In a word, limited. In two words, extremely limited. Read on, though, for all the salient details.

The few courtroom experiences I had turned out to be nothing like my favorite memories of courtroom drama from movies and television shows. I have watched several times such classic movies as Inherit the Wind, To Kill a Mockingbird, 12 Angry Men, The Lincoln Lawyer, Runaway Jury, and the enthralling My Cousin Vinny. I enjoyed the courtroom triumphs of Perry Mason on TV for over a decade, and marveled at how he neither never lost a case nor allowed himself to be seduced by his lovely secretary, Della Street. That man was all business, dude, and next to Buffalo Bob on the Howdy Doody Show and every Yankee player, Perry was my childhood hero. As I got older, of course, I realize that the outcome of a courtroom drama was not preordained, and I gravitated more towards the gripping episodes of Night Court.

Alas, I was simply not cut out to be a courtroom lawyer. To be a successful much-in-demand trial attorney it seemed essential that one must speak eloquently and persuasively (even lying if the cause permits) and be dashingly handsome and sharply dressed. My shortcoming in those regards was that I could only afford a suit from Sears. So instead of establishing a career as a trial lawyer I became by trial and error a mediocre specialist in the mind-boggling world of estates, trusts and taxes. I did, however, get to participate as a lawyer in three trials, and I’m dying to go on record about them.

The first trial was before the U.S. Tax Court in January 1973 in Miami. It happened to be two weeks before the Washington Commanders (nee Redskins) were meeting the Miami Dolphins in the Super Bowl. I’ll always remember that on the drive from the airport to the hotel our cab driver said he was certain Washington would defeat Miami, notwithstanding that the Dolphins had a perfect regular and playoff season. The issue at the trial was whether our client, a Florida cruise ship company, should be allowed to deduct carryforward tax losses of a subsidiary corporation that incurred the losses in years prior to being acquired by our client. The subsidiary corporation operated a passenger boat that made daily trips from Miami to Bimini in the Bahamas, and the ultimate question for the Tax Court judge was whether our client had a legitimate non-tax purpose in acquiring the Bimini operation or whether it just wanted access to the tax losses. The senior partner in our law firm, Carl Bauersfeld, was handling the trial, and I was more or less tagging along to experience how to prepare for a trial, how to interrogate witnesses, how to comply with the rules of evidence, and generally to learn the tricks of the trade. Carl had years of trial experience, especially in the Tax Court, and he performed well. The judge, however, who was a former IRS attorney (certainly no bias there), determined that our client’s intent was maligned, and like the Commanders a few days later, we lost. 

A lasting memory of those 10 days I spent in Florida was an overnight trip to Fort Lauderdale to interrogate a witness. I was enjoying both a drink or several at the hotel bar and a very pleasant conversation I was having with a very attractive young lady, when after about a half-hour or so she leaned forward and whispered in my ear that for $200 she could be my company for the night. I was totally taken aback, just didn’t see it coming. I can understand that she may have found me appealing as an engaging and articulate dashingly handsome attorney, but to this day I can’t believe she wasn’t turned off by my Sears suit or even more so by the hearing aid that caught her whisper. I explained to her that I was a newlywed and politely turned her down. Looking back on it, I can’t say that she was really crushed. It was the only time in my life that I was approached by a lady of the evening, and she is the only Monique I ever met, and in retrospect since she was so nice, I wish I gave her Mr. Bauersfeld’s room number.

My second trial experience was in a case before the U.S. Court of Claims in Manhattan. On behalf of our client, the Estate of Edward Tully, our firm instituted a proceeding to obtain a refund of estate tax paid by the estate. That tax was paid after Mr. Tully’s death on the value of his 50% ownership of a highway construction company known as Tully & Dinapoli, Inc. which was based in Queens. Tully & Dinapoli provided contractual infrastructure services throughout the boroughs of New York City. Several years after Mr. Tully’s death the company was revealed as having been a major participant for a number of years, including years while Mr. Tully was living, in a price rebate arrangement on contracts with Consolidated Edison. The company was indicted and with all the attendant publicity its business plummeted. Don Mooers, a partner in our law firm, promoted the hypothesis that what happened to Tully & DiNapoli several years after Mr. Tully’s death must affect the value of his 50% stock ownership in the company at the date of his death. The reasoning hinged on the universally accepted definition of fair market value for estate tax purposes, i.e., what would a willing purchaser pay for an investment if under no compulsion to buy and having knowledge of all relevant facts. The facts were that Mr. Tully and Mr. DiNapoli were partners for decades and worked closely together, even sharing an office with desks facing each other, so there was no way Mr. Tully did not know of the illegal activity on the Con Ed contracts and there was no way a purchaser of Mr. Tully’s 50% interest, upon review of the contracts and upon discussions with Mr. DiNapoli, would not become aware of the illegality and therefore consider the exposure of the company to indictment and fines, each of which would dramatically affect the price the hypothetical purchaser would pay for Mr. Tully’s 50% ownership interest.

