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The Role of Litigators in a Modern Estate-Planning Practice

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A healthy internal culture is a vitally important asset of a modern law practice and a key contributor to a firm’s continued success. Estate planners in particular work to create a caring and collaborative environment. Understandably, the firm is protective of that culture, especially when adding new members to the team. When an estate-planning practice decides to add a litigation component to the office, the firm must proceed carefully to ensure that the attorneys and staff continue to meld well so as to avoid disrupting that culture.

Estate planners are generally considered thoughtful and contemplative attorneys who mull over various tax and logistical aspects of a client’s estate to cultivate the best plan for the family. Litigators are widely considered to be loud, boisterous and quick-witted gunslingers who are charming and can talk their way into or out of any of their client’s problems. At first glance, in a smaller firm environment, that may not seem like the best choice of personalities to mix in the firm melting pot, but do the mutual benefits outweigh any potential risk to the firm’s collegial atmosphere? Our firm has been able to combine planners and litigators with overwhelming success by carefully selecting attorneys who strengthen and expand the firm’s offerings while adhering fervently to the firm’s caring and compatible culture.

Our Experience

Marvin Blum left his first job at a large, regional firm in 1980 to open a solo practice exclusively in the area The Role of Litigators in a Modern Estate-Planning Practice Get help recognizing and diagnosing potential issues of estate planning. He believed that the smaller firm environment would allow him to provide his clients more personalized service, never imagining that The Blum Firm would grow to its current size. The growth of the firm from a solo practice to a boutique firm with 30 lawyers was entirely organic. Lawyers were added only as the backlog of work necessitated it. Moreover, Marvin never envisioned bringing litigators into the practice. In the early days, the only trips to the courthouse were few and far between, almost always for uncontested probate matters. If a controversy arose in a case, that matter was referred to a litigation firm that specialized in estate, trust, and fiduciary litigation. Over time, one boutique litigation firm became the “go to” firm, and as the cases and frequency of the referrals increased, so did the relationship among the attorneys. About six years ago, four of the attorneys from that firm approached Marvin about joining The Blum Firm. Although it wasn’t part of the initial plan, the individuals and personalities in both firms were compatible, and litigators were added to our firm. This was the first time that the firm’s growth wasn’t organic but born out of a desire to add a new practice area.

Mixing estate planners and litigators has pros and cons. On the positive side, litigation cases, which often result in higher fees, generate additional income for the firm. In addition, litigators provide a different perspective to enhance the firm’s planning services going forward. The concerns stem from blending hard-charging litigators with the more calm and contemplative estate planners, potentially disrupting the firm culture. Through a careful and measured approach, Marvin determined that adding this particular litigation group could be positive on all fronts. He addressed the concerns about personalities head on. The firm hired a consultant to determine the personality profiles of all of its lawyers using the Dominance, Influence, Steadiness and Compliance (DISC) assessment. The DISC assessment is a personality model that’s designed to measure an individual’s personality and behavioral style by examining how an individual ranks in the four primary personality types: dominance, influence, steadiness and compliance. The tool was designed specifically to be used in the workplace. It’s typically used to improve communication and performance within teams. The results affirmed that the planners and litigators were compatible. Those few attorneys whose styles deviated from the core still had the same firm culture values as the rest of the group, and the strengths they displayed would enhance firm culture and attitude rather than hinder it.

Fee Structure/Compensation

Additional considerations when mixing estate planners and litigators are fee structure and compensation. Most estate-planning firms bill by the hour or on a fixed-fee basis, but many litigators not only bill by the hour but also handle cases on a contingency. A contingency case can be a risk if the firm invests money in the case and doesn’t see a recovery, but that’s most often outweighed by cases that are large in which the fees can be considerably higher than what the lawyer would charge by the hour. Litigators who handle contingency cases expect to be rewarded financially for carefully choosing and working those cases that result in an extraordinary fee. As a result, our firm established a formula that would fairly compensate the firm while also rewarding the litigator appropriately. Staffing needs for litigators are greater than for most estate planners. Most litigators have a secretary and a paralegal to assist with the large number of cases. Furthermore, litigators use secretaries and paralegals as additional billing professionals that enhance firm revenue. However, revenue isn’t the only benefit of litigators in a traditional estate planning boutique.

Value Added

Litigators offer a valuable perspective on sensitive estate-planning situations and often act as a sounding board for planners. Generally, planners are concerned with the client’s financial and dispositive objectives and may be less attuned to the potential pitfalls that may arise down the road. Issues such as capacity, compliance, undue influence, and evidentiary considerations frequently only arise after the death of the client and may result in unforeseen litigation. Litigators are trained to identify problems and try to solve them before they become issues. From their experience dealing with controversy, litigators may recognize discreet and nuanced issues that the planner fails to see. The ability for planners to work with litigators, identify those areas of concern, and prepare for as many contingencies as possible has intrinsic value to the estate planning client. 

The economic downturn, non-nuclear families, and rise in non-traditional marriages create conditions that are ripe for conflict. The country has become more divisive, and that divisiveness is trickling down into not only political and business arenas but also into relationships among family members. As a result, litigation has increased significantly in estates, trusts, and guardianship matters in recent years. During the planning phase, litigation counsel can ensure that all possible preventative measures are implemented. No estate plan is 100% bulletproof, but looking at the plan through the lens of a litigator will certainly improve the odds that many possible future conflicts can be avoided.

Common Litigation Scenarios

Some of the most common estate litigation scenarios are undue influence, lack of capacity and failure to follow execution formalities. Litigators can offer valuable guidance to head off potential problems, such as the following tips and techniques. First, know who your client is and make sure that your communications about their planning is discussed with only the client and not children or other family members. When you interview the client in person, they should be the only individual in the room unless there’s a joint representation with their spouse. When representing a couple in a second or third marriage with children from a first marriage, it’s advisable to interview each spouse alone. This ensures that you can speak frankly with each spouse and discuss freely any objectives that need to be addressed. Children pitted against a stepparent is a common litigation scenario, particularly the accusation that the stepparent exerted undue influence over the children’s natural parent.

Lack of capacity is an especially common attack on an estate plan as clients get older or have significant health challenges. Consider advising the client to make a significant gift to any problematic relative at the time of signing the will. The contestant will be in an untenable position to argue that the testator didn’t have capacity at the same time that they gave the gift. The contestant will risk losing their gift if they challenge the estate plan because if the testator didn’t have the mental capacity to execute the will, then they in turn couldn’t have mental capacity to give the gift. Planners may also suggest that their client obtain a capacity assessment prior to execution of the will, but there’s a potential downside. Although the exam may provide evidence of capacity, it might also signal that the planner was concerned about their client’s capacity and invite litigation. Some lawyers believe that videotaping a will execution will protect the estate plan, but that often backfires. A skilled fiduciary litigator can dissect a video or capacity assessment and turn a piece of evidence that the planner believed was prophylactic into a nightmare.

A few other ways to protect yourself and your client are to avoid will signings at hospitals, keep good notes in the file, make sure that your billing entries don’t reflect concerns about capacity, ascertain that the client pays their own invoice for services rendered and keep your process as close to the same for each will execution as possible. The bottom line is that you can only do the best that you can to plug all the potential holes and have a litigator advise you on the best ways to protect your client and yourself. 

Having a litigator in the firm can help the planner recognize and diagnose potential issues such as those described above. In today’s modern estate planning practice, the careful addition of a litigation component can substantially enhance the value of the firm’s estate-planning services.