Join Adam Fried, co-chair of Reminger’s Estate, Trust, and Probate Litigation practice group, for a five-part blog series exploring what makes for a good case or bad case to challenge inheritance rights. To read the full e-book, click here.
In part four, we reviewed economic considerations that go into a decision as to whether a claim of undue influence should be pursued. In the final part of this blog series, we will discuss considerations to make when selecting counsel for an inheritance dispute.
Part 5 - What to Consider When Selecting Counsel
A few years into my new job, more than 20 years ago, a couple of our firm’s leading partners took me out for happy hour to see how I was doing. At that time, the largest practice group at Reminger was, and still is today, medical malpractice defense. Med Mal lawyers take lots of cases to trial and verdict. The lawyers who practice in that area try cases for huge stakes. Because of the risks involved and the extensive experience in defending doctors and hospitals, they have perfected trial skills and techniques designed to tell compelling stories through witnesses and exhibits. Because of their vast experience in medical cases, they have also gained a sophisticated understanding of the medicine at issue. The happy hour developed into a discussion of what skills our leading attorneys would look for in a lawyer if they, themselves, had a problem for which they needed representation. My thoughts for this part 5 of my series on “Should I challenge my inheritance?” flow from that discussion years ago, informed by the experience I have gained in the years that followed.
The Different Types of “Probate Lawyers”
“Probate Lawyer” is a shorthand term frequently used to describe a lawyer who works in the field of estates and trusts. Historically, when assets passed to the next generation of beneficiaries and heirs, the assets flowed through the probate courts. Lawyers who worked to help administer those assets worked in the probate courts. Over time, the probate courts evolved to handle more than administrative matters. Similarly, will substitutes, such as beneficiary designations and trusts, came into power as the prominent mechanism controlling the manner assets would transfer to the next generation. Therefore, a “probate lawyer” typically handles a wide array of matters related to the transfer and administration of a person’s assets until it gets into the hands of the heir or beneficiary. The range of “probate lawyer” work can vary significantly, from estate planners, who prepare documents, like wills, trusts, powers of attorney, etc., to probate, trust and guardianship administration attorneys, who counsel fiduciaries on procedure and process, to a probate litigator. Whenever assets transfer under questionable means, a probate litigator may pursue or defend such claims. Whenever the decision making or conduct of the executor, trustee, or guardian comes into question or exceeds the parameters of reasonable discretion, a probate litigator will defend or pursue challenges to such conduct. If a trustee, executor, or agent under a power of attorney misuses assets under their control, a probate lawyer will, on behalf of an affected party, seek to obtain an accounting and recovery of those assets.
As you can see, the term “probate lawyer” can mean a whole slew of things; not all probate lawyers have all the skills necessary to handle each type of claim or situation. For instance, an estate planner may never have seen the inside of the courtroom and would likely not have a working knowledge of the rules of civil procedure, rules of evidence, or have ever taken a deposition. Estate planners, though probate lawyers, for those reasons, may not be particularly suited to litigate a probate case. In fact, the attorney who drafts a probate instrument that is subject to a dispute is usually a key witness. Similarly, a “torts” lawyer such as a person who handles car accidents or medical negligence claims, while they will have trial skills, may have limited understanding of the “world of probate.” Such trial lawyers would not have a working knowledge of “probate process,” the principles of estate or trust administration, or an understanding as to why or how estate planning documents are written or administered under principals commonly understood by probate lawyers.
Selecting the Right Lawyer for your Probate Matter
Back at that happy hour 20+ years ago, on the mentorship of my leading partners, I developed a few principles that I consider important in the search and retention of a lawyer if I had a problem for which I needed representation:
- Sophistication. I want a lawyer with a sophisticated working knowledge of the subject area. For instance, a doctor or hospital would hardly hire the greatest patent or corporate lawyer to defend the hospital on a medical negligence claim. Nor would the same hospital hire a medical negligence lawyer to handle an employment or workers’ compensation claim. The subjects are so vastly different that the trial skills will not make up for the lack of fundamental subject matter knowledge. In the concept of probate matters, as broadly defined, an estate planner who has never engaged in litigation is not likely suitable to litigate a probate case. Though some larger firms will employ estate planners in the litigation process, it is usually for the purpose of lending their probate knowledge to a litigator within the firm who usually handles other types of litigation.
- Honesty. I want a lawyer who tells it like it is. I remember early in my practice when one of my mentors was faced with a client who wanted my mentor to handle the litigation exactly as the client wanted it to be pursued. Essentially, the client wanted my mentor to discard his decades of experience in favor of strategy that was destined to fail. The client had, for more than a year, gotten nowhere with her strategy, and I was stunned when my mentor politely pointed that out. He left the client with a couple of options: try it as suggested by the professional or find a different professional. While I have seen some lawyers concede to their clients’ demands about how to pursue the case, I believe you hire the lawyer to provide advice and guidance. While you will be the ultimate decisionmaker, you want a lawyer that will tell you the truth about your case – the good, the bad, and the ugly as they say. If you are looking for a glad hander, then you should probably go elsewhere.
- Practicality. I want a lawyer with common sense. I have seen it at work many times: a lawyer who will dive into the most picayune, least-relevant issue in the case and get stuck in that space at huge cost and absolutely zero benefit to the client. A lawyer without common sense can cite the rules from memory but have no sense of how the facts fit in those rules. Such persons will spin their wheels and get nowhere. You can tell when you are dealing with someone who struggles to identify the common-sense issues if they cannot identify the plan to get you to the finish line.
- Fairness. If you find a lawyer that will guarantee you a victory, run. A good lawyer will give you a fair evaluation of your case, and while the lawyer might not be able to answer all of your questions for lack of information. I think it is fair to expect your lawyer to give you answers and if, answers are not possible for lack of information, to tell you what information they need to be able to give you an answer. If an answer requires caveats, a good lawyer will share with you the weaknesses in the answer provided. A good lawyer knows that all contested legal matters involve risk; that risk can never be completely eliminated, so a good lawyer knows that no outcome is ever guaranteed.
- Experience. Look for a lawyer with a good track record. While no lawyer can guarantee a victory, and past successes cannot predict future results, some lawyers tend to make it to the finish line successfully at a higher percentage than others. Sometimes the accolades and plaques are mere evidence of having won a beauty contest, but often the awards demonstrate some level of competence that other colleagues and clients have experienced in a duplicatable fashion.
- Economical. Look for a lawyer that fits your budget. The most well recognized lawyers are usually so busy that they can demand higher rates. The higher rates are often worth it, but at the end of the day, if the cost of the lawyer outpaces your problem then, economically, you may later question why you hired the lawyer in the first place. A good lawyer will try to help you understand the impact of cost on your decision making so that you can make informed choices about the next steps to take. When economics are a concern, look for successful representation through a seasoned lawyer who has more junior lawyers to mentor. I was, years ago, a junior lawyer who was fortunate to be able to handle complex cases beyond my years, thanks to a strong mentorship program at Reminger. Our team carries on the tradition and works to create the next class of great lawyers who can help make your representation more efficient and effective.
I have had many clients ask me, if they were my child, what advice would I give. My answer is always thrown back at them – what do you expect in a lawyer? You want someone that you can talk to, who you can trust to tell you like it is. You want someone who will listen to you and give you respect, but also push back with humanity. You want a lawyer that will help you stay on task and relevant to the problem so that time is not spent unnecessarily on things that do not have any impact on the problem at hand. You want a lawyer with the skills necessary to give you the best chance at success. Reminger Co., LPA has offices strategically placed throughout Ohio and our probate lawyers can effectively handle claims in all of Ohio’s 88 Counties.
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