Paige Barlow: Probate Lawyer Ogden Utah

The outcome of a probate litigation is determined by the evidence filed by the parties. If you are fighting a probate litigation in Utah, seek the assistance of an experienced Ogden Utah probate lawyer. Utah probate law is complex.

When you file any case in a court of law, the court will investigate the case. The law has its own unique rules for factual investigation. To a scientist, a fact is that which can be empirically observed. To a lawyer in a dispute, a fact is that which can be proven to a jury or to a judge sitting as the finder of fact. Although a scientist may find it highly probable as an empirical matter that the accused was present at the scene of the crime, if a court finds otherwise, then it is a “fact” for purposes of the trial that the accused was not present.

One way to keep this point in mind is to draw a distinction between evidence and facts. In a trial, evidence is the empirical information that the lawyer presents to the court. A fact is that which the court finds to be true, which may or may not be consistent with most of the evidence.
An experienced Ogden Utah probate lawyer can assist you with the right evidence that you need to produce in order for you to succeed in your probate litigation. In general, the court is permitted to consider two types of evidence: sworn oral testimony given in court; and physical objects, such as a document, a photograph, or a knife. All evidence must be authenticated. If the evidence is in the form of testimony, the witness testifying authenticates his or her testimony by swearing to tell the truth and then identifying himself or herself. If the evidence is in the form of a physical object, then a sworn witness must usually identify the object. In this way, the court knows that all evidence is what it purports to be.
Further, the witness testifying or authenticating an object must lay a foundation for the testimony; that is, the witness must explain how he or she knows the information about which he or she is testifying. The witness can testify only to facts gained through direct observation and is usually not permitted to inject opinion or speculation. A witness’s opinion is admissible when the witness is testifying as an expert. If you are about to testify as a witness in a probate litigation, you should consult with an experienced Ogden Utah probate lawyer.

Expert opinion testimony is admissible because it is thought that lay jurors can decide certain kinds of issues only with the assistance of those with specialized knowledge or training.

Evidence is admissible only if it is relevant; that is, the evidence must tend to prove or disprove a fact of consequence to the action. There are complex rules that govern evidence in Utah courts. Some evidence can be excluded by the probate court in Utah.

Reasons to Exclude Relevant Evidence

Even though evidence is authenticated and relevant, it may nevertheless be excluded because of concerns about its reliability or its potential to prejudice the court, or for other reasons. It may be useful to consider an example of evidence that is excluded based on each of these concerns.

Hearsay

Hearsay is the classic example of evidence excluded because of its unreliability. Hearsay is an out-of-court statement offered into evidence for the truth of the matter asserted in the statement. Because the statement was made out of court, the court cannot assess its reliability, and thus it is excluded. A statement would not be hearsay if it were offered to prove something other than the matter asserted in the statement. In the end, the hearsay rule can often be circumvented by thinking of a reason to admit the testimony other than to prove the truth of the matter asserted. Lawyers speak of this as offering the evidence for a “nonhearsay purpose,” and it is an effective way of putting before the court testimony that may be helpful to one’s case but which would otherwise be inadmissible as hearsay.

It also is possible to get out-of-court statements admitted into evidence by persuading the court that the statement fits within one of the exceptions to the rule excluding hearsay. These exceptions are generally based on the idea that certain hearsay, because of the circumstances in which the statement was made, is sufficiently reliable to be admitted into evidence. For example, statements made by someone against his or her own interest can often be introduced into evidence even though they are technically hearsay, on the assumption that anyone who admits something against his or her own interest is probably telling the truth.

An Example Of Privilege

A statement made by a client to his attorney for the purpose of obtaining legal advice provides an example of evidence excluded for other policy reasons. Such a statement is a privileged attorney-client communication and is generally not disclosed to the court unless the client waives the privilege. The statement, of course, may be of enormous relevance and reliability, but the policy of encouraging people to seek legal advice by permitting them to speak freely to their lawyer is thought to outweigh the value of admitting the privileged communication into evidence.

