving family, some of whom eagerly await to hear what bit of the material world they have been left. Attire must be black.

Lets require courtrooms actually be filled with curious onlookers throughout the entire trial, as it is in the movies, gasping at the appropriate moments.

Lets regulate Elvis impersonators, requiring a license and fees.

Let’s install bike lanes on freeways.

Let’s adopt left hand drive like they have in the United Kingdom, Jamaica, Hong Kong and a few other former colonies, along with Japan and assorted other countries in the Far East.

Lets require live entertainment for people while they are waiting for licensing and vehicle registration at the Department of Motor Vehicles.

Lets require postal employees to wear costumes of their favorite historical figures.

Lets require Disney to open and operate a theme park in every state, granting a waiver to Alaska and Hawaii as they already qualify as theme parks.

Lets adopt a 4 day work week. This leaves three days rather than two for lawyers to catch up on work.

I am just fresh from the probate and guardianship calendar where I witnessed an institutional trustee, a bank no less, hand up an order approving expenditures from a child’s special needs trust that was rejected immediately by the bench.  Instead our Court had lots of questions about why it was necessary to spend in increasing amounts tens of thousands of dollars taking the extended family on fabulous trips to Mexico and the Caribbean.

Meanwhile the needs of this special needs child who apparently had been left quite a bit of money in a will seem to be glossed over.

The really remarkable thing was the bank seemed unphased by this spending. Usually I see this kind of conduct from individuals named as trustee, because the term “fiduciary” is not part of their lexicon. Webster defined fiduciary as one who holds the trust or confidence of another. The first known use of the term is from 1641, and derived from the Latin fiduciarius which sounds a lot like fidelity to me.

I wonder what the Latin is for “taking advantage of the helpless”? And what about the bank, what Latin term can we assign them? There is no Latin term for “clueless”.

So the concept that one could not be jailed for his debts and has a right to discharge debts in bankruptcy has been with us from the beginning.

And how have Americans reacted to this freedom? They exercise it regularly. Even after the “get tough” Reform Act of 2005 there is a lot a debtor gets to keep in terms of assets notwithstanding declaring bankruptcy. Check out Title 11 section 522 of the United States Code. You get to keep your retirement, 401(k) and IRA. All of it. Such a deal.

Of course various Federal Court Districts around the country have interpreted things differently here and there, sometimes as close as from the Eastern District of Washington ( a closet Red State ) to the Western District of Washington ( which makes this a Blue State in every  Presidential election ). Sometimes within the District decisions vary from Trustee to Trustee.

Once in a recent 341 meeting of creditors the Trustee was examining my client as to her statement of debts and monthly budget. He noted she was discharging veterinary bills and had pet food in her budget. “But”, he triumphantly noted, “you have not listed any pets in your list of assets! Where are your pets!?!”

“I have three cats”, my client confessed, then added “Do you want my cats?”

The Trustee relented, but I had visions of him selling pelts to pay her debts. I am not making this up.

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.

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.

What happened? Stuff. They ran into cannibals on the southern tip of South America, the Pacific was a lot wider than they had expected and they ran short of food, and Magellan himself was killed in the Philipines.

What has this got to do with estate planning? Would you leave on a perilous voyage without a will?  Before the author of the account of the First Voyage Around the World left, he executed a will. That seems prudent, but there is no record if the remaining 249 Spaniards, Portuguese and Italians on board did the same.

This is pretty much what I encounter each day in my practice; a patch work of estate planning executed in bank lobbies, stock brokerage offices and sometimes a lawyer’s office. Why is such a mess?

Conditions change. Emotions wax and wane. People have ideas about what the people they leave behind “need” without considering what really happens when application of Dead Man’s Statute prohibitions on hearsay are made, or the impact of an inheritance on a disabled person without a preexisting Special Needs Trust really means.

We are on a perilous voyage. All kinds of decisions made in the wake of your ship may come back to haunt you. Think about it.

The answer is no. There are several problems with this approach.

1) Crime. That is what this is, Crime. Go to Jail, Do not pass GO, do not collect any $200. You will be characterized as “financial exploiter” at least if you do this in the state named after the first President, and that means you fall under the “slayer statute” and as we all know, slayers do not inherit. Or at least I think we all know this.

2) Breach of Fiduciary duty. There I go again with all that legal stuff. The trouble is that “legal stuff” can get you in trouble, if not in jail, at least sued. Lets say grandma put you on the account “just in case”. It is still not your money. While the bank is authorized to allow you to remove it, the disposition of those funds really have to be for grandma’s benefit and not those who are left here on earth when she passes. She put you on the account because she trusted you, and when we start hearing the word “trust” all kinds of duties attach.

3) Joint Tennant with Right of Survivorship. Lets say grandma opened this account with you and personally, not the bank employee, checked the box that says this or shortened to JTWROS. That is a will substitute that means when she dies the money is yours without probate. Note the timing. It will not be a defense to say that you will inherit this money some day anyway through this non-probate transfer. What if she needs the money before then?

