Episode 1–Stand, Fight, Win! LIVE: Real Lawyers, Real Answers – The Debut

Okay I think we get it gone I'll move that out of the way hello this is Keith Davidson and this is Stuart Albertson and we're from Albertson and Davidson and this is our first live stream on YouTube so we're trying something new we do a lot of videos we try to do a lot of educational outreach to the public to try and teach you as much as we can on trusts and we'll issues and we thought it'd be kind of nice to have some sort of forum where people can come and actually ask us questions a live Q&A and so our plan is to do this once weekly every Friday and hopefully if you have trusts and we'll questions we have trust and well answers and we can try and answer your questions as best we can so that's kind of the purpose of why we're here today and while we get started and while we wait for some people that come into the into the live stream we have a few issues that we'd like to talk about and we can start there and then we can kind of see where it goes yeah so obviously we do trusts and estate litigation that's the primary thing that we do in this firm we are a litigation firm so if you have any trust and estate questions that have that I wanted to talk about briefly with Keith is a new case that came out a while back dealing with expert witnesses in California and this is an issue that we see quite a bit in our cases where we need to hire an expert psychiatrist a forensic psychiatrist to go back and look at the medical records and make a determination to see if a decedent was suffering with Alzheimer's or dementia and if so were they susceptible to the exercise of undue influence because of that weakened state of mind and the what what some lawyers were doing is they were hiring experts to come into court and just make speculative statements for example in the trust in a state world an expert would come in and say well with dementia if you're taking the right medication it'll actually stop the progression of the disease and it may even reverse the disease well that's just mere speculation because there's no studies that show that that happens and so then what experts would do is they would go out and try to find some evidence to support a speculative statement and so now they're saying my statements not speculative because I have found research and data out there it may be the only piece of research and data out there that shows that dementia can be reversed the disease can be reversed but the cognitive deficits can be reversed and everyone in the mainstream would tell you that is not the case and so what the court came down and said is not only do we not want experts to give speculative opinions we don't want them to base those opinions on speculative data and so when we're hiring experts in fact what we cross-examine experts that are hired by the other side what we want to do is we first of all want to ferret out every single opinion that they have in the case first many times when you're taking these expert depos you'll ask them what opinions they formed and they'll start by kind of telling you one of the opinions and then they'll start giving you thrown a bunch of data at you and you got to stop them from doing that you got to say look I'm just looking for the universe of opinions that you have formed in this case now that you've been hired as an expert you've reviewed this case tell me what opinions you formed in this matter and and if they've formed three or four opinions yet you you make them exhaust every opinion they formed then you can go back to the first opinion and say okay now your first opinion was X tell me what data you used tell me what what you used to formulate that opinion what basis did you have for that opinion and so the court I think is right here and there's no change by this finding the evidence code has always said you can't use speculative information as an expert witness for Europe to base your opinion on and you certainly can't have a speculative opinion that has no basis in medicine and so this is a good good I'm glad this case came out again I'm glad that the Supreme Court of California looked at this and said hey we're just gonna make sure we tell the the courts one more time and the lawyers that appear in those courts you got to have good experts testifying on these important issues well it's kind of interesting because when you said like just now when you said that there's a certain type of medicine that would reverse the effects of dementia well if a doctor said that someone who I thought was knew what they were doing in this area how would I know any different I mean I'm not a doctor I certainly don't read medical reports or journals or whatever doctor's read to get up to speed on this stuff and so you're saying wow there's a chance that that the disease could be reversed if you take a certain kind of medicine okay I guess I'll believe you then because what am I to do as a layperson what am I to do you know even as an attorney that litigates in this area you and I aren't experts on dementia by any stretch of the imagination we work with a lot of experts on dementia and we expect them to give us their honest opinions but we don't really we don't have a way to fight I guess bad information and so if somebody's taking a nugget of truth and they're trying to expand it beyond what is reasonable how do you how do you even know that they're doing that I guess would you get another expert to come in and say that's not the standard the industry standard or how do you fight that that's right so you get your expert to come in and educate you on the case because again you're saying you're look I'm a smart trust litigator I deal with this stuff I'm confused by it so you get your own expert and then what you do is you bring a motion generally by way of what we call emotion lemonade before the trial starts and you essentially have already taken that opposing experts testimony or his deposition and you've you've got that in that deposition you've got all the opinions and all the basis basis for those opinions and if those are not grounded in science then you would bring a motion lemonade ask to ask the judge based upon this line of cases that the California Supreme Court just recently looked