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2nd Circuit Re-Examines Standard for Probate Exception Mark Hamblett A retired attorney's long-running fight with the Bank of New York and a White Plains, N.Y., law firm over her parents' estate gave a federal appeals court the chance to explore the new standard on the probate exception to federal diversity jurisdiction. The 2nd U.S. Circuit Court of Appeals said a 2006 U.S. Supreme Court decision changed the scope of the exception and the circuit's own case law, with the result that some of the claims brought by Adrienne Marsh Lefkowitz against the bank and McCarthy, Fingar, Donovan, Drazen & Smith can stay in federal court. Second Circuit Judges John Walker and Peter Hall, with Southern District of New York Judge Denise Cote, sitting by designation, decided Lefkowitz v. The Bank of New York, 04-0435-cv. Hall wrote for the panel. Lefkowitz had made several claims against the bank and the law firm, including that the bank paid inflated and fraudulent bills to McCarthy Fingar from 1990 to 1999, refused to distribute some personal property to her from her parents' estate and refused to pay her legal fees for the probate contests over the estates. Among her causes of action she included breach of fiduciary duty against the bank and aiding and abetting that breach against the law firm. Based on the recommendation of Southern District Magistrate Judge Michael Dollinger, U.S. District Judge Victor Marrero of the Southern District of New York dismissed Lefkowitz's case under the probate exception as it was interpreted at the time. When Marrero made that decision, the standard for the probate exception in the 2nd Circuit was Moser v. Pollin, 294 F.2d 335 (2002). In Moser, the circuit laid out a two-part test to determine whether a case should be dismissed from federal court under the exception. First, the circuit said a judge should ask whether the federal court is being asked to probate a will or administer an estate directly. Second, a judge should inquire whether the matter is "probate related" by asking whether the action would interfere with the state probate proceedings, "assume general jurisdiction of the probate" or "assume control of property in custody of the state." But then, in 2006, the U.S. Supreme Court decided Marshall v. Marshall, 126 S.Ct. 1735. In that case, former Playboy playmate and TV reality show star Anna Nicole Smith won a procedural victory in her attempt to collect a bequest from her late 90-year-old husband, Texas oil magnate J. Howard Marshall. Hall, in writing the 2nd Circuit's opinion, said Marshall "reigned in the boundaries of the probate exception." "The court explained that in Marshall the probate exception did not apply because plaintiff sought neither to (1) 'administ[er] an estate, ... probate ... a will, or [do] any other purely probate matter,' nor (2) 'to reach a res in the custody of a state court,'" Hall said. "From these statements, we discern that under the clarified probate exception a federal court should decline subject-matter jurisdiction only if a plaintiff seeks to achieve either of these in federal court." Hall said that, therefore, "insofar as our Court's decision in Moser purported to direct courts to exercise subject-matter jurisdiction over in personam and other claims that might 'interfere' with probate proceedings only ... that holding was overly broad and has now been superseded by Marshall's limitation of the exception." Second
Judge in Anna Nicole Smith Case Resigns -- By Jordana Mishory In the latest Broward County,Fla., judicial shakeup, Circuit Judge Larry Seidlin, who drew large audiences and sharp criticism for his handling of the February custody fight for the body of tabloid icon Anna Nicole Smith, has announced he is leaving the bench at the end of July. Seidlin did not return a call for comment by deadline. It has been rumored that Seidlin has a TV show in the works. Twentieth Television, which previously said it was talking to Seidlin about a deal, could not be reached for comment by deadline. Seidlin came under widespread criticism in the legal community for his handling of the Smith case, and more recently came under fire for other behavior. Last month, WSVN-TV Channel 7 reported Seidlin took three-hour lunch breaks on the four days in April that he was tailed by the station's investigative team. WSVN also showed that he was at a tennis club by 4 p.m. on three of the four days he was watched. He declined to comment for the TV report. The report about Seidlin came in the midst of great controversy over the conduct of a number of Broward judges, including allegations of misconduct and statements that were deemed insensitive to minorities and the poor. Last month, Chief Judge Dale Ross announced that he was stepping down as chief judge after 17 years in that post. Ross, whose successor will be selected by fellow judges in a July 3 election, did not return a call for comment. Last week, Judge Lawrence Korda also announced his retirement from the bench. Korda was arrested in March for smoking marijuana in a Hollywood park and faces a misdemeanor charge. He presided over the paternity fight for Smith's baby daughter, which followed the body custody proceeding before Seidlin. For six days in February, Seidlin captivated television viewers with his maudlin performance presiding over the Smith body custody case, which followed her sudden death at the Seminole Hard Rock Hotel & Casino in Hollywood, Fla. Critics said the legal proceedings lasted too