Choosing the Right Trust & Estates Litigation Law Firm in the Aftermath of COVID

Hiring an attorney in a specialized field such as trust and estate litigation in the wake of COVID is challenging to say the least. This harsh truth is even more magnified in a small legal market such Hawaii with a population of just 1.5 million individuals. Here, locally, even prior to COVID, the pool of competent, experienced lawyers in nuanced and highly specialized fields such as trust and estate litigation were exceedingly limited.

Now, owing to a number of factors, even fewer experienced and qualified legal professionals are available in this area. Several experienced attorneys have quietly retired in the last few years, and, owing to the vicissitudes of running a small practice. Their law firms have either closed their doors or their remaining lawyers have moved elsewhere. 

Remote work is laudable for a number of reasons, but there are downsides. Many young lawyers who could have received valuable training and experience working with senior lawyers do not have that opportunity. Remote practice can lead to a lack of strict or close supervision during the training of new lawyers. This is unfair to the client and to junior counsel.

As a result of COVID and remote work, many younger attorneys have lost several years of valuable skills and training. They find themselves grappling with that fact. Given the typically small to mid level size of attorneys practicing in this area, junior associates find themselves working directly with clients, a task that they may not have genuinely been trained to do. Additionally, since the training is not as intensive their frame of knowledge and experience is concomitantly smaller. This fact may lead to a less than experienced response to certain matters. Clients fear this, but so does the judiciary and seasoned counsel; the law can be a minefield. 

Adding to these troublesome issues, over the last three years the hours and quality of training that these attorneys have received, and their interaction with other members of the bar has largely been conducted via Zoom video conferencing. This affects the quality of representation, because it deprives newer lawyers, indeed all lawyers, from observing subtle indicators that might be useful in litigating the matter to a positive result. In addition, clients have often retained counsel without any face-to-face meetings as engagement of counsel has been either by telephone conference or similar video teleconferencing. Generally, this makes clients less inclined to follow their lawyer’s advice and to question the glacially slow legal process. In essence clients do not have the opportunity to fully evaluate counsel.

As a lawyer with some 30 plus years of experience, and memories of my own training by seasoned lawyers, it is my opinion that video conferencing, is a difficult mode for less experienced counsel to learn how to conduct an oral argument, depose a witness, let alone conduct an evidentiary hearing or even a trial. In addition, many of the more moderately experienced attorneys made the decision during 2020 to 2023 to downsize their practice by eliminating staff and other resources that provide quality representation to clients. Just because a practitioner is able, via a computer or other electronic means, to do a task does not mean it is the most cost-efficient and best way to get the thing done.

This additional pressure has often inevitably led to attorneys taking fewer cases, requiring the same need for revenue notwithstanding. Many attorneys have been forced to take fewer cases and increase their hourly rates in order to stay in business. In essence, the client, who is the consumer of legal services, is paying for less. It will take many years for the trust and estate litigation bar to recover from the effects of COVID, and many clients, will continue to engage attorneys through remote means such as email, video conferencing and telephone conference calls. They will be forced to gauge what they can expect to receive in terms of value and quality of service affected by these shifts in the practice of law.

As a matter of due diligence, a prospective client should always ask prospective counsel whether or not COVID has forced them to disengage from a prior firm, reduced their resources, and the level of training and experience that they have received in this specialized field. It is true, an attorney may not necessarily be less qualified because he or she is working from their kitchen table, but the client should know whether that is the case. Clients should also ask whether the attorney has back up, whom exactly they will be dealing with, how many cases the attorney is simultaneously handling and what they can expect in terms of communication and response time to their questions. 

Attorneys that have gone through one or two professional changes in the structure of their practice during the last three years, should explain how and why the client can expect the same level of legal service as a larger firm has with more lawyers and professional staffing. This is especially true in complex cases. It is our Firm’s experience that even cases that may seem routine, often turn into highly complex matters and require unanticipated significant resources that may not be available to every client.  

This goes to show that a sole practitioner requiring a smaller retainer than a larger firm will not necessarily be cost efficient in the long run. History has shown our Firm that approximately 25 percent of our cases concern taking over from other law firms that simply could not handle the size and complexity of the matter they undertook. Oftentimes, damage has been done by lack of attention to the case over a prolonged period of time, which has turned a "simple case" into an extremely complicated case that may or may not be salvageable. 

Moreover, attorneys that are working remotely, whether in the State of Hawaii or elsewhere, are increasingly being forced back into courtrooms, and require physical presence in front of the judge, because the judge, too, knows that Zoom does not necessarily provide the nuance that may be a major factor in the case. It is this author's opinion that many attorneys that must reappear in the courtrooms may be rusty or will not have the requisite fundamental knowledge, support staff, and even the desire to go back into the courtroom. There is stiff competition from increasingly hungry opposing counsel and a contested case is necessarily time consuming. A contested case is not a summary proceeding as many cases in probate court are. It could take months or years to sort out the client’s issue. So careful choice of litigation counsel is paramount.

Our Firm, MacDonald Rudy, thought the best way to address the post COVID changes in the legal environment was to actually expand our firm to add personnel, both lawyers and paraprofessionals since qualified and experienced attorneys were retiring. The result is that the firm emerged from COVID a larger, stronger organization than ever before. We truly believe in training our associates as rigorously we have been trained. Junior lawyers as well as senior lawyers have the training to undertake complex cases and the analytical and intellectual support from their colleagues which can be case defining. We firmly believe that our services and experience place us far above other firms or attorneys advertising similar services in our field. A keen legal strategy and relentless counsel often proves well worth it for our clients.