Litigation Strategies Part VII: The Hands that Rock the Cradle

Petitions, motions, discovery. It all matters.  But when it comes to winning the guardianship/conservatorship case, there is an additional element – managing the court-appointed players.  Specifically, the guardian ad litem (“GAL”) and doctor (usually a psychologist but sometimes psychiatrist) who conducts the independent medical evaluation.

The GAL

While all judges are different, most judges give great weight to the recommendations of the GAL, and in more than a few counties, the judge will practically defer to the report and recommendations of the GAL when making a decision.

So that means to the lawyer needs to do everything within their power to get the GAL on their side, or at least neutralize them. Start communicating early – but don’t be pushy.  Typically GALs begin their investigation at the last minute, and prepare their reports the day before a hearing.  But that doesn’t mean you can’t have a friendly conversation early on to let them know what the case is about (a la your spin), and let them know that you and your clients are available when needed if more information would be helpful.

While the Court Rules allow an attorney to call the GAL as a witness and cross examine the GAL on their report – the goal is to avoid that. In most counties, the same GALs appear over and over before the same judge.  They have a relationship.  Beating up on the judge’s friend doesn’t necessarily advance your case – even if you do a great job of it.

The Doc

Likewise, even when you bring your own medical expert to court, the judge in most counties is going to give greater weight to the doctor they commonly appoint than to the experts retained by the parties, who the judge may perceive as hired guns.

Accordingly, as with the GAL, the sooner you establish communications with the court-appointed medical expert, the better. Unless the Court specifically orders attorneys not to communicate with the doctor, I highly recommend sending the doctor a letter outlining the case (a la your spin) and offering to provide more information or discuss the matter with them at a convenient time.

Another term to know in this context is “historian.” When doctors evaluate people for cognitive impairment, they almost always turn to the person who came with the impaired adult to the appointment for information that is used in their report to verify whether the things the impaired adult describes are consistent with what is actually going on. In the medical reports, this person is often called the “historian.”

While the doctor may appreciate that in a contested matter everyone has a different perspective, and may believe that s/he can glean helpful facts from the historian without adopting the historian’s perspective on the case, if the doctor likes the historian, the doctor will often present an opinion that is at least not adverse to that historian’s legal position.

SO – if at all possible, you want your client to be the historian. If that cannot be accomplished, your carefully crafted written summary to the doctor is all the more important, and may need to include information undermining the credibility of the person who the doctor can expect to meet when the impaired adult is brought to the appointment (aka, the historian).

Conclusion

Appreciate the important role played by the GAL and the court-appointed doctor in guardianship/conservatorship cases. Winning without them is an uphill battle.  Bring them on board early and keep the lines of communication open.  In these types of cases, they are the hands that rock the cradle. Recognize that they may well control the outcome of the case from behind the bench – and act accordingly.