long, with Seidlin hamming it up for the international TV audience. Seidlin kicked off the hearing by announcing, in reference to Smith's corpse, that "this body belongs to me now" and "that baby is in a cold, cold storage room." He asked the feuding parties to all sit down together and hold hands because "it's only in this country that you can join hands." He finally awarded custody of the body to Richard Milstein, the Miami lawyer serving as guardian ad litem for Smith's infant daughter. He asked Milstein to bury Smith in the Bahamas next to her deceased son. Following the Smith trial, "Saturday Night Live" parodied Seidlin's behavior in two separate shows. In another strange development in the Smith case, the South Florida Sun-Sentinel reported last week that an envelope addressed to Anna Nicole Smith marked "X-rays" was discovered by a maintenance worker in a trash room at Seidlin's condominium building. In the 2004 Broward County Bar Association judicial poll, Broward lawyers ranked Seidlin near the bottom of Broward judges on knowledge of the law and other categories. Prior to becoming a judge, Seidlin, a University of Miami law graduate, served as legal adviser to the Broward Sheriff's Office. He became a county court judge in 1979, and later became the county court administrative judge. In 1989, Gov. Bob Martinez elevated Seidlin to the circuit court bench. Seidlin was serving in the probate division, but Ross assigned him to the family division to take Korda's spot after Ross reassigned Korda in the wake of the pot-smoking incident. Over the past few months, the Broward judiciary has been in a state of flux. Last month, Judges Jay Spechler and Gary Cowart announced they will be stepping down from their administrative posts. Previously, Broward Circuit Judge Charles Greene, chief administrative judge of the criminal division, stepped down from his administrative post after making a comment that was considered insensitive to minorities. Judge in
Anna Nicole Smith Case to Resign Associated Press MIAMI - Larry Seidlin, the wisecracking judge who presided in the dispute over Anna Nicole Smith’s remains and was lampooned for his sobbing announcement of the verdict, will resign next month, a court spokesman said Tuesday. The circuit judge’s letter to Gov. Charlie Crist says, "it is now time for me to devote more of my daily life to my own young family and to pursue the many opportunities that have been offered to me outside the judicial system and I have disregarded until now." Seidlin gave no specifics on his plans after his July 31 resignation, though rumors have swirled for months that he was considering a deal for a television court show. He won’t say," said Chris Stotz, a spokesman for the 17th Judicial Circuit. "He’s not commenting on what his future plans are." A phone message left for Seidlin at his Fort Lauderdale chambers was not immediately returned. His resignation letter said his opportunities are varied but "all share in common a further commitment to helping my fellow citizens through roles in the educational system, the media and non-profit organizations." The former New York cab driver 56 years old and on the bench nearly 29 years helped make the hard-fought dispute over the fate of Smith’s body a national obsession. He opened his chambers to television cameras and quickly made clear he was no ordinary judge. On the opening day of the case in February, he declared: "This body belongs to me right now." Seidlin addressed an endless lineup of attorneys as "my good lawyer," sometimes calling them "California" or "Texas." He divulged the minutiae of his days, from his morning swim to the tuna sandwich he was having when assigned the case. Proceedings at times became such a cacophonous free-for-all one attorney once broke into song that the case was being called a circus, a description Seidlin, in one of his rare serious moments, sternly rejected. "There’s no circus here, my friend," he shot back. The judge has countless admirers, too, who claim his tearful announcement that Smith would be buried next to her son in the Bahamas gave a glimpse of how much he cares about those who step into his courtroom. Anna Judge to Quit after Pot Rap New York Daily News FORT LAUDERDALE - A judge who briefly heard arguments in cases after Anna Nicole Smith's death has announced his retirement, not long after he pleaded not guilty to smoking marijuana in a city park. Circuit Judge Lawrence Korda has been on voluntary paid leave since receiving the marijuana-possession citation in March. He will formally leave the bench July 2. Korda's attorney, Mike Dutko, told the South Florida Sun-Sentinel yesterday that Korda has been contemplating retirement for a few years, but that "recent events have factored into his decision to retire now." Korda, 59, reached an agreement with prosecutors last month that the marijuana charge would be dismissed if he stayed clean for six months and performed 25 hours of community service. The fight over control of Smith's body began in Korda's courtroom after the model's Feb. 8 death in South Florida. He also heard brief arguments in the case to determine the biological father of Smith's daughter, Dannielynn. The Associated Press Anna Nicole Smith's Will Filed By The Associated Press The document leaves assets estimated at $710,000 to Smith's now-deceased son, Daniel, and also gives Stern custody of Daniel, who was a minor in 2001, when the will was written. In a probate petition signed May 7 by Stern, he asked a judge to recognize the document