Bringing A Lie to the Courthouse



	The U. S. Supreme Court is currently reviewing the latest 9th Circuit decision. Read More...

May 5, 2010
Stern Loses Again at the Ninth U.S. Circuit Court of Appeals

Ninth Circuit Reject en banc hearing

Less than two months after it rejected all claims made by Howard K. Stern on behalf of the late Anna Nicole Smith’s estate against E. Pierce Marshall, the Ninth U.S. Circuit Court of Appeals denied a motion by Smith’s attorneys to rehear the case en banc.

On March 19, 2010 the 9th Circuit upheld the Marshall family’s argument that the case has been fully adjudicated in the Texas Probate Court, which ruled in favor of E. Pierce Marshall and against Smith on every issue. The 9th Circuit ruling states in part: “The district court should have afforded preclusive effect to the Texas probate court’s factual findings and relevant legal conclusions. The determinations adverse to Vickie Lynn Marshall in the Texas probate court prevent her from establishing the elements of her counterclaim, such as J. Howard Marshall II’s intent to give her a substantial inter vivos gift, the tortious nature of Pierce Marshall’s conduct regarding the estate planning
documents, and the reasonableness and amount of her expectancy. We reverse the judgment of the district court and remand with instructions that judgment be entered in favor of the Estate of Pierce Marshall.”

“Today’s denial of a new hearing once again vindicated the efforts of the late E. Pierce Marshall to uphold his father’s estate plan,” said Marshall family spokesman David Margulies. The Ninth Circuit opinion supports the 2001 5 month jury trial in Texas Probate Court, which established that Anna Nicole Smith was never entitled to any assets from the Marshall family beyond the $7 million in cash and gifts she received from J. Howard Marshall, II. The jury also unequivocally rejected Smith’s claim that E. Pierce Marshall and others interfered with her receiving any additional gifts while her husband was alive or at his death.

March 19, 2010
A Statement from the Marshall Family

For Immediate Release

Contact:
David Margulies
(214) 368-0909
(214) 914-1275

Statement From The Family of E. Pierce Marshall

DALLAS (March 19, 2010) The U.S. Court of Appeals for the Ninth Circuit today vindicated the efforts of the late E. Pierce Marshall to uphold his father’s estate plan.

The Ninth Circuit opinion supports the 2001 five month jury trial in Texas Probate Court, which established that Anna Nicole Smith was never entitled to any assets from the Marshall family beyond the $7 million in cash and gifts she received from J. Howard Marshall, II . The jury also unequivocally rejected Smith’s claim that E. Pierce Marshall and others interfered with her receiving any additional gifts while her husband was alive or at his death.

“The lies that were told about told about E. Pierce Marshall have finally been put to rest,” said a statement issued by the Marshall family. “Pierce Marshall was never intimidated by Anna Nicole and her bevy of contingency fee lawyers’ use of her celebrity and the legal system to try to loot J. Howard ‘s estate. We are proud to have supported his efforts and continue that fight. Our only wish would be that Pierce were here to see his vindication.”

“Many people have asked over the many years if the fight to uphold my father’s last wishes was worth it,” Pierce Marshall said in a statement issued in 2004. “I know Anna and her lawyers were counting on our family giving up and paying them an absurd sum to go away. That was never going to happen. We never wavered from our belief that, in the end, justice based on the rule of law would prevail.

“We are deeply appreciative that the Ninth Circuit took the time to closely examine the important legal issues raised by this case and agreed with our analysis of the law and facts regarding those issues,” said G. Eric Brunstad, Jr. who represented the Marshall family.

“Anna Nicole Smith and her attorneys never presented a single witness on document that upheld her absurd claims,” said David Margulies, a spokesperson for the Marshall family.
“Texas jurors in the Probate Case listened carefully to all the evidence Smith and her lawyers presented and ruled in favor of E. Pierce Marshall on every point.”

The 9th Circuit upheld the Marshall family’s argument that the case has been fully adjudicated in the Texas Probate Court, which ruled in favor of E. Pierce Marshall and against Smith on every issue. The 9th Circuit ruling states in part: “The district court should have afforded preclusive effect to the Texas probate court’s factual findings and relevant legal conclusions. The determinations adverse to Vickie Lynn Marshall
in the Texas probate court prevent her from establishing the elements of her counterclaim, such as J. Howard Marshall II’s intent to give her a substantial inter vivos gift, the tortuous nature of Pierce Marshall’s conduct regarding the estate planning
documents, and the reasonableness and amount of her expectancy. We reverse the judgment of the district court and remand with instructions that judgment be entered in favor of the Estate of Pierce Marshall.”

