Hello, this is Randy Catanese of Catanese and Wells, a law corporation. We are trust and estate litigation lawyers located in Westlake Village, California. I have over 40 years’ experience as a trial lawyer litigating cases in various areas, including trust and estate litigation.
Previously, I talked about getting prepared before you go forward with a petition in the court system asking for relief, and what I talked about generally, was the idea that you want to speak with neighbors, you want to get medical records, you want to talk with accountants if you can, get banking records – try to collate and collect as much information as you can so that you can make the best decision on moving forward.
What you don’t want to do of course is get into court – you’re not prepared, you’re not organized, you don’t know what the evidence is. One of the things that’s very important to do early on, whether before you file the petition, immediately after you file the petition, or in the worst case, later on when you get closer to trial, is the identification and use of experts.
Types of Experts to Use in Trust Litigation
There are many different types of experts that you can use in trust litigation, but generally, your experts are going to be people who are doctors, medical professionals, accountants, bankers, and sometimes real estate professionals. You can use attorneys to discuss with the court their view on certain areas, but the law says that only the judge interprets the law and only the judge says what the law is.
So, in trust and estate litigation, because it is the judge who’s handling the hearing and is the fact finder, also the decision maker, the judge may allow an attorney to come in and tell the judge what the law is, or what the law should be, but I wouldn’t count on that.
Motion in Limine
And then there’s also what’s known as a motion in limine. Meaning if we were on the defense side, or somebody’s on the defense side, they could file a motion with the judge saying that legal expert or the lawyer expert shouldn’t be able to talk about the law because that’s exclusively the province of the judge.
So, let’s talk about experts for a second. I mentioned that there were three times you could hire the expert – before you bring your petition, after you bring the petition, and maybe much later when you get closer to trial.
Utilizing Experts Without the Cost
Experts are expensive, so many times what people do, is they don’t want to spend money on experts because they feel that they’re going to spend money, and if the case settles its money that maybe they’ll never get back or they just want to wait and see how the case plays out.
My strong recommendation is get your best experts as soon as you can. Sometimes, with an expert, you can negotiate with them and say, “look, I don’t need your full opinion right now, but I need an advisory opinion and I want to retain you to take a look at what we have in this case and tell me what you think”.
And sometimes an expert will say, “all right, I’ll give you an advisory opinion, but if you want me to do a deposition, this is what it’s going to cost. If you want me to appear and testify at trial, this is what it’s going to cost.” And so, there are ways to get experts to work with you early on without having to pay them their full rate.
Experience with Litigation Cases
There are cases I’ve had in the past where expert fees, collectively, between a medical expert, an accounting expert, a damages expert, could be thousands and thousands of dollars – $25,000, $50,000, sometimes over $100,000.
So, you want to be careful and prudent as to how you select your experts. Why does my firm get the expert as soon as we can – or, experts?
And like I said, you don’t have to hire all the experts at one time. For example, maybe the big issue in the case is if we’re the petitioner, that Mom or Dad, now deceased, had cognitive disabilities – they had dementia, maybe they had Parkinson’s disease, maybe they had some other problem that was affecting their ability to make decisions, that issue may be fundamental and paramount to your entire case.
Damages
There might be other issues such as damages. But damages are only going to be really relevant if you first establish the essential element that the person who was involved, mom or dad, another family member, was taken advantage of because they had cognitive decline or they didn’t know what was going on.
So, many times you want to get the health expert first, so they can help you make a determination. The best way to use an expert also, is give the expert information they can use to give you a proper opinion.
If I go to an expert and I say, “well, so and so in the family hearsay said this and this and this about mom” when you go to your expert, the expert’s going to say, “I can tell you what I kind of think about it, but it’s not going to be very definitive and obviously I can’t give you the best opinion because I don’t have enough information to opine on what you’re asking me to do.”
Obtain Your Experts As Soon As Possible
So, what you want to do again, if it’s a medical issue, try to get the medical records, try to get as much as you can – family records, try to interview witnesses who had personal knowledge about the person, if they had cognitive decline or what they would say.
And then, that way, once you get that information, then you know, all right we’ve probably got enough evidence here to prove cognitive decline but let’s go get an expert because that expert can tell the judge, “okay based on my medical experience, my history, my knowledge, to a medical certainty, I can say this particular person, mom or dad, who’s now deceased, didn’t understand what they were doing at the time they amended the trust, or amended their will, or made out a new trust or will for the very first time.”
So again, get the expert early, use the expert to help you organize your case. Many times with the expert what I will do is, I’ll say here’s the medical information, here’s what we have and again, if I’m organized and I have the ability to get what they need, we get to a place where the expert can start to tell me questions to ask of the respondent.
An Example of a Valid Case
So, let’s say for example, there was a neighbor, and that neighbor ingratiated themselves into Mom or Dad’s life. Mom’s gone, dad’s gone, the neighbor got the estate because their will and their trust said we’re going to disinherit our children, we’re going to disinherit our family, and we’re going to leave everything to our neighbor because our neighbor is our friend.
Now, again, when that happens, what does the family normally do? The family says that doesn’t seem natural, that doesn’t seem reasonable, and appellate court so that you know, take the position that it’s an unnatural device. What does that mean? The courts say look it’s going to be reasonable and normal that you leave your estate to your family not to a stranger.
So, as I said earlier, the appellate courts say, it’s almost like a presumption that there’s a problem. They believe that if mom or dad leaves their estate to a stranger, a neighbor, maybe a coworker, maybe somebody else, that in reason, and in normal situations, they’re going to leave their estate to their children, grandchildren, or to their other family members.
And so, when you get your expert, the expert’s going to help establish that it was an unreasonable or an illegal estate plan or gift because they didn’t know what they were doing, or they were easily taken advantage of. And just some basic points that your experts can help you with too, is the damages side.
Power of Attorney
Many times in these financial, elder abuse cases, the issue is ‘okay we have to track what happened to the money, mom had money, dad had money. Maybe, let’s say they had a million dollars in cash and then a neighbor starts talking to them and convinces them that they should be given a power of attorney. And they say to them “you can’t manage your estate anymore, your children live out of state, you should give me power of attorney and as your friend I’m going to manage your finances. I’m going to pay your bills, I’m going to do this, I’m going to do that.”
And then what they do once they get the power of attorney, they start moving money. They move money from the pile that belongs to Mom or Dad and move it to the pile where the stranger controls it. So, you need to have a forensic accountant with knowledge of estate and trust litigation, particularly because the court may have ordered an accounting and that accounting has to be in a particular form or format per the probate code. And so, the two experts that I think you’d want to identify right away is a medical expert and an accounting expert or forensic expert, and as I said, sometimes other experts.
Wrapping Up
Just to wrap up again, whether you are in the petitioner position, meaning the plaintiff, respondent position, you’re the defendant, get your expert as early as you can. You can negotiate with them to get what I call advisory opinions and try to work with them where they can tell you go get these documents, you should ask these questions, do this in the deposition, and then, hopefully, they’ll guide you and also be available to help you in a court-ordered mediation or if you can’t settle it at trial.
So, thank you for listening. Again, this is Randy Catanese from Catanese and Wells. We are trust and estate litigation lawyers in Westlake Village. You can reach us by phone at 818-707-0407. Or at our website Catanese Law, and we do offer an initial free consultation. We look forward to hearing from you and thanks for listening.