MEMORANDUM

Author(s): Jay S. Horowitz

Source: Litigation, Vol. 38, No. 2, Ripped from the Headlines (Winter 2012), pp. 27, 47-51
Published by: American Bar Association
Stable URL: https://www.jstor.org/stable/23239868
Accessed: 05-12-2019 02:45 UTC

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access
to Litigation

This content downloaded from 130.105.31.37 on Thu, 05 Dec 2019 02:45:38 UTC
All use subject to https://about.jstor.org/terms
 MEMORANDUM
MEMORANDUM

TO: File TO: Ogden Thelonious Horowitz Shea,

Associate Par Excellence
FROM: Neil V. Getnick
FROM: Jay S. Horowitz
RE: Whistleblower and Wrongful Death Claims
RE: Tort and Custody Claims

Tracy Vitello is hurt. She's angry. And she wants justice.

Tracy has lost her spouse, Diana Gray, who just died in a carYou have been assigned to assist me with respect to Jared Bentz,
crash. She blames Diana's employer, GyneTech, believing that a potential client who has been referred to our law firm for pos
the company retaliated against Diana for doing her job—and may sible representation in connection with what I have been told is
even have engaged in foul play to silence Diana permanently.his interest in filing a petition "for custody of his biological chil
Tracy also blames Toyota, the manufacturer of Diana's car, susdren" and to void his ex-wife's marriage to her same-sex partner.
pecting that faulty brakes caused or contributed to the crash. On The following are my preliminary questions and thoughts, in
top of that, Diana's former husband, Jared Bentz, is now suing to cluding a description of my first meeting with Bentz and the
void Tracy's same-sex marriage and gain custody of his and strategy on which we agreed to accomplish his goals.
Diana's children, who have been raised by Diana and Tracy.
To Tracy, these all may seem to be inseparable strands of aI. Jared Bentz
single outrageous fate. To us as lawyers, though, her situation Any litigator should undertake at least some research into a pro
presents a series of discrete and disparate issues, potentially respective client before the prospect shows his head. Otherwise,
lated but requiring a careful assessment of their individual andthe lawyer risks spending an obligatory hour or more with the
combined litigation risks. At the same time, Tracy needs more client only to smile and tell him, "This is not the case for us,"
from her lawyer than a clinical and detached legal analysis of"We are not the lawyers for you," or some other tactful message
her situation. She deserves an empathetic approach that will declining an undesirable engagement before it begins. We did
help her feel better about her circumstances and that will give some research here, and at first, I was not excited about the
her a greater sense of control over her future and an agreedprospect of representing Bentz. On the face of it, Bentz appeared
upon plan for achieving the best practical outcomes. less than impressive. He was a mechanic who—depending on
So, to begin, let's get to the heart of Tracy's situation. one's sociological perspective—had perhaps married over his
Although we serve as whistleblower counsel for Tracy, her first head in marrying Diana Gray. Diana boasted a doctorate from
priority is a family-law matter—defending the sanctity and leStanford, was an accomplished biochemist, and was a successful
gitimacy of her marriage to Diana. In the end, that will prove to businesswoman with an enviable record at GyneTech. Even
be the key to everything. And from a practical point of view,very limited research by our assistants suggested that, by com
Tracy has no choice: Her spouse's former husband has attacked parison to Diana, Bentz had little to offer; beyond that, he
her marriage head-on and is attempting to take away the chil seemed to be a raging homophobe.
dren Diana and Tracy have been raising. Tracy needs to defend After fathering two children with Diana, Bentz left her and
that action and in the process obtain a court ruling that upholds married Michelle Lesser, a woman who had struggled to gradu
the validity of her same-sex marriage. Upholding her marriageate high school and who worked part-time as a manicurist.
will establish any inheritance rights Tracy may have, particu When not working—which apparently was most of the time—
larly if Diana died intestate. And a favorable ruling will lay the Bentz appeared to spend that "most of the time" at racetracks or
foundation for Tracy's right to pursue any whistleblower orbars, often without Michelle. He spent no time at all with Diana
wrongful death suits on Diana's behalf. after their divorce, although he went into a rage when Diana
Who is going to represent Tracy in the ex-husband's action?"wed" Tracy Vitello. Bentz apparently was infuriated that na
Not us. We don't pretend to be experts in family law. Tracy's life tional newspapers had published a photograph of Diana ("after
hangs in the balance, and this is not the time for us to develop a all, she is my wife, even if my ex-wife") and Tracy "waving their
new skill set in the unsettled area of same-sex marriage and marriage license on the courthouse steps." Much to Bentz's
(continued on page -fj) (continued on page 47)

