Happy Halloween!

Four jack o'lanterns in honor of the holiday

Alien

  

I think this one is spot on.  Those movies were stressful and scary weren't they?

LORD OF THE RINGS

ONE RING TO RULE THEM ALL

ONE RING TO FIND THEM

The detail is just wow.  Very clever. You cannot go wrong with a LOTR reference.  

I call this one "Descent into Sadness"

The night started out so well, and then....

My sister-in-law works for an ENT.  I have begged her for two years to do a jack o'lantern like the puking one appropriately themed for the doctor's specialty for their annual contest. Instead, she did this one.

Don't get me wrong, this pumpkin is great.  

She could totally go for the gross out 

though and it would be hilarious. 

I'm still working on her for next year.

Hope everyone has a happy and safe Halloween! 

Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Appointment Cancellations: Equity is Always the Exception

Any professionals (read:  mainly doctors) who charge cancellation fees with no exceptions are just ridiculous.

People sometimes cancel their appointments or fail to even show up at all; it is just part of doing business with the general public.  Things happen: cars break down, people run out of gas, your boss won't let you off work. Fellow lawyers--who hasn't had a hearing set by the judge at the same time you were supposed to be somewhere else? Court wins almost every time because that is your livelihood.

For chronic cancellations or no shows, I fire the client.  Otherwise, I do not see the wisdom in punishing the vast majority of my clients because of those rare inconsiderate people.  If you do not respect my time, then I have none for you. All others get the benefit of the doubt, and on the occasion when I'm late because life happened, or outside factors, I expect to get it in return. 

I've never even considered charging a cancellation fee and I've never heard of any other attorneys doing so. Has anyone out there ever been charged a cancellation fee by a lawyer? Tell me about it in the comments. 

On the issue of respecting my time, an hour wait at the doctor's office is ridiculous and completely disrespectful of a patient's time.  Life happens, and if it is not a chronic problem, I try to be understanding as the patient.  Emergencies (personal and professional) happen to doctors too.  Who hasn't waited extra long at the OBGYN to find out that the cause was an emergency delivery or some other much more important situation? If the wait is always an hour after my appointment time, then I start looking for a new doctor.  The doctor clearly does not value my time as highly as he or she values their own and that is unacceptable.

Which brings me back to the cancellation fee.  Recently I waited an hour past my appointment time to see a pediatrician.  No apology or explanation was given.  The next week I had to cancel an appointment at the last minute because of outside factors beyond my control. Same doctor sent me a bill for $25. Clearly, we have a different way of looking at things, and she will get her $25 but also never see any of my family again. So she made her co-pay for that allotted time, but she loses all the future co-pays and more importantly my good will.  Yes, I've already had one of those "catch up" conversations in the grocery store parking lot with a fellow mom looking to move pediatricians and I thoroughly trashed this doctor's office policies.

I hated ethics class in law school because the professor was a west coast philosophy major who had never stepped foot in the real world to practice law and the course was in no way geared to prepare us for the MPRE.  In fairness to the professor, this was my last year and I was totally over it. 

I have to give that professor credit though, because she taught me a concept that has never steered me wrong:  Equity is always the exception.

This doctor with the cancellation fee not only needs to think harder about her business model but about fairness in general.  She has lost two new patients in less than 3 weeks, all for $25 because I guess my cancellation messed up her one hour ahead overbooking policy.  

I hope she buys a coke and a smile with it.



JAS

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Thoughts on Women Attorneys and the Conundrum of Appearance

I was sworn in by the late Judge Clinton Foster in September 1994.  My husband, Bob, was two years ahead of me in law school and was working as an assistant public defender.  Bob's entire case load was on Judge Foster's docket so Bob asked Judge Foster to do the honors when I got my bar exam results.

After the pictures and congratulations he told me to "make an appointment with my girl and come talk to me. I'd like to give you the benefit of my 40 years of practicing law."  So I did.  Judge Foster had a lot of good advice that day, but the one thing he said that has stuck with me for 19 years is this:

"Let me tell you how I feel.  

The thing I hate to see the most is a

 woman attorney trying to act like a man."

You are probably thinking that this was an awful thing for him to say and it was (I'm sorry Judge Foster!):  it is sexist, for starters.  But don't beat up Judge Foster too much.*  For all the faults to be parceled from what he said, this bit of our conversation remains to this day to be one of the best lessons I have ever learned about the practice of law.

Whenever I have a conversation with a new woman attorney, I always tell this story.  Why?  Because it illustrates the main concept that influences how I present myself every day as an attorney.

Dress for your audience.

As an attorney, it doesn't matter how you feel about how you look for court.  How you feel is totally irrelevant.   You are there to do a job:  if you are in the courtroom or chambers it is to convince the judge to do what your client wants or needs.  If it is in trial, it is to convince the jury to see the facts your way and the judge to see the law the way that best benefits your client.  In the negotiation room, it can be any of a number of goals depending on the particular dynamic.  Meeting with clients? You want to develop a good rapport and impress them without being unapproachable.

Does it matter how you look when you are doing your job?  I'm sorry but yes, it does.  That is life. Everyone is influenced by the appearance of the people around them. I cringe when I hear younger women attorneys talk about how they are going to dress like they want and force everyone to deal with it.  That's a nice sentiment.  I guess.  But this isn't Utopia, and our jobs as attorneys is to persuade. We teach our children that they shouldn't judge a book by its cover but the truth is that we all do it to some extent.  Maybe not "judging" but we are influenced by how we perceive other's appearance.  My goal with my appearance is always to wring the maximum benefit out of it in any given situation.  If you are not doing that, for whatever reason, are you really doing your job well?  I don't think so.  I think you are letting a major advantage pass you by, and maybe hurting your client in the process.

