Here is an interesting case from California that caught our attention. An 83 year old man filed for a protective order against his 56 year old daughter because of alleged abusive treatment. In the court hearing over the matter, the daughter’s attorney’s confrontational cross-examinationof the elderly gentleman was found by the trial court to be consistent with the daughter’s desire to treat her father in such a fashion. He then granted a protective order which stated that the daughter could not contact, molest, attack, strike, threaten, assault or otherwise disturb the peace of her father. The daughter appealed the case arguing that her attorney’s behavior and her lack of response to it should not be used as evidence by the trial court. The appellate court agreed and said that the trial judge was wrong to base his decision on the lawyer’s conduct.
While this decision is good news for us lawyers, it does highlight the fact that we are too often aggressive and confrontational, particularly in guardianship, probate, and other elder law cases. It is important that all lawyers recognize when in the probate court that we are not trying high profile criminal or personal injury matters. We are involved in disputes among family members where emotions are already running high and we should avoid making matters worse. We can represent our clients effectively in elder law matters without being either abusive or confrontational.