SECOND OPINIONS

What if your expert didn't give you the opinion you were seeking? Should you shop-around in the hope of finding someone who will produce a different result? The answer is: if money is not an object and you honestly feel your quest will be successful, go ahead. My experience has been that, if the experts are given the same materials to examine, they will arrive at the same, or similar, opinions. But if you *know* the examiner is wrong, give it a try.

What if you *did* get the opinion you were seeking, might your position at trial be stronger and more convincing if there are two examiners testifying in your behalf... strength in numbers? Again, if you have the money and feel the interests of your case will be best served with two, go ahead. Personally, I feel that if you hired someone who is qualified and experienced in a courtroom setting, one examiner is all that is needed. Time is precious in court and the judge could get impatient going over something that has just been covered in great detail. Irritating the judge is never a sound strategy.

What if there "are" two different opinions. How is it that two qualified, competent examiners could arrive at different opinions? More often than not, they have been given different cases. Hard to imagine, but in an adversarial circumstance, there is no guarantee that everyone will be playing nice. One expert may have had access to original document and the other not. One side may be holding on to standard (and possibly exculpatory) material and not sharing. If one of the advisories *knows* the unhappy truth about the disputed handwriting and that truth is not good for his or her case, slow-walking could be the flavor-of-the-day.

WHAT THE DOCUMENT EXAMINER WILL NEED FROM YOU

In order to determine the validity of a suspected forgery, the disputed material must be compared to known, verifiable handwriting samples (exemplars or standards). These handwriting samples should be:

1. Sufficient in number - One or two standards will result in a weak opinion. Every writer has "natural variation" in their handwriting. One or two standards will not give the examiner an accurate representation of what the natural variation might be nor will they identify the degree to which it exists. Try to get 20 standard writings. More is always better.

2. Relevant - If the suspected forgery is a formal signature appearing on a Will or Power of Attorney, find formal signatures to compare it to. Comparing a disputed formal signature to the handwritten numbers in the margins of a checkbook or a hastily written shopping note will not produce meaningful results. Apples to apples.

3. Contemporaneous - The writing of an individual can change over time, sometimes drastically. Illness, age, addiction and trauma (physical or emotional) can have a dramatic effect on a person's writing. Handwriting samples should be dated as close as possible to the date of the suspected forgery; some before, some after.

4. Original documents - Non-original documents, to the examiner, are 2-dimensional. A wet-ink signature on a document is 3-dimensional. It has depth, and that matters. The image created by a copy machine is quite literally black and white. The image will reproduce or it won't. All of the shading and much of the nuance is lost. If the original documents exist (both standards and disputed), it is worth the trouble to make certain the examiner has access to them. Non-original documents will always result in a qualified opinion.

In addition, keep in mind that there are no "preliminary opinions" or "first impressions." The professional examiner does not have that luxury. There is no opinion unless and until a thorough examination has been completed.

Also, the examiner is not an advocate. He or she must remain totally objective. There is no guarantee that you will get the opinion you seek. What you will get is an honest, unbiased assessment based on careful consideration and decades of experience. And, the fee is not dependent on the outcome of the examination.

WHEN WAS THE LAST TIME YOU LOOKED AT YOUR WILL?

Have you looked at your Will lately? When you bought your house back in 1983, your attorney thought it would be prudent for you to have a Will. You own a house, you now have assets... you need a Will. And you haven't looked at is since. Do you even know where it is? Somewhere in the filing cabinet maybe? The safe deposit box? Do you still even own the house? Have you upgraded, or downsized? Are those fortunate few to whom you bequeathed your Niagara Falls paperweight and snow globe collection still with us? Are the witnesses or the attorney still alive? Does you 1983 signature look *anything* like your signature today?

It wasn't always thus, but many of the cases that find their way to my office now involve contested Wills; people fighting over the estate of a family member or loved one. Mom dies after a protracted illness and a Will mysteriously appears leaving everything to a nephew she hasn't seen in decades, or a ne'er-do-well sibling, excluding the daughter who provided all the care for Mom in her declining years. Or, grandpa went to Atlantic City with a group of seniors last May and, unbeknownst to anyone, "married" a 23 year old blackjack dealer named Brandi. Who knew? Grandpa dies suddenly and, like clockwork, the bereaved Brandi appears, lawyer in tow, waving grandpa's "Will," ready to claim the house, the stock holdings and his cherished snow globe collection. Grandpa's wishes, clearly.

So, what do you do when the aforementioned nephew, or ne'er-do-well sibling... or Brandi... shows up with an attorney and a Will? Here are a few tips:

It is imperative that you see an ORIGINAL document. A person so inclined and with a rudimentary understanding of Photoshop, could take a perfectly valid signature and create a totally bogus document. Remember, if the document *was* created in Photoshop, there will be, nor can there be, an original wet-ink version; a pretty convincing copy perhaps, but no original. And, it has been my experience that, when it is in someone's best interest that the original disappear, it will.

Page substitution: It is not uncommon for a person to take page 3 out of a 4 page Will and replace it with a new one. This leaves the critical signature page intact and opens up a whole world of possibilities. Just think of the magic someone could conjure-up with a new page 3. So, hold each page up the a light source or window. Does the paper of each page look similar? Is the texture and weight the same? If you have access to a black-light, try that. Different paper can luminesce differently. Superimpose the various pages to check the alignment of the printed text. Do the margins, or the paragraph indentations, or any "centered" text match? Check for water marks. Do all pages have them and are they all the same? Were all the sheets printed with the watermark properly oriented? You may check with the paper company to determine whether or not that particular watermark even existed when the Will was allegedly written. They do change them occasionally. And of course, check the font and the font size.

Staple holes: A multiple-page Will can be, for legitimate reasons, taken apart, copied and stapled back together again. What would you think it pages 1, 2, 3 and 5 all had six sets of staple holes along the top margin but page 4 only had one set? Why would that be?

The signature appearing on a Will is often "shaky" or tremulous. As a person ages, their motor functions might become compromised. Illness can have that effect on a handwriting as well. These "shaky" signatures often give the missing-in-action nephew or the ne'er-do-well sibling misguided confidence. They think... "I can do that!! I can make a shaky signature and no one will be the wiser!!" The fly in the ointment is this: there is a difference between the tremor of a sick and/or elderly person (the loss of motor control) and the tremor of someone attempting to "simulate" a shaky signature (excessive motor control). You might not be able to tell the difference, but a qualified Forensic Document Examiner probably can.

All of these suggestions are a good starting points. However, if you happen to discover

a whole laundry list of anomalies in your contested Will, no Court is going to be interested in your opinion. You will need the testimony of an expert.

So... update your Will. Make multiple original copies and sign all pages of each copy. You should have one, your attorney should have one and maybe another family member or trusted friend. It is clearly worth the effort. You certainly wouldn't want your precious Niagara Falls paper weight to fall into unscrupulous hands.