“We few, we happy few . . .”

In 480 B.C. at Thermopylae a fabled band of a few hundred Spartans, Thespians, and Thebans under King Leonidas I of Sparta held off the Persian hoards of Xerxes I for three days, buying with their lives sufficient time for the Greeks to withdraw and consolidate their forces for the decisive naval victory at Salamis in 480 B.C.  Remarkable not merely for its display of stoic resolution and bravery, but for its consequence as well,  these martyr-soldiers quite literally saved the Greek city states—and thence Western Civilization itself–from near-certain extinction.

 

Nearly two thousand years later, at an hourglass-shaped clearing near the rural farming village of Agincourt, France, Henry V, leading a sick, hungry, exhausted army variously estimated to be outnumbered three-to-one to as much as ten-to-one, faced the cream of French nobility.  They hadn’t a chance, and knew it.  The evening before the battle was spent in confession and atonement, for Hell beckoned. The French actually prepared and painted a donkey cart to haul Henry before the mocking crowds of Paris. We know otherwise. On October 25, 1415, the English annihilation of French knighthood preserved the Plantagenet claim to the French throne, secured Harfleur as an English staging area, and allowed Henry V to roam his armies throughout France largely unimpeded for years. A noted historian put it simply, “a regular, trained and disciplined army defeated one that possessed none of these virtues.”  Shakespeare, of course, immortalized Henry as he exhorted his tiny army, his “band of brothers,” all of whom expected to die the next day, into immortality. 

 

Fast forward another 535 years. Winston Churchill, perhaps the greatest English-speaker of the 20^th Century, put it best. “Never have so many owed so much to so few.”  In the period July through October 1940, the “few” were pilots and aircrew of the RAF and Fleet Air Arm who defended Great Britain against the onslaught of the Luftwaffe in the famed Battle of Britain.  They were indeed, “few.” Only 2353 young British men and 574 overseas volunteers crewed the Spitfires, Hurricanes, and other aircraft during this period.  Of these, 544 were killed during the Battle itself, and another 791 were killed before the War ended.  Yet these few men, incredibly, were the first to succeed in arresting the German juggernaut.  But for their stoic heroism, skill, and tenacity, it is easy to conclude that Western Europe as we know it might well not exist. 

 

What many of us may forget, though, is that these same young men who piloted the ‘Spits in 1940 had just seven years earlier at Oxford University carried a resolution, 275 to 153, that “This House is resolved that we will under no circumstances fight for King and Country.”

 

All of this came to mind as I handed out our annual MOAA JROTC awards at my alma mater, Mitchell High School, some forty-one years after I graduated.  JROTC mission is to produce leaders of character dedicated to service to their nation and their community. They’re succeeding. This small group of young Mitchell Maruders performed over 6,000 hours of community service in the Pikes Peak Region.  Tom Strand, on the District 11 Board of Education and himself a retired AF JAG, told me that only fifteen to twenty percent of JROTC cadets went on to active service.  Not here.  Fully one-half of this graduated class of cadets (about 32), are going on to serve on active duty.  One is going to the USAFA prep school, the other, our award winner, received a four year USAF ROTC scholarship to the Colorado School of Mines. He told me this has been a dream of his all of his life.  I left with my spirits soaring.

 

That a comparative few patriotic freemen possessed with unfathomable courage can and have prevailed over vastly superior forces in pivotal engagements that unquestionably changed the course of human events is a comfort today.  Those of us rocked by the financial, cultural, political, and intellectual tsunamis of our times look for that sliver of light that promises a better tomorrow.  I’ve seen it. We Americans have always been blessed with people of uncommon moral and physical courage who understand and love who we are and what we stand for, and who answer the call.  From Antietam to Adhamiyah, Cowpens to Chosin, Valley Forge to Omaha Beach, Ploesti to Khe Sanh and on to Karibilah, we have been blessed with Americans of temper, wit, unflinching courage, and selfless dedication.  These young people we in MOAA sponsor are no different. They will, I’m quite confident, be there should the occasion rise to stand shoulder-to-shoulder with Henry’s longbowmen, Leonidas’ hoplite warriors, and the “few” brave young airmen of the RAF to face down insuperable odds and triumph.  More than that; it takes a special kind of courage in our post-modernist conceit, so very like the effete intellectuals of Oxford in 1933, to announce to a cynical and diffident generation that you love our country, love what it stands for, are proud to wear the uniform, and will at some future unknowable pivot point of history, Be There.

The Price of Justice

Sam Ervin was just a small-town lawyer who one day arose to be the senior senator from North Carolina and the man who chaired the Nixon Watergate investigation. Well known for his rumpled aw-shucks country mien which he used to cover a first-rate mind, he was fond of using bucolic humor to make a point with a laugh.  He told the story of the hillbilly constituent who bought some moonshine liquor and gave a portion to a friend. Sometime thereafter the constituent asked his friend what he thought of the liquor. “Well, it was just right,” said the friend.

“What do you mean, ‘just right’?” the benefactor asked.

“I mean that if it had been any better, you wouldn’t have given it to me,” the friend replied. “And if it had been any worse, I couldn’t have drunk it.”

