Michael C. Taylor//April 3, 2023
Michael C. Taylor//April 3, 2023//
A probate judge has dismissed a man’s claims against his parents for breach of contract, unjust enrichment, and conversion after ruling that a business record he attempted to admit at trial was typed in a font that did not exist when it was allegedly produced.
Michael Dorman sued his mother Linda Dorman and the estate of his late father, Harold Dorman, in 2021 over a dispute involving a payment he made on behalf of his parents.
While contested probate proceedings often pit family members against each other, what made this case from Michigan unique was an evidentiary ruling.
In Dorman v. Dorman, plaintiff Michael Dorman alleged that on Dec. 14, 2000, he loaned $110,000 to his parents at 3% compounded interest to pay off the mortgage on their home. The payment was made from Oasis Properties, Inc., a company under Michael’s control.
According to Michael, repayment of the loan with interest was due upon the sale of the home. Linda acknowledged receiving the benefit of the payment but denied that she or Harold ever agreed to Michael’s repayment terms.
Harold died in 2019. In 2021, Michael discovered that Linda sold the Dryden home in November 2020 and demanded immediate repayment of the $110,000 principal, interest of over $100,000 and treble damages due to conversion. In total, Michael requested more than $600,000 in damages against his mother and father’s estate.
Linda claimed Michael’s payment was initially made as a gift and she never agreed to repayment. However, Linda conceded that sometime after the payment was complete, Michael insisted on repayment and Harold reluctantly agreed to treat the payment as a loan with simple interest due upon both Harold and Linda’s deaths.
All parties agreed that there was no written agreement. During discovery, Michael did not produce or identify any written evidence supporting his claims. However, just three days before trial, Michael produced a corporate resolution from Oasis Properties dated Dec. 13, 2000, that he claimed to have just found in his records. If admitted into evidence, the resolution supported Michael’s allegations and would lend credibility to his claims.
But defense counsel noticed something peculiar.
The nearly 23-year-old resolution, which was not produced in discovery and only presented on the eve of trial, appeared to be drafted using the Calibri font. Although use of Calibri is ubiquitous now, Linda’s counsel questioned whether it was available for public use at that time.
As most attorneys and users of Microsoft Office’s suite of products may already know, when opening Microsoft Word for the first time the application is preloaded with default settings. Among them is a default font, type size and margin spacing. According to the New York Times, Calibri font was first introduced in 2007 when it dethroned Times New Roman as Word’s default font, where it has remained ever since.
The font — created by Dutch type designer Lucas De Groot in 2004 — was not available to the public until Microsoft Office’s release of Word 2007. Needless to say, a document created in December 2000 could not have been typed in Calibri font.
Two days before trial, Linda’s attorney and his paralegal recreated the resolution word-for-word using Microsoft Word’s current default settings. What resulted was a document whose font, spacing and sentence justification aligned nearly perfectly with Michael’s newly rediscovered corporate resolution.
Trial was conducted on Feb. 16, 2023.
At trial, Michael attempted to introduce a copy of the corporate resolution as his “smoking gun.” During voir dire from Linda’s attorney, Michael testified that he drafted the document himself in December 2000 and maintained it in his corporate records ever since. He even recited the computer and printer model he allegedly used to produce it more than 22 years ago.
Defense counsel objected to the admission of the corporate resolution as a fraudulent document that was in fact drafted and signed by Michael within days or weeks of trial, not 22 years ago as he testified.
Without the benefit of time to hire a document expert, counsel asked the court to take judicial notice of a federal case from California where a similar issue was decided. That court acknowledged that the Calibri font was created in 2004 and not released until 2007, disproving the authenticity of a similar record.
In this case, Macomb County Probate Judge Sandra Harrison took a short recess to compare Michael’s corporate resolution to the exemplar prepared by the defense team using Word’s default 11-point Calibri font and margin settings. Held up together to light, the “old” and new documents were identical duplicates, with the font, spacing and last word of every sentence matching perfectly.
Judge Harrison denied admission of Michael’s proposed exhibit and ruled that the corporate resolution was drafted in Calibri font, which did not exist at that time Michael claimed he drafted it.
The only witnesses to testify at trial were Michael and Linda, each with their own version of events. And without any documentary evidence of the nature of the payment, this was a case that hinged on the credibility of the parties. At the conclusion of the proofs, Judge Harrison ruled from the bench finding that Linda’s testimony was credible whereas Michael’s testimony was not.
In a Shakespearean twist, Michael had been hoisted with his own petard. The corporate resolution was the smoking gun, but not as Michael anticipated. His credibility vanished along with any hope of recovering against his parents.
The court ruled that an agreement existed on the terms described by Linda, that no repayment on the loan was currently due and dismissed all claims in Michael’s complaint with prejudice.
Michael Dorman’s attempt to deceive the court by introducing an old document using a new font is a cautionary tale to lawyers and clients alike. Lawyers should be reminded not to accept everything our clients produce to us at face value — especially when self-serving records appear out of thin air immediately before trial.
And clients should be forewarned against fabricating evidence. But if they do fabricate documents and testify to their authenticity under oath, they would be wise to confirm that the font they use existed at the time the document was allegedly produced!
Michael C. Taylor, an attorney with Kirk, Huth, Lange & Badalamenti in Michigan, represented Linda Dorman and the Estate of Harold Dorman. He never imagined that his disdain for the Calibri font could be put to such beneficial use for his clients. He can be reached at [email protected].