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SITTING IN EQUITY
The Equity Series
By D.B. Hansen
iUniverse LLCCopyright © 2013 D.B. Hansen
All rights reserved.
A Marriage in Name Only
Judge Haggerty was late. That is if a judge can ever be considered to be late to his own courtroom. But this was expected. It was Friday. And Friday meant a little longer lunch hour than usual. He might also have an extra drink or two. The process of unwinding for the weekend always began a bit earlier for Judge Haggerty than it did for the rest of the legal community. Yet, this suited Douglas Thorne just fine. Representing the surviving spouse in a probate matter, he liked the idea of the judge being relaxed. Perhaps he would be more receptive to the legal arguments that Thorne was about to make for the still grieving widow.
Thorne knew that it was best to represent a surviving spouse. Probate had a way about it. Judges were reluctance in deciding matters against a spouse. This was especially so where the relationship was a long and well established one. And even though it would never be openly mentioned, a judge knew that he was treading on treacherous ground if he decided a matter against a widow. If the wrong story got out to the press, he could be put in a most awkward position.
The case before the court was a novel one. Thorne knew that it would never come up again. But this was just the sort of legal matters he liked. It made the law a challenge that other attorneys often times avoided. Yet for Thorne, it kept his practice from ever becoming routine or boring. After a final review of the papers in front of him, his mind slipped to more distant matters.
Numbers that so many people had trouble with were what had first attracted Thorne to estate planning. He enjoyed even mundane things such as balancing an accounting. But what really attracted him to this area of the law were tax problems. They had an internal logic to them that was not at first seen. And he loved dealing with this. He had never regretted the decision made.
Probate had a unique history. First, such matters were handled by the Catholic Church. But then Henry the VIII had gotten into a fight with the Church over divorcing his first wife. Probate was then moved to the English courts. As they would add no more areas to courts of law, probate had to be heard in equity.
Equity contained an odd assortment of matters. Taxation and actions for specific performance were included therein. It didn't matter that they were very much unalike. The divisions made had been arbitrary ones. And once made they were not subject to change. The system was then brought from England to the 13 colonies and became a part of the American legal system.
Courts sitting in equity didn't act that much differently from those that sat in law. And over time, the differences became all the smaller. Only one major difference presently existed. In matters heard in law, an individual had a right to a jury trial. In matters heard in equity, no such right existed. This required an attorney to take a different approach in the way in which these cases were handled as the ultimate legal authority rested solely with the judge. No jury existed for an attorney to influence.
Judges had time and time again seen these trial tactics. So in equity, the attorney was faced with someone who was as well trained in the law as they were. Lawyers therefore had to change their approach. In part, it had to be centered on the personality of the judge that they were appearing before. The tactics used therefore had to be changed depending on the judge one went before.
But then matters heard in equity were usually more relaxed. And the rules of evidence were at times ignored. If the judge wanted to hear a particular piece of testimony, he would. Objects didn't really matter. The judge in his order would clean up things. He'd say that he had not considered the particular evidence objected to in making his decision. This cleaned up the record making a successful appeal nearly impossible.
Knowing the quirks of the probate judge offered the best possible clues as to the manner in which one should present the case. Always there was the need to avoid stepping on the judge's toes. As was well known by those in the legal profession, those sitting on the Superior Court bench often had overly enlarged egos. And these could be easily bruised. Therefore, when going before a judge that was an unknown quantity, it was best to err on the side of caution. It was safer not only for the attorney but for the attorney's client as well.
Smiling, Thorne thought back to a time when he had come before Judge Cary. Thorne had raised a perfectly good objection. But without even glancing at Thorne, Judge Cary had replied, "Douglas, while your objection is welltaken, I would really like to hear the answer to the question." A gracious withdrawal of the objection followed. The point had not been worth pursuing.
Today's hearing was being held in the old courthouse. Its decorum created a respect for the law. The aged oak paneling and marble floors spoke of the solemn nature of the judicial hearings conducted therein. The walls seemed to echo with the proceedings from the past. It made it a place where one expected to receive justice.
As Judge Haggerty entered the courtroom, all rose. Thorne's attention turned to the matter before him. Each side indicated to the court that they were ready to proceed. Both attorneys had utilized to the fullest the way that their clients appeared. Whether those present testified or not didn't matter, but their appearance did.
