Probate litigation, whether in Dallas, Texas, or anywhere else, depends on both facts and law. In this blog post, we explore the discovery process as well as the importance of oral depositions. Listening is an often overlooked factor in the art of the deposition.
Posted: December 10, 2015
Discovery in Probate Litigation – Depositions
The first time that our probate litigation specialists meet with a prospective client is always a collision of facts and law. Our clients bring facts to the table – sometimes many, sometimes only a few. In turn, our attorneys apply the law to those facts, and then we can truly begin to analyze a client’s legal matter. Obviously, that analysis relies heavily on the facts. We can never get enough of them. No matter the kind of probate litigation our firm is retained to assist with, there are always facts to discover.
Whether we are retained to help with a will contest, a power of attorney dispute, a cheated beneficiary or a persecuted fiduciary, all of our probate litigation begins with a plan to discover more facts. Several tools are available throughout the discovery process, but perhaps none are more educational and decisive as the oral deposition.
A deposition is the sworn testimony of a witness or party taken outside of court. All of the attorneys in the case have the chance to ask the witness questions under oath and a court reporter (or even a videographer) records the entire event for later use. Poorly executed depositions can be significantly wasteful, but good ones can absolutely break a case. In this post, we will focus on taking the deposition (asking questions) rather than defending one.
Many attorneys fail to take full advantage of the opportunity presented by a deposition. They spend an inordinate amount of time battling with a witness, trying to get the witness to agree with them. Or, they ramble through a litany of questions with no clear goal. Even worse, many attorneys script out their entire laundry list of questions and pay little attention to the witness’s answers. What a waste of time and money.
Decisive depositions involve much more listening by the attorney than most attorneys want to admit. A successful deposition strives to accomplish at least one of a handful of goals. We want to know how the witness can help us or hurt us (good facts vs. bad facts). We want to gather important details by beginning with broad questions and focusing into detailed ones. We want to assess the witness’s credibility for trial. Is this person going to say something that I like, and will the judge or jury believe them?
Many attorneys fail to use depositions to their full benefit. They line them up as a way of showing the opposition that the next steps in the case will be expensive and financially frustrating. But good depositions can be much more than leverage to get the opposition to settle. Well-executed depositions can give us the facts that we need to know that our theory of the case is credible, and that the evidence we expect to support it is just as credible.
The preceding was a short summary of the importance of facts and law in any probate dispute. Our Texas-based attorneys work out of our Dallas office. In any potential lawsuit, they work with their clients to establish the facts of the case, and then they bring into the process their expertise vis-a-vis Texas law. If you are facing a will, estate, or trust dispute anywhere in North Texas, please reach out for a free consultation.