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March 15, 2005

Bringing A Lie to the Courthouse

J. Howard Marshall II (J. Howard) died with an estate plan in place that he and his attorneys carefully crafted over many years. When a Texas jury discovered attacks on the plan were based on a series of lies and false charges, they punished both plaintiffs in the case. J. Howard Marshall III (Howard, Jr.) was hit with penalties totaling more than $36 million and Anna Nicole Smith (who was protected from a larger penalty by the bankruptcy court) was hit with $541,000 in legal fees for as one defense attorney put it "bringing a lie to the courthouse."

The Only Trial

Everyone has the right to a trial by jury. There was only one trial in this case: in the Texas probate court. The lower California courts held only hearings at which the defendants were not permitted to present witnesses and evidence favorable to them.

Texas jury trial encompasses 95 trial days and more than 40 witnesses - one of the longest probate trials in the history of Harris County. Every possible issue and claim by anyone was heard fully, including all claims raised by Anna Nicole in California. Most of that time was spent by the plaintiffs and their bevy of contingency fee attorneys attempting to sell their lies to the jury. The jury did not buy their lies. In fact, the jury was outraged that such lies were even brought to the courthouse. This outrage was reflected in the damage awards against Anna Nicole and Howard Jr.

The U.S. Appeals Court for the 9th Circuit endorsed fully the Texas Probate jury's finding in the matter soundly reversing the opinions of two California lower federal court judges. This ended the blatant, bogus attempt by Anna Nicole to "forum shop" and "judge shop" her case.

The Lies that Enraged the Jury

None of the plaintiffs could present a single witness who would testify that J. Howard's estate plan did not reflect his specific long-standing desire to leave the family business to his son E. Pierce Marshall. So the plaintiffs attempted to create a case out of thin air by claiming that J. Howard had been tricked and that other documents supporting their case were destroyed or missing. The plaintiffs resorted to character assassination because they had no real evidence. Some in the media and some judges in California bought the bogus story.

The Lies vs. The Texas Jury's Findings

Documents were destroyed Many a tree died in defense of the late J. Howard Marshall's estate. Millions of pages of documents were disclosed, copied and disclosed again as the desperate plaintiffs looked for the "smoking gun" they hoped would prove their case.

When they couldn't find any documents or witnesses to support their claims, Smith's attorneys took the novel approach of claiming the documents either hadn't been produced or had been destroyed. In fact, almost three million pages of documents spanning the last 15 years of J. Howard's life were handed over to the plaintiffs including many attorney/client communications and trial notes that were legally protected by the attorney client privilege but were ordered handed over anyway. All of the files of J. Howard's attorneys and accountants were produced in their entirety. The plaintiffs and their attorneys never produced a single document or draft of a document, which did not support J. Howard's well - documented estate plan.

In fact, many witnesses who worked for J. Howard when his estate plan was crafted testified repeatedly that the documents the plaintiffs said would prove their case never existed. After Anna Nicole's lawyer admitted in open court that no witness testified either that such a document ever existed or that Pierce had destroyed any such document, one of the 9th Circuit Judges in oral argument October 2003 stated, "This was something the bankruptcy judge made up, right?"

Continuing on the subject of alleged "missing documents," the judge said, "I thought all there was in the record to support that is that he (Bankruptcy court) was dissatisfied with the son's (Pierce) compliance with discovery and he, therefore, entered findings of fact against the son (Pierce) on every contested point without evidence."

Further, it was physically impossible for Pierce to have destroyed any of J. Howard's documents simply because he did not have access to J. Howard's files, either at his office or at the offices of his professional advisors located hundreds of miles away from Houston. The jury never believed that Pierce could convince any of J. Howard's professional advisors to violate the law and destroy any document in their files.

Pierce Marshall improperly influenced his father in estate planning issues J. Howard's advisors all testified under oath that J. Howard was fully competent to manage and make decisions regarding his affairs, they faithfully carried out J. Howard's wishes and he executed all testamentary documents without influence by any person, including Pierce. Basically, J. Howard had the same estate plan in place since 1982, nine years before he even met Anna Nicole. The jury found that no improper influence by any person occurred at any time.

Documents were forged Numerous witnesses testified that they physically saw J. Howard sign the appropriate testamentary documents and he knew exactly what he was signing. In fact, J. Howard's signature on one key document signed in 1994 closely matched his signature on his marriage license to Anna Nicole executed two weeks earlier. No one claims that the marriage license was forged! The jury found that no documents were forged.

