Law as dance, theater, or music: legal procedure and ritual

Cross Currents, Summer, 2002 by Rafael Chodos

King Solomon did not follow legal procedure here: after he had pronounced the judgment, he continued to judge. In this way the story demonstrates a fundamental mistrust of legal procedure and the storyteller places his trust instead in the wisdom, or cleverness, of the judge.

A case I handled about eight years ago shows how much more seriously legal procedure is taken today, in our courts. I represented the wife of a businessman who had been a general partner in a series of real estate limited partnerships. These partnerships had raised tens of millions of dollars over the years from affluent residents of Los Angeles's west side, and this businessman had been considered a perfectly reliable pillar of the community and a genius at recognizing hidden value in real estate. He and his family had lived in a style suitable to a successful business executive. He had handled the business affairs and she had handled the raising of the kids and the management of the household. It was a very typical pattern. But within the last few months, discrepancies had been alleged in the partnership accounts, and this businessman had been accused of dishonest dealings. It was clear that he had failed to segregate the money in the various partnerships, had moved money around from one partnership accoun t to another, and he was accused of using partnership funds to pay for purchases and investments of a personal nature.

The wife came to me under very unhappy circumstances: her husband had committed suicide, and the life insurance company was just about to pay her two million dollars under a policy of life insurance which her husband had taken out a few years earlier. (In California, even if the insured commits suicide the policy must be paid provided that the suicide did not take place within two years of the issuance date.) But the other general partner had sued her claiming that the insurance proceeds, along with all the family's other money, properly belonged to the partnerships and not to my client because her husband had used partnership funds to pay the premiums on the policy. The court had issued a strong injunction against her, freezing all her assets except for $5000 a month which the court allowed her for living expenses. This made her lose confidence in her first lawyer, and now she wanted me to represent her.

With regard to the insurance proceeds, there is a division of authority among the states: some hold that if the partner purchased the life insurance with embezzled funds the remedy is to restore the premiums to the partnership with interest but that the policy payout still goes to the beneficiary. But the one California case to consider the issue, a case decided in 1942, had held otherwise, that the embezzled funds could be "traced" through the premiums to the policy proceeds and that the whole amount went to the victim of the embezzlement.

It was a difficult case because after all the deceased man had millions of dollars of his own money to which he was entitled. How could the court ever decide whether the particular funds which were used to purchase the policy had come from the partnerships or had come from his own personal assets? And there was the possibility, which my client urged on me, that the other general partner who had raised the accusation of embezzlement was himself the embezzler and had driven my client's husband to suicide and was now trying to deflect scrutiny from himself to his deceased partner. There were something like fifteen different partnerships involved, and hundreds of thousands of items in the potential accounting. The $2 million paid out by the insurance company was put into my trust account to abide the outcome of the case.