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January 01, 2012

Tort and Custody Claims

Jay S. Horowitz

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To:      Ogden Thelonious Horowitz Shea, Associate Par Excellence

From:  Jay S. Horowitz

Re:      Tort and Custody Claims


You have been assigned to assist me with respect to Jared Bentz, a potential client who has been referred to our law firm for possible representation in connection with what I have been told is his interest in filing a petition “for custody of his biological children” and to void his ex-wife’s marriage to her same-sex partner. The following are my preliminary questions and thoughts, including a description of my first meeting with Bentz and the strategy on which we agreed to accomplish his goals.


I. Jared Bentz

Any litigator should undertake at least some research into a prospective client before the prospect shows his head. Otherwise, the lawyer risks spending an obligatory hour or more with the client only to smile and tell him, “This is not the case for us,” “We are not the lawyers for you,” or some other tactful message declining an undesirable engagement before it begins. We did some research here, and at first, I was not excited about the prospect of representing Bentz. On the face of it, Bentz appeared less than impressive. He was a mechanic who—depending on one’s sociological perspective—had perhaps married over his head in marrying Diana Gray. Diana boasted a doctorate from Stanford, was an accomplished biochemist, and was a successful businesswoman with an enviable record at GyneTech. Even very limited research by our assistants suggested that, by comparison to Diana, Bentz had little to offer; beyond that, he seemed to be a raging homophobe.

After fathering two children with Diana, Bentz left her and married Michelle Lesser, a woman who had struggled to graduate high school and who worked part-time as a manicurist. When not working—which apparently was most of the time—Bentz appeared to spend that “most of the time” at racetracks or bars, often without Michelle. He spent no time at all with Diana after their divorce, although he went into a rage when Diana “wed” Tracy Vitello. Bentz apparently was infuriated that national newspapers had published a photograph of Diana (“after all, she is my wife, even if my ex-wife”) and Tracy “waving their marriage license on the courthouse steps.” Much to Bentz’s chagrin and embarrassment, Diane and Tracy were one of the limited number of homosexual couples who succeeded in obtaining a marriage license during the small window of time when same-sex marriages were permitted in California.

Further, our inquiries indicated that after his marriage to Michelle, Bentz not only failed to pay any child support for his and Diana’s two children but also had not even bothered to visit them—not once. Bentz had evidenced little, if any, interest in his children. He did not write them; he did not call them. For that reason, his “new” interest in nullifying the Tracy/Diana marriage and in obtaining custody of his children seemed either vindictive or intended somehow to implement a strategy for obtaining for himself “the monetary rewards” (to use Bentz’s words) that he thought Diana’s estate may be able to recover by asserting claims against GyneTech or Toyota.

Apparently, it was Bentz’s view that if the Tracy/Diana marriage were nullified, he might be able to gain custody of his children and, in turn, might be able to prosecute any and all of his children’s claims based on the death of their mother. What were those claims? It was unclear from the information we had received. But we later learned that the mechanic who worked in the next bay at Bentz’s shop had suggested to Bentz that he try to prosecute a wrongful-death action against the manufacturer of her Lexus, given the apparent brake defect or stuck accelerator that may have led to Diana’s death, or that he try to stand in Diana’s shoes and pursue a whistleblower action against GyneTech.

In sum, before Bentz crossed the threshold, our inquiry left me with little interest in representing him.

I should add that much of the information we learned about Bentz resulted from inquiries made by one of our private detectives—all discreet inquiries, including Google searches. We recognized that most of this information was rank hearsay, often second-party hearsay. It was sufficient, however, to inform us that Bentz was not someone with an unusual or exceptional profile. And there was nothing about Bentz that suggested he would be a particularly interesting client.

Before we met Bentz, we also obtained information about Bentz from Bentz himself. Like every client we are asked to represent, Bentz prepared an “attorney-client narrative” before our meeting. This narrative enables us, in just a few minutes, to gain a head start on the matters likely to be discussed during a meeting lasting several hours. Bentz’s narrative was properly labeled “privileged,” but it was peppered with misspellings and vulgarities, and smeared with oil stains. Despite all its flaws, it furnished us with a decent portrait of Bentz before we met the man himself.

