During probate litigation, it is common for participants to be deposed in what is called a “deposition.” In this blog post, Dallas attorney J. Brian Thomas shares insights for anyone who may be undergoing a deposition under Texas law. In summary, be factual, stay concise, and stay on topic. If you are involved in a probate, estate, or trust dispute and may be facing a deposition, consult with your attorney for more detailed advice.
Depositions in Probate Litigation by J. Brian Thomas
About a year ago, we published a blog post focusing on the importance and usefulness of oral depositions in probate litigation. That post featured some mechanical highlights of the deposition. To recap, a deposition is an event where the sworn testimony of a fact witness or party is 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. We focused on the deposition from the position of taking one (i.e. eliciting testimony from the witness). This time, let’s focus on the event from the perspective of defending it (i.e. being the witness).
Undoubtedly, giving deposition testimony for the first time is a true test of nerves. The experience is different and new. The question / answer style can be disorienting. And, many clients naturally feel nervous or apprehensive about their performance. In the end, they want to do well and cause no damage to their own case.
When we prepare our clients to give testimony at a deposition, the process is almost always the same whether the case is a will contest, guardianship dispute or suit involving some breach of fiduciary duty. In fact, apart from discussing the unique facts of the case beforehand, the preparation process probably applies to just about any sort of litigation.
There are few more important reminders in a deposition than the cardinal rule: Tell the truth. Some clients hear this advice and shrug it off as a given. Of course I’ll tell the truth. But the cardinal rule is not just important in that it reinforces the need for honesty. It is also important for what it tells you not to do. The deposition is not a time to tell your story. It is not a time to tell the other attorney what you think they need to hear. It is not the time to make your argument sound better than the other side’s.
If we look at the cardinal rule in this light, it gets easier for witnesses to remember that they cannot (and should not) testify about what they do not know. A witness’s personal knowledge is not an unlimited resource, and guessing or speculating about the answer is not conveying the truth. It is just conveying the witness’s best guess – something that is almost useless in virtually every contested probate case.
Then, there are some mechanical reminders. In ordinary conversation, it is very common for one person to begin talking before the other one is finished. When we carry this habit into a deposition, the result can be terrible. The deposition transcript, which could be very useful at trial, will often be muddled by interruptions and half-sentences. The question can get unclear, and the answer even worse. It frequently takes constant reminding to speak just one person at a time, and attorneys are sometimes bad at this too, but it’s importance cannot be overstated.
Finally, do not go into your deposition feeling that your testimony has to accomplish something. Your testimony is not going to win the case at deposition. It is not going to convince the other attorney that their client’s case should be dismissed. Deposition testimony is sometimes nothing more than a collection of facts, and the argumentative parts of every deposition (it always happens) are almost never that useful.
If you or a loved one is involved in a probate, estate, or trust dispute under Texas law, you may be facing a deposition. In this short blog post, J. Brian Thomas provided some useful tips to being successful at the process. Be factual, be concise, and do not be argumentative. For anyone in the Dallas area, including the suburbs of Frisco and Plano, who may be facing a dispute over a will, Burdette and Rice attorneys offer a no charge initial phone consultation. Every situation is unique, so you are highly advised to reach out to one of our Dallas-based attorneys to discuss the unique situation vis-a-vis the probate process under Texas law.