Early in my career someone told me that the late Judge Bower's father was a "holiness" preacher.  I don't know if that is true, but from that point on I wore only demure "Sunday" dresses or the rare dress and blazer combination in his courtroom. Same goes for Judge Foster.  Both of our recently retired female judges were very sharp dressers, so I always made sure that my look was totally on point when I had court with Judge Costello or Judge Pittman. A law school classmate of mine was recently appointed to the circuit court. When I eventually have court before Judge Gay you may rest assured I will be wearing my best and that it will also be my most fashion forward because Shonna Gay knows her clothes and shoes.  I know a private criminal defense attorney who once made her fabulous hot pink high heels the centerpiece of her closing argument.  She won because she has skills not because the jury liked her shoes, but the point remains that she made an argument using the shoes on her feet to persuade the jury to come back not guilty.

This is not a concept that only works for (or against) women.  Men do it too, it is just easier for them. Basically, all men need to do is wear a suit and tie, get a good hair cut, keep up their basic personal hygiene.  Beyond that, throw away the clown ties (personal pet peeve) and buy some decent shoes. Depending on the situation, tone it down. If you work for the public defender, maybe don't wear a $1,000 suit.  Simple things, really.

My advice to women attorneys is ignore all the "how to dress" type articles out there. Don't even read them, all I ever do is get mad when I do. Invariably, another woman has made a list which consists of: Wear a skirt.  Put your hair up.  Don't wear pants. Wear hosiery.  Wear makeup, but not too much (you'll look aggressive/slutty/frivolous/stupid) or too little (you'll look dowdy and no one likes a sexless spinster).  Wear enough make up so you look "put together" or "polished" and above all else, "natural."  Wear heels, but not too high because that's slutty and not too short because that's dowdy. Look attractive and soft but not too soft because you have to look serious and above all, don't look "manly" because the death of your career is some man thinking you are too aggressive.  Make sure you look "feminine." Don't look trendy but don't dress dowdy either.

Who has time for that?  Not me.

For women attorneys, there's a lot more to consider with respect to our appearance, and there is no one foolproof suit we can wear that works for any situation.  So, I start every day with a review of who I'm going to interact with and how.  When in doubt, I go for the more conservative clothes, hair and makeup.  For shoes (my favorite part), in addition to the above considerations, I think about comfort and whether or not I can wear them all day if that is on the agenda.

In the end, I think women attorneys have an advantage here, however subtle.

My advice is this:  use it.

Julie

*I loved Judge Foster to pieces and the point of this post is not to run him down in any way.  He was a great jurist and attorney, and a good, decent human being. So please do not judge him by this one anecdote.  He always did what he thought was the right thing, even when it wasn't popular or easy. He once found a couple suffering from AIDS guilty of cultivating marijuana (which back then was used to alleviate the side effects of the medications) and rejected their defense of medical necessity.  He withheld adjudication, and sentenced them to one year of unsupervised probation and 500 hours of community service only to be discharged by rendering "care, comfort and concern to each other."  The sum of Judge Foster's character was made of way more than this one off the cuff comment he made to me in the Fall of 1994.

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Faye's Story Redux

Back in March, I told the story of my old client Faye in three parts:  Part One, Part Two, and Part Three.

The critical moment in Faye's story was when at the eleventh hour on the eve of the bench trial on the issue of whether or not Faye's brothers would be heirs of their mother's intestate estate, Faye and the private investigator both located copies of the Final Judgment of Adoption.  When we disclosed to the brothers' attorney that we had located the document, the brothers dropped their claim.  So we never had to go to court and prove the fact of the brothers' adoption, which was essential to Faye's case.

My next post will go through how I had planned to get the key pieces of evidence admitted into evidence at the bench trial.


Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Homestead, Will Contests, and Car Titles: The Last of Smokey Susan

Last month, I shared the sordid tale of one of my least favorite clients, Smokey Susan.  Susan's case involved numerous aspects of Florida probate law, some of which I addressed in this post, here, and here.

In addition, the results of Susan's case were directly affected by Florida Homestead law. Basically, Joe could not leave his interest in his homestead (really 100% but swindled by Susan for 50%) to anyone other than Tami because Tami was under 18 at the time of Joe's death. For a more in depth review of Florida Homestead law, check out this post.

The thing which ultimately tore it for me with Susan was the shenanigans she pulled with the title to the Cadillac.  For more information about how to transfer a title to a car after the owner dies without probate, check out this post.

Lastly, Susan's case involved a will contest.  The basics of a will contest were addressed by Faye's Story, Part One, Part Two, and Part Three.

A short epilogue to Smokey Susan's story:

Whatever happened to Joe's remains?  Melanie skipped out as soon as she figured out she wasn't getting the Cadillac or the house.  Susan did pay for Joe's funeral.  But don't give her too much credit for that sole act of decency;  she charged Tami's half of the sale proceeds from the homestead with the funeral expense in the guardianship.

Like I said, Susan was a real piece of work.


Cheers, and Happy Wednesday. We have officially made it to the downhill side of the week!

Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Statutory Interest Rate in Florida: October 1, 2013 Adjustment

In May 2012, I told you about the new model for statutory or judgment interest in Florida here.  The October 1, 2013 adjustment is out, and it is basically a non-adjustment.

Judgment interest remains 4.75% per year, with a daily percentage rate of .0130137%.  You can see the adjustments, starting with the first one under the new law in July 2012 at MyFloridaCFO.

Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

A Struggle of Wills: How to force the Custodian of a Will in Florida to Provide a Copy

Just as in the case of Smokey Susan, I encounter many clients initially because someone else claims to have the last Will of a recently deceased which the client believes impacts their interests one way or the other.  Under Florida law, if you are the custodian of the original Will of an individual, you are required to deposit the original Will with the clerk of the court in the county where the deceased last resided, within 10 days of your notice of the death.  Note that the time is measured from notice of the death to the custodian, not from the date of death.

Most people are totally unaware that this law exists.  Many people choose to ignore the law, not always for nefarious purposes.  I have many clients who choose not to deposit their deceased's Will because we have determined that there is no need for probate and not filing the Will keeps the terms totally private.  The only downside to this course of action is if the Will is lost and a subsequent probate is needed then we are either left with the expensive task of proving a copy of the Will or in the worst case scenario, a decedent who is rendered intestate.  Most people are willing to take that risk, either for privacy concerns or out of sentimentality.