Then there was a young lawyer who showed up at a revival meeting and was asked to deliver a prayer. Unprepared, he gave a prayer straight from his lawyer’s heart: “Stir up much strife, rancor, distrust, and hatred amongst thy people, Lord,” he prayed, “lest thy servant perish.”

 

Unfamiliar as I am with the former, there’s more than a kernel of truth in the last. You’ve read many times before in this space about the expense of litigation. At this writing, we are poised for a five to seven week trial, which may or may not be over when you read this, concerning the Grace and St. Stephens Church.  Some of you, I know, are to be participants in this trial.

 

While I, too, am a participant of sorts, I don’t think it presumptuous to observe that the entire situation must sadden even the flintiest of hearts. Good people, well-meaning people, simply cannot agree on a matter of great importance, and look to the courts ultimately for vindication, and more improbably, justice. I’ve no way of knowing if either side, when the dust settles, will achieve either.  The one thing I can predict with absolute confidence is that the lawyers in the case, win or lose, will do just fine. That’s often the case in court.

 

Sometimes, particularly where there are two widely divergent objectives among the litigants which do not lend themselves to a middle-ground (what I call a binary dispute), a lawsuit is really the only choice.  Other times, though, there is room for compromise, negotiation, a little old-fashioned horse trading and yes, even reconciliation.  In such cases it is possible to achieve a win-win resolution where all parties, while perhaps not fully “vindicated,” can achieve a measure of satisfaction in having achieved a resolution of the problem short of full-tilt-boogie litigation.

 

I sometimes ask clients who want to engage in a will contest in probate court, or who wish to put punitive sanctions in their last will and testament, how much they like me.  “Do you love me like a son?”   Puzzled, most will admit that, well, actually no, no they don’t. I then tell them that the good news is that the estate almost undoubtedly will be divided 50-50.  Relieved, they ask me how I’ll be able to do that.  “Easy, I get half, and the other side’s lawyer will get half.”

 

My hope in using this too-cynical parable is to help people understand the enormous cost, not just monetary, but emotional and spiritual, of going to court.  And it’s also to help folks consider that working through alternative dispute resolution (ADR), or through various peace-making mechanisms, can often result in a healthy outcome with a minimum of collateral damage to the family.  (Full disclosure:  I am working through my church to become part of a Peacemaking Team, with the idea of helping disputants work things out without coming to blows or to court.)

 

To succeed in informal or alternate dispute resolution requires just four ingredients.  First, the disputants must share common value system or objective relevant to the nature of the disagreement.  Core beliefs in family, sharing, faith, or maybe just ensuring the interests of the children, are a great beginning. Second, the disagreement cannot have devolved irretrievably into hatred.  Once the original object of the dispute becomes subordinate to the thirst for vengeance, never mind that bringing down the opponent might mean self-destruction, there is little hope for amicable resolution.  In such cases, litigation holds great promise if the goal is mutual assured destruction. Third, there has to be agreement that there is a possibility of compromise, and that getting something less than everything is acceptable.  And finally, there has to be a willingness to come to an agreement without having it imposed. When we’re talking about money, parenting time, or even a disagreement over botched repairs, there’s nearly always a middle ground where reasonable people can reach an accommodation.

 

Justice is seldom if ever, completely found in a verdict. Joseph Heller’s darkly forbidding “bloated colonel” in Catch-22 had his own view of justice. “Justice” he told Lt. Clevinger, “is a knee in the gut from the floor on the chin at night sneaky with a knife brought up down on the magazine of a battleship sandbagged underhanded in the dark without a word of warning. Garroting. That’s what justice is.”

 

Doesn’t sound like a worthy objective does it? True justice is always elusive, but acting justly is something to which we should all can and should aspire.  Sometimes it can be done without lawyers. 

Steady-On

            Steady On

 

There is the story of the young lad who was an incurable optimist. No amount of misfortune seemed ever to dim his effervescence. This was of course a mixed blessing for his parents, who, though gladdened by his sunny outlook, over time began to worry that he was headed for a profound disappointment one day, the kind that might sour him for the rest of his life. So they resolved to teach him a lesson in a controlled environment.  For Christmas of his eighth year they betook themselves to the local stable, where they filled a half-dozen burlap sacks full of manure.  Scattering it all over the tree, fouling the floor, the carpet, the ornaments, even his stockings, they bethought themselves that by giving him an unalloyed disappointment, he might learn a more realistic view of life itself. 

 

Dawned the Christmas morning, Mom and Dad waited nervously for their beloved only son to come down to the living room where the fetid disaster awaited.   The look on his face as he beheld this most-awful Christmas surprise turned from slack-jawed wonder to sheer delight.  He dove into the manure, scooping away great hunks with his bare hands – exclaiming, “Oh thank you Santa, with all this manure there must surely be a pony hidden in here somewhere!”

