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Two threads running through the tapestry of Anglo-American law are the opposed interests in assuring everyone their “day in court” and in protecting against needless, duplicative litigation-particularly litigation that manipulates the judicial system through resort to multiple forums. These concerns shape countless legal doctrines, among them res judicata, collateral estoppel and rules of federal jurisdiction designed to address problems arising from parallel federal and state claims. The long-running contest over the estate of wealthy Texas oilman J. Howard Marshall II opens a window onto the interplay of these doctrines. The case is again before the 9th U.S. Circuit Court of Appeals, after the U.S. Supreme Court, in Marshall v. Marshall, 126 S. Ct. 1735 (2006), reversed on one jurisdictional issue and remanded for the 9th Circuit to address other issues. The case has attracted attention because of the identity of one party (Vickie Lynn Marshall, a.k.a. Anna Nicole Smith) and the lurid details that have provided fodder for late-night talk shows. While entertaining to onlookers, the case is likely to have a serious impact on the law, particularly concerning the interplay of state and federal decisions. The facts of the case are striking, even for the most seasoned estate lawyer. J. Howard, a wheelchair-bound 89-year-old, married a 26-year-old exotic dancer, but did not provide for her in his estate plan, which consisted of a living trust and pour-over will. Indeed, he made the trust irrevocable and fixed the beneficiaries to his estate shortly after the marriage. J. Howard did, however, convey $6 million to Vickie through a written agreement as consideration for their marriage. His death just over a year after the marriage was merely one milestone in what has become an epic legal saga. Vickie filed suit in Texas probate court, asserting, among other things, that J. Howard had promised her half his wealth and that his son and principal heir, E. Pierce Marshall, had interfered with that promised gift. She accused Pierce of forging J. Howard’s signature to critical documents, altering documents and much more. Pierce filed a defamation action against Vickie and her lawyers. A few months after her Texas filing, she also filed a personal bankruptcy action in California, stating as the reason for bankruptcy a default judgment against her for sexual harassment of her housekeeper and also her failure to inherit from J. Howard. Pierce asked for confirmation that bankruptcy would not discharge any potential defamation liability, and Vickie asserted against Pierce essentially the same collection of claims from the Texas probate litigation. What followed is a case study in the legal and practical problems of parallel litigation in federal and state courts. The discovery process and associated procedural disputes went on in tandem in federal and state court, neither court willing to stay its hand, with much of the same evidence coming into each court in voluminous records. The bankruptcy judge excluded Pierce’s evidence as a sanction for discovery failures and accepted Vickie’s allegations. He then concluded that Pierce had tortiously interfered with a promised gift to Vickie (through forging and altering estate documents) and awarded Vickie $475 million. In contrast, after 95 days of trial to a jury, including six days of testimony from Vickie, the Texas probate court (and unanimous jury) found that no promise had been made to her by J. Howard, that Pierce had not forged or altered documents and that the estate documents were valid. The court concluded that Vickie was not entitled to any recovery from Pierce or from the estate. The federal district judge, hearing the matter on appeal from the bankruptcy court decision, determined that the bankruptcy court did not have “core” jurisdiction over Vickie’s tort and related claims and voided its judgment on those issues. The district judge then briefly took evidence and entered his own judgment, contrary to the Texas judgment, awarding Vickie $89 million in compensatory and punitive damages. Marshall v. Marshall, 275 B.R. 5 (C.D. Calif. 2002). Cross-appeals to the 9th Circuit challenged the district court judgment on numerous jurisdictional, preclusion and evidentiary grounds, as well as the prudential claim that federal courts should have abstained from hearing matters pending in state probate court. The 9th Circuit, after sorting through hundreds of pages of briefs and arguments drawing on and discussing three duplicate proceedings, decided that the claims at issue fell within the “probate exception” to federal jurisdiction and so should be dismissed. Modern application of the probate exception rests on interests in having issues relating to decedents’ estates brought in one place and settled at one time. State probate judges develop special expertise in sorting through claims, figuring out what legal documents are valid and deciding who gets what in the end. Having all claims resolved at one time in a court specially able to do so-and specially familiar with the body of law to be applied-advances interests in certainty and predictability, as well as judicial economy. Federal courts have recognized that these interests apply to conflicts between federal and state proceed- ings just as much as to conflicts between probate and other state proceedings. See, e.g., Dragan v. Miller, 679 F.2d 712 (7th Cir.), cert. denied, 459 U.S. 1017 (1982). Marshall presented an additional wrinkle: the conflict between two specialized courts, probate and bankruptcy. Probate endeavors to bring all claims against a decedent’s estate, and all issues related to such claims, into a single proceeding and court. Bankruptcy similarly endeavors to bring all claims against a debtor’s estate, and all issues related to such claims, into a single proceeding and court. Each regime sees the imperative to corral suits that otherwise might be spread across time and space. The 9th Circuit concluded that the conflict should be resolved in favor of probate court, finding that the dispute essentially was about whether the decedent made a promise that was incompatible with making his living trust irrevocable and that would, hence, throw into doubt the bona fides of that document. Marshall