July 2018

Eleven Points for Representing Clients in Trust and Estate Disputes
(From the experience of a three-year associate)

By Michael McDonald

Goodwin Brown Gross & Lovelace, LLP

Representing a client in a trust and estate dispute has a lot of similarities to client representation in a more traditional civil dispute. It also has a lot of differences. When taking on a trust dispute, it is important to recognize both the similarities and differences to achieve ultimate success. Although not an exhaustive list, here are some points for consideration when representing clients in trust and estate disputes.

Point One: Understand the client’s emotions.

Trust and estate litigation is often (maybe usually) very emotional for the clients. Cases often involve disputes between siblings, parent and child, stepparent and child, aunts and uncles, cousins, the decedent’s children v. girlfriend or boyfriend, etc. At least one party in the case may feel that he or she is being cheated out of what the decedent wanted him or her to have. A party may carry long-burning emotional pain of feeling mom and dad loved her sibling more. Often, one sibling beneficiary may believe her sibling trustee is stealing money or other assets from the trust. The lists go on and on.

Through any of these situations, it is important to understand your client’s emotions about the case — it is often the emotions that drive the client’s beliefs and goals in the case. Understanding the client’s emotional position will help you to guide the client to seek an ideal outcome based in logical reasoning.

Point Two: Be realistic and honest about the quality of the client’s case.

With an understanding of your client’s emotional position, it is important to give a fair and honest evaluation of the case. With emotions — anger, sadness, etc. — leading the way, a client may present you with what she believes to be clear evidence that her brother unduly influenced her mother to change her trust to reduce her inheritance. As the lawyer in this situation, it is your job to not only know the elements of undue influence, but also to evaluate from the beginning whether they may be present in this case. If you find that the elements don’t seem to be there — e.g. perhaps there is nothing in the mother’s medical history to suggest she was vulnerable to undue influence; perhaps mom remained socially active so as not to have been isolated or dependent on brother — it is best to have that conversation with the client as early as possible. Although it will be disappointing to the client, it will be much more upsetting to her if you have this conversation later, after much more time and expense has been spent on the case.

Point Three: Let the client understand a realistic timeline for completion of the case.

The wheels of justice don’t always move at the speed your client expects. As lawyers, we all know that our courts are full beyond ideal capacity. The clients, however, do not know this. Prepare them for a lengthy process so they are not overly disappointed in that fact as they learn it over time.

Point Four: Be upfront about the cost of litigation.

In the emotional arena of trust and estate disputes, clients often come in guns a-blazin’, ready to do whatever it takes to win. For this reason, it is very important to ensure your client has a reasonable understanding of how expensive litigation can be.

As you perform an initial analysis of the client’s case (as you would under Point Two), you should also start to get a grasp of the evidence the case will require. Thus, you should get an understanding of what will be required to obtain that evidence — written discovery, subpoenas, witness interviews, depositions, etc. At that point, you can give the client a breakdown of what you will need to do to prepare the case. Provide a realistic estimate to the client of the time required to perform each task, take each deposition, etc. Also, be sure to provide some time in your estimates for responding to discovery and preparing for and taking depositions your opposition notices, as well as dealing with unforeseen difficulties in obtaining documents that you subpoena (insider tip: banks can be difficult regarding notice to the estate).

Point Five: Re-evaluate the quality and cost of the case.

As you go along performing the tasks and obtaining the evidence you and your client discussed early on, it is wise to constantly re-evaluate the cost and quality of the case. It may be that you have to obtain more documents or take more depositions than you originally planned. It may be that your opposition notices more depositions than you anticipated. Or it may turn out that the evidence you thought would provide strong support to your client’s case falls flat for one reason or another.

Regardless of the situation, you will want to keep the client apprised of the progress and make sure he or she understands how much more the case will cost going forward. This information is important when advising the client on whether to continue forward toward trial or seek ADR.

Point Six: Recognize when your case may be ready for ADR.

Trust and estate disputes are uniquely suited for ADR — after all, there is usually a limited, defined pot of money to be divided among the parties. Because you may be able to reach a favorable result through ADR, it is often advisable to seek mediation or a mandatory settlement conference early in the case to avoid the expenses of protracted litigation. You often may be able to adequately prepare the case for a favorable settlement after one set of written discovery and just one or two depositions. Recognize what is necessary to create risk exposure to your opposition, get it done, and prepare for an early, favorable resolution that will save your client tens of thousands of dollars in litigation expenses.

