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USING AN EXPERT IN FLORIDA PROBATE TRIAL? recent Florida appeals case strikes expert witness

Uncategorized Dec 28, 2013

Using an expert witness in your Florida probate trial?

If so, a very recent Florida case from the fifth District Court of Appeal, sheds important light on the striking of an expert witness for both Florida trial lawyers and Florida appellate attorneys.

Are you involved in Florida probate litigation? In the middle of a trust lawsuit in Palm Beach County, Florida, or maybe a probate lawsuit in Fort Lauderdale?

Before you go to trial, consider this opinion from this Florida appellate court.

In this recent Florida case on appeal, the issue was when can you seek appellate review of a trial order striking an expert witness.

This is important case not only for people who are involved in Florida civil litigation, but perhaps, more importantly, for family members, heirs and beneficiaries who are in the middle of Florida probate litigation. Why?

Many times, Florida probate litigators, and trust trial attorneys, will use expert witnesses at their Florida probate trial. Sometimes, in fact, many times, probate lawsuits in Florida and Florida inheritance lawsuits require, or can use, an expert opinion about a dead Florida resident’s mental state. Florida probate judges have wide discretion to permit, or not permit, the use of an expert witness who may testify at a probate trial. So, for example, if you are in the middle of probate litigation in, say, Palm Beach Gardens, Florida, and the issue for trial is whether the deceased Florida citizen had the mental ability to sign a will, an expert might be used. This expert for the Palm Beach probate trial might be a psychiatrist, or a neurologist, who can read medical records, consider evidence, and provide an opinion to the probate judge about whether the person who made the Florida will was mentally capable of understanding what he or she signed.  Was the person who signed the will competent?  What was the effect of dementia on the ability of Florida resident to sign the will?

The probate trial strategy to use a medical expert to testify about medical records, or capacity, or lack of capacity, or the effect of dementia on a Florida citizen’s ability to make a gift or to sign a will or a trust, is perhaps the most common form or use of an expert witness at a Florida probate trial. However, there may be other instances where an expert may be appropriate

Consider a trust lawsuit where the adult beneficiaries of a Florida trust are suing their Boca Raton, Florida trustee for improper investing.  In that instance, the trust lawyer for the trust beneficiaries may wish to bring in an expert on trust damages under Florida law, and investment damages, including “market adjusted damages.”  The investment expert could testify about how trust damages were incurred, and calculated, and provide two, three, or more damage scenarios, depending on what findings of fact the probate court judge makes at or after trial.

A probate court judge in Florida will generally permit the use of an expert at a probate trial, or during and inheritance lawsuit, if the Florida probate court judge believes that the testimony will be helpful to the court. In many instances an experienced probate court judge does not need expert testimony. For example, a recurring mistake made by in-experienced probate litigators may include trying to bring in an expert to testify about Florida trust law, or Florida probate law. That’s not necessary. A probate court judge does not need an expert, generally, to explain the law to him or her.

The Florida appeals court, in this recent Florida case about the striking of an expert witness for trial, said: “However, even if we were confident that the trial court had erred by limiting the testimony of [ _______ ], we conclude that we lack certiorari jurisdiction. We recently reaffirmed in Bill Kasper Construction v. Morrison, 93 So.3d 1061 (Fla. 5th DCA 2012), that an interlocutory order of the trial court striking an expert witness is not amenable to certiorari review because it is the sort of trial error that usually does not cause irreparable harm, and can be remedied on appeal.”……” If, on direct appeal, this Court concludes that the trial court erred in prohibiting [ _________ ] from testifying about any opinions formulated after October 22, the harm is evident, with or without a proffer, and [ ________ ] will be entitled to a remedy, unless [ ____ ] can show the error was harmless.”

Beneficiaries, and Florida personal representatives who are involved in estate litigation and inheritance lawsuits, who are getting ready for a probate trial, should know whether they are going to use an expert or not, and for what limited purpose. Opposing counsel should know who is going to testify and for what reason. Depositions should be taken in advance of the estate trial so that the probate litigators know what the experts are expected to testify about at trial. If grounds exist for not using an expert, probate litigators should consider filing a motion to strike the use of an expert witness by the opposite side. This recent case suggests that, if granted, the striking of the expert may only be remedied upon appeal at the end of the trial, and not prior to the trial.