Trust Law: Procedural Nuances Can Trip Up Attorneys New to the Game

By John A. Hartog

This is part of our series of posts written by John A. Hartog of John A. Hartog, Inc. in Orinda, Calif., and Shirley L. Kovar of Henderson Caverly Pum Charney LLP, in San Diego, Calif., co-authors of the LexisNexis® Matthew Bender® Practice Guide titled California Trust Litigation (March 2011).  In this post, Hartog gives tips for litigators who are new to working in trust law. Hartog and Kovar will be appearing at seminars and a webinar in the coming weeks.  For more information, please go to: www.ocbar.org and http://www.sfbar.org/.

A really easy and egregious mistake is to file a complaint rather than a petition. Another easy-to-spot error is to fail to file a notice of hearing.  Another really common one that litigators make, is to serve the lawyer with the pleading rather than serving the party. In probate practice, you must serve the party; you may serve the lawyer, but service on the lawyer does not replace service on the party.

Filing Responses

In civil practice, the rules are pretty strict about when a responsive pleading must be filed.  In probate, at the first appearance  -  at least under section 1043 - nothing needs to be filed until the date of the hearing, and a party can show up and not even have a pleading. The court, under the terms of the statute, can give them the time they require to file writing. There's not even a requirement to do the writing.

So what happens in probate often is that pleadings get filed within 24 hours of the hearing date, and they are timely.  I can't tell you how many times I get civil litigators who come just enraged into court, telling the court that they can't hear my papers because they were late filed.

And it's, well, "1043, Your Honor."

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