This is Randy Catanese of Catanese and Wells. We’re a trust and estate litigation law firm located in Westlake Village, California. You can contact us at Cataneselaw.com, or on our phone number 818-707-0407.
What I want to talk about today, is the experience I’ve had over litigating trust and estate cases for 40 years. One of the things people ask me is, well, how are you successful in these cases and how do you get the outcomes that you get? Quite frankly, we do very well in these cases, and we do usually get a good outcome for a client, and a lot of that’s based on hard work and preparation.
Hearsay Cases
Many times, lawyers take on trust and estate cases based on what I call ‘hearsay.’ Somebody tells them “I think so and so took advantage of mom, so and so took advantage of dad, so and so took advantage of maybe another relative” and based on that hearsay, the lawyer starts working on the case and actually may even file it, without really interviewing potential witnesses, actual witnesses, medical care providers, accountants, bankers, etcetera.
And, if you think about it, you can see why some lawyers do that, and the reason is the person who generally has the interest in the outcome is a family member and their mother or their father is no longer alive. So, you can’t go to mother, you can’t go to father, you can’t go to a family member and interview them and say, “well, tell us how for example, your neighbor took advantage of you. Tell us how a trusted family member who was given a power of attorney was taken advantage by you.” So, many, many, times what you’re left with is hearsay.
What you’re left with is inuendo, assumptions, and speculation. The problem with that is when you go to court, none of that is going to persuade a judge who typically will decide these cases on what the outcome should be.
And so, it’s very important that when someone comes to you, or you on your own determined there’s a problem here, you need to investigate. And investigating means: talk to the doctors if possible – the treating doctors, talk to the people who are at the nursing care facility if that’s relevant. Talk to the neighbors, talk to other family members.
If you have a power of attorney or you have an advanced care directive, see if that will give you enough authority to get documents from a bank, or documents from another financial institution.
Hire a Private Investigator
Also, you can hire a private investigator, and many times they can get a lot of information that will help you make a decision. The reason I say this is over the years, I’ve tried a lot of cases before estate and trust judges, and remember, when you bring these petitions, (and in the probate court it’s a called a petition not a complaint), but when you bring these, you as the petitioner have the burden of proof. What does that mean?
Burden of Proof
Generally, what that means is you have to show by preponderance of the evidence that it’s more likely than not what you’re saying happened, and in certain cases if it’s a fraud situation, certain types of elder abuse situations, or if you’re asking for punitive damages, you’ve got to meet a higher standard of proof called clear and convincing evidence. And so, what happens, many times when I’ve been representing the party who is the respondent or the defendant, we go to trial, the petitioner or the plaintiff puts on their case, and they find out during trial that they don’t have enough evidence to meet their burden of proof.
And many times, we get a decision from the court that says petitioner failed to meet their burden of proof, judgment for the respondents. When I’m on the other side, when I’m representing the petitioner, we do everything we can to investigate what happened financially, medically, with the neighbors, so that we know we have witnesses to support the claim and meet the burden of proof at trial.
Mediation
Also, it’s very helpful to have this if you get sent to mediation, which today is highly likely in any estate litigation matter. When you go to mediation, the reason you want to have your evidence organized, is you don’t want to be in a situation where it’s ‘he said, she said.’
Yes, you can go to the mediation, but if you don’t have any evidence, all it will be is your side’s going to say, ‘this is what happened’, the other side’s going to say, ‘this is what happened’, and the mediator really doesn’t have very much to work with because both sides don’t have any evidence or corroborating evidence to support their claims.
So, it’s always better to try to get the medical records, try to get the financial records, try to get statements from the witnesses like neighbors to help corroborate your version of what happened, or what you believe happened.
Final Thoughts
So, in conclusion, what I wanted is to emphasize is when you have a claim, before you go to court and file it – very important to investigate it carefully to the extent that you can. Once you have the lawsuit filed, then you’ll have subpoena power and you can also get all kinds of records and things now that you have that ability, but you should have a road map as to what you think you’re going to need before you file the petition – because once you file it, if you later decide that you’re going to want to dismiss it because you didn’t have the evidence, or you didn’t have the witnesses you thought you would have – once you dismiss it under the law, even if it’s a voluntary dismissal, it’s deemed that the other side prevailed against you.
And what that means is, they can petition the judge to give the other side their legal fees or some other type of relief because you dismissed the action. So again, do your investigation, be careful, and try to get as much information as you can before you start the process.
Again, this is Randy Catanese of Catanese and Wells. We’re here to help. We offer free consultation initially if you have a matter you’d like to discuss with us – you can reach us at 818-707-0407, or you can visit us on our website at cataneselaw.com.