Bentz’s narrative included his autobiographical description of himself and his statement of the objectives he sought to accomplish in his contemplated litigation. We had instructed Bentz to communicate to us not only those facts that he believed could be used favorably but also those facts that were not attractive—his “warts.” Bentz needed to understand that if we chose to represent him, he would, on some level, be our “partner.” Bentz would need to be a trustworthy and candid partner; if he were not, we would end the representation without delay.

In addition to obtaining information about Bentz from himself and others, I wanted to know why and by whom Bentz had been referred to our firm. We had never prosecuted or defended an action seeking child custody. I had never sought to void a marriage, whether homosexual or otherwise. Family law is not our area of expertise. Had Bentz made any inquiry at all, he would have learned this fact and presumably would have looked elsewhere for legal representation. Furthermore, we believed it important to ask Bentz how he happened to contact our firm; we were concerned that Bentz might know of our firm’s reputation for supposedly “aggressive” litigation and might have unrealistic and unacceptable expectations about what we could do or, for that matter, a misguided understanding of what we would be willing to do.

We would not be operating within the paradigm of television crime dramas. Bentz needed to know this.

II. Our First Meeting with Bentz

Notwithstanding our uncertainty about representing Bentz, we agreed to meet him. The meeting unfolded as follows.

First, I asked Bentz what he knew about us. Who sent him? What had he been told about our practice? I needed to know what Bentz expected from us and why he chose us. More to the point, Bentz needed to know that we were not family-law experts and had never filed a custody petition, nor a petition to void a marriage.

There likely is a large library of decisions in cases in which disappointed former clients sued their lawyers, claiming that their lawyers were so interested in handling the clients’ potentially remunerative cases that the lawyers never told the clients that they had never handled a case of that nature. The library of decisions in malpractice cases in which lawyers embroidered their introductory presentation by boasting, untruthfully, about past successes in dealing with cases “just like this one” might be just as large as the other library. Not many lawyers volunteer information about themselves that prospective clients may view as disqualifying. Attorneys must be as candid with their clients as they expect their clients to be with them. The level of candor must be complete in both directions.

Thus, although the focus of my first meeting with Bentz concerned Bentz—his objectives, his circumstances, and his understanding of the litigation process—a portion of this meeting concerned us. We discussed the types of cases we had handled, the types of cases we were not interested in handling, the manner in which we approach all cases, and our expectations of every client.

Discussing our firm’s practice and approach was particularly important in Bentz’s case; if we filed and prosecuted the petition that Bentz sought to retain us to file, we necessarily would be retaining an expert in family law to assist us. There was no question about this. The attorney retained by us could act as a behind-the-scenes consultant working as a member of our “team” or as co-counsel. Either way, Bentz needed to understand that we would not undertake this engagement without co-counsel who could advise both us and Bentz about custody cases.

Hiring co-counsel would have another advantage: In light of my ambivalent impression of Bentz, it would be useful to have another professional who could hold Bentz’s hand, speak with him when he needed to be spoken to, prepare him for the successive stages of the litigation, and, in general, establish a camaraderie with Bentz that I might not be able to establish. Of course, Bentz needed to know that our retaining co-counsel, regardless of the scope or nature of co-counsel’s activity, would materially increase the fees and costs of his case.

My meeting with Bentz went well. I was able to get a handle on Bentz’s objectives, circumstances, understanding of the litigation process, and willingness and ability to cooperate with us as we pursued his interests and prosecuted his claim.

III. Bentz’s Objectives

To use a tired phrase, Bentz’s intended petition would seem to speak for itself. Bentz wants to void the Tracy/Diana marriage and to obtain custody of his children. But we needed to press Bentz about what he really wants—in other words, why he wants to pursue this petition and what he hopes to accomplish or expects to receive if his petition is granted. Our pre-meeting inquiries suggested that Bentz’s principal interest was to seize control of Diana’s estate. As a divorced and remarried spouse, Bentz himself almost certainly would have no legal interest in or control over Diana’s estate. But as the only living parent, and perhaps the sole custodian/guardian of his and Diana’s children, Bentz might gain that legal interest and control.

