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The 8 Stages of California Trust & Estate Litigation: Trial

Although most trust, estate, and elder abuse cases eventually settle, we prepare each case as if it will go to trial. All of the stages previously described in this series (from initial research through discovery and expert witness depositions) have the same objective – presenting the best possible case at trial.


Trust and estate cases are usually “bench trials” (also called “court trials”), meaning that the finder of fact (the person who decides the factual issues in the case) is a judge rather than a jury. In Contra Costa County probate cases, shorter trials may be heard by the regular probate judge, while longer trials are often sent to another civil judge.

In a bench trial, clients should be prepared for the possibility (even the probability) that the case may be tried during multiple, relatively short court sessions spread over several days or weeks. Given the severe cuts to state court budgets, the Contra Costa, Alameda, Solano, San Francisco and other Northern California courts are overworked and understaffed, resulting in overcrowded courtrooms and court dockets. While most litigants, attorneys, and judges probably prefer to try a case from start to finish until trial is concluded, this is often impossible. Instead, trials are often conducted around a judge’s already crowded calendar, so a 5-day trial may take place one day a week over 5 or more weeks.

Unlike most trust and estate cases, plaintiffs in elder abuse cases are entitled to a jury trial. Because judges are sensitive to the time commitment required of jurors, jury trials are more likely to proceed nonstop from start to finish.

Trial begins with opening statements, in which each side presents an overview of their case. Although an opening statement should not be argumentative, like the trial brief, it should subtly persuade the judge through a logical presentation of the facts and the law.

After opening statements, each side presents its case. In a trust or estate case, the plaintiff is called the Petitioner and the defendant is called the Respondent. In a will or trust contest, the party challenging the validity of the will or trust would typically be the Petitioner, and the party defending the validity of the instrument would be the Respondent.

The Petitioner calls its first witness for direct examination, in which the Petitioner’s lawyer asks questions designed to elicit the relevant facts from the witness. After the direct examination is completed, the Respondent’s attorney conducts a cross examination – the part of a trial that people are most familiar with from television and movies – challenging the testimony of the witness or attempting to elicit facts omitted from the witness’s version of events. When the Petitioner has called all of its witnesses and presented all of its evidence, the Petitioner rests its case. If the Petitioner has not met the burden of proof, the court may decide for the Respondent without requiring the Respondent to present a defense. If the Petitioner presents evidence sufficient to make its case, then the Respondent presents its case, calling its own witnesses, who are subject to direct and cross examination.

When each side has presented its case, the trial concludes with closing arguments, which, unlike opening statements, are meant to be persuasive. This is a party’s chance to tell their own story, to argue that they should prevail. Surprisingly, this may be the only time in the entire litigation process when a party hears a comprehensive presentation of its side of the story.

When both parties have presented their cases, the judge typically “takes the case under submission,” and has 90 days to issue a decision.

Loren Barr
by Loren Barr
Updated: October 28, 2020

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