I suspect there are more reasons not to do this but the post is getting too long. You may have good reasons to avoid probate, but this approach is too dangerous. In layman’s terms, don’t take things that don’t belong to you. You don’t have to go to law school to know this. I think we all learned this in kindergarten.

That man contemplating death and writing his own will drives outside of the lines weaving from centerline to shoulder, throwing gravel and screetching tires after his funeral, when reasonable minds differ on what he intended. And, as he is out of the blue and into the black, he cant come back, the only mind that matters is that of the judge. Along for the ride in this inexperienced drivers vehicle is the whole family.

Do you drive a car on the freeway before getting accustomed to car in the neighborhood? How many will writers have litigation experience and know how things really work in court? I mean real court, not the courtrooms on television.

There are perfectly straightforward software packages out on the internet that seem logical and can convey the intent of the will writer well. In that case the will writer is someone in a distant state trying to make a buck out of volume sales without a care really about the end user. Sometimes these things work out.

Sometimes they dont. What if the actual end user of the software wants something other than is in one of these cans? What if there is any complications at all, like a step child, or you have specific ideas about a trust for children or grandchildren that may or may not work in your jurisdiction? What if the national canned will draft is just wrong about the laws in your jurisdiction? The laws of devise and descent are notoriously local.

Hire someone to at least look at what you have written for your last act on earth. The local lawyer will at least know where the speed traps are.

I have come to see the vendors of these places understand the need we all have to at least believe there is a simpler, slower time for all of us, if we could just find it. These vendors of happiness are waiting for us.

These properties all have names that evoke some kind of earth bound heaven; Island One, Palm something or other, Fairview, Fairshare, Fairwinds, Fair(insert adjective, verb or noun ) its all very fair. Can’t you see that for only about the price of a new car you can have happiness even of it is for just a few days a year? Like autos, the value drops precipitously when you drive it off the lot.

Often the names recall a golden age of sail or perhaps the perceived simpler life of the Caribbean. It is a chance to be your own Jimmy Buffett, and check out of our tragically bourgeois existence. Or perhaps we feel an exclusiveness because the timeshare anchor we bought into features the word “club” e.g. Wyndamn Club, Ocean Club, Bay Club, Penthouse at the Club,  et. sequitor.

What people believe it seems, when they sign the papers for a tiny bit of dirt on a beach for a short period each year, is that this will be the answer, the escape from the dreary life we have here in the rain. I wonder if they are right, but I doubt it. Sometimes they come to see  me to try to get out of the contract. Sometimes the heaven they bought is just hell on earth. Wouldnt a really expensive hotel room every so often been a better deal?

I will stick with the six Jimmy Buffett CD’s in my car’s stereo. Someone has to remain behind to mind the store, weighing in on nice ideas gone bad.

That sounds good but it has to be done right because the government is already there doing the same thing. It’s sort of their territory so you have to play by the governments rules if you want to add to the support. A person unable to provide for himself may qualify for SSI, or a supplemental income from social security regardless of whether they have ever had earnings that would pay into the system. This stream of benefits long-established and part of a structure can suddenly be undermined by an inheritance or gift to the child not otherwise funneled into a legally recognized catch basin called a “special needs trust” or “supplemental needs trust”.

Often, in my experience, the parent hangs on to the disabled child far into that child’s adult life, the parent ages naturally and one day dies. There is no special needs trust, but more important the lack of that estate planning process also  leaves no one really available who knows what the needs of the disabled adult are, what he or she likes, what makes them upset, what their medications are and what kind of food they tolerate. That is a dramatic definition of crisis.

Properly drafted, the special needs inheritance then exists side by side with the money we have already paid into social security to shelter and provide health care for these people. Without it the government pulls back, and in a short time the money that is inherited by the disabled person is used up, and we better hope there is a guardian or other caring person left alive to make sure the benefits of social security is sought again. Otherwise we have the disabled person exactly where we feared they will be; alone and unable to survive independently.

It has been a long time since 1775 when Patrick Henry declared he would prefer death to a loss of Liberty. People like my daughter Amy would not have survived infancy to acquire the kind of liberty Henry wanted at the time. Today liberty for Amy is death.

Born profoundly mentally and physically disabled, Amy resides in a state-run facility in Shoreline Washington called Fircrest School. The other residents there are quite a bunch. Going there to visit or retrieve her for a weekend one has the same reaction one might have entering the Star Wars bar. There are a lot of this segment of The People that look only vaguely human and can make you feel uncomfortable. They make all kinds of noises and require bits of blinking machines to be fed or otherwise maintained.

The music is turned up loud enough so “all the residents can hear it” and the television is always on. This sounds terrible, but for these folks there is a comfort level there, it means they have something to do all day. The truth is the staff is first rate, and care about our family members there.

It’s the outsiders that pretend to know what Amy and her cohorts need, based largely on film or other fictions. There is something  in the myth every American believes and protects that includes the theory that no matter how disabled, an American has rights that have to be protected; those rights are identical to those Thomas Jefferson wrote about before any of these people could have survived infancy and therefore these rights we have to be pressed upon this population, even if it kills them.  This is the ostensible claim of those outsiders who really dont know what they are talking about but have a lot of education on political theory might conclude. Or they have seen too many movies.