The decedent's children were props. They had been dressed according to the roles that they would play. Ellen Smith, the purported widow of Roger Smith, would not use her customary hyphenated last name. She was dressed conservatively in a modest black dress. As instructed she wore no accessories and carried only a small black handbag. Her son John, age 7, stood quietly beside her neatly dressed. His facial expression showed the uncertainty that he felt as to what was going on. He only knew from his mother's reactions that it must be extremely important.
Thorne's opposing legal counsel was Martin Barns. While a capable lawyer, he possessed one flaw. In matters that he perceived to be sure winners, he didn't take the time to cross each and every "t" and to dot each and every "i". Thorne felt that he might be able to use this to his advantage. Attorneys familiar with courtroom proceedings know that upon entering a courtroom the matter becomes a horse race. If cornered, any trial attorney will admit that they had won cases that should have been lost and lost cases that should have been won. It is the nature of the beast.
Seated besides Barns was the decedent's first wife. Behind them in the first row of visitors' seats were sons from her marriage to Roger Smith. A petition to determine heirship had been brought on behalf of the boys. They claimed that their father had died intestate that is without a will. It was further claimed that he was unmarried as of the date of his death. His estate therefore consisted of his separate property. It should therefore pass by operation of law equally amongst the decedent's four sons.
Thorne had been impressed by Ellen Smith's candor and honesty during their initial meeting. He has also found that like so many people that she and her husband had shown little concern as to how their estate would pass when one of them died. Their actions were instead governed by fears that on closer examination had no real substance to them. As a result, the problems that now existed had gone unaddressed. And where the matter could have been originally handled for a modest fee, the widow was now involved in a costly legal battle. It was one that if she lost she would take little or no part of the estate.
As his father had before him, Roger Smith had taken title to the property in his name alone. When the couple had moved from Michigan to California, matters continued as they had before. Michigan law or California law, what did it matter? Nor did they ever take the time to make a will. It was an expense that was best avoided. And besides running the small business they owned caused matters like this to be put off until later. Only later never came.
While their estate had started out being a modest one, with the rapid appreciation of Bay Area real property, it had grown in size. The home they had purchased was now worth well beyond anything that they could afford. And as the small business they owned grew, they ended up having an estate that was worth in excess of $650,000. It was an amount worth fighting over.
The facts of the case originally related made this appear to be a Marvin v. Marvin case. But it was one that was easily subject to attack. And Thorne felt very uncomfortable with it. The Marvin case had arisen when Lee Marvin had broken off a long-term, non-marital relationship. The decision rested on contract law and allowed Marvin's former partner to be compensated for the years that the couple had spent together.
While a positive result had been reached, these cases were extremely expensive to litigate. They ended up in heated battles. Each side would dig up every possible bit of dirt they could about those they were going up against. This meant that things got very ugly. The other problem was that in this type of case the recovery that Ellen would receive would only amount to a small portion of the estate. At best it would be but half of the estate. Therefore, Thorne continued to search for alternate approaches that might provide a better result for his client.
Where the obvious doesn't work, one must look elsewhere. Digging for facts can be an unending process. But an astute attorney is never satisfied until he has captured the essence of a case. Even then he is always seeking for ways to improve the matter. What the client might think to be an unimportant fact can be just what is needed to win the case.
In establishing his own law firm, Thorne wanted to create a compact one that would retain his personal character. He wanted to enjoy the practice of the law. When success finally was achieved, it caused him to take on an associate. Sharon Morse proved to be exactly what he was looking for. Intelligent, she had gone to law school some years after graduating from college. While she was amongst the top student's in her class, what had attracted Thorne to her was the zeal that she brought to her work. When faced with an exceedingly difficult legal issue, she was not willing to concede the matter. The search would go on until she had come up with the best answer that she could. This was ever so much like Thorne's own devotion to the law. Thorne quickly became comfortable with Sharon working at his side.
While she had the academic credentials to work for any of the larger firms on the San Francisco Peninsula, her having gone to law school later in life appeared to have been held against her. Then there was the issue of motherhood. The occasional need for absences due to family matters also didn't help in her search for a job. At times, her children would have to come first, and Thorne had no difficulty with this. And besides he quickly learned that if her presence was needed, she would find a way to be there.
