Expert Witness Services

Breach of fiduciary duty claims are among the most common disputes in trust litigation. They are also among the most fact dependent.

Trustees frequently make decisions under difficult circumstances. They may be managing real estate, operating businesses, responding to beneficiary disputes, dealing with tax consequences, addressing liquidity problems, or trying to preserve assets while litigation is pending.

When those decisions are later challenged, an expert may be asked to evaluate whether the trustee acted within the range of reasonable fiduciary conduct.

Potential issues include:

• Administration and management of trust assets
• Duties of loyalty and impartiality
• Communications with beneficiaries
• Trust distributions
• Conflicts of interest
• Recordkeeping and accounting practices
• Retention of attorneys, accountants, and other professionals
• Responses to beneficiary demands
• Handling of trust-owned real property or closely held business interests

An effective expert analysis does not simply identify the duties imposed on a trustee. Experienced litigators already know those duties. The value comes from applying those standards to what happened in the case.

This requires understanding the timing of decisions, the information available to the fiduciary at the time, the alternatives that existed, and the practical realities involved in trust administration.

Many trust disputes concern the quality of administration rather than a single isolated act.

A beneficiary may argue that the administration took too long. A trustee may contend that the delay was caused by litigation, property sales, tax filings, creditor issues, disputes among beneficiaries, or the need to obtain information before making distributions.

These disputes frequently benefit from a practitioner who can distinguish between an administration that is genuinely unreasonable and one that simply became complicated.

An expert witness may evaluate whether the administration was consistent with accepted practices involving distributions, asset management, information provided to beneficiaries, accountings, reserve decisions, property sales, and the use of professionals.

For counsel representing trustees, this analysis may help explain why conduct that appears problematic when viewed in isolation was reasonable in context.

For counsel representing beneficiaries, expert witness review may help identify where administration crossed the line from ordinary delay or imperfect decision-making into conduct that departed from accepted fiduciary practices.

Trust and estate attorneys may also become the subject of litigation involving claims of professional negligence, breach of duty, or other alleged misconduct.

In these cases, another attorney’s testimony may be necessary to address the standards and practices applicable to lawyers working in trusts, estates, and probate matters.

The issues may involve estate planning, trust administration, probate proceedings, advice given to fiduciaries, conflicts of interest, communications, drafting decisions, or litigation-related conduct.

The attorney expert witness should understand how trust and estate lawyers actually practice, not merely the abstract legal principles involved.

A practical perspective is particularly important in cases where opposing counsel may characterize a decision as obviously improper when, in reality, experienced practitioners could reasonably disagree about the appropriate course of action.

Compensation disputes are another area where expert testimony can be valuable.

Trustees, executors, administrators, attorneys, and other professionals may perform substantial work in complex administrations. When beneficiaries challenge those fees, the dispute often turns on whether the compensation was reasonable given the nature and scope of the services performed.

An expert witness evaluates factors such as the complexity of the matter, time involved, responsibilities assumed, results achieved, litigation demands, asset values, administrative difficulties, and the level of professional skill required.

For the attorney handling the dispute, an expert witness can help turn a large collection of invoices, time entries, accountings, and administrative records into a coherent analysis.

That may be relevant both when defending requested compensation and when challenging fees that appear disproportionate to the work performed.

Probate litigation can involve procedural and administrative practices that are second nature to lawyers who regularly appear in probate court but are unfamiliar to others involved in the case.

An expert witness may be asked to address accepted practices involving probate administration, executor or administrator conduct, court filings, asset management, distributions, professional retention, or other issues that arise during administration.

This type of testimony may also arise in legal malpractice or fiduciary litigation where the conduct of a probate practitioner is being evaluated.

The goal is not to provide the court with a legal brief disguised as expert testimony; rather, the expert witness’s role is to provide relevant professional context regarding standards, customs, practices, and the practical handling of trust and estate matters.

One of the most useful times to involve an expert may be before the expert-designation stage.

Attorneys often benefit from having an experienced practitioner review the case early enough to influence strategy.

Early consultation may help counsel evaluate whether the alleged fiduciary breach is supported by the record, identify documents or testimony that should be developed in discovery, assess whether damages theories are tied to the alleged conduct, prepare for mediation, and determine whether expert testimony is likely to strengthen the case.

It can also help counsel avoid committing to a theory that may become difficult to defend later.

In some matters, the most valuable contribution an expert witness can make is confirming that the case is stronger than opposing counsel suggests. In others, it is identifying a weakness early enough for counsel to address it.

This kind of candid analysis is important. An expert witness who simply agrees with the retaining lawyer is not necessarily useful. The more valuable expert is one who provides an independent review of the record, explaining where the case is strong and where it is vulnerable.

Trust and estate litigators may also need expert assistance after the opposing side has designated an expert.

An opposing report may rely on assumptions that are inconsistent with the record, apply unrealistic standards to trust administration, ignore relevant circumstances, or characterize ordinary professional judgment as a breach of duty.

A qualified expert witness can help counsel analyze those opinions, identify weaknesses in the underlying methodology, prepare deposition questions, and determine which issues should be challenged through cross-examination or rebuttal testimony.

This is particularly important in fiduciary litigation, where an expert witness may attempt to evaluate a trustee’s decisions with the benefit of hindsight.

A proper analysis should focus on what the fiduciary knew, or reasonably should have known, when the decision was made.