Far from the common perception that the people residing there have been dumped by their families the reality is that parents as they age need to have a plan for these children as they mature. That includes a care arrangement that will survive the parents as well as an estate plan that ensures maximum financial assistance for the disabled adult during their lives.

The testamentary trust is called Special Needs. The needs are special, different than ours, and we do that population a disservice to read our own expectations and desires into theirs.  The disservice is greater when we leave them money without a proper plan.

There is this law, called the Dead Man’s Statute in the vernacular, that bars the living who stand to benefit from their story from testifying about the transactions they have had with the dead while the dead remained alive. Daily, it seems, I have people in my office who declare than grandmother always wanted her china to go to the favored grandchild, who normally is the person sitting in my office. Or more recently we have the claim of an oral contract concerning acquisition of property which lead to cash being deposited to the dead man’s bank account from his business associate. Then our man died. The living party to the contract is barred from testifying as to the transaction. There is no document anywhere remotely identifying the transaction or ownership of the money which might help him, but the claimant wants “his” money back.

The Law of Death is for the living much like a game of musical chairs;  we all walk around as if the music is never going to stop then when it does the last man standing has nowhere to sit. We didn’t count on our oral contractor dying when he did, nor did we expect the testamentary gifts of property from grandparents to specific family members being required to be in writing.  How often have I heard “Grandpa promised me the cabin!” Invariably, upon learning of the application of the Deadman’s Statute to his claim, our standing man declares “grandpa is rolling over in his grave over this!”

Curious as to whether the grave rolling was as common as the application of the Dead Man’s Statute, I drove out to the edge of town to see for myself. Arriving at the cemetery I expected to see lots of freshly turned earth. There was none, because I suppose that the transaction as remembered by the dead didn’t benefit the living as much as that last man standing said it did, and our dearly departed remains resting in peace.

There are exceptions of course, typically attached to those situations where pen and paper may not be available. For example, a soldier or sailor may, in the presence of two witnesses declare orally the disposition of his estate so long as that is less than two thousand dollars. The few appellate decisions in Washington State concerning these noncupative wills are about 100 years old, as you can imagine. The appellate decisions in Washington State concerning application of the Deadman’s Statute number 348, and counting.

Unfair? Perhaps. Unintended results are often the currency of the estates practice. The remedy is easy enough. Write it down. Soon. Life is short.

Without a death certificate how does the fisherman’s widow collect the life insurance, probate the estate, or remarry? Is she really held up by a faceless bureaucrat’s indecision or some policy that seems to hold the lives of everyone in suspense waiting for a body to be washed up on some shore? What if the man dies like Captain Quint in Jaws? Ick. Certainly Roy Scheider could later testify as to the circumstances of Quint’s passing, and get some proof of death from some court. But unfortunately Roy Scheider has a death certificate himself, so we have a problem.

Take heart. MarkPattersonLaw: The Secret Knowledege of Lawyers is prepared to give an answer for the fishermans  family pacing at the terminal here in Ballard. They can:

A) Wait seven years for the presumption of death to arise, then make the claim, shifting to all persons who wish to say the fisherman is still alive a burden to prove this is true. This would be hard for say, the life insurance company, to do in a world where every credit card transaction is forever remembered by some machine somewhere, not to mention cell phones, on line accounts, and the like. In the modern world then there would tend to be evidence of the “tidings of existence” the law requires the insurance company to show to keep from paying the money. Instead there would be an abrupt end, indicating death. Note our widow will be in court, hence hiring a lawyer after seven long years.

Or she could:

B) Hire a lawyer earlier to seek a determination the fisherman is dead based on evidence we have now. Good luck. Before the seven years is up the presumption is the man is still alive. The life insurance company tries hard to hang on to that presumption notwithstanding some pretty compelling circumstances. Here are some examples:

• Where a man’s wife has just given birth to a fourth child, he was hopelessly in debt, had spoken of suicide the day before departing on a sea voyage and his bag is found next to a railing of the vessel the insurance company not only went to trial, but also appealed. The company ended up paying.

• Another man fell into the Columbia river in a place of swift currents and had reportedly never learned to swim. Another trial, another appeal. Company paid.

• Still another reports the insured was “last seen entering the surf”. Another loss for the insurance industry.

Note these all involve water and therefore are deaths at sea. They also involve a big fight over a long period of time. And they both involve, drum roll please, hiring a lawyer.

In the end there is no death certificate unless the Court orders it but there is a record of death. So, Deadliest Catch, your tag line wasnt really right, but close enough for television.

Perhaps the last option is the fastest.

C) Upload the Deadliest Catch segment where the fisherman was lost to U-Tube, then go on local or national news media complaining about delay. The widow may get her money, her probate property, and be able to start life again much sooner. This option will not necessarily lead to a death certificate.

Ok that’s enough. I gotta go.

1) The reading of the will. You know how it looks, it’s the same every time. A really expensive looking conference room, a bushy browed lawyer at one end of the table reads to the assembled family members, or in the case of Rainman just Tom Cruise. In a slow steady voice he parcels out the property of the decedant and the people react. “I definitely got the roses, right?”.

