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The Art of Persuasion in Estate and Trust Disputes | Christmastime

The Art of Persuasion in Estate and Trust Disputes | ChristmastimePersuasion "starts with a look in the mirror. If you do not know your own goals, biases, emotions and preferences, you cannot hope to see your audience clearly." These words from Richard Shell and Mario Moussa's book, The Art of the Woo, ring true for me. This principle is also well stated in Matthew Chapter 7, where we are admonished that it is hypocrisy to be concerned with the faults of another while we ignore our own more serious offenses.

It's easy to look back on my own life and see times where I was totally 100% convinced that my position was right, only to later see that I was in fact wrong. Maybe this is true for all of us, maybe not. In any event, it is worth pondering that we need to look at our own faults in passing judgment. Shell and Moussa's book makes another good point:

"You persuade others that you love them by showing that you care deeply about their interests and needs. You demonstrate in unique, personal ways that you 'get' who they are, how they are unique, and why that uniqueness attracts you."

I must be honest - I'm likely blind a good deal of time about appreciating the difficulties and challenges that others face. Most of us have heard the phrase "walk a mile in his (or her) shoes" - a reminder that we should "spend time trying to consider or understand another person's perspectives, experiences, or motivations before making a judgment about them."

How do we try to apply this wisdom into estate and trust disputes? I'll start with noting that sometimes looming legally imposed deadlines generate a lawsuit before any meaningful dialogue can occur. California law only gives a trust challenger 120 days after receiving notice to challenge the validity of a trust. There are similar laws with some other nuances that apply to challenging California wills.

So, getting back to considering another person's perspectives, I've learned that one of the most important elements of communication is face-to-face meetings. Face-to-face meeting participants get to see firsthand how their ideas are received and they get to listen to what is being said and maybe not being said. It is hard to both convey a message and to fully understand a message that is communicated only by email or letter.

Those of us in the legal profession are easily misdirected by a machismo that is sometimes endemic to the litigation process. Few would say that this is a good thing. We have challenges - if we are too friendly to our opponents, our clients may think that we are selling them out, and if we are too harsh, it may look like we're using protracted litigation to line our own pockets. This is a tension that exists in many of our cases. It's a bit like the problem that the three bears faced in the Story of Goldilocks and the Three Bears - It's hard to get things "just right."

I know that my clients and I have benefitted when we've made an effort to understand and care about the opposing party's unique interests and needs. Estate and trust litigation involves families, and most of us know that our own limitations and imperfections are magnified in family dynamics. We love each other and should acknowledge that there is always a need for mercy and forgiveness. A family-systems therapy advocate and family dynamics expert cites research that found 96% of all families to be to some degree "dysfunctional." I'll often cite this with clients while noting that this percentage is "wildly underestimated." This usually draws a laugh and a knowing smile.

So, when we're trying to solve a family dispute involving estates and trusts, it's important to see that there are at least two sides - maybe more. It's also important that we listen to the other side, try to put ourselves in their shoes and hope that they'll try to do the same for us. An adult child who is solely responsible for an elderly parent may feel entitled to a larger estate or trust distribution than an uninvolved sibling. Isn't this natural? In the same way a sibling that is uninvolved because of geographic distance may feel that they should participate in the distribution of family wealth and should not be penalized because of difficulties that distance brings. These dynamics exist in the many areas that give rise to disputes - disparate dispositions because of involvement in the family business, undue influence at the stages of an elder's vulnerability, and existing family frictions that are fanned by a family member to benefit themselves.

This reflection is made at Christmastime, 2018. I hope that for the New Year, 2019, that I will keep in mind that we all struggle with our own limitations, emotions and preferences. It's good to step back at times and reflect a more merciful approach towards others - an approach often said by a friend of mine who passed away this year: "They're doing the best that they can."

Merry Christmas and a Happy New Year.

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