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Guidance to Estate and Trust Litigants, Part V: There is No Happy Ending

The exaggerated title of this article is aimed at managing the expectations of potential clients. A victim of fraud, elder abuse, or undue influence naturally wants their property returned; but they also often want the defendant to pay punitive damages. Clients accused of breach of trust or some other wrongdoings want the allegations proven untrue, and they also often want an apology. And whether they are a plaintiff or a defendant, clients usually think the opposing party should pay their attorneys’ fees. While these are understandable expectations, they are often not realistic.

Punitive damages and attorneys’ fees can be awarded in elder abuse and trust and estate cases, but rarely are. The court only awards these damages after trial, and few clients endure the time, expense, and stress, of seeing a case through verdict. (Only about 2% of civil cases go to trial.) So, while estate and trust cases often include requests for attorneys’ fees and punitive damages, in most cases the court never issues a ruling on these requests

Other clients want moral vindication — a statement from the court characterizing the behavior of the parties as “right” and “wrong.” Unfortunately, the American civil justice system rarely delivers what moral justice demands. Again, most cases settle, so there is never a conclusive decision by the court. Even after a trial, civil judges seldom deliver a moral statement about the behavior that caused the litigation. And although an apology is sometimes part of a negotiated settlement, few clients, after months of expensive litigation, refuse a reasonable settlement offer for the sake on an apology.

Finally, because the United States does not have a “loser pays” rule, clients who win at trial must usually pay their own attorneys’ fees, which make the “victorious” ending much less “happy.” This is not what most clients want to hear, but facing these realities early ultimately saves money and leads to better results.

Loren Barr
by Loren Barr
Updated: April 28, 2021

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