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The Court of Appeals for the First Circuit affirmed a forgery ruling against the plaintiff's daughter when she transferred certain stock to herself and her step-mother by forging her father's signature. Evidentiary issues arose as to whether or not the father could introduce testimony that supported the eventual ruling against her.
For those attorneys who enjoy evidence, we think you'll appreciate this case.
In the case of Berkowitz v Berkowitz, Samuel Berkowitz sued his daughter for her alleged breach of her fiduciary duties as trustee in a trust he'd set up for her and his then wife and son. In the instrument, she enjoyed a life estate to his property and his wife and son would take the remainder.
Unfortunately, somehow along the way, his daughter and wife ended up selling the trust res before his death and kept the proceeds. In order to accomplish this, his daughter had to forge his signature to effectuate the sale.
At the district level, the jury eventually awarded Samuel to the tune of about $500,000. Bonnie, having already moved for a judgment as a matter of law, once again tried that tactic and failed. The court also denied her motion for a new trial.
The circuit court heard Bonnie's appeal and did not give her relief from judgment.
One of the first arguments that Bonnie presented before the court was that her father's testimony about her alleged forging of his signature was so implausible that no reasonable juror could have credited the testimony. Unfortunately, either Bonnie or her lawyer missed the mark. The circuit reminded her that in reviewing lower trial courts, appellate courts cannot reweigh testimony or other evidence credibility.
Bonnie sought to keep her father's testimony about his knowledge of her signature out of the body of evidence because on the grounds that he'd earlier testified that he wasn't familiar with her signature. In her opinion, this supposed impeachment evidence tainted his testimony as to make it completely unreliable and thus unworthy of being included as evidence. However, Bonnie made no objections at trial over this supposed conflict, and would not be heard on appeal to complain of this.
Another issue that came up was when Samuel became familiar with his daughter's handwriting. It is codified in the Federal Rules of Evidence that a non-expert's opinion as to genuineness of a signature may be admitted so long as the non-expert did not become familiar with the signature for purposes of testimony. In other words, he had to already have had a basis to form his opinion before litigation.
In fact, Samuel never testified that his familiarity was gained for the purposes of the suit, but that he'd gained that familiarity based on communications between him and his daughter in the months leading up to the suit. Sure, it might have been the case that he had a refresher of her signatures during the litigation process, and may have even admitted to that in court. But that did not amount to admission that he'd acquired familiarity with his daughter's signature for the purpose of preparing for the suit. If anything, it was merely an explanatory detail.
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