Conclusions and Impressions
1. Upping Your Game
The impact of these new rules can hardly be overstated. Those who dabble in litigation will need to think seriously about whether they want to put in the effort to stay in the game. Relying on your paralegal to catch all this? Good luck.
2. Types of probate cases that will be impacted
Some types of probate proceedings will be unaffected by these changes. These would presumably include things like:
- Uncontested petitions to formally open or close a decedent’s estate.
- Uncontested petitions to allow an accounting.
- Uncontested petitions to appoint a guardian or conservator.
- Uncontested petitions for protective orders, including protective orders related to Medicaid planning. (It will be interesting to see if the attorney general’s office demands initial disclosures, and what local courts make of those if they are demanded.)
On the other hand, we can anticipate that these new rules will routinely impact the following types of probate proceedings:
- Contested petitions to appoint or modify a guardianship or conservatorship.
- Fiduciary litigation, including petitions to remove and/or surcharge a Trustee or Personal Representative.
- Contests regarding the validity of a Will or Trust (codicil or amendment).
- Petitions to recover assets (in which context we will have to remind ourselves that if we include a count of conversion or other traditional circuit court action, doing so will trigger the required initial disclosure).
3. Multiple Parties
Unlike traditional civil litigation, probate cases often involve many parties, each with their own counsel. Some of the discovery rule limits previously discussed will play out differently in these cases. For instance, a seven hour deposition cap may be problematic where four lawyers are asking questions for four different parties. I suspect in those cases, the courts will either routinely grant extensions or the multiple litigants will schedule multiple depositions of the same deponent.
4. The Court Reporter Employment Act of 2020
The obvious solution to the limits on interrogatories is to take more depositions. I’m ok with that. I’ve always believed that allowing people to think about their response and have their attorney assist them in framing the response is much less useful than putting the question to them, and probing their response with follow up questions. But depositions are more expensive.
5. Cost and Prejudice
These new rules will require more cost to get a case started, particularly the preparation of the required initial disclosure. Our firm, for instance, which has historically attempted to handle both high end will and trust contests along with cases involving the protection of vulnerable adults, will find it harder to take on the low-recovery exploitation cases. In low dollar exploitation cases, we might anticipate being challenged by motions seeking to contain our discovery efforts based on the limited amount of assets at issue. In other words, I see these rules as harmful to the types of people we often represent, particularly cases involving the exploitation of vulnerable adults of modest means.
6. Fishing Expeditions
What is and isn’t a “fishing expedition” is often subjective. We initiate litigation at times in which the primary basis for the action is the (what we think is reasonable) belief of our client that there was no way this older person would have done what they are claimed to have done but for the overreaching of a close friend or family member, often combined with that person’s declining capacity. These are often difficult case to litigate, and the evidence that ultimately carries the day, or at least gets us through summary disposition and to a settlement, is only available after extensive discovery is completed. Under this new regime, I worry that we will we be unable to put provide sufficient detail in an initial disclosure to survive that long.
7. Getting Homered
These changes give the trial courts greater power to conclude that discovery requests are unjustified, too expensive, or intrusive. Call me cynical, but that kind of discretion can be used to favor certain firms and lawyers over others.
8. More Harm than Good
While I am glad to have new tools to beat back the civil litigators who play in probate court with their abusive discovery techniques, in the end, for reasons stated above, I fear these changes will ultimately do more harm than good to the clients we commonly represent.