I hate to bring you up to date on current events but this doesnt happen. I polled the lawyers on the probate listserve here in Washington State and found only one man who has ever been asked to do this and declared he would never do it again. It is a prescription for drama as well as domestic violence.

I regularly encounter people in the days following a death in the family who expect the reading of the will is going to be scheduled sometime by my firm, and that people should make travel plans to be there. Often people lie about whether this event has taken place, to yank the chain of the sister they never liked. “Too late Char, the will has been read! HAHAHAHA!”

2) Captains of ships can marry people. No. Persons licensed by authorities in states or other countries to perform weddings can marry people. Perhaps that marriage you are in was performed by the captain of the Love Boat, but you probably ought to check what credentials on land he was given for the act before you set sail. Don’t worry, the children are legitimate in most jurisdictions.

3) The right lawyer can win anything. I literally have a memory of sitting on my fathers knee watching Perry Mason as a child. Perry won everything. The music at the end of the show with the books stacked up on screen as the credits rolled by scared the hell out of me. But Perry Mason is not the way it is. If you want a reality check, watch A Civil Action starring John Travolta as the “right lawyer”. Its based on a true story, but I couldnt see where they would deviate from how things really happen. Fighting for an elusive result most of us would recognize as “justice” John makes mistakes and goes broke. And that ladies and gentlemen is a harsh reality check, even for the right lawyer.

Ok, thats enough for now. I gotta go.

Or, how about the woman who threw a soft drink at her boyfriend, slipped on the wet floor, and then won $100,000 in a lawsuit against the restaurant?

My all time favorite about the fellow that bought an RV and as he was driving it home put the cruise control on and went to the back to make himself a cup of coffee.

These are only two of the common examples of lawsuit abuses that are fueling the call for “litigation reform.” They are also completely untrue — part of a growing collection of legal mythologies that are appearing widely in the national media. I’m not sure why people would make-up stories when the real ones are much better.

You know my fondness for awards – and the Stella Awards is among my favorites. (The Stella Awards were inspired by Stella Liebeck. In 1992, Stella, then 79, spilled a cup of McDonald’s coffee onto her lap, burning herself — the “rest of her story” here…with a LOT of information I didn’t know – for instance she wasn’t driving!!)

The 2007 True Stella Awards

Issued February 2008

(Click here to confirm these are legitimate.)

#3: Sentry Insurance Company. The company provided worker’s compensation insurance for a Wisconsin “Meals on Wheels” program. Delivering a meal, a MoW volunteer (who was allegedly not even wearing boots) slipped and fell on a participant’s driveway that had been cleared of snow, and Sentry had to pay to care for her resulting injuries. Sentry wanted its money back, so it sued the 81-year-old homeowner getting the Meals on Wheels service. It could have simply filed for “subrogation” from her homeowner’s insurance company, but by naming her in the action, it dragged an old lady into court, reinforcing the image of insurance companies as concerned only about the bottom line, not “protecting” policyholders from loss.

#2: The family of Robert Hornbeck. Hornbeck volunteered for the Army and served a stint in Iraq. After getting home, he got drunk, wandered into a hotel’s service area (passing “DANGER” warning signs), crawled into an air conditioning unit, and was severely cut when the machinery activated. Unable to care for himself due to his drunkenness, he bled to death. A tragedy, to be sure, but one solely caused by a supposedly responsible adult with military training. Despite his irresponsible behavior — and his perhaps criminal trespassing — Hornbeck’s family sued the hotel for $10 million, as if it’s reasonably foreseeable that some drunk fool would ignore warning signs and climb into its heavy duty machinery to sleep off his bender.

But those pale compared to…

The winner of the 2007 True Stella Award: Roy L. Pearson Jr. The 57-year-old Administrative Law Judge from Washington DC claims that a dry cleaner lost a pair of his pants, so he sued the mom-and-pop business for $65,462,500. That’s right: more than $65 million for one pair of pants. Representing himself, Judge Pearson cried in court over the loss of his pants, whining that there certainly isn’t a more compelling case in the District archives. But the Superior Court judge wasn’t moved: he called the case “vexatious litigation”, scolded Judge Pearson for his “bad faith”, and awarded damages to the dry cleaners. But Pearson didn’t take no for an answer: he’s appealing the decision. And he has plenty of time on his hands, since he was dismissed from his job. Last we heard, Pearson’s appeal is still pending.

©2007 by Randy Cassingham, StellaAwards.com. Reprinted with permission.

–elderly woman from http://www.superstock.com

–more tomorrow

In November 07 the Bar Standards Board published the results of a piece of commissioned MORI research on Perceptions of Barristers. Somewhat shamefully I have failed to comment on it before now and it was only when a review of the report appeared in this month’s Counsel magazine that I have been galvanised into action and finally looked at the detail of the report.