Some people refuse to provide a copy of the Will, or deposit the original with the clerk for the wrong reasons.  Most of the justifications for not depositing the Will with the clerk are just rationalizations which can be summed up in one word:  Greed.  Unfortunately, the old estate planning adage that "blood is thicker than water, but money is thicker than blood" is true.

When a party having the original Will refuses to deposit it with the clerk, or even provide a copy to my client, I make a demand for compliance with the statute by letter and serve it by certified mail, return receipt requested.  I usually set a 10 day deadline, tracking the notice provision of the statute.  Strictly speaking, the 10 day time period is not required nor is the demand letter.  But in practical terms, you need to show the court that you gave the custodian a chance to comply with the statute.  Otherwise, the first thing the custodian will claim is "I didn't know about the death" or "I didn't know about the statute."

The statute authorizes an action to compel production of the Will and after notice, for an award of attorney's fees and costs and damages associated with the failure to produce the Will.  Another reason to make the formal demand first is that even though the statute only requires petition and notice, in my experience in almost every situation like this, the court wants to see that this isn't the first opportunity the opposing party had to comply.  So, I would never walk into court after the opposing party produced the Will and expect an automatic award of attorney's fees and costs unless I could show the "pre-suit" demand had been made.  Only in a situation where my client is going to suffer immediate harm due to a failure to produce the Will would I even consider foregoing the pre-suit demand.  Even then, I would try to give at least a 24 hour demand first.   As far as damages go, there are no reported cases on the topic and I would not expect to receive such an award absent really egregious circumstances, or some very clear cut and unattenuated damages.

The way this really works is I send the letter and 99% of the time, the person takes the Will to the courthouse and files it with the clerk from whom I then obtain a certified copy.  In 19 years, I've only once had to actually file an action to compel production of the Will and I did it by filing a petition for administration as if the decedent was intestate and adding allegations regarding our demand and her failure to act.  Then I filed a separate motion in the probate to compel her to produce the Will. Unbelievably, she still failed to produce the Will. The court entered a second order, held her in contempt, and assessed attorney's fees and costs against her. Only then did she produce the Will.

The litigant in that probate tried every shady tactic out there to cut her nephew out of his one-half share of the estate.  She even tried to argue that jurisdiction was in Alabama, and that's why she did not have to produce the Will while at the same time alleging that the deceased was the owner of homestead property in Florida.  Since you cannot own a homestead in Florida and be a non-resident, this was the most ridiculous argument of all.

So, the take away from this post should be that if you have possession of a Florida resident's original Will, after they die and you know about it, you need to take it to the courthouse in the county in which they resided.  If you do not know about their death, once you receive a formal demand under the statute to produce the Will, produce it! No harm, no foul.  If you fail to act after notice and demand, eventually, you are going to have to pay someone's attorney's fees for taking you to court and that never ends well.  There is even the possibility of a damage award so the best course of action is to file the Will as soon as you know the testator/testatrix has died.

If you are on the other end of the equation, ask nicely first, then make a formal demand, then file the probate and a motion to compel.  If there are extenuating circumstances where you will suffer specific harm due to the failure to act, make those known to the custodian at every opportunity in order to strengthen your case for damages down the road.

Cheers everyone, it's the Weekend!

Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Cariou v. Prince: A Long Overdue Update

One of my very first posts to this blog was supposed to be about a Louis Vuitton bag, but ended up being about a huge copyright case concerning appropriation art and the fair use doctrine.  The Cariou v. Prince case has made its way from the trial court (Southern District of New York) to the appellate court (Second Circuit), and is now back with the trial court.  The Second Circuit reversed the district court, and remanded the case as to five works for further consideration under the standards set forth in the Second Circuit's opinion.

For a detailed discussion of the Second Circuit's opinion, look to these articles:  Art in America Magazine, Hyperallergic (my favorite), NY Times, or the Gallerist.


Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Filing a Caveat in Florida Probate: What is it and Why do I need it?

A caveat is a pleading which any interested person (creditor, heir, or other party who meets the definition under Fla. Stat. Ch. 731.201(23)) may file with the Probate Clerk in the county in which the deceased resided. The purpose of a caveat is to put the world on notice of your particular interest in the estate, and to make anyone trying to open the estate serve you with notice first before anything happens.

For example, in the case of Smokey Susan, we filed a caveat in order to keep Melanie from opening Joe's estate without our knowledge.  When Melanie did file her petition seeking to be personal representative, the rules required her to serve Susan with formal notice.  The service of formal notice gave Susan 20 days to respond.  Thus, we answered the petition and filed our own pleadings, thereby framing the dispute up for the court and preventing Melanie from seizing control of Joe's estate. Without the caveat, we would have been entitled to notice (to Susan as the natural guardian of Tami), but given Melanie's prior misrepresentations to the funeral home regarding Joe's lack of living relatives, there is a good chance we would not have received notice.   We would have been left with the unenviable task of checking the clerk's website daily to see if Melanie had opened the estate, and we would have had to go through an entire additional set of pleadings just to get our interest before the court.

A caveat is a great way to make sure that you know when a probate is filed.  Many times, a parent will die and a dispute will arise between siblings.  Generally, one of the siblings will have control of the parent's will, and has had access to the parent's finances up until the death, but refuses to share the information with the other children.  There is a method to force the person in control of the will to file it with the clerk of court (look for that information in my next post), but if there's no reason to do so and you just want to make sure a probate does not happen without your knowledge, a caveat is your best bet. Not only does it serve your purposes well, the filing fee is relatively inexpensive and the cost of preparing a caveat should be minimal.



Julie



Copyright 2013 Julie Ann Sombathy All Rights Reserved

Your Funeral: Who Gets to Direct the Details

Last week I shared the story of an old client, Smokey Susan.  Susan originally came to see me because the funeral home would not let her direct the disposition of her ex-husband's remains since there was another person claiming that right, and no clear winner to the dispute.

