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Attorney: Rusty Hardin, 59 Firm: Houston’s Rusty Hardin & Associates Case: Marshall v. MacIntyre, No. 276815-402 (Harris Co., Texas, Prob. Ct.) Winning Points: � Take risks in court; you can score big. � Don’t beat up witnesses until they earn it. � Structure case around the human element. “A trial lawyer has to feel comfortable taking chances,” says Rusty Hardin. He calls the standard advice not to ask questions if you don’t know the answers “one of the silliest things I’ve ever heard. You have to do that,” he says. “You have to ask questions you think the jury wants the answers to. If you don’t, the jury is going to want to know why.” He adds, “The jurors will notice you ran away from the question. “If you take chances, it might blow up in your face,” he concedes. “But if you score, you score big.” In his most recent big win, Hardin took several significant risks and wound up defeating claims by J. Howard Marshall III and former Playboy model Anna Nicole Smith for an inheritance worth as much as $1 billion. The verdict was the latest in a long career of high-profile courtroom wins for Hardin, as prosecutor, criminal defense lawyer and civil litigator. He has only a handful of losses in a career that spans some 200 jury trials. This year, Hardin was part of the defense team for Marshall Petroleum and Pierce Marshall, the son and primary heir of the late oilman J. Howard Marshall II, who had died in August 1995, at the age of 90, 14 months after marrying Smith, a former stripper. Marshall had left his estate to Pierce and disinherited his other son, J. Howard Marshall III. This son and Smith each claimed that Howard II had promised that they would receive half of his estate. Howard II, Hardin says, did not promise to leave any part of his fortune to them. In the 1980s, “he had had a bad falling out with Howard III and began writing him out of the wills.” He had never put Smith in any will. In December 1995, Howard III sued Pierce, Marshall Petroleum and others in probate court in Texas, claiming undue influence, fraud and conspiracy to create an estate plan to prevent Howard III from getting half of the estate. Smith filed a similar complaint, contending tortious interference with her inheritance rights; she also filed a claim on the estate in California, and in 2000, a judge awarded her $475 million. For Hardin, the size of the estate posed a major obstacle. He was worried the jury might ask, “Why can’t we be Solomonic and split it? Pierce would be left with $400 million. How is he going to be hurt?” ‘LET HIM BE A FOOL’ Howard II’s disinheritance of his son was also a possible sticking point. “Disinheriting a son is a serious thing.” As for Smith’s claim, the defense had another concern. “This was an 89-year-old man who married a 26-year-old woman.” The jury might decide, Hardin says, “Why bail him out of that? If he wants to be a fool, let him be a fool.” The key to winning, he says, was in making Howard II come alive in the courtroom. “I particularly wanted to show the jury what J. Howard Marshall was really like. The law does not require you to prove motive, but you ought to. You need to show the jury who these people are, so what they did makes sense.” This led to Hardin’s first big gamble. He presented videotaped depositions that Marshall had given several years before his death, stemming from a relationship he had with Lady Walker, another stripper. Hardin says that Marshall gave Walker $8 million to $9 million. He planned to marry her, but she died. After that, Hardin says, “he found out she had been untrue to him. He sued her estate” to get back the money. In this suit, Marshall was deposed twice — in May 1992 and August 1993. “Some people were afraid of using the depositions because he was so irascible and grumpy,” he says. But Hardin had a different take: “He was cantankerous on the surface. They might not like him, but I thought the people on the jury would see him the way I saw him” — sharp but likeable. Hardin also wanted to defeat any claim that Marshall was not competent or under the undue influence of Pierce. It was also essential for Hardin to diminish the character of the two plaintiffs, Howard III and Smith. “This was a morality play,” he says. “These were two fabricated lawsuits.” Before trial, Hardin did not depose Howard III. “I frequently don’t want to take deposition of an adverse witness. I don’t want them to see how my mind works.” Anyway, he had seen him testify in another case. Smith was different. He wanted to see whether he could get under her skin. “I learned that the problem with her was that she doesn’t answer the question. It was always, ‘I don’t remember, I don’t recall.’ “ During her deposition, he says, “I would ask a question and she would flirt at first. She was clearly used to being able to get by with a Marilyn Monroe-ditzy response.” But if Hardin persisted, “sooner or later, she’d get frustrated.” At trial, Hardin kept questioning her about all the money Marshall had given her while he was alive. At first, the questions were matter-of-fact and he let many of her answers go on uncontested or unremarked upon. “You never beat up a witness until they earn it in front of the jury. She has to perform unfavorably for a while before you start boring in,” says Hardin. The questions became more and more pointed as the examination went on. And Smith began getting angry. In recross, Hardin played part of a tape of Howard II supposedly talking about adopting Smith’s son. On the tape, Hardin says, she was clearly coaching the old man. He asked the witness, “Sometimes, ma’am, isn’t it true that when you were doing these tapes you would take off your top while you sat next to him and got him to say these things?” Smith shot back, “Oh, Mr. Hardin, you are a pervert, that is not true and I think you are sick.” But he scored big after another exchange, he recalls. “I asked her if she was taking new acting lessons.” Smith replied, “Screw you, Rusty.” In closing, Hardin took his final gamble. All through this trial, he says, “Anna Nicole’s lawyer talked about how J. Howard II called her the light of his life. After a while, this was wearing on me, and I knew it was wearing on the jury.” The night before the final argument, he says, “we’re sitting at a restaurant and I asked who sung ‘You Light Up My Life.’ … Then I ask, ‘Where am I going to find a copy of a Debby Boone record?’ because I think I’m going to play it.” He called his son, who downloaded the song from Napster. As he began the closing, “Debby Boone singing ‘You Light Up My Life’ starts booming through the courtroom,” he recalls. “After two refrains we stopped it.” Spectators and jurors were laughing. On March 7, the Houston jury completely rejected the claims of J. Howard III and Smith against Pierce and the estate. Pierce had made a counterclaim against his brother for interference with inheritance rights; the jury ordered J. Howard III to pay him $35 million on this claim. Post-trial motions are pending. After the trial, Hardin says, the jury serenaded the defense team with a chorus of “You Light Up My Life.”

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