Speaking for the dead

Comments that an attorney made during a trial pitting two brothers against their late father’s lover came back to haunt the siblings on appeal.

In a case in North Carolina, Earl and Henry Fortner argued at the Court of Appeals that a trial judge erred in sustaining the defense’s ob­jection to portions of the testimony of Lynda Fortner, who is described in court documents as the “domestic partner” of the brothers’ father, Johnnie Fortner.

The brothers argued on appeal that Lynda’s testimony should have been ad­mitted due to waiver of the “Dead Man’s Statute,” which is possibly the best name ever for a statute. Essentially, the law prohibits witnesses, in certain situ­ations, from testifying about talks they had with a person who later shuffled off this mortal coil.

An attorney for Lynda had objected, successfully, to her testimony about Johnnie handing her an envelope con­taining five deeds and telling her, “You take these home, put them up and keep your mouth shut.”

The Fortner brothers argued that Lynda’s testimony was relevant to show that their father did not intend to com­plete the gift of the real estate in ques­tion when he handed Lynda the deeds, which would mean that they were prej­udiced by the judge’s decision to sustain the defense’s objection to the testimony.

But their argument apparently overlooked the fact that their trial and appellate attorney, Fred Moody Jr. of Bryson City, North Carolina, admitted Lynda’s statements himself when he questioned her about the deeds in the envelope.

“Well, you did what you did, you got it, you took it home, put it up and kept your mouth shut about it because of the instructions you received from Mr. Fort­ner; did you not?” he reportedly asked her in court. Somehow, the defense did not object to his question.

“As this is substantially the same tes­timony and conveyed substantially the same information as the disputed tes­timony, we do not find that the trial court’s exclusion of the testimony at issue was prejudicial,” Court of Ap­peals Judge Chris Dillon wrote in the opinion.

The takeaway: Dead men don’t have to tell tales when an attorney can do it for them.

– Phillip Bantz