The prospect of a probate trial presents some new challenges and new learning needs. Prior to the actual date of the trial, there are a number of things you, as a defendant in a suit challenging a will during probate, should do. Some of these you can do alone, others you will do in collaboration with your Park City Utah probate lawyer.
Request that you have an opportunity to meet with your Park City Utah probate lawyer
at a convenient time, and for a reasonable number of times, to discuss the case to that point and the implications of the impending trial. Discuss the strategy and any possible defenses he or she proposes to use in your behalf. To prevent inadvertent disclosure, the attorney may decline to reveal a plan to you. Ask for an honest appraisal of your situation—the weaknesses as well as the strengths of your case. During the meeting, ask for a brief outline of the court proceedings—what you can expect, what will be expected of you. This is also a good time to discuss the possibility of a settlement.
Much of this preparation will be a review of documents and records that you should have examined previously in preparation for the deposition. Reexamine the complaint, the medical record, and all other documents relevant to the case. Refresh your memory on the details, the facts, and the allegations. Make copious notes, but be sure that only you and your attorney have access to them. If you have not already done so, prepare a detailed, chronological summary of all the events surrounding the alleged incident. If this has already been done, review it carefully and add any additional information as necessary.
Read the transcript of the deposition, particularly your testimony. Review a videotape of the mock deposition and/or trial that your attorney may have conducted. Study your performance, and critique yourself objectively. Identify those mannerisms or speech patterns that might be considered distracting should you have to take the stand in court. Make an effort to correct these. Rehearse, but try not to show it. Your testimony should not sound memorized or canned.
Conduct of a Witness During a Trial
Virtually all of the suggestions and cautions that have been made previously regarding a deposition apply to the conduct of a witness in a courtroom. If you have survived the deposition and learned from it, you are reasonably prepared to face the trial. The protocols and procedures of a trial are different from those of a deposition. The examining attorney may be more constrained by courtroom etiquette, rules of evidence, and other procedural laws, and may appear less aggressive here. There are several other differences you need be aware of in testifying in a courtroom.
Discovery
The formal investigation that involves the exchange of information and documents between attorneys for opposing sides is called discovery. This process of exchange is governed by court rules of procedure and sanctions. Generally all information that is not privileged, that is relevant to the lawsuit, or that might lead to additional admissible evidence is discoverable. It is at this stage of the legal process that both sides make every conceivable effort to [discover] all the evidence, facts, circumstances, events, and details that may be relevant to the alleged instance of malpractice. In addition to such information, facts, and data, the process will also assist the plaintiff’s attorney in identifying any additional possible defendants; and either side may identify witnesses to facts of the case. Discovery will preserve all of the information derived for possible use at a trial.
The purpose of the discovery process is to assure that all of the parties in the lawsuit are fully informed of all of the facts and of all the contending claims regarding the facts. These include both the evidence and the witnesses to be presented by either side. The objective is, ideally, to provide both sides with an equal advantage in the overall preparation of their case and the strategies and tactics they will pursue in prosecuting or defending it. The case can then be tried on the merits, the evidence, of the case. Ideally it eliminates any untoward surprises and trial by ambush.
The process of discovery serves to define the primary issues of dispute in the case so that in the event of a trial the focus will be on these, resulting in a more expedient trial. If all parties agree on the facts and issues, discovery can facilitate an out-of-court settlement or possibly a summary judgment. If the process reveals that there is, in fact, no basis for the lawsuit, it can result in a summary judgment or dismissal of the case. Discovery is the longest and most arduous step in the legal process. Under certain conditions, the courts can impose limits on the discovery process.
Interrogatories
Interrogatories consist of a series of written questions submitted by each side in the lawsuit to the parties on the opposing side. These questions may request very specific information and detailed answers, or they may be very general in nature.
In the interrogatories, each side will require the name, address, and title of every expert witness who is expected to be called at the trial. The particular subject they will address and a report of the general nature and substance of the facts and opinions to be expected in their testimony is also requested, together with a summary of the bases, the authoritative sources, for their opinions.
Each side must submit its written answers to the questions under oath. Under no circumstances should an expert witness attempt to formulate answers and respond to the interrogatories without the direction and supervision of an attorney. The attorney will review each question with the expert witness and collaborate on an appropriate, consistent response. The expert witness may be requested to prepare preliminary drafts of answers. The final phrasing of the answers must be done very carefully to avoid any ambiguity or any suggestion or actual admission of liability. Neither side will wish to provide any more information in a response than is absolutely necessary.
Testifying Expert
Speak to your Park City Utah probate lawyer to determine if you need a testifying expert. The testifying expert is a professional expert—not a professional, expert witness. As a professional, the first duty is to serve the profession. providing a service to the legal system is secondary. Any professional who is considering this role must be able to demonstrate the expertise and integrity demanded of both masters.