at and said look this is speculation it the the underlying data is speculative the testimonies speculative don't confuse a jury or don't let the judge and a bench trial be confused by this because judges well they're smart people - they can't combat an expert that's been eyesight psychiatrist for 30 years and and studying in the field so if you think about what this really is is the evidence code is the courts ability to be the gatekeeper of information that comes in to a trial and many people they'll call us up on the phone and say oh I've got the best evidence you ever seen in this case okay well my response is do you have any admissible evidence because courts aren't gonna allow every fact every document every witness into a case there's rules you have to follow and in this case the expert has to use proper data data that's accepted by the scientific community and then they have to make opinions that are not speculative they are they're based in some scholarly underlying articles some type of research that people can look at so yes that's bona fide science that's good data we can rely on that yeah it just seems so nefarious I mean it seems like it'd be so easy for an expert to come in pull the wool over everybody's eyes because who's there to say otherwise right I mean I you know I can't say otherwise I guess my expert would have to say otherwise and not only that but what about I mean you get these medical records you'll go back and you'll get medical records from whatever time period you need them and you'll look through them and usually we'll look through them before we hand it over to the experts just to see what we can find and just one second go ahead and take a look at that and see what's going on yeah see the yellow up there I think needs to be green where it says live oh yeah budgets are it might be our Wi-Fi back here how does it Stewart's thinking maybe our stream health isn't so good up top there I need a green yeah I think it's probably it might be delayed I wonder if maybe you could get somebody's laptop and have them take a look at it what happens when you do the first live broadcast is you have to work out the bugs but anyway I think we're recording so let's let's finish the thought and we'll kind of see where we end up okay so you get all these medical records from way back when and whatever the time period is and you look at them and we tend to look at them before everybody else looks at it right and then you see that there are mentions of things like dementia in there but they're just barely mentioned it's kind of like you know prior diagnosis of dementia or prior signs of dementia or whatever and there's nothing real meaty in some of these medical records sometimes there is but a lot of times there isn't so there hasn't been a full neurological workup on the patient or there hasn't been even a mini mental exam done on the patient yet there's there's notations of dementia in the record right I mean what what is an expert do with that how do you deal with that I mean it doesn't seem like it's very strong evidence for an expert to go on I think that you have to look at the diagnosis when it occurred and how long this person underwent this condition I think one of the problems we see with dementia is it's mentioned in the medical records once by the treating doctor and then the treating doctor continues to see that patient after that but doesn't update that diagnosis because they figure well I've already made that diagnosis and so we don't see a lot more in the medical records so in that case we'd want to take that treating physicians deposition and talk to them about the care that they gave their client and ask them when you first diagnosed this back in you know 2015 did it get any better after 2015 and of course they all testify no it didn't and get their family physicians they they may not be neurologists but they're certainly entitled to give their opinion on their client and what their car their patient and what their patient was going through the other thing we can do is we can then turn these medical records with that deaf position testimony from the treating doctor over to our forensic psychiatrist or forensic neurologists and they will then go through that and recreate with their expertise kind of what this person was doing what they were feeling what the progression of the disease is in most people and that's what we're looking for is the opinion really is does this person have a weakness of mine and dementia is not a light diagnosis I mean there's so dementia it's a bad diagnosis and the question is is that person now susceptible to the undue the exercise of undue influence and I would say if somebody's susceptible just by age alone if they're in their 80s right and they don't have dementia they're susceptible they certainly are if they're in their 80s and they have dementia yeah I mean there's other indicators besides dementia we always focus on dementia yet for undue influence age illness circumstances major life events there's a lot of different ways that people can be susceptible done to influence besides just one way but when then the other issue that you come across from time to time is you get the medical records back everybody is sure that this person had some sort of dementia or something's wrong and there's not a word of dementia in the medical records you can't find it anywhere because it was never documented or they didn't go the doctors that often or something so what do you what are you doing that instance so again that's where you're gonna have to spend the time going through the totality of the circumstances you're gonna have to get as many witnesses as possible that were around this person towards the end of their life their family members their caregivers make a determination when when an older person's short term memory goes because the the person the older person or and not always older but the person suffering from dementia they'll tell the same story over and over again or they won't remember something that somebody just told them a few minutes ago or they'll can try to take their medication three or four times the same day when they're only supposed to take it once a day so those things do happen and people can testify to those events