(2012) The Court's Expert

by Richard Isham

  He had a heavy burden to shoulder. He would have to constantly give the impression that he was confident of the ultimate outcome at trial and in control of the litigation day to day. The hardliner among the heirs was Bill Martorano, the elder son and the one who had assumed total control and command of the entire farming operation. The other three children of Martorano had seemed to possess a greater sense of balance and had even shown some interest in exploring the possibility of making settlement overtures to Barnes’s attorney. Bill, on the other hand, was adamant and expressed himself emphatically to the effect that if Corrigan was afraid of the case, Bill would find a fire-breathing litigator who would take the case all the way to verdict and appeal if necessary.

  Corrigan had reached the point in the life of this case when it became necessary to hold the “come to Jesus” meeting with clients about risks and rewards inherent in the resolution of any dispute. There was no escaping the posture of this case. The claimant in the will contest could develop sympathy for herself during trial. Corrigan was confident in his own abilities during trial; he had tried nearly two hundred civil jury trials to verdict. He was not confident, however, that his vociferous client could control himself during the looming courtroom battle. The largest risk was the possibility that Bill would say or do something stupid that would poison the jury against him and his family members.

  Legal counsel has the ethical responsibility to educate his clients about settlement options that Corrigan was only too willing to initiate. He was aware nonetheless that Bill would likely misconstrue his intentions and maybe do something foolish, even fire Corrigan in a fit of emotion. Bill could not calm down long enough to have much of any conversation about the case other than listening to Corrigan advise him of the progress in moving it along toward trial. To his credit, Corrigan had strong intuitive powers honed by his many years of litigation experience. He had engineered some very amazing settlements in the past by knowing just when to broach the subject as the litigants and their attorneys gained greater sensitivity and appreciation of the issues at stake. This case had some options for resolution without trial that begged to be explored at some point. And while it was true that the judge would order mediation and settlement conferences before trial started, the job of convincing his clients still fell squarely on Corrigan’s broad shoulders.

  The paperwork was finalized and the defendants’ motion for summary judgment was filed with the court. Fixed time periods were given to the parties responding to the motion. Only Barnes, through her attorney, intended to file a written reply to the MSJ. Upon receiving the moving papers, Malone took a look at the nearly one hundred pages, tossed the package into a dark corner of his office, and left to find a “cool one.” He did not get to the mail till late one Friday evening and was in no mood by then to plow through the paperwork at that hour. He was in a suitable mood to start the weekend appropriately in his unique style at a local watering hole, where he could jawbone with other lawyers who were also exhausted from the rigors of the work week. He realized that he and his client were up against two well-qualified forensic experts hired by Corrigan. He had no budget to finance any possible counterattack with his own expert. There were some options available to him in defending Barnes in the criminal case, because the court had a budget to assist impecunious defendants and would at least listen to a plea for relief such as hiring an expert for Barnes’s side of the case when the proper time came down stream in the life of that case.

  No parallel existed in the civil arena since the due-process entitlement was not obvious in a will-contest matter because the issues were only about money rather than Barnes’s potential loss of liberty or even her life. Still it gnawed at Malone, who all too well understood the practical if not legal connection between the will contest and the homicide case. The outcome in the will contest case would overshadow the criminal case if Barnes lost it. If the criminal case were tried first, and Barnes was convicted of killing Martorano for his money, the will contest would be over so far as she and Malone were concerned. A conviction of capital murder could be followed by a death sentence in the penalty phase of the case tried in a second phase before the same jury. An automatic appeal to the state supreme court could continue for a decade or more. Additional federal procedures would double the time-consuming appellate proceedings. Not all that uncommon in these cases, such an appeal in the criminal case would put the will contest on hold if the civil case did not go to trial first. Another point was that time is money, and that knowledge could weigh into settlement considerations if all litigants were in their right minds about cutting losses and making peace on an acceptable basis.

  The following Monday morning, Malone could not remember much about his weekend, yet he was sufficiently clear headed to discuss the MSJ with Gloria, his paralegal assistant. Before signing on at Malone’s office, Gloria had worked in a civil litigation firm for years and was well versed in not only the clerical features of preparing the paperwork needed to oppose the motion but in some of the substantive legal aspects as well. In fact, and through no particular fault of his, Malone knew very little about the subject, but he had been smart enough or just plain lucky to have Gloria in his life at this point. She had read the entire motion before discussing it with her boss and had the essentials well in hand.

  “I’ve seen a number of these motions in the past and this one is not the strongest by any means. I think defendants are wasting their money, since the declarations do not accomplish the purpose of the MSJ. There are remaining issues of fact that a jury must decide, in my humble opinion,” she offered, without much animation.

  “Fine,” said Malone. “Throw something together for my review, and we’ll get it on file. I’ll need to get a decent oral argument prepared, however. We’re behind the eight ball on this one without the funds to hire our own forensic expert, I’m afraid.”