Inevitably, there will be the same conflict and disagreement between the parties in a lawsuit as to what constitutes an expert witness and over the credibility and merits of each expert’s testimony and opinions. There is invariably a scenario of dueling experts, some of dubious merit. The courts are filled with experts who propound educated guesses as profound opinions. The most highly qualified are often reluctant to enter into the adversarial, confrontational, and demeaning arena of trial testimony where an attorney will likely attempt to discredit the credentials of the opposition’s testifying expert by disparaging his or her education, experience, expertise, or motives. A common innuendo is that the individual is a hired gun, a professional witness, a mercenary with opinions for sale.
The professional may be questioned extensively regarding his or her prior services as a testifying expert, the time that is devoted to providing this service, and the total amount of remuneration received in the past and expect to receive in the present case. In this instance, the witness will be challenged to assert that he or she is being compensated appropriately for his or her expertise and valuable time in testifying and not being paid to testify. The objective of this whole demeaning exercise is to demonstrate that the individual is not an expert, and is, therefore, not suitable to serve as such in the matters at issue and should be disqualified. In addition to the qualifications listed, the person who intends this career must have a very thick hide.
The testifying expert cannot have any direct relationship or connection with any of the parties in the case. there can be no hint of conflict of interest; otherwise, the testifying expert’s credibility could be impeached. In accepting a case, the expert witness must be willing to determine, and judge, the merits of the case, and withdraw or continue according to his or her convictions. Agreeing to testify is tantamount to endorsement of the case and the client’s position.
Consulting expert
As a consulting expert to either plaintiff or defense attorney, the professional expert acts as a collaborator and strategist. Utilization of a nurse consulting expert represents a very cost effective way for a lawyer to prepare a well-organized and effective case and anticipate the strategies of the opposition.
Comparison of the Roles of the Testifying and Consulting Expert
Unlike the testifying expert, the consulting expert does not testify, he or she only consults, as the title indicates. This service may be provided for either side in a lawsuit. The testifying expert may have a high and visible profile while presenting testimony during a deposition or a trial. The consulting expert is invisible, working behind the scenes in a clandestine collaboration with the attorney from the initial phases of the case right on through any eventual trial where, if the client-attorney is amenable, he or she might be allowed to sit at the table in the courtroom. This could be the first time that the opposition becomes aware of this covert collaborator. Any report generated by the consulting expert is considered attorney’s work product, and as such is considered privileged and confidential. Unless a testifying expert incorporates any or all of a report generated by a consulting expert into his or her own discoverable testimony, a consulting expert ‘s work is generally not discoverable. The consulting expert ‘s thoughts and opinions are protected from scrutiny by the cloak of anonymity that the role imparts. The focus of the expert witness is much narrower, and his or her testimony will be confined to the area of his or her expertise or specialty.
Services Provided by the consulting expert:
• liaison between parties, witnesses and attorneys;
• identify and locate potential witnesses and defendants;
• interview clients, witnesses, and other parties;
• assist in the preparation of witnesses;
• aid in preparing questions and responses in depositions and trial;
• assist in the preparation of interrogatories, complaints, and other documents, and responses to them;
• identify and obtain all pertinent records and documents;
• organize, review, and analyze medical records;
• prepare summaries, chronologies, and reports;
• review, analyze, and summarize transcripts of depositions;
• identify and evaluate expert witnesses and negotiate for their services;
• prepare or obtain exhibits and/or demonstrative evidence;
• educate attorneys and other parties on facts and issues relating to their area of expertise or validate their knowledge;
• define standards of care in their profession and any deviations from them;
• research—locate, obtain, and summarize pertinent literature;
• present the client with the most current information available; and
Advantages in Using the Consulting Expert
A consulting expert bring several advantages to the party that uses their service in a probate litigation:
• they are experts in their profession;
• they know the standards of care in their profession; and
• they have the superior advantage of hindsight.
Qualifications of the Consulting Expert
Like the expert witness, the consulting expert’s credentials, ethical standards, and integrity must be above reproach for the sake both plaintiff and defendant in a case. However, the consulting expert may work on any type of case regardless of the professional specialty involved, performing a variety of services. In reviewing the records, the consulting expert can draw on his or her own knowledge, skills, experience and education in identifying and reporting the issues involved. However, professionals in any given specialty should be consulted as the need arises. It would be reckless and presumptuous for any consulting expert to present himself or herself as an expert in all areas of the profession. No one can know, or credibly pretend to know, everything about the profession and all of its specialties and sub-specialties.
Park City Probate Attorney Free Consultation
When you need legal help with a last will and testament, estate or probate matter in Park City Utah, please call Ascent Law for your free consultation at (801) 676-5506. We want to help you.