Unhappy family members are almost always quick to sue other family members regarding the “fairness” of a deceased parent’s distribution plan.  Whether it’s trust litigation or probate disputes, the emotions of the heirs who feel they have been “slighted” take control, their ability to reason completely overwhelmed.


I visited a small county courthouse earlier this week to review the “volumes” of files from a 1989 probate matter that is still an open file in this small county.  Over 20 years of litigation!  The case involved three separate appeals to the appellate court.  The lawyers obviously became the most significant heirs of this estate, as is usually the end result of such litigation.

What’s really scary is my conversation with the probate clerk of the court in this small town.  They have a probate case that was initiated in the 1950s that is still open!!  Can you imagine almost 60 years of dealing with your probate!?

Now, we have some real evidence that supports one of the ever present, and totally underappreciated, reasons that lawyers advise their clients to avoid litigation.

A recent study completed by some researchers in Israel found that if the judge is hungry when he or she renders a decision, the judge is likely to deny whatever is being requested by the petitioning party.  You can read more about the actual study and it’s results at a Wall Street Journal blog entry from the Journal’s Ideas Market entitled “A Hungry Judge is a Hanging Judge.”

Experienced trial lawyers will advise their clients to avoid litigation unless there is absolutely no other way to resolve a dispute.  The unpredictability of a judge’s decision-making is always among the reasons provided.  This study shows us that something as remote and unrelated to the merits of a case as when the judge last ate impacts the judge’s decision making.

Perhaps that helps explain why cases like the one above, that has been in court for over 20 years, and had three appeals filed during that period of time, take so long to litigate.  However, in the cited case, in two of the three appeals the appellate court affirmed the trial judge’s decision, without even bothering to write an opinion.  That usually means the appellate court saw no merit to the issues raised in the appeal. In the other decision, the appellate judges reversed the trial judge in part, and affirmed him in part.  Makes you wonder whether two of the decisions by the trial judge were made shortly after he ate, and the third one when he was hungry?

There may be another explanation beyond the judge’s mealtime schedule to explain the appellate court’s actions.  In probate and trust litigation, the emotions of the parties may also result in the client insisting on an appeal, even where there are relatively weak claims that can be made in the appeal.  Hence, the decisions affirming the trial court without a written opinion by the appellate court.

Judge’s are people who have good days and bad days, just like all people.  Sometimes their decisions may be influenced by when they had their last meal, whether they may have argued with their spouse that morning, whether a family member is seriously ill, or any of a number of other non-obvious reasons.  

The parties to a contested probate or trust litigation are also people.  They are people who are angry, bitter, disillusioned, or just plain hurt.  They are not likely to want to listen to reasoned counsel, they take positions that are not rational, they push their attorneys to pursue actions are not always supported by legal precedent, and they tend to forget important facts, or remember them differently than other witnesses.  The “harmed” heir who pursues litigation even though counsel has advised against such action,who insists on taking every possible avenue of court action and appeals, and who won’t consider any compromise with other family members, is essentially insisting that the lawyers involved in the matter become the ultimate beneficiary’s of the deceased loved one’s estate.

Whether its hungry judges or emotional heirsinvolved in a particular probate dispute or trust litigation, the end result is always the same.  Unpredictable!

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