For 2022 I am Adding Simpler Estate Planning to My Law Practice

This blog post is to inform my readers that, beginning this year 2022, I am reducing substantially my trust and estate litigation practice. I am returning to a greater concentration on trust and estate planning, including flat-fee options for less costly, more-basic estate plans for certain clients who do not need the most complex planning available, and its inevitable higher fees. I will still handle complex planning, particularly for trusts, but will recommend simpler estate plans when appropriate.

Below are some observations that touch on my decision to return more fully to the above planning:

One. I admit I enjoy litigation, almost too much. [Ask my wife.] I love the aggressive warfare, complexity, strategy, the uncertainty, and the Sun Tzu “The Art of War” psychological aspects of the challenge. I thoroughly enjoy fighting opposing lawyers. But, after the past 15-years of intense litigation, I would like to see what life is like (both at the office and at home) without the effects on me of this constant warfare (and how the absence of this persistent aggression might play into a novel, interesting chapter both in my personal and professional life). I realize also I am simply not capable of handling litigation without my enjoyment of a heavy expenditure of aggression.

Two. Now that I have a few years (5 years) experience as a smaller-firm lawyer, it finally dawned on me that my previous 20+ years in the large law firm environment, at least for me, fueled a kind of intellectual pride that prevented me from being open to the notion of recommending simpler planning for clients, at least as an option. In a large firm setting, lawyers are understandably very proud of the elevated status and scope of their legal knowledge, and a large firm gives them an excellent platform in which to implement the most complex planning available, with the concomitant collection of larger fees. Simplicity does not invite accolades within a large law firm, and can be perceived as signalling laziness or lack of intellectual sophistication, etc. In other words, for many years for my estate planning work I had a great deal of pride in being able to demonstrate to my clients and my law partners the depth and complexity of my legal knowledge. This complex approach worked very well for the right kind of clients; but, not all clients need this vast level of unbridled complexity.

Three. The most important observation, however, is that it is the depth and complexity of a lawyer’s knowledge that can, or should, enable the lawyer to recommend simpler options, if simpler options are suitable for a particular client. A simpler option, in certain instances, may well be in the best interest of the client, but not in the best pecuniary interest of the lawyer. I also have said for years that an estate plan in which I am able to throw in every conceivable, complex feature and option is, in my experience, easier work than having to exercise judgment for designing and implementing a simpler plan. A simpler plan, ideally, requires that a lawyer be very well versed with the most complex planning so as to exercise good judgment as to when, and how, simpler options are suitable for a client.

Four. I will continue to keep up with all the latest estate and trust developments, including my yearly CLE attendance at the highly-informative University of Miami Law School “Heckerling Institute on Estate Planning”, so as to stay fully in the loop with the latest, complex planning options.

Platitudes are Most Often Useless (and Ineffective); and Dr. Martin Luther King Jr.’s Recently-Discovered December 7, 1964 Speech

I often tell clients I did not become a lawyer to “help” people.  In my view, “help” is nothing more than a conclusory term with no common meaning sufficient to guide a client or his or her lawyer through difficult disputes (and related litigation).  It is also simply  a relative word that I assume each lawyer in a dispute can easily voice as to how he or she is “helping”  their own client. Using the word “help” more accurately means a lawyer is “fighting” for his or her client’s position.

As to these kinds of legal fights, the passion and joy I get from lawyering is helping level the playing field when another party unreasonably overreaches.  The overreaching can occur for a myriad of reasons, including, as examples in many cases, an elevated sense of entitlement, an assumed superior right, or closed-minded ignorance.  As I continually assess the progress of my litigation cases, I not only have to be well-versed on the facts and law of the case, but also attuned to assessing motivations of an opposing party; again, especially when I conclude entitled overreaching is at play.

Now, what do platitudes have to do with the above paragraph, such as “be friendly”, “be a team player”, “be kind”, “be considerate of others”, “turn the other cheek”, “pull yourself up by your own bootstraps”, “god helps he who helps himself”, etc.?  My sense is these platitudes originated from those already sitting in the upper winning or dominant position.  Platitudes are merely armchair, conclusory statements that assert nothing more than their own conclusion or result.  For example, merely repeating a platitude fails to consider why someone might not be able to “pull” himself up from his own bootstraps, or why a person might need to know what to do after once turning the cheek (e.g., what does he or she do next?). Platitudes in most cases are simply diversionary icons that do nothing more than suggest their own non-substantive meaning.