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There are some interesting findings, and some stark mismatches between what we barristers think of ourselves, what we think other people think of us and what other people actually think of us! In very broad terms the views of the general public appear to be less negative than we expect them to be, for example 47% of barristers believe that the public think barristers are out of touch whereas only 16% of the public think this. However whilst 56% of barristers believe the public think barristers are a trusted and highly regarded profession when in fact only around three in ten members of the public feel this. 80% of barristers expect the public to think barristers are well paid, whilst in fact only 60% of the public think that. And only 27% of us believe we are well paid.

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Whilst this report plainly covers some of the issues touched upon in this blog and in the comments arising from various posts – around the integrity of the bar, the effectiveness of the family court system and the levels of service provided to clients sadly, like so much material published about the Bar, this is really a piece of work about the criminal bar. Although a large sample of the general public were sampled (some of whom no doubt have had a brush with a family barrister), 100% of the lay clients sampled for the purposes of the qualitative element of the survey were either prisoners, acquitted defendants or ‘commercial’ clients. There were no lay clients interviewed who had been involved in the family justice system, and so I would say these results are likely to be unreliable in terms of perceptions of the bar both overall and specifically the family bar. Aside from the criminal justice system it is through the family court system that most people encournter us and the criminal bar is simply a different kettle of fish.

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I should think that similar issues would arise to those that cropped up in this report, such as the question of client care and the time spent with a client before a hearing (I would hope that the Family Bar would fare better on this than the bar as a whole) and the question of the integrity of the profession (where I fear the Family Bar might fare rather worse, at least in the eyes of lay clients or litigants in person). But as far as I am aware there is no equivalent report out there which can help us answer those questions except anecdotally. It would be an important piece of work in times when the family legal aid system is under review and the family bar is under siege as the Government tries to cut costs for the important work that we do and tries to ensure that public funding is utilised in cost effective ways.

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Wouldn’t it be interesting to see a comparative piece of work commissioned that told us what family barristers think of themselves, and what the general public think of them? However, I don’t suppose the Bar Standards Board has the inclination and I don’t suppose the Family Law Bar Association has the money. What a shame.

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The Family Bar is the one area of the bar that people are likely to come into contact regardless of who they are. They deserve to be recognised as a distinct and important part of the Bar. This report unfortunately demonstrates the common assumption that what is applicable to the Criminal Bar is applicable to the rest of it (or perhaps of forgetting that other areas even exist). It would have been so much more interesting if the report had considered whether or not perceptions of the Bar were uniform across all areas of work or not. I do not know if this is a flaw in the brief from the Bar Standards Board to MORI or the work carried out by them, but someone somewhere needs to examine the perception that ‘The Bar’ is synonomous with ‘The Criminal Bar’. It is not.

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P.S.

I am afraid it is no surprise to me that the limitations of this report are not brought identified in Counsel magazine which is just one culprit of the sloppy thinking about the (criminal) bar identified above. It is a source of long-standing irritation on my part that Counsel Magazine (‘The Journal of the Bar of England and Wales’ and paid for by my subscriptions) contains precious little applicable or of interest to those of us who practice at the ever expanding Family Bar. I read it hopefully every month, and almost every month I am disappointed (it is redeemed only by the regular inclusion of articles on overarching topics like Human Rights). But this is a whinge for another blog entry, or perhaps I should just write to the Editor and make my point directly?….

I came across a rather unpleasant cluster of websites today whose focus is on the divers ways in which women and feminism are evil / destructive / conspiring with the communists to bring about the apocalypse etc…Your run of the mill women-hating rot? Well, they made me shudder.

Starting at what men are saying about women which is wholly and unapologetically misogynist (perhaps its not considered rude in Oz), I follow blogroll links to the UK based end of men (which includes the very measured claim that feminism destroys not just the family but also destroys whole populations – see ‘why feminism is a fraud’ Nov 8 and the About page which develops the argument from feminists=men-haters to a government conspiracy to global depopulation enslavement and (dun dun DUUUN) THE END OF MANKIND! Crikey. This blog also expresses some incredulity at the suggestion that a father who punched two social workers (one heavily pregnant and one holding his four month old baby) before snatching his child and going on the run (the baby was under a care order) should get a prison sentence. Clearly he should have got a pat on the back and a lollipop for the kid.), and fembot hunter (‘Applying logic, facts and accountability to the mindless droning of the feminist hate movement’ – apparently) and ukmensaid (which purports to demystify the UK law around divorce and children and tells you what lawyers won’t – (lawyers won’t tell you it because much of it is simply inaccurate and mis-states the law or misinterprets data. For example I’m unlikely to write an article on a piece of legislation that doesn’t exist viz ‘Children Act 1991′).

I had to give up trawling through these in the end, the few links above are just my personal favourites. And of course many of these sites link into the more acceptable face of father’s / men’s rights, such as fathers4justice / realfathers4justice (and probably realrealrealfathers4realjustice) etc. (everything’s relative). I think the scariest thing is the idea that men in the process of relationship breakdown who are struggling to understand what is happening to their family and why, and who are looking for explanations will find themselves surrounded by a wealth of sources like these all of which espouse the view that we (that’s women) are out to get special treatment and that the state or the family justice system is out to ensure that this happens. I mean, they have big words in them and everything so they must be right.