as Smith's last will and him as its main executor. The petition also names Smith's 8-month-old daughter, Dannielynn, as her survivor, and Larry Birkhead as the infant's father. Daniel was 20 when he died in September in the Bahamas from a lethal combination of drugs, days after Smith gave birth to Dannielynn. The girl was briefly thought to be fathered by Stern before paternity tests showed the father was Birkhead. The probate proceeding to sort out Smith's assets, debts and taxes will lead to the establishment of a trust with Dannielynn as its sole beneficiary, said Stern's attorney Bruce S. Ross. With the trust, the girl could inherit the estate of Smith's late husband, Texas oil tycoon J. Howard Marshall II, estimated to be worth $500 million. Birkhead also filed papers Monday to ask a judge to appoint him as guardian of Dannielynn's estate. "As the child's father and caregiver, (Birkhead) is in the best position to protect and safeguard the interests of his child as guardian of her estate, including her interests in the estate of her deceased mother," the petition said. A June 19 hearing was scheduled to hear both petitions. Smith was 39 when she died Feb. 8 in Florida from a mix of prescription drugs. Broward Judge: Sorry about Pot Bust By Jennifer Lebovich Broward Circuit Judge Lawrence Korda, the judge spotted by police smoking marijuana under a tree in a public park, apologized for his actions in court Monday morning. Wearing a dark, pinstriped suit and yellow striped tie, Korda, 49, faced Judge Nelson Bailey and read a public apology. Korda, who briefly heard arguments in cases involving the Anna Nicole Smith case, must do 25 hours of community service, has already finished a drug and alcohol course, and said he knows he may face additional sanctions from the Judicial Qualifications Commission. He also agreed to monthly random drug testing for six months. ''Although I make no excuse for my actions, I have attempted to demonstrate my sincere contrition, remorse and acceptance of responsibility by taking a voluntary leave of absence from my judicial duties until this matter is resolved before the Judicial Qualifications Commission,'' he read from the apology. Korda had entered a plea of not guilty at his arraignment last week. At Monday morning's status conference he formally acknowledged his guilt and apologized to the court. As long as Korda successfully completes the conditions -- including random monthly drug tests, 25 hours of community service -- in the next six months, the charges will be dropped. ''This tends to exceed the punishment that would normally be imposed,'' his attorney, Michael Dutko, told the judge. ``This is an extreme sanction for a first time offender.'' The hearing was over in about 10 minutes and Korda left with Dutko. Korda has been on temporary but indefinite leave of absence since April. He was charged with a first-degree misdemeanor, after Hollywood police say they saw him smoking marijuana at a park in March. At the time, Korda was given a citation and a notice to appear in court. Hollywood police say officers were conducting a training exercise in Stanley Goldman Park on the afternoon of March 18 when they smelled a suspicious aroma. The scent led them to Korda, who police say was sitting under a tree, smoking a joint. The officers, who were not in uniform, made Korda lie on the ground while they awaited backup.
As Hearing on Anna Nicole Smith's Baby Nears, By Jessica Robertson NASSAU, Bahamas -- Custody negotiations over Anna Nicole Smith's baby daughter intensified behind the scenes as a court confrontation loomed Friday between the late Playboy Playmate's mother and former boyfriend. An agreement on joint visitation could avert a closed hearing scheduled for Friday afternoon to decide custody of 7-month-old Dannielynn, who could inherit a fortune from her mother's estate. Lawyers for Larry Birkhead, who is the baby's father, and Smith's mother, Virgie Arthur, met privately on Thursday. Birkhead, a California photographer who discovered he was the girl's father when DNA test results were disclosed on Tuesday, said he would not share custody of the baby girl, but hoped to avoid a court dispute. Arthur's lawyer said she would fight for joint custody if talks fail. "We intend to proceed on that application unless something else comes along that causes us not to have to take that course of action," attorney Debra Rose said. Arthur says wants access to her granddaughter and believes an agreement was possible with Birkhead, whom she called "a good guy." v The baby has been living in an oceanfront home with Smith's former companion, Howard K. Stern, who was listed on the birth certificate as the father but gave up his custody claim after the DNA results were released. Smith gave birth to Dannielynn in September in a Bahamas hospital, days before her 20-year-old son, Daniel, died from a lethal combination of drugs at her bedside. Smith died in Florida in February at age 39, also from a lethal combination of drugs. Legal wrangling continues over the estate of Smith's late husband, the Texas oil tycoon J. Howard Marshall II, who died in 1995. It remains unclear how much, if any, of the $500 million estate Dannielynn could obtain and whether her guardian would have access to the money. Law Professor Says By Horace Cooper This is only partially right. Dannielynn has indeed had a DNA test. But there is little chance that this child will inherit millions. Why? Because Anna Nicole Smith’s legal claims on J. Howard Marshall’s estate