Knowing when to say “no” is one of the most difficult — and valuable — skill sets any of us ever develops as a lawyer.
“Should I take on this very wealthy but extremely difficult client?” (NO) “Should I represent a destitute child seeking to challenge a parent’s mean-spirited and unfair will that’s otherwise perfectly legal?” (NO) “What if my client says she doesn’t care who wins or loses, she just wants to ‘do what’s right'”? (NO!!).
What makes these decisions especially challenging is that you have to make them long before you have all the facts, which means they’re usually “gut” calls based on years of practical experience (think 10,000-hour rule). You can’t develop these instincts in a classroom, but you can speed up the learning curve by “virtually” experiencing these situations when you read good estate-related novels (see here), or historical studies (see here), or journalism (see here), or smartly written case studies, like Prof. Stephen Alton’s The Strange Case of Dr. Jekyll’s Will: A Tale of Testamentary Capacity.
And there’s all sorts of good research proving that reading fiction builds emotional intelligence, the essential ingredient needed to navigate complex social situations . . . like screening prospective clients.
So back to The Strange Case of Dr. Jekyll’s Will: A Tale of Testamentary Capacity. Prof. Alton describes it as a vehicle for “examining various legal rules and doctrines that might mitigate the soundness of the testator’s state of mind and, thus, his or her capacity to make a valid will.” I agree, but it’s way more than that too. What this article really does best is demonstrate how even in the midst of the craziest set of facts, when a prospective client is absolutely sure there has to be a cause of action somewhere in all this smoke, the best answer for all concerned might be: “no, you don’t have a case.”
For example, assume a smart, well-spoken lawyer (Gabriel John Utterson) comes to see you about his friend and client’s will. Utterson believes the will can be challenged on “insane delusion” grounds (see here for the Florida law on this point) because his friend signed the will while operating under the assumption that he turned into a murderous crazy person when he drank a certain potion. You might think “yeah, there’s a case here.” And you’d be wrong. Why? Because his friend was a guy named “Dr. Jekyll” who did in fact turn into a murderous “Mr. Hyde” upon drinking a certain secret potion.
Sound crazy? Yup. Is real life ever just as crazy? Oh yeah. So what’s the lesson? Just because you have a bizarre set of facts doesn’t mean you have a case (it usually takes about a decade to figure this out on your own). Here’s how Prof. Alton depicts a veteran lawyer interviewing Utterson, dissecting the operative facts, applying the law, and diplomatically saying: “no, you don’t have a case.”
“Mr. Alton, I believe that my friend Henry Jekyll was laboring under an insane delusion when he made his will conferring his estate upon Edward Hyde. Certainly, at the time he first delivered the hateful will to my care, I thought that Dr. Jekyll must have become mad to do such a thing, for the reasons you have already noted.”
“Well, sir,” I replied, “I am not convinced of this. What might have been his insane delusion? At the time of the delivery of his will to you, you had no specific idea as to what delusion, if any, might have produced the will. Establishing an insane delusion requires proof of the specific, supposed facts that do not exist and that no rational person would believe. If I may be permitted to say this, Mr. Utterson, mere general speculation on your part that Dr. Jekyll was hampered by an insane delusion at the time he made his will would have been insufficient evidence on which to strike down the will. Certainly, you must concede this point.”
“Reluctantly, I do, sir,” rejoined the lawyer.
I continued. “If, at that very time when Dr. Jekyll delivered his will to you, you had learned that he believed he could become Edward Hyde and therefore wanted to leave his entire estate to his alter ego, you might well have said that this was an insane delusion, for how could any rational person believe such a thing? That certainly would be specific evidence of an insane delusion on his part that produced his testamentary disposition, even though, as we said above, the doctor most likely was not generally of unsound mind. However, as you later learned, Dr. Jekyll, on a regular basis, was becoming Mr. Hyde at this time. Thus, the will was not a product of supposed facts that do not exist; instead, as you subsequently learned, the will was a product of a fact (the Jekyll-to-Hyde transformation) which, as astounding as it seemed, was indeed occurring in the real world of your story. Q.E.D., there was no insane delusion. Again, I believe that you must concur in this ultimate conclusion.”
The solicitor simply shrugged, and our dialogue moved on to the matters of undue influence and duress.
Want to get better at screening estate cases? Read The Strange Case of Dr. Jekyll’s Will: A Tale of Testamentary Capacity. It’s fiction, and it’s also good practice for real life.