A motion for summary judgment is a good fit for those involved in litigation. If the motion is granted by the judge, it resolves the case without trial, although there is a fairly high incidence of reversal on appeal for many reasons. When that happens, the trial is delayed for as long as a year or two while appellate procedures are pursued. Still, even when the motion is denied numerous benefits emerge. Undisputed factual issues are frequently resolved, and a sharper focus is placed on the ones remaining to be addressed at trial. Proponents argue to the judge that the evidence is so convincing that trial is unnecessary, and the parties should be spared the angst and heavy expense involved in going any further. Judges see the benefits of such a motion, since their workloads are lessened when the motions are granted.
The motion is filed with the court clerk while copies are served on all attorneys of record. Sufficient time is allowed for preparation of opposing and responding papers, including additional factual detail and legal arguments deemed important by the parties either in support of or against the motion. The Martorano estate filed initially to defeat Barnes’s claim. Barnes, through her attorney, aggressively resisted the motion. The Conservancy Fund, a claimant securing a grant from Martorano of a quarter section (a quarter square mile of land) to the Fund to be land-banked, had no position needing protection against the motion. Similarly, Guadalupe Figueroa’s claim was not affected by how her father died. Neither the Fund nor Figueroa objected to Barnes receiving her allowance and would support whatever ruling the judge would make on the motion.
After Charlie accepted Marti’s case, he filed her contest documents with the probate court. He set forth his client’s claim to inherit from the estate based on her contention that the decedent, Lawrence Martorano, gave her verbal assurances that if she cared for him for the remainder of his life she would receive his home in Three Rivers and an annual allowance of one hundred thousand dollars for the remainder of her life. After the heirs recovered from their initial shock over such an “outrageous” claim, they hunkered down and joined forces to oppose her assault on their fortunes.
Barnes’s theory of recovery crafted by her attorney was that Martorano and Barnes entered into an oral contract to make a will. That is, the agreement required Martorano to instruct his attorneys to prepare a written agreement with the terms spelled out so the parties could each sign the agreement before Martorano passed away. Marti performed her side of the agreement relying on her employer’s promise, which was never withdrawn. Martorano died before the agreement was ever drafted and signed. In all likelihood, it was never prepared, yet Marti received no indication that Martorano had changed his mind. She argued that her continued service as his caregiver was provided consistent with the terms of their handshake deal. If the law required that such agreements must be in writing to be enforceable, Malone was prepared to argue that the court should excuse his client from this rule on grounds of fairness, based on the notion that she had performed her side of the bargain, thus the heirs should not be rewarded by the failure of their father to carry out his end of the bargain. She felt her freedom to accept other employment was restricted by her oral promise and Martorano’s apparent reliance on her continued performance. Marti may have wondered at some point why no documents were ever presented, yet she felt in no position to question or otherwise appear to challenge her boss on the subject. She did what she promised to do and simply left the details in the hands of her very capable boss. Following his death, she discovered that he had failed to carry through with the paperwork. The rest was history.
The heirs defended her claim by denying that the agreement had been made in the first place and filed the motion for summary judgment (MSJ as litigators sometimes called it) to obtain such a ruling from the judge without going the full route through trial. Nonetheless, they fully understood that if a jury were to find that the agreement had been entered into by the parties during Martorano’s lifetime (and Barnes was the only living witness now) then a second or fallback defense was essential. Accordingly, they claimed that Barnes was responsible for their father’s death, essentially through the technique of substituting a placebo for the life sustaining IgG that such patients need to survive.
They argued that she had the exclusive care of Martorano and had abused the confidence she enjoyed, gradually charming him into making the alleged agreement. As he lived longer, he became a burden to her. She became impatient and killed him. She was the only custodian of his person and responsible for the infusion therapy that was maintaining his healthy status. No one could reasonably argue with the notion that if she withheld his IgG he would slowly weaken and likely succumb to an infection such as pneumonia.
Under the law common to all states, a claimant who murders a benefactor may not inherit from his estate, for obvious reasons of public policy and public-safety concerns to discourage homicidal practices. In addition to pressing her will contest, she was also defending a capital murder charge and the stakes were of the highest degree imaginable: win or die! For their part, the heirs believed they could pressure Barnes into waiving her will contest so that the criminal charges would simply go away as a part of a final settlement bartered sometime in the future. This thinking was flawed, because the district attorney would not dismiss the charges on the request of a small group of citizens, since the homicide prosecution was in the name of the People of the State of California and in the interest of justice, which trumped any unfortunate “pissing match” over the many millions of dollars held by the estate. The final disposition was totally beyond the control of those who requested the investigation. Now the stage was set, and Barnes was put to the awful test of defending herself against capital murder charges, no matter.
Martorano’s heirs moved in lockstep and cooperated fully as a group. Guadalupe, the stepsister, was not contacted for her cooperation since the first four children of the decedent had not yet reconciled themselves to the notion of having a half-sister. The children of Anna, Martorano’s deceased spouse, operated apart from the single child of Maria, with the net result that they bore the full expense of the motion. They were all spending money they hoped to receive in final distribution of the ample estate.