Susan really had no claim to any right to bury Joe:  they weren't married, and the fact that she was the mother of Joe's only child (a minor) was not very persuasive.  If no one else had claimed the right to direct disposition, Susan would have been okay.  The problem was Melanie's claim that under Joe's will, she had the right to make disposition decisions.

How could the dispute over what to do with Joe's remains have been resolved? The best way to avoid a problem at the funeral home is to execute an Appointment of Agent to Dispose of Bodily Remains.  In this document, you can name an agent as well as a successor agent.  You can also be as detailed or as nonspecific as you choose.

For example, I have clients who have very specific wishes with respect to burial versus cremation.  Along those same lines, many clients have very specific wishes with respect to their place of burial, or the treatment of their ashes.

You can also outline the type of service, if any, you want held in addition to other details.  As examples, I will share excerpts out of two of my favorite "directives":

I.     "I am to be buried in the family plot at the farm in Alabama, in the space between my mother and grandfather and I am to be dressed in the blue silk kimono my second husband brought me back from the War."

II.    "I do not want any type of service at the funeral home, or viewing.  Please bury me next to my wife, and have the preacher give a graveside service for family only.  On the following Saturday night, host a night in my honor at American Veterans Lodge # and open a $500 tab for my friends."

Both of these people are gone now, and their agents did as instructed.

I strongly recommend this document for couples when their children are a "Brady Bunch" or if their children fight and argue.  Often, deep resentments surface after the death of a loved one, and for some reason it starts at the funeral home.  I've had many a phone call from a distressed widow or widower who has found out at the funeral home that the stepchildren have very different ideas about where their deceased parent should be buried.  The strangest one was the case where the deceased had divorced the mother of the stepchildren 30 years prior, but the stepchildren wanted him buried next to their deceased mother (his ex-wife of 30 years) her rather than his current wife of 20 years!

Another way to avoid this situation is to purchase a prepaid funeral plan.  This allows you to decide many of the details in advance, and pay for it.

Many people think that an instruction in their will regarding their burial will suffice, and fifty years ago this was true;  however, the will has to be admitted to probate and the personal representative appointed before the personal representative has the legal authority to carry out your wishes.  Consider the time involved in finding an attorney, an appointment, preparation of the pleadings, and waiting on the court to enter an order and issue Letters of Administration. Even in the best of times, you could be facing a delay of 2-4 weeks, and that is only if everyone involved is on the same page.  If there is a dispute about the will, or there is no will and a dispute among the heirs about who should serve as personal representative, the delay could be months in duration. That's a long time to wait.


Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

A Tale of a Terrible Client--Smokey Susan

CAVEAT: Even though a lot of details are public record, the names and relevant identifying details of all persons, as well as some of the facts, in this post have been altered in order to maintain any potential attorney-client privilege.

Once I had a client named Susan.  She was a real piece of work. Don't cry for her. She totally doesn't deserve it.

Susan came to see me about her ex-husband, Joe.  She was trying make arrangements for Joe’s funeral, and claimed that a  "floozy" bartender named Melanie was trying to take control. Why did Susan care? Susan had a young daughter, Tami.  Susan's ex-husband, Joe, was Tami's adoptive father.  Susan and Joe were married and divorced two times.  Tami came along in between the first and second marriage, and Joe adopted Tami when she was about 5. No one had the authority to dispose of Joe's remains:  he wasn't married, had no living relatives other than Tami, and Tami was not 18.

At first, Susan presented very sympathetically.  Joe was a drunk, horrible person.  The second divorce came about because Joe had molested Tami.  Susan just wanted to protect Tami's interests, and Melanie at the dive bar down the street from his home was trying to steal Joe's estate from his young child.  Melanie claimed to have a will, but she would not provide a copy to Susan or to me.  Because Melanie had a will (she did show it to the funeral home) and because Susan was also claiming the right to dispose of Joe's remains as Tami's parent, the funeral home literally put Joe on ice and told Melanie and Susan to come back with a court order.

The first thing I did was file a Caveat for Susan on behalf of Tami in the probate court records on Joe's estate.  The Caveat insured that no one could do anything in Joe's estate without first giving Susan a 20 day notice.  Sure enough, Melanie filed a petition to administer Joe's estate just a few days later, and had to serve Susan.  I filed a motion to dismiss the petition, as well as an answer and counter-petition to invalidate the proffered will as the product of undue influence.  In other words, I filed a will contest on Susan's behalf. Last, I filed a petition to appoint Susan personal representative of Joe's intestate estate.

The only assets of any value belonging to Joe were a half interest as a co-tenant in his home, the contents of the home, and a Cadillac.  Susan owned the other half of the home, which was purchased by them during the second marriage.  By the time we got all of the initial motions and such before the court both Susan and Melanie had gone into the home and taken items of personal property and Melanie had taken possession of the Cadillac and was driving it (presumably with no insurance). Of course, Susan did not tell me before the hearing that she had taken things out of the home.  By contrast, I had heard extensively in person, on the phone, and in writing about Melanie having that Cadillac. 

A side note about Susan:  she was a heavy smoker.  We had to schedule her appointments so that no other clients were present so I could leave the door to my office open while meeting with her. Imagine the worst dive bar you've ever been in, multiply by 100, and then imagine that stink on one person.  That will give you an idea of how bad she smelled.  She was like Pigpen from Charlie Brown, with a haze of smoke, nicotine and tar buzzing around her at all times like an evil, migraine inducing force field.  Susan was a letter writer.  She would call me or come in, and then immediately follow up with a ten page letter which was nothing but a ramble and regurgitation of the conversation.  Invariably, the letter was trying to get me to agree with whatever harebrained idea she had hatched to get the Cadillac from Melanie.  Also invariably, the letter would smell so bad we would have to open it, and HANG IT IN THE OUTBUILDING BEHIND OUR OFFICE to air it out.  It would still stink afterwards, but it would be bearable. The letter would arrive, and the funk would precede it by 10 feet, minimum.  I never saw Susan when she didn't reek, have a tissue in hand, and she had at least one horrifying coughing fit per visit.  She was also actively sick every single time I saw her.  She even came to court while she had the flu.  I don't think I'll ever forget this aspect of the case. Susan was a one woman walking anti-smoking campaign.