and family members and friends that are closest to the decedent before they died they those are very good people for that testimony yeah yeah I mean that's where I she's had to build the case from what you have it's unfortunate though because that happens more often than then it should and when somebody is suffering from dementia it'd be nice to be able to have that documented but there's times when it's not and I guess that's when you really run into these problems of people coming in and saying well I've got a great case you'll never see a case like this and then you get the medical records and it's just so deflating to see nothing in the medical records right when it's supposed to be a great case and it doesn't mean it's not a great case still or it's not at least a good case still but it's not as good as if you had some good stuff in the medical records that you could really tie into that's right and keep in mind too just because the word dementia is not in the medical records which again it can be it's rare when that happens when somebody truly is suffering from from it but you can then go through the medical records and you'll find other things that that say things like the person forgets one moment to the next there's some of these doctors are saying they're not oriented to time and place so they don't exactly say dementia but they do show that there's some confusion the patient couldn't find it their way to the office today and it's an office they've been to on multiple occasions the patient doesn't know who the president United Stated somebody that clearly is suffering from long-term exposure to dementia and they do quite well on a mini-mental State Exam because they're well educated and you do see this and the good doctors and you'll see this in the medical records the good doctors note that say please caution do not put too much weight into the mini-mental State Exam and how well they did because I'm with this patient and they have significant short-term memory impairment they forget one moment to the next I think they did very well on the mini-mental State Exam because they're highly educated or they were you know somebody that did some high functioning in life a pilot somebody that an engineer somebody that did something very somebody that did a lot of test taking maybe lawyers would be a good example of this or a physician somebody that had to pass a lot of exams in their lifetime might do very well on a mini-mental State Exam even though they're suffering from dementia and Alzheimer's yeah and that's the tricky thing about this whole area of law if you think about it is just how hard it is to get you hands around whether or not somebody had capacity or was susceptible to undue influence and ultimately it's the judge that's gonna make the decision anyway or the jury it's not a medical expert that's gonna make this decision that's gonna be the judge or jury and normally it's the judge and that person is gonna have to decide capacity yes or no and most of the time you know I remember I was I wrote that chapter in this psychiatry textbook and it was two doctors and and a lawyer and we were writing the lawyer part and I remember the language was being updated as a major update and the language that was in there prior from a prior lawyer said that it was easier to improve capacity than undue influence and I remember that shock makes I'm like no it's not I considered the reverse right it seems like it's easier to prove undue influence and capacity because with capacity you're relying almost solely on the medical evidence plus some of the surrounding circumstances and the expert and you know what you're going to get on any case where you have an expert you're gonna get a competing expert and it's going to be expert versus expert and ultimately the judge has to decide and in something like seventy percent of the cases they have statistics on this but something like seventy percent of the cases the courts going to validate the will or trust they're not going to overturn it based on capacity right unless they really feel compelled to do so so that means that even a good case has maybe a 30% chance of success and then it could go up from there depending on the facts and circumstances whereas with undue influence there's so much focus on the wrongdoer because you're focusing on what they did and the actions they took and the capacity part of it is really kind of minimal which is just is this person susceptible and once you check off yes they're susceptible then you really don't look at the person who did the trustor will anymore you go almost exclusively to the bad actor and the reason why that's an advantage is now you're putting the bad acts essentially on trial right right the bad acts that this bad person did that's what the trial is about right and you really can't have a competing expert on that the fact what the facts are I mean you can have competing fact witnesses but the facts ultimately are gonna speak for themselves one way or another and it's not gonna be battle of the experts right would you what do you think yeah I think so and and probably we've talked to some jurors after a jury trial and we've talked to judges as we do mediations and they generally say that if there's two experts and as long as they're both reasonable experts they're just gonna offset each other and then it's gonna come down to the lay witnesses and what people testify to you and keep in mind that just like jurors make decisions from their gut from their gut of fairness from their life experience as they look at a case and they determine how something probably went I think judges are the very same right they may be a little bit more jaded than your average juror just because they've done so many trials but I guess they would say experienced but they make a decision from their gut and if you can show them that they've done bad information if you can show them that that the document is likely the product of undue influence you're gonna probably win that case because the judge is then going to back themselves in to what the law of undue influence is whether it's by direct on influence direct evidence of undue influence or if it's done by the burden shift where we're able to shift the burden of proof