This turned out to be one of Bentz’s objectives. And so, we needed to know the size and the composition of Diana’s estate. Based on Bentz’s knowledge and the limited information we learned from others, Diana’s estate appeared to consist only of her prospects of recovering damages in a wrongful death or whistleblower’s lawsuit. There was no indication that Diana’s estate had any significant assets other than those prospective assets, although we need to investigate this further.

As we talked, it became clear that Bentz, whose mechanical specialty serendipitously was the repair of accelerator systems, believed that Diana likely did have a meritorious wrongful-death action. Bentz had followed the news reports concerning Toyota’s travail with respect to its “stuck accelerator.” Bentz surmised that Diana’s death might have been caused by this type of malfunction.

But Bentz needed to understand that “meritorious” and “valuable” are two separate things. For example, we needed to research the law of the state in which the wrongful-death action would be filed, and the law of the state in which the death occurred, to determine whether there would be a cap on damages in a wrongful-death action and even whether a wrongful-death action could be brought on behalf of Diana’s estate or on behalf of her and Bentz’s children.

Bentz also needed to understand that, even if he were successful in challenging the Diana/Tracy marriage, gaining custody of his children, and obtaining a litigation verdict, he would control any recovery only in his representative capacity. Thus, we needed to discuss with Bentz the limitations he likely would face in using the proceeds generated by these lawsuits for his own purposes, as opposed to the support of his children. As the guardian of his children and as their representative in pursuing the wrongful-death action, Bentz would be assuming fiduciary responsibilities. I therefore explained that the representative position Bentz would try to assume to enable himself to recover damages would carry with it important responsibilities. Bentz would need to be a responsible father. He seemed to understand and accept that.

We also discussed Bentz’s interest in pursuing Diana’s “whistleblowing” action, as well as the practical and legal issues surrounding such a lawsuit. Was this an action that Diana’s children would even have standing to pursue? If so, what was the value of any action prosecuted against GyneTech given the chain of circumstances that had recently enveloped the company? The many lawsuits already filed against GyneTech, and the investigations that could have serious consequences for GyneTech, might eliminate the company’s value. If we won, would there be anything there to win?

An attorney asked to file any civil lawsuit probes three subjects: the prospective defendant’s legal responsibility for the injuries suffered; the damages resulting from the defendant’s breach of responsibilities; and, assuming a successful prosecution of the case, the likelihood that a judgment in favor of the plaintiff can be recovered—in other words, whether the defendant is solvent and has assets on which a judgment can be executed. Our most vigorous and creative work on Bentz’s behalf would come to naught if the only defendant were a bankrupt GyneTech and there was no insurance available to cover the claims in question. We therefore might wind up participating in an academic exercise. Bentz needed to be informed about this possibility; it likely was not what he had in mind.

Bentz insisted that his objectives went beyond the financial and included obtaining custody of his children because he loved them and believed they needed a “dad.” Bentz explained that he had had little contact with his children in the years since he remarried only because Diana, aided by Tracy, kept him away from the children. Diana disparaged Bentz to his children. To Diana, Bentz was “only” a mechanic; he was not “up to” Diana’s or Tracy’s standards. Thus, Bentz claimed that his failure to deal with his children during the last several years was entirely Diana’s fault and not a reflection of what he wanted.

I accepted Bentz’s protestations (albeit with reservations). I advised him, however, that if he truly had an interest in obtaining custody of his children—particularly if he sought to do so for reasons other than simply improving his chances of obtaining a financial recovery—his ongoing actions needed to be coordinated with the strategy we implemented to reflect that interest. We turned to a discussion of Bentz’s circumstances.

IV. Bentz’s Circumstances

We spent considerable time discussing what Bentz does for a living; what he has done in the past; what Michelle, his current wife, does; and what she has done in the past. I need to understand the values and the intelligence of any prospective client. I also need to understand the spouse—in this case, Michelle. Although not our client, Michelle almost certainly would be an important participant and, perhaps, an important witness in assisting, or hindering, Bentz’s custody claim. Any tribunal deciding the issue of custody would more likely favor Bentz if his “significant other” were also a “special other”—someone who could act as a surrogate for the mother who had been killed and, on some level, a prospective mother who would compare favorably with the other contestant for that title, Tracy.

