Michael Ford (post until Oct. 31/19)
Estates & Wills & Trusts

When estate litigation gets tense, lawyer must keep cool

When an estate litigation scenario becomes heated or tense, it is incumbent upon the lawyer to remain calm and level-headed, says Toronto trust and estate litigator Felice Kirsh.

“The vast majority of cases are highly emotional because you’re dealing with family members. Family relationships are complex ­– they’ve lasted for many, many years,” says Kirsh, partner with Schnurr Kirsh Schnurr Oelbaum Tator LLP. “There might be built-up tensions, grudges or jealousies that manifest themselves in this last battle over someone’s estate.”

Clients often voice frustration over the actions of their family members, Kirsh says, noting it is not necessarily the lawyer’s job to agree with such statements.

“The lawyer has to stay in control of the situation,” she says.

“It's very easy to get the clients riled up and get them even more emotional. Your job is to listen to the evidence and apply the relevant law and give the client an objective view of their case. The lawyer would be doing a disservice to the client by becoming emotionally involved. That doesn’t mean you’re not empathetic with clients, but you can’t become the client. You don’t get mad at the brother or parent … you have to maintain objectivity.”

Otherwise, says Kirsh, the client suffers.

“You’re going to be giving your client bad advice,” she says. Clients almost always think they have a viable case, she adds, noting it’s much easier to jump on board and say, “‘You have a great case, let’s go.’ But at the end of the day, if we get a bad result in mediation or trial, I’m going to be on the hook because I said you had a great case.”

Kirsh says it’s no different than going to a doctor’s office where you want an appropriate diagnosis.

"You have to give your opinion and give the best advice you can. If they have a good case, that’s great. If they have a mediocre or bad case, it’s your job to do the best you can but not inflate clients' expectations.”

Every estate lawyer has their own methods for dealing with tense situations, says Kirsh.

“It takes years, and every client is different. Every client needs a bit of a different approach,” she says. “Some clients need a lot more hand-holding and a sympathetic shoulder. They want to talk to you more and go over things repeatedly. Other clients are more business-like. They listen to your advice and make logical decisions based on that advice.”

In her practice, Kirsh says she’s often faced with clients who want the affidavit to be written in their own words.

“I always say, ‘It’s your affidavit, but it’s my writing. I’m going to write it. I’m not going to put in language that’s offensive and not necessary. That will inflame the other side,’” she says. “It’s not about taking all the emotion out of it. It’s a document that is being presented to court ­– a client may want to add phrases and words that should not be in a court document.”

Over the years, Kirsh says part of her job has been to ensure civility among parties – sometimes even ensuring they don’t share an elevator after leaving a mediation or pass by each other in the lobby.

“The nature of litigation is that someone feels wronged or they feel like something wasn’t fair. They’re already upset, so when you add that to the fact that it’s their family member – someone they’ve had a relationship with all these years, good, bad, or otherwise ­– emotion just comes to the forefront.”

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