Inside Story on Schiavo Case

A Florida lawyer writes:

I have been following the case for years. Something that interests me about the Terri Schiavo case, and that doesn't seem to have gotten much media attention: The whole case rests on the fact that the Schindlers (Terri's parents) were totally outlawyered by the husband (Michael Schiavo) at the trial court level.

This happened because, in addition to getting a $750K judgment for Terri's medical care, Michael Schiavo individually got a $300K award of damages for loss of consortium, which gave him the money to hire a top-notch lawyer to represent him on the right-to-die claim. He hired George Felos, who specializes in this area and litigated one of the landmark right-to-die cases in Florida in the early 90s.

By contrast, the Schindlers had trouble even finding a lawyer who would take their case since there was no money in it. Finally they found an inexperienced lawyer who agreed to take it partly out of sympathy for them, but she had almost no resources to work with and no experience in this area of the law. She didn't even depose Michael Schiavo's siblings, who were key witnesses at the trial that decided whether Terri would have wanted to be kept alive. Not surprisingly, Felos steamrollered her.

The parents obviously had no idea what they were up against until it was too late. It was only after the trial that they started going around to religious and right-to-life groups to tell their story. These organizations were very supportive, but by that point their options were already limited because the trial judge had entered a judgment finding that Terri Schiavo would not have wanted to live.

This fact is of crucial importance -- and it's one often not fully appreciated by the media, who like to focus on the drama of cases going to the big, powerful appeals courts: Once a trial court enters a judgment into the record, that judgment's findings become THE FACTS of the case, and can only be overturned if the fact finder (in this case, the judge) acted capriciously (i.e., reached a conclusion that had essentially no basis in fact).

In this case, the trial judge simply chose to believe Michael Schiavo's version of the facts over the Schindlers'. Since there was evidence to support his conclusion (in the form of testimony from Michael Schiavo's siblings), it became nearly impossible for the Schindlers to overturn it. The judges who considered the case after the trial-level proceeding could make decisions only on narrow questions of law. They had no room to ask, "Hey, wait a minute, would she really want to die?" That "fact" had already been decided.

In essence, the finding that Terri Schiavo would want to die came down to the subjective opinion of one overworked trial judge who was confronted by a very sharp, experienced right-to-die attorney on one side and a young, quasi-pro bono lawyer on the other.

Nothing unusual about this, of course. It's the kind of thing that happens all the time. But it's an interesting point to keep in mind when you read that the Schiavo case has been litigated for years and has been reviewed by dozens of judges . . . yadda yadda yadda.

By the way, I'm guessing that George Felos is probably quite happy to work the Schiavo case for free at this point since it's making him one of the most famous right-to-kill -- I mean right-to-die -- lawyers in the country. His BlackBerry has probably melted down by now, what with all the messages from the hurry-up-and-die adult children you've been blogging about.

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Another reader comments:

The veracity/provability of Terri's wishes has been the main issue driving the whole debate. And it is one the media completely downplayed or missed or mis-reported. Because these supposed wishes of Terri provide the "fact" of the legal matter, all other subsequent legal filings appear to have been doomed from the start because this fact legally has been unshaken. Therefore, all filings proceed from the same premise: Terri said she didn't want to be kept alive in this condition. Once again, if you accept the premise what must follow is predictable.

Because of the time it took for Michael Schiavo to finally assert this fact (when has not been firmly established in my mind: Terri's family suggests seven years after her initial collapse and after he had taken up with another woman), one has to wonder how Terri's family initially challenged, if at all, Michael's claim that these were Terri's wishes. A couple of weeks ago I was struck by the possibility that Terri's family had suffered as a result of bad or ineffective lawyering. With all of the non-stop 24 hour cable coverage, why has no one tried to find out and report what took place legally before this story became a national issue? Were all the friends, who are coming out now talking about the rockiness of the marriage or disputing that Terri would have felt this way, deposed before Michael filed the right-to-die claim? I don't know.

Has the media reported on this and asked these questions? Not that I've seen. I suspect it is because the matter would have to mention Michael's personal relationships at the time of the filing; it muddies the waters for those who so fervently claim that Michael is solely perservering to carry out his wife's wishes. If facts are inconvenient for your position, ignore them.

It strikes me that the only measure taken over the last 15 years that could have challenged the underlying premise of the right to die case was the recent congressional action which called for a de novo review. That this action wasn't supported by the courts is for those experienced in legal matters to argue, i.e., was the legislation properly interpreted by the courts. However, the media have almost exclusively rushed to paint this legislation as religious zealotry, intervention, the proof of an impending theocracy, etc.... every description except what it actually was: the allowance of a de novo review in the federal courts.

The Florida lawyer who started this thread responds

Well, yes, but . . . the law passed by Congress allowed for de novo review only of constitutional law claims, not underlying factual issues. Specifically, the provision adopted by Congress stated that the federal court would have jurisdiction over any suit or claim "for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life."

What are the constitutional rights Terri Schiavo is entitled to have reviewed? Well, they're the usual suspects, like due process -- i.e., were there adequate procedures in place to protect her rights, and were they followed properly? Note that these are questions about laws and procedures, not underlying facts. In effect, the only question that can be asked is "Did she get a fair trial?" not "Did the judge reach the right factual conclusion?"

So why didn’t Congress pass a stronger bill, one that would have allowed for a completely new trial on all factual claims? Probably because they realized it would be a very, very dangerous legal precedent to set -- and likely unconstitutional anyway.

Under the US Constitution, federal courts are explicitly limited in their jurisdiction, and can hear only cases that fall within carefully defined boundaries. All other cases are heard by state courts. Allowing a federal court to step in and try a strictly state issue (which the Schiavo case is) from the beginning would pretty much violate every principle of federalism, and open the door to federalizing every case under the sun.