I told Bentz that his prosecution of the petition would put him and Michelle “on trial.” To what extent had Bentz helped raise his children before Bentz and Diana ended their marriage? What experience did Michelle have raising children? To what extent had Michelle encouraged him to spend time with his children? And was she willing to help Bentz with family chores and raising children if Bentz were awarded custody?

Given Bentz’s insistence that he wanted to gain custody of his children because he loved them and was interested in them, it was critical that, before filing a petition, he first try to contact them. It was critical that he try to contact Tracy as well. Filing a petition to void the Tracy/Diana marriage would probably not endear him to the children. Before taking that hostile action, he must meet with Tracy and plumb her own plans and intentions.

I also advised Bentz that I doubted he had standing to seek to “void” the Tracy/Diana marriage. Bentz did not have the charge of a roving monitor—someone with the power to file lawsuits to vindicate or enforce his sociological desiderata. We will need to discuss Bentz’s standing to pursue such a lawsuit with our consultant/co-counsel experienced in family law. But even if there is some authority permitting a private citizen to bring such a suit, I doubt that it is solid or persuasive.

V. Bentz as a Litigant

It was critical to discuss with Bentz—as it is with every client—what he understood about the litigation process. Had he ever been a party to a lawsuit? If so, what was his experience and what was the result? Did he understand the broad range of matters subject to discovery? Just as important as any other consideration, was he prepared and able to pay fees that could be substantial?

I doubt that any attorney could pursue a custody petition on a contingent-fee basis. Public policy would be affronted by a lawyer wagering that he could win a custody case as the pre-condition for his fee. Would the fee be larger if he obtained complete custody rather than joint custody? Could a larger fee be justified if he succeeded in obtaining custody of both children rather than one? Hence, Bentz would be obligated to pay fees on an hourly basis.

By the end of our meeting, Bentz seemed comfortable with all the issues we discussed, and he signed our engagement letter, which recited all the terms I had explained orally. Because Bentz has not been involved in other litigation, we should remind him, from time to time, of the terms of our representation and ask whether his initial objectives have changed. If appropriate, we also should advise him when we believe that his objectives should change.

A lawsuit, once filed, is not forever. It is an undertaking with a value, utility, and cost that are open to reexamination. In fact, those matters should be reexamined from time to time. A plaintiff does not have unbridled and unilateral power to “turn off” a case he has started, but, unless counterclaims are driving the cause, most defendants will readily agree to a voluntary dismissal if that is what the plaintiff wants. The actions contemplated by Bentz do not involve facts likely to give rise to counterclaims. I therefore told Bentz that he probably would be able to stop what he might now put in motion. It is important that he understand both his control in this regard and our policy that the premises and purposes of any litigation must be reexamined regularly.

VI. The Strategy

By the end of our meeting, Bentz persuaded me that he was a decent guy and a good father—at least before arrogant Diana pushed him to the side. He was motivated to file the petition because he believed doing so would be best for his children. Bentz loved his children; he wanted his children to be with him.

Bentz also was confused and angered by the same-sex marriage. But I advised Bentz, and he agreed, that the motivating force in his strategy going forward would have nothing to do with striking out against Tracy. The fact that she was a lesbian and a spouse in a same-sex marriage—and, adding to the “indignity,” a marriage with Bentz’s own former wife—had to be put aside. Our singular motivation would be to pursue his legitimate and understandable objectives: reestablishing a relationship with his children and obtaining for himself and his children the possible benefits of litigation brought by Diana’s estate.

Thus, after securing the financial component of our representation, I discussed with Bentz how we intended to proceed—in other words, our strategy. And I explained that the implementation of any strategy necessarily would be affected by how others—in this case, especially Tracy—reacted.

