Estate And Probate Litigation: Game On

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Perry Mason explains my career choice – though I have not yet concluded if I am angry with or thankful to that show’s creator. But, having practiced law for over 20 years, and assisting clients with probate, estate and business litigation, I offer a few observations about litigation in various stages from the initial drafting of documents, correspondence and courtroom etiquette.

While drafting an estate plan – the equivalent of drafting a set of contracts, we must take into consideration many factors. Bad or faulty drafting oft en unintentionally results in court action to address and resolve post-death drafting errors, uncertainties and disagreements. Common issues to be explored in every potential client consult, and to further consider while drafting estate and trust documents, include:

  1. Prior estate planning documents, if any.
  2. Client health, mental fitness, family longevity or lack thereof.
  3. Client goals.
  4. Client family issues, i.e., disability, public assistance, lifestyle, money management, philosophy of caring for children – both during age of minority and aft er age of majority, loans to family members, medical or other issues unique to children or grandchildren.
  5. Client financial assets and health care resources.
  6. Client income.

Careful attention to the details of drafting appropriate documents for clients, in understandable terms, results in the ability of you, other attorneys and the court, to accurately interpret and confidently challenge or defend the documents later, if necessary.

In general, always remember you are reviewing a set of contracts. Therefore, carefully study the documents to be certain you understand the terms, as well as the interplay between documents. It is also imperative to attempt to understand the objections, challenges and issues raised, and the stated and unstated agendas of each party.

Early in my practice, my initial review resulted in abrupt conclusions such as the litigation is “ridiculous,” “petty” or “just plain stupid.” But experience tempered me to focus on three important factors:

  1. Despite the best of intentions, documents are oft en subject to more than one and, in fact, are oft en subject to multiple interpretations.
  2. Someone is dissatisfied or unhappy with the outcome.
  3. Often the law has little to do with the claims.

The goal, therefore, is to determine why and explore options for resolution. Only aft er these factors are analyzed can I meaningfully discuss options with my client and together we can decide to avoid litigation altogether or undertake litigation. Additionally, if settlement is not an option or fails, and if advancing a client’s interest requires litigation, then game on.

Provided the client is properly advised as to costs, timeline, risks and potential success, you can commence the action and engage in vigorous discovery. Also, I cannot overstate that it is absolutely essential to manage client expectations during each step of the litigation process. Failing to do so results in anger from the client toward you, failure to pay legal bills, sometimes parting ways on bad terms, and possible complaints to the Lawyer’s Professional Responsibility Board.

Litigation, too, can get ugly very fast. Many clients dig into a self-righteous position and some attorneys are hostile in their correspondence and behavior which can be prejudicial to your case. Seasoned attorneys try to create and find opportunities to de-escalate tensions. It may be by taking the time and borrowing the patience to listen to a client or opposing counsel’s feelings and ideas. Also, contrary to the legal shows on TV, bad or hostile behavior is not welcomed or rewarded in court. Decent behavior begets respect from opposing counsel and the bench. As a few colleagues and judges have taught me, calm and confidence carry the day. Cases are not won by aggression, anger and ugliness, but rather, by careful study and presentation of the facts and creative application of the law and equitable arguments. The practice of law requires civility and respect of all involved. Save the fire and brimstone, name-calling and hostile interactions, both in and out of the courtroom, for some other venue – perhaps politics?  Jacqueline Schuh

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