I am and have been for more than 30 years an attorney practicing law in Arizona.  I have had my own firm in Scottsdale for more than 27 years, and for many have practiced heavily in contested probate proceedings, including those arising under Title 14 of the Arizona Revised Statutes.  We currently specialize in probate litigation, including contested matters under Title 14.

I have carefully read SB1699, new proposed A.R.S. § 14-1306: Mediation; bench trial; jury trial; civil penalties.  For at least the following reasons, I strongly urge you and your colleagues to vote against this Bill.

Please view my comments from this perspective: as a litigator, my firm will gain if this bill passes, since it will create more litigation.  It will create more problems than it purports to resolve, as well as increase the cost of litigation.  This Bill will be bad law and will create unintended problems.

Please also keep in mind the underlying purposes and policies of Title 14, which are as follows:

  1. To simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors and incapacitated persons.
  2. To discover and make effective the intent of a decedent in distribution of his property.
  3. To promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to his successors.
  4. To facilitate use and enforcement of certain trusts.
  5. To make uniform the law among the various jurisdictions.

See A.R.S. § 14-1102(B).

As well-intentioned as the proposed law may be, it will run afoul of its purposes and policies.

  1. Access to Justice: This Bill will impede, rather than promote, access to the Courts by our citizens.  Many Title 14 proceedings are initiated by individuals without an attorney.  (The Arizona Courts have numerous self-help websites, with instructions and forms, to help self-represented individuals initiate and administer guardianship, conservatorship and other proceedings under Title 14.)  Self-represented individuals already have enough problems navigating the probate code and rules.  SB1699 will add even more requirements and unnecessary hurdles for those numerous cases where good intentioned self-represented citizens seek to invoke the jurisdiction of the Court for the legitimate protection of another or to administer an estate of someone who has died.
  2. Mediation: The provision in the bill addressing mediation is unnecessary and redundant. Arizona law already provides for and promotes mediation.  See e.g. R.S. § 14-1108; Ariz. R. Prob. P. 21 and Ariz. R. Civ. P. 16(i).  There is no need or benefit to include additional provisions directing or encouraging mediation.  There is also no need to provide further requirements to put on the record the reasons why mediation was not pursued or not “accomplished,” whatever that means.  If the author is envisioning that the parties will put on the record why mediation was unsuccessful and the matter was not resolved, that will just result in side litigation where the parties are blaming each other for not settling, when the underlying issues have still not been resolved.  This will stifle, rather than promote settlement, and is contrary to Arizona law that settlement discussions are typically inadmissible.  See e.g. A.R.S. § 12-2238; see also Ariz. R. Evid. 408.
  3. Bench Trial, Then Jury Trial: By allowing a party to demand a jury trial after a bench trial, the Bill would effectively add another layer of appeal in Title 14 proceedings and stands to create inefficiency. But the new trial – a jury trial – will require an entirely new trial, at least on the issues to be reviewed. As a result, a case would conceivably need to go to trial twice before a party would have a true right of appeal to the Court of Appeals. The Bill would also only allow those whose “rights have been substantially violated” to demand a jury trial following an unsuccessful bench trial; however, the proposed statute does not include any explanation or standard for the Court to determine when someone’s rights have been substantially violated to have the right to a jury trial.  The courts are already backlogged. It would likely be impossible for the Court to schedule a jury trial to occur within 45 days of request.   The Bill proposes to allow a litigant to allow the jury to “reexamine portions of the verdict following a bench trial.”  There is no method or procedure for how the jury is supposed to do that.  Would all of the same witnesses have to testify and evidence have to be presented at this reexamination?  Would the jury be required to read a “cold” transcript without being able to view the witnesses and assess credibility?  Is the jury the functional equivalent of the Court of Appeals in the follow-up jury trial?  It is senseless and unworkable.
  4. Jury Trial: Pursuant to A.R.S. § 14-5303(C), individuals allegedly in need of protection in a guardianship proceeding have the right to request a jury trial. For a variety of reasons, including cost, embarrassment, and other factors, they rarely invoke this right.  Guardianship and conservatorship proceedings are typically expedited proceedings that, for most, already cost too much.  If you allow any participant in a guardianship or conservatorship proceeding, particularly an emergency proceeding (the Bill does not differentiate between emergency and non-emergency proceedings), you will create unintended weapons in such cases: the weapons of delay and cost.  It is much more complicated, time-consuming and expensive to present a case to a jury than a judge.
  5. Standard of Proof: Except in limited circumstances, the standard of proof in a probate proceeding is by preponderance of the evidence.  The Bill does not seek to change that, except in the context of a jury trial following a bench trial.  Thus, the bench trial would be governed by the preponderance of the evidence standard, but the clear and convincing evidence standard would apply to the jury trial.
  6. Civil Penalties: The Bill provides for civil penalties up to $2,500 if the jury “deems a litigant has abused this section.”  There is no explanation for what it means for a litigant to abuse this section.  For example, does the penalty apply if someone demands a jury trial, but loses? Further, Arizona law already provides remedies for abusive/unreasonable conduct. See R.S. § 14-1105; see also A.R.S. § 12-349. An additional provision for civil penalties raises a host of issues, such as whether application of one provision precludes application of another.
  7. False or Withheld Exculpatory Evidence: The Arizona Rules of Civil procedure govern disclosure and discovery and already include penalties and other remedies for a party’s failure to timely and properly disclose evidence, including exculpatory evidence.
  8. Court Disclosure and Void Order: The Bill proposes to deem void and unenforceable any order if the Court fails to disclose any provision of the Bill litigants at the commencement of the proceeding.  Even the most minor or innocuous error would allow a litigant to literally wipe the slate clean and restart the litigation.  This will further delay proceedings and unnecessarily increase the cost of litigation.
  9. Re-Adjudication of Previous Matters: The Bill proposes to allow the “reexamination” of any “previous matters.”  This would apparently allow all litigants to request a review of all prior matters.  There is no standard specified for such reexamination.

The system is already overburdened without the “assistance” of this Bill. Should the Bill become law, there will be more problems, expense, and delay – all of which directly contradicts the policies and purposes underlying Title 14 of the Arizona Revised Statutes.

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