Once your petition has been filed in the probate department of the Superior Court of California, and you are engaged in full-on “trust litigation,” what happens next? In most instances, it will be time to prepare for trial through a process called “discovery.” Discovery is the interval between when you file your petition and the date set for trial, when you are able to discover information that helps (or may hurt) your case.
California Probate Code section 1000 applies the Code of Civil Procedure to cases under the Probate Code, including the civil discovery tools. In general, these tools fall into four categories (1) Requests for Admissions; (2) Requests for Production of Documents; (3) Interrogatories; and (4) Depositions.
Requests for Admissions
Requests for Admissions (“RFAs”) are written requests to an opposing party that require that party to admit (or deny) the truth of a statement or that a document is genuine. Often times, essential background facts can be solidified through the use of RFAs.
For example, if your sister was trustee of mom and dad’s trust and gambled away the trust’s assets at a casino in South Lake Tahoe, you might use an RFA to confirm the precise dates when she served as trustee.
Request For Admission No. 1 — “You became the trustee of the Johnson Family Trust on December 2, 2009.”
In response, the party who is answering the RFAs must admit so much of the request as is true, deny so much as is false, and specify which parts the responding party does not know. Before merely stating “I don’t know” in response to every RFA, the responding party must state that he or she has attempted to determine the proper answer and that the available information is insufficient to enable him or her to admit the request.
Requests for Production of Documents
As the title implies, this form of written discovery allows a party to ask another party for documents (including electronic records) that relate to the matter. When necessary, this tool can also be used to request site visits and the production of tangible things in addition to documents.
In the example from above, this is a good tool to use to request records that might help prove mismanagement of the trust’s accounts, but if the trustee does not have such records it may be necessary to subpoena the financial institutions for them.
Request for Production No. 1 – All periodic bank account statements for the Trust Account for the time December 1, 2009 to the present.
In response, the opposing party who is served with the Request for Production must (1) agree to produce the requested records within their possession, custody, or control; (2) represent that he or she is unable to comply with the request because after a diligent search either the document never existed, was destroyed, was stolen, or was never in the opposing party’s possession, custody, or control; or (3) object to the request.
Interrogatories are simply questions that are posed in a written form that must be answered in written form.
For example, you might ask your sister in an interrogatory to state each date she went to the casino or to identify the purpose and/or payee of specific bank transactions reflected in the bank records. If asked via live testimony in a deposition, your sister honestly might not be able to recall the answer to these highly specific questions. As such, the 30-day time period between serving and responding to interrogatories provides sufficient time to research and determine the correct answer to specific questions.
Interrogatory No. 1 – Please state the purpose of the $1,453.76 withdrawal from the Sacramento branch of the Acme Bank made on July 7, 2012.
Interrogatories are broken down into two types: form interrogatories cover general background issues such as date of birth, education and recent work history; and special interrogatories are customized to request case-specific information like in the example above.
Depositions provide an opportunity to question the opposing party via live testimony in a trial-like setting. You are able to ask the opposing party a wide-range of questions to exhaust their knowledge on the issues that are important to the case. It is also a chance to see how the opposing party handles the pressure of being asked questions in a trial-like setting, to assess how likeable (or not) the opposing witness is likely to come across to the judge, and to evaluate the skills of your opponent’s attorney.
Depositions generally take place in law firm conference rooms where a court-reporter takes down a written record of everything said during the proceeding. The transcript can be used to prepare for trial and to impeach a witness who later changes his or her testimony. Depositions are often also recorded by video which enhances their use at trial, but adds to the expense of the deposition process.
In California each oral deposition is limited to seven hours of actual questioning on the record, although more time may be granted by the court.
When you need to receive information from a third-party who is not a party to the case, such as the neurologist who treated your mother’s dementia, you may use a subpoena.
There are three different types of subpoenas: (1) records subpoenas where you can request the production of written documents or things; (2) deposition subpoenas where you can request that a third party appear for a deposition; and (3) records/testimony subpoenas, where the third party must bring documents to his or her deposition. Unlike litigants, third parties cannot be compelled to provide responses to written interrogatories, requests for admission, or requests for production of documents.
For example, instead of relying on your sister to provide the key records needed for your case, it might be a good idea to issue a subpoena directly to the bank or the casino for a copy of the records that you need.
The quickest and cheapest way to proceed with discovery may be informal. For example, if a witness is not represented by counsel, your attorney can call that witness to discuss the background facts without incurring the costs of a subpoena or deposition. Where there are numerous potential witnesses, interviews are the most efficient way to identify the key ones. Additionally, if you are the beneficiary of a trust, you are entitled upon request to information relating to the administration of the trust (if relevant to your interest in the trust), pursuant to Probate Code section 16061. If you are the trustee, and you need records associated with a trust account, you may be able to receive them directly from the bank upon request.
In California trust litigation, you need to be prepared to present as compelling a case as possible to the judge, and to counter any arguments raised by your opponent. That preparation is hard-earned in the months before trial by appropriately employing the discovery tools described above to build your case and to be ready to defend against your adversary’s contentions.