VOL 38 | NO 2 I WINTER 2012 27

This content downloaded from 130.105.31.37 on Thu, 05 Dec 2019 02:45:38 UTC
All use subject to https://about.jstor.org/terms
and other personal documents). Likewise, we should take steps
to ensure that the appropriate authorities secure her office files
(including the supposedly purged hard drive, from which data
recovery experts still maybe able to obtain useful information).
To accomplish this before filing suit and obtaining formal dis
covery, we may have to work with law-enforcement officials or
seek interim court orders. We also should consider interviewing
potential witnesses before filing any litigation. (Local rules will
determine the extent to which counsel may communicate with
potential witnesses informally.) From a practical perspective,
we likely will adapt our approach in light of the government's
investigation.
Or course, we will need to design and implement fee and ex
pense arrangements—for both counsel and investigators—that
Tracy can afford. The family-law and estate matters will likely
(though not necessarily) involve non-contingent fee arrange
ments. By contrast, suits involving the whistleblower or wrong
ful death claims are candidates for contingent fee arrangements,
which may be the best alternative for Tracy and the only one she
can afford. Nevertheless, such claims may warrant some addi
tional, non-contingent fee or expense components in view of the
litigation risks involved.
In the final analysis, we want to be sure that any claims as
serted on Tracy's behalf are well founded in law and in fact, and
that Tracy fully understands the need for satisfying that re
quirement. We also want Tracy to feel confident that our advice
seeks to advance her best interests in light of a diligent investi
gation of the facts and a practical assessment of both the risks
and the benefits of litigation.
Ir our efforts are effective, then by the time our initial con
sultations are concluded, Tracy will have developed a higher
degree of comfort and a greater sense of control over her life.
She will know what she has to do first and foremost: fight back
to protect her marriage, thereby preserving the family she had
with Diana, establishing her marital rights to Diana's estate, and
laying the groundwork for possible whistleblower and wrongful
death suits on Diana's behalf. At the same time, we can begin the
necessary factual investigation to support such suits without
thrusting Tracy immediately and prematurely into full-blown
litigation. We want to support Tracy as her advocate and as her
adviser, ensuring that she will embark on a plan that will serve
all her needs—legal, financial, and emotional. ■
Neil V. Getnick is with Getnick St Getnick LLP, New York City.
/OL 38 | NO 2 | WINTER 2012
This content downloaded from 130.105.31.37 on Thu, 05 Dec 2019 02:45:38 UTC
All use subject to https://about.jstor.org/terms
Tort and Custody Claims
(continuedfrom page 27)
chagrin and embarrassment, Diane and Tracy w
limited number of homosexual couples who s
taining a marriage license during the small wi
when same-sex marriages were permitted in Calif
Further, our inquiries indicated that after hi
Michelle, Bentz not only failed to pay any child s
and Diana's two children but also had not even both
them—not once. Bentz had evidenced little, if any
children. He did not write them; he did not call t
reason, his "new" interest in nullifying the Tr
riage and in obtaining custody of his children see
dictive or intended somehow to implement a stra
ing for himself "the monetary rewards" (to use B
that he thought Diana's estate may be able to reco
ing claims against GyneTech or Toyota.
Apparently, it was Bentz's view that if the Trac
riage were nullified, he might be able to gain cus
dren and, in turn, might be able to prosecute any a
dren's claims based on the death of their mother. W
claims? It was unclear from the information we ha
we later learned that the mechanic who worked in
Bentz's shop had suggested to Bentz that he try t
wrongful-death action against the manufacturer o
en the apparent brake defect or stuck accelerator tha
to Diana's death, or that he try to stand in Diana's s
a whistleblower action against GyneTech.
In sum, before Bentz crossed the threshold, our
me with little interest in representing him.
I should add that much of the information we learned about
Bentz resulted from inquiries made by one of our private detec
tives—all discreet inquiries, including Google searches. We rec
ognized that most of this information was rank hearsay, often
second-party hearsay. It was sufficient, however, to inform us
that Bentz was not someone with an unusual or exceptional pro
file. And there was nothing about Bentz that suggested he would
be a particularly interesting client.
Before we met Bentz, we also obtained information about Bentz
from Bentz himself. Like every client we are asked to represent,
Bentz prepared an "attorney-client narrative" before our meeting,
rhis narrative enables us, in just a few minutes, to gain a head start
on the matters likely to be discussed during a meeting lasting sev
eral hours. Bentz's narrative was properly labeled "privileged," but
it was peppered with misspellings and vulgarities, and smeared
17
with oil stains. Despite all its flaws, it furnished us with a decent their lawyers were so interested in handling the c
portrait of Bentz before we met the man himself. tially remunerative cases that the lawyers never told
Bentz's narrative included his autobiographical description that they had never handled a case of that nature. The
of himself and his statement of the objectives he sought to ac decisions in malpractice cases in which lawyers em
complish in his contemplated litigation. We had instructed their introductory presentation by boasting, untruthf
Bentz to communicate to us not only those facts that he believed past successes in dealing with cases "just like this one
could be used favorably but also those facts that were not attrac just as large as the other library. Not many lawyers
tive—his "warts." Bentz needed to understand that if we chose formation about themselves that prospective clients
to represent him, he would, on some level, be our "partner."
disqualifying. Attorneys must be as candid with thei
Bentz would need to be a trustworthy and candid partner; if they
he expect their clients to be with them. The level of
were not, we would end the representation without delay. be complete in both directions.
In addition to obtaining information about Bentz from him Thus, although the focus of my first meeting with
cerned Bentz—his objectives, his circumstances, an
self and others, I wanted to know why and by whom Bentz had
been referred to our firm. We had never prosecuted or defended
standing of the litigation process—a portion of this
an action seeking child custody. I had never sought to void a
cerned us. We discussed the types of cases we had han
marriage, whether homosexual or otherwise. Family law is not
types of cases we were not interested in handling, the
our area of expertise. Had Bentz made any inquiry at all, which
he we approach all cases, and our expectations of ev
would have learned this fact and presumably would have looked Discussing our firm's practice and approach was par
important in Bentz's case; if we filed and prosecuted t