were always tenuous. And once the courts act, they will likely extinguish the claim altogether. That means Dannielynn is more likely to be saddled with legal bills and other debt from litigation associated with her mother’s estate than she’s likely to inherit any portion of Marshall’s estate. NO MILLIONS HERE A quick review of the case Marshall v. Marshall (Anna Nicole Smith’s married name was Vickie Lynn Marshall) illustrates why Dannielynn may not be a million-dollar baby. Although it has been overshadowed by the media hype surrounding the former Playboy model’s visit to the Supreme Court last year, the trial of record in this case took place in Texas probate court in 2001. The trial — complete with jury — lasted nearly six months. It found that Marshall’s son, Pierce, was the legal heir, and it explicitly found no evidence whatsoever that the elder Marshall’s will was interfered with or that there was any intention to make Smith his heir. It specifically upheld Marshall’s will and his estate plan. Despite the Texas probate ruling, Smith and her legal team went forum-shopping for a favorable judgment. After she filed for bankruptcy in California, Smith convinced a federal bankruptcy judge to award her nearly $450 million she claimed was promised from Marshall. This judge accepted her claim of tortious interference with a gift, finding that Marshall’s son thwarted his father’s intent. This decision of the bankruptcy court was appealed to a federal district court in California. The district court vacated the bankruptcy ruling, reviewed the matter de novo, and reduced the award to Smith to $88.5 million. Subsequently the U.S. Court of Appeals for the 9th Circuit overruled these awards — not on the merits — but instead by invoking what it called a federal "probate exception" that denied federal jurisdiction over probate matters. The 9th Circuit held that neither the bankruptcy court nor the federal district court had any ability to rule on Marshall’s estate. ALREADY DECIDED Perhaps the most important principle involved in this case is a common legal concept known as "res judicata" — a Latin phrase that literally means a matter already judged. This broadly accepted legal principle dictates that once a court or jury has issued a final judgment, subsequent courts will uphold and enforce it. This was a sensitive issue to the Framers of the Constitution because of failures in the earlier Articles of Confederation to impose legal duties on other states to honor contracts or other legal judgments. The principle is so important that it is explicitly embodied in the full faith and credit clause. The idea is that our law strikes a balance between competing interests. On one hand, we ensure that we can provide litigants with certainty of finality that prevents a defendant from having to defend the same claim repeatedly. On the other hand, we can also guarantee that a plaintiff will be granted his or her day in court without limits on what claims they’re allowed to make. But if this claim has already been dealt with earlier, instead of dismissing the case, the court will apply the findings of the earlier judgment. The Supreme Court last year ruled that the 9th Circuit’s interpretation that the federal courts have no jurisdiction whatsoever over probate matters was overly broad, and the justices have sent the case back to the 9th Circuit on remand. Now the 9th Circuit will focus on the specific arguments of this legal dispute. This is bad news for Dannielynn and Smith’s legal team. The remaining legal issues surrounding this litigation are fairly straightforward and uncomplicated. J. Howard Marshall was legally allowed to direct his bequest to whomever he pleased, and he chose his son Pierce. He never intended to leave any portion of his estate to Smith or her heirs. We know these things because that’s what the jury found after a six-month trial in Texas. We also know that, under the doctrine of res judicata, each of these findings must be upheld in any other courts that look at this case. ON THE MERITS Now the case has returned to the 9th Circuit. When it originally invoked the "probate exception," the 9th Circuit panel didn’t rule on the merits of either the federal bankruptcy court or the federal district court decisions. With the Supreme Court’s narrow opinion explaining that none of the Supreme Court’s earlier cases endorsed the notion that federal courts couldn’t independently weigh in on probate matters, the 9th Circuit now will have to deal with the merits. In that context, the most compelling question for the 9th Circuit will be a determination of which court — the federal bankruptcy or district court or the Texas probate court — issued a final judgment first. Chronologically the Texas probate case started first, but the federal bankruptcy court issued its verdict first. The 9th Circuit panel reviewing the case will have to determine which decision counts as the first "final judgment." There are two issues here. First, the federal district court vacated the ruling of the bankruptcy court and reviewed the matter de novo. It did so after the Texas probate trial had concluded. If this decision about vacating the bankruptcy ruling is upheld, it would mean that the bankruptcy ruling has no effect for purposes of res judicata — that is, neither the bankruptcy decision nor the federal district court’s ruling were final judgments for this purpose. Second, even if the federal bankruptcy court’s ruling was final and determined to have occurred first, there are serious