The Dead Hand

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by Michael A. Kahn


  Ballsack blushed and shrugged. “But not good enough for an A.”

  McAllister chuckled. “Not many were, Harry. Not many. Getting a B in my class is something to be proud of.”

  I leaned close to Jacki. “Give Tom points for picking the right expert.”

  “Might help us, though.”

  Over the next hour of testimony, McAllister walked the Court through the history, the purpose, and the operation of the Rule Against Perpetuities. It was an eye-glazing journey until he reached the property deed at issue, which Sterling presented in blown-up form as a large poster that he placed on an easel facing the judge at an angle between the witness box and the empty jury box. McAllister stood by the easel with a yellow highlighter marker in his hand and moved sentence by sentence through the document, highlighting each of its defects.

  “In short,” he stated after resuming his seat in the witness box, “Exhibit One is a tour de force of violations of the Rule Against Perpetuities.”

  “Thank you, Professor. I have nothing further.”

  Judge Ballsack turned to our table.

  Jacki rose. “A few questions, Your Honor.”

  The judge grinned and raised his arms in a welcoming gesture. “Ah, Miss Brand. Please proceed.”

  I lowered my head to hide my smile. Jacki, God bless her, was the Helen of Troy for more than one of the older and shorter judges in this town. Out in the St. Louis County Courthouse, Judge Howard Flinch was one of at least three judges smitten by my six-foot three-inch, two-hundred-fifty-pound high-heeled law partner, dressed today in a navy pantsuit, white blouse, and low heels. And here in the Civil Courthouse in downtown St. Louis, for reasons too obscure for me to grasp, Jacki was the heartthrob of little Harry Ballsack. Fine by me.

  Jacki asked a few follow-up questions, clarifying some of McAllister’s prior testimony, and then shifted to the sole point we’d hoped to score with him.

  “Professor, has the Missouri legislature done anything to—in your words—ameliorate some of the harshness of the Rule?”

  McAllister gave Jacki a broad smile and nodded his head. “Excellent question, Ms. Brand. And the answer is yes. I would direct your attention—and the Court’s attention—to Chapter 456.025(1) of the Missouri Revised Statutes.”

  “Please explain.”

  “That statute provides a simple way to steer clear of all of those hazards. As the express language of that statute provides, its sole purpose is to provide a way to avoid the Rule Against Perpetuities.”

  “Was that statute on the books when the property deed at issue was created?”

  “Oh, yes, indeed. It has been the law of Missouri for decades.”

  “Could it have been used for this transaction?”

  “Absolutely. If that bequest had been implemented as a trust under that statute, Ms. Brand, none of us would be here today.”

  “Thank you, Professor. I have no further questions.”

  Judge Ballsack leaned forward with a smile. “Thank you, Ms. Brand,” he cooed.

  His smile morphed into a frown as he turned toward Larry Blatz, who was already on his feet and heading toward the podium.

  “Mr. Blatz?”

  “Ready, willing, and able, Judge.”

  “Cut the infantile jokes, Counselor, and ask your questions.”

  Blatz saluted. “Yes, sir, Your Honor.”

  He turned to McAllister. “Good afternoon, sir.”

  McAllister nodded.

  “This Rule Against Perpetuities—we’ve been hearing a lot about it, eh?”

  “Apparently.”

  “Complex stuff, eh?”

  McAllister frowned. “Compared to what, sir?”

  Blatz chuckled. “Good point. Compared to other rules of property law.”

  “There are other rules that I would characterize as equally complex as the Rule Against Perpetuities.”

  “And other rules that are simpler, correct?”

  “Yes.”

  “Do you devote any time in your property law class to teaching your students about the Rule Against Perpetuties?”

  “Yes.”

  “How much time?”

  “Generally, two lectures.”

  “So two classes, correct?”

  “Yes.”

  “Why two?”

  “To make sure my students fully grasp all of its elements, nuances, and risks.”

  “Lots of risks, eh?”

  McAllister sighed. “Yes. That’s one of the reasons I devote two lectures to the topic.”

  “Do you also tell your students about that Missouri statute regarding the use of trusts?”

  “I do, indeed. I make sure my students understand all important aspects of that topic. I generally include a question about it on the final exam.”

  “So if a lawyer hadn’t taken your class on property, he might be, shall we say, S-O-L.”

  McAllister frowned. “S-O-L?”

  Blatz forced a chuckle as he scrambled for a G-rated answer. “You know, uh, So Out of Luck.”

  “Mr. Blatz, I am hardly the only law school professor that includes the Rule Against Perpetuities in his property law class.”

  “But you can speak authoritatively only about your class and your students, correct?”

  McAllister considered the question and nodded. “I suppose you are correct.”

  Blatz grinned. “Yes, I believe I am. And now to my point, sir. We don’t know who taught property law to the late Adam Fox, do we?”

  McAllister smiled. “Apparently, one of us doesn’t.”

  Blatz frowned. “Only one of us? Who?”

  “Apparently you, sir.”

  “Do you know who taught him property law?”

  “I do.”

  “Who would that be?”

