At the start of trial recently in San Joaquin County Superior Court in Stockton, I sparred with opposing counsel over the role of the retained mental health experts with regard to testimony on undue influence. The contestant alleged that her brother unduly influenced their parents to disfavor her when they amended their trust. Sister retained a neuropsychologist to testify at trial on the subject of undue influence and Brother retained a forensic psychiatrist. Not surprisingly, the experts took divergent views on the case.
The question, which came before the judge in a motion in limine (i.e., pre-trial motion), was whether the retained experts should be allowed to testify on the ultimate issue of whether Mom and Dad were unduly influenced. Sister wanted her expert to be able to opine that her parents were victimized based on the expert’s review of the medical records and deposition transcripts. The judge agreed with Brother’s argument that, while the experts could testify on the issue of Mom and Dad’s vulnerability to undue influence, expert testimony on the issue of whether undue influence actually occurred would be excluded and that matter instead would be left for the judge to decide after hearing all the evidence.
As discussed in an earlier post, California Welfare and Institutions Code section 15610.70 requires judges to consider various factors when evaluating whether a trust instrument, will, or other document designating a death beneficiary should be invalidated as the product of undue influence. Undue influence is “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” Section 15610.70 requires judges to consider: (1) the vulnerability or susceptibility of the alleged victim, (2) the alleged influencer’s apparent authority that he or she might use to manipulate the supposed victim, (3) the conduct of the alleged influencer, and (4) the equity or inequity of the result.
A qualified mental health expert can provide a helpful viewpoint on the element of vulnerability or susceptibility to undue influence. For example, if Mom had been diagnosed with dementia and was under the care of a neurologist, the expert can review the neurologist’s file to assess the degree of mental function impairment at the time in question. Or, if Dad had a serious issue with his physical health, the expert may have opinions as to the effect of the illness, and/or the medications used to treat it, on his cognition. The experts may use such information to evaluate the extent or degree of susceptibility to undue influence, which is a qualitative assessment in the absence of any accepted scale of susceptibility.
In California trust contests and will contests, the retained mental health experts typically never had the opportunity to evaluate the alleged victims of undue influence. Instead, they rely on the firsthand observations of the treating physicians, any attorney who drafted the contested documents, and anyone else including family members who had substantial interaction with the alleged victims.
When lawyers ask experts to go beyond the question of vulnerability or susceptibility to address the issue of whether Mom or Dad was an actual victim, the opinion has dubious value for several reasons. First, while the expert may have a conceptual understanding of undue influence based on his or her professional training, the expert may be unfamiliar with or incorrectly apply California’s legal definition of undue influence. Second, the undue influence assessment should be based on the admissible evidence actually presented and received during trial, not on the expert’s armchair review of medical records and deposition transcripts. The judge, unlike the retained expert, can evaluate the credibility of the witnesses who testify at trial. Third, trust contests and will contests often make for long trials, and allowing experts to testify on whether there was undue influence will result in longer direct and cross-examination, consuming valuable trial time when the lawyers can and most certainly will make their own arguments as to undue influence in their closing oral arguments and/or briefs.
Judges have wide discretion when it comes to setting the scope of expert testimony. Although California Evidence Code section 805 permits experts to testify on ultimate issues, a judge may conclude that an opinion on whether undue influence produced an estate planning change is not sufficiently beyond common experience to assist him or her as the trier of fact so as to render the opinion inadmissible under Evidence Code section 801. Alternatively, the judge could exclude the opinion under Evidence Code section 352 on the ground that its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time.
In sum, while it is easy to understand why a lawyer representing a trust contestant would want his or her hired expert to opine that Mom or Dad’s free will was overcome, judges may not welcome the expert’s views in that regard. Lawyers should start thinking about the scope of expert testimony when first starting to work with their experts so as to keep a strong focus on the areas in which the trial judge is likely to be receptive to the testimony.