Elder Law: The Importance of Strategic Litigation Planning

We Are Skilled Litigators Who Are Committed to Helping Older Adults Involved in Disputes

Our population is getting older. By 2030, older persons (age 65 and older) are predicted to outnumber children (those younger than 18) (per the U.S. Census Bureau). By then, the elderly will comprise approximately 20 percent of the U.S. population. Between 8,000 and 10,000 Americans turn age 65 daily.

The Need for the Elder Law Litigator

Many elder law attorneys are solo and small firm practitioners. Because of economics, large firms don't handle as much elder law litigation. If they do, they usually don't have a dedicated probate litigator. Instead, they might have an estate planning or estate administration attorney, coupled with a broad-based litigator. With the explosion of the elderly population, the need for a focused elderly law litigator becomes paramount.

Elder Law Litigation Involves Seniors

Litigation involving seniors touches multiple areas:

  • Guardianship (is a guardian needed? Should a guardian be changed?)
  • Powers of attorney
  • Trusts
  • Elder abuse
  • Accounting
  • Undue influence
  • Lack of capacity

Litigation involving older adults is often more difficult because of evidentiary (proof) problems. Because of our experience in this area, we receive many referrals from elder law attorneys who are not courtroom lawyers.

Litigation Planning and Strategic Management

Lawsuits are expensive, time-consuming, and require stamina. It is therefore important to plan ahead. That is fundamental with any project. Of course, complex litigation presents many twists and turns, unknowns and variables. But many parts are repeatable and predictable from case to case (e.g., discovery, such as depositions and interrogatories).

The attorney and clients must be agile and flexible, to not only anticipate the direction of their cases, but also to deftly make changes (sort of like a GPS course correction). Even the best-laid plans go astray. Litigation planning is not a playbook, but rather, a guideline.

You wouldn't build a house without a plan, and that analogy is apt here. Planning creates a framework, including managing the clients' expectations and budget.

Challenges

Baking a cake is relatively easy-purchase the ingredients and follow a recipe. That's the "plan". Courtroom battles are of course complex. Because litigation is adversarial, it's impossible to predict with certainty all the nuances and unknowns. But attorneys are used to details, and close attention to detail is still a huge benefit. By planning and charting alternate courses, your attorney can 'shift gears' and react to surprises.

So What Does a Good Litigation Plan Contain?

Like any robust plan, a litigation plan:

  • Identifies goals (objectives)
  • Suggests how to achieve the goals
  • Lists all "to do" tasks that need to be completed
  • Maps out timelines and critical dates
  • Identifies resources needed (attorneys, paralegals, consultants, software)
  • Budgets for fees and expenses

Strategy and Persuasion

Here, attorneys can tap into their creativity. Once an attorney knows here case well-both the facts and the law-the attorney can focus on how to persuade.

Theme (Theory of the Case)

Experienced trial attorneys place much emphasis on the "theory of the case," or theme. That is the story. Think of an elevator speech: if someone asks you what the case is about, you should be able to distill it within 20 to 30 seconds (the duration of a short elevator ride).

In essence, paring down to your theme serves two important purposes: (1) It keeps the attorney and clients on track with the overriding thrust of the case (so that the attorney doesn't get lost in the details-the "forest for the trees" concept); and (2) it simplifies the case for laypersons and the judge, often evoking emotions and images. Being able to consistently articulate the case's theme is powerful and simplifying.

Management

Litigation has many critical components, often with overlapping timelines and priorities. With so many moving parts, your adroit litigator must manage and track many essential processes.

The Lawsuit Is Fundamentally About Family

Litigation does not have to be "scorched earth," where the litigator leaves decimated ruins in his wake. Estate and trust litigation is about families and close binds. People were family before their lawsuit, and may be family again. Your litigator should appreciate that, and in some way may help with the healing process.

From our decades of experiences, we have consistent observations about family dynamics. When the last parent dies (the matriarch or patriarch), the fragile bonds that held a family together (or in check) often fray. If brothers and sisters fought when they were kids, those old wounds resurface. Estate and trust litigation is often not about money, but rather, hurt feelings. It is crucial for your estate litigator to understand that to the core.

Guidance and Alternative Dispute Mechanisms

The halcyon days of the old-time country lawyer may be gone, but the elder law litigator is still a family attorney and can provide legal guidance. Your elder law litigator should serve as counselor, and not merely pour kerosene on a fire. Your lawyer can still zealously advocate for his client, without mechanically resorting to combustible battle tactics. Your attorney should consider alternate ways of resolving the parties' dispute, through settlement discussions, mediation or binding arbitration.

Teamwork

With our firm, teamwork is not a mere catchphrase. We pride ourselves on our close working relationships with our clients and our adversaries. To achieve the best results for our clients, we work closely with our clients throughout the lawsuit process. We believe that enhances your prospects for success and makes preparation for trial much smoother. With teamwork, we call also eliminate many surprises. Clients assist us and vice-versa. We can effectively communicate and manage others' expectations when we use a team approach.

Do You Have a Will or Trust Case? Call an Experienced Santa Clara Estate Litigation Lawyer Today

Skillfully managing your case requires talent, preparation, and a methodical process. Those crucial attributes are some of our many strengths. We focus our practice on helping older adults and handle many cases their heirs, beneficiaries and personal representatives. To schedule a free consultation with an attorney, call us today at (916) 313-3030 from Santa Clara or (213) 357-5200 from Los Angeles, or contact us online. We serve clients throughout California.