Increasingly, trust instruments grant trustees “discretion” to do certain acts. Drafters include this language to account for unanticipated circumstances and make a trustee’s life easier. But even where a trustee has discretion, they can act improperly. “A grant of absolute discretion to a trustee is not a roving commission – the trustee must be guided…
Legal Articles
Evidence: Lack of Foundation
Whether it be at a deposition or at trial, objections for “lack of foundation” are one of the more common objections. But what does it mean? An objection based on lack of foundation usually means that the evidence or document lacks authentication, identification, logical relevance, or legal relevance. Kappel v. Prater, 599 S.W.3d 196 fn…
Expert Witness Admissibility
Trial courts have substantial discretion when deciding whether to admit evidence at trial. This discretion extends to expert witness testimony. On appeal, a trial court’s decision to admit or exclude expert testimony is reviewed for an abuse of discretion. Spalding v. Stewart Title Guar Co., 463 S.W.3d 770, 778 (Mo. 2015). Not everything is discretionary….
Challenging the Admission/Exclusion of Evidence
A trial court has “considerable discretion” regarding the admission or exclusion of evidence. Lozano v. BNSF Ry. Co., 421 S.W.3d 448, 451 (Mo. 2014). An appellate court will typically only overrule a decision on the admission or exclusion of evidence if it is a clear abuse of discretion. The error must “materially affect” the merits…
Improper Admission/Exclusion of Evidence
In trials in Missouri, the Court has “considerable discretion” in the admission or exclusion of evidence, and, absent clear abuse of discretion, its actions will not be grounds for reversal. Cox v. Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107, 114 (Mo. 2015). An abuse of discretion occurs if the decision is “clearly against…
Trial Continuances
To obtain a continuance and/or delay of a trial setting in Missouri, a party needs to comply with Rule 65.03. This requires, among other things, that the request be accompanied by the affidavit of the movant or some other credible person setting forth the facts upon which the request for continuance is based. The grant…
Inadequate Jury Verdicts, Requests for New Trial
Even after a jury’s verdict is entered, a case may not be over. The Court may sometimes order a new trial. One basis for a new trial is if a jury verdict is inadequate based on the facts and circumstances of the case. A trial court’s decision to order a new trial based on a…
Expert Witnesses: Qualifications & Requirements
Sometimes litigation requires expert testimony to highlight areas of technical or specialized knowledge. To be qualified as an expert witness in Missouri, “it must appear that by reason of education or specialized experience [the expert] possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion…
Trustee Discretion, Decision-Making
One of a trustee’s most important duties is to administer a trust in accordance with its terms. Many breach of trust cases, therefore, revolve around whether a trustee has followed a trust’s provisions and worked in the beneficiaries’ best interests. Understanding the language and provisions of the trust is important in this type of litigation….
Appeals Attorney
A lot of attorneys don’t handle appellate practice. It requires excellent writing skills and sometimes oral argument in front of appellate judges (no juries), who are extremely well-versed in the law and will have no problem asking probing questions to explore weaknesses in an argument. The procedural guidelines are also much more strict. It’s not…