  “No question,” Gloria confirmed, “although you have Judge Crouch on the case, and she won’t roll over for this powerful law firm. She will insist on compliance with the law, and to repeat myself, I don’t think the defendants have enough ammunition to win the case on an MSJ,” and with that observation Gloria redirected her attention to the task at hand and began preparation of the reply draft for her boss’s review.

  Malone’s Opposition to the Estate’s Motion for Summary Judgment, was prepared by Gloria, who referenced excellent forms available at the county law library, and it was timely filed after Malone did some fine-tuning of the legal arguments. His point was that the case could not be decided without a trial of the entire case, since there were still conflicted factual issues that could not be resolved against his client on this motion, thus she was guaranteed the right to a jury trial on the merits. Hearings on motions for summary judgment were scheduled several weeks in the future to enable opposing counsel to gather all the necessary evidence and hone legal arguments that would allow the judge to have all pertinent points and arguments presented to her before any decision would be rendered. Opposition papers to summary judgment motions consisted of sworn declarations from witnesses who were present when pertinent disputed events were the focus of the motion. An expert declaration on behalf of Barnes was essential to Malone’s opposition paperwork, but he had long since recognized his defense budget was fully depleted and of no help at this point. His team had to defend the MSJ without forensic support.

  The issues in dispute in this case were rooted in expertise rather than what eyewitnesses might have to say. Since neither Barnes nor her attorney could afford to retain the services of an expert, the counterattack on Barnes’s behalf had to be focused on the disputed factual and expert contentions that remained. Malone was not secure in the knowledge a qualified expert existed who might be able to help his client—even if the funds were available to find and hire one. Thus his efforts were focused on convincing the judge that the opinions of defendants’ experts were not adequate to eliminate all remaining factual issues, which would in turn require the judge to order the case to tr
ial. He felt he had a decent chance of defeating the MSJ, especially as he argued the need of this case getting to a jury for full consideration of all contested issues. As he saw defendants’ theory unfolding that his client had both opportunity and motive to murder her patient, that was a far cry from supporting a homicide conviction that was required if Barnes were to be disqualified from success on her claim. In fact, if and when the case went to trial, Malone planned to ask the judge for a special jury instruction on the reasonable-doubt burden of proof. If the jury determined the oral promise was made, a further finding was needed whether Barnes murdered Martorano. Furthermore, he would request the judge to require a unanimous vote of the jurors on the homicide issue, so that criminal trial procedures would be imported into the civil case.

  If the judge granted summary judgment as requested by defendants, the remaining issues involving distribution of the estate could be resolved through negotiation, mediation, or court-supervised settlement conferences, since Barnes and her “ridiculous” claim would be out of the picture, as Corrigan’s clients viewed the matter. Malone hammered on the theme that motive (desire to move into the mountain home before Martorano died a natural death) and opportunity to kill did not establish an indisputable conclusion that Barnes murdered her patient. Barnes, still caught in the quandary of not being able to waive her privilege against self-incrimination, did not file her own declaration in which she would have denied any complicity in the death of Martorano. Had she filed such a declaration, her opponents would have scheduled her deposition in a heartbeat, since the judge would agree that she had waived her Fifth-Amendment privilege against self-incrimination. She would then be subjected to searing cross-examination and could no longer refuse to testify.

  Malone was satisfied with the finished product. Gloria filed it with the clerk of the court and sent copies to all attorneys of record in the case. The date of the hearing on the motion was still a few weeks away, and Corrigan’s forces had the option to file replies to Malone’s handiwork if they chose to do so. In the meantime, the judge scheduled a status conference and called all trial lawyers to her courtroom to discuss issues in the case well before the formal hearing on the MSJ was scheduled.

  15

  Court’s Expert

  July 2007

  Judge Samantha Crouch hurried to her courtroom hoping to keep up with her busy schedule. Assigned some months before to this complicated will-contest case, her patience was beginning to wear thin. As she approached her chambers, she gazed casually at her image in the mirror near the door, broke stride, slowed, and reached for the doorknob. Catching sight of the reflection of her flowing blonde hair blending into the contour of her judicial robe tracing over a sculpted body, she felt good about the physical attributes of her marathon conditioning. Still, she was beset by a nagging worry that the lethargy resulting from interminable sitting on the bench would slowly but relentlessly erode the hard-earned muscle tone she had molded over the years. Running was a big part of her life, some people said too much actually, but she gave it credit for preserving her sanity while toiling within the ranks of the legal profession. She was grateful to have achieved the summit of her career ambitions. She had gained an excellent reputation for scholarship, common sense, and integrity on the bench and was recognized as a major contributing member of the judiciary.

  She had called the trial lawyers to her courtroom to review progress on the MSJ and to express her concern over an issue of forensics. She had asked the attorneys to submit briefs to her regarding her appointment of a forensic pathologist to serve at the pleasure of the court. She knew this was an unusual procedure, as authorized by the Evidence Code, nonetheless she felt obliged to proceed since she was uncertain of her own ability to independently track the scientific issues of the case. Opinions of the forensic experts who had signed declarations thus far were not significantly contradictory but reflected only the parochial needs of the parties who hired them. Welcome to the hard-ball practice of the art of forensics in the courtroom.