Don Mooers and I spent over 2 weeks in Manhattan preparing for the trial. Don was the polar opposite to Carl Bauersfeld, more likely to act with bluff than with facts. He was a ladies’ man, and although married, stayed with a girlfriend in Manhattan the two weekends we were there, while I took the D train to visit my Aunt Mary in the Bronx. I’m pretty sure Don had $200 and would have loved to spend some time with Monique. Don did, however, allow me to participate in the preparation of witnesses and to interrogate a couple of witnesses at the trial itself. The primary witness assigned to me was the government’s expert valuation witness. I remember that my questioning was going so well that I became almost giddy at one point. I was just too excited, I guess. About two months after conclusion of the trial the judge (who happened to be an alumnus of Catholic University Law School, no bias there I’m sure, and perhaps also another girl friend of Don’s for all I know) issued her decision in favor of our client, resulting in a hefty estate tax refund. In determining that subsequent events, if reasonably foreseeable, may affect the value of a business for estate tax purposes, the Tully case was in a sense one of first impression, and one cited in several subsequent tax cases, and I’ll always be proud of my role in it.

My third trial experience is the most forgettable. It was a securities fraud case in the U.S. District Court in Baltimore. One of our clients and a friend of his were bilked by the promoter of a stock offering. Securities law was not our forte, and I hated my law school courses in securities. Nonetheless, Don Mooers insisted that my associate, John Hendricks, and I get involved in the case on behalf of his client. John and I smartly let the attorney for our client’s friend, who had some securities law experience, take the lead on this case. The trial was only a half day, as the case was settled on the luncheon break, much to our relief because we were scheduled to interrogate on direct examination in the afternoon. The most memorable part of my experience on that case is that I went to a prison in Jessup, MD to question an inmate who was involved with the fraudulent stock promotion. As I said in a previous chapter, the presence of armed guards, the smell, the clanging of cells, and other intolerable prison noise turned me against a life of crime.

So now my trial experience is laid out there for everyone to evaluate. If you have not been keeping score, the final tally is one win, one loss, and one tie. I’m not ashamed of a 33 1/3% winning ratio, but it is not as good as the 50% success rate I attained in junior varsity basketball by completing 2 out of 4 free throws in my career.

While I was very pleased with the outcome of the Tully case, I am prouder of an appellate case I won. My client was Gordon Willis of Roanoke, VA. He became entitled to certain royalty income which was reported by his accountant as capital gains. The IRS took umbrage at that treatment, claiming that the royalties should be taxed at the higher ordinary income rates. Gordon was a long-time loyal client and he asked me to meet with IRS on the matter. The IRS attorney and I agreed that there was no issue of fact which would require a trial, and so therefore we could proceed directly to the U.S. Appeals Court for the Fourth Circuit in Richmond on motion for summary judgment, meaning we just say to the Court there is no dispute as to the facts, but just a question as to what is the law. I enjoyed researching the legislative history of the statute in question and preparing a brief for the Court. The matter was scheduled for oral argument before a 3-judge panel. I remember driving to Richmond on a snowy Sunday afternoon and meeting my client and his accountant there for dinner at the historic Jefferson Hotel. While the dining was exceptional, I did feel pressure that they came from Roanoke to hear my presentation. I thought I did well at the hearing, even though the appellate judges, as is their wont, kept peppering me with questions, interrupting my prepared presentation. My opponent was a real nice guy from the IRS Chief Counsel’s office and at the conclusion of the hearing we confided to each other that we had no idea who won the debate. Several months later the decision came down and I was in the records book.

My appellate court experience in the Willis case left me with the notion that although I could never be an effective trial lawyer I might be a good judge at the appeals level. I would feel comfortable if the black robe covered my Sears suit. I enjoyed listening to opposing argument and considering the precedents cited in briefs. I would especially enjoy writing opinions. In law school I was often awed by the reasoning, logic, and analysis of judicial opinions, even where I differed with the outcome. Supreme Court opinions were always the best, but one of my favorite opinions was issued in a decision made long ago by a Maryland state court. The facts concerned two Maryland residents who traveled frequently on weekend and vacations to the Poconos and other locations in Pennsylvania after their first marriages were ended by death or divorce, apparently openly representing themselves as husband and wife, a necessary element for a common law marriage. After the man passed his lady friend filed a claim in the Maryland court for a share of his estate as his surviving spouse by virtue of the common law marriage they established. At the time common law marriages were recognized in Pennsylvania, but not in Maryland. The astute judge who wrote the court’s opinion started out by saying, “it is often said that marriages are made in heaven and consummated on earth. In this case there is no dispute as to the consummation. The question before the court is whether Pennsylvania may be considered heaven”. The judge then presented his analysis of the controlling law, which he noted was Maryland law, and concluded that the couple’s frequent sojourns in Pennsylvania did not result in an enforceable common law marriage in Maryland. The judge ended the opinion by stating that the court dismisses the lady friend’s claim and noted that “regrettably the court must also determine that Pennsylvania is not heaven”.

Decades later, in the wonderful production of Field of Dreams, that judge was fully vindicated when it was revealed that Iowa was heaven.