We would not be that Bentz sought to retain us to file, we necessarily

taining an expert in family law to assist us. There was
about this. The attorney retained by us could act as a

operating within the scenes consultant working as a member of our "te

counsel. Either way, Bentz needed to understand that

paradigm of television not undertake this engagement without co-counsel

advise both us and Bentz about custody cases.

crime dramas. Hiring co-counsel would have another advantage: In

my ambivalent impression of Bentz, it would be usefu
other professional who could hold Bentz's hand, speak
elsewhere for legal representation. Furthermore, we believed when
it he needed to be spoken to, prepare him for the
stages of the litigation, and, in general, establish a ca
important to ask Bentz how he happened to contact our firm; we
were concerned that Bentz might know of our firm's reputation
with Bentz that I might not be able to establish. Of co
for supposedly "aggressive" litigation and might have unrealis
needed to know that our retaining co-counsel, regard
tic and unacceptable expectations about what we could do or, for
scope or nature of co-counsel's activity, would materia
that matter, a misguided understanding of what we wouldthe
befees and costs of his case.
willing to do. My meeting with Bentz went well. I was able to get a handle on
We would not be operating within the paradigm of television
Bentz's objectives, circumstances, understanding of the litigation
crime dramas. Bentz needed to know this. process, and willingness and ability to cooperate with us as we
pursued his interests and prosecuted his claim.
II. Our First Meeting with Bentz
Notwithstanding our uncertainty about representing Bentz,III.
weBentz's Objectives
agreed to meet him. The meeting unfolded as follows. To use a tired phrase, Bentz's intended petition would seem to
First, I asked Bentz what he knew about us. Who sent him?
speak for itself. Bentz wants to void the Tracy/Diana marriage
What had he been told about our practice? I needed to know
and to obtain custody of his children. But we needed to press
what Bentz expected from us and why he chose us. More toBentz
the about what he really wants—in other words, why he wants
point, Bentz needed to know that we were not family-law ex
to pursue this petition and what he hopes to accomplish or ex
perts and had never filed a custody petition, nor a petition pects
to to receive if his petition is granted. Our pre-meeting in
void a marriage. quiries suggested that Bentz's principal interest was to seize
There likely is a large library of decisions in cases in which
control of Diana's estate. As a divorced and remarried spouse,
disappointed former clients sued their lawyers, claimingBentz
thathimself almost certainly would have no legal interest in or

