Justice Prevails: Integrity Beats Gotcha

Courts encourage parties to narrow the issues and to stipulate to facts and other matters that are not a disputed issue. These stipulations make for a quicker trial saving the court time and the parties both time and money. In a recent Fourth District Court of Appeal case, the Court slapped down a party for engaging in a game of “gotcha” by reneging on a stipulation. The trial court abused its discretion when it allowed the defendant insurance company to get away with it.

The opinion begins with an attention-getting line — “This appeal pits ‘integrity’ in the practice of law against an unwarranted game of ‘gotcha.'” Fortunately, integrity won out over gotcha on appeal although not at the trial court level.  In the pretrial stipulation, in several pretrial hearing, and in the opening statement, counsel for the defendant insurer agreed that the only issue was  the amount of damages owed to the insured, which had acquired its rights by assignment.  The pretrial specifically stated: “[The assignor] assigned its rights to the insurance proceeds [the purchaser] on December 23, 2005.” Thus, the parties specifically agreed to the fact of the assignment.

Nevertheless, after the plaintiff rested its case, counsel for the insurer moved for a directed verdict and argued that the plaintiff had failed to prove the existence of the assignment.  Plaintiff’s counsel reminded the court of the stipulation and the motion was denied. The motion was renewed at the close of all the evidence, and was again denied.

Persistence paid off though at the meeting to discuss the jury instructions (i.e., the charge conference).  Insurance counsel asserted that the issue of the assignment was a “question of fact for the jury.”  This time the trial judge disregarded the argument that the fact of the assignment had been stipulated and allowed the jury to be instructed that it should determine whether a valid assignment had been made to the Plaintiff.  Not surprisingly, because there had been no evidence of an assignment due to the stipulation, the jury found there was no assignment and ruled for the insurance company.  The trial court refused to grant a new trial when the Plaintiff requested one. Fortunately, the Fourth DCA reversed this travesty of justice on appeal, and reaffirmed the binding nature of stipulations and that once a fact is stipulated no proof of it is required.

I would like to say this has never happened to me.  Unfortunately, this or something similar happens all too often. Early in my career I had defense counsel try a nearly identical “gotcha” on me.  They stipulated to the liability of a vicariously liable defendant.  That is, if the actively liable defendant was guilty, then the vicariously liable defendant was liable.  After I rested my case, opposing counsel argued that I had failed to prove the vicariously liable defendant owned the car and lent it to the actively liable defendant.  When I said that I would reopen my case and present that evidence and the judge said he would allow me to, insurance counsel capitulated on that issue.

You Can’t Dilly Dally On Your Way To Probate Court

 

The time limits in probate cases can be unforgivingly short.  For example, you must object to the personal representative’s accounting within thirty (30) days and set a hearing on your objection within ninety (90) days. A recent post in the Florida Probate & Trust Litigation Blog illustrates how true that is.

The issue in the case reported on, which was an opinion from the Third District Court of Appeal, was whether the three (3) month statute of limitations in Florida Statute section 733.212(3) applied to a motion to disqualify a personal representative.  The Third District Court of Appeal held that it did apply.  Consequently, a motion to disqualify filed more than three (3) months after the service of a notice of administration on the party seeking disqualification is barred.  What makes this case interesting is that it directly conflicts with a decision of the First District Court of Appeal, as certified by the Third District Court of Appeal.  The First DCA had held that the statute of limitations under Florida Statute section 733.212(3) did not apply to a motion to disqualify a non-resident personal representative.

The lesson of Hill v. Davis is that you cannot take your time when it comes to any potential claims or rights involving a deceased person or estate.  Most of the time limits are much shorter than in other litigation.  All claims against a decedent are barred two (2) years after the date of death.  Absent the granting of an extension of time, a claim may also be barred three (3) months from the first date of the publication of the notice to creditors.

While Hill v. Davis is a good example of the short time limits involved in probate litigation for lawyers and clients alike, the two cases together are good examples of why lawyers cannot always tell their clients what “the law” is. Trial courts are bound to follow the decisions of appellate courts in Florida.  Before the Third DCAs opinion was issued, a trial court in any of the DCAs was bound to follow the reasoning and opinion of the First DCA.  But now a trial court located in the First DCA must follow the opinion in Angelus v. Pass while a trial court in the Third DCA must follow Hill v. Davis.  This is true even if the judge thinks that the opinion of the other DCA is the more well reasoned and convincing opinion.  But what about a trial court in one of the other three (3) DCAs?  Trial courts in those three (3) DCAs are free to follow whichever opinion they think is the better one.  Yet another DCA may have a similar case before it and may try to reconcile the two cases, follow one of the two cases, or come up with yet another approach.  Eventually the Florida Supreme Court will resolve the conflict between the DCAs and its decision will become the law.  At least until a lower court distinguishes the Supreme Court’s opinion in a similar case or the waters are otherwise muddied.

Is it any wonder then that when a client consults a lawyer and asks “What is the law on this?”  that the lawyer scratches her head and says, “Well, I’ll have to do some research.”?  And later reports that “the law is unclear” or “conflicting.”  Add to that the fact that every litigated case has its own unique facts and it can be very difficult to predict the outcome of any case.

Don’t Sue! Blog? Well, Talk It Out At Least

Here’s some more information on the iPod lawsuit from the “In the eyes of the law” blog by attorney Kimberly Houser.  The question phrased by Ms. Houser is whether “blogging is better than going to court?”  I don’t know about that.  Certainly, that may the best approach for small slights or questionable business practices.

