Probate is a complex process. Once you file for probate, a disgruntled relative who has been disinherited by the will may challenge the will. It’s important to fight the challenge. Fighting the challenge can be a tough task especially if the disgruntled relative is determined to fight it out. During such times, having an experienced Farmington Utah probate lawyer assist you is probably the best thing that can happen to you.
Probate litigation can be a hard fought battle. Neither side may be willing to let go. In such cases, the testimony of an expert witness can be crucial. If you are in the midst of a probate litigation in Utah, check with your Farmington Utah probate lawyer to know if you should hire the services of an expert witness. It’s always better to take a decision after speaking to your Farmington Utah probate lawyer than take a decision unilaterally and inform your Farmington Utah probate lawyer.
Prior to the actual deposition date, your expert witness should meet with an experienced Utah probate attorney to begin preparing for the experience. There are several points that should be reviewed.
• Exactly what will be expert’s role in the proceedings?
• What will be expected of the expert?
• What can the expert expect?
• Who will participate in the deposition?
• Will the plaintiff be present?
• What types of questions can be asked?
• Who will ask the questions?
• What is the examining attorney like?
• Where will the deposition take place?
• How long might it last?
• In testifying, what should you be wary of; what can cause problems?
• Will the attorney be able to coach or help you in any way during the deposition?
Witnesses other than adverse parties in a suit must, as a general rule, be subpoenaed. Parties usually attend after some form of notice and without service of subpoena. A witness who is requested to testify at a deposition as a fact (material) witness is not required to do so and has the right to demand a subpoena, which is the only legal recourse to force compliance with such a request. If a subpoena is issued, the prospective witness is then required, under penalty of law, to appear for the deposition.
At a deposition the individual who presents testimony (the deponent) can represent either side. This individual may be a defendant, a witness to the facts (material witness), an expert witness, or the custodian of relevant documents. The proceedings are basically a very structured process of examination and cross-examination. The ground rules will be presented to each witness at the outset of the proceedings. Everyone present will be identified for the record.
The deponent is placed under oath, and all statements made are recorded by an official court reporter or other stenographer, or by any individual legally authorized to administer an oath and take such testimony. The locale is usually the office of the attorney who requested the deposition. The procedure is the same for parties, witnesses to facts, and expert witnesses.
Well in advance of the actual date of the deposition, the plaintiff’s attorney will have subpoenaed all records and materials relevant to the lawsuit, including any materials in the hands of the defendant. It is essential, therefore, that a person named as witness does not take any personal notes, memos, diaries, or any such written or taped information to the deposition. This would make them discoverable by the plaintiff’s attorney, and they could be used as evidence against the person. All documents or other materials in the person’s hands must be prescreened to identify any privilege that might apply to them. Any such materials should have been given directly to the attorney as soon as possible, thus making them attorney’s work product and nondiscoverable. At the deposition the examining attorney may ask you if you have kept any personal journals, diaries, or anecdotal records. Under oath, you must confirm that you have or have not done so.
With the approval of your attorney, you can take anything to the deposition that you both agree will be helpful; however, anything you do bring might be identified by the examining attorney as an exhibit and retained for possible later use in court. If you are directed to bring documents of any kind and refer to them in answering questions, copies must be given to the opposing attorney.
The procedures of the deposition anticipate those of a trial. As a general rule, the attorney who requested the deposition will begin the examination and will propose most of the questions to the deponent, whose own attorney will object as necessary. The lawyers for each side will conduct a direct examination of the deponent, and each side will have the opportunity to cross-examine.
The questions that can be asked of the deponent may be very specific, very personal, or very general. At times the questions may seem completely irrelevant to the issues. Much wider latitude is allowed in a deposition than in a courtroom, and the scope and intensity of the questions can be much broader. The questions asked at a deposition are not limited by the same rules of admissibility of evidence as those in testimony at a trial. Therefore, virtually any relevant question may be asked, including any that might lead to additional discoverable evidence. An expert may be asked to assist in preparing questions for the plaintiff.
A deponent is not required to answer each and every question. However, any question that is deemed relevant to the issues in the case should be answered. These can include questions that might not be admissible in a trial. You can invoke the Fifth Amendment and refuse to answer any question that you consider self-incriminating. Should you have already answered a question pertaining to the same topic, you may have forfeited the right to claim the Fifth Amendment when succeeding, relevant, questions are presented to you.