This sleek, dark-haired woman in the second half of her thirties was perfectly suited to working with Thorne. He was a perfectionist! And Sharon held herself up to the same high standard. A hard worker, she would drop everything at a moments notice to dredge up the needed facts to get a case ready for trial. By some miracle, she always seemed able to be able to fit in both her family and legal career. It created a hectic life. But it worked.
Thorne didn't like hierarchies. This separated him from the way that most law firms were run. He kept open lines of communication with his staff. Being aware that he could be most difficult to work with at times, he wondered at times how Sharon put up with him. Yet, with her excellent work product, Douglas began to feel as if she was an extension of him. The success that followed on her joining the firm only enlarged Thorne's ego. And this is a trait that is generally over developed for many in the legal profession.
On Sharon's third visit to Ellen Smith's residence, things changed. While attorneys usually see their clients in their office, Thorne didn't do this when he handled an estate. Although the first meeting generally took place in his office, those that followed usually occurred at the surviving spouse's residence. The spouse was more comfortable there. But more importantly it allowed Thorne to gather the needed documents much faster than would have otherwise been the case. The hit and miss system where a spouse brought in those documents that they thought were important was replaced by one where Thorne was able to gain access to the most important ones in a meeting or two.
As Sharon neared the end of one of her interviews with Ellen Smith, she made a casual remark about a photograph on the den wall. The answer Sharon Morse got back caused her to ask a series of additional questions. On returning to the office, Sharon immediately discussed what she had uncovered. Not yet knowing the implications of what she had learned, both attorneys knew that it had opened an entirely new approach to the case. It is within moments like this where the law takes on the nature of a hunt. Therein is found the joy of practicing law.
They spent an hour in discussing the matter. The matter had to be researched to find out whether the conclusions reached were valid ones. This was where cases are fleshed out. Sharon looked into the laws of California and Montana as they pertained to marriage. Depending on what she found, the full faith and credit clause of the U.S. Constitution might then have to be researched. If their suspicions were correct, then he case had taken on a whole new meaning. If it did, then Ellen could probably receive the entire estate of her husband and her. It was more than could have been hoped for at the start of the matter. But it would take added work in order to come to this conclusion.
At forty-two, Thorne had a hint of gray hair. It gave him a distinguished look. His dirty blond hair would lighten each year with the coming of summer. But come fall it would darken. Ever conscientious of his dress, Thorne played the role of his profession well. He wore impeccably tailored suits with the needed accessories having been carefully selected for him. It gave him a judicial bearing. The courtroom was his stage, and he played his part well.
Judge Haggerty took charge of the proceedings, "Gentlemen, I have thoroughly reviewed the file, and from what I have seen, it is difficult for me to determine why we are here today. From what I've read the case appears to be rather clear cut. But you may proceed."
Even though this comment did not bode well, Douglas Thorne did not show the least bit of concern. He had extreme confidence in the case. In fact, he actually welcomed the comment. It might cause his opposition to relax and allow Thorne to create all the greater shock wave when he presented his side of the matter. And it would make victory that much sweeter.
Judge Haggerty: "Mr. Barns, as your clients filed the petition to determine heirship, you may call your first witness."
Barns: "Thank you, your honor. I would like to call Margaret Smith to the stand."
The swearing in completed, Mr. Barns began his direct examination of the witness, "Margaret, how is it that you came to know the decedent, Roger Smith?"
Margaret: "I was married to Roger for 15 years before we got divorced. During the marriage we had three sons, Thomas, Peter, and Joe," Margaret made a point of slowing her speech as she named each of the children in succession. "Then after the divorce, we kept in regular contact with one another. I didn't want the fact that we had separated to destroy Roger's relationship with the boys. They needed a father as they grew up. Boys do. On this one thing at least, the both of us could agree."
Barns: "After the divorce, did your conversations with the decedent involve matters other than the boys?"
Margaret: "Oh, yes! Certainly! Roger loved to talk. I learned all about what he was doing. And he told me how things were going in his life."
Barns: "In these conversations did Roger ever mention the name of Ellen Landers?"
Margaret: "Yes, on any number of occasions."
Barn: "In what regards?"
Margaret: "Well, the first time I heard about her was while Roger was still living in Michigan. He told me that he and Ms Landers were thinking of living together."
Excerpted from SITTING IN EQUITY by D.B. Hansen. Copyright © 2013 D.B. Hansen. Excerpted by permission of iUniverse LLC.
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