 

This season has indeed brought many of us several sackfuls of the stuff, hasn’t it?  And yet, and yet.  I just returned from Denver where I visited my newest granddaughter – Callie Marie Morgan.  So sweet, so precious, so full of innocent promise at the onset of life’s fabulous journey. If you dig long enough through that poopie diaper there surely lies a child of God, destined for wonderful things, a life full to the brim with as-yet unrealized excitement, wonder and adventure, triumph and tragedy, the slings and arrows of outrageous fortune.  Nearby my two-year old grandson harried his mom and dad with the irrepressible sparkle of the terrible-twos, deviling them with that emphatic obduracy that his mother refuses to believe she ever exhibited.  She did.

 

Days earlier I had watched the commissioning of the latest (and last) Nimitz-class nuclear carrier, the George H. W. Bush.  Her namesake was himself present, speaking to the ship’s plank-owner company of his longing for those days, so long ago, when he was a 19-year-old naval aviator, flying the Grumman Avenger torpedo-bomber from the newly-commissioned San Jacinto light carrier. Sixty-six years later the George H. W. Bush gleamed with promise, emblematic of the strength, steadiness, and resolution of our nation, crewed with young Americans who answered the call that all of us once answered too-long ago. 

 

A three-ship of F/A-18 Hornets flew overhead followed by, mirabile dictu, a restored TBF-3 torpedo bomber, just like the one George the Elder flew for 58 combat missions in the Pacific.  It was a stirring moment, made more so by the authenticity of Bush 41’s wistful aside to these sailors and aviators—“I wish I were sitting with you on the deck, and not here on the dais.” There was no mistaking that he meant it.  Few of us in service haven’t felt that twinge of longing that recalls with fondness the limitless expanse of our future that beckoned with the award of those butter bars.

 

The market may tank, your candidate may get shellacked, your favorite local eatery may shutter up. Plenty of reason to feel sorry for ourselves. Yet for all the hard-times, economic vortices, and pitiless enemies that face them and us, these young sailors and aviators I saw waiting to breathe life into this ship were quiet assurance that our nation and all it stands for endures.  Theirs is the promise that the United States offers to the rest of the world – this shining city on the hill, where sailors yet-unborn will one day man this ship in defense of freedom, self-determination and human dignity in some far-off conflict yet unnamed and unthought.  They and their children and even their grandchildren will answer the call of this mighty ship, and will serve with the same unspoken pride and sense of destiny as we. 

 

So steady-on, America, we are blessed beyond measure And sleep well tonight, Callie, Bronson, Brianna, and my as-yet unnamed grandchild of June. You’re Americans, with the best yet to come.

Custodial Trusts

I’ve written earlier (January 2006) about the Uniform Transfer to Minors Act, which provided a simple and inexpensive way to gift to minors without having to set up an elaborate trust.  UTMA accounts end automatically when the minor gains legal capacity at age 18 or 21.  But what about adults who are facing the possibility of incapacity?  Isn’t there a correlative mechanism for them?

Happily, the answer in Colorado is yes.  Since 1999 there’s been a creature called a Custodial Trust.  Its declared aim is to provide an inexpensive way to establish a simple trust for the benefit of an adult.  For the most part, it is intended for people who may sense early stages of dementia and want to make sure their finances are appropriately cared for should the situation deteriorate to the point of incapacity.  The statute governing custodial trusts provides that incapacity does not terminate: the custodial trust; the designation of any successor trustee(s); the authority of the trustee; or the ability of third persons to rely upon actions of the custodial trustee.

The beauty of these things is their simplicity and their flexibility.  There is no loss of control by the beneficiary since it is the duty of the custodial trustee to be responsive to the direction of the beneficiary (if not incapacitated) in the management, control, investment and retention of trust property.  You can declare the trust for yourself, or another person can put resources into that trust for your benefit. You can have yourself as both the trustee and the beneficiary. Parents with an adult child with diminished capacity for handling money can create one for that child’s benefit, or husband can create one for wife and vice versa.  Most important of the attributes of a custodial trust is the provision for continuity in the event of the incapacity of the beneficiary. Where future incapacity is the concern and the individual has named himself as primary custodial trustee, it would be very important to nominate a successor trustee should the principal become incapacitated.

Custodial trusts are really the next step up in formality from a financial power of attorney, although the two are by no means exclusive. The nice thing about custodial trusts is that you are able to set aside certain accounts, property, or a specific amount of money and dedicate it to the welfare of the named beneficiary. As long as that beneficiary retains capacity, (or if the incapacity is temporary and is restored), the trust can be dissolved.

The official commentary to the statutes state that the legislature’s purpose in adopting the act was to take care of people who “are not very affluent” or who had attorneys who did not specialize in estate practice.  There are some situations, however, where more is required.  For adult children suffering some form of incapacity and receiving public assistance, a custodial trust might have the untoward effect of disqualifying them from benefits.  For them, supplemental needs trusts can provide a benefit without jeopardizing their entitlements.

Planning for incapacity takes thought and deliberation and should always be carefully tailored to the circumstances.  After all, there is a variety of tools in the legal toolkit, of which the custodial trust is just one.  Identifying the right tools and adapting them to your situation is the good lawyer’s job. Now, if we could just find one of those .. ..