questions, relevant to judicial economy and the principles behind res judicata, about the evidentiary record used by the federal district court. A review of the record indicates that whereas the Texas probate trial took nearly six months to sort through all of the legal and evidentiary issues before reaching a conclusion, the federal district court was able to do so in a few days. How? Primarily by reviewing many of the depositions from the concluded Texas probate trial and also by disallowing most of the witnesses that Pierce Marshall sought to call. Such an approach has the advantage of expediting matters, but it severely constrains the ability of the court to weigh all evidence necessary. Depositions are useful, but they are not an equal alternative to witnesses testifying subject to cross-examination. As a result, there are serious questions about the sufficiency of the record that the district court relied upon. And such an outcome is contrary to the benefits of res judicata — which is to allow subsequent courts the ability to rely on the findings of fact of earlier courts. Additionally, judicial economy would dictate that the Texas probate court (as a specialty court) should be given greater deference and weight in making these determinations. In this case, the probate court took nearly six months to reach a determination. Casting aside its work will not be done lightly. Together, judicial economy and res judicata militate against the 9th Circuit directing a brand new trial to determine the validity of the Marshall will or estate plan. Accordingly, no one should be surprised when, at the end of all the proceedings, it is the original Texas trial verdict that determines the disposition of the Marshall estate. When that occurs (as it almost certainly will), Marshall’s money will go to his son — not to Smith’s estate, her child Dannielynn, or Dannielynn’s father (whoever that may be). At this point, of course, the tragic center of this saga is not Smith, but Dannielynn. One fears, at worst, that this child may be being used as leverage to support the ongoing claims of Smith’s lawyers and a number of hangers-on who seek to get rich quick. A separate trial in the Bahamas is going forward to determine who Dannielynn’s biological father is. Once that is answered, will the biological father continue his efforts to secure custody after all the legal claims on the Marshall estate are extinguished? I predict that once those claims are finally exhausted, even King Solomon himself might not have the wisdom to find a father for this baby. Horace Cooper is an assistant professor of law at George Mason University in Arlington, Va. Judges in
Anna Nicole Smith Case Shuffled; By Jordana Mishory MIAMI -- The two judges who oversaw the Anna Nicole Smith cases in Florida's Broward Circuit Court are swapping jobs -- at least temporarily. Chief Judge Dale Ross ordered the moves Tuesday in the wake of complaints and a newspaper editorial that Circuit Judge Lawrence Korda should be moved out of family court until his misdemeanor drug charge is resolved. Korda, who briefly oversaw the paternity dispute involving Smith's baby daughter, was cited on March 18 for possession of one marijuana cigarette weighing less than 0.1 gram. Police said they caught him smoking pot in a Hollywood, Fla., park. Circuit Judge Larry Seidlin, who gained national fame for his courtroom theatrics during the Anna Nicole Smith body custody case, will move from the probate to the family division to make way for Korda. Chief Judge Ross said in an interview that he hopes the swap is temporary, and the judges can return to their respective divisions when Judge Korda's marijuana case is resolved. The move is slated for April 9. As a family division judge, Korda made decisions concerning the welfare of children, often ruling if parents under the influence of drugs or alcohol are fit to retain custody. Ross said the move was necessary to maintain the public's trust and confidence in the judiciary. Ross declined to comment on why Judge Seidlin was the one to give up his spot. In an e-mail sent to judges and judicial assistants on Tuesday, Judge Ross thanked Judge Seidlin for volunteering to leave the probate division. "I want to thank Judge Larry Seidlin for volunteering to change division with Judge Larry Korda during these difficult times," Judge Ross said in the e-mail obtained by the Daily Business Review. "Judge Seidlin and Judge Korda are both enthusiastically looking forward to their new assignments." Seidlin and Korda did not return calls for comment by deadline. Korda's hearing on the marijuana charge is set for the end of April. Ross said he will request a judge from another circuit, probably from Miami-Dade, to preside over the case. He said that would prevent the appearance of preferential treatment. The Broward state attorney's office also plans to request a prosecutor from another circuit to handle the case. Broward Public Defender Howard Finkelstein said Korda's pending criminal case calls into question his ability to adjudicate family cases. "Moving him to probate where the parties are generally dead is probably a reasonable and good move," said Finkelstein, who battled and overcame his own drug problems. Korda was elected to the bench in 1978. Seidlin was elected to the county court the same year Korda was elected to the circuit court. He was appointed to the circuit bench in 1989. Probate Administrative Judge Mel Gross and Family Administrative Judge Linda Vitale did not return calls for comment by