“Gone, gone, gone, gone, gone,” my father muttered as he sat behind his large mahogany desk, the copy of the handwritten letter clutched in his hand. His eyes were on the document in his hands but he wasn’t seeing it. He was too busy thinking. Then he looked up at me.
“You know what ‘gone’ means…I know it. But will the court know it? Dead, right?”
I was clerking in my second year of law school, there for the summer and it seemed my usual job, aside from following him around, was to be his sounding board. But this time, before I could answer, he looked down at the document again, grumbling, “He could have used another word. Like ‘deceased.’ Like ‘passed away.’ But no, he had to use, ‘gone’. Damn.”
I sat down at the little desk he had put in the corner of his office that was my work space. “People don’t talk like that, Dad. Not when they’re dying. No one is going to write their own Will and use the words, ‘If Ed is deceased.’ Of course they will use the words ‘not here’ or ‘gone.’ That’s colloquial.”
He sighed, dropped the letter on his desk and stood up. “Then find me some law. Any law.” And went to lunch at Orsis where he broke his diet yet again with Fettuccini while I went to the law library for the third time that day. This was long before computer searches for law…we waded through thick volumes of law digests with key words, sitting behind stacks of heavy books with yellow foolscap in front of us, the only sound rustling papers and whispers.
The Mills Tower law library was part of the city library system then, brown linoleum floors, oak book shelves, an elderly librarian near the front door and suited clerks and young lawyers hidden away behind the piles of books on the numerous pitted and scarred oak tables. I loved it. It reminded me of the monastery cloisters I had seen in my inevitable tour of Europe when I was in college and occasionally, very occasionally, a pretty law clerk might appear, to be surreptitiously eyed by the rest of us.
One was there that day and had sat down quite close to me glancing at me so it was a bit hard to concentrate on whether the courts had thoughts on the following sentences.
“Ed Blake has been like a brother to me all these years. I want him to know I appreciate all he has done. He is like a brother only better. He is taking care of me now and we live together like a family, which is more than I can say for my own family. I leave all my things to Ed but if he is gone then I suppose it should go to my brother since blood does matter. I ask Ed to make sure my pets are well cared for.”
Everyone knew what he meant, of course. But lawyers are paid to make sure things that are obvious are not, and Bill Oswald was a legal war horse as experienced as my father and a master at argument. At our Motion to Dismiss his attack on our proposed distribution, he had actually been able to cobble together a coherent argument. “Mr. Blake was the care provider of Jeremy, your Honor, the man who was there day by day, each night caring for him. Jeremy knew it and depended on it.”
The Judge was watching Oswald strut his stuff, not impressed. He chin rested on his fist as he watched Oswald dramatically gesture, a finger in the air. “So, counsel?”
“Your Honor, Mr. Blake had to make sure of the necessities of life for Jeremy Butler, each day every day and Jeremy knew it. Of course he would insist in his Will that if Ed Blake was abandoning his post, he would not inherit. Of course…if he was ‘gone,’ he would be disinherited. That is the point of the Will. And Mr. Blake was not even in the same city when Jeremy Butler went to his Maker. He was not even in the same state. He was ‘gone,’ your Honor, and thus inherits nothing.”
My father had leaped up. “Nonsense. His own sister was ill, that was why he was out of the state and Jeremy Butler knew it and even paid the tickets for him to see her. ‘Gone’ means ‘dead’ obviously, not out of the state or out of the house. This is nonsense.”
The judge leaned back and studied the wall behind us for a few moments. “I don’t suppose either of counsel has briefed this as to definitions of ‘gone?’”
My father was taken aback. “Judge, the argument is so far fetched I am sure there will be no law on this particular verbiage. It is the way people speak. It is not Latin or based on Corpus Juris Secundom…”
Oswald was not to be outdone. “I put it to your Honor that how else was he supposed to indicate, in lay terms, that his care giver must remain at his side to assist him or face disinheritance. Any layperson would have to use the words ‘not here’ or ‘not at my side’…or ‘gone!’ That is obvious. And a jury will know that. We deserve to see how a jury will react…not how Mr. Stimmel interprets it for his client…a client who is a complete blood stranger to the deceased.”
My father was outraged. “This is sophistry. Does he contend that if Ed Blake was a hundred feet away he would not inherit? A thousand feet away? In Oakland? In Sacramento? Five feet? Does he require our client to be sitting at the deceased’s feet at his death to inherit?!”
Oswald was enjoying himself. He always liked annoying my father. “That is up to the jury, your Honor. I suggest what the community would consider ‘gone’ would be the test. Certainly not close enough to care for him would make sense as a definition of ‘gone’ and it should go to the jury to decide…”
Judges normally only get overturned on appeal by dismissing cases without letting them go to a jury and getting overturned on appeal is what judges do not like…thus five months later we were going to go to trial on this issue and my task was to find some law and ignore the lady on my right.
And find law I did. Lots of it. None of it used the key word, all of it said use common sense and colloquial language and the closest thing I did find was a case from Illinois in which the Court upheld a verdict in which a jury found that the words ”..is no longer with us..” meant dead. And the case was fifty years old. That was it.
