Most of our clients have never been involved in a lawsuit, so when we represent new clients in litigation we inform them of what to expect throughout the case. Each case is unique, but the observation of one of our colleagues about trust and estate litigation seems generally true. “Litigation is like remodeling your kitchen: it takes longer and costs more than you expected.” Here is a summary of the eight stages of trust and estate litigation, followed by a more detailed explanation of each stage.
In this first stage, we gather evidence and assess the strength of your case. We’d like as much information as possible before we file or respond to a lawsuit. This means, at a minimum, the disputed or controlling will or trust, any communications (letters or emails) from opposing parties or attorneys, and information about the decedent (or in a conservatorship, the proposed conservatee). We also need the names and contact information of all witnesses who might support your case.
Although we have usually heard the “short” version of the facts before you hire us, once we have been retained we often have a long meeting to better understand the “long” version. We will also ask questions designed to test the strength of your position. For example, clients often say they “know” an important fact; we will ask: “How do you know that? What did you see or hear that convinced you of each significant fact?” We ask these questions to elicit the evidence we need to prove your case.
If your case requires extensive legal research, we will usually do most of it during this stage. If after our initial research and investigation we conclude that your case is not likely to succeed, we will tell you immediately.
Lawsuits begin with the filing of the initial pleadings. Most trust and estate disputes are filed in probate court. The initial pleading is called the “Petition,” and the person filing it is the “Petitioner.” The Petition states the facts and law that entitle the Petitioner to money damages or another remedy. It might ask that a conservator be appointed, that a trustee be removed, that a trustee be held liable for breach of trust, or that a trustee be permitted to take some action or to refrain from some action. Some elder abuse cases are filed in civil rather than probate court, in which case the initial pleading is a “Complaint” rather than a Petition.
After the Petition is filed, a copy is served on all the interested parties (typically family members) along with a Notice of Hearing, which informs the parties of the date and time of the first hearing. In Contra Costa County, the first hearing is usually at 9:00 a.m. in Department 14 of the Wakefield Taylor Courthouse in Martinez. If you have been sued, you will typically receive a copy of the Petition by mail; however, some lawsuits must be personally served, which means a process server will usually hand you a copy of the Petition. (Don’t avoid a process server: sooner or later they will get you, and “avoiding service” only makes it more likely that you will be served at an inconvenient or embarrassing time or place.)
A party responds to a Petition with either a “Response” or an Objection.” The difference between these two pleadings is negligible. An Objection might deny the allegations in the Petition and ask the court to deny all of the Petitioner’s requests for relief, whereas a Response might inform the court of facts omitted from the Petition. For example, if one child petitions to be appointed as conservator, another child might object that their parent needs no conservator, and respond that, if a conservator is needed, the conservator should be someone other than the Petitioner. If the Respondent/Objector requests a form of relief not requested in the Petition, he must typically file his own Petition. It is therefore not unusual for a contested trust matter to include several competing Petitions.
Ideally, the Response or Objection should be filed a few weeks before the first hearing. Once the Petition and Response or Objection have been filed and served, the case is “at issue” and the parties move to the discovery stage.
There is a final important point about the pleading stage: usually nothing significant happens at the first hearing. The judge simply notes that the case is or is not at issue and asks the parties how much time they need for discovery. Clients rarely need to attend the first hearing.
Other than trial, the discovery stage is the most important and the most expensive. In this stage, each side tries to obtain (or “discover”) admissible evidence to prove their case. The discovery process consists of written discovery and depositions. Written discovery includes interrogatories, which are questions that the other party must answer in writing under penalty of perjury; requests for admissions, which are statements that an opposing party must confirm or deny; requests for documents, which require the opposing party to turn over documents; and subpoenas, which require third parties to produce writings or other evidence. Written discovery is not a one-shot process—it can continue throughout the case, and it is common for parties to send several rounds of written discovery. A party can object to any form of discovery, and extensive discovery disputes can significantly prolong the litigation.
A deposition requires a witness to answer questions orally, under penalty of perjury. Depositions take place before a court reporter who records the witness’s testimony in a written transcript. Some depositions are videotaped. No deposition can exceed seven hours without a court order. We typically take deposition after written discovery so we are aware of the other party’s evidence before we question them orally at deposition. Depositions are expensive, but they are often effective in exposing the weaknesses in an opponent’s case.
