graves and tulleners and wrongful death and oregon law

So, my firm was available for Graves and she hired us to prosecute an action against her grandmother and her uncle (as representative of her father's estate), so that she could get approximately $4.2 million more money (she already had $18.3 million).

The first thing a firm has to do in a case like this is to decide on its theories which it would argue before the probate court (in Clackamas County, Oregon) in order to get the court to undo a 1999 agreement dividing the proceeds of the deceased's estate 80/20 in favor of the daughter. Two partners in my firm had already decided on the theories we would argue when I was brought into the case to do some legal research and write some memos to buttress our case. These two theories (which were actually argued at trial and at the Court of Appeals) were that Graves was forced into the 80/20 agreement against her will by the mean uncle or, alternatively, that there was a "mutual mistake" in the drafting of the document (that is, both parties were mistaken on what the law really required--which was that all the proceeds of the wrongful death cause of action flow to the daughter--Graves). Oh, one more theory developed along the way: that the personal representative (the uncle) ought to be "surcharged" for the $4.2 million because he had wrongfully represented to the daughter what the law was in the case. All of these theories were presented in open court both in Clackamas County and before the Court of Appeals.

Getting to Work on the Case

So, I was asked to do some legal research. I prided myself (and my reviews confirmed) on being able to find helpful material from obscure as well as obvious places, but before I dove into the research I wanted to talk to the attorneys in charge of the case. Even though I was a freshly minted Oregon lawyer, I was not a 26 year-old who always just did what I was asked to do. I often wanted to understand what was going on behind the request. I wanted to understand the "big picture" for two reasons--first, I liked the human dimensions of law, and believed that the "big picture" gave me not only an insight into legal issues swirling before us but also into the tugs and longings of the human heart. Second, I wanted to make sure I knew how the nature of our argument fit the facts of the case so I could tailor my memo to those particular facts.

After immersing myself in the facts of the case, I could see how a person could be troubled by a few things. (1) Might one think that any probate court worth its salt will throw out the case simply because our client was represented by counsel when she entered into the 80/20 "split" in 1999? That is, representation by counsel is prima facie evidence of our client's being aware of what she was doing when entering the agreement. Not only, then, did we have to attack a contract (which is pretty hard to do), but we had to attack one where our client was represented by counsel whom she though did a good job. So, the first question in my mind was, 'Why would anyone award us a victory in a case like this?' (2) But then might someone think the following. 'Our client is a young woman in her early 20s who has just received $18+ million. We are going against grandma, a woman in her late 80s, who actually would be a very sympathetic witness for the opposition. Doesn't it just look as if our client is out to satiate her own greed to such an extent that a court will have nothing to do with her?'

So, I proceeded to study further and to write, as I recall, a memo or two which investigated the theories of mutual mistake or duress in entering into the settlement agreement. But after I turned in my memos, I realized that no one wanted to talk to me anymore about the case. In fact, I was removed from it, though no one had the courtesy to inform me of that or to show me my "errors." I no doubt made many errors in my tenure as a litigation attorney at Stoel Rives--and I was usually happy to be informed of them. But in this case, I was simply dropped from the case.

Results

What I am not at liberty to say here are the extent of the legal fees which we ran up in prosecuting our client's interests. I am sure that my old firm will guard those figures very firmly (as they should), but I was astonished when I saw them four years ago. Well, suffice it to say that the case to undo the settlement agreement was prosecuted in Clackamas County in 2002 and 2003 and a resounding victory for the estate and grandma was awarded. Undeterred, we kept representing Graves through appeal. That case, which went to one of our top appellate specialists, was argued late in 2004 and was handed down only last week. It was a unanimous (3-0) decision affirming the decision of the trial court. The appellate court went through the theories which I was asked to work on as long as five years ago, and dismissed each theory with little comment. I don't know if my firm will urge an appeal to the Oregon Supreme Court, but someone somewhere ought to step in and stanch the bleeding before this sad case proceeds further.

Concluding Reflection

More and more, as I write about the human condition, I call to mind classical or biblical passages that seem to capture the reality behind the present-day issue. When this decision was handed down last week by the Court of Appeals, a biblical story came directly to my mind. It appears in the three Synoptic Gospels and is known as the story of the "Woman with a Flow of Blood." In Mark's Gospel the woman's condition is described. She had "been suffering from hemorrhages for twelve years" (Mk. 5:25). This debilitating and continuing flow of menstrual blood sent her to many physicians, and Mark's terse comment says it all:

"She had endured much under many physicians, and had spent all that she had; and she was no better, but rather grew worse" (Mk. 5:26).

And then it dawned on me. Yes, the Graves case is the modern equivalent. A young woman who thinks she is suffering from a deeply-inflicted hurt goes to the professionals. In this case the "doctors" she seeks are among the highest paid lawyers in town. They put her under their care for many years. Only you can conclude if the last words of Mark's account ring true: "And she was no better, but rather grew worse...."

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