  “That would be me, Mr. Blatz. Adam was in my class his first year of law school.”

  For five long seconds, all eyes were on Blatz, who struck what could best be described as his deer-in-the-headlights pose.

  “Well,” he finally said, forcing a chuckle, “and how did he do in the class?”

  “I checked his grade yesterday. I gave him a B.”

  The same grade McAllister gave Judge Ballsack. Even Blatz had enough sense to step back from that ledge.

  He flipped through his legal pad, turned toward Norma Cross, who glared back him, arms crossed over her chest. He looked back down at his notes.

  “Counsel?” the judge said.

  Blatz looked up at the judge with a forced smile. “I think that’s about all for me, Judge. Nothing further.”

  Chapter Thirty-eight

  Sterling rested his case late that afternoon. By then, I’d concluded that we’d never be able to overcome the Rule Against Perpetuities. Jacki and I spent that evening planning our alternative strategy, which was part malpractice claim and part Larry Blatz hand grenade.

  Marsha Knight was our first witness the following morning. Given Judge Ballsack’s obvious crush on Jacki, I had her handle the direct examination. She and Marsha did it quite well, especially when they reached the most awkward part of the chronology of the divorce case.

  “According to the court file,” Jacki said, “Mr. Fox filed his appearance as your attorney in March of that year, correct?”

  “That sounds right.”

  “How long had you known him by then?”

  “Maybe a couple weeks.”

  “How did you select him?”

  Marsha smiled. “Actually, he was selected for me.”

  “By whom?”

  “Ms. Cross.”

  “Norma Cross?” Jacki turned toward Norma, who was seated next to Tom Sterling.

  “Yes,” Marsha said.

  Jacki asked, “How did that happen?”

  “I knew that
I needed a good lawyer. Jerry—my husband, well, my ex-husband—had hired Irving Sliman as his lawyer. If he had Mr. Sliman, that meant I needed someone good. Really good. And tough. I’d seen those ads for Ms. Cross, and friends of mine told me she was the best in town. I made an appointment, we met, we talked about my situation, I came back the next day, she introduced me to Mr. Fox, told me he was a terrific lawyer and the perfect match for Irving Sliman.” She shrugged. “What did I know? I’d never hired a lawyer before. I said okay. That’s how he became my lawyer.”

  “The day that Norma Cross introduced you to Adam Fox—that was the first day you knew him, correct?”

  “Yes.”

  “Mrs. Knight, at some point after that first day, after you established an attorney-client relationship with Mr. Fox, did your relationship with him change?”

  Marsha blushed and looked down. “I’m embarrassed to say yes.”

  “Why embarrassed?”

  “I was a mess back then. Jerry had dumped me for a younger woman. I was feeling pretty lousy. Vulnerable, I guess. Not that that’s an excuse.”

  She took a deep breath and exhaled.

  “Anyway,” she continued, “one thing led to another, and before long we were—well, we were having an affair.”

  “A sexual affair?”

  “Yes.”

  “How long did that last?”

  “A little over a year.”

  “Did that relationship end before your divorce was final?”

  “Yes.”

  “What happened?”

  Marsha frowned. “I never really knew.”

  “What do you mean?”

  “One day over lunch Adam told me we had to stop having, well, you know, we had to stop being intimate with each other.”

  “Did he say why?”

  “No. He just said it wasn’t wise for us to be in that sort of relationship while he was my lawyer. He said we should wait until the case was over, the divorce final.”

  “What was your reaction?”

  Marsha took a deep breath, exhaled slowly, and shook her head. “Confusion. And pain. But mostly confusion.”

  “About what?”

  “Adam just didn’t seem himself. He seemed real nervous. Like he was under a lot of pressure or something.”

  “How close was this to the end of the case?”

  “Real close. The divorce was final about a month later.”

  “Did you and Adam get back together after that?”

  “No. I never heard from him again. I tried to call him. I left some messages on his phone. But he never called back.”

  “Did he break up with you before or after you signed the property settlement?”

  “It was right before that.”

  “Did he advise you to sign it?”

  “Yes. He told me it was a great deal.”

  “Did he tell you he tried to get the property put into a trust for you?”

  She frowned. “He had mentioned something about a trust earlier, but he said this was a better way to go. He said I’d be able to avoid all the bureaucracy of a trust.”

  “So you signed it?”

  “Yes.”

  “On his advice?”

  “Yes.”

  “Did you rely on him and his advice?”

  “Oh, yes. Definitely. I trusted him. And I remembered Ms. Cross telling me what a great lawyer he was.”

  “So you relied on her advice as well?”

  “Yes. Definitely.”

  “In fact, I have here a copy of the final divorce decree.” Jacki held up the order. “It’s marked Exhibit F. May I please approach the witness, Your Honor?”

  “Go right ahead, Ms. Brand. Go right ahead.”

  Jacki smiled at the judge and then walked over to the witness box to hand Marsha the copy of the final divorce order.”

  “Do you recognize Exhibit F, Ms. Knight?”

  “I do.”

  “What is it?”

