Monday, September 8, 2014

The difficulties of truth-telling in Oregon will contests and elder abuse cases.

It is hard to tell the truth. The more stressful the situation, the more difficult it is.

I do probate and elder law litigation in Oregon. One of the things lawyers do in will contests and financial elder abuse cases is take depositions. The lawyers in the case put the witnesses in front of a court reporter, make them swear to tell truth, and then ask what happened. In this way the lawyers find out what the witnesses on the other side of the case will say at trial.

To prepare my client for deposition I give some hints about how to respond to the other lawyer's questions, but most of my emphasis goes into the importance of telling the truth.

Having my client tell the truth is crucial to my case, because a client who gives one untruthful answer out of twenty casts doubt on all twenty. My clients tell me that they will tell the truth. They may even understand the importance of it to the case, but more often than not they are simply incapable of it.
In litigation the lawyers each develop a story. The challenger of the will has a story whereby the will was a result of undue influence. The proponent of the will has a story in which the will truly represents the last wishes of the person who wrote it.  The judge will listen to the evidence and either accept one of the stories, or construct from what he hears a story of his own. The witnesses in deposition and trial know what story their lawyer is trying to tell and they want to help. Often, in their zeal to help, witnesses hurt their own cases.

If all the facts supported the same story, nobody would be going to court. Cases are litigated because there is a dispute as to what happened. That means some of the facts point toward the challenger's story and some of them point to the proponent. Witnesses know this and when testifying they filter their answers through the lense of how the answer fits the story their lawyer is trying to tell. When asked a question with a straightforward answer that does not fit the witnesses story, even people who are generally truthful become evasive and defensive. Evasive and defensive witnesses are bad witnesses.

Stories and real life are not the same. When we go to the movies we don't see everything every character does every minute of the day. Facts are indifferent to the stories we tell, so authors and the editors cut out anything that doesn't contribute to the story. A different author or editor would pick out different things and create a different story. In real life heros sometimes do bad things, and villains can be philanthropic. In depositions the witness may well be asked about facts that don't fit the story the witness wants to tell. Nevertheless, it is better for the case if the witness bites the  bullet and tells it the way real life presented it.  I tell witnesses this all the time, but for some people the story--the narrative--has become real life, and they are unable to say anything that doesn't fit.

Litigants must accept that their lawyer cannot hide the facts that don't support the case. His job is to present the facts in a way that make his client's story more likely than the one presented by the other side. When the litigants attempt to hide facts that don't support their case, they appear from the outside to be unconvinced of the story they are propounding. Secure people accept their imperfections, and secure witnesses accept that there are flaws in the story they are presenting to the court. If the witness is truthful about the weaknesses in his case, his testimony is credible on the facts that support his case. If the witness is untruthful and evase about the flaws in the case, the suspicion is that he is also untruthful and biased about the strengths of his case

It is my job as a lawyer in a will contest or elder financial abuse case to put the facts in context and perspective. My clients want to help me, but they help the most by providing me with the most accurate information possible. The same client who complains about all the work involved in obtaining and compiling medical or financial records, is often the first one to be manipulative of the few pieces of factual evidence I have to work with. In doing so this client--the one who has stood in the way of getting the information I need--devalues the little bit of factual information I have.

In a will contest the fight is always over someone else's money. The litigants didn't earn it and haven't lost it. The best witness is the one who recognizes that he or she has no moral right to the money and is willing to simply lay out the bare facts so that a judge can decided who gets it. The moment the witness decides to help by shading his testimony, he reduces the chance that the judge will decide in his favor.

Thursday, September 4, 2014

Stop asking me to write powers of attorney for your demented family members.

People call me all the time asking me to write a power of attorney for the caller's mother, father, grandfather or uncle. The call usually goes something like this:

Clara Client: "My mother has Alzheimers and the bank says I need a power of attorney so I can take care of her money. If you write one up, I could pick it up this afternoon."

Me: "Describe her condition."