v. Marshall, 392 F.3d 1118, 1132-36 (9th Cir. 2004). The Supreme Court reversed, giving a much narrower construction of the probate exception. In keeping with its trend toward circumscribing exceptions to federal jurisdiction (see, e.g., Ankenbrandt v. Richards, 504 U.S. 689 (1992)), the court declared that the probate exception only ousted federal courts of jurisdiction when the issues directly implicated estate administration or directly sought to affect disposition of property within the province of the in rem proceedings in probate. All other claims, the court said, remain within federal jurisdiction, including claims of tortious interference with inheritance brought as in personam actions. The court did not restrict the probate exception solely to diversity actions, nor hold the exception inapplicable in bankruptcy cases, but read the exception in accord with its general aversion to limiting federal jurisdiction. Distinguishing jurisdiction from result, Justice Ruth Bader Ginsburg for the court said that while federal courts could decide Vickie’s claims, other limiting doctrines-such as claim preclusion and issue preclusion-might constrain disposition of the claims on remand. Like the probate exception, these doctrines mediate consideration of the same or closely related matters in different courts. Claim and issue preclusion Claim preclusion, the modern equivalent of res judicata, declares that the legal system should provide a fair chance to have a plea heard but not to bring the same claim over and over hoping ultimately to find a favorable forum. Once a court disposes of a matter, other courts should respect the decision and refuse to hear renewed pleas on the same claim. See, e.g., Montana v. U.S., 440 U.S. 147, 153 (1979). The doctrine bars relitigation not only of claims actually decided, but also of claims based on a particular fact setting that could have been advanced in a prior case. See, e.g., Angel v. Bullington, 330 U.S. 183, 192-93 (1947). For example, someone injured in an auto accident could not sue first for reckless driving, then again alleging negligent upkeep of the car, then for negligent inattention to road conditions, and so on. Under the Full Faith and Credit Act, 28 U.S.C. 1738, federal courts are bound to apply state rules on preclusion, but the question in cases of federal-state conflict typically is whether claims have sufficient identity for preclusion. Claim preclusion also requires the same parties or people in privity to them. The parties to Marshall raise questions on both counts, though on the surface the basic facts of the central claims in federal and state courts are the same and the same parties are contesting in both forums. Issue preclusion (collateral estoppel) applies only to matters actually resolved in litigation, but bars relitigation of them even in suits raising distinct legal claims. See, e.g., Toops v. Gulf Coast Marine Inc., 72 F.3d 483 (5th Cir. 1996). Thus, a party cannot press an issue in another court when the essential facts needed to reach a conclusion have already been resolved by a jury in a prior case involving the same party. Once there has been opportunity for a full hearing on the matter, the doctrine prevents repeated and possibly conflicting decisions that can undermine confidence in the legal system. Conflicting decisions on the same issues are particularly likely when fact allegations supporting claims in federal and state venues overlap, given differences in procedures and personnel, among other things. The stark contrast in Marshall between the evidence-driven disposition of issues in one venue and the sanctions-driven disposition in another, shows all too clearly how courts faced with the same issue can reach opposing results. The 9th Circuit’s prior observation that the district court decision was based on fact findings diametrically at odds with those of the Texas case makes clear that this will be a focus on remand. Marshall additionally raises the Rooker-Feldman doctrine, also recently narrowed by the Supreme Court, which says that lower federal courts lack jurisdiction to entertain suits that, in attempting to secure outcomes at odds with prior state court judgments, essentially constitute de facto appeals from state court. See Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005). Though similar in effect, this is a special doctrine of federal jurisdiction, distinct from preclusion doctrine. The 9th Circuit on remand will have these issues, along with others untouched by the Supreme Court decision, before it. Beyond the sensational facts and celebrity attraction of the case, Marshall presents serious legal issues with serious implications for our legal system. How the court resolves the preclusion and related issues will affect opportunities for strategic litigation that can alter the costs of probating estates, the certainty of legal rules regarding them and ultimately individuals’ abilities to plan for disposition of estates. Sadly, Pierce Marshall, who for more than a decade was embroiled in the cases at every level, passed away as this article was being written, before the remand is heard. His death is not only a tragic loss for his family, who will continue the case, but also a reminder that long-running court battles impose costs of all kinds on the individuals involved. Justice Felix Frankfurter, writing 60 years ago, said, “If tolerated, our federal system would afford fine opportunities for needlessly multiplying litigation . . . .Litigation is the means for vindicating rights, but it may also involve unwarranted friction and waste.” Angel v. Bullington, 330 U.S. at 192. Courts eager to protect litigants against needless litigation and to protect the integrity of the judicial system have many tools at their disposal. As the number of lawsuits-and the sophistication of counsel-rises, however, the occasions for confronting the issues at the heart of Frankfurter’s concerns, and at the heart of the fight in Marshall, inevitably will rise, too. Ronald A. Cass is president of Cass & Associates P.C., a legal consultancy in Great Falls, Va., and dean emeritus of Boston University School of Law. He filed an amicus Supreme Court brief in Marshall on behalf of charitable foundations.

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