To Tell the Truth

During the time I was a judge, I attended a number of Judicial College seminars during which an "expert" or two discussed with the attending jurists the problem of ascertaining whether or not a witness was testifying truthfully. The discussions centered on body language, word and speech patterns, eye movements, and other human quirks and tricks that were supposed to aid in the determination of truthfulness.

Still, every judge will tell you that there are situations in which it is very difficult to tell fact from fiction in testimony. I am not talking about differences in perception or in memory. The topic here is identifying the flat-out lie that a witness wishes the trier of fact to perceive as a true recounting of some past event.

Fortunately, there are not a lot of situations arising in Domestic Relations proceedings that lend themselves to prevarication. However, in certain cases, notably those involving allegations of domestic violence or conflicts involving children, the facts as related by the parties are simply too inconsistent to reconcile. Someone is not telling the truth.

Sometimes, a witness' version of an event simply is too far-fetched and inconsistent with human experience to be believable. For example, in a case in which marital infidelity was at issue, Wife testified that, although she met her alleged paramour in a local drinking establishment, had a few drinks, went with him to a nearby hotel where they spent the night, and was seen in a passionate embrace with him as the two of them were leaving the motel the next morning, the fact was that they were "just friends" who had too much to drink and decided to sleep it off together. There was, she swore under oath, no sex involved.

Sorry, I was not buying it.

The more difficult case is the "he said, she said" situation where the stories clearly conflict and only one could be true. In a dispute over custody of two very young children, the issue arose concerning Dad's allegation that Mom repeatedly denied him time with the children. He testified that, notwithstanding the court order that granted him parenting time, he would show up at Mom's residence to get the children and she would not be present. She testified, however, that he would repeatedly fail to come to her home at the appointed time to pick them up.

In the absence of any third party witnesses, it was extremely difficult to determine what really happened. I always felt it was too bad that people do not have a little red light in the middle of their foreheads that illuminated when they were lying.

My Rabbi recently asked me if I thought that the administration of an oath had any influence on a witness' truthfulness. I told him that I had often considered changing the wording of the traditional oath to: "Do you swear to tell some of the truth, part of the time, as it may serve your purposes." At least the level of perjury would be reduced.

Married and Divorced on the Same Day!

Common law marriages served laudable functions, legitimizing relationships (and the resulting children) and permitting third parties to rely upon what appeared to be a marriage in dealing with the putative husband and wife. However, the concept is often misunderstood and the subject of confusion.

To create a common law marriage, certain legal requirements must have been met. First, both parties were required to have the capacity to marry, that is, to be single adults not too closely related to one another as required by state law. Each member of the couple was required to state to the other that they were married in terms of present tense. "We are married" was acceptable. "We will be married" was not. The couple had to cohabit (no specific time period was required) and hold themselves out to their community as husband and wife.

Once a common law marriage was established, the union was legally indistinguishable from a ceremonial marriage -- one performed after the couple obtained a marriage license, and presided over by a licensed clergy member or civil authority. In order to terminate a common law marriage, a divorce was required.

Common law marriage was not unusual in the United States particularly during the period of western expansion. Often marriage licensing procedures were difficult or non-existent, as were clergy or civil officers to perform a ceremony. However, as the West was settled, the necessity to maintain the institution of common law marriage became less and less.

Ohio abolished common law marriage effective in October, 1991. However, common law marriages entered into prior to that date in Ohio are recognized, as well as common law marriages which were valid in the states in which they came into being.

During my eight years on the Domestic Relations Court bench, I only had one common law marriage case to deal with. "Wife" had sued "Husband" for divorce, alleging that the parties had been married by common law. Procedurally, the case came before me to consider Husband's Motion to Dismiss the divorce, claiming the parties had never been married. The parties had already agreed on a settlement; however, it was only to go into effect if I determined they had been married. Otherwise, there would be no division of the assets accumulated while the parties were together, the most significant of which was the business established by Husband.

Wife admitted that no marriage license had been obtained, and that the two of them had never had a legal, ceremonial marriage. However, her counsel set about proving the elements of a common law union. It seems that the parties had purchased rings together, and had presented each other with a ring and declared that they were now married. In addition, they had lived together for many years, their friends and neighbors believed them to be married, and they had filed their federal tax returns jointly.

Throughout the hearing, Husband's mother sat in the back of the courtroom, dressed entirely in black, as though in mourning over the possibility that her beloved son was married to "that woman." In her hand she held a rosary and her lips moved constantly in silent prayer.