deadline. This is the second major shuffle of the Broward judiciary in the past six months. In November, Ross reassigned several judges to different divisions, including moving Broward Circuit Judge Cheryl Aleman from the criminal division to the civil division. That move was cheered by members of the Broward criminal defense bar. Aleman had been criticized for being too strict. In one instance she had threatened to hold several public defenders under contempt of court for not moving quickly enough to file a motion for disqualification in a first-degree murder case. In another case, she sentenced a criminal defense attorney to 60 days behind bars for missing two hearings. These issues were cited in misconduct charges filed last month against Aleman by the statewide Judicial Qualifications Commission, a board that monitors judicial conduct. Aleman could not be reached for comment by deadline. Weeping
Judge From Anna Nicole Smith By The Associated
Press HOLLYWOOD, Fla. -- A judge who had a secondary role in the recent Anna Nicole Smith proceedings was charged with smoking marijuana in a city park, police said Monday. Lawrence Korda was smoking marijuana while sitting under a tree Sunday, police said. Three officers who were training there saw Korda and field-tested the cigarette, said Capt. Tony Rode, a police spokesman. The judge was not arrested. He was given a misdemeanor citation to appear in court. "Judge Korda was not given special treatment because of his status as a circuit court judge," Rode said. "He was provided with a notice to appear. That's exactly what 99 percent of other offenders would have been given for this type of offense." A message left by The Associated Press at the judge's chambers after hours Monday was not immediately returned. The fight over control of the former Playboy Playmate and reality TV star's body began in Korda's courtroom. It ended up being heard by Circuit Judge Larry Seidlin, who carved his own slice of celebrity from the televised hearings with his relentless one-liners and blubbering announcement of his decision. Seidlin allowed a court-appointed advocate for Smith's infant daughter decide where Smith should be buried, and the lawyer decided it would be in the Bahamas. Korda later heard brief arguments in a related case, seeking to determine the biological father of the baby. He ruled that a Bahamian court had jurisdiction over the child's custody. Chasing Fool's Gold By Michelle Caruso Plane tickets from Florida to the Bahamas - $197 to $335 apiece. Hotel rooms in Nassau, Bahamas - $200 to $300 a night apiece. The value of TV exposure to lawyers on the Anna Nicole Smith case? Priceless. Howard K. Stern, Larry Birkhead and Virgie Arthur are running up massive legal bills fighting over Smith's body and baby Dannielynn. But chances are at least some of the lawyers are working for free or reduced fees in exchange for the media spotlight, experts said yesterday. "In a high-profile case like this, very few lawyers are going to be paid their normal fees," said Jeffrey Toobin, senior legal analyst for CNN. "Some lawyers see cases like this as loss leaders - they lose money, but it leads to business down the road," he said. TV coverage is like free national advertising, said Loyola Law Prof. Stan Goldman. "There are lawyers who will work for nothing so they'll get on TV and get famous," he said. Attorney Brian Oxman worked for free for Michael Jackson during the pop star's child molestation case. He appeared on TV often and later wound up hosting "LawTalk," a local radio program in California. Scott Peterson's ex-mistress Amber Frey couldn't afford to hire L.A. civil rights lawyer Gloria Allred to help her through being a star witness in his murder trial, but Allred took the case for free. "Amber contacted me and I wanted to help her. She could never have afforded my normal hourly rate," Allred told the Daily News. When the Peterson trial was over, Allred said she negotiated Frey's book and movie deals. That task generally pays a lawyer 10% to 15% of the contract value. But Allred said it would be "unethical ... and a conflict of interest" for any lawyer to negotiate a fee for legal work based on a client's future book or movie earnings. Allred said she fears some of the lawyers in the Smith case may be selling interviews with their clients to media outlets in hopes their clients can earn big bucks and pay them. "There is a lot of potential for abuse," she said. "Weepy
Wacko" Judge Mocked By Matt Sedensky FORT LAUDERDALE, Fla. -- From the state that brought you the hanging chad, now comes the crying judge. Some members of the bar and other court-watchers are cringing over the way Judge Larry Seidlin wept -- no, sobbed -- on live, national TV as he announced a ruling Thursday in the dispute over where Anna Nicole Smith should be buried. Some are accusing the brash former New York cab driver of showboating for the cameras, or worse, auditioning for his own courtroom TV show, with his one-liners, his personal asides, and his smart-alecky Bronx delivery during the six-day hearing. They say that he let the hearing drag on way too long, that he made inappropriate jokes for a dispute over a body, that he acted as if it were all about him. "He's like Judge Judy's wacky little brother," legal analyst Jeffrey Toobin quipped on CNN. The New York Post called him a "Weepy Wacko," while the Daily News asked, "How Low Can This Judge Go?" and referred to him as "Blubbering Seidlin." One of the Miami's most celebrated defense attorneys, Roy