Attorney Aaron Fineman had agreed to represent Guadalupe and maintained his office in Westwood near the UCLA campus. He was among a generation of East Coast lawyers who migrated to the Los Angeles basin in the 1950s and 1960s. With a sound undergraduate education from Fordham and then Cornell Law School, he was an equal match to any opponent specializing in probate litigation. He represented Guadalupe as the daughter of Martorano, stating that Martorano had impregnated her mother out of wedlock. Representatives of the estate were dumbfounded when Fineman presented his client’s claim. They vehemently protested their ignorance of the existence of their purported half-sister.
Fineman, on behalf of his client, made his client’s position clear in the matter. She did not support the MSJ because she had no factual basis to believe Barnes was responsible for Martorano’s death, and she would object to any portion of the estate assets being used to support the motion. Fineman did not want his client’s share diminished by this foolishness, in so many words, and the other heirs could support such folly from their own resources without expectation of reimbursement from assets of the estate.
Martorano’s heirs hired Harry Corrigan to represent them. He had served their father well for many years and was an unofficial member of the family now by tradition. He had been well educated at Stanford University, receiving an economics degree and then his law degree three years later at Stanford Law School. He was at the top of a stellar career and had come to understand that the cost of success in the law practice was a mixture of hard work, long hours, virtually no family life, high overhead, good earnings, some acclaim, and in particular and without exception, very high stress. This case and others like it were now consuming all his time and energy. While he had narrowed his practice by taking fewer cases, the ones he did handle frequently went to trial and were all big-ti
cket items. With fifty-eight county branches of the California Superior Court and literally hundreds of departments within the urban counties, he could and often did find himself anywhere within a wide variety of local venues throughout the state and out of state as well. Initially he pursued this lifestyle, but he now felt trapped, constantly working at winning the battles of such stressful litigation. His huge reputation and successes barred any escape to a normal life.
Corrigan was respected by his peers and outright feared by most of his opponents whom he generally outclassed and overmatched. Aside from the law, he had little time for the amenities of life or cultivating other interests with family and friends. The mighty princess was a metaphoric euphemism used to describe the figurehead of the mythic goddess of justice who was in real life a tyrant that constantly chained the trial lawyer to his or her cases. It was as though he had become enslaved to a lifestyle that gradually left him with no time to think beyond constantly shifting legal boundaries, much less seek emotional satisfaction or occasional escape. He had grown in such stature that his name was mentioned frequently for appointment to the bench. If he did consider making the application, he was always too busy to even file the necessary paperwork.
In his private life, he could not have been luckier. He and his wife Marjorie met, courted, fell in love, and produced three handsome children, all of whom had finished their educations and were well into their own careers, other than law. She had been his emotional support for thirty-four years.
The pivotal documents involved in the motion for summary judgment were the sworn declarations of the two forensic experts retained by the Martorano heirs, exclusive of Guadalupe. For lack of adequate funding, Marti Barnes went without a forensic expert in her civil case, while the criminal case languished in another department. Malone’s efforts to obtain funding from the judge in the criminal case to retain such an expert went unrewarded to date. On the advice of counsel, Martorano’s son Bill had hired Dr. C. Brock Smythe, a forensic pathologist with offices in San Francisco and Sacramento, who frequently testified for the prosecution in criminal cases. He had an impressive string of victories, and Corrigan had great confidence in his qualifications on paper as well as his savvy manner inside the courtroom. As a backup, Bill’s three siblings, working together, hired a second expert with equally impressive qualifications, Dr. William Baxter Hendricks, whose office was in Chicago. The two experts were careful not to communicate with each other, although their work product was fully shared by their respective clients who retained their services. Corrigan was pleased with their oral reports.
Litigators prefer oral reports from their retained experts initially, since all written materials, including records of telephone calls and their content, are sooner or later turned over to all counsel of record. Rendering of written reports is usually deferred until the latter stages of pre-trial preparation, once the expert receives a green light from the attorney who retained him. In this case, the written declaration of each expert witness filed in support of the MSJ outlined the date of first contact with an attorney or party, details of research, findings, and conclusions regarding cause of death.
Corrigan had long since known that he would “associate,” or bring in to the case, an attorney of high stature who maintained an office in Visalia where the Tulare County courthouse was located. He was well aware of the importance of giving the appearance that he was connected with and respected by members of the local bar. He would convey this message by making it obvious that his clients’ cause was fully supported by such a prominent local attorney. In this case, he determined that he would have this attorney retained by his client’s siblings, thereby showing affirmatively that four parties and two lawyers were working toward a common goal, essentially on the same team while not legally joined at the hip.
His search for qualified attorneys produced a decent list of prospects. After studying the group, he chose Margaret Wilson, a practitioner active in the field of estate planning who enjoyed a solid reputation for service and dedication after spending twenty years practicing in this specialty. Short on litigation experience but long on solid reputation, Corrigan believed Wilson would be of great assistance, because he knew the judges placed their confidence in her word. She presented well and would add a bit of class to the courtroom during trial, if only by her demeanor. Corrigan would handle the histrionics, of course.
