January 27, 2017

Blessed are the Peacemakers

Sometimes, you just feel sorry for folks.  Attorneys deal with all manner of litigants–those with an axe to grind, those who would just as soon not be there (this is actually most people), and those whose job it is to deal with the mess that others leave.  Judge Mike Wood falls into the latter category.

Judge Wood has been on the bench of Harris County Probate Court No. 2 since 1993.  That’s a long career of service.  Judge Wood probably could have made a lot more money if he’d left the bench years ago and gone into private practice, but he’s stuck with it.  While I don’t know a great deal about the operations of probate courts, he’s got a pretty good reputation, scoring reasonably well on judicial preference polls from the local bar.  (Keep in mind that there’s always going to be someone who either loves or hates a judge based on past rulings, so those poll numbers always need to be accompanied with a fairly substantial grain of salt.)

Anyway, Judge Wood had the fortune–good or ill–of having the estate of the late J. Howard Marshall, a Texas billionaire, land in his court.  If that name doesn’t mean anything to you, maybe this one does:  Anna Nicole Smith.  Ms. Smith was a Playboy playmate, Playmate of the Year, actress, reality-show star, sometime topless dancer, and wife of the late Mr. Marshall at the time of his death.  Ms. Smith, after asserting a claim, promptly found herself in a pitched battle with E. Pierce Marshall, one of the late Mr. Marshall’s sons, over the disposition of the estate.

Marshall left Smith out of his will, but that’s not much of an impediment to litigation when there’s well over a billion and a half dollars at stake.  Detailing the full course of proceedings is far beyond the scope of a post like this, and I don’t have enough hours in my day to relate everything that has happened in the twenty-plus years since Marshall’s death, except to say that the estate’s administration has involved multiple contests; the intervention of a California bankruptcy court, the Ninth Circuit Court of Appeals, and the United States Supreme Court; intercession by the Solicitor General of the United States at the direction of the George W. Bush administration; the deaths of both of the primary litigants, Pierce Marshall and Ms. Smith; step-parent and step-child conflict; and the calling out of one of Houston’s most storied litigators on the witness stand and on the record with the words “Screw you, Rusty.”  Twenty years in–yes, twenty years since the original Marshall died in 1995–you can understand why this might get exhausting.

After a while, Judge Wood started asking for his peace in the form of recusal.  Most times, when a judge is recused, it’s not because he or she asks for it.  It’s because one of the litigants does on their own impetus.  Someone feels the judge can’t be fair or won’t be fair.  It’s generally considered an extraordinary step to call for a judge to walk away from a case. But here, Judge Wood actually asked the litigants to move for his recusal because, as he put it in a hearing “I beg you to recuse me. I don’t want to deal with you people anymore. . . . I’m honestly—I’m trying to get recused. Because I can’t—it is not fair to me, my staff, my life to have to deal with you people who do not want to resolve this case.”  One of those litigants gave Judge Wood his wish, filing a handwritten motion to recuse that he promptly granted.

There’s a temptation to say that Judge Wood is shirking the responsibility of his bench, but that seems simplistic.  The judges I’ve talked to—and there have been plenty—are overwhelmingly motivated by a desire to see justice done and see it done intelligently and with an eye toward efficiency.  They’re all keenly aware that taxpayer and litigant dollars are spent every time they order briefing or hold a hearing and that they are ultimately supposed to be bringing finality to disputes.  It’s a job for everyone in the justice system—judges, clerks, attorneys, and everyone else.  When twenty years have passed, with no resolution in sight, it’s hard to see how efficiency is being served, here.  Cleaning up the mess can’t be left to just one person, even if he wears a judicial robe.