At Gerry Beyer's excellent Trusts & Estates blog, he paraphrases the views of (former Visiting Professor) Horace Cooper as put forward in a press release on the Anna Nicole Smith case:

Horace Cooper, writer and legal commentator, will be discussing the legal myths in the Anna Nicole Smith case on Tuesday, June 12 at 1:00 p.m. EDT. He will explain why Dannielynn may not be the million-dollar baby that so many have made her out to be. Cooper feels the real tragedy is that Dannielynn is more likely to be saddled with substantial legal debt if Larry Birkhead and Howard K. Stern decide to proceed with Smith's claims. Cooper will be featured in Smith's much hyped E! True Hollywood Story on Monday, June 11 at 8:00 p.m. EDT.

Few remember that the trial of record was not Anna Nicole Smith's much hyped Supreme Court appearance, but rather a five-month jury trial in the Texas Probate Court in 2001 finding that J. Howard Marshall's son Pierce was the legal heir. Furthermore, the jury found that there was no evidence to indicate that the will was interfered with and the case affirmed that Marshall had no intention of making Smith his heir.

Tuesday, June 19 will mark the first hearing in Anna Nicole Smith's probate trial, and after the courts declare official custody this Friday, June 8, both Stern and Birkhead will begin their legal posturing to move full speed ahead with their pursuit of J. Howard Marshall's estate. Behind the high profile, celebrity nature of the case is an example of audacious and alarming forum shopping and serious questions about state and federal jurisdiction.

I have read such discouraging remarks about Anna Nicole's suit, but IMO they seem to be at least partly beside the point. I have trouble understanding why Cooper thinks that the Texas case is "the trial of record" on the issue of her suit: tortious interference with a lifetime gift to Anna Nicole. If Cooper were right, it seems likely that Anna Nicole Smith would have lost her case in the US Supreme Court. As I seem to recall from a quick reading of the opinion some months ago, the U.S. Supreme Court held that the Texas probate case did not bar Anna Nicole's case in federal bankruptcy court under the probate exception (because her federal counterclaim did not interfere with the probate of J. Howard's estate in Texas).

Perhaps I'm missing something, but Smith's federal judgment for $88 million was NOT in a Texas probate court and did NOT purport to find her an "heir" of the estate. Her claim was based on Pierce's allegedly tortious (and fraudulent) prevention of J. Howard's attempts to give Anna Nicole a LIFETIME GIFT by setting up a trust for her.

I have no idea whether Anna Nicole's estate will win in the end, but I don't see how her case is as obviously weak as Cooper claims or that what he mentions as legal impediments are impediments at all. As her federal claims were not as an heir to Howard's estate (but rather as the victim of tortious interference with her being a beneficiary of a lifetime gift), her claims appear to be not prevented by the Texas probate case.

Of course, Anna Nicole's estate might still lose. A federal court might not find the evidence persuasive (though the lower courts did). Or the US Court of Appeals might hold that there is no action for tortious interference with an inter vivos trust under Texas law (though the lower court held there was, but with very little support for its holding). My knowledge of federal procedure and bankruptcy is limited enough that there might be other significant hurdles for Anna's estate. But without a detailed knowledge of the case, I would think that her estate's chance of winning would be somewhere between 25% and 75%--i.e., it could go either way.

Here is another view that seems to assume that the Texas case does not bar the federal action and that Anna's estate has a plausible claim.

But not being an expert on federal procedure, I might be missing something.

If there are any experts out there who know why some commentators have been so pessimistic about Anna Nicole's case, perhaps they could enlighten us in the comments below.