Litigation Strategies Part V: Kissing Frogs

The topic of this post is: How to gather information at an initial meeting with clients seeking representation in an undue influence case, from a lawyer’s perspective.

Start with the proposition that nearly all will and trust contests, and many financial exploitation cases, are, at their core, undue influence cases. Lack of capacity is commonly pled, but in all but a few cases, the real issue is undue influence.  Essentially, the case comes down to a story about someone persuading a vulnerable adult to sign something that accrued a benefit to that person, and caused a harm to someone else (the prospective client).  The document that got signed could be a will, a trust amendment, a deed, a life insurance beneficiary designation, or any number of other documents of that type.

I spend a lot of time talking to potential clients about these types of cases, but only agree to take a few. As we say in the office, we kiss a lot of frogs to find a few princes.  The goal is not to get bogged down with cases that are uneconomical, unwinnable, or both.  While no simple formula controls the decision to accept or forego a case, what follows is my list of the things that seem most important to me in deciding whether a prospective undue influence case seems worthwhile.

  1. Who prepared the document? Was it prepared by an attorney?
    1. If not, who did? Who witnessed it? Where did this take place?
    2. If prepared by an attorney, who made the appointment and how did the person who signed the documents get there? Who went with them? Who was in the room when the document was signed? Was there a prior relationship between this attorney and the benefactor?
    3. Skill level and reputation of that lawyer.
  2. What are the relationships of the parties and interests involved?
    1. Second marriages.
    2. Caregiver child.
    3. Favoritism between siblings.
  3. Is there a history of financial dependence?
  4. Is there a pattern of alienation from family and friends?
  5. Where did the vulnerable person live, and who lived with them?
  6. Physical dependence.
    1. Was the person who made the change housebound?
    2. Could they drive? If not, who drove them?
  7. Was there a fiduciary relationship between the vulnerable adult and the benefactor?
  8. Was the person who signed the documents experiencing age-related cognitive impairments: dementia, paranoia, depression. Are contemporaneous medical records available and what would they say?
  9. Non-age related personality traits. Was someone involved overly controlling, manipulative, narcissistic?
  10. How long ago did this occur? If it did not occur recently, did it just come to light? If not, why wasn’t something done sooner?
  11. How much money are we talking about?
  12. What are the respective financial positions of the parties? Can one party simply wear out the other party on legal fees?
  13. What witnesses who have nothing to gain or lose by the outcome of the case are available? And what will they say?
  14. History of relationships of people involved. Does it make sense in the big picture that this person or these people are favored?
  15. Drug and alcohol use and history of person who made the change and people who benefited or were harmed?
  16. Credibility. How do the potential clients appear? Is the way they present consistent with a wronged individual, or an individual seeking simply to upset something they knew was coming?
  17. What county? What judge?

Undertaking litigation of any type, and undue influence cases in particular, involves a substantial commitment of time and resources. These cases are never easy.  The initial interview is a delicate thing.  Clients deserve to be heard, and the attorney needs to be able to guide and educate the client on the value of their case – the likelihood of success, the prospects of a favorable settlement, and the costs (emotional and financial) of pursuing the action.  At the same time, the attorney needs to be efficient in obtaining enough information to be able to assess whether the matter is one that makes sense for the lawyer and the firm.  The outline above is designed to accomplish both objectives, and to help the attorney making this decision to distinguish between the frogs and the princes.

To read other posts in this series, click below:

Litigation Strategies Part I: I Love You But…

Litigation Strategies Part II: Telling Stories

Litigation Strategies Part III: Bulldog Lawyers

Litigation Strategies Part IV: Getting Homered

  • Paul A. Sturgul

    For an engrossing book about what is perhaps the largest will contest to date in American History, I recommend “Undue Influence,” by David Margolick. The book is about the Johnson family feud – Seward Johnson of Johnson & Johnson pharmaceutical company. When the case settled back in 1986, the atty fees on both sides amounted to $25 million!