Hi Gabriel Heiser, in another post, you mentioned about my lawyer being proper in not taking a case, as defending his own documents would not be proper, I'd like to ask/add: Can and should we all have in our contracts with lawyers, a stipulation that they will "defend" and be witness to their own documents if a suit ever comes up?! And without added cost. Like a guarantee for work well done! Would any lawyer even agree to this?
In our discovery, questions about my dad's Will came up. That attorney, an elder attorney, referred by an agency, met with my dad TWICE on two occasions and then wrote up the Will. When the suit happened, and we just wanted him to say something to the effect that he felt in his legal opinion my dad was competent to sign the Will, he instantly clammed up and said he'd need to be paid for any time on the matter.
Well, as you can see, instantly three lawyers become involved (plaintiff, defendant, and one who wrote up paperwork. Payday for the lawyers.
If, however, the question of competency is merely a secondary issue in some other lawsuit, and the attorney is being brought in as a witness, then the party who requests the attorney as witness would pay that attorney his or her fees for the time involved.
As for getting attorneys to guarantee they will defend their own documents at no charge, I've never heard of such an arrangement. That being said, most attorneys do have malpractice insurance that will pay to defend the insured attorney if he or she is sued for possibly making an error in a document. In my 25 years of practicing law, I was never once sued, and I prepared hundreds of wills, trusts, deeds, etc., for many clients over that time period.
The issue was that on "our" side, we all felt he was competent enough to sign for his Will, POA and deed change. Just because he had a diagnosis of probable Alzheimer's, it didn't automatically mean he was incompetent. On the medical side, the docs said they couldn't give a legal impression. On the legal side, the lawyers say they can't give a medical diagnosis. Which in the end - leaves us with a plaintiff side trying to strip all powers and rights away from my dad in a power grab.
I'm sure simple letters from my dad's attorneys #1 & 2 reiterating they found him competent to sign when they talked with him (the second lawyer MET him twice), would have made a huge difference in the impression of the plaintiff lawyer and likely helped us to settle more quickly and towards the benefit of my father.
Instead, it turned out to be a protracted back-and-forth and going thru the lengthy discover (costly!), just to wind up settling with no real change in circumstances, except both sides spending a lot of cash.
Of course, neither of the lawyers were sued directly, lawyers know not to do that to each other. Instead "clients" bear the costs. And the lawyers who drew up the papers all "disappear," and since they are not sued directly--can. I guess one could depose them, but imagine -- a $300 fee to draw up a Will, becomes travel/day expenses of likely $1000+ to get deposed.
You mention trial, but understand that any trial incurs costs of $20,000-50,000 on both sides at minimum. So I guess what I'm asking and harping about, is for the lawyers to stand up for their own work prior to having to go to court.
At the end of the day, "my opinion" on my dad's competency really matters ZERO to the courts. I wish, if the lawyers (both of whom were highly recommended, members of the elder law network) had felt my dad was incapable they would not have drawn up the papers. But instead, they drew them up, signed their names along with my dad. But then nothing when a challenge came up.
The old "myth" that having a lawyer draw up papers is somehow more iron clad, is just that, a myth.
Not to bring any negative opinion to your work, I'm just making a "global" judgment about lawyers and the U.S. legal system based on my own one experience.
Thanks for the detailed response above.
I'm curious if others have had papers contested, refused by entities. For example, having trouble taking a Power of Attorney to the bank to make changes to a parent's account. etc.
EXACTLY.
However, I think for the secretary it doesn't matter as she's just doing the paperwork, but the lawyers that sign the document, nobody can hold them accountable (without paying with an arm and a leg). It's a crazy legal racket.
Just like the Goldman Sachs "market-makers", lawyers just play both sides of the legal market. "Truth, justice and the American way" has been lost.
Yup, this is my experience also. Lawyers will only "take" the case if they see you have the money to pay a lot. Like you said, this mediation at $350 and hour, for several hours and likely to go on for several sessions. We are all just trying to get by and take care of our parents, who can afford such a thing?!
One of my lawyers said to me, "You're right, it's who has the money to put into the legal battle that usually wins." We've learned.
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