Back to the hearing.  The court refused to appoint either party as personal representative and entered an order that the proceeding was adversary.  The court also entered an order prohibiting either party from removing things from Joe's home, and enjoining Melanie from driving the Cadillac (but allowing her to maintain custody of it for the time being). After the hearing, we filed a petition to determine homestead as to Joe's half interest as a cotenant in the home.  Because Tami was under 18, Joe could not leave his home to anyone else under the homestead provisions of the Florida Constitution.  Opposing counsel (who claimed to be a probate attorney) thought that Joe's will leaving everything to Melanie trumped Tami's homestead rights, which could not have been more wrong.

At Susan and Melanie's subsequent depositions, I first learned that during their second marriage, Joe had executed a will leaving everything to Susan.  The will also provided that if Susan was dead (which is how she would be treated post-divorce), Susan's sister was named as personal representative and trustee for Tami's benefit and Tami was the sole beneficiary of Joe's estate.  Melanie claimed that Joe adopted Tami solely to increase his disability benefits. According to Melanie, Tami had an ongoing relationship with her biological father who agreed to the adoption because he would not have to pay child support.  I also learned that a term of Susan and Joe's divorce was that Susan would deed her half interest in Joe's home to him, an act which she had thus far failed to do.  Melanie also testified that Susan routinely allowed Joe unsupervised visitation with Tami after the second divorce. 

Susan brushed off all of these facts:  she admitted letting her daughter visit with Joe after the divorce (she claimed he was "better"), she said Joe told  her she didn't have to deed him that half interest in his home, she didn't mention the will because she didn't like her sister and did not want her sister to get control of Joe's estate.  All Susan wanted to talk about, ad nauseum, was that old Cadillac.  I have often wondered if the Cadillac had something valuable hidden in it, considering the war Susan and Melanie waged over it.

Prior to his death, Joe had taken out a "title loan" on the car which remained unpaid.  Susan and I discussed her options: she could buy the lien, and we could file a replevin action and repossess the car to satisfy the lien.  Susan listened and understood (her stinky missives made the fact of her understanding very clear).  Instead of buying the loan, Susan went to the loan company and paid off the lien.  Thus, Susan got possession of the title which she then took to the DMV and totally misrepresented her relationship to Joe.  All she needed was a certified copy of Joe's death certificate and the original will she didn't like in order to walk into DMV with the car title and say she was still his wife in order to get the title put into her name. 

Susan showed up at my office and presented the new title as a fait accompli, expecting a pat on the back for a job well done.  This was the beginning of a very rapid end for me and Susan:  she was shocked that I was not happy with her clever thinking, and I was appalled at her disregard for my advice and the law.  I refused to file a replevin action for her and instructed her to that she had to immediately transfer the title back to Joe's name (albeit subject to her lien for the exonerated title loan). Susan refused to do so.  So, in due course, I terminated our relationship.

Susan went back to the attorney who prepared the "lost" will (that she didn't like) and an Order Determining Homestead was entered.  Tami never received a dime.  Susan sold the home within about a year of the order being entered to Tami's biological father. The deed was signed by Susan showed Susan as a co-owner.  How did she pull off that trick? Melanie dropped out as soon as she realized she was not getting the house. I was gone. Susan's new attorney did not know about the divorce agreement and so it looked like Susan owned half and Joe owned half. She even opened a guardianship for Tami, and represented that Tami only owned half (and more importantly, failed to tell anyone about her agreement to deed her half to Joe).  Then in the guardianship, Susan got all the proceeds from the sale (without telling anyone how the buyer was related to her and Tami) because she claimed to have been paying the mortgage and maintenance on the home (which was not the case when I represented her).

What happened to the Cadillac? Well, Susan filed a small claims action and repossessed the car from Melanie using the fraudulently obtained car title.  She also got a judgment for costs which Melanie ultimately had to pay.  Here again, she got away with this for most of the same reasons she got away with the house.  In addition, Melanie did not have an attorney, and must not have understood how Susan could only have lied to get the title.

Why didn't I intervene?  First, I didn't know about it until I went to look at the court records to write this post.  You fire a client and move on. The last pleading I saw in the probate was the Order granting my motion to withdraw. Susan sold the home and repossessed the car about a year later.  Second, even if I had known what Susan was up to, most likely I would not have been able to disclose anything to anyone in order to bring her lies and machinations to light.  In Florida, with very few exceptions, an attorney is obligated to keep the information obtained through representation of a client confidential. Attorneys are expected to err in favor of nondisclosure whenever there is even a question to disclose or not disclose. If I had known about the misrepresentation in the guardianship about Tami's interests in the home and the suit against Melanie to repossess the car, I would have at least called the Bar to get some guidance on my obligations to Susan.

Like I said, Susan was a real piece of work.  She has remarried twice in the intervening years. I could not bear to be within ten feet of her, so I find this fact particularly astounding. I looked Tami up on the internet recently, and it does not look to me like Susan had a transformative experience and became an exemplary parent. Poor Tami, she never had a fighting chance.

Coming up next week:  A post discussing the legal and procedural aspects of this story.

Have a great weekend!

Julie






Copyright 2013 Julie Ann Sombathy All Rights Reserved

Justice Sotomayor Totally Called It: Fourth Amendment vs Domestic Spying

In January 2012, the U.S. Supreme Court issued a landmark ruling regarding warrantless GPS surveillance. Read the full opinion of U.S. v. Jones here.  I blogged about it the day the ruling came out, here.


At the time, I thought the most interesting part was this excerpt from Justice Sotomayor's concurring opinion in which she wrote:

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on....More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties....This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.  Perhaps, as Justice Alito notes, some people may find the “tradeoff ” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year.

