Bette Epstein’s Estate Secrets
The Reed Smith lawyer tells why her practice area is anything but routine
Published in 2012 Northern California Super Lawyers magazine
By Beth Taylor on July 6, 2012
Q: As an estate lawyer, you must hear a lot of family squabbling.
A: A lot of what [families] fight about are items of tangible personal property, which may or may not have any value. The money, the property—that’s kind of easy to divide up. But where there is one deer head, one piano, one favorite piece of art or piece of jewelry. … Jewelry disappears. There’s a lot of time spent over jewelry that has disappeared that you’ll never find again.
Q: What was that about a deer head?
A: A very moth-eaten deer head had belonged to my clients’ grandfather and was now in the possession of their stepmother. [Her stepchildren] didn’t care how much it cost for me to argue about that deer head, but she was not going to end up with it. The deer head had been mounted for many, many years in the family cabin that had been in the country somewhere, and I think that cabin was sold after their grandfather died. The father, who was the decedent in the case, put it in the den of the house where their stepmother was now living. I’ll never forget the response when I told her lawyer that the deer head was going to have to be part of the tangibles that my clients received. His comment to me was that, no, it needed to stay there because it was “integral to the décor of the den.” I said, “Then she’d better find another deer head, because this one is going.”
Q: Did your clients end up with the deer head?
A: They ended up with the deer head.
Q: I imagine emotions run pretty high.
A: They can run really high. I generally have very good relationships with my opposing counsel. That’s oftentimes the saving grace [if] we both have difficult clients. We support each other because we’ve got such challenges. That’s not to say that we’re not strong advocates. We’re strong advocates, but there has to be some sanity. And you need to have a sense of humor with these cases because sometimes they are absurd. I tell that to my clients—you’ve got to maintain your sense of humor.
Q: What are the upsides of practicing trust and estate litigation?
A: The personal dynamics and the emotional dynamics that oftentimes drive the litigation are interesting and challenging. Sometimes frustrating. And it’s such a dynamic area. Every case has its own twists and turns, so there’s nothing really routine about the work. We get into tax issues; we get into corporate issues; we get into all of the relationships of the parties.
Q: What drew you to the field of law in the first place?
A: When I was an undergraduate at USC [University of Southern California], my boyfriend, who became my fiancé and is now my husband of 47 years, was interested in going to law school. [He] had this fantasy that I would go to law school and we would practice together. So, pretty much on a lark, I took the LSAT in 1964 and didn’t apply to law school at that point.
Q: Until then you had not thought of law school?
A: Not at all. I was a psychology major. But he planted that seed in 1964. My first job out of undergrad, which began the week after I graduated, [was] at a wonderful women’s specialty store called Joseph Magnin [Co.]. Cyril Magnin, who was the president of the company, gave young women incredible opportunities to succeed. I was hired, ironically enough, to be the secretary to the corporate personnel manager, and also the receptionist in what was then called the personnel department. The reason I got the job was because I knew shorthand, and the only reason I knew shorthand was because my mother had friends whose daughters went to college and couldn’t get a job. My mother was very practical, and she said, “You need to take shorthand and know how to type.” My shorthand was terrible, but I muddled my way through, so I got the job.
By the time I left five years later, I was the personnel manager of the main branch of that business … responsible for about 300 employees, and I was 26 years old. That’s the kind of opportunity that Cyril Magnin gave people. I left because I was pregnant. I had my son, and within about nine months of staying home with this adorable child, I said, you know, this isn’t working for me. I think work had become so fulfilling that I wanted more of it. I needed to find a way to both be a parent and do something else. This was 1971. I decided the best part of my job was the counseling part—employees who had chronic tardiness or needed disciplinary proceedings. So in early 1972, I started grad school at California State Hayward [now California State University, East Bay] and got a master’s degree in counseling, with the thought that I would be a school counselor so that I could have the same schedule as my kids.
Q: Did that work out?
A: When Prop 13 passed, it was clear that the money to fund schools was going to be reduced. I really wanted to be an elementary school counselor because I realized that’s where the problems existed, and by the time you got to high school it was pretty much too late. [But] I was told there’s never going to be a job for you as an elementary school counselor. So I changed my focus. After having another child and finally getting my thesis done, I got my master’s, and I started working at a private psychiatric clinic in San Leandro in the East Bay. Very shortly after I got there, I was asked if I would be director of the geriatric outreach program. I knew nothing about geriatrics. So I went to Cal Berkeley extension and got a certificate in gerontological studies. I was director of a geriatic outreach program; we provided counseling and outreach services to homebound seniors. I [also] became licensed as what was called a marriage, family and child counselor at the time, about 1982, 1983. Two things happened during that period of time. My mother went to law school. My father died very young. She had the experience of dealing with my father’s estate and decided that she wanted to be more capable to function in the world, and so at the age of 50 she started law school. She passed the bar on her first effort and became a deputy city attorney for the city of LA, prosecuting misdemeanor crimes, and was very good at it.