to the bad actor and they have to prove that they didn't unduly influence anybody so this brings up a really interesting point which is the story matters right so in order to get a judge a jury to rule in your favor on on these cases and probably just about any legal case but certainly on these cases you have to build the story as to a compelling reason why the trustor whale should be overturned and so some stories play out better than others and so for example if you have a neighbor who came in a week before the person died and they all of a sudden there's a new will neighbor gets everything and the kids get nothing and in all prior estate plans the kids were taking everything equally I don't really have to tell you much more about that case for that to sound unfair right that's right whereas if you have a case that's a little bit harder to decide you have two kids and one of them's had financial problems and it's been always mean to mom and dad and two years before somebody died the state plans changed disinheriting that child leaving it all to the other child well that doesn't sound quite as unfair right so if fairness is not the legal standard I mean and an undue influence it's one of the four elements as equity which is fairness but it's not the legal standard but it's interesting how it ends up being from a practical perspective what the whole case is about right I mean that's that's just it's amazing I think that how that ends up coming about but you know how do you reconcile that with okay now we need an expert opinion so you're kind of switching back and forth between well we need an expert who can make an opinion based on good solid information that's not speculative but on the other hand we're gonna weave this story together in a way that's most favorable to our client right which one's gonna win the day I think the narrative the story I think the testimony of the people that don't have a dog in the hunt I think their testimony is going to be taken very well by the court so make sure you take good depositions in your case and that way you know what people going to testify to at the time of trial and it makes your examination of them at trial even better because now you can tell the story through their deposition and if they stray from that you can bring them back sometimes they stray innocently from their story because it's okay that your memory changes a little bit over time but if they stray fundamentally and maybe they switch size or pick size against you you've got their deposition transcript there to hold them in line to what actually happened in the case right and here's another thing that we hear a lot my mom never would have done this my dad would have never done this my grandpa father never would have done this my grandmother never would have done this is that evidence no why not because it everybody knows everybody knows that my mom and dad wouldn't have done this well and that goes back to my where we get the phone call saying you know we get people to call us I'm not sure why they do this because I've never done this to like my my knee surgeon I've never gone in to my knee surgeon I said oh I know exactly what you need to do on this knee surgery here doc you're gonna first go in to my ACL and you're gonna I don't even know where to begin right right but we do get people from time to time that come see us not all of our clients but potential clients come in and say here's how you're gonna handle this and boy do I have some evidence for you you you've never seen about both of our years together and we've seen just about everything out of the Sun yeah on multiple occasions yeah so no you can't just say mom would have never done this that's not evidence you're gonna have to bring in some evidence to show that that the trustor amendment or whatever it is that's been created by mom prior to her death is not valid and you can't just say she wouldn't have done this I know I know my mom well the funny thing is it's it's you know on that rare occasion doesn't happen that often but rarely when people do call us and say you've never seen a case like this before you won't believe how good this evidence is they proceeded to explain something that we've seen a thousand times and it's on the lower end of the good scale and then separately you'll have somebody call in and they're more tentative and they'll say I'm not sure if I have a case or not and then they'll proceed to describe the world's best case you've ever heard yes it's like oh my gosh yeah you gotta Kate yes yes yeah well we'll consider taking it yes and then you quickly write up the engagement agreement but it's an odd thing but I think part of it too is that there's just so much confusion out there about what does it take like for example I'm a child okay my dad dies and he's married to another woman my stepmother let's say and she gets my dad's house that can't be right it's my dad's house they should come to me right I'm a child right now you and I can agree on that from a logical perspective that all that that sounds right okay but legally how do you accomplish that that's not so easy right that's correct so you have to find out well how did your dad own the asset and did he leave it to your stepmom like outright was where they joint tenants on it did they have a trust where it goes to her did you have some retained rights in the trust and here in California at least children do not have the right to inherit they can be completely disinherited by parents and too bad you know I guess we're whether there's some other country were working with where there's actually a right to inherit I don't recall I think it was France all right I think France it was France that's right there was a certain amount it was almost like the minor children here have a right to inherit something yeah and I think in France it was like you could not disinherit your chip your children which you know you wonder about that is that a better system or system I donno you would think that it'd be worse just because well then the kids won't be nice to you but in our experience a lot of times the kids aren't that nice anyway so I'm not sure you're getting anything by Dingling and inheritance in front of them but maybe it depends a depends on the case