Life isn’t perfect. And neither is the law. I find that clients can become tremendously frustrated when presented with bad news and imperfect choices. I don’t blame them. I love perfection, and I would certainly vote for having a world full of roses and lollipops. But, sadly, that isn’t the case.
Clients often approach us with problems. “X isn’t following the terms of our contract. What should I do?” “Y is the Personal Representative of my dad’s Will. He’s dilly dallying around, and it’s taking three times as long as it should. What should I do?” “Z is the Trustee of my grandmother’s trust. She never provides any information about the trust. I think the trust requires that I receive a distribution each quarter, but it’s always late. What should I do?”
These are normal questions for clients to pose. It’s a lawyer’s job to answer them – both with a dose of law and an ample helping of common sense. Let me provide a fictitious example of what I mean. Suppose Sally, the Personal Representative of an estate, really is dilly dallying around. And Lucy, who is an estate heir, wants to receive her distribution check sooner rather than later, so she retained counsel to assist her. A lawyer’s job is to help Lucy make smart choices. Let’s say Sally’s delays are so outrageous that, in all likelihood, Lucy’s counsel could successfully win a motion to remove her as Personal Representative. But it’s not that simple and straightforward. Other pertinent questions to be asked include: (1) How much would it cost to prepare and argue a Motion to Remove the Personal Representative? (2) What is the likelihood of success for the motion? (3) What is the amount of Lucy’s distribution? (4) What’s the total value of the estate? (5) What’s the likelihood that Sally would have to personally pay all of the fees and costs associated with bringing the motion for removal? Or that the estate would pay for those costs? (6) If Sally was required to pay, does she have the ability to do so? (7) What is Lucy’s relationship with Sally? Does she want to preserve it in the future?
Lucy’s counsel needs to work through the answers to all of these questions with Lucy in order to make a good recommendation on how to proceed. Say, for example, Lucy’s estate distribution is $10,000. And it would cost Lucy approximately $7,000 in attorneys’ fees and costs to prepare and argue a motion to remove Sally as the Personal Representative, even though the motion has an excellent likelihood of prevailing. But the attorney cannot guarantee that Sally or the estate will be required to personally pay for the fees and costs associated with bringing the motion. Is that worth it? Does Lucy really want to pay all the attorneys’ fees and go through all of that hassle, for a potential return of $3,000? But that doesn’t seem right, does it? Doesn’t it seem like if Sally isn’t doing her job, that the justice system should just fix it?
It would be great if Lucy could simply get her $10,000 estate distribution without having to go through all of this. But life isn’t perfect. It’s an attorney’s job to lay out the choices, and a client’s job to wisely pick her battles and decide when it’s worth it to fight and when it’s worth it to just let it go and move on. That decision shouldn’t be based only on what’s right; it should also be grounded in common sense.