Ethical Dilemmas Facing Counsel for the Personal Representative in Wrongful Death Cases
David H. Williams Williams Law Firm 212 Center Street 2nd Floor Little Rock, AR 72201 501.372.0038 501.376.9347 dwilliams@dhwilliamslawfirm.com
I.
Introduction
Plaintiffs’ lawyers have an obligation to be informed of the law and knowledgeable of their role and ethical duties as attorney for the estate. They have a duty to properly advise the personal representative as to her role as fiduciary to all the statutory beneficiaries. Plaintiffs’ lawyers have a further duty at the beginning of the representation, although not necessarily a legal one, to notify and advise all the known beneficiaries as to the nature of the proceedings, the attorney’s role, the personal representatives role, and their potential claims for recovery. A smart lawyer will do this at the beginning of the representation so as to avoid problems down the road when the money comes in (and hopefully that is going to be the case). The attorney should get everyone (beneficiaries and the personal representative) in his conference room and do his best to have all reach an agreement, or at least an understanding that they will all be rowing the boat in the same direction. The main idea is to engender trust in the lawyer and the personal representative that everyone’s interests are being represented. Careful thought should also be given to the content of the petition for appointment of the personal representative and the specific authority requested from the court. This is especially true where there are minor beneficiaries and settlement is going to involve structures and/or guardianship proceedings. It’s a bit late to wait until there is an acceptable offer on the table before trying to work out a satisfactory distribution scheme with the beneficiaries. The idea is to encourage communication and engender trust on the front end and not wait until there is money on the table before talking to folks about how much they might deserve for their grief and pain. In other words, act like a fiduciary because that is what you are. The purpose of this article is to alert lawyers to the potential pitfalls and traps that await those who handle wrongful death claims.
1
II.
The Personal Representatives Fiduciary Duties
A.C.A. § 16-62-102(d) provides that the beneficiaries of the deceased in a wrongful death action shall be the surviving spouse, children, father and mother, brothers and sisters of the deceased person, persons standing in loco parentis to the deceased person, and persons to whom the deceased stood in loco parentis. The personal representative, in bringing suit for wrongful death, acts only as a trustee of conduit, and any proceeds recovered are for the benefit of the beneficiaries and not for the estate. Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990). A personal representative occupies a position of trust with regard to all those interested in the Estate. By statute, the representative is liable in seven instances for loss of estate assets: (1) neglect or unreasonable delay in collecting the assets of the estate; (2) neglect or unreasonable delay in the Court ordered sale or lease of estate property; (3) neglect or unreasonable delay in delivering estate property into the representative’s hands; (4) embezzlement or commingling of the estate assets; (5) self-dealing; (see Holt v. Moody, 234 Ark. 245, 532 S.W. 2d, 87 (1961); (6) wrongful acts or omissions of a corepresentative that could have been prevented by ordinary care; and (7) any other neglectful or willful act in the representative’s administration of the estate. ACA § 28-52101 (c)). Every presumption is against the representative, and she has the burden of showing what did happen to the assets. Ringgold v. Stone, 20 Ark. 526 (1859) Should the personal representative or chosen counsel fail to provide adequate representation to protect the interests of the beneficiaries, application can be made to the probate court to either not approve or disallow the contracts entered into by the representative, and a representative can be removed pursuant to A.C.A. §28-48-105 if the court finds him unsuitable. Id. A personal representative can be held liable for fraud for engaging in affirmative acts that conceal the proceedings from a beneficiary. See, England Loan Co. v. Campbell, 183 Ark. 49, 35 S.W.2d 75 (1931), and Walters v. Lewis, 276 Ark. 286, 634 S.W.2d 129 (1982) (fraud by personal representative in closing estate without notice to widow). In Walters v. Lewis, 276 Ark. 286, 634 S.W.2d 129 (1982) the Arkansas Supreme Court found that the personal representative breached her duty of trust and was guilty of fraud in failing to advise some of the heirs when the estate was closed and leaving an heir’s name off the list of heirs as required by her position of Administratrix of the estate. The Court found no basis for the excuse used that the administratrix thought that the heir had divorced the deceased. The court held as follows: We find that the personal representative committed fraud by failing to notify the appellants of her appointment and by not listing them as heirs on her petition for letters of administration. 2
