BY ROBERT THOMAS – Matthew King, the Honolulu lawyer at the center of Alexander Payne’s The Descendants, has two problems, one of which I will never have, and one of which, God willing, I hope never to have.

The first is his status as the sole trustee of an alii trust in possession of 25,000 acres of prime land on Kauai. The trust’s fuse is running down as a result of the rule against perpetuitiesand King (George Clooney) must therefore decide what to do with the trust’s largest asset: sell it to Developer A or to Developer B, or do something else with it. His fellow descendants are letting their desires known, and he’s feeling the pressure.

The second is that his wife is in an irreversible coma as a result of a boating accident, and her “living will” dictates that she be allowed to die with dignity; to make it even more emotionally complex, he discovers that she was having an affair and planned to divorce him. The film employs Payne’s signature lightly comic touch to help King work through these problems.

We won’t make extensive comment on the qualities of the film itself, except to say that in a year filled with self-congratulatory movies about the film industry (see The ArtistMy Week With MarilynHugo), and impersonations of real people (see The Iron Lady, the aforementionedMarilyn – a sure-winner twofer), it is refreshing to see one that has a wholly original story (based on a novel) — a smaller film that gets the details right. As a movie featuring the rule against perpetuities as a central plot device, and one that in many ways is a very accurate portrayal of the life of your average Honolulu lawyer in a private firm – King, you see, lives on his salary despite his family’s riches – how could we avoid liking it?

  • With our old U. Hawaii Wills & Trusts lawprof Randy Roth as the legal advisor, you know they were going to get the rule against perpetuities stuff right. For more, see George Clooney Makes Estate Planning Sexy (Forbes). For more on how the common law rule works in Hawaii, see In re Damon, 869 P.2d 1139 (Haw. 1994) (construing a testamentary trust to terminate “upon the death of the last measuring life” and not that life plus 21 years). Yes, this really does happen.
  • The wardrobe department got Clooney’s work wear 100% right, as we noted in this earlier post. Honolulu lawyers of the male persuasion really do wear tucked-in reverse-print aloha shirts on non-court days, even though, as Clooney later remarked, it may “end[] all masculinity.”
  • The view from of King’s firm’s conference room looks remarkably like ours. And the clients who show up in the conference room look like some of ours also: t-shirts, slippers, shorts. You never know whether that guy looking like he just rolled in off the beach is the beneficiary of a big land trust. Never judge anyone by their cover in our town.
  • The opening narration (a portion of which is here) is just so.
  • 25,000 undeveloped acres on Kauai — if such a parcel existed — would generate massive interest. That’s about 7% of the entire island, and a much larger percentage of the island’s developable land. In real life, King’s solution to his problem of whether to sell his family’s land to a developer or to figure out some way to keep it as is might be academic: even if sold to a developer, it would be years, generations perhaps, before anything could be built because of the massive regulatory mazethat is Hawaii property law, and the death-by-a-thousand-days lawsuits that would inevitably follow even after regulatory approvals.

One final comment about the film itself. Like much of Payne’s work, it may be difficult to form an immediate and articulable opinion about The Descendants. Like Sideways, it’s not one of those movies that reaches out and takes hold, and you know by the time the credits roll that you love the film. The performances are good-to-great – King’s elder daughter and her dopey Punahou classmate stand out – but the whole? To use a lawyer’s analogy, the feeling we had was the same as when we defeat a motion for summary judgment: we’ve won the motion but not the case itself and there remains much to do. Accompanying the satisfaction at having won the motion is a sense that there is still a lot of work ahead.

The film’s final lingering shot of the family watching a TV documentary from the living room couch captures this sense perfectly, and is exactly the right touch. King has resolved his problems as best he can within the limited framework of a movie, but we realize that he has much work ahead, both with his family and with his fellow alii-descendant beneficiaries who will undoubtedly sue him for his decision about what to do with the land. That final scene makes us wish we could keep watching.

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.