Based on news reports, perhaps Sean and Leigh Anne Tuohy and Michael Oher might benefit from getting into mediation soon – as their issues or at least some of the issues might be possible to settle. To be sure, based on what is in the news, there are legal, factual, and evidentiary issues, and also uncertainties, ambiguities, unknowns, and perplexities. And, as is true with all cases, the various outcomes on the claims and issues are unknown if the case proceeds to trial (whether adjudication is via the Court or the Jury).
Consider the following, according to the news that I have seen:
Michael was conserved in 2004 when he as 18.
It may have been a conservatorship of the person, or of the estate , or it may have been a conservatorship for everything, such as the person and the estate. I have yet to see the definitive on this.
Apparently over all of these years the conservatorship was never terminated – why not is unknown.
It appears that some reports might not have been made to or filed with the court – if reports were not filed with the court, why not is unknown.
Michael has made claims – that the conservatorship should be terminated, for an accounting, and that he is owed money from the movie The Blind Side and perhaps other remedies.
The amount of money that might be owed, or not, and the legal basis, if any, are unknown. I saw news yesterday that a producer had provided information about profits or payments that were made from The Blind Side – which, if true, I would view as probative and helpful, but certainly not determinative of anything in and by itself.
Thus, there are primary issues that might be resolved or in part resolved if the parties cooperate, such as, with the exchange of documents and an accounting, the amount owed, if any, might be agreed upon or narrowed. On the other hand, discovery of documents and information might be desired more formally or under penalty of perjury. In any event, if issues remain unresolved, the court can issue orders and make adjudications, and it certainly will if needed.
From a California perspective, the above events, actions and inactions, if true, are perplexing. In conservatorships, reports to the court are required, objections can be made, counsel can be appointed (will be appointed), conservatees can file petitions, conservatorships can be terminated, and fiduciary duties are owed, etc. I have never seen possible facts such as these in a California conservatorship.
I view “A” evidence as probative evidence that you actually already have in hand. “B” evidence is probative evidence that you strongly believe or know exists, and that you strongly believe or know how to obtain it and that you will be able to obtain it. Other evidence that does not fit “A” or “B”, is “C” – which is speculative evidence and is not reliable for any purpose. Even “B” evidence is uncertain unless and until it becomes “A.”
At this point a lot of facts and evidence are unknown and unverified; however, and although this is an early stage, the parties may agree that this might be a good time for them to mutually work for and try to mediate a resolution.
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David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.
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