My father was not particularly pleased with that paltry result and since by then I was dating the young law student who had been sitting next to me, and he knew it, he wondered aloud if I had been distracted during my research. I was insulted. “She even helped me research. For free. You ended up ahead.” He grunted. There was a bit of a silence. I tried again. “Look, you, yourself said that the argument was so absurd that there was unlikely to be any law on it. I think it is surprising we even found that.”
He tapped his pencil on his desk. “I hate holographic wills. How can people be so foolish as to put their family at such risk? To use professionals to fix their cars but not to create the vital documents that explain what happens to their wealth when they are no longer here to direct it? Sad stuff, indeed.” I had heard that speech from him while sitting in a dozen meetings with clients by then and was not really listening. “It is like trying to paint a master piece using your own meager skills and refusing to hire Michelangelo. It speaks of pride and arrogance.” Even then I did not think our Wills and Trusts were works of such great art, but given the small results of my research, I didn’t argue with him.
But he wasn’t done. “Are you aware that studies indicate that the average period of time between when a person retains an attorney to write a Will and its execution is three years? And not three years because the attorney delays…three years most of which is spent with the documents sitting on the client’s desk. Ignored and feared.”
He had also told this to a dozen clients while I sat there so, yes, I was quite aware of it. “People fear death, Dad. They confuse signing a Will with dying, I guess.”
“And wait until it is too late to have professional help on crafting the documents. And thereby they end up enriching you and I and causing chaos to their family. Sad stuff.”
But he was not really on that topic at all. He was simply frustrated because he could not figure out a way to stop Oswald, the opposing counsel, before the matter went to a jury. Without a precedent precisely on point, there was no way the judge could dismiss the matter and juries are known to do odd things. So that was what he told our client, Ed Blake, who was a very nice guy who could not figure out why he had to spend so much money to have Jeremy’s Will enforced.
“He’d be so upset to know this is happening. He always disliked his brother. And now this public display of it. All of his personal life coming out. And costing so much. Money that could go to the family, to my family, instead. Such a waste.”
Dad just harrumphed. He had already told Ed what he thought about holographic Wills.
I shifted in my chair and waited for Dad to continue the witness preparation but he seemed to hesitate. He leaned back in his chair, hands crossed across his ample girth, and pondered for a bit. Finally he looked at Ed.
“Was Mr. Butler a fan of Country and Western music? If such noise can be termed music, of course.”
We both stared at him. Ed shook his head. “I guess so. Some at least. At times.”
“Do you still have those records?”
“I don’t like the music. I gave them away, maybe two weeks after he died. I mean is that important?”
“Do you know the songs he liked?”
“I don’t really think so. They sound pretty much alike to me.”
“That is a shame. But not essential, I suppose.”
We continued to stare at him but he was not expanding on his thought. He did seem much happier.
And, as we kept preparing for trial, spending the hundred hours necessary to get the exhibits together, prepare the voir dire and jury instructions, practice with the witnesses and prepare cross examination, I noted he began to hum an odd song now and then, smiling to himself. It was getting annoying.
“Dad, what’s going on? You going to let me in on what that Country Western stuff is all about?”
“Should I? Did you let me in on your relationship with that young lady?” he smiled, thinking that was a clever retort. He knew she and I were not getting along so well. She disliked having to walk a mile to where I parked my car…since in downtown San Francisco I had to park that far away to afford it. And I disliked the fact that her hero in music was John Denver who she considered a musical genius. But he saw my expression and continued. “It is necessary at times to go beyond the case books to prove a case. I intend to do so. Colloquial they want…colloquial they will get.”
And that was all he would say.
But on the third day of trial, with the expert called by the opposing party on the stand, it all came out. And then some.
The expert was a philologist from UC Berkeley who Oswald put on the stand to testify that “gone” meant “away” not “dead” and who had already spent half a day explaining the Germanic origins of the word and how the usual terms for death in our day and age did not infer a leave taking but end of life. “We no longer think of going to heaven or going to another world. We have moved beyond that as religion has been supplanted by rationalism and secularism. Nowadays, an educated man would not use the terms ‘gone to a better world’ or ‘gone to his Maker’ or the like. He would simply indicate ‘deceased or dead.’ A man of Mr. Butler’s education…four years of college and with an MBA…would certainly not utilize the term ‘gone’ to indicate ‘dead.’”
Oswald glanced at my father who was glaring at the witness. “And, Sir,” Oswald said, showing the witness the Will, “ have you had the opportunity to study the rest of the Will?”
“And have you concluded anything about the level of education of the writer of that instrument?”
“Yes. College education is apparent. He is clearly emotionally distraught when writing this and perhaps upset at his brother and family. But he also clearly utilized a vocabulary consistent with my views.”
Oswald paused for effect, then stated no more questions and sat down.
I was sitting for the first time at the counsel’s table next to my father, feeling pretty excited, shoving papers towards him with my notes and comments, trying to whisper to him, but he only glanced at my notes and nodded absently at my mumblings during the cross examination.