After hearing the evidence, I held that Wife had in fact established that the parties were married by common law. We immediately proceeded with a final hearing to adopt the agreement the parties had conditionally arrived at, and their divorce was granted.

Husband turned to the back of the courtroom and declared: "How 'bout that, Mama? Married and divorced on the same day!" Mama's sobs could be heard by everyone in the room.

Death Pics

Divorce lawyers generally hate fighting over tangible personal property such as furniture, collectibles, and appliances. For the most part, used furnishing and household goods are of little economic value. However, for some people, those items can be invested with a great deal of emotional value and this can lead to conflict and present barriers to settlement.

One of the very first divorce cases I handled was extremely simple. The young couple had just been married a little over a year. They had no children, no real estate, one low-balance credit card, and a set of green drinking glasses. The green glasses became the focus of all my client's disappointment, hurt, and anger.

The lawyer on the other side of this monumental litigation was an established, experienced, middle-aged gentleman named George Gross. He had forgotten more about divorce than I knew at the time and he was a delight to work with. When I called and told him that my client, the wife, would not agree to give up the green glasses, George responded, "Let's just divide them in half." I gave him the bad news: "Mr. Gross, there are an odd number of green glasses."

His practical, experienced response: "Break one of the sonofabitches!"

Occasionally, however, a case presents itself that involves personal property of significant value, such as antiques, grand pianos and other musical instruments, or unique pieces of furniture. Or, in one case I remember well, a collection of Victorian death photographs.

As photography became more available and affordable in the late 19^th century, families sought to memorialize their loved ones through post-mortem pictures. The custom died out (pun intended) early in the 20^th century.

My client was the film and photography librarian at an Ohio university. He was a devotee of Victorian death photographs and had what he identified as the largest collection in the world. All of his collection had been acquired during the parties' marriage and was subject to the property division in the case. We offered to have the collection appraised and to buy out his wife for one-half of that value. Her lawyer told us his client was ready to make such a deal.

Valuing collectibles necessitates identifying an expert who can provide a fair-market appraisal. Sometimes, finding an acceptable appraiser is not difficult – many people can ascertain the value of the more common items, such as stamps and sports memorabilia. Opposing counsel and I went about the process of finding someone to tell us what the photos were worth.

In those pre-Google days, the process of finding our appraiser involved contacting other known collectors, whose names were provided by my client who was most knowledgeable, and asking if they felt they were qualified or if they could provide names of others who could help us. We sent out a number of letters.

Most of our correspondents replied. And every one of them who did so told us the same thing: My client was identified as the go-to expert on the value of Victorian death photographs! Opposing counsel and his client eventually agreed that my client could set the value and that wife would accept one-half as her share. There was little alternative but to trust him to be honest and fair.

When he had completed his inventory and arrived at a value, he told me that he had added about 10% before we made our proposal for settlement. He wanted to be sure that everything was on the up-and-up and that he would be able to keep his precious death portraits in good conscience. And so he did.

I Teach at Capital – Part 2

Here are three vignettes from my time teaching at Capital University Law School you might find interesting

A Possible Burglary

One of my closest friends and mentors at CULS was Josiah H. Blackmore, who later became Dean of the law school and then President of Capital University. In addition to the following, I will write much more about him in the future.

Faculty offices at CULS were far from opulent. Forming a perimeter along the walls of the Troutman Building, a converted car dealership, that housed administrative and faculty offices and the Law Library, the offices were small, providing space for a desk, a couple of chairs, and perhaps a bookcase and file cabinet. Joe's office was in the front part of the building.

Late one night during final exams, Joe received a call from campus security. It appeared, he was told, that his office had been ransacked. Papers and books were scattered everywhere, and the top of his desk had obviously been severely disturbed, since there appeared to be a random assortment of documents, mail (opened and unopened), and student papers. There was a concern his exam might be compromised.

Joe quickly got dressed and drove from his Worthington home to campus, where he met the security personnel and accompanied them to his office. When the door was opened, Joe surveyed the disorder. "Well," he said, "this is a little embarrassing, but it looks just like I left it this afternoon." Joe was not the most organized person on the planet!

Another One of Them

While most of my memories of CULS are pleasant, one event stands out as exactly the opposite, and permanently and negatively impacted my attitude toward two of my colleagues.

Almost every year the faculty had to act to either fill vacancies or hire new faculty as the law school expanded, particularly in the late 1970s and early 80's. The process involved the solicitation of applications through various means, an initial screening by a Faculty Recruitment Committee, interviews with some applicants, and, finally, extending offers to individuals we believed would be appropriate members of the faculty.

