Client management in trusts and estates disputes

Issue February 2015 February 2015 By Patricia L. Davidson

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 legal objectives.

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" updates.

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.