I could write pages about this platitude topic in its many everyday forms and effect. But, I will not bore the reader.  However, last night I stumbled across an extremely compelling example of a speech that effectively goes well beyond simple, conclusory platitudes.  This is a December 7, 1964 speech in London by Dr. Martin Luther King Jr. that was discovered only recently by Pacifica Radio Archives.  Dr. King gave this speech before travelling shortly thereafter to Oslo, Norway to receive his Nobel Peace Prize.   Click here for his speech.

I urge readers to listen to this speech in its entirety, and keep in mind one can still substitute — even today — in the context of Dr. King’s powerful speech all marginalized groups (who are persistently subject to entitlement-minded overreaching by others). This speech, in my opinion, is an extremely effective argument against the above simple use of platitudes.  It also speaks to leveling the playing field, right up my alley.

At a minimum, listen to this speech beginning at 37:20 where Dr. King’s commentary about non-violence illustrates superbly the difference between someone merely voicing  “non-violence” as a feel-good platitude, compared to Dr. King’s powerful and substantive expression of how one actually can practice non-violence.

 

(anti-) SLAPP Back; Don’t Turn the Other Cheek

This anti-SLAPP blog post should be an item you keep on your litigation check-list in the event you are a defendant in a lawsuit. If anti-SLAPP applies, it can significantly short-circuit and give you an early-end to the litigation in your favor, stop costly discovery, and put you in a strong position to obtain attorneys’ fees and expenses of litigation from the person who sued you. “SLAPP” stands for “strategic litigation against public policy.”  A number of states, including Georgia, have anti-SLAPP laws that provide the above relief to defendants in certain situations.

Two days ago, June 24, 2019, the Georgia Supreme Court issued an opinion for the first time that deals with Georgia’s 2016 broad revision of its anti-SLAPP statutes under O.C.G.A. Section 9-11-11.1. The case is Wilkes & McHugh, et al. v. LTC Consulting, L.P. et al., No. S19A0146 (Ga. June 24, 2019). Click here for this opinion, which also has an excellent discussion by the Georgia Supreme Court setting forth the history and operation of Georgia’s anti-SLAPP statutes (and Georgia cases prior to the 2016 change in these statutes).

This is part one of three blog posts I will provide on this anti-SLAPP topic.

A 15-second short summary of anti-SLAPP is that if you are in litigation that enables you to file a defensive anti-SLAPP motion, the person suing you (the plaintiff) has to convince the court in response to your anti-SLAPP motion that the plaintiff’s lawsuit claims against you (his or her Complaint) are both (i) legally sufficient and (ii) supported by a sufficient prima facie showing of facts to sustain a favorable judgment in favor of the plaintiff.

Now, for a slightly longer introductory summary. Another substantial benefit of you filing an anti-SLAPP motion is that all discovery and pending hearings or motions in your lawsuit are stopped (“stayed” in lawyer jargon).  And, the court generally is required to conduct a hearing on your anti-SLAPP motion within 30 days after you file it.

The above June 24 Georgia Supreme Court opinion, in its opening paragraph, states the 2016 revision of the Georgia anti-SLAPP statutes substantially mirrors California’s anti-SLAPP statutes. Wilkes & McHugh at 1.  In expressly acknowledging that California has developed a considerable body of case law interpreting its anti-SLAPP statutes, the Georgia Supreme Court states that it may look to California case law for interpreting the Georgia anti-SLAPP statutes.  Id. at 15.  [I have experience with the California anti-SLAPP statutes and their litigation application.]

For this first blog post on Georgia’s anti-SLAPP statutes, I purposely do not get into the weeds on the details as to what these laws are and how they apply procedurally in litigation. However, a threshold point in any potential anti-SLAPP situation is to determine whether you, as a defendant, can take advantage of these favorable provisions. The general rule, and I state this broadly, is that the lawsuit you are facing must involve the plaintiff’s claims against you that arise from facts or actions stemming from your constitutional right of “free speech” or “petition”.  I will address these two elements in my next blog post.

My other key take-away points here are:

• The above two free-speech / petition categories as to when you might be able to get the benefit of anti-SLAPP are much broader than one might initially think. Existing California case law is replete with numerous issues that fall within these favorable anti-SLAPP free speech and petition requirements; and
• The California courts have effectively seen-through efforts by plaintiffs who, with artful drafting of a plaintiff’s Complaint, attempt to evade the reach of anti-SLAPP provisions by including mixed, unprotected non-SLAPP assertions in their Complaint to try and derail an anti-SLAPP challenge. See, for example, Baral v. Schnitt, 1 Cal. 5^th 376 (2016).  I assume this drafting scrutiny will be an important focus the Georgia Supreme Court will follow as more of these anti-SLAPP cases make their way through the Georgia courts.

50/50 Jury Risk. Preventing Litigation is Crucial.

