Undue Influence Cases: Five Things Good Expert Witnesses Hope Attorneys Tell You
When a family member claims that someone unduly influenced a deceased loved one to change their estate plan, emotions run high. Often, the alleged influencer is another family member, a once-trusted friend, or a caretaker for the deceased. Sometimes, the family member who is alleging undue influence is in desperate need for money. Other times, they want to bring a case forward “for the principle of it.” Still other times, they just want to sue their family because everyone hates each other.
In many undue influence cases, attorneys hire experts to conduct retrospective evaluations of undue influence. I have done scores of these evaluations; they usually involve reviewing discovery and medical records, talking to key players, reading deposition transcripts, doing research on the specifics of the case, and writing an extensive report.
Following are the five things good experts would love to have attorneys tell their clients about the expert witness process:
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1) A good expert is not on your side.
Experts should be focused on providing an unbiased and objective evaluation based on the evidence they have reviewed. Sometimes, this means the expert will develop opinions that are in line with the hiring attorney’s argument. Other times, experts have to give you opinions you do not want to hear. Whereas an expert who is objective is willing to tell the retaining attorney that they have no case, an expert who is “on your side” will just come up with whatever weak argument is needed to stay on your side. Those experts end up costing you a lot of money because they can give a false sense of confidence that leads to rejecting an otherwise good mediation settlement offer. And when the case goes to trial, the expert’s opinion crumbles under effective cross-examination.
2) A good expert evaluation will be expensive.
Good experts charge a lot of money. They take their time combing through medical records. They interview a lot of people. They read every deposition transcript. They look at every legal pleading. They research relevant information related to the case. They ground their opinions in science and every inference and opinion is backed by multiple pieces of verifiable evidence. They consider opposing arguments and rule them in or out. All of this takes time, and it costs money. But, you end up with a work product that is rock solid.
Mediation after a good expert report is more often successful because both sides have a decent idea of what would happen at trial. In one recent case my report, which cost the client in the mid-five figures, helped avert a trial that would have cost millions. In that particular case, everyone on both sides walked out of their successful settlement negotiation with bruised egos and $350 million apiece. In another recent case, I told the retaining attorney my evaluation, which was not cheap, found nothing. Their client dropped the issue and saved more than $100,000 by not pursuing it further.
So yes, good experts charge you a lot of money. But they can also save you a lot of money.
3) A good expert has likely worked for opposing counsel or the court before
There are not a lot of psychologists who do expert evaluations for undue influence cases. The good ones do a lot. I routinely run across the same handful of experts in the cases I on which I work in Colorado and nationwide.
When you hire a good expert, that person is likely to have worked directly for opposing counsel In the past. They are likely to work directly against your attorney in the future. Many judges are extremely familiar with good experts and their reports.
All of this is to say that a good expert is not going to take a chance on a shaky opinion just because they want to please you or the retaining attorney. When news starts spreading in the small community of probate litigators and judges that an expert is a “hired gun,” that expert’s career is basically over.
If you hire a good expert, they will be honest with you and will only offer opinions about undue influence if they are highly confident in those opinions, and if they feel they can defend not only their objective opinions, but their future reputation as well.
4) A good expert is likely to tell you there isn’t enough evidence to prove undue influence (even if things look fishy)
More than 50% of the evidence must show that undue influence occurred. That sounds like a low bar, but it is not. By its very nature, undue influence is often done in secret, and influencers leave little evidence for experts to follow. And, a lack of evidence of undue influence means that the court must find in favor of “no undue influence.”
5) Litigation is not family therapy, and winning an undue influence case will not fix your problems
If your family has always hated Uncle Joe’s family, suing Uncle Joe is not going to make things any better. And if you are only engaging in litigation “for the principle,” then you should drop the litigation. Your money will be better spent on a good therapist who can help you come to terms with whatever is actually bothers you.