48 LITIGATION

This content downloaded from 130.105.31.37 on Thu, 05 Dec 2019 02:45:38 UTC
All use subject to https://about.jstor.org/terms
control over Diana's estate. But as the only living parent, and An attorney asked to file any civil lawsuit probes t
perhaps the sole custodian/guardian of his and Diana's children, jects: the prospective defendant's legal responsibility
Bentz might gain that legal interest and control. injuries suffered; the damages resulting from the de
This turned out to be one of Bentz's objectives. And so, we breach of responsibilities; and, assuming a successful
needed to know the size and the composition of Diana's estate. tion of the case, the likelihood that a judgment in fav
Based on Bentz's knowledge and the limited information we plaintiff can be recovered—in other words, whether
learned from others, Diana's estate appeared to consist only of dant is solvent and has assets on which a judgment ca
her prospects of recovering damages in a wrongful death or cuted. Our most vigorous and creative work on Bentz
whistleblower's lawsuit. There was no indication that Diana's would come to naught if the only defendant were a b
estate had any significant assets other than those prospective
assets, although we need to investigate this further.
As we talked, it became clear that Bentz, whose mechanical
specialty serendipitously was the repair of accelerator systems,
believed that Diana likely did have a meritorious wrongful
death action. Bentz had followed the news reports concerning
Toyota's travail with respect to its "stuck accelerator." Bentz
surmised that Diana's death might have been caused by this
type of malfunction.
But Bentz needed to understand that "meritorious" and

"valuable" are two separate things. For example, we needed to

research the law of the state in which the wrongful-death action
would be filed, and the law of the state in which the death oc
curred, to determine whether there would be a cap on damages
in a wrongful-death action and even whether a wrongful-death
action could be brought on behalf of Diana's estate or on behalf
of her and Bentz's children.

Bentz also needed to understand that, even if he were suc

cessful in challenging the Diana/Tracy marriage, gaining cus
tody of his children, and obtaining a litigation verdict, he would
GyneTech and there was no insurance available to
control any recovery only in his representative capacity Thus,
we needed to discuss with Bentz the limitations he likely would
claims in question. We therefore might wind up partic
an academic exercise. Bentz needed to be informed about this
face in using the proceeds generated by these lawsuits for his
possibility; it likely was not what he had in mind.
own purposes, as opposed to the support of his children. As the
guardian of his children and as their representative in pursuing Bentz insisted that his objectives went beyond the financial
and included obtaining custody of his children because he love
the wrongful-death action, Bentz would be assuming fiduciary
them and believed they needed a "dad." Bentz explained that h
responsibilities. I therefore explained that the representative
had had little contact with his children in the years since he r
position Bentz would try to assume to enable himself to recover
married only because Diana, aided by Tracy, kept him awa
damages would carry with it important responsibilities. Bentz
from the children. Diana disparaged Bentz to his children. To
would need to be a responsible father. He seemed to understand
and accept that. Diana, Bentz was "only" a mechanic; he was not "up to" Diana
We also discussed Bentz's interest in pursuing Diana's or Tracy's standards. Thus, Bentz claimed that his failure to
deal with his children during the last several years was entire
"whistleblowing" action, as well as the practical and legal issues
Diana's fault and not a reflection of what he wanted.
surrounding such a lawsuit. Was this an action that Diana's chil
dren would even have standing to pursue? If so, what was the I accepted Bentz's protestations (albeit with reservations). I
value of any action prosecuted against GyneTech given the
advised him, however, that if he truly had an interest in obtain
chain of circumstances that had recently enveloped the com
ing custody of his children—particularly if he sought to do so for
reasons other than simply improving his chances of obtaining a
pany? The many lawsuits already filed against GyneTech, and
the investigations that could have serious consequences for
financial recovery—his ongoing actions needed to be coordinat
GyneTech, might eliminate the company's value. If we won,ed with the strategy we implemented to reflect that interest. We
would there be anything there to win? turned to a discussion of Bentz's circumstances.

