Simmons Trial Practice

Telephone (503) 221-2000 – Civil Litigation

Undue Influence Trial in Probate Court – Persuading the Judge

by

A four-day trial resulted in a finding that an amendment to a trust, disinheriting my client, was the result of undue influence. The trust amendment was invalidated and this restored the effect of the former trust; the disinherited long-term friends (the de facto family of the decedent) were restored as the 100% beneficiaries of the estate.

Probate litigation is decided by the Judge, not by a jury. Nevertheless, visual presentation is effective to either a Judge or to a jury. Trial presentation software gives an advantage to the lawyers who use it to make points both orally and visually. Instead of merely talking about a fact, it is far better to say, “Look at this”.

Most trials are done without sufficient images. We used trial presentation software to show both the logic, and to show the emotional history between the client and the decedent.

Near the beginning of opening statement, a document exhibit was projected on the screen. Then the relevant words were zoomed in on, using the software. As a practical matter, in 30 seconds this disposed of an issue the other side was relying on.

Our side displayed lots of photos and letters and holiday cards from over the years, proving the nature of the long-term relationship with our client.

We displayed time charts to show the sequence of events, to highlight the circumstantial evidence of undue influence.

Using a Time Chart in Probate Litigation

As experienced trial lawyers know, closing is generally insignificant, because the finder of fact has usually decided the case by then. Nevertheless, two images put up during closing argument made our side’s case very clear.

The first image was side-by-side photos to show a contrast in the decedent’s appearance. The second was a time chart, with an un-shortened time axis, to show the sequence of events near death. These images were intended to clarify what could have been a jumble of facts.

During closing, the Judge asked a question about the sequence of events near death. It was easy to walk over to the time chart to point out that the start of the period of undue influence was before the sequence of events leading to the change in beneficiaries. I make available for sale a brief report for lawyers about how to use time charts in trial.

How to Prove Undue Influence

To invalidate a will or a trust because of undue influence requires a confidential relationship, and one or more “suspicious circumstances”.

In a confidential relationship, one person trusts the other to act in her best interests, and relies on the other to meet her needs. Once a confidential relationship is established, “slight evidence is sufficient to establish undue influence.” In re Reddaway’s Estate, 214 OR 410, 420 (1958). Add one or more suspicious circumstances, and an inference of undue influence arises that the respondent must rebut.

The burden shifts for a reason: because undue influence occurs behind closed doors, out of sight.

“… cases of this type ordinarily must rest upon circumstantial evidence.” In re Reddaway’s Estate, 214 Or. 410, 427 (1958)

The Reddaway factors for suspicious circumstances include:

  • Unexplained change in donor’s attitude.
  • Change in plan for disposition of estate.
  • Unnatural or unjust gift.
  • Secrecy and haste.
  • Susceptibility to influence.

The clarity of visual presentation makes circumstantial evidence more persuasive.

If you have a will contest or trust contest to discuss, you are invited to call E. J. Simmons at (503) 221-2000.

Business Litigation Requires Effective Graphics

by

Time Graphics for Business Litigation
When you have a trial or arbitration coming up, whether to the Court, to a jury trial or to an arbitration panel, the decision makers are not familiar with all the facts in the case. So your opening statement must be clear and easy to understand.

I have a new site that offers a concise report on how to get a time graphic ready for litigation. The Trial Roadmap site is about presentation in business litigation or other litigation with complicated facts. Your presentation can be both effective and efficient to prepare.

“Some presenters have seen how powerful a time chart can be, from a painful experience: their opponent shows the opposing story with such clarity that the opponent pulls ahead from the start. A common response for the next case is to try to get an outside graphic house to create this important chart. But this can result in an artistic chart, not a persuasive chart. Outside graphics work is expensive, takes too much time to get the first draft done, and is hard to edit and improve.”

To get your most important graphic ready for opening statement, the report and access to the how-to video is available now. Click over to TrialRoadmap.com.

New search page for Oregon cases

by

This site now offers a fast and free search engine, to find relevant Oregon cases from the last ten years. Included are Oregon cases about civil law, criminal law, negligence, contracts and all the other issues that were appealed. The search results link to the slip opinions of the Oregon Supreme Court and Oregon Court of Appeals.

You can get much of what you need in 10 minutes using this feature. Just put the relevant words into the search box, and click on the Go! button.

If you get more than 50 results, add more words to the search box to narrow down the results. You may see that you need to put in a negative term to eliminate irrelevant results that tend to include your search words.