Black, said of the circus-like scene in Seidlin's courtroom: "I sort of think it gives circuses a bad name." Black said he was torn between being entertained as a spectator and being horrified as a legal professional. "I thought he was one of the most entertaining things I had ever seen. He could be a TV judge. He could be a stand-up comic. However, I think he makes a horrible judge," Black said. "He doesn't follow any of the rules or procedures." In court, the 56-year-old Seidlin talked about his wife and divulged the minutiae of his days, mentioning his morning swim and the tuna sandwich he was having when assigned the case. He called Dr. Joshua Perper, the medical examiner, "Dr. Pepper." Lawyers became known by their home states of "Texas" or "California." The hearing often became a free-for-all, with the various parties talking at the same time. On the last day of the hearing, Seidlin cut witnesses off altogether. From the bench, he freely aired his thoughts, including "I feel for you, Mama" to Smith's mother. And just when everyone was ready for testimony to spill into one final day, he issued his ruling. In the end, though, Black said he agreed with Seidlin's tearful ruling that custody of Smith's body go to the court-appointed lawyer representing her 5-month-old baby, Dannielynn, and he said he thought the judge's emotions were genuine. "I believe that he sincerely tried to do the right thing," he said. "But while the end result is correct, it made a mockery of the system of justice." The baby's lawyer ultimately decided to have Smith buried in the Bahamas, which was what Seidlin had fervently wished for from the bench. That decision represented a defeat for Smith's mother, Virgie Arthur, who wanted to bury the starlet in her native Texas. One of Arthur's attorneys, John O'Quinn, said of the judge: "The entire nation was watching him and so he wanted to do the most bizarre thing he could." John Thompson, a Coral Gables lawyer, agreed that Seidlin made a mockery of the judicial process. "If this is how a Circuit Court judge is supposed to act," he said, "then the Florida Supreme Court should issue an order directing that henceforth sitting judges can wear not just robes but rather opt for the clownish outfit of a carnival barker." Seidlin declined to comment Friday, saying it wouldn't be appropriate. His only hope might be that the whole thing will eventually go away. "You're all done with me," he said as he prepared to make his ruling Thursday. "I'm not going to talk about this case ever again." At one point earlier this week, Seidlin rejected some of the characterizations of his courtroom: "There's no circus here, my friend." Seidlin does have his admirers, too, including the attorneys for Larry Birkhead, one of at least two men who claim to be the father of Smith's baby. "Sometimes lightening up a little helps everyone relax," said one, Susan Brown. Eve Preminger, a former New York judge, said Seidlin could have curtailed his comments and held back his feelings, but he shouldn't be criticized so intensely for it. "I just don't think it's the worst sin a judge could commit," she said. "I'd rather have an overemotional judge who cares than a mean judge who doesn't. We judges are so concerned with our dignity that sometimes we lose sight of the human issues." Anthony Titone, an attorney who has known Seidlin for 35 years and whose wedding was officiated by the judge, acknowledged that Seidlin "could have chosen his words more carefully." "But that's not Larry," he said. Anna
Nicole Smith's Mother Seeks to By Brian Skoloff WEST PALM BEACH, Fla. -- Anna Nicole Smith's estranged mother asked an appeals court Monday to overturn a judge's decision over who controls where the starlet should be buried. A few hours later, the judge declined to reconsider his ruling. Lawyers for Smith's mother, Virgie Arthur, want the 4th District Court of Appeal to reconsider Circuit Judge Larry Seidlin's tearful ruling that gave the attorney for the centerfold's infant daughter the right to decide the burial plans. That attorney said Smith should be laid to rest next to her son in the Bahamas. Arthur wants Smith buried in her native Texas. She filed an emergency motion Friday asking Seidlin to reconsider his decision, but he declined Monday morning, saying he wanted to preserve Smith's dignity by having the funeral occur as quickly as possible. In the court filing, Arthur's lawyer, Roberta G. Mandel, said the ruling was an inconvenience because the mother "will have to have a passport and roundtrip airplane tickets and several thousand dollars to even visit or put flowers on (Smith's) grave." Outside court, Mandel said Arthur was willing to take the fight to the state Supreme Court, if necessary. "This mother is a mother who deserves the right to bury her child," Mandel said. "The trial court treated her as though she was nothing." Smith's boyfriend, Howard K. Stern, testified last week that Smith wanted to be buried in the Bahamas. Stern attorney Ron Rale said that Smith's mother should let her daughter's wish be granted. "We were hoping that she would do the right thing," Rale said. "I believe the testimony was clear where Anna Nicole wanted to be buried, and anything that obstructs that, to complete her wishes as soon as possible, is sad." Smith died in a Florida hotel Feb. 8, sparking legal disputes in Florida, California and the Bahamas. Her funeral will not take place before Tuesday, said the court-appointed attorney for Smith's 5-month-old daughter, Dannielynn. In a news