So you decided litigating trust and estate disputes might be interesting. Or, perhaps, you enjoyed your wills and trusts law-school course but wanted to represent clients in court. Regardless of how you arrived at this point in your legal career, welcome. If you haven’t already, you will undoubtedly find trust and estate litigation to be a rewarding and interesting practice. The intersection of money and family is rarely, if ever, dull, particularly in litigated matters. But what should you know to ensure that trust and estate litigation will be a rewarding and sustainable practice for you? Here is some relatively brief unsolicited advice.
The adage that a litigator’s life would be stress-free if not for opposing counsel, judges, and (of course) clients applies with particular force to trust and estate litigation. Although saying “no” goes against our lawyerly instinct to help (as well as the financial imperative of building a successful practice), one need only experience a single nightmare client to understand the importance of being selective. We find our clients as they are—and, more often than not, they are traumatized, grieving, and emotionally wrapped around the axle. To be an effective trust and estate litigator, you certainly need the ability to empathize and connect with your client; however, you also need to hone your ability to detect when a prospective client is likely beyond your ability to manage. There are numerous warning signs that you will learn to identify in initial client conversations—one example is the client who has quickly cycled through prior counsel—but you also need to learn to trust your gut. And if your gut is telling you that the prospective client will be difficult, you would be wise to listen.
Once you have decided to represent a particular client, you have several immediate and essential responsibilities. You must establish rapport and gain your client’s trust, as both will be required throughout the representation. Just as importantly, you also need to develop a clear set of expectations—namely, what you will be doing for the client, what you will not be doing, and how often (and in what manner) you will communicate. Many clients are not particularly sophisticated in litigation and do not know what to expect from the court and their counsel. It is, therefore, vital for you to level set and not simply walk your client down the primrose path of litigation. Managing your clients’ expectations of what they can reasonably hope to achieve by way of litigation is, in some sense, your primary responsibility as their attorney. And it has the added benefit of avoiding—or at least mitigating— those awkward subsequent, “but you didn’t tell me this was going to happen” conversations.
Take everything your client tells you about the dispute, and its factual background, with a grain of salt. A trust and estate dispute’s factual narrative can be a bit like an onion—successive layers will gradually reveal themselves over the litigation’s course. Though you should generally avoid expressing skepticism regarding your client’s factual account, you should maintain, at least internally, an appropriately skeptical attitude and continue to ask questions. Trust and estate disputes often involve issues—and conflicts—dating back years, if not decades, within the client’s family. Even with a client who appears eager to share information, you will typically not receive the entire story immediately. (And, of course, the other side’s factual account will likely differ in certain material respects.) To assess your client’s case objectively and properly advise them, you should keep an open mind.
That said, always listen to your client. Do not immediately discount information shared with you simply because it seems remote or unrelated to the disputed issues. Even if it is not, legally speaking, relevant, such information may still provide you with essential insights regarding litigation drivers and the parties’ respective goals. If the client feels it is important to share certain information with you, listen to the client.
Clients pay us to offload their problems. And, boy, do they have problems: familial conflict, psychological distress, you name it. Trust and estate litigation puts real life on full display in all of its messiness. Although you need to convey that the client’s problem is now your problem, you must also be able to compartmentalize your work from the rest of your life. The amount of vicarious stress you will be exposed to will sometimes seem overwhelming. Simply ignoring that reality does not make it go away. So you should set reasonable boundaries: avoid the impulse to give clients your cell phone number unnecessarily; schedule and block vacation time; and identify and make time for appropriate stress-relief habits, whether exercise, meditation, or hobbies. After all, if you don’t take care of yourself, you certainly won’t be able to take care of your clients. And trust me—they need you.