There have been a number of  instances where I did my best for a client by keeping them out of court.  A classic example of this was the engineering client who was wronged by a major national home builder.  The client was ready to sue, but my initial question was whether the client  wanted to keep or lose their relationship with this major company.  Of course, the client wanted to keep it and we adjusted our approach accordingly.  The end result was the major company admitted the error of its ways and continued to do business with the client.  That’s a result that I can take pride in.  However, there are other times where the client wants “just a letter” or where they want to negotiate, but my experience tells me that it will clearly be a waste of time.  In those cases, time and money can actually be saved by just getting down to the inevitable.

It Is Called The Volume Control, Stupid!

The Federal Ninth Circuit Court of Appeals in San Francisco is often described as the most liberal Federal appeals court in all the land.  Thus, it would normally be considered pro-plaintiff in most cases.  Nevertheless, Engadget reports that it recently upheld the ruling of a lower court dismissing a class action suit against Apple for iPod related hearing losses.  Perhaps the class representatives weren’t aware that iPods do come with adjustable volume settings.  I’m not sure that my son is aware of that.  It is always a bad sign if the ear buds are in and you can still tell what someone is listening to.

Forgotten But Not Gone — Digital Evidence Is Hard To Lose

If you’re tempted to hide evidence, don’t do it, especially if that evidence is digital.  Even before the prevalence of digital evidence chances were that you’d be discovered.  Multiple copies are often floating around, especially with medical records.  Details are often missed that show a document is missing or altered.  Not only is it likely to fail, but when you’re discovered you’ll be in an even worse position.  There will be no doubt that you’re a liar and everything you say will be tainted.

This story from “The Globe and Mail” details just how futile it is to try to hide digital evidence.  When you “delete” a file, you’re really only deleting the reference to it in a database, but the data referenced is still on the hard drive.  It is forgotten but not gone.  Forensic software can read that data.  Trying to cover your tracks by overwriting the hard drive just shows that you’re trying to hide something.

A Lawyer’s Dream: Michael Jackson’s Estate

Michael Jackson was as much a corporation as a person.  Like any major celebrity or company, he had ongoing litigation and business operations.  “The National Law Journal” has an article detailing the myriad suits Jackson and his company, MJJ Productions, had at the time of his death.  These suits will continue being litigated by his corporation or his estate.  The corporate suits will proceed with nary a hiccup.  The corporation’s existence is unaffected by Jackson’s death.  Unlike a very small corporation that may be little more than a one man band, MJJ Productions probably has full time professional management.  That management will continue to run the company.  However, there may be issues as to who runs MJJ.  Assuming Jackson owned most, if not all, of the shares of MJJ, the person who controls the estate and eventually his heirs will have control of MJJ as well as his other personal assets and business. 

It is unknown whether Jackson had a will or a trust (or trusts).  According to one attorney,most celebrities have living trusts.  If he has a will or if he died intestate, there is likely to be a delay while a personal representative (a/k/a an executor) is appointed.  If he had a living trust, then the successor trustee can more or less immediately take control of all the assets in the trust.  However, if he had some assets in the trust and some not in the trust, then he may still need a personal representative to manage assets outside the trust. 

Numerous sources estimate his debt at $500,000,000.00.  His spending habits were legendary.  The good news is that his one-half interest in the music catalog that includes 250 Beatles tunes is estimated to be worth as much as $500,000,000.00 to $1,000,000,000.00, but may already be encumbered with a $300,000,000.00 loan.   Other sources say the music business is so bad that Jackson’s assets may not cover the debts.  It is also possible that a fire sale could be forced for the Beatles catalog if creditors get greedy and over anxious.

However, Jackson’s estate may earn even more than Jackson.  Even as I write this, radio stations and TV stations are playing Jackson songs and videos and the royalties are pouring in. Itunes is probably sellng Jackson’s music at a record rate and CDs and posters are flying off the shelves at WalMart.  This income is likely to go further without Jackson to spend it faster than it comes in.  It is likely to support an army of lawyers and accountants and still be able to pay debt and a legacy for his three (3) children.  Elvis Presley’s estate earned $52,000,000.00 last year, which may be more than Jackson earned while living.  Jackson’s estate may do better than Presley’s for the next year or two.  On the other hand, a rush is on for refunds of the tickets sold for his upcoming concert tour.  At least some of that is insured, but one wonders whether there will be suits for the lost profits and money spent in expectation of the tour.

We won’t know for some time just how things will shake out.  One thing is for certain, whether Jackson’s estate proves to be flush or broke, his confused finances and personal life are likely to be a bonanza for a cadre of lawyers on both sides of the issues.

How to Clean Up Your Social Networking for Your Case

Texas lawyer, Jeff Rasansky, gives some sound advice on managing your social networking in the event that you become involved in a lawsuit.  Although written in the context of his personal injury practice, this advice pertains to any lawsuit.  If you’ve read some of my other posts, you already know that your online image can affect your case, including even a landlord/tenant case. An opposing lawyer or client can find out more about you in 2 minutes for free than thousands of dollars and hours of private investigator time would have revealed just a few years ago.  Right now Casey Anthony’s online trail is playing a major role in the investigation into her daughter’s murder as well as influencing any potential juror pool.

Of course, my preference would be for you to properly manage your online image to create a positive impression of yourself from the beginning, as I describe here in “MySpace Can Help Your ‘Case’ Too.” However, if all else fails and you find yourself embroiled in a lawsuit, Mr. Rasansky offers some good advice for how to manage your online postings. Step one is no matter what kind of case you’re involved in, let your lawyer know if you maintain any social networking sites or any personal websites.  Step two is to Google yourself and see what comes up.  Other people may have posted things about you that you are not aware of.  Step three is to adjust privacy settings as necessary, delete as necessary, and quit posting or control your posting to create a positive image.