so I have a thought and a question it boggles my mind that we have these really complex trusts in California some of these trusts are 50 60 70 pages long they've got all kinds of legalese and very complex provisions many times even an associate attorney that's that's got a little bit of understanding of trust in a state law has a hard time waiting through these trusts but yet we have this fiction that the set lawyer intended and knew every part of that trust great I mean what are your thoughts on that right I know and I don't know I guess some things we do in the law just because there's no practical way to do it otherwise but you do I mean a short trust a small trust is about 25 pages an average trust is 40 to 50 pages long trust is a hundred pages or more we've seen them all we've seen I've seen trust at 120 so view trusts that are probably short as 10 I don't care how long the trust is you could tell me it's a 10 page trust I guarantee you the person who signed it and created it didn't read the full document most likely there might be one percent of the population that does that but 99.9 percent of the time the person who signs it is not sitting there reading through all of it and you know I have a trust you have a trust for your own family I don't think I read through all of my trust you know it's like all that you know a big chunk of it is the trustee powers that's boilerplate you know you don't don't worry about that but then there's other things in there that are near the bottom that are considered boilerplate that are hugely damaging to beneficiaries so for example exculpation clauses where you say they owe the trustee can't be held liable unless they acted you know willfully or embed and then you have accounting waiver clauses where the trustee doesn't have to account you can still force them to account if you go to court but they don't have to account it's now that we've been doing this for a while that seems insane to me that you would allow a trustee to not have to account weighs probably presented to them and a meeting if at all is oh you know you you pick your trustee you trust them you don't want them to have to be held liable for just negligence right and so then people are like oh no I want them to only if they do things in bad faith or they you know they're actually intend intending to cause harm to the trust and that's not how it works out in practicality if you look at these exculpation clauses they're they're real bears to deal with if you're trying to hold a trustee liable for breaches of trust it's really hard I mean the problem with that is proving bad faith is not that easy because a lot of times judges aren't quite sure what bad faith is it's kind of like saying what is reasonableness you know there's a lot of reasonableness and Trust law so the trustee has to act reasonable and they have to invest in a reasonable prudent manner and they have to distribute the trust assets within a reasonable amount of time what is that what is reasonable and so it becomes a real problem but yeah I think I think the problem with the trust provisions is number one nobody discusses these things there so I bet you anything that more often than not people who have an exculpation clause in their trust are not talking about them they have an accounting waiver in the trust they're not talking about it and we see a lot of problems we're a married couple will create a trust after the first spouse dies you're required to create these sub trusts like the bypass trust survivors trust that doesn't happen how many how many times have you spoken to a surviving spouse that knew that they gave up 50 percent of their property on there I mean it's it's shocking yes I mean think about that you're you're living you know in a long-term marriage to say you were married thirty years and your husband dies and now you only own half your house and you have to do new deeds putting half of the property into a bypass trust half newest Viper's trust and yeah you still control both halves but not you don't have unfettered control of the half that's in the bypass trust that's locked away an irrevocable trust and now you're telling this widow well that's just what it is right you signed it right you read it didn't you yep that's right yeah explain that yeah my boy is not favorable and so they just don't and then the next thing you get into is people wanting to change the trust terms you can't change the bypass trust terms they're locked in but they still want to right and so now they're taking they're either moving assets out of the trust trying to escape it they're doing amendments that they shouldn't do it gets very very messy right very quick yes so I mean I guess that's that's why you have trust on what litigators is because it gets messy very quick but it's unfortunate that people don't understand what they're getting into and they sign a trust in the first place and really from practical perspective what the terms mean you know I mean how would you know how would you know what an exculpation Clause even means and when you're doing it your estate planning lawyer is gonna tell you well it just helps protect the trustee so they can do their job without being harassed or they're gonna say something like that and oh okay well that sounds good right now I want the trustee to be able to do their job right what if the trustee is a bad trustee that is getting away with things or worse yet the trustee is a sibling and the siblings have never gotten along that that's another thing that that we get into all the time is sibling rivalry right we'll keep this is our first show that we've kicked off we've been going for about 30 minutes here and it looks like we have four people joining us obviously we'd like to hear if anybody has any questions in the meantime I'll ask you a question if you know my brother and sister have recently been taking my mom to go see an attorney and it's my understanding that they're trying to keep my mom from seeing me and I'm a little bit upset about that how can i I mean should I go to my mom and tell her you know don't let them trick you and and should I try to take mom to my own attorney I mean what should I be doing so that I'm putting myself in good light going forward when after my