In truth, Congress was probably hoping that the federal courts would find a way to re-try the facts of the Schiavo case under the guise of considering the constitutional issues. But the federal judges declined to bite -- probably for very good constitutional reasons.

Moving away from legal and constitiutional issues, here's my cynical sociological / economic perspective on some underlying social trends ...

Terri Schiavo and the "I Love You But Please Die" Movement: In the uneven recent remake of "The Stepford Wives," Bette Midler plays the author of a bestselling memoir about her relationship with her mother entitled "I Love You, But Please Die."

That book would have sold very well indeed among Academy Award voters, who fell in love with the drab little euthanasia movie "Million Dollar Baby."

The Baby Boom Generation tends to get what it wants in terms of social attitudes and policies, and the first wave of Baby Boomers (the Bill Clinton cohort born in 1946) is now 59. Their surviving parents are mostly octogenarians and nonagenarians, who are getting past the decorative and cuddly part of old age. But a lot of these parents of Baby Boomers are quite asset-rich, especially if they are homeowners in Blue States, where housing prices have gone up much faster over the last 25 years than in Red States.

In Jane Austen novels, the characters hardly ever shut up about inheritances, but in modern America the whole topic is semi-taboo.

So, to summarize, millions of Blue State Baby Boomers, and a somewhat smaller fraction of Red State Baby Boomers, are in line to inherit a bundle ... but not if Mom or Dad lives forever or, especially, if his or her slowly declining health requires a fortune in expensive care. A nice quick fatal heart attack would do the trick, but with Lipitor and the like these days, oldsters are going slower.

So, when you wonder why a lot of people, especially Democrats, are okay with starving Terri Schiavo to death instead of having her kept expensively alive, follow the money.

It's hardly the only reason for the distribution of opinions on this case, but it's definitely one reason, and part of a big topic that almost nobody wants to talk about in 21st Century America.

The "I Love You But Please Die" Syndrome Embodied in Federal Law:

Under the current estate tax law pushed through by the Bush Administration in 2001, the inheritance tax drops from 45% to 0% on January 1, 2010, then rises to 55% on January 1, 2011.

That sounds less like a carefully-considered law than a high concept black comedy movie pitch:

Potential heirs spend 2009 desperately trying to keep their billionaire Granny alive, then spend 2010 desperately trying to kill her by New Year's Eve. It's "Kind Hearts and Coronets" meets "It's a Mad, Mad, Mad, Mad World" meets "Throw Momma From the Train." The script practically writes itself. (The climax is, of course, in Times Square -- hopefully, Dick Clark will be well enough to do a cameo. And we could write in a heroic IRS agent battling to keep Grannie alive in return for the IRS going easy on the film's financial backers' audits.)

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How to Avoid "I Love You But Please Die" Syndrome: A reader from Texas writes:

On the issue of estates and killing off the old farts, I think that this is the tip of the iceberg.

I watched (in 1985, when oil went to $12/bbl) people who really should have known better lose pretty much everything, in many cases businesses that their parents and grandparents had built from the proverbial garage and horse cart. That was amazingly stupid and was as much a result of bad planning as the economic crash.

As that generation is getting older (and many have made money again) and their parents are hitting their 80s (and many are still around), I continue to be struck by how few of them actually bother to do estate planning. I hear this a lot from my age cohort (their children) who are saving every penny because they trust their parents about as far as they can spit a rat and (I hear this *all* the time) most would put even odds on their parents winding up broke and moving in with them.

My age cohort (at least the ones I know) are structuring their estate now and most of them have been pushing their parents and grandparents to do the same, and they won't or can't be bothered, guaranteeing a major tax hit and a decent amount of confusion in probate.

Not retirement planning -- estate planning, to leave estates that will survive you more or less intact, which includes life insurance to offset taxes; long term care insurance that was, pre-AIDS, reasonably cheap; shifting assets, sub rosa or not, into the hands of their children and grandchildren, and so on. Trusts are your friend here, as is planning that spans multiple generations and has mechanisms to disinherit junkies, drunks, and idiots.

It amazes me that so many people (and I am sure that it is a horrifying number across the US given that I know a strata of people who really should have this nailed down and generally don't, despite being the perfect candidates) have never structured their affairs to do anything but drop a lump sum of net assets on their children, especially when you have a lot of your net worth bound up in a single thing (like property, as you pointed out, or stock options in a single company or ownership in a single company) and you will die (comparatively) cash poor and asset rich.

I think that you will see a lot more suspicious deaths, a lot more people moving the elderly out of managed care to have them croak three weeks later, and a lot more documented abuse cases as the children start to deeply resent their parents living on and using up money that the kids have earmarked for things.

I have seen this done well (and am a beneficiary of it being done well) and I have seen it done poorly, resulting in people never speaking to siblings again and substantial parts of estates being consumed in attorneys' fees. Doing it right is a lot less painful and in the same way that good manners makes social interaction less stressful, good estate planning makes long term financial security less stressful. And financial stress can make people crazy.

Crazy enough to kill their parents.

Of course, the other side of the coin is that by not locking in any formal estate planning and keeping all the potential heirs guessing as to what the will might eventually say, an oldster can maintain a lot of power over his or her potential heirs.

By one estimate, there will be six million estates of over $1 million settled over the next few decades, so the stakes are high, indeed.

The common law evolved in sizable part to handle inheritance issues, but the Right to Die laws emerged during recent decades when we've largely stopped talking publicly about estates, so there is a potential for contradiction. The question of conflict of interest in right-to-die cases is a very serious one..

My published articles are archived at iSteve.com -- Steve Sailer