In many Bay Area counties, the judge will order the parties to go to mediation, which is often the best opportunity to settle a case. Mediation is a non-binding, non-adversarial dispute resolution process. The parties agree to a mediator, who is typically an attorney or retired judge. The parties send mediation briefs to the mediator to inform him of the facts and law. The parties, with their lawyers, meet at the mediator’s office or another location and attempt to resolve the case. Mediation usually begins with a group session in which the mediator explains the mediation process. The parties then go to separate rooms, and the mediator shuttles back and forth between the parties—evaluating the strengths and weaknesses of each party’s case, relaying settlement offers and demands, and proposing creative solutions.
Clients should be aware of three unique features of mediation. First, anything said at mediation is confidential and cannot be used in the litigation. This allows the parties to discuss issues openly with the mediator without fear that something they say will be used against them. Second, the mediator decides nothing; they have no power other than persuasion. Finally, no one “wins” or “loses” at mediation, except that everyone wins a little and loses a little when a case settles: the Petitioner didn’t get all he wanted, and the Respondent gave up more than he wanted. Weighed against the cost of litigation between mediation and trial, this if often the best outcome.
Most trust, estate, and elder abuse cases require the testimony of expert witnesses. The most common expert is a neuropsychologist or neuropsychiatrist (sometimes both) to testify about the decedent’s (or conservatee’s) mental capacity. Allegations that a trustee misappropriated funds may require the testimony of a forensic accountant. If the trustee is accused of making improper investments, an expert may testify about the prudence of the trustee’s decisions. Occasionally, an attorney testifies about trusts, wills, or other estate planning instruments, or about an estate planning attorney’s standard of care.
If one side hires an expert to testify on a particular subject, the other side will probably do the same. Expert witness depositions are expensive because they require extensive preparation, and the expert’s hourly rate is often higher than the attorney’s rate. For this reason, expert depositions usually occur after mediation, late in the discovery process, and often shortly before trial.
Trial preparation begins at the inception of every case, as the attorney should constantly consider whether the evidence and law will lead to success at trial. However, it would be unfruitful and uneconomical to prepare direct and cross examinations, opening and closing statements, and exhibit lists when a trial may be a year or more away and most of the evidence has not been established. But once a trial date is set, and a case does not appear likely to settle, trial preparation becomes all-consuming for the client and attorneys.
This includes preparing witnesses to testify, subpoenaing third party witnesses to appear at trial, drafting opening and closing statements, preparing direct and cross examinations, preparing motions to exclude or admit evidence, preparing trial binders for counsel and the court, and myriad other small tasks.
Most probate cases are “bench trials,” meaning they are heard by a judge rather than a jury, although elder abuse cases and conservatorships may be tried before a jury. Trials can take as little as one day for simple cases, or several weeks for complex cases.
One frustrating aspect of trial practice in California is that, due to a lack of resources, it is often difficult to secure court time. This means cases may be tried on non-sequential days separated by several weeks. In one recent case, our second day of trial took place about a month after the first day. After the second day, the trial judge announced that she was moving to a new assignment and could only hear one more day of the seven-day trial. Because the judge could not hear the entire case, she declared a mistrial and we had to schedule a new trial date with another judge. This experience is common and can cause enormous attorneys’ fees for the parties, as their attorneys must prepare for trial again and again.
If you lose at trial, you may appeal the decision to the California Court of Appeal. Most cases are not appealed, and most appeals are unsuccessful. Still, some cases should be appealed, particularly if the trial judge made a mistake about the law. In such cases—those involving a “matter of law”— the court will review the question “de novo,” which means the court of appeal will consider the issue anew without deference to the trial court’s decision. If the appeal concerns a “question of fact” (i.e., did the evidence prove what the trial judge said it proved), the court of appeal will apply the “substantial evidence” rule. This means that the court of appeal will largely defer to the trial judge and will not substitute its own judgment for that of the trial judge, who was better positioned to weigh the evidence.
Most civil appeals are unsuccessful. According to the Judicial Council of California’s 2016 Court Statistics Report, in the years 2013 to 2015, about 17% of civil appeals resulted in reversals by the court of appeal.