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March|April 2005
An Academic Auction By David Bitkower
Job Fair By Dana Mulhauser
The Mobile Law Office By Margot Sanger-Katz
Self-Adhesive Salvation By Nicholas Hengen
Domesticated Disputes By Dashka Slater
Cases & Controversies
The Prudent Jurist By William H. Simon

Domesticated Disputes

Sandy Toye's pet practice.

By Dashka Slater

WHEN SANDY TOYE WAS 5, SHE WAS GIVEN A WHITE POODLE named T. T., whose waggish affection saw her through a fairly difficult childhood. When she turned 7, Sandy resolved to return the favor by becoming a lawyer for pets. She stuck to her career plan, but there were obstacles. For one thing, when she arrived at Southwestern University Law School in Los Angeles in 1995, her professors told her that there was no such thing as an animal lawyer. In the eyes of the law, animals are property, not persons, and are indistinguishable from Chippendale chairs or kitchen appliances. Represent the interests of animals in a court of law? You may as well try representing the interests of potted plants.

But Toye persevered, searching for animal-related cases on Westlaw and then organizing them by subjects like Veterinary Malpractice and Custody Disputes in a series of white binders that she now keeps in her office. In her classes, she pestered professors with questions about how the legal topic in question—wills and trusts, property law—might apply to pets. In 1999, she hung a shingle in West Los Angeles that read "Sandy Toye, Animal Law," and to drive the point home, her sign featured drawings of a horse, a cat, a dog, a duck, a mouse, and a bunny. Six years later, Toye is Southern California's most prominent practitioner of animal advocacy. A bulletin board behind her desk displays photos of her clients, who have names like Chipper and Chunk.

Toye wears a gold ring in the shape of a rat on her right hand. She has six rats, any number of which might be found sleeping in her in-box or sipping from her Frappuccino. Other office mates include her dog Jake, two frogs named Prince and Princess, a catfish named Sylvester, some guppies, a few snails, and occasionally her cat Bailey. Toye clearly loves animals, but she is not an animal rights activist. She's not even a vegetarian. She is an advocate for companion animals—pets, to the uninitiated—although she is hired and paid by the animals' human caretakers. The animals have usually been harmed, either deliberately or negligently, by a vet, a kennel, a groomer, a neighbor, or even another animal. Or her animal clients may need to be provided for in the future. After volunteering at an animal shelter in law school and witnessing the euthanizing of an elderly cocker spaniel whose owner had died without a will, Toye puzzled over probate law until she hatched a method for creating enforceable living trusts for pets. Now, more than 23 states have statutes that provide for living trusts, and the Humane Society has created a "Providing for Your Pet's Future Without You" kit.

Because you cannot leave money to an animal, the beneficiary of the trust is the pet's designated caretaker. A trustee then monitors the caretaker to make sure she or he is spending the money on Scooby Snacks and veterinary care rather than on a trip to Tahiti. If the caretaker fails to live up to the terms of the trust, another can be appointed. Toye's estate plans for pets also include something called an "animal document," which allows owners to educate future caretakers about Fluffy's preference for liver over tuna fish and Fido's aversion to the mailman.

Toye also handles custody disputes, which typically occur when separating couples can't agree on who gets to hang on to their four-legged charge. The issue can be complicated by the fact that pets, unlike children, are easy to hide. She once hired a private investigator to stake out an apartment after her client's ex-boyfriend insisted that the couple's cat had run away. Confronted with evidence that the cat was living right there, the boyfriend insisted that the animal had returned out of the blue after a long absence, and then he handed it over.

Toye is now contemplating a lawsuit against an off-duty police officer who shot and killed a champion show Doberman that had wandered on to his property. To succeed in the suit, she will have to prove that the dog was worth more to its owner than the price of a replacement, which would cost in the tens of thousands of dollars. But judges aren't necessarily open to the idea that someone who has lost a pet deserves compensation for emotional distress or loss of companionship. "At least 90 percent of the time I'm in court, I'm in front of someone who thinks my case is a waste of their time," she said.

Her clients have to be willing to risk a fair amount on a case that may not recoup a cent, but most are more interested in making a point than in walking away with a big settlement. Toye recently tried an intentional tort against the neighbor of two dog-owning clients. The neighbor had frequently complained about the dogs' barking, so when both dogs died from eating cyanide-laced cream cheese and meat, the clients were pretty certain who was responsible. At trial, Toye presented cranky notes from the neighbor and the testimony of eyewitnesses who had seen him yelling at the dogs, as well as the necropsy report. But the kibble and cream cheese they found in the man's trash were ruled inadmissible, and the jury decided in favor of the defendant.

Despite her uphill battle, Toye usually fields 15 to 20 inquiries a week, and handles about 10 cases at a time. She charges $275 an hour and asks for a $5,000 retainer, which she rarely gets. She's trying to get tougher about collecting, however. After being stiffed by the client in a lengthy veterinary malpractice trial, Toye recently had to move into smaller quarters in West Hollywood and lay off two associates, leaving her with two part-time associates whom she brings in as needed.

Animal law is no longer the fringe field it was when Toye first embarked on her career. It is now a hot topic among legal scholars, and has grown to include everything from contract law (What happens when the puppy you purchase turns out to be diseased?) to intellectual property (What happens when a new kind of animal is created in the laboratory?). Some 40 law schools, including Harvard, University of California, Berkeley, and Rutgers, offer classes in the subject, and there is both an animal law review and an animal law casebook. Harvard, which has an endowment for the teaching and study of animal rights law, hosted its second annual animal law moot court competition in February.

Still, Toye has a long way to go before she's the envy of her profession. Not only does she have to deal with deadbeat clients, skeptical judges, and sniggering colleagues ("I try not to go to Bar mixers," she admitted. "It's hard to be taken seriously."), there's also the problem of the recurrent sneezing. "I'm allergic to animals," she confessed, blowing her nose. "I put them up to my face and my eyes get all puffy."

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