This was a suit for damages based on the fraudulent actions and inactions of the personal representative of the estate. Both cases held that “ . . . if through fraud, accident, or mistake any property of said estate has not been actually reported, accounted for, or actually administered, a chancery court has jurisdiction to investigate such charge, and to set aside such judgment confirming the final settlement and closing the administration. When that is done, the chancery court will remand the administration, if deemed necessary, to the probate court to be proceeded with.” (England Loan v. Campbell, 25 S.W.2d at pp. 78-79). An illegitimate child is the beneficiary of the deceased in a wrongful death action. Ragar v. Turley, 68 Ark. App. 187 (1999). The burden of proof is on the child to prove her status. The court shall conduct a hearing to determine same. Id. Subsections (g) and (h) of the wrongful death statute provide that the court approving the compromise settlement shall fix the share of each beneficiary, upon the evidence, and that the probate court shall consider the best interests of all the beneficiaries. Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994). Probate Court does not have jurisdiction to try tort cases, to hear negligence claims, or to decide issues collaterally related to other lawsuits. See, Eddleman v. Estate of Farmer, 294 Ark. 8, 140 S.W. 2d, 141 (1987); In re Morgan, 310, Ark. 220, 833 S.W. 2d, 776 (1992); and Wilson v. Wilson, 327 Ark. 386 (1997) which states that the Probate Court cannot hear a fraud case where (a) an adequate remedy at law exists, or (b) a special circumstance exists removing jurisdiction from the Probate Court. If, because of fraud, accident, or mistake, property of the estate has not been properly administered or reported, the Chancery Court has jurisdiction to investigate and set aside the final order closing the administration. England Loan Co. v. Campbell, Id. Jurisdiction is then returned to the Probate Court for further proceedings. Equity has power to set aside an approved settlement obtained by fraud, accident, or mistake, but not to correct mere mistakes. Jones v. Graham, 36 Ark. 383 (1880).
III.
Applicable Code Sections Survival of actions — Wrongs to person or property (Including 2001 amendment subsection b)
16-62-101.
(a)(1) For wrongs done to the person or property of another, an action may be maintained against a wrongdoer, and the action may be brought by the person injured or, after his or her death, by his or her executor or administrator against the wrongdoer or, after the death of the wrongdoer, against the executor or administrator of the wrongdoer, in the same manner and with like effect in all respects as actions founded on contracts.
3
(2) Nothing in subdivision (a)(1) of this section shall be so construed as to extend its provisions to actions of slander or libel. (b) In addition to all other elements of damages provided by law, a decedent’s estate may recover for the decedent’s loss of life as an independent element of damages.
16-62-102.
Wrongful death actions — Survival (Including 2001 Amendment found in subsection d(2) and (3))
(a)(1) Whenever the death of a person or a viable fetus shall be caused by a wrongful act, neglect, or default and the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereof if death had not ensued, then and in every such case, the person or company or corporation that would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person or the viable fetus injured, and although the death may have been caused under such circumstances as amount in law to a felony. (2) The cause of action created in this subsection shall survive the death of the person wrongfully causing the death of another and may be brought, maintained, or revived against the personal representatives of the person wrongfully causing the death of another. (3) No person shall be liable under this subsection when the death of the fetus results from a legal abortion or from the fault of the pregnant woman carrying the fetus. (b) Every action shall be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person. (c)(1) Every action authorized by this section shall be commenced within three (3) years after the death of the person alleged to have been wrongfully killed. (2) If a nonsuit is suffered, the action shall be brought within one (1) year from the date of the nonsuit without regard to the date of the death of the person alleged to have been wrongfully killed. (d) The beneficiaries of the action created in this section are: (1) The surviving spouse, children, father, mother, brothers, and sisters of the deceased person; (2) Persons, regardless of age, standing in loco parentis to the deceased person; and (3) Persons, regardless of age, to whom the deceased stood in loco parentis at any time 4
during the life of the deceased. (e) No part of any recovery referred to in this section shall be subject to the debts of the deceased or become, in any way, a part of the assets of the estate of the deceased person. (f)(1) The jury, or the court in cases tried without a jury, may fix such damages as will be fair and just compensation for pecuniary injuries, including a spouse’s loss of the services and companionship of a deceased spouse and any mental anguish resulting from the death to the surviving spouse and beneficiaries of the deceased person. (2) When mental anguish is claimed as a measure of damages under this section, mental anguish will include grief normally associated with the loss of a loved one. (g) The judge of the court in which the claim or cause of action for wrongful death is tried or is submitted for approval of a compromise settlement, by judgment or order and upon the evidence presented during trial or in connection with any submission for approval of a compromise settlement, shall fix the share of each beneficiary, and distribution shall be made accordingly. However, in any action for wrongful death submitted to a jury, the jury shall make the apportionment at the request of any beneficiary or party. (h) Nothing in this section shall limit or affect the right of probate courts having jurisdiction to approve or authorize settlement of claims or causes of action for wrongful death, but the probate courts shall consider the best interests of all the beneficiaries under this section and not merely the best interest of the widow and next of kin as now provided by § 28-49104. (i) It is not the responsibility of the personal representative of a deceased person to locate anyone in loco parentis who is not known to the personal representative to be in loco parentis to the deceased person. 