(emphasis added).

After this summer's disclosures about the NSA's domestic spying, Justice Sotomayor's words in 2012 were eerily prescient.


Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Random Post about Shoes and Purses

I'm back.  I took a break.  Blogging is hard if you have Can't Stop Editing Syndrome.

I'll be posting again with some new stories from old clients and cases in the next few days.

In the meantime, some fun!

First, shoes that are fabulous. Fall is here (even if it is in the 90's in NW Florida), and every Fall I want accessories and clothes in deep purple, aubergine, eggplant.  This year is no different.

These basic pumps by Louboutin are a great not too dark purple.  LOVE.

Valentino started a collection called Rockstud in 2011.  At first the collection was only for purses, but it has expanded to clothes and yes, shoes.  My favorites are the kitten heel (I can't believe I wrote that).

 Then there's the flat, which is also fabulous.








Lastly, the line also includes the Avoto in Nude.  Gorgeous.

Second, purses.  I have been obsessed with Furla's Candy Bags all summer long.  Maybe it is because I was a teen in the 80's.

I love the cielo blue and the purple.  The transparency of the blue (and most of the light colors) is actually fun. The purse is made completely of PVC rubber.  It is a little heavy, but I've had leather bags that were way worse. They're pretty indestructible too (except for dyes).

There are full size and mini versions.  I prefer the full size bag, called the Bauletto Satchel.  The darker colors are less transparent, more opaque but still very pretty.  The purple matches those Louboutins, doesn't it? Hmmm.

This bag is not for an introvert, as you will be stopped multiple times a day by total strangers to ask about the bag. It is also the most money I have ever spent on a purse ($250). These bags are not cheap, but I have enjoyed both immensely.  If you can manage not to permanently track dye onto the PVC (like I did to the blue one), the resale value on EBay is ridiculous.  I've seen the purse go for more on EBay than you can buy a new one online from a retailer like Macy's.  Go figure.

So I hope you enjoyed the pictures.  I'll be back later this week with a new story and a more serious, lawyerly topic.  For now, have a great week.

Julie




Copyright 2013 Julie Ann Sombathy All Rights Reserved

Weird Judgments

In last week's story, found here (Part 1, Part 2, Part 3 ) I told you about an old divorce decree from 1940's Virginia. When we received a copy of it, I was blown away by some of the recitals it contained.

Any judgment will contain a few "recitals."  Recitals are statements of procedural matters, and sometimes contain findings by the court that are required for the judgment to be entered.  

The divorce decree between Faye's parents contained a recital that both the husband and wife were of the Caucasian race.  When I first read it, I did a straight double take.  Then I remembered that back when Faye's parents were married, the law in the state of Virginia  prohibited marriage between a black person and a white person. This was referred to as the crime of miscegenation.   

The law was challenged, and ultimately the U.S. Supreme Court struck it down as unconstitutional in 1967.  

There's this weird thing that happens in cases:  many times, case names strangely reflect the underlying facts. The case in which the Supreme Court struck down the Virginia marriage law is Loving v. Virginia, which is kind of awesome,  isn't it? 

My Website

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Faye's Story (Part Three)

Today's blog is the final and third part of a client story.  Part One is the back story and context.  Part Two is the will contest. You should read these first if you haven't already done so.    

(CAVEAT: Even though a lot of details are public record, the names and relevant identifying details have been altered in order to maintain any potential attorney-client privilege). 

By the time we reached the point in Faye's story where we determined that the Will was not admissible to probate, almost two years had passed.  During this time, Faye hired a private investigator in Virginia to search for the adoption papers for John and Frank.  We knew that John and Frank were most likely adopted in Virginia, but we did not know exactly where in Virginia and we were not one hundred percent sure that they had not been adopted in Maryland.  This is because very soon after when we believed that the adoption occurred, John and Frank’s adoptive parents moved to Maryland where they lived until their deaths.  The private investigator looked in all of the likely places in Virginia, and then focused his attention on Maryland.  Finding the adoption papers for John and Frank was a two and half year ordeal.  

The investigator first found the probate records of the adoptive parents.  Both the mother and father’s Will referenced John and Frank as their adoptive sons and left them everything.  Nevertheless, this was not direct proof of the adoption.  What we needed was direct evidence of the adoption: a certified copy of the decree of adoption.  So, the investigator kept going and even located the school where John and Frank attended K-12 grade, on the theory that their adoption papers would be in the records.  Unfortunately, this school burned to the ground with all of the records in it.  

After exhausting all potential sources for the adoption paperwork in Maryland and Virginia, Faye then hired an attorney in Virginia in the city where she knew her mother lived after her father left.  This is where we found the divorce decree which stated that four of the five children had been “adopted out” and that Faye was in her father’s custody.  Unfortunately, the divorce decree which recited that four of the five children were “adopted out” this was not direct but rather indirect evidence of the adoptions as well so the search continued. 

Our attorney in Virginia searched long and hard for the adoption paperwork in the town where the divorce was entered, to no avail.  He then turned his attention to where we knew either Faye’s parents had lived or where we believed John and Frank’s adoptive parents lived just prior to their move to Maryland. 

A final hearing was set on the issue of which of the children were legally entitled to inherit and we were set to proceed with the indirect evidence on hand, as well as Faye's testimony.  Without the direct evidence, it would be a decision for the court to make as the trier of fact based on all of the documents and testimony.  If you've never been in this position, let me tell you:  it stinks.  Knowing without doubt that something is true, and being unable to prove it with incontrovertible evidence is the pits both for the client and the attorney.  It would be a massive understatement to say we were stressing over the outcome of this hearing.

Then, for once in her life, luck finally intervened in Faye's favor.  Literally 24 hours before the hearing I received two phone calls.  The first phone call was from Faye.  In going through the attic at her mother’s house she found a box containing all of the adoption paperwork for all four of the adopted children.  None of the paperwork was certified; however, I was confident that I could at least convince the court to give us sufficient time to obtain certified copies now that we knew where to look.  As I hung up with Faye our Virginia attorney called to tell me that he had located the adoption file for John and Frank and that he was overnighting me a certified copy of the adoption papers.  