release Saturday, Richard C. Milstein said he was working as quickly as possible to complete the details. Neither Milstein nor the public relations firm representing him returned calls seeking comment Monday. Seidlin, who gained national attention with his one-liners and weeping decision on the burial, said through his assistant Monday that he would not comment. A private hearing in the Bahamas to determine Dannielynn's guardianship was expected to resume Monday between Arthur and Stern, who is listed as the father on the birth certificate. The judge has barred Stern from taking the girl out of the Bahamas until a custody ruling. Stern and two other men claim they are Dannielynn's father. Los Angeles-based photographer Larry Birkhead wants a Fort Lauderdale court to enforce a California judge's orders so he can get DNA samples from Smith's body and the baby. Frederic von Anhalt, the husband of actress Zsa Zsa Gabor, also says he may be the father. A medical examiner has yet to decide on the cause of death for the 39-year-old Smith. Toxicology reports could take up to two more weeks, according to Broward County's medical examiner. The voluptuous blonde married Texas oil tycoon J. Howard Marshall II in 1994 when he was 89 and she was 26. She had been fighting his family over his estimated $500 million fortune since his death in 1995. Anna Nicole Smith Fight Goes to Bahamas By Ben Fox NASSAU, Bahamas -- Legal experts predict Anna Nicole Smith's ex-boyfriend, Larry Birkhead, will have a tough time winning custody of her baby when the case moves to the Supreme Court of the Bahamas on Monday. Howard K. Stern, the former model's partner, is listed on the birth certificate as the father and "there is a very strong legal presumption that what is stated in that document is accurate," said Thomas A. E. Evans, a prominent Bahamas attorney. Birkhead, a Los Angeles-based photographer, also must contend with a competing claim from Virgie Arthur, Smith's mother, who has said she could provide a more stable home for Dannielynn than Stern and should therefore be awarded custody of the girl -- who could inherit a fortune. "We're ready to fight," Debri Opri, a lawyer for Birkhead, told reporters outside Nassau international airport shortly after arriving Sunday with her client. Evans said that there is no specific provision in Bahamian law, which is guided by local statutes and English Common Law, for a man to claim paternity based on DNA. But the court could determine any of those seeking to be the guardian of Dannielynn -- or even another party, including the country's Department of Social Services -- should have custody depending on the best interests of the child, he said. Dannielynn could inherit part of the fortune of Texas oil tycoon J. Howard Marshall II, whom Smith married in 1994 when he was 89 and she was 26. She had been fighting his family over his estimated $500 million fortune since his death in 1995. A quick decision in the paternity case is not expected. "They are not known for impromptu rulings," said Sidney Collie, an attorney and former Bahamian senator, about the former British colony's Supreme Court judges. "They are known for writing long, involved opinions." Meanwhile, questions persist about where Smith will be buried. Florida Circuit Judge Larry Seidlin ruled Thursday that the burial decision should be left to court-appointed attorney Richard C. Milstein, who announced she would be laid to rest in Nassau next to her 20-year-old son, Daniel -- who died in the Bahamas in September days after his mother gave birth to Dannielynn. Arthur, who wants to bury her daughter near her home in Texas, filed an emergency motion Friday asking Seidlin to reconsider his decision and was expected to appeal if he refuses the request. Milstein said during the weekend that he was working on funeral details for the former Playboy Playmate and reality TV star, who died in a Florida hotel Feb. 8 at age 39. Her son's grave, an unmarked plot at the Lakeview Memorial Gardens in Nassau, has become a popular tourist spot -- as is "Horizons," the gated, waterfront home in the capital's Winton neighborhood where Smith lived with Stern. In another Nassau courtroom Monday, a separate hearing is scheduled in a dispute over the home in Winton. A South Carolina developer who briefly dated Smith says he advanced her money for the $900,000 house but she did not honor an agreement to pay the mortgage. She had claimed the house was a gift. Taxis have ferried a seemingly endless stream of gawkers to the house, where Stern has been sequestered with Dannielynn since he returned from Florida on Saturday. During the past few days, tourists snapped photos of each other, traded the latest gossip about the case and offered dueling opinions on what should become of Smith and her daughter. "I think she should be laid to rest with her son," said Lauren Brown, a 42-year-old graphic designer from Boston. "I know her mother doesn't feel that way but I really think that's what she wanted." Ken Vogt, a 63-year-old retiree from Brainerd, Minn., said Arthur should get custody of Dannielynn and select the burial location. "It should go to the next of kin and they (Smith and Stern) weren't married," he said. Taxi driver Charles Fowler disagreed for practical reasons: He has been charging $20 per person to take up to five visitors at a time to "Horizons" and would like to add the cemetery to his new tour. "We're praying that they bury her here," he said. Florida
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