Proving Your Florida Estate Dispute: when can a party avoid a deposition
Florida probate attorneys involved in litigation of wills, trusts and estates know the importance of the discovery process. Trial lawyers, after all, must find out the facts and then have a judge apply the law to those facts. Discovery is the fact-finding part of probate litigation. What were the facts and circumstances surrounding the signing of a will? Why was the trust amended to dis-inherit someone? What was mom’s mental state when she made a gift of $1,000,000: did she have mental capacity? Was there undue influence when Dad left his estate under his will to a girlfriend he only knew for a year? A very important part of the discovery process is the deposition, where one side takes the sworn statement of another person, called a witness. The witness may be a party, such as someone you are suing, or a plaintiff or defendant, or a third party, such as the attorney who drafted the will or the family member’s doctor who can testify about one’s mental state. That person, the witness, will be sworn in, and must swear to tell the truth, and will be asked questions in front of a court reporter who will take down or transcribe the Q&A. Our firm often videotapes the deposition of important witnesses and the parties. Parties to probate litigation in Florida often want the rewards that can come with successful litigation but don’t like the obligations which an estate dispute involves. Can one avoid having their deposition taken? No. The only way to avoid being deposed is if you are able to demonstrate a “strong showing” of “good cause” why you should not be deposed. Courts are reluctant to prohibit depositions, although one who seeks a protective order may be successful in having the court limit the deposition to duration, scope or substance. A recent South Florida case in Sarasota demonstrates this principle. Advocate hard. Litigate smart.