Trusts and Estates

Ca. Trs. & Estates Quarterly 2023, VOLUME 29, ISSUE 3

PROBATE JUDGES AND LAWYERS DON’T ALWAYS THINK ALIKE—ARE PROBATE JUDGES’ BRAINS "ABBY NORMAL"?

Written by Hon. James Steele (Ret.)*

One of my all-time favorite movies is Young Frankenstein, a comedic film parody based on Mary Shelley’s "Frankenstein; or the Modern Prometheus" in which Dr. Victor Frankenstein creates a living creature from non-living tissue. At one point in the movie, Gene Wilder (Dr. Frederick Frankenstein, a decedent of Dr. Victor Frankenstein) is almost killed by the monster he created who he had anticipated would have been perfectly normal. Wilder then inquires of his assistant, Marty Feldman (Igor), whether Igor had, as instructed, obtained for implantation the brain of "the late Hans Delbruck-scholar and saint". Feldman then admits that he had inadvertently dropped the brain while attempting to steal it but was fortunate to find an even better one ("no wrinkles!"). Wilder calmly inquires as to whose brain he implanted into the "7 foot tall 4 foot wide" monster he created to which Feldman replies "Abby". "Abby who?" Wilder asks to which Feldman responds: "Abby… somebody". Upon further questioning, Feldman admits the jar containing the brain was marked "Abby Normal". I have often wondered if lawyers similarly think that the transformation from practicing lawyer to judge somehow also involves the implantation of an "Abby Normal" brain. This article, which is intended to help explain the reasons why judges and lawyers don’t necessarily think alike, will hopefully dispel the notion that judges’ brains are just "Abby Normal".

I have often been told during the mediation process how much parties and counsel appreciate a "judge’s perspective" on their cases. Having successfully assisted lawyers and their clients in resolving thousands of cases during the past eight years as a neutral, it has become clear that sharing the unique perspective of a former probate judge was instrumental in bringing about a number of those settlements. While there are a great many excellent, highly effective, and accomplished attorney mediators who are extraordinarily well suited to assist parties in arriving at what I like to refer to as the "point of mutual unhappiness," this article is intended to assist counsel in determining why and when utilizing a retired judge, especially a retired probate judge, might be particularly advantageous to the settlement process in probate matters. Part of that analysis involves consideration of the reasons why judges and lawyers don’t necessarily think alike in assessing cases or in formulating settlement strategies.

I regularly employed the services of mediators during my nearly three decades in the law prior to my appointment to the bench. Depending on the circumstances, I utilized retired judicial officer mediators in some cases, while in other cases, I sought the assistance of experienced attorney practitioners. Paramount among the factors I considered when selecting a mediator was client preference. For example, some clients expressed a decided preference for an attorney mediator with significant specialized education, credentials, and work experience, especially in cases involving technical areas, such as civil or structural engineering. The clients believed those industry-specific mediators would be better equipped to understand certain aspects of the case and would, in many instances, speak the language of the clients and their retained technical experts. In other instances, for example in representing corporations, oftentimes through in-house counsel, or in cases involving highly sophisticated clients with extensive

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