Posted: Tuesday, 16 November 2021 @ 09:56
The ability to win cases/get good client outcomes is actually dependent on the lawyer and the client asking a series of questions which include:
What is Going On? It is such a simple question but fundamentally the cases I deal with are often governed by emotion, prejudice and mutual distrust and must lead to understanding. Even though there are clear Court rules in place which encourage disclosure and co-operation between parties, often it is difficult to elicit what is genuinely happening with an Estate, what the other side is up to and what is the other side's position. Overcoming one's own emotions and limitations can be key in a case and maintaining a clear head and ultimately reaching a good outcome.
Is There Fraud or Not? With much work I do which focuses on executor misconduct a key area will be if the executor is engaged in some kind of fraud and the extent of it. Courts will be more forgiving of procedural errors/mistakes by executors but (thankfully) harsher on fraud. Sometimes it can be the level of fraud which accounts for the likelihood success of the legal proceedings.
How is the Evidence Going To Stack Up? One of the key skills is to evaluate what is going to happening on a case and how it will be seen by a Judge. This of course entails knowledge of law but often it involves in trying to get into the head of the judge and work out what they will think about the case.
Is It Worth It? Instructing a lawyer is such a big step but it is not just the legal costs of a dispute to factor but the emotional cost can be strong too. Sometimes we need to know the truth or as much of it as we can get and sometimes we can only achieve this by legal action.
Are We Disciplined? Inheritance cases can get complicated and it is easy to get sucked into correspondence with the other side which may take you in a number of paths.(which do not necessarily help) The solution is to have a clear targeted plan and not to deviate. I am a firm believer in keeping it simple. Sometimes it is necessary to take cases piecemeal e.g inventory and account leads to removal of executor. I like to maintain control of cases and do not like cases which can go out of control.
Do We Come Across Well? When I advise a to client to sue, I always think how my client comes across to the Court. Have we put up a series of correspondence which paints us in a good light, or not? And it applies to what I write too. I balance - what my client wants me to write, what I write to influence an opponent and what a Judge may think of the whole thing. The Judge's opinion is critical but you may never reach there, but you have to manage your client reputation.
Do We Have an End Game? Your inheritance dispute will come to an end but have you imagined it and on what terms? Are we seeking a genuine fair outcome as that will appeal more to a Judge. Have we factored in what the other side will do, say and allege?
Have We Made Offers To Settle Where Appropriate? Fundamentally judges do not like dealing with cases and would much rather we sought it out ourselves. Do we have a paper trail where appropriate?