28-9-209. Legitimacy of child — Effect. (Statute of “Non-Claim”) (a)(1) If the parents of a child have lived together as man and wife and, before the birth of their child, have participated in a marriage ceremony in apparent compliance with the law of the state where the marriage ceremony was performed, though the attempted marriage is void, their child is deemed to be the legitimate child of both parents for all purposes of intestate succession. (2) A child born or conceived during a marriage is presumed to be the legitimate child of both spouses for the same purposes. (b) If a man has a child or children by a woman, and afterward intermarries with her and recognizes the child or children to be his, the child or children shall be deemed and considered legitimate. 5
(c) Any child conceived following artificial insemination of a married woman with the consent of her husband shall be treated as their child for all purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence. (d) An illegitimate child or his descendants may inherit real or personal property in the same manner as a legitimate child from the child’s mother or her blood kindred. The child may inherit real or personal property from his father or from his father’s blood kindred provided that at least one (1) of the following conditions is satisfied and an action is commenced or claim asserted against the estate of the father in a court of competent jurisdiction within one hundred eighty (180) days of the death of the father: (1) That a court of competent jurisdiction has established the paternity of the child or has determined the legitimacy of the child pursuant to subsections (a), (b), or (c) of this section; or (2) That the man has made a written acknowledgment that he is the father of the child; or (3) That the man’s name appears with his written consent on the birth certificate as the father of the child; or (4) That the mother and father intermarry prior to the birth of the child; or (5) That the mother and putative father attempted to marry each other prior to the birth of the child by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; or (6) That the putative father is obligated to support the child under a written voluntary promise or by court order. (e) Property of an illegitimate person passes in accordance with the usual rules of intestate succession to his mother and his kindred of her blood and to his father and his kindred of his father’s blood, provided that paternity has been established in accordance with subsection (d). (f) Nothing contained in this section shall extend the time within which a right of inheritance or a right to succession may be asserted beyond the time provided by law relating to distribution and closing of decedents’ estates or to the determination of heirship, or otherwise.
6
IV.
Duties of the Personal Representative; Liability of the Personal Representative and Damages Available for Breach; Damages Available under Wrongful Death Statute A. The personal representative has a duty to make sure all the beneficiaries’ interests are being represented. She has a fiduciary relationship with the heirs and the beneficiaries. Her duty by law is to act in the utmost good faith in administering the estate. She occupies a position of trust with regard to the beneficiaries. A personal representative is liable for loss of estate assets where there is neglect or self-dealing. Degree of care must the personal representative exercise in handling the funds of the estate? The prudence of an ordinarily prudent person. Personal representative be charged with interest on the funds she handles when there has been neglect. Every presumption is against the personal representative and she has the burden of showing what happened with the assets. The personal representative acts as conduit to direct the funds to those entitled to receive the funds under the wrongful death statute. If the case is tried and the jury returns a verdict, the jury or the judge determines the shares of the beneficiaries and makes the distributions. If the probate court approves a settlement, the statute states that the court must consider the best interests of all beneficiaries under the wrongful death statute, not merely the widow and next of kin, in making distribution. What damages can the statutory beneficiaries claim? Mental anguish. Spouse gets loss of consortium. Pecuniary injuries - present value of benefits, including money, goods, and services that decedent would have contributed to the statutory beneficiaries if he had lived: A. B. C. Past contributions and reasonably expected contributions he would have made Length of future contributions to beneficiaries Past and future earnings 7