Then, print the first results page. The first page of results will have the top 10 cases, put at the top by the statistical ranking calculated by the search program.

With the print out in hand, start clicking on the results, top to bottom. If a case is irrelevant, cross it off and go to the second, etc. In a few minutes you will have close to a finished understanding of the relevant law.

This search facility is fast. I suspect it is much faster than the competition. In fairness to the competition, the database is only 10 years of case law. You are invited to run a speed test comparison and let me know what your experiment reveals.

The site works reasonably well if you use an iPhone or a T-Mobile G1 phone, given the limitation of using the small screen on such a smart phone. Making a search from your smart phone may be of use if you need a quick look while you are out of the office, perhaps while waiting in the courthouse and you just spotted another issue.

Your comments are invited, and will help improve the search facility.

– E. J. Simmons

Another unfortunate arbitration agreement

by

In March of 2009, the United States Court of Appeals for the Ninth Circuit upheld the dismissal of a case with prejudice. The plaintiff had agreed to arbitration but could not afford the $220,000 advance arbitration fee. Kam-Ko Bio-Pharm v. Mayne Pharma, No. 07-35449. This left the party with no remedy.

The decision follows settled law. That is, if you are a business (not a consumer or employee) and you sign an arbitration contract, you are bound by the contract terms. But the unfortunate parties who sign ridiculous arbitration contracts do not understand the implications of an agreement to arbitrate.

There are 2 problems with the arbitration process: It is more expensive than Court proceedings, and the decisions are of lower quality, i.e., arbitrary.

I recommend arbitration generally in situations where you are wealthier than the other party and you do not care about the outcome.

Arbitration is expensive

As in the case cited, the parties have to pay for private arbitration.

On the other hand, in the Court setting, access to the system is a benefit of our government, already paid for by our taxes. For a $350 filing fee you get the benefit of an excellent system.

Lower quality because of less experience

Many arbitrators are attorneys who are considering becoming Judges someday. The typical arbitrator has heard a small fraction of the number of cases heard by the typical Judge.

“Early on the learning curve” translates to “increased probability of mistakes”.

To lesson the effect of random factors, the arbitration agreement can require 3 arbitrators. Of course, this triples the arbitrator fees.

Lower quality because of lack of feedback

Arbitrators and Judges are human. As a result, they make mistakes.

If a Judge makes a mistake in a big case, the parties may appeal. But there is no appeal from a wrong arbitration decision. So the arbitrator who makes incorrect decisions may never learn.

Furthermore, there is no public record of incorrect arbitration decisions. Data on the performance of arbitrators in actual proceedings is, to be charitable, incomplete. You can ask around, but this is not as reliable as the written record of appeals.

Those who prefer arbitrations believe that arbitrations are fast and less expensive. They may be faster, but flipping a coin is faster and less expensive yet. So consider this thought experiment: would you be willing for disputes under this contract to be decided by flipping a coin? If so, then sign the arbitration clause, and specify one random arbitrator.

When an arbitration clause is used

Some clients want an arbitration clause. In a few situations, arbitration is better for the client. In such situations I add a requirement to the arbitration clause: the arbitrator selected must be a retired Judge.

If the arbitrator is a retired Judge, then you get an experienced decision maker. This greatly increases the quality of the process and the quality of the decision at no added expense.

If you have an arbitration experience or comment to share, please leave your comment below. And to my arbitrator friends: I am not writing about you.

– E. J. Simmons

Keeping Up with Law Blogs

by

Law related blogs and websites provide a valuable advantage. Electronic advance sheets may be necessary to read the changing caselaw, but the commentary provided by lawyers can improve your assessment of developments in the law.

Once you find a website with pertinent information, you could try to remember to keep checking for updates. But that is an inefficient waste of your time.

If you want an efficient way to keep up with the information published by interesting blogs (like this one), then you will be happy to learn how simple it is to use RSS. The video below (not prepared by this office, but recommended) is under 4 minutes. It explains what you need to know.

If I may recommend: use Google’s Reader to read what you subscribe to. You should have a Google gmail account anyway, as a backup to your office email and for easy transfer and back-up of files. So, when you sign in to Google mail, you might as well look at Google Reader to keep up.

For this website, some like to subscribe to Trial Tactics, others like to get updates from the RSS feed. To try out the RSS feed, just look at the top right of any page on this site, and click on the “subscribe” word or the adjoining icon. On the page that comes up, click on the box to choose Google or Yahoo or Bloglines as your reader, and then click on “Subscribe Now”.