mom passes I won't look like the greedy heir I won't look like I'm the one that's really causing all the problems and I really wish I had a magic wand for those situations because they are they might be the toughest situations we encounter I mean so you're saying how do you protect a parent during life while the parents still live and you really don't have any control over them you don't have control over where they live right you don't have control over their finances for whatever reason other people are coming in probably siblings and like the example you just gave so they're coming in and attempting to control things that you you're not gonna be able to compete with them on that right it's a race to the bottom I guess so what do you do well number one the from a legal perspective what you would have when it comes to the trust is if it's a revocable trust you don't have a right to take any action on that trust even though you might be a remainder beneficiary after mom dies if it's revocable only the person holding the power to revoke can do anything with the trust can can sue the trustee can ask for an accounting whatever so if mom's a person who can revoke the trust only she can do that while she's being manipulated she's not gonna do that so how do you force the issue now you could do it as a reminder beneficiary if mom no longer has capacity but that begs the question of well does she or does she not have capacity and who's gonna make that decision ultimately the court has to make that decision and so the only real way to make that decision or go to the court to make that decision is with the conservatorship so you file a conservatorship action and you try to have yourself or somebody else appointed as conservator of the estate or the person so they can control mom and then the conservatory can take action against the trust because they literally step into mom's shoes the problem is though on a conservatorship in order for me to get conservative ship I have to go to court and say to the whole world either mom has lost her mind she's incapacitated number one or number two she's being unduly influenced and that is gonna that all those papers are gonna go to mom mom's gonna get her own lawyer appointed by the court and she's gonna see everything that you've just said about her and how's mom gonna like that generally mom's not happy not happy doesn't like being told that she can't do with her state and with her person as she wants to yeah yeah we all like our autonomy our freedom right and now you're trying to say well not only can she not ever freedom but it's because she simply doesn't have the capacity to do it right I mean you're literally suing your parent right now you're doing it for a good reason you're suing your parent to save your parent but your parents not gonna see it that way probably yeah I have a saying I don't know if I got it from somebody I'm sure I did but it was if if you're gonna shoot for the king you better hit and hear if it's a mom if you're gonna shoot for the Queen you better hit because if you don't the bad acting siblings or if there's one bad acting sibling it's gonna take that conservatorship leading to your mom or dad and you can guarantee they're gonna say I can't believe that your son has done this to you because I love you he doesn't care about you and then you start acting out in a way to protect your mother by attacking your sibling who does a very good job of acting very pious and it looks like you're the greedy heir and what you've done is you've sown seeds so that after your mom passes away when you do in fact file a trust contest to invalidate any amendments the bad sibling got her to sign you look like the crazy one right and mom's has said horrible things about you because you know she believes that you're trying to take her rights away right so my advice to somebody in that position has been its if it takes real discipline and it's very difficult to do is don't do anything rather then give mom the best sunset years that you can sunset months sunset days however long mom has left just be a good son or daughter show up I mean may you know did rare do you find out where a sibling keeps you from seeing your parents at all go see your mom hold her hand don't talk to her about a trust don't try to touch her but the will don't talk to her about conservatorship just love her care for her and when she passes if that were to happen then you're in a position where you don't look so bad and there's probably some remedies out there by way of a trust contest a will contest or a financial elder abuse lawsuit to remedy the wrongs of the bad acting sibling that you've had to deal with yeah it's really tough because you want to help your parent but there's times when you have to make really hard choices and of course unfortunately after a parent passes away then you have rights to go after the trust on your own but a lot of good that does you when you're trying to help a parent I mean it doesn't really help you know why the parents alive it's a really really tough area of the law we used to do conservatorship actions and they are hard and the reason they're hard is because there's just no good resolution I mean somebody always is gonna lose on a conservatorship action and usually it's the elder because they're kind of drug through the mud sometimes for their own good but it's still being drug through the mud for the wrong you know in any event so that's that's probably one of the hardest things that will ever come across it is it is and and and I feel like if you can wait if you can have the discipline to get through that I think that's better for your parent in the long run and then once they're gone if you think feel that you need to remedy any of the the wrongs that have been done against your your parent or against you from your bad acting sibling then you can do that right so in terms of let's let's go back for a minute to the expert issue that we were talking about at the start of the show so let's say you have an expert and let's say that there's somebody there who is you know somebody's trying to opine on something like there is this drug that the decedent was taking and it was reversing the effects of dementia and you know that to be probably bad