  “It was the final order in my divorce case.”

  “Do you see the judge’s signature and the date stamp?”

  “I do.”

  “And beneath that are signature lines for your lawyer and for you ex-husband’s lawyer.”

  “Yes.”

  “Who signed as the attorney for Mr. Knight?”

  “Irving Sliman.”

  “And who signed that order as your attorney?”

  “Norma Cross.”

  Jacki paused to let that answer sink in.

  “One final topic, Ms. Knight. How did you find out that your husband knew about your affair with Adam Fox?”

  “When Rachel Gold told me.”

  “When was that?”

  “The day after she took Danielle’s deposition.”

  “What did she tell you?”

  Larry Blatz jumped up. “Objection. Hearsay.”

  Jacki turned to the judge. “I’ll rephrase the question, Your Honor.”

  Ballsack smiled. “Very good, Ms. Brand. Proceed.”

  “Ms. Knight,” Jacki said, “on the day after Danielle Knight’s deposition, during your meeting with Rachel Gold, leaving aside whatever she may have told you, did she show you anything?”

  “Yes.”

  “What did she show you?”

  “The video of Danielle’s deposition.”

  “Any particular portion?”

  “Yes, the part where Danielle said that Jerry told her that I was having sex with Adam Fox.”

  “Thank you, Ms. Knight.” Jacki turned toward the judge. “I have no further questions, Your Honor.”

  Ballsack smiled and nodded. “Well done, Ms. Brand. Mr. Sterling?”

  Tom Sterling scratched his goatee as he mulled it over. After a long pause, he stood. “No questions for the witness, Judge.”

  Ballsack turned, with obvious displeasure, toward Larry Blatz. As Blatz started to rise, Norma Cross grabbed his arm and pulled him back down.

  “Give me a moment, Judge,” he said with a grin. “Got a check in here with the Big Kahuna.”

  After more than a minute of furious back and forth whispers, Blatz shrugged, nodded, and stood. “Well, I guess I have no questions, Judge.”

  The judge turned to Marsha. “You may step down, Mrs. Knight.”

  He turned to Jacki. “Another witness, Ms. Brand?”

  “Yes, Your Honor.”

  Jacki turned to me.

  I stood. “Defendant calls Professor Phoebe Hecht.”

  Chapter Thirty-nine

  Phoebe Hecht was seated in the gallery. I smiled as I watched her come forward, step into the witness stand, and raise her right hand for the courtroom clerk to administer the oath. Although Phoebe Hecht was in her forties, she was still as adorable as a Gerber baby, with big blue eyes, a pug nose, pink cheeks, and curly fair hair cut in a bob. Cute but brilliant. And esteemed within her field of property law, as I made clear in my opening questions, during which, among other things, I introduced into evidence her curriculum vitae, which included a four-page listing of her published scholarly articles on a variety of topics in the field of property law.

  My initial meeting with Phoebe, which Benny had arranged, made me realize that any battle to overcome the Rule Against Perpetuities might be a lost cause. Indeed, that meeting was the main reason I added the third-party claim against the Cross Law Firm. Phoebe’s sole purpose today was to solidify our malpractice claim against Norma’s firm, although much of that work had already been done by plaintiff’s expert, Professor Hiram McAllister. And thus once I established her credentials as an expert, I had only a few questions.

  “Do you cover the Rule Against Perpetuities in your property law class?”

  “I do.”

  “Are all violations of that rule obvious?”

>   She smiled and shook her head. “Sadly, no. I spend most of one class going over some of the famous and convoluted hypotheticals, the ones where the fatal flaw can be hard to find, hidden within a grant that that seems simple and straightforward.”

  “Can you give the Court an example?”

  “Certainly.” She turned to the judge. “One of my favorites is the so-called fertile octogenarian.”

  “Can you explain?” I asked.

  She smiled and nodded. “I’ll warn you: it gets a little crazy.”

  “That’s okay.”

  Judge Ballsack listened intently as she explained the hypothetical bequest to an eighty-five-year-old widow and, after her death, to the first of her children to reach twenty-five, and why it violated the Rule.

  When she finished, I paused to let her explanation sink in—or, perhaps more accurately, to bob along the surface.

  “So,” I said, “application of the Rule can be tricky at times.”

  “Oh, yes. There can be obscure twists and turns.”

  “Is that always the case?”

  “Fortunately, no. Most of the violations are easy to spot.”

  “Have you reviewed the property deed at issue?”

  “I have.”

  “In your opinion, Professor, does it violate the Rule Against Perpetuities?”

  “Absolutely.”

  “Is that violation obscure?”

  “Not at all. I am surprised that Mrs. Knight’s attorney missed it. Indeed, I don’t understand how he could have missed it. I also don’t understand why he didn’t insist that property be handled via a trust.”

  “Why do you say that, Professor?”

  “Quite simple. The Missouri legislature created that trust statute solely for the purpose of safeguarding against the Rule Against Perpetuities.” She shook head. “Frankly, Ms. Gold, Mrs. Knight’s lawyer failed in his duty to protect her.”

 

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