B. C. D. E.
F.
G.
H.
I.
J.
K.
L.
D.
Life expectancy of deceased and beneficiaries
The goal is to calculate the contributions the decedent would have made to the beneficiaries after his personal living expenses, taxes and other deductions, with due consideration for future changes in earnings. Includes value of services of full-time homemaker. E. Fact finder can also hear evidence of non-objective factors such as the supervision , instruction and moral training he might have given his children during the age of minority; his expenditures for customary personal expenses, and his habits of industry sobriety and thrift. Recovery for loss of parental guidance is appropriate ONLY WHEN THE LOSS HAS BEEN SPECIFICALLY PLEADED. Expenses after majority have been awarded, like cost of college education. Strahan v. Webb, 231 Ark 426 (1959) While court has reduced amounts awarded, it has never rejected a particular element of pecuniary loss. James Goldie: Comment, The Ark Wrongful Death Statute, 35 Ark L. Rev. 294, 305 (1981).
F.
G.
H.
M.
The measure of the personal representative’s recoverable damages under the wrongful death statute, not the survival statute, is wholly dependent upon the identity of the heirs or beneficiaries. (George Rose Smith’s dissent in Reed v Blevins, 222 Ark 202, 1953). The attorney for the estate is negligent if he fails to properly inform himself of the law as it relates to the Arkansas Wrongful Death Statute. The attorney for the estate has a duty to advise the personal representative that she is obligated to pursue claims for all the beneficiaries.
N.
O.
V. Applicable Case Law
1.
Wausau v. Didion Mid-South Corp., 65 Ark. App. 201, 987 S.W.2d 745 (1999) liability of fiduciary Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990) - conflict between personal representative and beneficiaries - what steps need to be taken to preserve claim. 8
2.
3.
Spencer v. Regions Bank, 73 Ark. App. 55, 40 S.W.3d 319 (2001) - 3rd party beneficiary status to bring claim for legal malpractice. See Judge Wendell Griffin dissent, 73 Ark p. 62. McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999) - 3 rd party beneficiary status to bring claim for legal malpractice. Harvest Foods v. Pennington, 326 Ark. 704, 934 S.W.2d 485 (1996) - aiding and abetting breach of a fiduciary duty; civil conspiracy. Hardy v. Hardy, 217 Ark. 296, 230 S.W.2d 6 (1950) - beneficiary may hold trustee liable for damage caused by neglect or misconduct Riegler et al v. Riegler, 262 Ark. 70, 553 S.W.2d 37 (1977) - fiduciary duties of trustee; grounds for removal. Long v. Lampton, 324 Ark. 511, 922 S.W.2d 692 (1996) - liability of fiduciary Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996) - liability of fiduciary Rstmt (2nd) of Torts. SEECO, Inc., Arkansas Western Gas Company and Southwestern Energy Company v. Allen Hales, Mary Nelle Hales, Robert G. Jeffers, David P. Taylor and Taylor Family Limited Partnership “A”, 341 Ark. 673, 22 S.W.3d 157 (2000) - silence in face of fiduciary duty to disclose is fraud Walters v. Lewis, 276 Ark. 286 634 S.W. 2d 129 (1982) - personal representative breached duty of trust and guilty of fraud by failing to notify heir of death; of her appointment as personal representative; and to notify when estate was closed. SOL tolled, too. Wilson v. General Elec. Capital Auto Lease, Inc., 311 Ark. 84, 841 S.W.2d 619 (1992) - fraud tolls SOL Bell v. Estate of Bell, 318 Ark. 483, 885 S.W 2d 877 (1994) - apportionment of proceeds to minors; factors to consider; collateral source rule does not apply. Boatman v. Dawkins, 294 Ark. 421, 743, S.W. 2d 800 (1988) - A.C.A. § 28-9-209 held constitutional. Does not violate equal protection. Brill on Damages Ch. 20 - Estates and Trusts § 20-1 - Liability of personal representatives 9
4.