I just finished a complex fraudulent-transfer litigation case that focused a great deal of contentious light on some earlier estate tax planning. The tax planning involved an estate-freeze/ sale of an LLC interest to an (income-tax  defective) Nevada trust.  I purposely make no comment here about this particular case, other than it prompts me again to remind readers of the crucial importance of preventive planning to help avoid litigation.

The competitive challenge of litigation and controversy work fuels my enjoyment of lawyering. But, for all my clients I harp constantly on preventive planning to avoid getting into litigation.  Litigation is nothing short of time-consuming war, with the odds of winning sometimes a crap shoot if the matter goes to a jury.

Individuals, who scoff at this preventive advice, with comments such as “I don’t care, let them sue me. They don’t have a case”.  Or, “We will just file a lawsuit and see what happens”, likely set themselves up for costly failure.

A wonderful late friend of mine, who was a federal district court magistrate judge, told me many years ago:  “During the 27 years I was on the bench, I never saw a case someone couldn’t lose.”

Below is my general observation about juries for this blog post.

At the end of a trial, the jury deliberates and makes conclusions about what the jury believes are the accurate, credible facts the jurors observed during the trial.  Also at the end of the trial the judge reads the applicable law to the jury, on the notion the jury during its deliberation will apply the jury’s perception of the facts to the law.  This is often called “the law of the case”.

The jury then renders its verdict essentially by the jury deciding during the jury closed-door deliberations how it will combine the facts with the law of the case.

The judge’s reading of the law to the jurors is referred to as “jury instructions”.  Prior to the judge reading these instructions to the jury, the opposing lawyers try and convince the judge to use each lawyer’s own respective written blurb or summary for each point of the relevant law.  This is called a “jury charge conference” or “jury instruction conference”.   The conference takes place among the judge and opposing lawyers without the jury being present.

Now, here is an important jury point to ponder in the context of this blog post.

If you believe you have the weaker merits in a case (for example, less than 50%), you generally will try and keep your litigation case alive with a persistent move toward getting your case in front of the jury.

This weaker-merit posture involves you primarily crafting your lawsuit allegations and discovery, etc., in a way where the issues cannot be concluded with a pre-trial motion for summary judgment or motion to dismiss, etc.

Pre-trial motions are used extensively by litigation parties to try and convince the judge there are no materially disputed facts that warrant having the case continue on to a jury.  Essentially, the pre-trial effort is an attempt to end the case before the jury factor arises.

This pre-trial motion approach, in general terms, means the judge may possibly decide and conclude the case without the case having to go before a jury.  This also means, if the circumstances support a pre-trial conclusion, the judge addresses (not the jury) what and how the facts apply to the law.

Again, the weaker party tries to stall and derail this pre-trial effort.

On the other hand, if you believe you have the stronger merits in a case (more than 50%), you generally will try your best to get the case concluded with the pre-trial approach without the case going to a jury.   By using the above pre-trial motions, such as motions for summary judgment, motions to dismiss, etc., or a combination of pre-trial motions.

Now, why do I refer to 50/50 juries?

My view is that most jury trials even the parties’ odds to 50/50.   A jury, for example, may simply not like one of the parties.  Or, the law that applies to the case (the jury instructions) might involve such a complex array of laws that the jury simply makes ad hoc conclusions in reaching their verdict without the ability to apply the law accurately.

So, if you believe you have 90% of the merits in a case, your odds before a jury drop from 90% to 50%.  If you believe you have a 20% case, your odds essentially increase to 50%.

Preventive planning.  Crucial.

This Book Passage Stopped Me in My Tracks.

The post continues my repeated theme:  That is, we all need to prioritize and value our finite time as an opportunity to enjoy life.  We ideally should expend as little time as possible on time-consuming (and financially costly) disputes, problems, difficulties.  Or, essentially we should prevent death by a thousand paper cuts.

My passion in lawyering is helping clients smooth the sharp edges and corners of life (with preventive planning, and if necessary, aggressive, strategic challenges to resolve disputes, litigation, etc.).  All this lawyering directed at giving my clients simply more time to enjoy life.

As an aside, the following excerpt from the novel Middlemarch, by George Eliot, stopped me in my tracks as one of the most succinct and powerful observations I have read in quite some time on this notion of our finite time and enjoyment of life:

 “…it is in these acts called trivialities that the seeds of joy are forever wasted until men and women look round with haggard faces at the devastation their own waste has made and say the earth bears no harvest of sweetness—calling their denial knowledge.”

from Middlemarch, George Eliot

Click here for my earlier post on how strongly I am impressed with Middlemarch.