Any seasoned attorney or expert witness will say that undue influence cases are difficult to win, and it is much easier to defend an undue influence case than it is to prosecute one.

When I work for the petitioner (i.e., the person alleging undue influence), I always go into the case explaining that it is highly likely my opinion will be that there was no undue influence, usually due to a lack of evidence. And, I am not shy about telling the attorney who hired me that I did not find anything that will be helpful in court. The alternative is to try to stretch the truth in order to write an expert report that sounds great but falls apart during the course of a trial.

That is exactly what happened in a recent undue influence bench trial in which I was the expert for the respondent (i.e, the person saying no undue influence occurred). The expert who worked for the petitioner (I know this expert and respect his work) wrote a report that sounded great for their side, but was based on speculation and minimal evidence. I, on the other hand, combed carefully through the evidence and wrote a report with opinions that were based on multiple independently verifiable facts.

Following is what the judge had to say in his ruling:

Even though I didn’t sit in on the entire trial, I knew exactly what the fact witnesses in the case were going to say, because I knew the evidence backward and forward and based my opinions on that evidence. Since I was working for the defense, I had the benefit of having the judge hear my testimony after everyone else had already testified. Apparently, what I said meshed with what all of the other witnesses had to say. They essentially built my credibility for me, simply because I focused on writing a good, objective report. And, there is nothing that destroys an expert’s credibility more than when what they say is contradicted by every other witness.

Although it may not be what clients want to hear, it is essential for experts to form objective opinions and avoid stretching the evidence for ‘their side.’ In the short-term, experts who do this will provide their clients with a lovely report. But in the long-term, it ends up costing everyone money. Engaging in this type of evidence-stretching report writing causes mediation settlements to fall apart, gives clients a false sense of confidence, and sends unwinnable cases to trial.