So, by way of example uk mens aid suggests here that the reason why the vast majority of divorces are granted to women (about 80%) is a grand conspiracy by the courts (not sanctioned by Parliament I might add – tskk) to deprive the man ‘of his home, his children and his money’ (my emphasis). The reality is that its far more likely to be because it is women who are in the most vulnerable position financially after a separation (childcare responsibilities curtail their earning capacity and they are often left in the matrimonial home with no means to pay the mortgage) and this means that they need to get on with the divorce quickly so that they can sort out the financial situation before the house is repossessed. Often men, feeling there is no incentive to get on with the divorce or the division of assets dilly dally whilst the mortgage company threatens repo. And what uk mens aid omits to mention is that the question of WHO gets the divorce has no bearing AT ALL on how the money is divided.

If this is the kind of information available to men, and the mindset with which men approach the family courts system then their perception of their experience may well be distorted by the kind of suggestions made on these sites – coming from this angle everything that the courts / lawyers do no doubt looks like proof of the argument that the system is biased against them. And the problem with this is that if you approach the system with a chip that big it can obscure your view of what is really happening.

So on the one hand the fathers / mens movement is complaining of the adversarial / confrontational nature of the family courts system and yet discussion boards and blogs are full of the rhetoric of war and hatred, pumping up men who are at a difficult stage in their lives to do battle with this injustice rather than agree with anything the women might say for fear of being branded a namby pamby metrosexual or feminised new man (these are apparently the actual creation of man-hating feminists – a bit like how Nation of Islam think white men were the freaky creation of a mad scientist? Oh…I digress).

I’m all for injustices being exposed and righted, but to suggest – as these sites collectively do – that everything is an example of some sinister and systematic anti-male ideology and to place the arrangements for resolving disputes about the breakdown of family relationships at the centre of this conspiracy, so that every court case is approached as a battle ground, is to encourage father’s and husbands to miss the point. Relationship breakdown involves real individual children with their own individual personalities and needs, and real individual adults with their own individual quirks and strengths and weaknesses. And real pain – hatred may be a byproduct but it should not be the fuel for or purpose of the exercise.

So anyway, now I really have to go and help my entirely equal other half with the cleaning. Or he might get paranoid.

Postscript 16 Nov: Charon QC’s post yesterday has revealed another gem of an anti-women website (see section on feminism in particular).

Of course whilst there might be £25m in the pot there won’t be a ‘£25m record settlement’ as one rag put it (or I’ll eat my hat), maybe a £12.5m settlement or something less. And, anyone without knowledge of how divorce works of course is likely to assume that Henry has been guilty of some terrible conduct in order for his poor wife to be granted a ‘quickie’, something apparently only celebrity divorcees can obtain.

All that this tosh splashed all over the front page means is that a bog standard divorce petition has been presented to the court and that because both parties want to get the matter over and done with Henry has not contested the petition. In the absence of adultery one of them had to allege unreasonable behaviour and since its the Wife who often wants to get a move on with the finances its often her who ‘goes first’ with her petition for divorce to get the ball rolling. Thats all a quickie divorce is – one where you don’t fight hammer and tongs about who was the biggest idiot. It leaves you with energy to fight about the finances (or if you’re sensible energy to get on with your life once you’ve agreed them). It must be really irritating to be the ‘accused’ in these stupid reports when you’ve agreed for practical reasons to let the petition to proceed. 

So basically, the ‘story’ boils down to this: Thierry Henry and his wife have agreed to get divorced in the usual way. They have to sort out their finances, and we think he’s worth £25m but we have no idea what she’ll get because they haven’t got anywhere with that part of it yet.

The pronouncement of a Decree Nisi, which is what happened today, is such a non-event – we already knew they were getting divorced for goodness sake. Isn’t there enough other rubbish to report in the interlude whilst we’re waiting for some news on the financial side of it? Couldn’t we have something more interesting on the front page? (just a big picture of Thierry Henry without words would do for me, but perhaps that wouldn’t have the right appeal). AND, whilst I’m being petty – Claire Merry has NOT been granted a quickie divorce, she’s been granted a NISI. She won’t be divorced until she gets her Decree Absolute.

As far as I can tell most of my clients think I’m alright. They are often frustrated with the system and some expect miracles (which I’m not always able to perform), but I don’t leave court every day thinking the world hates me. I leave court most days thinking I’ve done the best I could do, and on a really good day I leave court thinking I’ve really made a difference.

But I’m surprised at how much the responses to some of the posts on this blog unsettle me. If the people who have posted comments on this blog are representative then the bar has a serious image problem. And the family bar has a catastrophe on its hands. How can the public perception of us be so very different from the world I inhabit every day, where people try really hard to patch up other people’s often unfixable problems and to get families working again? Where has it gone wrong?

I think its quite likely that the posts I’ve got are not truly representative of the public’s view of us. That is to say, those with strong negative views are far more likely to be bothered to comment on a blog like this than those who have no axe to grind. The unhappiest are often the loudest. But I can’t ignore the fact that there are enough of ‘em out there who feel strongly enough to pebble dash this blog with invective to warrant some serious thought.

