(A cautionary tale for those contemplating divorce…or those contemplating Barry Bonds.)
On my first day of law school, the visiting professor from the University of Michigan who was to teach us property law walked into the lecture hall, placed a chair up on the front table, its back facing the students, straddled it backwards and began to act as if he were riding a horse.
“Post is riding to the hounds,” he said, slapping his imaginary horse with an imaginary whip and graphically illustrating the 1805 New York case that we had been assigned to read for that day’s class, “in the wild marshes of Queens. [Pause for laughter from the students from New York.] He’s hot in pursuit of his fox. Suddenly, out of nowhere, Pierson appears, shoots the fox and claims it as his own.”
Post then sued Pierson, claiming the fox was rightfully his (lawyers must have been cheap in those days), and the trial court ruled in favor of Post. Pierson appealed, which led the appeals court into a lengthy dissertation on the history and the nature of “property.” Did the fox “belong” to Post because his dogs had roused him and he was chasing him, or did it “belong” to Pierson, who ultimately bagged him?
Although I later practiced a fair amount of property law, I never saw Pierson v. Post cited in a brief until, some twenty-five years later, it figured prominently in a lawsuit over a baseball and tangentially in a divorce.
* * *
When baseball star Barry Bonds broke the single-season record for home runs in October 2001, everyone knew he would probably hit homer No. 73 that season. Everyone knew the record ball would fetch top dollar at auction and everyone in the stands at each of Bonds’ games was hoping to be the one to catch the million-dollar ball.
When Bonds smashed the winning ball, Alex Popov (we can call him “Post”) caught it. But so many people were also reaching for the ball, and pushing and shoving each other, that Popov lost control of it and Patrick Hayashi (we can call him “Pierson,”) successfully retrieved it.
Popov hired San Francisco attorney Martin Triano to sue Hayashi, claiming the ball was rightfully his. The case dragged on for about two years, during which time Hayashi made offers to Popov and Triano to sell the ball and split the profits. Triano and his client rejected all of these offers, despite the Hayashi’s attorneys having cited the seminal case of Pierson v. Post.
(By the way, Pierson won on appeal. The court ruled that chasing, or momentarily catching, a baseball…er, fox…isn’t sufficient for ownership. You have to bag it to own it.)
Triano’s and Popov’s stories later differed as to who insisted on going full steam ahead, but there is no indication in any of the news stories that Triano ever told his client, “Look, Alex; you’ve got a fair chance of losing this thing and your attorney’s fees are climbing by the day. Why do you want to be such a damned fool as to roll for all or nothing?” At $400 or $500 per hour, Triano wasn’t about to give his client such a lecture.
As all sports fans know – and it was no particular surprise – the private judge hired to hear the case pulled a Solomon and ordered the ball sold and the proceeds split. It brought $450,000, and Popov’s share of $225,000 was less than half of Triano’s fees of $473,500. Had Hayashi’s offer been accepted, and had the ball sold before it became stale news, rather than legend, the proceeds would most certainly have been considerably higher.
* * *
What does this have to do with divorce? I’m getting there.
Before the baseball trial was concluded, I was retained to file for a dissolution of marriage on behalf of a fellow Castro Valley resident. His wife hired an associate of Triano’s, Mark Byrne, to represent her. Wife had already gone through two or three attorneys – looking for a bulldog – before settling on Byrne. Wife had also earlier made an offer to Husband to accept a certain amount for her interest in the family home and that each party would keep his or her own retirement plans and bank accounts. My client had not responded to the offer because he had not yet hired an attorney and didn’t know whether or not it was fair.
After I filed the petition and a response was filed on behalf of Wife, I immediately wrote to Byrne, acknowledging that his client’s offer had not been previously accepted, but stating that we were prepared to accept it, if it were still on the table.
Oh, no, Byrne wrote back. First we have to have all of the pension plans valued, agree on an appraiser to appraise the house, get income figures from each client, value the automobiles, value the bank accounts as of the date of separation, value the salt and pepper shakers and on and on. I could see the dollar figures spinning like a cartoon cash register.
Now, both Husband and Wife knew – without knowing exact amounts – that Wife’s various retirement plans were worth considerably more than Husband’s. Maybe Wife changed her mind about her earlier offer, but in light of later developments it is more likely that Byrne encouraged her not to revive her earlier offer because you never know. How do we know you won’t lose out if we don’t do things by the numbers?
(Doing things “by the numbers” or “the accepted way” is attorney speak for “I smell lots of billable hours here.” On the other hand, “let’s cut through the bullshit” is frequently attorney speak for “why pay me $10 to gain a $5 advantage over the other side?”)
(Wife also took a leave of absence from her well-paying, public sector job to go to Florida, supposedly to care for her ailing step-father, despite the fact that her mother and her sister were both already on the scene, and Byrne set a court hearing to ask for temporary spousal support because his client had no income. The judge gave that argument short shrift.)
So we paid a lot of money to have all of the pension and retirement plans valued by experts. We burned through thousands and thousands of dollars worth of attorney’s fees gathering documents, attending depositions, responding to written interrogatories, and the like.
We had the house appraised, and Wife’s interest was only slightly higher than what Husband had initially offered to pay. Byrne didn’t like the appraisal, insisting instead on meetings with both attorneys and the appraiser, and finally, on a full trial regarding the “true” value of the house. I estimated the combined attorney’s fees on the house issue alone to be more than $10,000, and in the end the judge found its value to be only $10,000 higher than the appraiser testified.
All told, what should have been a $2,000 – $3,000 divorce for my client ended up costing him more than $20,000. Wife spent more than $30,000 on her attorney, while losing more than $50,000 in retirement benefits that were awarded to Husband – and which Husband had been willing to give up.
Can we split that baseball in half now?
Unfortunately, that wasn’t quite the end. After the trial had been over for some months, Byrne decided that the division of two California Public Employees’ Retirement System (CalPERS) plans had been done improperly and filed a motion to modify the judgment. Although he went to great lengths to explain his reasoning, his math just didn’t seem to add up. It seemed to me that what he was asking would actually take away from his client’s eventual retirement benefits in favor of my client.
So I contacted an actuary and pension plan expert in San Francisco whom I have used several times before and ran the question past him. He confirmed my suspicions.
Then the lightbulb went on over my head and Husband and I hatched a plan. If Wife is foolish enough to let Byrne con her into filing this motion, why should Husband have to pay attorney’s fees also? Husband then “fired” me as his attorney and began representing himself. Wife’s fees kept running, but Husband’s did not.
Just a very few days before the scheduled court hearing, Husband wrote Byrne to say he would cave in and that Byrne could have his modification. The modification went into effect, Wife had spent another two or three thousand dollars on attorney’s fees only to award a larger portion of her pension to Husband.
When the dust settled, I wrote to Byrne, pointing out the disservice he had just done his client. He replied that my letter was “self-serving.” I suppose he had to; he could hardly admit to his client that he had charged her for reducing her eventual pension benefits.
* * *
Triano sued Popov for nearly half a million dollars in attorney’s fees (which, even at $400 per hour would mean exclusive, full-time work on this case for almost six months, which I find quite hard to believe.) It is unknown whether he ever collected.
Hayashi’s attorneys, on the other hand, cut their fees to nearly nothing because “We…agreed that Patrick should walk away with something.” A San Francisco sportswriter picked the two attorneys as Sportsmen of the Year.