Point Seven: Seek to bifurcate issues when possible.

Another way you may be able to resolve the case favorably early on to save your client money is to bifurcate any issues the court can rule on with little or no evidence presented. For example, you may be contesting a trust document for legal deficiencies and for undue influence. In such a situation, you may be able to present a winning argument to the court on why the document on its face does not meet the legal requirements of a valid trust. If you are successful on this issue, you won’t need to put on any evidence of undue influence — you will have already won the trust contest.

Additionally, bifurcation may get the case resolved much more efficiently. There are only three probate departments, and they can only hear trials that take a day or less (trials with estimates of more than one day usually go on the wheel to an available civil department). Seeking bifurcation may divide the issues up so that the case can logically remain in the probate department to be decided in the most logical order of operations. It will also allow you to focus solely on one issue on which to present evidence or just argument without having to squeeze in evidence and argument on the other issues you will only need to get to if the court does not find in your favor on the first issue. Thus, bifurcation can allow you to finish a trial on a decisive issue within one day.

Point Eight: Have a command of the CCP and Evidence Code.

In the world of trusts and estates, the Probate Code provides the substantive law and defines who has standing to bring a claim. In trust and estate litigation, however, the CCP and Evidence Code are every bit as important as in the civil world. When going to trial in probate court, make sure you have a command of the CCP and Evidence Code. Otherwise, you may have trouble getting all the documents you need admitted into evidence.

Point Nine: Consult experts when appropriate (and use them if their opinion supports your case!).

Experts are often vital to a trust dispute. Of course, if your expert’s opinion supports your case, he or she may be the star witness during trial. Consulting experts early on, however, is also often important to your case, depending on the facts. For instance, if you are challenging (or considering a challenge to) a trust document on the basis of undue influence or lack of capacity, you’ll want to know as early as possible whether the facts support your case. If you obtain the decedent’s medical records and they don’t paint a clear picture, you may want to get them to a forensic psychiatrist for an evaluation. You may end up with your star witness, or you may end up with an adverse opinion that shows you the challenges ahead. If the opinion is not in your favor, it is best to find this out as early as possible to consider options before your client spends a lot of money going toward a dead end.

Point Ten: Binders and Transcripts

When going to trial in probate court, you will want to be every bit as prepared as you would in any other department. One of the most important aspects of your preparation and presentation of your case is having good exhibit binders and a good trial binder. Have all of your exhibits in your exhibit binders (bring four copies of the binders) marked with the court’s exhibit tabs before arriving for trial and separated with numbered dividers. The court will rely on your exhibit binders, so don’t cause yourself any hiccups by not adequately preparing them.

In addition to the exhibit binders, it is advisable to have your own trial binder. Include tabs for each witness, and behind each tab keep your outline for that witness examination and the exhibits you will use for each witness.

Also vital to your case presentation is smooth witness impeachment. In order to do this, you will want to have citations in your witness exam outlines to the exact page and line numbers of the witness’s deposition transcript where they testified on the particular subject. You will need to have copies of your deposition transcripts for the witness, the court, and opposing counsel or party (probate litigation often involves pro pers). With proper transcript citations in your exam outlines, your impeachment will be smooth and effective. You do not want to be caught in a situation of trying to impeach a witness but struggling to find the right spot in the deposition transcript — you may not find it, and even if you do, the effect will not be as profound.

Point Eleven: Follow the judge’s lead.

Probate trials are bench trials, even if they are sent out to a civil department. It is common in these trials for the judge to take an active role. Pay attention to what the judge focuses on and follow this lead. You likely will know the case better than the back of your hand and have prepared lines of questioning that lead to non-obvious facts that support your case, on which you plan to argue. The judge may give subtle, or even direct, hints and guidance, however, on what issues are important to him or her — focus on these issues. If you need to get to your less-obvious facts, do so, but seek to do it quickly to avoid losing the judge. The most important person is the trier of fact; abide by his or her direction.