science what are you gonna do in the deposition of that expert to try and T them up to set them up to attack them later on with your own expert well again I think taking and we could do a whole program on the strategy for taking on an defense expert through deposition and at trial but ultimately you're gonna have certain things that you need to find out from the expert and it's really two primary things that you want to find out number one what are the opinions that that expert has formed in this case are there any more opinions they anticipate forming lock them into the opinions and get each one in detail so I generally will ask the expert how many opinions did you form in this case and if I find out they form three opinions I'm gonna exhaust every different way of looking at that those opinions to make sure I understand expressly implicitly any other way exactly what their opinions are and then once I understand those opinions then I'm gonna ask them for the basis and so for the example you gave I'd be asking what scientific journals did they look at what research did they look at what other physicians did they contact who have they talked to you that says that they can reverse dementia because if that's true you're gonna be a multi-billionaire because they're that it's just something that isn't available in through science today and so I think that's basically what you want to do is you want to lock them into their story I all I almost always will ask the expert at the end of the case if they anticipate any doing any more work do they anticipate doing any more research of the materials that's the other thing that's fun to do with most experts attorneys are attorneys that hire experts are very cost-conscious generally speaking defense attorneys and plaintiffs attorneys and so many times the attorneys will decide what materials to send over to the expert to review and so I always ask for what materials did you receive to review so I've got their opinions I've got the basis for their opinions now I want to know what materials did you review in this case to form these opinions and in many cases it'll be a handful of medical records that are cut across a period of five or six periods of time but not all the other medical records in between and I'll say who provided these to you well invariably it's the attorney that hired them for their opinion and I'll say did that attorney consult with you on what get you know did they ask you did you want any other documents no did you ask for any other documents no so let me get this straight doctor you reviewed this case based upon only these carved up pieces of medical records that have been presented to you by the attorney that hired you yes so that's a good way to be able to lock them in and show that they didn't do a thorough analysis informing their opinions and of course with your your expert if you've done it right you've given them everything and of course you've said at the end of each email or a letter you send them you let me know if you need anything else from me and that way and a good expert the good experts that we hire they do follow up with us and say you know is there any other medical records from this doctor because I read through the medical that records and there's this one neurologist that did something four years ago and I don't see it in the medical records can you get it for me I'm like yes sir or ma'am we'll go get it for you because we want you to review it in that and that's when things get expensive I mean it's clearly more expensive to work with an expert and the right way you're talking about tripling the cost versus trying to just give them a limited amount of it's any wise pound foolish I think at the end of the day something something else about taking defense experts Google is so powerful and many of these experts they have a website they have publications they have books they have periodicals there's some research out there and of course they want to be known right and so they have to put their opinions out there and I remember I was taking an expert out of UCLA and he was one of the top experts in the country in this particular field of medicine and this was one of the cases where the the attorney that had hired this expert had given them very few scant medical records to review but I also found an article that they had published about five years earlier and it really supported our position in the case from a dementia standpoint and there was a whole series of paragraphs in this article that this expert had published that supported our side and would not support the other side's case and so once I had established all he was of all of his opinions all the bases what he had reviewed what he had not reviewed what he didn't know was out there I then asked him if he would agree or disagree with the following statements and I read each one of those sentences that I had pulled from his scholarly publication from five years earlier and he disagreed with every single one of the sentences so then I handed him the research paper afterward and I'm videotaping this deposition yeah and he looks at it and he looks at the video and he goes oops [Laughter] that's a rare deposition but this sure is fun when it happened my gotcha yes not that often that you get gotcha moments and depositions but that's a nice one right it's so interesting to just because experts I don't think that you can deal with experts necessarily head-on I mean that's a rare example that you just gave were you pretty much could could hit him head-on because you knew that you know he had contrary information but you have to figure out a strategy in a way to undercut that expert and it's not typically hitting them head on it seems like it's typically you're going to what did you review what was your method how are you doing these things there's an angle that you can find if you think about it long enough that it's gonna give you the edge that you need yeah I think you're right Keith I and I think that though I think what you're getting at is you don't take an expert on in their expertise yeah right it'd be like somebody trying to that didn't do trust in a state litigation come in and cross-examining us on trust in a state litigation right what you do much better