5.
6.
7.
8. 9.
10.
11.
12.
13.
14.
15.
§ 20-2 - Suits by representatives of the estate § 34-2 - Pecuniary losses § 34-3 - Mental anguish 16. Douglas v. Holbert, 335 Ark. 305, 983 S.W. 2d 392 (1998) - probate court’s jurisdiction, power and authority to apportion settlement proceeds. McGuire v. Smith, 58 Ark. App. 68, 946 S.W.2d 717 (1997) - approval of attorney’s fees. Rager v. Turley, 68 Ark. App. 187, 6 S.W.3d 113 (1999) - A.C.A. § 28-9-209 is not applicable to determining beneficiary status under Wrongful Death Act. Raspberry v. Ivory, 67 Ark. App. 277, 998 S.W.2d 431 (1999) - re A.C.A. § 28-9-209 Robinson v. Winston, 64 Ark. App. 170, 984 S.W.2d 38, (1998) - removal of administrator. Sexton Law Firm, P.A. v. Milligan, 329 Ark. 285, 948 S.W. 2d 388 (1997) - breach of fiduciary duty. Howard Skaggs v. Charles Edward Cullipher, 57 Ark. App. 50, 941 S.W.2d 443 (1997) - family settlement agreement not binding on those who don’t sign.
17.
18.
19. 20.
21.
22.
VI.
A Case Study Real life is bizarre; more bizarre than a lot of good fiction. All those wacked-out fact
scenarios in law school finals aren’t just the creation of some sadistic law professor. They really exist. Here is one such example: This story involves a lawsuit by the illegitimate daughter of the deceased against the personal representative and the lawyers for the estate alleging that they deprived her of her statutory right to have her interests represented in the wrongful death claim, and her right to inherit from her father’s estate. It occurred as a result of the personal
representative’s breach of her fiduciary duties and the defendant lawyers’ aiding and 10
abetting that breach. The complaint also alleged constructive fraud, fraud, and civil conspiracy to breach a fiduciary duty, and punitive damages. Deposition testimony was that the personal representative told the estate attorneys from their very first meeting about the existence of the child, her date of birth, her mother’s name, phone number and address, and that she was believed to be her deceased husband’s only living child. The personal representative testified that she was advised by the attorney for the estate that her deceased husband’s illegitimate child had no rights in the wrongful death lawsuit. She testified that the lawyer never advised her of her duties and obligations as personal representative of the estate, nor of her duty of ultimate good faith to represent the interests of all the beneficiaries; that she repeatedly (“at least a dozen times”) asked the attorney for the estate about the illegitimate child’s legal standing and that the attorney for the estate assured her that the child had no rights; that she was not informed that pain and suffering could be a large component of the damages in a burning death; that she was not informed about nor shown the economist’s report regarding her economic losses; that she was never told that her deceased husband’s sister had a claim as a beneficiary or that her own children might have claims as beneficiaries pursuant to the loco parentis provision of the statute; that none of the attorneys involved in handling the wrongful death claim went over the settlement and release agreement, or the family settlement agreement and disclaimer nor explained what she was signing, nor did they explain to her why the illegitimate child’s name was included in the release, as well as the names of the deceased’s sister, or the names of her children, if they had no rights or claims. One of the attorneys for the estate (local counsel hired out-of-state counsel with 11
expertise to handle the wrongful death products claim and trial duties) testified that he had very little experience in personal injury or wrongful death claims prior to taking on the wrongful death case; that although he knew of the existence of the Arkansas Wrongful Death Statute he never once looked at it during the entire time of his handling of the wrongful death case; that he and co-counsel never had a discussion about the distinction between a wrongful death beneficiary in the wrongful death statute versus an heir at law to the estate under probate law until after they were put on notice of the child’s claim; that the personal representative did, in fact, advise him of the child’s existence, as well as other pertinent information, from their very first meeting only a few days after the deceased’s death; that the personal representative did advise him that the child was the deceased’s illegitimate daughter; that the personal representative did give him the child’s mother’s name and phone number and address; that the personal representative did repeatedly inquire about the child’s legal rights vis-a-vis the wrongful death claim, and that he repeatedly advised the personal representative that the child had no rights; that his advice to the personal representative was based on his research of the Arkansas Probate Code and A.C.A. § 28-9-209, which he interpreted to relegate the child to the same status as a creditor to her father’s estate, and that the child would have to file a claim against the estate within 180 days in order to establish her right to inherit; that he thought it would be “wrong” for the child to inherit her father’s estate to the exclusion of the deceased’s parents; that although he had rehearsed in his mind many times what he would say to the child’s mother if she happened to call him, which is that he would have advised her to get a lawyer and file her claim within the required time period, that he never entertained the idea that it might be his duty to call the child’s mother since he viewed her claim, or the 12