VOL 38 I NO 2 I WINTER 2012 49

This content downloaded from 130.105.31.37 on Thu, 05 Dec 2019 02:45:38 UTC
All use subject to https://about.jstor.org/terms
IV. Bentz's Circumstances justified if he succeeded in obtaining custody of b
We spent considerable time discussing what Bentz doesthan
rather for aone? Hence, Bentz would be obligated
anhis
living; what he has done in the past; what Michelle, hourly basis.
current
wife, does; and what she has done in the past. I need to under
By the end of our meeting, Bentz seemed comf
all theclient.
stand the values and the intelligence of any prospective issuesI we discussed, and he signed our eng
also need to understand the spouse—in this case, which recited all the terms I had explained or
Michelle.
Although not our client, Michelle almost certainlyBentz
would has
be annot been involved in other litigation
important participant and, perhaps, an importantmind him,
witness from time to time, of the terms of our
in as
sisting, or hindering, Bentz's custody claim. Any and ask decid
tribunal whether his initial objectives have change
ate, if
ing the issue of custody would more likely favor Bentz wehisalso
"sig should advise him when we believe
tives
nificant other" were also a "special other"—someone whoshould
could change.
A lawsuit,
act as a surrogate for the mother who had been killed and, on once filed, is not forever. It is an unde
value,
some level, a prospective mother who would compare utility, and cost that are open to reexamin
favorably
with the other contestant for that title, Tracy. those matters should be reexamined from time to t
I told Bentz that his prosecution of the petition
doeswould put unbridled and unilateral power to "t
not have
him and Michelle "on trial." To what extent had
heBentz helped
has started, but, unless counterclaims are driv
raise his children before Bentz and Diana ended their
mostmarriage?
defendants will readily agree to a voluntary d
What experience did Michelle have raising children? To the
is what what
plaintiff wants. The actions contempla
extent had Michelle encouraged him to spend time with hisfacts likely to give rise to counterclaim
not involve
children? And was she willing to help Bentz with told Bentz
family that he probably would be able to stop w
chores
now put in motion. It is important that he under
and raising children if Bentz were awarded custody?
Given Bentz's insistence that he wanted to gain custody
control in of
this regard and our policy that the pre
his children because he loved them and was interested
posesinof
them,
any litigation must be reexamined regular
it was critical that, before filing a petition, he first try to contact
VI.
them. It was critical that he try to contact Tracy as The
well. Strategy
Filing a
By
petition to void the Tracy/Diana marriage would the end
probably of our meeting, Bentz persuaded m
not
decent
endear him to the children. Before taking that hostile guy
action, heand a good father—at least before
pushed
must meet with Tracy and plumb her own plans and him to the side. He was motivated to fi
intentions.
because
I also advised Bentz that I doubted he had standing he
to seek to believed doing so would be best fo
Bentz
"void" the Tracy/Diana marriage. Bentz did not have loved his children; he wanted his children t
the charge
of a roving monitor—someone with the power to fileBentz
lawsuitsalso
to was confused and angered by the
vindicate or enforce his sociological desiderata. Weriage. But
will need toI advised Bentz, and he agreed, that
discuss Bentz's standing to pursue such a lawsuit with in
force our con
his strategy going forward would have n
sultant/co-counsel experienced in family law. But with striking
even if there out against Tracy. The fact that sh
and a such
is some authority permitting a private citizen to bring spouse
a in a same-sex marriage—and, adding
suit, I doubt that it is solid or persuasive. nity," a marriage with Bentz's own former wife—
aside. Our singular motivation would be to pursue
V. Bentz as a Litigant and understandable objectives: reestablishing
It was critical to discuss with Bentz—as it is with every client— with his children and obtaining for himself and h
what he understood about the litigation process. Had he ever possible benefits of litigation brought by Diana's
been a party to a lawsuit? If so, what was his experience and Thus, after securing the financial componen
what was the result? Did he understand the broad range of mat sentation, I discussed with Bentz how we inten
ters subject to discovery? Just as important as any other consid in other words, our strategy. And I explained
eration, was he prepared and able to pay fees that could be mentation of any strategy necessarily would be a
substantial? others—in this case, especially Tracy—reacted.
I doubt that any attorney could pursue a custody petition onThe strategy I advised Bentz to adopt was neces
a contingent-fee basis. Public policy would be affronted by
bya my evaluation of the strength of his proposed
lawyer wagering that he could win a custody case as the analysis
pre of what could be accomplished by pro
condition for his fee. Would the fee be larger if he obtainedclaims.
com With respect to Bentz's interest in nullify
Tracy
plete custody rather than joint custody? Could a larger fee be marriage, this was a straightforward a

