Can He Do That?

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Posted by ad@sandbox | April 8, 2020

Having been in the law business for more than half of my life, I’ve met my share of infuriated individuals who have marched into my office to seek help to address mistreatment and unfairness. They almost invariably end the rant with “can he do that to me?”

I should clarify here that I practice inheritance law. The litigation in which I specialize involves the estates of deceased persons. From time to time, I represent people who were shocked to learn that they had not inherited anything from Mom, Grandad, or Uncle Harry. It’s my job to delve into the mental capacity and the intentions of those who aren’t around any longer to understand what they meant to do with their wills. My clients are the jilted, the disappointed, the bewildered, and the furious.

Most people don’t have much exposure to litigation of this sort. And why would they, really? Television programs, the major source of legal “knowledge” for society at large, stick with the really dramatic stuff, like murder and other exciting or camera-friendly crimes. Real-life estate litigation is no spectator sport, consisting as it does of endless hours of research and writing, followed by several days of me droning on to a judge about legal presumptions and precedents. On TV, in 44 minutes, a crime happens, the police catch the perp, and he is taken away in shame and ignominy. There’s usually a cute cop, a genius dog, or an exotic location with palm trees to spice things up. Clients would love dynamic, immediate results of this sort, if only they were real.

When a client asks me “can he do that?” I have to make him or her realize that they have asked the wrong question. This is an essential first step. Re-framing the question can shape a loose mass of assumptions, fears, hopes, and emotions into an actionable plan.

In fact, “can he do that?” isn’t even just one question; it is a bundle of questions together, all interdependent on each other. I have to elicit the facts that I deem relevant (which are usually different from the ones the client thinks are relevant; I don’t actually need to know what Aunt Gloria said about your Mom at dinner four Christmases ago, even if it was rude). I have to examine the will itself, as well as previous wills, the family relationships, the estate assets, and much more.

Framing the question properly also elicits the right sort of answer. I wouldn’t do clients any favours if I gave over-simplified answers to match their over-simplified questions. They may want the 44-minute resolution, but the legal system simply doesn’t work that way. If a client asks me “can he do that?” and I answer “no, he can’t do that”, he will hear things I am not saying. I say that my client has the right to challenge the will if certain circumstances exist and can be proven. He hears that I am predicting victory.

The right to bring a challenge is not the same as the right to win the challenge, but that can’t be disclosed if my answer is too simple.

I don’t make these situations complicated on purpose; applying the law to a real-life fact scenario is by its very nature already complex.

Lest I sound harsh on my clients, let me reassure you that I have a great deal of empathy with everyone who walks through my office door. They are out of their element and looking for help. Additionally, a great many of my clients are grieving the recent loss of a family member, which tends to knock people sideways. I know they don’t know the right questions to ask. They just know how they feel. They have a
gut feeling that something is wrong. It’s up to me to sort that out. I offer them a cup of tea and a comfortable chair and I listen carefully, but I keep them on track.

I suppose they feel much like I did when I went to the hospital for an MRI scan. I sort of knew why this particular test was the right one, and I kind of understood the science of how the scan worked, but I was depending heavily on the expertise and compassion of the nurses, particularly since I am horribly claustrophobic. I was terrified of going through with the test but felt compelled to have it done. I get it.

I feel a sort of protectiveness about my clients. They may not realize this when I insist their simple “can he do that?” query be shattered into a dozen sharper, smaller slivers, but in the end, I give them the answers they need to the questions they should have asked.

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