child’s claim, as that of a creditor; that despite interrogatories from the defendant asking for the names of “beneficiaries” of the deceased’s estate, and numerous references to the Arkansas Wrongful Death Statute during discovery and settlement that it never occurred to him to review the Arkansas Wrongful Death Statute, to review the case law, or to ask a knowledgeable attorney for advice in this regard even though the law firm did have at least one such knowledgeable attorney as a member. The attorney for the estate testified that he did call another local attorney, who had wrongful death experience, for advice in regard to how to handle the probate aspects of the settlement; that he did not read nor review the settlement agreement or release, which specifically released the claims of the illegitimate child and the other omitted beneficiaries, with his client before or after she signed it; that he did not go over the Family Settlement Agreement and Disclaimer with his client before or after she signed it; and that in a call to this other local attorney for advice as to how to handle the probate matter this attorney advised him that if there was no “pain and suffering” component in the settlement, that the attorney for the estate could have the beneficiaries enter into the so-called “Family Settlement Agreement and Disclaimer” which would require no hearing before the Probate Judge. Another member of the firm representing the estate testified as follows in his deposition regarding his partner’s handling of the wrongful death claim: A. Well, it was inadequate. There's no issue there. I don't think that he deliberately was reckless, but I think it was inadequate looking back with 20/20 hindsight. Q. Okay. Not deliberately reckless, but perhaps reckless nonetheless?
13
A. Right. I mean, when we look at reckless, I guess we -- or I equate it to the criminal thing, which is that you know there's a danger there but you consciously disregard it, it's reckless. Negligence on the other hand is you don't know that there's a danger there and then you go ahead and act. Again, I don't think we knew enough to know the dangers. Out-of-state co-counsel testified that he did, in fact, look at the Arkansas Wrongful Death Statute at some point during the pendency of the litigation, but that he was relying on the local attorney for the estate to handle that part of the lawsuit, although he did not communicate this to the attorney for the estate, nor did the attorney for the estate indicate in his testimony that he knew that co-counsel was relying on him as an authority on the Arkansas Wrongful Death Statute. Out-of-state counsel testified that he never questioned local counsel, the attorney for the estate, regarding the child’s status as a beneficiary (or the status of any of the other potential beneficiaries, for that matter). He testified that he viewed his job as handling the product defect aspect of the case. Co-counsel testified that while he did not believe there was any evidence that the deceased experienced any conscious pain and suffering, he would have put the eyewitness to the death on the stand to testify in that regard and let the issue go to the jury at trial. He testified that he did not advance or consider any pain and suffering argument or component in settlement negotiations with the defendant. He testified that he did have an economist prepare an economic report demonstrating the personal representative’s economic losses to be in excess of one million dollars. Yet, the settlement agreement and release asserts that no money is being paid for any economic losses. He testified that he had not prepared any witnesses for their trial testimony nor engaged in any other preparation for trial in the event that settlement negotiations fell
14
