August 23, 2012
Authored by: Luke Lantta
A lot of litigants end up getting it, especially in such emotionally-charged litigation as probate litigation. Most of the time those litigants just end up expressing those feelings of regret to their lawyers. Sometimes they try to take it further. How can the regretful party’s lawyer see it coming and how can that lawyer guard against it?
After settling a probate matter, a plaintiff sought an order vacating the consent order of settlement that resolved that probate matter. In the hearing to approve the consent order, the plaintiff agreed to the terms of the settlement on the record under oath, told the judge he waived his right to a trial, and understood the agreement and entered into it voluntarily.
Apparently, the plaintiff made some comments during the hearing approving the agreement that prompted the judge to carefully ask sufficient questions to ensure that the plaintiff voluntarily entered into the settlement and that he understood that the settlement ended the litigation.
If a client is settling a contentious, emotional probate matter, it might be a good idea to cover these same areas with your client as the New Jersey trial court did with the plaintiff before you finalize the settlement agreement. Documenting the dicussion or having that communication with your client in writing is probably a good practice.