Litigation Strategies Part II: Telling Stories

Financial exploitation of vulnerable adults takes place in the shadows.

When these cases finally get to court, the object of the exploitation is either dead or too demented to explain what happened.  So the trial becomes a process of trying to recreate an event to which the alleged perpetrator is probably the only witness.

Was it a gift or a grab?

What I find most interesting and enjoyable about these cases is that, as much as any other type of litigation, the result (who wins) is often a function who has the better lawyer – and more precisely, which lawyer is better able to take the admissible evidence and shape it into a believable story.

Was this the good daughter who took care of Mom when the other children wanted nothing to do with her and who Mom understandably wanted to financially benefit more than those others?; or The bad daughter who, left alone with her demented mother took advantage of her position of trust and her mother’s cognitive impairments to benefit herself?

The discoverable facts could support either story.  The better lawyer will control the story line of scrimmage and force the case to be developed along those themes that support their version of the case.

The end game is the trial.  At that point it’s about admissible evidence, fact and innuendo. Forget about the law and jury instructions, the fact finder (judge or jury) is going to apply an old-fashioned smell test, and whichever party can tell a story that passes that test is the party that will prevail.