Corrigan was not the attorney involved in the probate of the Martorano estate. That task was assigned to a firm from Fresno that specialized in such matters. The probate case was filed in Tulare County, the county of Martorano’s residence at the time of his death. Thus there were three separate legal proceedings involving the Martorano estate directly or indirectly, including the probate proceeding, the will contest (filed in the probate matter), and the homicide prosecution.
Corrigan reviewed the various drafts of the reports of forensic experts retained by the heirs. He had many suggestions, and several more reports were reviewed before he determined that he had extracted as much science as he could from the experts. He noted their work was of the highest quality and the conclusions were in general surprisingly similar, yet he was also confident they had not consulted with one another, consistent with instructions and commonly understood rules of the game. As he reviewed one draft after another, it became clear to him that the experts agreed that Martorano’s health condition made him dependent upon regular and appropriate infusion therapy for his very survival. This circumstance in turn placed a focus on caregivers and the means at their disposal for delivery (or diversion) of the precious IgG to (or away from) the patient.
Martorano’s treatment history was summarized in each expert’s final draft. He was infused by intravenous pumping of the IgG, although on at least one occasion he had participated in a subcutaneous infusion procedure with good results. Certainly during any period deemed relevant over the twenty-four months preceding his death, Martorano’s treatment was intravenous not subcutaneous. Subcutaneous treatment placed the patient in charge of his own treatment, on a weekly schedule for each infusion, whereas intravenous treatment involved a nurse or LVN who placed a needle in the patient’s vein—in Martorano’s case, every three weeks at least.
The experts’ point was that Martorano was in need of supervised infusion therapy and the factual history known to each expert confirmed that Barnes performed this function, thereby giving her opportunity to commit foul play. Furthermore, they found that she had nonexclusive control of the ordering and storage of the IgG pending its delivery to her patient. In addition to Barnes, relatives of Martorano had free access to the place where the IgG was stored, in a refrigerator, before it was given to the patient, and on a few occasions, daughters of the decedent had been involved with Barnes in monitoring the infusion treatment cycle that consumed three hours during the treatment period. Thus, the opportunity to mismanage the IgG infusion was not exclusive to Barnes and was open to other persons, although motive did not implicate persons other than Barnes.
Cause of death on the certificate was pneumonia without further detail. Neither expert made any independent evaluation of the cause of death. Corrigan did not request it and without exhumation of the decedent’s remains, nothing could be gained in any event. Exhumation was never anticipated by the heirs, who expected Barnes to run for cover and dismiss her claim once criminal charges were filed against her. The heirs were not expecting or prepared for Barnes’s stiff resistance. Disappointment of the heirs notwithstanding, Barnes stayed her course with bulldog tenacity.
Corrigan had no problems with the work product of the experts. The reality was, however, that any jury asked to consider this case might not immediately take to the notion that Barnes killed her patient. He simply did not enjoy a “feel good” instinct on this case. He was aware that the heirs were very pleased with Barnes’s performance until the moment she first discussed their father’s alleged promise to her. To the time of their father’s death, she had been a faithful servant to him for many
years, assumed greater responsibilities than necessary for the management of the household and grounds (no small task), and was much beloved by all family members. She had no real motive to hasten the inevitable passing of Martorano in any case, since she was enjoying the fruits of her bargain by living in the home and earning a handsome salary for her efforts. What was to be gained by doing away with her patient? Her gain would be to enjoy the house for herself, yet she seemed to treasure the hustle and bustle of grandchildren (she was “nana” to all of them now) and took apparent delight in helping with the planning of the frequent family celebrations at the mountain retreat.
Corrigan was also aware that his clients were capable of presenting unfavorably to the jurors who might then decide the case based upon sympathy for Barnes. A civil jury verdict need not be unanimous, in contrast to criminal cases. Nine or more of the twelve jurors voting together make a civil verdict. The role of Barnes in this tragedy could be seen favorably by the jurors, who might identify with their perception of her plight: the loyal servant who had this ugly task of fighting for her rights crash down upon her head and shoulders without warning. Barnes was a captive of fate. Corrigan knew a decent defense attorney could make a compelling argument that through her consummate loyalty to her patient, Barnes had embarked on a journey that led her to this predestined and tragic conclusion.
Another feature of the case troubled Corrigan. The jury hearing the civil will-contest case might recognize the connection between the murder allegations and Barnes’s caregiver claim, thereby expecting Corrigan’s forces to prove the homicide theory beyond a reasonable doubt. This was a distinct possibility in spite of the usual jury instruction from the judge that burden of proof in a civil case was by the lesser “preponderance of the evidence” standard rather than the more onerous “beyond reasonable doubt” requirement in criminal cases. Murder is a serious crime, and jurors tended to be independent thinkers as any seasoned trial lawyer knew all too well.
(2012) The Court's Expert Page 20
