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Probate litigator Norman A. Fleisher of Gutter Chaves Josepher Rubin Forman Fleisher P.A. in Boca Raton, Florida, was on the winning side of Hernandez v. Gil, a hard-fought case that wound up before the 3d DCA on three different occasions, resulting in a PCA and two fascinating written opinions I wrote about here and here.

Norm graciously agreed to share some of the lessons he drew from this case with the rest of us.

Hi Norm. Thanks for taking the time. First question, looking back, what strategic decisions did you make in this case that were particularly outcome determinative? Would you have done anything differently?

The most important decisions were not unusual. We were always concerned that the opposing party might try to circumvent the settlement, so our focus was to make the agreement as clear as the English language would allow. One unusual aspect of the settlement is that the opposing party was asked to personally appear before the Judge when the settlement agreement was approved and to state, under oath, that he understood the agreement, approved the agreement, and wanted the Judge to approve the agreement. The transcript of that hearing has been very useful in subsequent proceedings.

From your perspective as probate litigator, do you think there’s anything that could have been done in terms of estate planning to avoid this litigation or at least mitigate its financial impact on the family?

Not really. The estate planning documents have never been the issue in this case. The issue has been the enforcement of the settlement agreement. Mr. Hernandez attempted to challenge his mother’s documents following her death, but the settlement agreement explicitly prohibited him from making such a challenge.

The three appellate decisions in this case apparently revolved around enforcing your settlement agreement. If you knew then what you know now, would your settlement agreement have been different? How so?

I have struggled with this issue for years. I’ve wondered if we could have made the agreement clearer, and when preparing for the hearings and oral arguments I would play devil’s advocate and try to think of ways the agreement was somehow vague or open to alternative interpretations. But fortunately, every time we brought the agreement before the court or the appellate panel the Judges always agreed that the agreement and the releases were clear.

Any final words of wisdom for probate lawyers of the world based on what you learned in this case?

As any probate litigator will tell you, trust and estate litigations are often not based on reason. It is easy for a lawyer to be dispassionate about the dispute, but for the parties these matters are deeply emotional. So even though a settlement agreement is clear, and even though an opposing party may have lost every hearing, and even though the court may have severely sanctioned the opposing party, the deeply personal nature of these matters may still cause the opposing party to refuse to quit. The lesson for lawyers was set forth in the 3rd DCA’s last opinion on this matter [click here] – sometimes a lawyer who is asked to fight on for a lost cause must simply say no to a client or a potential client.

Thanks again Norm for taking the time.

Thank you for your interest.