Q: So she inspired you to pursue the law degree?
A: That’s going on in the background. In my life as a therapist, I was counseling a woman who had been diagnosed with terminal cancer; was very, very sick; and, amazingly enough, survived the treatment and woke up one day and realized that her husband was never around. She was in her early 60s, so she got in touch with our program; I started working with her, and it became evident that this marriage was not going to survive. She filed for divorce and asked me if I would go with her to court. So I went with her and sat in that courtroom and watched the arguments that were being made by the lawyers, and I thought to myself, “I could do that.”
By coincidence, the next day a good friend of mine, who was then a public defender in LA, was here for a conference of criminal defense lawyers, and said the speakers are usually pretty interesting, so come and sit with me for a little bit and then we’ll go to lunch. The speaker was a lawyer from Oklahoma who was talking about working with a jury. He would go from his instructor voice to his speaking-to-the-jury voice, and it was fascinating. I walked out of that conference and I turned to my friend and I said to him, “I’m going to law school.” I think I was bored as a therapist; I was finding that people would come to therapy but really weren’t wanting to make things different in their lives. What they really wanted was to have someone to complain to, and I wasn’t very tolerant of never-ending complaints with no changes being made.
This confluence of events occurred; I think it had been simmering in my mind. When I make decisions, they may appear impulsive sometimes, but I’ve really been working with that information for quite a while. So I went home that night and said to my husband, “I’m going to go to law school, but I’m not going to do it unless I have your support.” Because at that point, when I made the decision, my kids were 9 and 11. His answer to me was, “OK, when do you want to go?” I was on boards; I was involved in school activities; and I thought, “OK, I’m going to give myself a year.” I waited and started law school in 1983, when my kids were then 10 and 12. I went to the University of San Francisco. I had not been a stellar undergraduate; I wasn’t motivated. I was an undergraduate because that’s what you were expected to do and not because I had any driving ambition to do anything other than get married and have kids and do whatever moms did. I’d done really well in grad school because I was really motivated. I did very well in law school and passed the bar the first time, which I was determined to do.
Q: You didn’t work during law school?
A: No. I was totally focused on basically two things: being a law student and being a mom. I disengaged from all of the other activities, because I felt if I was going to be successful both as a law student and as a mother, both of which were very important to me, I needed to not have other things going on. My husband was very supportive.
Q: How did you end up in estate law?
A: I went to law school specifically to practice family law: divorces, adoptions, that area. When I was in law school, I clerked for our local family law judge at the time, and part of that clerkship involved participating in settlement conferences. You really got to see the lawyers in action—not putting on a show for their clients, just talking and negotiating with the judge, who was trying to settle these cases. So I got to see who I was impressed with and who I wasn’t impressed with. One of the things I knew was that, if I was going to be successful, I needed real litigation skills, because I saw lawyers settling cases that I thought was a result of not having the confidence to take that case to trial. So in my third year, when I was clerking for the judge, I said, “You know, I need to look for a job. Who do you think I should call?” He suggested I call an attorney by the name of Ron Wagner, who was a partner at Crosby Heafey Roach & May. I told them I need real litigation skills; I want to have the confidence that I can take the issues to trial if that’s what needed to be done. So the offer was [for] three years of civil litigation experience, and then we could talk about whether I would really focus on family law. Well, about a year and a half into that three years, Ron Wagner and his practice left the firm. They called me in and said, “OK, here’s the situation: If you want to continue to work with us, we’d be delighted to have you, but there’s never going to be an opportunity for you to practice family law in this firm.” I really liked the people I was working with; I was getting excellent training, and I thought I would stick around and see if there’s something else that was going to be of interest to me.
In about my third year, I was given an opportunity to work on a probate litigation matter, which is not typically what the firm did. We had a well-established estate planning practice, and estate and trust administration, but not typically litigation. It was fascinating. I went to the head of the estate planning practice at this time and said, “I really like this area; could there be more opportunities for me to do this kind of work?” And he said, “Sure, if you want to do it, we can create these opportunities for you,” because otherwise they would be referring that work out. So I was given an opportunity to really create a practice.
Q: You were managing partner of your firm’s Oakland office before it recently merged with your San Francisco office. What was it like holding that position?
A: That really drew on my first career, my human resources/personnel career of counseling, and then my second career of counseling. When I became office managing partner, I felt like I merged all three of my professions.
Q: Do you have any regrets that you didn’t end up in family law?
A: Not at all.
Q: What’s the best advice you’ve ever heard?
A: It’s advice that I’ve received and advice that I’ve given. That is: Really know who you are and be yourself. Don’t try to be somebody else. It doesn’t work. You have to just be comfortable in your own skin, knowing that you can be as effective as need be within your own personality and your own style.
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