Woestman v. Russell (CA1 7/28/15)

It is good that we live in enlightened days when courts have recognized the true purpose of the legal system.

Woestman and Bryan were in a car accident. Bryan hired a lawyer and sued Woestman. Then Bryan, in an apparently-unrelated criminal matter, was declared incompetent. His lawyer had a guardian ad litem appointed for him. Then he left Arizona and they lost track of him. So they moved to appoint a conservator for him on the theory that he had “disappeared” under the conservatorship statute. The trial court granted the motion. On Woestman’s appeal, the Court of Appeals affirms.

Preliminarily, Woestman argued personal jurisdiction. The statute requires that Arizona be the ‘home state” or one with which the protected person has a significant connection. The court holds it a sufficient connection that Bryan had an accident here, hired a lawyer here, and has a sister who lives here.

It seems that the principal question was whether this was a “disappearance.” The argument on Bryan’s side was that it was enough that they didn’t know where he was. Woestman argued that they should have to prove that “the person’s whereabouts are unknown to the person who would be most likely to know the person’s whereabouts.” (Does that mean that nobody asked the sister where Bryan was? Did she not want to say? Were Bryan’s lawyer and guardian not overly motivated to find him? We don’t know.) Woestman’s argument comes from Black’s Dictionary. The court uses Webster’s, which doesn’t contain the person-most-likely-to-know part. Because the statute’s purpose is to protect property, “whether individuals unknown to the court know of the person’s whereabouts does not diminish the court’s duty to appoint a conservator.” (So the test is whether the judge knows where the guy is? Aren’t lawyers, in every other conceivable circumstance, required to make reasonable effort to find people? Isn’t asking the person most likely to know the very minimum of reasonable effort? Did the legislature really mean to include carefully-nurtured ignorance as “disappearance”? How does it effect any purpose of justice to appoint a guardian for someone who could be found just by asking?) 

Those who don’t do much personal-injury work may wonder what the point of all this is. Well, we don’t know this case but we can draw  conclusions. In the old days, losing a plaintiff meant that the claim went away. Now it means that the court can appoint a conservator so that the lawyer can keep the claim going and, with the conservator’s approval, settle it, whereupon various people can take fees from a client who never gets anything. (Because the lawyer has no client to present to a jury this dodge won’t work well every time. But we’ve all known plaintiffs whose lawyers would have much preferred to “disappear” them.)

(link to opinion)