Balancing family feuds and the realistic limits of the legal
system is one of the most difficult challenges of an attorney
engaged in probate, fiduciary and trust litigation. Decades of
family history and intense emotions - including jealousy,
disappointment, abandonment, grief and guilt - often complicate
efforts to administer wills and trusts. Throw in some ego, power
struggles, a sense of entitlement and poor communication, and a
lawyer has a recipe for a psychological quagmire that tests even
the most experienced practitioners.
Common themes include the relationship between fiduciary and
beneficiary. Is the fiduciary acting in a self-serving manner, or
is the beneficiary too demanding? Sibling disputes are pervasive
and can be extremely contentious. Some people never forget who got
what for Christmas 50 years ago. Caretaker issues are common, as
well. Was the caretaker a scoundrel, a saint, or both? Second
marriages are also ripe for World War III. Adult children often
demonize (sometimes with good reason) a surviving step-parent. Will
contests are another significant category of probate litigation.
Was Mom subject to undue influence, or did she lack capacity when
she gave the recalcitrant son her entire estate?
There are many things to keep in mind when getting to know a client
involved in a probate dispute. There are at least three sides to
every story, usually more. Emotions color the client's view of the
world. Few people lie, but most see the world through a
self-serving prism. And family history always informs a client's
perception and motivations, even when that history has little to do
with the matter at hand.
In initial meetings, lawyers should explain the variables inherent
in probate litigation. As in most litigation, very rarely is there
a "win." Whether due to our pervasive sports culture or the tidy
endings of legal television shows, non-lawyers see the legal system
in terms of victory and defeat. Explain that there is no such thing
as an "open and shut" case.
Lawyers sometimes over-promise. After all, we all want to support
our clients and convey that we are tenacious advocates. Discuss at
the outset that it is impossible to predict the behavior of
parties, lawyers and the courts. Try to help clients understand
that everyone lacks some objectivity about the subject. The law can
rarely regulate human behavior, and while the tools in a lawyer's
toolbox can remedy many legal issues, those tools cannot help fix
many moral issues. The law can rarely stop bad-mouthing. The law
cannot give a bad guy a good character. And Thanksgiving may never
be warm and fuzzy. Explain that things will likely get worse before
they get better, but that they will usually get better.
Most people have an idealized sense that justice - as they define
it - always prevails. Help clients understand that courts rarely
function with the efficiency, focus and drama seen on TV. It is
also important to debunk the negative presumptions that some people
have about the legal system. Judges are likely not "on the take"
and judges, particularly Probate and Family Court judges, have seen
and heard it all and are not likely to be outraged by the fact that
your client's brother filed his accounting late.
Clients in probate fiduciary litigation are often paying
out-of-pocket. It is essential to be clear about fees and billing.
A comprehensive engagement letter is important in any matter, but
particularly crucial in potentially volatile probate fiduciary
litigation and when clients may harbor extreme expectations about
how the matter will play out. Emphasize the type of services the
lawyer will provide, the fees charged, how the retainer works, when
payments are due, the challenges of a particular matter, variables
inherent in litigation, how disputes can be addressed and other
requirements of the jurisdiction. Convey that you as a lawyer want
to deliver value and that your office is sensitive to the
relationship between the amount in controversy and the potential
cost of resolving the legal dispute.
For good or bad, most of us are tethered to email. Discuss upfront
that bills are impacted by the nature and frequency of
communications, including emails, between the attorney and client.
Parties in probate fiduciary litigation like (and need) to talk,
sometimes a lot. Lengthy communications can foster understanding,
but greatly can influence legal fees. Conversations about emotional
aspects of probate litigation often serve more of a psychological
than legal objective and the lawyer and the client have to figure
out how to balance the need to vent with conversations that advance
Address questions about bills early in the relationship or soon
after the generation of a bill, rather than several months after
the fact, particularly if there is an unhappy result. Lawyers
should bill regularly, usually monthly and at the same time each
month. Lawyers should be calm when addressing billing disputes.
Humility can go a long way. Avoid contention and be sensitive to a
lawyer's tendency to argue or go on the defensive.
Client service and communication define the attorney/client
relationship probably even more than the lawyer's expertise and the
results obtained. "Bedside manner" is particularly important in
probate disputes. Responding to emails and phone calls give the
reassurance that most clients seek. While it is easy to utilize
email for efficiency, often a phone call is the best way to promote
clarity and compassion. Provide regular updates, even "no update"
Avoiding legal mumbo jumbo and explaining the court procedures also
helps clients feel like they have an ally, not just an advocate.
Listening is a powerful tool for fostering understanding of your
client's objectives and for spurring problem-solving. Validate a
client's feelings when appropriate, but be careful to avoid the
temptation to agree too much when experience instructs that a
dramatic vindication in the courtroom is unlikely.
It is never a good idea for parties to talk about litigation or any
legal matter to third parties, particularly in electronic
communications. And remind folks to put the kibosh on social media.
Potentially public communications can escalate emotions and
minimize the legitimacy of legal positions. Emphasize that
everything he or she writes can become a potential "Exhibit A" and
be blown up on a large screen in a courtroom.
Settlement considerations in probate fiduciary disputes are similar
as in other cases. Settlement puts the parties in control over the
situation and brings finality to at least some issue. It also
obviously avoids the high cost of further litigation and the
uncertainty of what can happen before any judge or jury. Remind
clients, as wise jurists and mediators do, that the mark of a good
compromise is when no one is happy.
Many litigants in probate fiduciary litigation are so invested in
the fight that they have problems letting go. The feud defines
their view of the world or at least their family. They often have
blind spots about the economics of the matter, economics that often
drive settlement in other types of cases. It is important to
reiterate that you strive to deliver value and to reach a practical
result. Clients also need to know that courts are very concerned
about the relationship between the cost of the litigation and the
amounts in dispute. Sometimes it just takes time for litigants in
family matters to move on.
Clients often see the opposing counsel as the enemy. It is helpful
to explain that it is better to have a pro on the other side, and
that while opposing counsel can sometimes seem like the devil
incarnate, usually he or she is not. Explain to clients that
scheduling accommodations and extensions are typical and "what goes
around, comes around." Try not to make the other lawyer a character
in the play, unless of course, he or she is. Because probate
fiduciary matters can be so highly charged, lawyers often channel
their client's emotions and can be very difficult to collaborate
with. Sometimes problems with opposing counsel are about what a
lawyer doesn't know. Sometimes lawyers are just plain obnoxious.
Don't be that lawyer. Try to start every relationship with opposing
counsel in a cordial and professional way. Try to keep your cool
and kill 'em with kindness. Give in on the stupid stuff; not
everything is worth fighting about.
There are particular challenges when representing a defendant -
typically a fiduciary - in probate fiduciary litigation. Encourage
disclosure and cooperation and take the "we have nothing to hide"
approach if indeed that is the case. Give tough love when necessary
and explain the high standards that come with fiduciary duty.
Probate matters are universal; we all experience them in one way or
another. Lawyers can and should be brutally honest advisors and
problem-solvers who help clients navigate the complexities of asset
transfers as well the fascinating and frustrating family dynamics
so common in probate litigation.