50 LITIGATION

This content downloaded from 130.105.31.37 on Thu, 05 Dec 2019 02:45:38 UTC
All use subject to https://about.jstor.org/terms
certain result of that undertaking would be antagonizing Tracy.
A second, almost equally certain, result of that undertaking
would be antagonizing Bentz's children—raised by Tracy and
probably fond of Tracy. Beyond this, the legal outcome of any
such lawsuit was very uncertain. Did Bentz have standing to
bring such a lawsuit? What state's laws would control, and was
there precedent in that state dealing with such challenges? Even
if the lawsuit were successful, would T racy still be able to assert
rights in Diana's estate because she was, in fact, Diana's de facto
children—bearing in mind, of course, their mutual obliga
use any recovery for the children's benefit.
In sum, our strategy was not to litigate against Tracy b
befriend her. Our strategy was not to antagonize but to c
rate. And so, the first action known to the outside world t
took on behalf of Jared Bentz—of course, after he had dep
the necessary "evergreen" retainer with us—was to call th
yer whom we were told Tracy had retained. This was the
ous Neil Getnick. We knew Getnick was brilliant. Getnick was

or common-law partner for years? And even if Bentz's lawsuit
were successful, would Tracy still have a strong claim to be
awarded custody of the children she had raised?
There was another negative consequence of Bentz's filing
the "nullification" lawsuit—most immediately for Tracy, but
savvy. Getnick was focused. And we told Getnick that. (By the
way, never say such words to or about your adversary unless you
are negotiating a deal.) Maybe Getnick would understand that
Tracy's and Jared's fortunes—and the children's—were linked
with one another.

also for Bentz. Bentz would serve discovery requests, which I should address—as a coda, although perhaps it should have
might make public a large quantity of emails, diary entries, and been the prologue—that when we first were contacted about rep
other information that GyneTech, Toyota, or anyone else with resenting Bentz, we understood that Bentz already had filed his
an interest adverse to Diana's estate would be interested in ob petition challenging the Tracy/Diana marriage and seeking cus
taining and rummaging through. In other words, what wouldtody
be (and sole custody) of his children. This proved to be mistaken
valuable to Bentz in prosecuting his "nullification" lawsuit
information. In fact, Bentz had not yet filed any lawsuit.
might also help those defending the wrongful death or whistle
Had Bentz already retained another attorney and filed a law
blower suits. The better part of valor in this case was not aggres
suit, his interest in changing lawyers would have raised numer
sive litigation. ous and obvious questions that are triggered whenever a plain
tiff (or any party to a pending lawsuit) changes counsel. Why are
you changing counsel? What is unsatisfactory about the ar
Our strategy was not to rangement now in place? The answers to those questions must
be pursued in conversations with both the prospective client

litigate against Tracy butspective

and the predecessor attorney. Beyond this, the plaintiff and pro
client must be told that merely by having taken the first

to befriend her. step of filing an action, he already has made important choices,
already has decided on a strategic course, already has advanced
substantive allegations. Perhaps those choices could be changed,
Bentz's decision to forgo attacking the same-sex marriage
but perhaps they could not.
might also help accomplish a more important goal: It would imThere is no question that an attorney retained to litigate a case
can more successfully and skillfully manage the lawsuit if he is
prove his chances of obtaining custody. Bentz would have proven
himself to be thoughtful, considerate, and, if not compassionate,
the attorney who starts the lawsuit. A plaintiff who filed his case
weeks or years earlier, guided by someone else, is a plaintiff
at least not viscerally opposed to Tracy. Bentz would have dem
onstrated restraint. Although Tracy might not wind up whose
physi representation will present additional challenges often not
cally hugging Bentz—or even figuratively embracing him—she
understood until later in the process. Representing such a plain
might react positively to the news that he and our "aggressive"
tiff may mean facing limitations that materially impede your
firm would not be challenging her marriage to Diana. She might
strategy or significantly burden or even diminish the hoped-for
perceive as well that Bentz's demonstration of restraint andoutcome.
ma Thus, it was important to us that Bentz had not yet filed
turity would make him a more formidable opponent in anya cus
case; we might not otherwise have agreed to represent him. As
tody battle. it is, filing the complaint, and the complaint's contents, are mat
Thus, given our analysis, we convinced Bentz to make the ters that will be decided by us—not faits accomplis.
following proposal to Tracy: He and Tracy would agree to share I look forward to working with you on this interesting mat
joint custody—serving the children's interest and giving each ter—our first one together. ■
other the opportunity to participate in raising the children. In
turn, Bentz and Tracy would share any recovery from the pros Jay S. Horowitz is with Horowitz, Forbes LLP, Denver.
ecution of any lawsuits brought by Diana's estate or by the

VOL 38 I NO 2 | WINTER 2012 51

This content downloaded from 130.105.31.37 on Thu, 05 Dec 2019 02:45:38 UTC
All use subject to https://about.jstor.org/terms