Once all of the dust settled, John and Frank were forced to drop their remaining action.  Faye inherited one hundred percent of her mother’s estate under the intestate statute because she was the only child who was still legally her mother’s child.    

These events happened a long time ago.  I recently saw Faye at the courthouse and I am sad to say that life continues to be unkind to her.  Faye is one of those people who just seems dogged by tragedy.  Her relationship with John and Frank was irreparably damaged by their actions in the probate.  She still has no contact with Mike (by his choice), and she has no relationship with her nephews by her sister Eliza.  

The greatest irony of the whole thing is that the only asset in the estate was a home.  Not even a particularly valuable home, just a nice little house in a slightly shabby neighborhood.  The most vicious litigation I've ever seen was in probate and in every single case the litigants were not fighting over things, but a mother's love.  

Faye and her brothers never really resolved that issue by fighting over the house and they probably never will.

My Website

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Faye's Story (Part Two)

Today's blog is the second part of a three part client story.  Part One is the back story and context. You should read it first if you haven't already done so.  Part Two is the will contest.  Part Three (coming Friday) is the conclusion. 

(CAVEAT: Even though a lot of details are public record, the names and relevant identifying details have been altered in order to maintain any potential attorney-client privilege). 

Unfortunately, the adoption papers which Faye's mother kept in her Bible disappeared after the funeral.  Since the loss of the adoption paperwork worked to their benefit, John and Frank were the obvious suspects.  Because the adoptions occurred so long in the past and in another state, we had to hire a private investigator to find proof of the adoptions.  As for Eliza, a search of local records found a copy of her obituary which clearly referenced her adoptive mother and her natural mother.  This was enough to convince Eliza’s sons that they should back out of the litigation and they did so early on.   John and Frank on the other hand were also well aware that they had been adopted by an aunt and uncle, but were adamant that they were not adopted.  John and Frank were in it for the cash.  Because we could not find their adoption paperwork we had to proceed on their Will contest.     

In any Will contest regarding the proper execution of the Will, the most important people are the two witnesses to the Will.  If the Will is self proven, the notary is the third most important person.  If the two witnesses give testimony which contradict each other, or show that the Will was not executed properly then the proponent of the Will will lose on that ground.  So in the course of things, I found myself in Pensacola deposing the two witnesses to the holographic Will.  The witnesses were unrelated to each other in any way except they were both friends of Faye and her mother.   On the day that Faye’s mother executed her Will, they were having a party at her house which sounded like a cookout.  Both witnesses gave consistent testimony regarding the manner in which they witnessed the Will.  Unfortunately for Faye, the witnesses’ testimony also completely invalidated the Will.

Apparently, Faye’s mother hand wrote her Will and signed it.  During the party, she asked the first witness to witness her signature.  This part was done correctly in that Faye’s mother showed the signed Will and then attested to her signature to the witness and asked the witness to sign as a witness.  The problem is that the first witness witnessed the Will while the second witness was on the back deck drinking a beer.  Thereafter, the first witness went to the restroom and the second witness came in and Faye’s mother repeated the process.  Thus, neither witness was in presence of each other at all, much less in the presence of Faye's mother and each other, as is required by the Will statute. 

The end result of this was that Faye’s mother was intestate.  The brothers were counting on this because then they would inherit (under their reasoning) an intestate share of their mother’s estate.  Because Faye’s mother was not married at the time of her death her estate would be divided into four equal shares:  one each for Faye and her two brothers John and Frank, and one to be divided by Eliza’s children.  Everyone agreed that Mike had been adopted by strangers, so there was never any suggestion that he would inherit any of Faye’s mother’s estate.    

So, Faye's entire inheritance turned on proving the adoption of John and Frank by the aunt and uncle.  This proved to be incredibly difficult and ultimately required the services of a P.I. and an attorney in two different states as well as some luck.

My Website

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Faye's Story (Part One)

Today I am posting another old client story.  This story is told most easily in three parts.  Today is the back story and context. Part Two is the will contest.  Part Three is the conclusion. 

(CAVEAT: Even though a lot of details are public record, the names and relevant identifying details have been altered in order to maintain any potential attorney-client privilege). 

I once had a client named Faye.  Her story spanned 60 years, took place in four states, involved a child abduction, adoptions, greed, theft, and a mother's overwhelming guilt. This is Faye's story. 

Faye was the youngest of five children.  The oldest two of her siblings were her brothers John and Frank.  The next oldest sibling was her sister Eliza.  Her closest sibling in age was her brother Mike.  When Faye was about five her father announced that he wanted a divorce.  The family lived in Virginia.  This was in the late 1940's.  Faye’s mother had no marketable skills and no college education, without which a woman in that day could not really make enough money to support herself, much less her five young children.  Before the divorce was even filed, Faye’s father picked her up at the playground and drove all the way to California.  Faye lived with her father in California until she was a young adult, with no contact at all with her mother.  In essence, her father kidnapped Faye and left the four older children with their mother to fend for themselves.  Faye's father never supported her mother or his other four children and acted as if they did not exist. 

After Faye’s father abducted her from the playground, her mother fell apart.  Ultimately, Faye’s three brothers and sister were put up for adoption by her mother.  The two oldest boys, John and Frank, were adopted by Faye’s father’s brother and his wife.  Thus, while they were legally adopted, their last name never changed.  Faye’s sister was adopted by an aunt who lived in Panama City.  Her last name changed because the aunt was married.  Faye’s youngest brother was adopted by total strangers;  his last name changed to reflect his new familial relationship. 

Faye was reunited with her mother in her early adulthood.  At that time, her mother had gotten herself back together and moved to Panama City to be close to Faye’s sister.  Faye came back to live with her mother in Panama City when she was a young adult.  Faye lived with her mother on and off throughout her mother’s life.   Before Faye’s sister turned thirty, she died in a car accident leaving two small sons.  In the last few years of Faye’s mother’s life, she was reunited with John and Frank.  They made numerous visits to Panama City to see their mother and would often stay with her. 

