Topic: Trusts and Estates
Preparing for trial in an estate or trust litigation case can be an intense and time consuming process for attorneys and clients. Although preparing for trial begins the moment we are retained, the process intensifies in the last few weeks before trial as the evidence accumulated during the discovery process is marshaled and organized into a logical and compelling narrative.
Marshaling the evidence involves identifying all witnesses and documents that will be presented at trial. First, the attorneys must ensure that all witnesses are present on the day of trial. Non-party witnesses – meaning witnesses who are not parties to the action – must be subpoenaed in order to compel their attendance. For example, in a will or trust contest involving claims of undue influence or incapacity, the treating physicians are usually called to testify. While preparing a subpoena is not time consuming, judges expect attorneys to make every effort to avoid inconveniencing witnesses, and it can be difficult to schedule the appearance of medical professionals who need to rearrange busy schedules to testify.
Documentary evidence must be copied and organized, including medical records, financial records, discovery responses, and deposition transcripts. Although all of the evidence (which could include thousands of pages of financial and medical records) must be available in court, those that will be used at trial must be copied, organized, and sometimes summarized for presentation to the court.
Demonstrative evidence must also be created and perfected. Demonstrative evidence may include PowerPoint presentations to be used during opening and closing arguments, videos of the decedent or other witnesses, or charts depicting the results of various medical examinations or tests. In incapacity cases, a simple chart showing the results of capacity tests such as the Mini Mental State Exam (or “MMSE”) can be very effective. In a fraud or financial elder abuse case, charts showing money flowing out of the victim’s accounts are a simple and persuasive way to show elder abuse or fraud.
Witness preparation is another important part of trial preparation. It involves familiarizing the witness with the questions he or she will be asked during direct and cross-examination, and might include several mock examinations.
Before trial begins, the parties submit trial briefs, which are a crucial component of any trust and estate trial. The trial brief educates the judge about the evidence and law and should frame the issues to the client’s advantage. In Contra Costa County the trial briefs may be due before the first day of trial.
Opening and closing statements must be drafted and rehearsed. If demonstrative evidence – such as a PowerPoint presentation – will comprise part of these statements, it must be synched with the statements.
Although a single attorney might conduct a simple one-day trial without assistance, trust and estate litigation cases are often complicated and elaborate proceedings requiring the efforts of more than one attorney. Often one or more lawyers are chosen to “second chair” the trial, assisting in locating documents, scheduling witnesses, and serving as the lead trial attorney’s eyes second set of eyes and ears.
Surprises and unexpected occurrences are inevitable, but thorough trial preparation can minimize these distractions and increase the likelihood of success.