Carla Client: "She is forgetful. She leaves the stove on and can't operate the remote on the television any more. She needs someone to take care of her money and everyone says I need a power of attorney.

Me: "If she were presented with a power of attorney, would she be able to read and understand it."

Carla Client: "No. Well, maybe if it was in the morning, but she want's me to take care of her money."

Me: "Could she come in and see me?"

Clara Client: "She doesn't like to go out anymore, she wants me to take care of if.

Let's get this clear. I am never going to write this power of attorney, and a lawyer who will do it is crazy.

I write estate planning and related documents for clients of mine. If Clara Client's mother came in and wanted to name Clara as her agent in a power of attorney--and I thought that the mother had the capacity to understand the document--I would be pleased to write it. I do this sort of thing all the time. However, when a client comes in--the client being the person who is in my office--and wants me to write estate planning documents for someone else, I get scared.

Estate planning documents are not like leases and sales contracts. If you wanted to sell or lease a building to a third party, a lawyer might write the lease for you. You could present it to the proposed tenant, and the tenant would understand that the lawyer who wrote the document was working for you. The tenant might or might not get a lawyer to review the document, but the tenant would not think your lawyer was looking out for him. In estate planning it is different. When Clara client takes that power of attorney to her mother, her mother might reasonably believe that I wrote the document with the mother's best interests in mind, and that I was watching out for her. According to the rules that govern lawyers, if a person reasonably believes that I am watching out for her then that person is my client. So in the case of Clara, Clara's mother becomes my client even if I have never met her. Now I have two clients, Clara, who is paying me and Clara's mother, who has never met me. This has big implications and is the kind of thing that keeps me awake at night.

To me, a client who asks me to write a power of attorney for a third party is little different from a client asking me to write a will for a third party. I have had that happen. "My grandfather wants to leave everything to me. You write up a will saying that, and I will get him to sign it." Very few people have a hard time seeing what is wrong with this, but quite a few people see no problem with, "My grandfather wants to put all of his money under my control. You write that up and I will have him sign it."

I simply cannot be associated with creating a will or a power of attorney for a person who I have never met, and probably doesn't have the cognitive capacity to understand the document.

What might go wrong? In many cases, nothing goes wrong. I write the power of attorney for Clara Client. She uses is honestly and wisely and everybody is happy. Great. It all worked out and I made a hundred bucks off of my power of attorney form.

Ah, but what about the other cases. Clara Client takes the form I wrote, gets her mother to sign it, and uses the form to steal every cent her mother had. When the rest of the family figures this out, Clara is long gone and they go looking for someone to sue. Who do they look to? That's right, me. I am the guy who wrote a power of attorney, the tool by which the theft occurred, and after I wrote it, I gave it to the thief. Furthermore, I knew, while writing it, that Clara's mother probably didn't have the capacity to understand the document. I am on the hook for everything Clara took.

Here is the deal. If you want to stick a power of attorney in front of your demented relative and hope that it all works out, go down to Office Depot or download one on the internet. If the power of attorney is thereafter used properly--that is all expenditures by the agent are recorded, accounted for, and made for the benefit of the principal--everybody will be fine and you will have saved a hundred bucks. If the power of attorney is used improperly--by handing out grandma's money to relatives--when Adult Protective Services or the police come looking for Clara, I will be sleeping sound and secure in the knowledge that I had nothing to do with it. That's the way I want it.

Doing it this way even has some advantages for Clara. Let's assume Clara gets a power of attorney from Legal Zoom on the internet and leaves me out of it. Later it turns out that the power of attorney is insufficient protection and Clara needs to establish a guardianship or a conservatorship. I can take that case because I have never acted as attorney for her mother. Had I written the power of attorney, it is highly likely that Clara's mother would believe that I was protecting her legal interests. As I described above, that makes her my client, and once she becomes my client I am disqualified from ever bringing a guardianship or conservatorship case against her. Clara won't be getting a guardianship from Legal Zoom and she may be thankful that I am available for the job.