I’ve never thought the family justice system was perfect. But the problems it has to deal with have no easy solutions. And if there is a bias against fathers inherent in the system then soundbites about every father’s inalienable right to contact don’t solve that problem like a magic spell. Because families are complex and every parent and every child is different. There is no formulaic answer. Fathers are not always let down, Mothers do not always get away with ‘it’. But it does happen. But is that because of bias against fathers / men? My view is that its usually not, that there are all sorts of factors which come together to make it practically difficult for non-resident parents (usually fathers) to obtain speedy results through the courts. And it does produce unsatisfactory results. Its a constant battle for judges and lawyers to continually reassess a case to work out what is best or (more often) the least worst solution when there are limited resources and when time is ticking by.

And of course one of the criticisms of the family justice system is its ‘secrecy’. One man’s secrecy is another child’s privacy, and I do think there is an important reason why proceedings involving children are private. I also agree with the increasingly popular view that we need to work out how to let the public see more of what goes on in family courts, so people can understand the system instead of having to rely on partial or incomplete information. Just as campaigning groups for fathers are unable to publish the full details of the cases they say are examples of miscarriages of justice, it is also difficult for me to back up my assertions about the family justice system or the conduct of the bar because of the privacy rules. Additionally of course, I have ongoing duties of confidentiality to clients. So its hard to give examples of cases that are a paradigm of fairness, where Judges see through attempts to frustrate contact for reasons nothing to do with the child’s welfare, where Judges refuse to permit a case to be eternally delayed and cases where a Judge will try anything and everything to get contact going, and of course the rarer cases where contact is refused because it would genuinely be detrimental to the child. I see these cases all the time, sometimes from the perspective of the Mother, sometimes from the Father’s perspective (I represent roughly equal proportions of mothers and fathers).

Of course I can refer to published judgments like this one but no doubt the response would be that this is an exception that rarely ever happens. Because the fact of the matter is this: Even if I could tell you about all my cases this would all be anecdotal. Would it change the minds of those people who are posting? I think probably not. Because I think essentially people’s views of what happens in the family justice system are either coloured by their own personal experience or what they’ve been told by a sister or an uncle or a friend. And in the same way that the soundbites of Fathers4Justice about individual cases tell us nothing really about why the court reached a decision (because there is simply not enough information), the necessarily selective information that is passed between family members about what is really being discussed at court is never going to be the full picture. At best it will be one half of the story and at worst a lot less. And of course when you are in court yourself that’s usually because you don’t accept the other half of the story is valid.

And even if we could magically mend the family justice system so that resources were limitless, so that court reports could be written instantaneously and hearings obtained at a moments notice, and even if delay were a thing of the past – wouldn’t people still feel this way? Because at the end of the day, people feel very strongly about their kids, their homes, their families. And more often than not somebody leaves court feeling like they’ve ‘lost’ or been cheated or been treated unfairly -simply by dint of the fact that the Judge has disagreed with them. People might accept a Judge’s view when it comes to a dispute about a debt or a contract, but when its their family people believe unswervingly that they know best. And at the end of the day a Judge usually has to disagree with somebody (although a really good judge will sometimes be able to get parties to agree or will find a ‘third way’ that everyone can live with). So you’ve got to reckon that a decent chunk of people are going to leave the family justice system thinking the whole thing stinks even if it were in perfect working order. It is very hard to accept someone else knows better than you do what is right for your child. But clearly the privacy rules do allow the misinformation (on both sides) to multiply and fester. And it seems to me that everyone has a view about family justice but most people have very little first hand knowledge. 

But I suppose what really irks me is the underlying belief inherent in the comments appearing on this blog that we family barristers are somehow implicated in this charade of justice, that we are agents of discrimination and that we are untrustworthy and unscrupulous sharks who don’t give a shit about the people and the children involved in these cases as long as we get paid. I cannot begin to tell you how wrong that is in this post. I will reserve this for another day. But the short version is if I were in it for the money I wouldn’t be in it at all – I’d be a corporate lawyer or an investment banker or doing some other job where I’d get more money and less crap for my effort. And although I suppose this will cause gasps of outrage, I have to say that I’m not at all surprised that reports of bullying and underhand conduct at court come from litigants in person or representatives of fathers groups, many of whom can be extremely difficult to deal with themselves and who interpret any attempt to speak to them outside the door of the court as bullying or an attempt to trick them into agreeing something they shouldn’t, and most sensible barristers will back off if its clear that their approach is unwelcome. Hostility to barristers from non-lawyers and the unrepresented is a natural reaction to being unfamiliar with the court process and feeling threatened by the unknown, but it doesn’t actually mean that those who report bullying are presenting an accurate reflection of what is happening.

But this is a long and rambling post. And I am still left wondering what we / I can do to rebalance the public perception of us?

