On the second day of trial we brought in a number of outside witnesses to testify in some detail to services they saw Paul performing for June or that June told them that Paul had performed. We also subpoenaed and questioned several witnesses who were hostile to Paul to testify to the work that they saw him do.

Having proved by testimony of others that Paul did perform work for June, with a description of what at least some of that work was, we then put Paul back on the witness stand to testify as to the reasonable value of the services. The estate objected. We argued that once the services were shown to have been performed, it would then be appropriate for Paul to testify to the time that was expended and the rates that he charged for those services only. The judge noted that the Appellate Court had instructed him to determine the reasonable value of the services, and he overruled the objection. Paul then testified to the work that was more specialized - painting, handyman, and similar work. With regard to the errands and the more "routine" services, the court did not let Paul testify, stating that it could determine without Paul's testimony based upon years of experience what the reasonable value of those services was.

At the end of our case, the estate moved to dismiss. The motion was denied. The estate then put on limited evidence of its own, most of it not directed at the nature and extent of the services (of which their witnesses had little, if any, direct knowledge). In final argument, we noted that while the estate could account for certain friends' performing services for certain specific periods of time or on certain days, etc., there were large blocks of time where no one else was available to assist June, but someone did. At all those other times, we argued, in the words of one witness, that "Paul did it."

In the end, the court awarded some money to Paul for his services, but it was far less than we had claimed and even less than June had provided in the invalid will. The result was due in large part to the relatively broad interpretation of the Act by the trial court. That prohibited Paul from testifying to much of what he did, especially the frequency of what he did and the fact that he made himself available to June 24 hours a day, 7 days a week, for almost 31 months.

Practical Notes

1. We began with a legitimate claim in an amount of over $100,000.00. The final award was dramatically less than that. Parties and a judge may disagree on the rates charged, the time expended, or the amount claimed. However, we came perilously close to not being able to prove any case at all. It was only because third parties were sometimes present that we were able to prove what we did. In a case where no one else was ever present, there may be no admissible testimony as to the reasonable value of the services. Keep this in mind in projecting the result of a case or in entering into a fee arrangement with a client.



2. From a public policy standpoint, I believe that the result in this case was plain wrong. June made a contract with Paul. Paul fully performed under the contract and probably spent much more time than he might otherwise have spent in order to "earn" the money. He gave priority and unquestioning service to June to the detriment of himself and his own family. In the end, he earned less than minimum wage without even factoring in the time that he spent on the case and the fees and costs that he had to pay to his attorneys. If the goal of the law is to uphold contracts, then this result was a gross violation of that goal. By breaching the contract, June ultimately "benefited" by her estate's being able to give more to her legatees and less to Paul. The result is bad in either case, whether the contract was an express contract or an implied contract. Finally, if the law is supposed to encourage people to take care of other people, it failed in this case.



3. As attorneys, we should continue to let the public know that an oral promise to leave money in a will is essentially unenforceable. Only if the promise is in writing does the claimant have a fighting chance.



4. Off the record, the trial judge related to us attempts that have been made over the years to repeal the Dead-Man's Act. He believes that a trial judge should be allowed to hear all of the evidence, to evaluate the credibility of the witnesses, and to make an appropriate ruling. He told us that he has on occasion been able to prevail upon parties to waive the Dead-Man's Act. Representing an estate, however, I would find it hard to justify that action when it might disadvantage my client. I believe that the personal injury bar has been in favor of retaining the Dead-Man's Act. Based on this experience, I agree with the judge. I think it is time to make a distinction between tort and contract claims and to free contract claims or even just claims for services from the death grip of the Dead-Mans' Act.

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