What is Litigation

When I started law school someone asked me if I intended to go into litigation.  I didn’t even know what the word meant.  Now I do. It is simply the process of taking legal action. But that definition does not start to describe the process.  In my practice, litigation, filing a court action, is a last resort.  I center my practice is on estate planning, probate and trust administration, with litigation as necessary.  Litigation is expensive, uncertain and stressful for the participants.

Most people believe their cause is worthwhile, but in litigation, there is someone on the other side who has the same belief about their cause. The guarantee I make in litigation is that the opposition will remember and interpret the facts differently than does my client.  Two people who have gone through the same set of occurrences perceive those occurrences differently from each other.  That is just how it works. The most dangerous client I talk with is the one, and there have been many, who tell me some version of the following: “I would do this myself if I knew more about the procedure.  It’s open and shut, you just have to present what I have to the judge and you can’t lose.”  I then suggest that the prospective client might feel more comfortable with a different attorney.

Clearly, every person should have a good faith belief in his or her position before venturing into court, but I can tell you, there are few sure results in court proceedings. Each side gathers the facts and law and puts them together in the way that best serves that person’s interests.  The judge or jury decides the issue and, if you don’t like the result, you can file an appeal, at great expense and time. All in all it is a wise business decision to spend the time and money to create a reasonable settlement.

Avoiding Litigation

I have done personal injury litigation, real estate litigation, business litigation and estate litigation. I am most interested in estate litigation, as it ties into my estate planning practice. Estate litigation can be concerned with the validity of documents, such as trusts or wills. It can be about the handling of the probate or of the trust administration.  The problem that leads to litigation often comes about because one or more of the beneficiaries feel that another of the beneficiaries, or the executor or trustee has done something wrong.  For example, Mom changed her trust to give the bulk of her estate to Sally, and left little to John and Irma.  Sally had taken care of Mom for the last 10 years of Mom’s life, while John and Irma lived in other states, and came to see Mom on alternate Christmases.  This change in the estate plan doesn’t make John and Irma happy; they were counting on their inheritances to get their bills caught up.  Sally must have forced the change in the trust by threatening to kick Mom out, or Mom wasn’t mentally sharp enough to make the change on her own.  And away we go.

Or, one sibling is trustee of Mom’s trust, and the other two don’t think they’re getting their money fast enough, or that the trustee is paying herself too much for the job she is doing, the property isn’t invested properly, the property appraisals are too high (low), or a thousand other things are not going right. Unfortunately, often estate litigation is much like divorce litigation, where the guiding principal has more to do with the poor relationship between the parties, than with the facts of the case. It is essential in these cases that the parties be urged to step back and consider the consequences of becoming involved in litigation.  The cost and emotional toll are great.  The results are generally hard to predict.  There is nothing fun and exhilarating for the participants in a court battle.

Of course, if one side is only giving and the other side is only taking, the court is there and sometimes there is no alternative to filing a complaint or petition and going forward.  It is my strong opinion that the court should be brought in only when one has made every reasonable effort to reach an agreement.