I suppose I must just keep plugging away posting entries that inform. I suppose I must just keep plugging away trying to communicate widely about what we do and why we do it. I suppose I must just keep plugging away going to court and doing my best for whichever client instructs me. I suppose I must just keep trying to explain to clients why things are happening in their case and how the system works. And I suppose I must just hope that those clients go back and tell their sisters, their uncles, their friends that they felt they had a fair shot and some good advice. But at the end of the day the biggest success stories are the ones where the lawyers are long forgotten because people are concentrating on more important things, like watching their children grow up. So I won’t be holding my breath for any thanks or praise, I’ll just have to rely on myself for the odd pat on the back. Which was ever the way for us lawyers I’m afraid.

no such thing as a common law wife. not that you’d know it. and now it looks as if the law commission are recommending that the collective hallucination of this imaginary woman should be made flesh (and given property rights)

Or, how about the woman who threw a soft drink at her boyfriend, slipped on the wet floor, and then won $100,000 in a lawsuit against the restaurant?

These are only two of the common examples of lawsuit abuses that are fueling the call for “litigation reform.” They are also completely untrue — part of a growing collection of legal mythologies that are appearing widely in the national media. I’m not sure why people would make-up stories when the real ones are much better.

You know my fondness for awards – and the Stella Awards is among my favorites. (The Stella Awards were inspired by Stella Liebeck. In 1992, Stella, then 79, spilled a cup of McDonald’s coffee onto her lap, burning herself — the “rest of her story” here…with a LOT of information I didn’t know – for instance she wasn’t driving!!)

The 2006 True Stella Awards

Issued 31 January 2007

(Click here to confirm these are legitimate.)

#5: Marcy Meckler. While shopping at a mall, Meckler stepped outside and was “attacked” by a squirrel that lived among the trees and bushes. And “while frantically attempting to escape from the squirrel and detach it from her leg, [Meckler] fell and suffered severe injuries,” her resulting lawsuit says. That’s the mall’s fault, the lawsuit claims, demanding in excess of $50,000, based on the mall’s “failure to warn” her that squirrels live outside.

#4: Ron and Kristie Simmons. The couple’s 4-year-old son, Justin, was killed in a tragic lawnmower accident in a licensed daycare facility, and the death was clearly the result of negligence by the daycare providers. The providers were clearly deserving of being sued, yet when the Simmons’s discovered the daycare only had $100,000 in insurance, they dropped the case against them and instead sued the manufacturer of the 16-year-old lawn mower because the mower didn’t have a safety device that 1) had not been invented at the time of the mower’s manufacture, and 2) no safety agency had even suggested needed to be invented. A sympathetic jury still awarded the family $2 million.

#3: Robert Clymer. An FBI agent working a high-profile case in Las Vegas, Clymer allegedly created a disturbance, lost the magazine from his pistol, then crashed his pickup truck in a drunken stupor — his blood-alcohol level was 0.306 percent, more than three times the legal limit for driving in Nevada. He pled guilty to drunk driving because, his lawyer explained, “With public officials, we expect them to own up to their mistakes and correct them.” Yet Clymer had the gall to sue the manufacturer of his pickup truck, and the dealer he bought it from, because he “somehow lost consciousness” and the truck “somehow produced a heavy smoke that filled the passenger cab.” Yep: the drunk-driving accident wasn’t his fault, but the truck’s fault. Just the kind of guy you want carrying a gun in the name of the law.

#2: KinderStart.com. The specialty search engine says Google should be forced to include the KinderStart site in its listings, reveal how its “Page Rank” system works, and pay them lots of money because they’re a competitor. They claim by not being ranked higher in Google, Google is somehow infringing KinderStart’s Constitutional right to free speech. Even if by some stretch they were a competitor of Google, why in the world would they think it’s Google’s responsibility to help them succeed? And if
Google’s “review” of their site is negative, wouldn’t a government court order forcing them to change it infringe on Google’s Constitutional right to free speech?

And the winner of the 2006 True Stella Award:

Allen Ray Heckard. Even though Heckard is 3 inches shorter, 25 pounds lighter, and 8 years older than former basketball star Michael Jordan, the Portland, Oregon, man says he looks a lot like Jordan, and is often confused for him — and thus he deserves $52 million “for defamation and permanent injury” — plus $364 million in “punitive damage for emotional pain and suffering”, plus the SAME amount from Nike co-founder Phil Knight, for a grand total of $832 million. He dropped the suit after Nike’s lawyers chatted with him, where they presumably explained how they’d counter-sue if he pressed on.

©2007 by Randy Cassingham,
StellaAwards.com. Reprinted with permission.

• Kathleen Robertson of Austin received $780,000 from a jury after she tripped over her own son in a furniture store.

• Carl Truman, a 19-year-old in Los Angeles, was awarded more than $74,000 when his hand was run over by a neighbor. The neighbor did not see Truman, who was in the process of stealing his hubcaps.

• Terrence Dickson of Bristol, Pa., was given a $500,000 award after he was inadvertently trapped in the garage of a house that he was burglarizing.

• A Mr. Grazinski won more than $1,750,000 and a new Winnebago after he put his new motor home on cruise control at 70 mph and then went into the back to fix himself some coffee — only to crash on the highway.