Your attorney will be present to advise you and to object to any questions that he or she considers self-incriminating, ambiguous, vague, confusing, or irrelevant. Attorneys are required by law to preserve your legal rights and maintain your best interests. A deponent can invoke lawyer-client privilege and cannot be required to answer any questions that derive from communications with his or her attorney. These are considered privileged and confidential and the content or nature of these communications is not discoverable. Ultimately a judge and only a judge, in a court of law, can direct that a witness must answer a question.
The deposition can be an adversarial encounter for all participants. The attorneys endeavor to learn if there is anything a deponent is trying to cover up or hold back. In this effort they may resort to browbeating, insinuation, derision, accusation, and insult. Any tactic may be attempted in an effort to reduce a deponent to a state of confusion and contradiction. There is no personal motive in this behavior. The attorney is simply doing what is required to obtain information. He or she has the right to examine or cross-examine a deponent. A deponent may not like the attorney, the line of questions, or the tactics used, but this is no reason to become overtly hostile toward the attorney. Evoking such behavior by a deponent simply makes the attorney’s task easier.
The lawyer for either side is going to probe and press each deponent in an attempt to find weaknesses. If the individual can be controlled in a deposition, he or she might be controlled to advantage in a courtroom to make or break a case.
Each deponent has the opportunity to review the transcript of his or her testimony and clarify, correct, or expand on any of the answers. The recorder of the deposition testimony will forward a copy of the complete transcript to each attorney who in turn should provide the appropriate deponents with a copy. Read it very carefully making separate notes as you go. Rules vary by state regarding changes and/or additions that can be made to a transcript. You cannot change an answer, but you may correct any portions of the transcript that you believe to have been misunderstood or mistranscribed by the recorder. Your comments or corrections must not be made anywhere on the transcript; convey your thoughts to your attorney verbally or by confidential memo. Any corrections must be made on the forms that may accompany the transcript. When you and your attorney have agreed that the transcript is accurate, you will sign it and remit it and the accompanying forms with comments and corrections to the deposition recorder.
You should retain a copy of these documents for your personal file. If the lawsuit should proceed to trial, you can expect to be asked many of the very same questions that are detailed in the transcript of your deposition. You can also expect to be presented with any number of additional questions that may have been derived from the transcript—from what was asked and from what was not asked. A competent trial lawyer will carefully review the transcript both to develop and to anticipate answering such questions. You should have advance knowledge and preparation for such surprises.
A witness who testifies at a deposition or a trial as an expert witness can expect the opposing counsel to ask questions that are designed to discredit the expert credentials of the witness or to confirm that the witness is truly an expert, and then weigh his or her expertise and credibility against his or her own testifying experts. Questions will be rephrased or repeated to elicit inconsistencies or contradictions. An attempt will be made to show that the expert witness is an expert witness, a professional witness. It is the testifying expert’s role to educate the attorneys, the judge, and the jury while not sounding pompous, condescending, or overly pedantic. An expert witness should never address a subject or issue that is outside his or her area of experience and expertise.
Preparing For A Deposition
Knowing what to expect is the best preparation for a deposition. Proper preparation will give the witness the necessary confidence to survive the ordeal. An experienced malpractice litigation attorney will be invaluable in this respect. Trial lawyers who specialize in malpractice frequently find themselves sitting across the table from a familiar professional opponent, and they remember his or her temperament, tactics, abilities, and successes. Your attorney, in formatting the best possible case, should allow some time to provide you with a coaching session. The attorney can do this personally.
He or she will be able to anticipate the nature and generally the content of the questions that could be asked by the opposing side and be best able to educate and prepare you. These are the same or similar questions they would want to ask and are likely to have asked in numerous cases in the past. The attorney may propose a mock deposition in which he or she assumes the role of the opposing counsel who will examine you. Some attorneys feel that an extensive predeposition review of case materials may not be helpful to a deponent, or that a mock deposition may make their client’s responses sound overly rehearsed.
Begin to prepare yourself by carefully reading a copy of the case along with the accompanying documents and making your own chronological summation and interpretive notes. As you do this, try to anticipate any possible questions. Unless you are given a working copy, do not write any notes or comments in the record itself. Any such information included in the record in any way could make it discoverable and your own notations could be used against you. Any such annotations or comments should be labeled as attorney’s work product and should be retained by your attorney to prevent discovery.
Never assume that a will is not for you and that you are better off using trusts for the purpose of estate planning. More often than not, a will may be the best option for you. It is important that you understand the entire probate process before you take a decision. Speak to an experienced Farmington Utah probate lawyer.
Farmington Utah Probate Lawyer Free Consultation
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506