  Under the jury system, challenging scientific issues were referred to a jury panel of lay people who had no particular training to assist them carry out this obligation. Someone in the courtroom should be the referee, and that was the judge’s duty. But judges were not grounded in science generally and rarely had sufficient background on the disputed issues that found their way to trial from time to time. Judge Crouch accepted the burden placed on her by the justice system, and she knew she had to maintain even-handedness. She had seen experts time and again appear to turn themselves inside out to satisfy the needs of a client. No one in the courthouse had any misapprehensions about the function of expert witnesses. Tactically, it was a party’s effort to convince the judge and jurors that the party calling them to the witness stand was guiltless while the opponents were liars, cheats, and hopelessly confused. Once jurors learned of the fees charged by these forensic experts, a kind of cynicism developed that scientific truth was for sale.

  This was to be expected perhaps, yet the exalted principle of serving the interests of justice and seeking truth were objectives that were at risk of being greatly obscured as the competition heated up in this huge-stakes case. Judge Crouch earned high praise for her scholarship on the bench, yet she was trying her first will contest trial. From law school she was familiar with the subject area of the law of will-contests, yet trying such a case was a vastly different and more complicated event. In this matter, the judge hoped that an independent expert might bring an unbiased viewpoint to trial regarding the alleged complicity of defendant Barnes in the death of Mr. Martorano.

  Malone was unaware of Judge Crouch’s concerns, but soon appreciated and supported her willingness to appoint an expert to serve the court. It was an unexpected answer to his client’s long-standing prayer for help. Judge Crouch was prepared to appoint an expert to serve at the court’s pleasure, pursuant to section 730. Indeed, an independent expert was needed, if for no other reason than to obtain an opinion unrestrained by the bias of any party. After all, what expert in this case was speaking on behalf of the decedent’s estate? To put it another way, who would really tell the story of how this multimillionaire actually died, if there was a story at all? It was more than ironic that the decedent was receiving a great deal more attention now that he was dead than he did in the last years of his hellish existence living out his waning years, having driven family and friends away by his entrenched drinking and bitterness. Gone now, he was no longer an obstacle to others reaching for his fortune and taking it for themselves. The outcome of this trial would determine the amounts of the shares to be paid to the numerous claimants.

  On a parallel track, a colleague of Judge Crouch, on the bench in a separate criminal department of the court, had just finished ruling on a procedural motion that arose after charges were filed by the district attorney against Marti Barnes, decedent’s long-term care giver. In the civil case, Barnes was prepared to testify that Martorano promised her his gorgeous mountain home and a hundred thousand dollars a year for the rest of her life in exchange for her nursing services for the rest of his. California law recognized such a claim as a contract to make a will, but the agreement must be written and signed by the parties. Yet, even without a written contract,proof could still be offered in this case where Barnes claimed an oral agreement was made. She was prepared to testify that she had changed her position in reliance on the verbal agreement and had provided her labor in fulfillment of this arrangement. It became an issue of proof, and Barnes had to convince the jury that the deal was made and that she continued on as the caregiver in reliance on Martorano’s promise to include her in his will. Over the years, she had turned down numerous attractive offers from others to change jobs, because she knew she was to receive the home and a pension if she stayed. Since Martorano, the party making the promise, had died, the breach of the agreement was not discovered until the will of the decedent became a public document when it was filed for probate and available for public scrutiny. Barnes
soon discovered that she was not mentioned in Martorano’s will.

  To win on this theory, the jury had to be convinced that the deal had been made at a time when Martorano still understood what he was doing and was capable of managing his affairs. That issue was open to question, although he was not in a conservatorship at the time of his death and still possessed the legal capacity to handle his affairs, unless the facts demonstrated mental incompetence at the time he made the alleged deal.

  ***

  Judge Crouch took a big breath and made her way into the courtroom.

  “All rise. The Superior Court of the State of California for the County of Tulare is now in session. The Honorable Samantha Crouch presiding. Be seated.”

  Once Bailiff McAllister finished intoning his welcoming litany, he reclaimed his own seat and warily made a thorough visual inspection of all objects and people in the courtroom. No surprises. So far, this case had proceeded without the placement of metal detection devices at the doorway to the courtroom. Screening visitors at the entrance to the courthouse should be good enough security for this case, he thought to himself.

  “I have reviewed the briefs and wish to compliment counsel for the good and thorough efforts made at my request,” intoned the judge. “For the record, my query remains as initially indicated, namely, should an expert be appointed pursuant to Evidence Code section 730 to assist the court at this time, and the jury also, for that matter, in this case? Even though this is the court’s own motion, I have not pre-judged the outcome and am pleased to hear from counsel if any of you wish to speak.”