And the Worst Part Is… | Reflections on Estate Litigation

We like what we do – we represent clients in California estate, trust and financial elder abuse litigation. Of course, like in anything, we like some aspects of what we do more than others. No one likes to hear complaining.

So, this isn’t a complaint. It’s a little insight into some aspects we like less than others. We’ll share what is sometimes the worst part of the litigation that we do. It’s about some common case motivators. It’s about how we lawyers process what we hear.

Let’s start with the simple term – “it’s the principle of the thing.” I’ve said this myself – plenty of times. But when it gets to litigation, “the principle of the thing” can fade as quickly as a declining bank account. Few would argue with the fact that litigation is very expensive. And, it can be particularly expensive in prosecuting the principle of the thing in probate or civil matters.

When things get close to settling, it often becomes apparent to everyone that the ultimate resolution is about money much more than principle. Sometimes principle is emphasized as a case is settling. But it’s in monetary terms. Often with big objections against what the opposing party is getting.

Mediators and settlement judges will admonish such thinking. Think about what you’re getting – not what the other guy is getting.

I want to speak the truth here. Now, I’m not belittling “the principle of the thing.” I’m sharing what I’ve experienced over decades of practice in litigation.

When it comes to “the principle of the thing,” it’s important that our potential clients and clients know that we’re not in the business of vengeance. Some lawyers are. I don’t admire them. I won’t practice like them. And, they are not the best of what our profession offers. Usually judges know it. Other lawyers know it. They can stew in their own vitriol. Don’t hire us if it’s for vengeance.

We take cases that we believe in. To do justice. And, I caution that “justice” is imperfect. To quote Mick Jagger – “you can’t always get what you want.”

Our legal system rarely provides a remedy that fully satisfies. The ultimate principle is that settlement with adversaries is often better than a protracted legal battle. Each side gives up something in exchange for terminating a case. To go on with their lives.

Getting to a realistic case understanding and valuation is sometimes another “worst part.” Misunderstanding may be on one side or both sides of a case. Some recent examples:

• A caregiver thought that there was nothing wrong with unduly influencing a very vulnerable elder to change his long-held estate plan to give everything to her and nothing to his own family.
• A son-in-law thought that he could take his living mother-in-law’s assets and ignore her needs.
• He thought that he could dole her own assets out to her at his own whim.
• An addicted daughter felt fully justified in getting her mother to make deathbed changes to her will and trust that cut out all of her siblings.

Of course, the list could go on and on. That said, the fact that we take a case doesn’t mean that we guarantee its success. If there are lawyers offering guarantees I’d read the fine print. I don’t know who they are, but I’d be skeptical.

Each case has its strengths and weaknesses. Some judges say that the worst case has a 1/3 chance of winning and the best case a 1/3 chance of losing. So, it’s important to understand that there is a pretty good chance that you could lose – or win your case.

Another thing – we can’t make up the facts. We can use facts that our clients, discovery processes and investigators bring us. Sometimes the facts, once known, make clear that the case has more weaknesses than strengths. Sometimes clients strongly resist this discovery.

In a very general way, we try to have the client focus on the here and now rather than the past. And, the here and now has a reality of its own. Dr. William Glaser popularized this approach in his book Reality Therapy: A New Approach to Psychiatry.

It’s sometime a very tough pill to swallow when you learn that grandpa really did want to disinherit you.

Grandpa was with it. He had capacity. He could make decisions. He knew what he wanted and what he didn’t want. And, we learned that he didn’t like the way that you led your life. And, the law says that he was free to make his own choices as to who would benefit from his estate. You should know that we also learned that there’s no evidence whatsoever that Aunt Mathilda or Uncle Clyde unduly influenced Grandpa.

These facts are going to affect case value. A mediator will tell us this uncomfortable truth. So will a settlement judge if we’re proceeding to trial. We’ve learned over the years that when “the facts” aren’t really the facts, a big case can rapidly become a small one. We’ve also learned that there are many cases where all the facts aren’t initially known, but there is probable cause to file them. These cases may dramatically improve as the facts are nailed down.

So, now for the positive. We think that the best parts of estate, trust and elder financial abuse litigation far outweigh the worst parts. We enjoy representing our clients. We take significant cases where we think that we can make a substantial difference and there is a wrongdoer who can be made financially accountable for their wrongdoing.

Hackard Law litigates estate, trust and elder financial abuse litigation in most of California’s major urban areas, including Sacramento, Santa Clara, San Mateo, Alameda, Contra Costa and Los Angeles counties.

If you’d like to talk to us about your case, then call us at Hackard Law – 916 313-3030.