In a four-part blog series, we explore some practical tips for parties preparing to file a will contest or defend against one. In this third post in the series, we focus on the benefit of the discovery process that is commonly invoked in a typical will contest. Discovery is the formal method that attorneys engage to learn more about the facts of the probate litigation, and the type and scope of that discovery process is determined in large part by what the attorney or client does not yet know.
It is a common saying between attorneys, and we may joke about it from time to time, but it is almost always true: Your client’s case never sounds better than the first time you hear it. All this means is that when we first meet our clients all that we hear and learn are the facts our clients believe are good and favorable to their views. Our clients have important stories to tell. Learning these facts early is imperative to shape the advice and counsel we provide to our clients to proceed toward their objectives. But, in every piece of litigation, there comes a point when we have to learn what our clients either do not know yet or do not want to share with us in our initial meetings. Finding out what the other side knows, believes, and either can or cannot prove, is one of the most important reasons why we engage in the fact-finding exercise of discovery.
Discovery in will contests takes a variety of shapes. Some of it happens in writing. Other parts happen in person. All of it is critical, and it is also fairly time consuming, which means that the discovery stage of a will contest is often the leading reason why probate litigation can become expensive quickly.
Discovery in probate litigation might consist of asking specific questions to another party or person, either in written format or through an oral deposition where that witness must answer questions under oath. The parties might use certain discovery tools to unearth documents and records that span years. Or they might use other discovery tools to confirm that there are certain facts upon which all the parties agree so that time and expense can be saved in proving undisputed facts. A significant portion of the expense of litigation is incurred during the discovery phase of any contested probate. As logic would dictate, the less we know, the more it costs to educate ourselves.
At Caldwell, Bennett, Thomas, Toraason & Mead we work hard. We are determined to bring our best effort every day. While skill, talent, and knowledge are necessary for producing good results, our passion for helping our clients fuels truly excellent performance. Contact us to learn more.
Read the other tips here: