The lawyer handling Emily’s case did not know what to say.

He made his next mistake. “You still have to prove the other side is responsible and anything can go wrong in a trial. That’s how the legal system works. Some cases you win, some you lose, some you must settle.”

Emily’s vengeance was swift. “I went to court because I did not know I had an alternative when the company refused to pay me. If my case was going to settle, why didn’t you tell me? I put my life on hold and wasted energy and money for nothing. I would have been better off to settle a year ago.” Emily walked away.

Emily’s lawyer made his last mistake.

“You can always get a second opinion about the settlement from another lawyer,” he said. “But you will probably get the same advice to settle.”

This did not give Emily any comfort. Instead, disappointed and drained, she blasted him. “I don’t want to pay for another lawyer. You’re fired.”

The secret to a good ending is to have a good beginning.

Lessons to Learn Outside the Courtroom

Emily had struggled to right a wrong.

Her search for justice, took her, like many others, on a journey through the court system. But she had no guide to show her alternative paths to reach her destination.

In Emily’s case, she complained that her lawyer had not given her any alternative but to go to trial. When she got there, instead of fighting, her lawyer told her to make a deal. She did not understand why she had to settle.

In reality, you and your lawyer prepare for trial like it was a war. Your opponent must take your case seriously. When you are attacked, fight fire with more fire.

But why should you resolve your dispute without going inside of a courtroom?

The simple reason: war is hell.

You can win without going into the courtroom with new strategies to:

• end conflict and confrontation

• solve your problems and struggles

• save time and stress

• reduce legal costs and worry

• avoid public court displays

• choose your outcome in private

To learn more about these strategies, read my MrWills.com guide on Estate Mediation.

Find out if all lawyers are obnoxious in my next post.

“I’ll see you in court.”

How terrifying are those words?

At the start of a lawsuit, everything you see is coloured by your fear, anger or desire to crush your opponents.

A lawsuit is a dangerous weapon which you must know how to use, as well as alternative ways to resolve disputes.

Unless you have experience with lawyers or judges, you cannot understand what goes on in a lawsuit.

You probably have misconceptions that need to be dispelled.

Believe me, it’s not like what you see on television when someone sues you.

Stay tuned to my blog to find out what really happens when you go to court.

If You Want to Win

I had arrived to watch a bad ending to an unhappy story. It was Friday morning and I was rushing to court. Emily, a woman in her late fifties, was standing outside the doors to courtroom 204 with her husband. She was speaking to a younger man who appeared to be her lawyer.

Emily was steaming, her jaw was clenched, and her husband was holding her back. “I will take the settlement offer. I have no other choice. I hope to God I never need a lawyer again,” Emily declared.

What had gone wrong? Had she thought she would win her case in court? Her search for justice did not appear to be going as she had expected. Before her lawyer could explain, Emily turned around and walked away in disgust.

As a lawyer, I am used to dealing with people who need to express their anger or fear in stressful situations.

I have always managed this in private for my sake and my clients. These poor souls, however, were on public display and everyone, including the justice system, looked bad.

Why Things Go Wrong

Now I was curious. I speculated about what had gone wrong. Perhaps Emily was unprepared to hear what her lawyer was saying? Her lawyer’s explanations meant nothing to her because she was too upset to hear more bad news.

Emily had probably spent a small fortune in legal fees and had waited more than two years for her day in court. She expected her lawyer to fight and win.

But on the day of her big battle, instead of going for the other side’s jugular, her lawyer was suddenly telling her to take the other side’s offer to settle.

Did her lawyer stop believing in her case? Was he afraid of the judge who bluntly told him to settle her case without trial?

Emily paid her lawyer fully expecting he’d make heads roll. Instead, he had turned chicken. Now she was running across the marble floor, down the corridor, and away from her disappointment. She stopped and turned to confront her lawyer who was pursuing her.

“I ended up with a broken ankle, three surgeries, one steel plate and months of therapy without pay. I did nothing wrong. I am the innocent victim here.” Emily cried. “Why do I have to prove something so obvious in a courtroom? I did nothing wrong. Why am I supposed to settle?”

In my next post, I’ll explain why this happened.

You can learn more about mediation in my free MrWills.com guide, Estate Mediation: Answers to 10 Frequently Asked Questions.

I am a lawyer with thirty years plus of estate experience.

Despite what you may believe, not all lawyers have DNA to know what it takes to win your case in mediation. Lawyers often learn what works by “trial and error” for each client.

In one year alone, I have used my techniques to resolve claims worth more than 45 million dollars. You can have the same success in your case no matter the size of your legal dispute.

The secrets I have discovered I will share with you.

Mediation Can Work for You

Mediation is used globally with all kinds of business, personal and legal problems. It is part of an alternate dispute resolution (ADR) system that is a growing trend to settle disputes.

You may have heard of mediation as an effective and cost sensitive way to solve misunderstandings and conflicts in:

• schoolyard interactions

• juvenile justice systems

• family counselling

• estate disputes

• community conflict resolutions

• insurance cases

• business disputes

• labour and workplace conflicts

• disciplinary, discriminatory or harassment cases

• civil court systems

• institutional settings

• between governments and diplomats

Learn About Your Legal Choices

The rapid growth of mediation as an out-of-court strategy has caught the public, lawyers and mediators in an information gap.

You need to understand everyone’s role in mediation as a modern day business practice to succeed.

Is this your first lawsuit or experience with mediation?

If so, you have two choices.

You can have your lawyer teach you about mediation (I hope you don’t forget anything important at $300-$500 an hour) or, you can read this blog to keep pace with your lawyer.

These mediation secrets will give you more for your legal investment. You will cut your legal fees at least in half if you avoid a trial. You will save thousands more if you can avoid an appeal.

For some of you a lawsuit is the first time you have had to work with a lawyer in a stressful situation.

You need to know what the legal system and your lawyer have in store for you.

But I’ll tell you the scariest thing to know in the next post.

Most lawyers will explain to Alex, Jeremy’s father, why his son must wait in reception. Alex’s lawyer must meet with Alex alone so all information remains confidential.

Alex must be free to ask questions about his intentions and options without anyone else in the room.

The lawyer does this in private so Alex is comfortable raising any issues he has.

The lawyer must fully understand Alex’s wishes in preparing his will by asking questions to learn:

• who is to be trusted as his executor
• what property he has and how it is to be divided
• who he wishes to receive his property
• if there are valid reasons to disinherit anyone

If Alex made a dramatic change from his previous will, his reasons must also be recorded by his lawyer.

Though lawyers need not agree with Alex’s wishes, they have a duty to explain the law. They must assess if Alex’s reasons are legitimate and not imaginary or unduly influenced by someone putting pressure on him.

Making a Will – Avoiding Conflict of Interest

This is another issue that becomes a concern if Jeremy is present during his  father’s interview. No one should be there at the time when either will instructions are given, or when the will is signed.

The lawyer’s duty is to ensure no one who has an interest in the will or who could possibly influence any parent’s decisions is present.

The best way to demonstrate this is to show that the lawyer was instructed in private; no one else was present with a potential conflict of interest.

Since Jeremy may be a beneficiary under Alex’s will, the lawyer is actually protecting the son by asking him not to participate. Otherwise, Jeremy could end up in court trying to prove to a judge he did not influence his father to leave him a larger share of his estate.

What if Alex’s will is later challenged by someone who has a financial interest in his estate? Jeremy may be forced to prove in court that he did not manipulate his father.

That’s another reason for Jeremy to wait in the lawyer’s reception.

“It’s important.” Jeremy said to his boss. “I need to take the afternoon off to take my 83-year-old father to see a lawyer to make his will.”

When you take a person to a lawyer’s office, you need to understand the legal protocol. Even if you are paying for the visit, you may not be the client in the eyes of a lawyer.

Elderly relatives need help getting to legal appointments. You may be involved in a procedure which is a common sight in law offices across the country.

Why You Must Wait in Reception

When a person is making a will, you may have to wait outside the lawyer’s private office. I will explain why using our Jeremy as an example.

“My father asked me to be his executor,” Jeremy said. “I helped him fill out the lawyer’s information forms and drove him to his appointment.

When I arrived at the law office, I was surprised to be told that I had to wait in the lawyer’s reception area. I would not be present when the lawyer interviewed my father. On top of that, I was told I could not ask the lawyer questions.”

Jeremy wrote a letter to his father’s lawyer asking, “Was I right to be offended because I was told I could not be involved? I had, after all, booked the appointment for my father.”

Here’s the father’s lawyer’s reply:

Dear Jeremy,

Lawyers must always protect confidential client information.

It does not matter that you arranged the appointment or paid for the consultation; your father is the lawyer’s client. He is entitled to lawyer-client privilege. He must be free to privately discuss anything with his lawyer, knowing it’s held in strict confidence.

This information cannot be shared without your father’s permission.

Every Estate Planning Lawyer is Different

Each lawyer has a different way of dealing with their legal obligations.

Some may invite you into their office during the initial introduction stage of the consultation with a relative.  They may then ask you to step outside while the lawyer speaks privately to the parent or relative you are accompanying.

Other lawyers may prefer that you not participate in any way during the meeting.

Lawyers are obligated to keep discussions between them and their clients confidential. That means family members are excluded from meetings. In this case, the lawyer’s client is Jeremy’s father. His confidentiality must be protected.

What if Jeremy’ father asked his lawyer to allow his son to participate in the meeting?

Experienced estate lawyers ensure key information is received directly from their clients in private for good reason.

In the next post, I’ll explain what goes on during the client meeting while Jeremy waits in reception.

This is one of the first decisions you get to make as an executor.

Choose wisely – changing lawyers is time-consuming and expensive.

After you do your preliminary research, interview prospective candidates. Look for referrals and search law firm websites.

Note: Some estate problems will call for different legal specialists.

Here are some factors that could affect your choice of lawyers.