He stood up.
“And did this college education you noted in any manner preclude any musical genre?”
The expert looked surprised. “I beg your pardon?”
My father moved towards the witness, spacing his words out. “I say, did the decedent’s education preclude him from enjoying any particular type of music?”
“I…do not know. I mean, it would not necessarily…”
“Such as Country and Western music, Sir? Would it preclude him from enjoying that type of music?”
There was silence in the court room. The judge had stopped writing notes and was looking at my father curiously. We all were.
The witness looked annoyed. “Of course not. Education would not necessarily preclude any taste in music, I suppose.”
“Thus, even an educated man would be used to hearing songs utilizing the word, “ain’t?” Or using “I got no…” and the like as he listened to those songs?”
“I’m not an expert on music.”
“But you are aware that such phrases are utilized in such music are you not? Or do you wish the jury to believe you do not even know the typical words utilized in this particularly American mode of entertainment?”
The expert glanced at the jury who was now quite interested. “I suppose so. Such songs are common and they derive from lower middle class working environments in a rural setting in which such language…”
“Yes, yes, but now they are commonly on our airwaves and in the mental arena of those who enjoy such music, are they not?”
“Well, they are on the airwaves…”
“And musical phrases often find their way into our common language, do they not? Such as “From the Halls of Montezuma’…All would know what that was referring to Marines, though it is only part of a song…?”
“And popular music as well…”Itsy Teeny Weenie Yellow Polka Dot bikini” is commonly known to our generation is it not?”
The expert looked at the judge who was now enjoying himself. Even Oswald looked bemused. The expert sighed. “I am aware that common phrases in music and other forms of entertainment may enter the language pool…”
“And have you perhaps heard this, Sir, “ bellowed my father, who, triumphant, and standing straight, arms at his side, began to sing in a loud and ponderous voice:
“When my Mary married me, she never let me know
That our marriage was to be only second in the show
For our marriage was to be only second in its turn
For her husband, now long gone, was sitting in his urn
And the urn on the mantle, and the picture on the wall
Was a constant memory, like a dead horse in its stall
There was a guffaw from the back of the court room. I was blushing by now, looking down at the table and there was some giggling from the court room but I did not look up to see who. My father continued.
And the urn on the mantle and the picture on the wall
Was always there before me, and caused my love to stall.
For he may be gone, but his memory stays for her
And soon I may be gone, and good riddance to the cur
And the urn on the mantle and the picture on the wall
May be all she has, and has caused our love to fall…
My father stopped. The judge was looking down at the paper on his desk, his hand covering his face and shaking slightly. My father ignored him.
“Sir, did that song indicate that the husband was located in Detroit, where my client was visiting his sister?”
“I don’t understand…”
“Did it indicate the husband was located out of the State? Out of the city? Did it?”
Oswald was standing to object but was still laughing too hard to get the words out. My father bellowed, “It meant the husband was dead, did it not? Dead and dead forever. Like Mr. Blake must be not to inherit, correct?”
By then most of the jury was laughing, the judge was gasping and Oswald, without objecting, just sat back down shaking his head and laughing along with the rest of the court room. But not my father. He still glared at the witness who had still not answered.
“Did Mr. Butler listen to music of that sort, Sir?”
The witness was angry but not quite sure why. “I have no idea.”
“Let me tell you he did. He did, and if he did that might influence his verbiage, correct?”
The expert glanced at the judge again who was trying to get sober by staring at the ceiling. The court room had subsided enough for his mumbled “Perhaps…” to be heard.
My father, seeming to realize the furor he had caused at last, looked at the judge, flushing slightly. “I do not claim to be a professional musician, Your Honor.”
The Judge kept as straight a face as he could. “I think both counsel will stipulate to that, Mr. Stimmel. Don’t quit your day job”
“But I believe the point has been made and I will not belabor it further…”
“Thank God,” cried Oswald, but smiling at my father. They were old friends.
We won, of course. The jury loved it.
And the jury loved the Judge asking our opposing party as he testified, “So, if Mr. Blake was in Detroit, heard your brother was ill, had raced back by plane, and was walking up the steps to your brother’s house as your brother died, would that mean he was ‘gone?’ What if he had actually entered the room? What if he had entered the room five hours before your brother died? Then he inherits? Is that your position?” The silence that followed those questions finished them off.
And two weeks later, as I was working on the distribution of the estate with our client, he shook his head. “It cost me well over a hundred thousand dollars to stop this nonsense. A hundred thousand. And probably cost the brother just as much.”
“For nonsense. Because he wanted to make trouble.”
“Not quite. He was given the opportunity to make trouble. By Jeremy‘s poor drafting. And that is what correct drafting of the Will is all about. Do you have a Will, yet?
He shook his head, chagrined. “OK, you got me. You got me. You’d think I’d learn…”
“Well, you may be unaware that the average person lets the fully drafted Will sit on his desk for three years before signing it…” I began.
And that is still true today, thirty years later.