Estate or Trust Litigation refers to legal disputes that concern an estate or a trust. These types of disputes include issues such as claims against or between fiduciaries, capacity issues, elective share claims, or the interpretation of wills or trusts.

The Three Cs of Litigation. There are three primary traits that you should look for in a litigator: credibility, civility, and confidence.

1. Credibility. You want someone who is trustworthy to represent you before a judge, jurors, and even opposing counsel. It is the role of the trier of fact (sometimes a judge, sometimes a jury) to assess the credibility of the information presented to him, and that inevitably involves an assessment of your attorney. Regardless of the years of experience, an attorney has, if he does not keep his word, he will lose credibility when it matters most.
2. Civility. While litigation involves argument, it should be persuasive, not confrontational. Civility not only builds credibility, but it buttresses and sustains your attorney’s ability to persuade. In the long-term, this is critical in successful litigation.
3. Confidence. Finally, when in the courtroom, your attorney may not always have access to the answers, so she does need to have the confidence to make decisions without having the benefit of absolute certainty. Much like a commander in battle, your attorney needs to be decisive and take action quickly in court.

Aside from the above-mentioned traits, when choosing your advocate, keep in mind that most litigation involves significant expense and always involves risk. Therefore, it is important to understand the risks and benefits before initiating litigation. Being prepared and properly strategizing throughout the process is not only fundamental but assists in keeping costs down. It is also critical that the lines of communication are open between you and your attorney. Your attorney should keep you involved in the status of your case so that you can make informed decisions when it counts. If you believe these characteristics are key in your representative then you have come to the right place. These are all traits that I possess and work hard to maintain.

In any estate or trust litigation, you can expect five basic phases of litigation briefly described below:

Phase One – Investigation and Assessment.
The investigation and assessment phase of a case is when I review any controlling documents like a will or trust, the facts of your case, legal theories and legal support and your potential remedies, the ability to prove your case with evidence including witness testimony and expert witness testimony, and correspondence between key parties. This step allows me to assess the strength of your case and the potential weaknesses of your case. It allows you to determine whether you want to move forward with it.

Phase Two – Pleadings.
Once we have decided to move forward with a suit, or perhaps defend against a suit, I file the appropriate pleadings in court and have them served on the opposing party. If we initiate a suit, the other side has an opportunity to respond. If we are defending against a suit, we have the opportunity to respond to the initial complaint. These steps allow us to move closer to narrowing the issues that really need to be determined by the Court.

Phase Three – Discovery.
Discovery is a term that refers to the process of collecting admissible evidence to support our case. There are five different types of discovery that we could employ: interrogatories, requests for admissions, requests for production of documents or things, subpoenas to third parties, and depositions. The first three types are directed and the opposing party and the last two can be directed to anyone who has relevant information. This includes the deposition of expert witnesses who have been identified. Expert witnesses can range from psychiatrists to forensic accountants to attorneys, depending on what issue needs to be proven.

Phase Four – Trial Preparation and Trial.
Trial preparation is an intensive period of litigation when pretrial motions are prepared and heard, opening and closing statements are prepared, witness examinations are prepared, evidence received from discovery is culled, witnesses are subpoenaed to appear for trial, exhibit binders are prepared and exchanged, and you are counseled on what to expect during the trial. The actual trial itself can last anywhere from half a day to multiple days depending on the number of issues to be resolved and the witnesses that need to testify.

Phase Five – Post-Trial.
The matter is not over once the trial has been held. Both sides have the opportunity to file post-trial motions or appeal the case if they did not receive a favorable outcome. Note that if the matter is appealed, there is no new evidence or new issues that can be raised in the appellate court.