Strategic Roadmap for Defendants
If you have been sued by someone claiming they were incompetent or subject to undue influence, and you have a trial date set, time is of the essence. Here are a few critical steps to take in your defense:
- Focus on the Cognitive Test: Your entire strategy should revolve around proving the plaintiff understood the “nature, purpose and effect” of the contract. Their diagnosis, poor judgment, or subsequent regret is not the central issue.
- Aggressive Discovery: Immediately develop a discovery plan. This includes:
- Depositions:Depose the plaintiff and ask detailed questions about their understanding of the contract at the time. Also depose family members, friends, and any professionals (like their attorney or accountant) who were involved or aware of the deal.
- Document Requests:Subpoena all relevant records, including the plaintiff’s medical and psychiatric records from the period in question. Look for notes from doctors that describe the patient’s cognitive state.
- Contemporaneous Evidence:Gather all emails, letters, text messages, and drafts of the contract. Evidence showing the plaintiff negotiated terms, asked intelligent questions, or explained the deal to others is powerful proof of their understanding.
- Retain a Forensic Psychiatrist: Hire your own expert to review the plaintiff’s medical history and the case evidence. This expert can provide a professional opinion on whether the plaintiff’s specific condition would have negated their cognitive capacity to understand the transaction, as required by the Smalley
- Investigate Other Transactions: Find out if the plaintiff was engaged in other business or legal activities during the same time period. If they were signing other contracts, managing investments, or making complex decisions, it directly undermines their claim of incapacity regarding your specific deal.
The burden of proof is on the plaintiff to show they lacked understanding. Your job is to present overwhelming evidence to the contrary.