The strategy I advised Bentz to adopt was necessarily shaped by my evaluation of the strength of his proposed claims and any analysis of what could be accomplished by prosecuting those claims. With respect to Bentz’s interest in nullifying the Diana/Tracy marriage, this was a straightforward analysis. One certain result of that undertaking would be antagonizing Tracy. A second, almost equally certain, result of that undertaking would be antagonizing Bentz’s children—raised by Tracy and probably fond of Tracy. Beyond this, the legal outcome of any such lawsuit was very uncertain. Did Bentz have standing to bring such a lawsuit? What state’s laws would control, and was there precedent in that state dealing with such challenges? Even if the lawsuit were successful, would Tracy still be able to assert rights in Diana’s estate because she was, in fact, Diana’s de facto or common-law partner for years? And even if Bentz’s lawsuit were successful, would Tracy still have a strong claim to be awarded custody of the children she had raised?

There was another negative consequence of Bentz’s filing the “nullification” lawsuit—most immediately for Tracy, but also for Bentz. Bentz would serve discovery requests, which might make public a large quantity of emails, diary entries, and other information that GyneTech, Toyota, or anyone else with an interest adverse to Diana’s estate would be interested in obtaining and rummaging through. In other words, what would be valuable to Bentz in prosecuting his “nullification” lawsuit might also help those defending the wrongful death or whistle-blower suits. The better part of valor in this case was not aggressive litigation.

Bentz’s decision to forgo attacking the same-sex marriage might also help accomplish a more important goal: It would improve his chances of obtaining custody. Bentz would have proven himself to be thoughtful, considerate, and, if not compassionate, at least not viscerally opposed to Tracy. Bentz would have demonstrated restraint. Although Tracy might not wind up physically hugging Bentz—or even figuratively embracing him—she might react positively to the news that he and our “aggressive” firm would not be challenging her marriage to Diana. She might perceive as well that Bentz’s demonstration of restraint and maturity would make him a more formidable opponent in any custody battle.

Thus, given our analysis, we convinced Bentz to make the following proposal to Tracy: He and Tracy would agree to share joint custody—serving the children’s interest and giving each other the opportunity to participate in raising the children. In turn, Bentz and Tracy would share any recovery from the prosecution of any lawsuits brought by Diana’s estate or by the children—bearing in mind, of course, their mutual obligation to use any recovery for the children’s benefit.

In sum, our strategy was not to litigate against Tracy but to befriend her. Our strategy was not to antagonize but to collaborate. And so, the first action known to the outside world that we took on behalf of Jared Bentz—of course, after he had deposited the necessary “evergreen” retainer with us—was to call the lawyer whom we were told Tracy had retained. This was the notorious Neil Getnick. We knew Getnick was brilliant. Getnick was savvy. Getnick was focused. And we told Getnick that. (By the way, never say such words to or about your adversary unless you are negotiating a deal.) Maybe Getnick would understand that Tracy’s and Jared’s fortunes—and the children’s—were linked with one another.

I should address—as a coda, although perhaps it should have been the prologue—that when we first were contacted about representing Bentz, we understood that Bentz already had filed his petition challenging the Tracy/Diana marriage and seeking custody (and sole custody) of his children. This proved to be mistaken information. In fact, Bentz had not yet filed any lawsuit.

Had Bentz already retained another attorney and filed a lawsuit, his interest in changing lawyers would have raised numerous and obvious questions that are triggered whenever a plaintiff (or any party to a pending lawsuit) changes counsel. Why are you changing counsel? What is unsatisfactory about the arrangement now in place? The answers to those questions must be pursued in conversations with both the prospective client and the predecessor attorney. Beyond this, the plaintiff and prospective client must be told that merely by having taken the first step of filing an action, he already has made important choices, already has decided on a strategic course, already has advanced substantive allegations. Perhaps those choices could be changed, but perhaps they could not.

There is no question that an attorney retained to litigate a case can more successfully and skillfully manage the lawsuit if he is the attorney who starts the lawsuit. A plaintiff who filed his case weeks or years earlier, guided by someone else, is a plaintiff whose representation will present additional challenges often not understood until later in the process. Representing such a plaintiff may mean facing limitations that materially impede your strategy or significantly burden or even diminish the hoped-for outcome. Thus, it was important to us that Bentz had not yet filed a case; we might not otherwise have agreed to represent him. As it is, filing the complaint, and the complaint’s contents, are matters that will be decided by us—not faits accomplis.

I look forward to working with you on this interesting matter—our first one together.


Jay S. Horowitz

The author is with Horowitz, Forbes LLP, Denver.