Faye's mother never got over having to put her children up for adoption. While she ultimately reunited with four of her five children, the youngest son, Mike, wanted nothing to do with his "birth" family.  Faye's mother kept a Bible on her bedside table.  In the Bible were copies of the adoption papers for all four of her children.  It was the first thing she saw in the morning and the last thing she saw at night: a physical manifestation of her failings.  Anyone who knew Faye's mother, knew her story and the guilt she struggled with to the end of her days.

Faye’s mother died and Faye hired me to probate her estate. This case was unique in so many ways.  Faye’s mother’s Will was a holographic Will.  What this means is that the Will was entirely handwritten.  A holographic Will in Florida is perfectly legal as long as all of the formalities required by the Will statute are followed.  The formalities are pretty simple.  First, the person signing the Will (Testator or Testatrix)  must sign at the end.  Second, the Testator must then either affirm their signature to two witnesses (“this is my signature, please witness it”) or actually make the signature in the presence of two witnesses.  Next, and the part which most often is not performed correctly, the two witnesses must witness the signature in the Testator’s presence and in the presence of each other.  A notary is not required in order to properly execute a Will; however, if you wish to make the Will self-proven then the Testator and both witnesses must sign again with the same formalities and the notary must notarize all three signatures.  A self proving Will is ideal because it does not require the testimony or oath of a witness to allow admission of the Will to probate.  Click here for more detail on wills and probate.    

Faye’s mother’s Will left everything to Faye and named Faye Personal Representative.  Everything appeared to be in order, so we filed a Formal Administration.  Faye’s brothers intervened together with Eliza’s two children claiming that they were entitled to a share of the estate and contesting the Will.  A Will can be contested in Florida for three main reasons:  first, a Will may be contested on the basis that it was improperly executed;  second, a Will can be contested because it is the product of “undue influence;”  third, a Will can be contested on the basis that the Testator was incompetent at the time the Will was executed.  Undue influence is a topic in and of itself and it was not raised in this case.  The contest was based on claims of improper execution as well as incapacity of Faye’s mother.  

Testamentary capacity is a different evaluation from mental capacity.  In Florida, testamentary capacity means that you are able to identify the natural objects of your bounty, you comprehend the nature and extent of your assets, you are oriented to time and place, and you are capable of understanding the legal effect of the documents that you are signing.  This is a very minimal standard. An oft cited case held that "even a mad man may sign a will during a lucid interval."

When we first received the intervention pleadings,  we foolishly though that we would be able to resolve the matter quickly because John, Frank, and Eliza had been legally adopted.  In Florida when a person is legally adopted they are no longer the blood relatives of their natural parents or anyone related to their natural parents, and are immediately treated as a blood relative of their adopted parents and anyone related to their adopted parents.  So, in essence, adoption in Florida changes your blood lines by  legal fiction.  There are three main exceptions to this rule, found at Florida Statute chapter 732.108(1)(a)-(c)(2013)(click here for the text). For this reason we believed that simply showing the court that John, Frank and Eliza had been adopted would be sufficient. 

That is not how things turned out, and what started as a simple probate with a handwritten will turned into a three year saga with several dead ends and turns before resolution was finally found.

My Website

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Will You Still Love Me, Tomorrow? (Or, Getting Paid)

When a client does not pay me I wonder how can they respect me if I don’t insist on payment?* Letting a client go indefinitely without payment is the ultimate beta move, and sets up a toxic dynamic from which there is no where to go but down. Either the client gets right on their payments, or we part ways.  Any other arrangement is not worth the hassle. 

To get paid, you have to send the client a bill.  The worst mistake is not sending bills to your client on a regular and frequent basis.  If you send a client a bill six months into their case, they will not have a sharp memory of everything that has happened and often believe that the bill is inflated. Another mistake that attorneys make is not putting sufficient details in their invoices.  Conversely, some attorneys go overboard, and the billing entry takes longer to read than the actual work took to perform.  A client should not have to wade through sixteen generated phrases per billable to figure out what it is you did for them that day.

The worst kind of client is the slow payer.  The thing that clients who slow pay do not understand is that unless there is a court order or a statute which requires me to move on their case in an expeditious manner, slow payers get moved to the bottom of the stack both on my desk and in my mind.  The clients who pay me promptly go to the front of the line because they are treating me and my services as a priority. 

The simplistic “fix” offered to the slow payer problem is “just make everyone put money in trust.”  This works to a great extent.  I do a lot of work on a flat fee basis, and I require payment in full before I will put pen to paper or dictate a single word.  Otherwise, I require fee retainers. Even so, there are times when a retainer is not called for and there are some clients who refuse to deposit retainers.  Most of the time, this works out fine and the client pays their bill promptly.  In this situation, the lawyer has to depend on their intuition and other indicators to determine if the client is a good risk.  Most importantly, a case without a fee retainer is a situation that has to be monitored closely. 

Whenever I encounter a client who resists a retainer I keep a very close eye on their billables and their payments.  It is an absolute beginner’s mistake to allow billables to get too far ahead of a client’s payments. Once this happens, you are trapped too far out on the limb to cut it off without falling to the ground with it.  This is especially so in litigation where in one month an invoice is de minimis and the next an invoice is several thousand dollars.  When billables outstrip payments by 90 days or more, your chances of receiving full payment are practically none.

In my experience slow payers are the most demanding clients. Ironic, isn’t it? One of the hardest things to learn as an adult is when to quit someone, whether it is in a personal or professional setting.  I’ve learned the hard way to quit slow payers sooner rather than later. 

Frankly, I’d rather heat a can of beans on the engine block of my truck than involuntarily work for free.  At least I’ll still respect myself in the morning.

My Website

*NB:  This post addresses only paying clients, not pro bono cases where the lawyer is voluntarily working for free.

Copyright 2013 Julie Ann Sombathy All Rights Reserved