You may need different expertise if:

• the will is being contested or does not make sense
• the former spouse wants to sue for support
• the estate includes a business
• the estate may be bankrupt
• the estate includes special assets like real estate or a business

The right lawyer can refer you to specialists in each of these areas.

You want to be confident about the advice you receive. Without the appropriate level of trust, nothing gets done.

If you want to learn more about my experience, watch this short video about my book for estate executors, Executor Kung Fu: Master Any Estate in Three Easy Steps.

Should YOU, as an executor, attempt to probate a will by yourself?

Here’s the tale of Jennifer to teach you. 

In her job with an insurance company, Jennifer filled out forms all day.  She thought it would not be much different filling out court forms.  Besides, she’d save a bundle by probating her brother’s will without a lawyer.

Jennifer’s brother, Douglas, was 46 when he died from complications with his new medications.  Jennifer was named as executor of his estate.  She wanted to probate Doug’s will.

Why Probate is Necessary

Jennifer was told she would need to get an Ontario certificate of appointment of estate trustee (letters probate as it was called) to sell Doug’s investments.  Jennifer would then pay Doug’s bills and his income taxes.  What was left over was to be all hers.

Jennifer spent a few days online reading up on probate.  She went to a number of websites.  Some were from American law firms.  These only confused her by talking about estate, local state, federal and inheritance taxes.

The local Ontario lawyers Jennifer called were not estate experts.  They each gave Jennifer different information.  They could not answer over the phone what she thought were simple questions.

Who Can Give You Estate Legal Advice?

Jennifer decided to try to probate the will herself.  She purchased legal forms. She filled out the application to obtain a certificate of appointment. She was overwhelmed by her grief.

She went to the local estate court to try to get advice.  She was told by the court clerks they were not qualified to give her legal advice.

Jennifer didn’t realize how long it would take to get the probate papers processed. It took almost 6 months to deal with all the necessary corrections. 

Frustrated, Jennifer admitted she had to hire a lawyer to appear in court.   She had been trying to save money.  It was a worthy goal. However, her numerous mistakes caused her lawyer to start the paperwork all over again.

These complications took time to resolve.  More than 3 months later she received the certificate.  This permitted Jennifer to sell Doug’s stocks.  In the meantime, however, the stock market had taken a downward turn. Some of his stocks became worthless in the 9 months since he passed away.

As a result, Jennifer found she had lost money in the stock market.  The final result was that Jennifer had barely enough to pay Doug’s debts.  She had lost her inheritance.

Jennifer realized too late if she had hired a probate lawyer six months earlier her tale would have had a happier ending. 

The Moral of the Story 

1. Good intentions cannot prevent financial losses. 
2. Doing probate without an estate lawyer puts everything at risk.  
3. Using an experienced probate lawyer is an investment, not an expense.

If you need practical advice as an executor, contact me here. You can count on my experience to help you.

Here’s what one attendee at Ed’s CGA-Toronto Chapter seminar on December 2, had to say about last night’s event:

“Thank you very much for putting on this seminar – got a lot of reaction this morning, it was great, as usual! Also, I got your book, which I found very useful… again, thank you!” – R.A.

To read what others have said about Ed as a speaker, click here.

To see how you can have Ed speak at your event, click here.

To read about Ed’s books and other resources, click here.

Are you…?

• an executor who does not know their role and duties?
• an executor who wants to know what to do and when?
• trying to protect yourself from executor headaches?

If you answered “YES” to any of these questions, you’ll love this online workshop. You will find the fastest way to:

• see the Probate Process at a glance … 12 months and more
• avoid 5 Costly Mistakes executors make 
• sidestep the 4 Dangers executors face 
• use the 3-Step Executor Mantra to handle any estate
• understand legal terms and more

I will be you Executor Workshop instructor during this 90-minute interactive session.

When: Wednesday, January 26, 2010, 7:30 p.m. – 9:00 p.m. EST.

Register now and get an advance sign up bonus. Don’t be disappointed.

Learn the roles and duties of being an executor before it’s too late.

Register here - Start-to-Finish Executor Workshop.

It’s not uncommon to lose sleep if you are involved in a probate dispute.

What should you do if you are uncertain how to solve an estate problem?

Get legal advice from an experienced estate lawyer.

Certainty is not possible when you have an estate problem or a lawsuit.
However, you can insist on clarity from your lawyer.

You should expect your lawyer to:

• communicate so you understand 
• outline the steps you must take
• be honest in their assessment
• not make empty promises
• advise you when their opinions change based on new information    

What if you still have doubts? 

Getting a second opinion from an experienced probate lawyer may be just what you need.

You may ask for a second legal opinion without telling your current lawyer.

Subrule 6.03(8) of the lawyers’ Rules of Professional Conduct allows you to seek a second opinion on a matter for which you already have a lawyer.

A lawyer can provide a second opinion based on sufficient information.  Your current lawyer cannot be contacted without your permission.

Have you considered getting a second opinion from a specialist certified in Estates and Trusts Law? You can contact me to arrange an appointment to obtain a second opinion. Call and ask to speak with me over the phone, and I will explain how I can help. Contact my office now.