as st. well Stuart what did you review for this trust litigation and do you think you could have reviewed these other things and if there are things that you should have reviewed it puts you in a really difficult position because you sound foolish if you say no I shouldn't have reviewed those right or you say if you say yes I should have reviewed them well that's damaging no you say do you believe that those could have impacted your opinion there's only one way they can answer that and that is either I don't know because I need to review them right but then you can reinforce that they didn't review them wait or they're going to or they're gonna say yeah I think that if I read two years of medical records that could impact my opinion right yeah yeah I think it's just a matter of finding the right angle and then going for it but it's an art it's definitely more art than science it's something that you've perfected really well over the years but it's it's it's because of trial and error I think well and I think the one area and I think I see a lot of I see a lot of plaintiff everybody understands in today's environment people are paid for what they do I mean the lawyers are paid in the case for what they do right and so unless the experts receiving three or four times the amount that any all other experts in that particular field are getting paid I personally think you stay away from that but I certainly think you can ask do you normally represent trustees or do you represent beneficiaries and if all you've done is represent trustees and and or trusts or lawyers that have drafted documents if that's primarily the opinions you've given I think that's fair game we need to look at that show that you're not balanced in the way that you represent people with your expertise right it's interesting to the other thing a SPECT of expert witnesses a lot of people don't realize is how they present in court I mean that's really where it counts right it's because you know that you're gonna get battle of the experts and the depositions prior to court they're both going to say the the opposite of the other and yet you know we had a case many years ago where we had an outstanding expert but he didn't necessarily present so well in court and then once we were in trial he kind of I don't know fell apart a little bit I mean he just became very 'men table to relate to the judge or the questions very well and then the other side's expert was just like mr. suave and you know he had the judge eating out of his hand I mean and I don't think that the one expert was more qualified from an educational standpoint or experience standpoint that was purely a personal personal skill we learned a lot I mean this was what ten eight years ago we learned a lot from that just because showed up at the courthouse and got outside of the car right out in the front of the courthouse and took his shirt off right and change his clothes just close the street in the street and then when we put him up on the stand he brought this the canister with tea and he opened it up and and he would drink from it every few minutes while we were so that that's again that was a bad on us for not meeting with him ahead of time maybe seemed that he was a little bit different and odd and of course we did have the unpleasant experience of going against that particular expert the opposing sides expert in that case but then we've used that expert the opposing sides acting several times going forward and he's quite good yeah we've learned real quick that personality matters and so we want to have somebody with the right personality up on the stand giving our side of the case to the judge because you have to make that connection that personal connection I mean at the end of the day law is a people business right I mean it just is it's a group of people coming together to resolve a case and you've got the judge you got opposing counsel you got experts you got FAQ witnesses you got treating physicians that come in I mean all these people have an impact on the process and how well or poorly they present in a courtroom makes a huge impact on the result and you know some the people who you think are gonna do great sometimes don't and the people who you think I can't do terrible sometimes do outstanding well I'm glad that you raised that you went through a whole series of people that bring the facts witnesses or the facts and and the documents to life in in a trial I think if you get a really good treating physician they're gold yeah and the reason they are is because again they're not seen as have it being paid for this particular case they were actually the one they're treating the decedent prior to the deceit that's right that's right so but the problem with them is they're not professional experts that are used to being in court or even having their deposition taken and so they can be abused by the other attorney the method I have for them that I think works quite well and maybe I'm giving too many secrets or not and they feel they have to make something up because maybe they'll not make something up that's too strong a way of putting that but by filling in the gaps I'd rather have them take them back through all the medical records make sure they see everything and then I start asking that and I'll even bring them back to the beginning and we'll walk through it together again one more time just to make sure that they have a full flavor of what they did during the treatment plan cuz it I mean most physicians don't remember these patients that closely they see so many patients and so and they have they have some recollection of the patient but in many cases they don't remember the actual diagnosis and the dates and so forth right yeah I mean it's a lot to deal with it's a lot to consider well this is our experiment our first live broadcast on YouTube and we hope to bring you one of these each week feel free to email us any questions you have in advance you can always email myself which is Keith at Alda law comm or Stewart at St WRAT Stewart at Hal Devlin com or you can just join us and ask questions as we go thank you so much Dewart this was fun to do as kind of a fun experiment and hopefully it keeps growing all right sounds good I know let's just figure out.