The faculty lounge at the law school was a simple room with a coffee pot and a few tables and chairs. A room divider of sorts contained the faculty mail boxes. One afternoon during the faculty recruitment period, I was checking my mailbox when I happened to overhear a conversation between two members of the faculty, who could not see me while they spoke.

The topic of their conversation was a potential faculty member who had been well-liked by the recruitment committee and who had impressed the faculty members who interviewed him during his visit to Capital. I overheard one of my colleagues say, "He would probably work out, but do we really want another Jew on this faculty. We have more than enough already." "Nope," replied the other, "we certainly do not need any more of them. Before long the pushy bastards will be trying to run the place."

I returned to my office, shocked by what I had heard. For most of my life, I had avoided having to confront the realities of anti-Semitism, and now, here it was, staring me in the face. Never again could I look at the two professors involved without a feeling of revulsion.

We did hire the gentleman they were concerned about. The faculty vote was overwhelmingly in favor of the hire – there were only two "no" votes.

Temperature Control

Most of my classes were taught in a lecture hall in a building on Capital's main campus called the Learning Center. I was constantly frustrated by my inability to control the temperature in the room, which was inevitably too hot or too cold. No matter how much I fiddled with the thermostat, the room was never comfortable.

One late afternoon after I had finished class, I was alone in the room trying, once more, to figure out the intricacies of the temperature adjustment instrument when a custodian came into the room. He said, "Professor, I really don't think you can do much with that thermostat." He came over to where I was twisting the dial, took hold of the demon device, and pulled. It came away from the wall, dangling wires that obviously had not been attached to anything at all.

"I think somebody just stuck that there to cover up a hole in the wall," he told me. 

I Teach at Capital – Part 1

I started teaching full time at Capital University Law School at the beginning of Fall Quarter of 1973. I was a brand new Assistant Professor, and pretty much scared to death. I was 28 years old and just three years out of law school. Many of my students, who had been in military service (this was the middle of the Vietnam war) or worked after obtaining their undergraduate degrees, were older than I was. I had never taught anything to anybody, and, like virtually all law school professors, I had no training as an educator at all.

Like so many significant events in my life, this one had started with a phone call. (Adventures in Family Law: Phone Call) Professor Roberta Mitchell, chair of the Faculty Recruitment Committee at CULS, called and asked if I was interested in a teaching position. I jumped at the chance. I had been very unhappy at the firm I joined right after law school. Firm practice was not for me; the prospect of teaching law was really attractive.

My first office at Capital was among the faculty offices that formed the perimeter of the Law School Administration Building, which also housed the school's library. The building was a converted car dealership, formerly Lex Mayer's Chevrolet, across Main Street from Capital's main campus in Bexley, Ohio. Adjacent to the building was a White Castle restaurant. When the breeze was right, the aroma of White Castle Sliders wafted into the library. Sometimes, we referred to the facility as the Lex Mayer's School of Law or the White Castle Library.

Law school classes were held across the street on the main campus, most in a building called the Learning Center. My first teaching assignments included teaching Family Law and, the real reason I was hired, the series of three courses based on the Uniform Commercial Code called Sales, Secured Transactions, and Negotiable Instruments. Keeping several pages ahead of the class, I started my teaching career.

From the very beginning, I loved teaching law. The students were bright, energetic, and ready to learn. The subject matter was, at least to me, fascinating. And my colleagues on the faculty were, for the most part, happy to be there, friendly, and supportive.

Capital University Law School had its origins in the YMCA law school movement of the early 20^th Century, which grew out of the philosophy that legal education should be available to all interested persons. In 1903, the Columbus Law School, one of 14 YMCA affiliated law schools, was formed to provide night classes in law. The classes were held in the YMCA building.

The Columbus Law School was recognized by the Ohio Supreme Court in 1906. However, World War I interrupted the program from 1913 until 1917. After reorganization, classes restarted in 1917, with 14 enrolled students. The first woman, Esther Brocker, graduated on June 9, 1926. According to the CULS website, “When a touchy subject came up during class, something they felt a woman should not hear, Esther was made to leave the classroom and the class would discuss it without her. Then afterwards, a classmate would have to explain to her what they talked about.”

In 1948, the name of the law school was changed to Franklin University Law School, and full accreditation by the American Bar Association was awarded in 1950. On September 1, 1965, the law school became a part of Capital University, and the first full-time day program was granted approval to start in the fall of 1969. The name was changed to Capital University Law School in 1972.

And, there I was in 1973.