through. The lawyer for the defendant in the wrongful death suit testified that he was sure that he and co-counsel discussed each of the omitted beneficiaries by name and the need for the inclusion of their names in the release and settlement agreement prior to the settlement. Yet, in spite of this conversation with the defendant’s counsel, co-counsel for the estate never questioned the local counsel regarding his interpretation of Arkansas law that the child had no rights in the wrongful death action, and never asked the attorney for the estate about the other omitted beneficiaries’ rights, nor did he take any steps to independently inform himself about the inconsistency on the advice he was receiving from local counsel and his own knowledge of the Arkansas Wrongful Death statute. The medical examiner who performed the autopsy, testified in his deposition in this case that there was absolutely no anatomical reason for the deceased to have been rendered unconscious prior to the fire, and that burning to death would cause tremendous pain and suffering as would all the associated components of burning, including the breathing of hot gases and soot (although he stated he would not give an opinion as to whether the deceased suffered because he felt it was a conflict of interest with his role as the ME performing the autopsy, and that he viewed “medical certainty” as requiring him to be 95% certain of this opinion). He testified that there were no major or life-threatening injuries that the deceased suffered in the collision prior to the fire. He testified that the only injury he found that the deceased sustained was a dislocating break of the right ankle. He testified that he found no injuries to any major blood vessels or organs. He testified that he found no trauma-caused injuries to the deceased’s head or brain; nothing that would cause him to lose consciousness. He testified that the deceased died of smoke and soot inhalation, and that the smoke and soot was deep within the deceased’s lungs and 15
airways. He testified that the carbon monoxide level in the deceased’s lungs was 33% indicating a high probability that the deceased was taking full breaths after the fire ignited. The eyewitness testified that he saw the deceased prior to the vehicle catching on fire and that he was moving; that he was trying to speak; and that he believed that the deceased saw him and knew he was there. He testified that he was too far away from the vehicle to see or hear the deceased after the fire started. Plaintiff’s pathologist expert has testified that, in his opinion, the deceased did experience conscious pain and suffering. The illegitimate child’s mother testified that she initially spoke on the telephone to an attorney at the law firm representing the estate, whom she could not identify by name, who needed pertinent information regarding the child. This was early in the litigation. There were numerous phone calls in the law firm’s phone records between the senior partner and the attorney for the estate’s law firm and the child’s mother’s work and home, although the attorney for the estate denied ever speaking to the child’s mother and the child’s mother testified that she did not believe she ever spoke to an attorney for the estate. Attorneys in the firm denied having spoken to the child’s mother, although one attorney who was alive at the time and might have talked to the child’s mother, had since died. The child’s mother testified that the personal representative told her that the child’s interests were being represented by the law firm. She testified that the personal
representative told her that any settlement proceeds would be divided between the child, the personal representative, and the deceased’s parents. She took this to mean that the division would be equal. The child’s mother testified that she found out about the settlement accidently in a 16
conversation with the personal representative in June of 2000. She testified that the personal representative expressed surprise and dismay when she found out that the child’s mother had not heard from the deceased’s parents regarding their providing a share of the proceeds to the child. The personal representative told the child’s mother that she needed to get a lawyer and “go get the bastards.” The boyfriend of the personal representative/surviving spouse of the deceased made a tape-recorded statement to plaintiff’s attorney. In that statement he brags of being behind the scenes and knowing all about the child being fraudulently set up by the personal representative and the others. The boyfriend was deposed and testified that he made up everything, and that he was trying to deceive plaintiff’s attorney into providing him with free legal services because he was angry with the personal representative over their breakup. And, . . . there was lots of other fun things that happened. But, the bottom line is that after many, many dollars were spent in costs, legal expenses, and the like, the case eventually settled after two failed private mediations, and one failed mediation with the U.S. magistrate. Lessons learned: Don’t handle claims with which you have no experience; don’t depend on learned co-counsel to protect your behind; don’t allow personal relationships with emotional clients in wrongful death cases to cause you to abrogate your legal duties; anticipate and ward off problems before they occur; and finally, read the law, read the law, read the frigging law.
17