Pierce Marshall conspired with others to cut Anna Nicole out of the will Neither before nor after the marriage, was Anna Nicole named in either J. Howard's Will or his Separate Property Living Trust. The "Pierce conspiracy theory" was yet another lie made up by the plaintiffs to cover their total lack of evidence supporting their claims. In fact, the "conspiracy" was all the other way - between Anna and her attorneys against J. Howard and Pierce. Anna and her attorneys were well aware that she was excluded from J. Howard's Will and Trust, which led to the famous "Rosebud" incident. Anna Nicole went to visit a bedridden J. Howard at his home, flashed her breasts at him, and with coaching from her attorney, tried to get him to say he wanted her to have half of his estate into a running tape recorder. Ever the law professor and never distracted, J. Howard refused to say any such thing. The jury found that Pierce conspired with no one. He did not have to. He had been named in the Will and Trust since 1982.

A "catch-all trust" for Anna Nicole was destroyed Multiple witnesses testified that J. Howard and his advisors discussed a number of different strategies for his estate plan. All of the strategies involved leaving the family business to his son Pierce. This was even confirmed by witnesses for J. Howard's alma mater, which had hoped to get more of J. Howard's money and by an attorney the plaintiffs falsely claimed Pierce Marshall had fired.

The plaintiff's strategy was to demand the production of a document (a "catch-all trust") that never existed and was irrelevant. When the non-existent document could not be produced, the plaintiffs cried "destruction of documents and cover-up." The jury didn't buy it for a minute. The plaintiffs tried to categorize each of the estate planning strategies, which were discussed as a "promise" to Anna Nicole. Despite the production of three million pages of documents, no "catch-all trust," or even a draft of a "catch-all trust," was ever found in the attorney files simply because one was never drafted. The evidence is that Mr. Marshall dropped the idea more than two years before his death. Finally, as the 9th Circuit opinion pointed out, Anna's lawyers admitted that J. Howard never attempted to fund such a trust, therefore making it invalid even if a draft of it had been found. The jury found that there was never any "catch-all trust" for Anna Nicole.

J. Howard did not have the capacity to manage his estate One paid expert was prepared to testify for the plaintiffs about J. Howard's lack of mental health even though he had never met J. Howard. Judge Mike Wood ruled the "expert" testimony inadmissible. The jury found the plaintiffs case unbelievable. As the 9th Circuit opinion pointed out, since Anna Nicole had failed to challenge J. Howard's mental capacity to marry her and to give her gifts during his life, she could not challenge his mental capacity during the same time period to execute his well-documented estate plan omitting mention of her. J. Howard was mentally competent until the day he died. He gave Anna Nicole during his life all the assets he wanted her to have ($7 million) and told that fact to all those around him at the end.

The federal courts support Anna Nicole's claims Every ruling against E. Pierce Marshall by two California lower federal courts has been overturned on appeal. The outrageous fact is that the judgments by the two California lower court judges were not based on legitimate evidence or the record presented in any court. Smith could not produce any documents or witnesses in California in support of her claims any more than she could do so before the Texas jury. Further, the U.S. Court of Appeals for the 9th Circuit threw out Anna Nicole's California federal case on the fundamental issue of jurisdiction, ruling that only the Texas Probate court judgment has any legal standing. The ruling and opinions by the California lower courts in the case are null and void. After 95 trial days and more than 40 witnesses, the Texas jury found no wrongdoing whatsoever by Pierce or any of the family advisors.

Why Bring a Case If You Have No Evidence?

Simple hound the defendant with false accusations and lies until he pays a settlement to get out of court. "Guilty or not, pay up or we will keep you in court for years," is the mantra of the plaintiff's bar. "Let's fabricate some lies and see if we can get away with it," is the second mantra. This "modern mafia" form of extortion is too widely permitted in the legal system today. In this case, the plaintiffs and their bevy of contingency fee attorneys were counting on a big payment based on Forbes magazine's absurdly speculative value of J. Howard's estate. Their joint mistake was underestimating Pierce's determination to carry out his father's last wishes, to clear his name and to clear his father's name. Pierce Marshall retained one of the nation's most talented legal teams, which successfully defended J. Howard's estate plan in Texas and California. The plaintiffs lost in Texas in 2001 and now have lost again in California. One of the plaintiffs, Howard Jr. (who pursued the case along with Anna Nicole) is now in California bankruptcy court (mysteriously before Anna's bankruptcy magistrate) attempting to evade the penalties levied by the Texas Probate jury. This ploy is not likely to be successful either. With patience, persistence and the commitment of resources, sometimes the good guys do win.

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	The U. S. Supreme Court is currently reviewing the latest 9th Circuit decision. Read More...