The Problem of Credibility

Even assuming that all available evidence can be brought before the court, lawyers must anticipate that the evidence on which they have based their reasoning may be disbelieved. For example, the lawyer may have advised the client that the client has a binding contract based on the client’s description of certain conversations with another party. If the court disbelieves that testimony, however, then insofar as the law is concerned, there is no contract and the lawyer’s reasoning was based on a false factual premise.

If a client is trying to create the facts necessary to give rise to a right or duty, as in the case of a client who is trying to create some kind of contractual right, the lawyer must keep in mind that only those facts that can be proven to a court will give rise to the enforceable right or duty that the client seeks. Thus, lawyers often emphasize the need to enhance the credibility of the client’s version of the facts by keeping written records or having witnesses to transactions. At the same time, when the events already have occurred and the client wants simply to know the legal consequences of those events, the lawyer should be alert to the fact that legal reasoning should be based only on those facts that can be established in a court of law.

One mark of a creative lawyer is the ability to marshal as many policy arguments on the side of the client as possible. A particularly strong argument is one that demonstrates that two policies that often are opposed in theory or in their consequences — such as efficiency and justice — both lead to the same result.11 This argument is especially strong because the lawyer, by finding support in both policies, in effect has neutralized one of the potential arguments against the client’s position.

Two policies may operate independently of each other in consequence in a particular situation. That is, the result that furthers one policy would not necessarily further or impede the other policy.

Sensitivity to independently operating policies can strengthen or add to the sophistication of the lawyer’s argument. First, an awareness that there are sets of competing policies that in their consequences operate independently of the issue to be resolved allows the lawyer to generate a variety of ways in which to fashion a result favorable to the client. The lawyer does this by considering the various permutations that are produced by different combinations of independently operating policies. The lawyer can thus present the court with several different ways in which it can rule in favor of the client.

Second, once the lawyer is aware that there is more than one way to prevail, then discussion can begin with the client on whether one form of victory would be preferable to another. Perhaps the client would prefer a rigid rule over a flexible standard. Each time an alternative presents itself, there is a potential question concerning whether the alternative is preferable. Knowledge of the alternatives allows the lawyer to identify issues that might otherwise be overlooked and to determine whether the resolution of the issue matters to the client.

Third, if the lawyer is aware that a particular judge is predisposed toward certain independently operating policies, the lawyer can appeal to that predisposition by adopting that policy. For example, if the lawyer is aware that a particular judge generally favors rigid rules, the lawyer may argue not only that the client should prevail, but that the relief should be cast in the form of a rigid rule, with the request for a standard as a fallback position. In that way, the lawyer identifies the client’s claim with policies that the court is known to favor, even though as a practical matter those policies are irrelevant to the merits of the claim.
In nearly every case in which the law is indeterminate, most lawyers nevertheless have an opinion about the most likely result. The opinions are based on informed speculation concerning the way in which courts will resolve the relevant policy judgments — both the judgments about the relative weight of policies and the judgments about the relationship between ends and means. The speculation is informed by the lawyer’s knowledge of the context in which these policy judgments will be made. The context includes a number of factors.

Another factor influencing policy judgments is the philosophy of the individual judge deciding the case. Specific judges accord greater weight to some policies than to others and, in doubtful cases, are likely to decide the dispute in the way that furthers the policies they prefer. The precise facts of the situation giving rise to the dispute also affect which result will prevail. This is so because the relationship between ends and means varies with the situation. Accordingly, as the circumstances change, the total policy benefit derived from each result changes. Different results thus seem preferable under different circumstances. A final factor included within the context is the existence of binding precedent and, to a lesser extent, persuasive authority from other jurisdictions. In the great majority of cases, courts decide disputes in a way that they can plausibly describe as consistent with applicable precedents. If the precedents have regularly given preference to one policy over the other in a given situation, it becomes more difficult for the court to reverse the preference in a similar situation and still maintain that it has followed the law.

Where the lawyer is counseling a client, the lawyer can make clear that more than one outcome is possible and explain the considerations that would militate in favor of each. The lawyer’s knowledge of the prevailing policy preferences of the local courts may assist the lawyer in estimating the probability that a court would reach any given result. Where the lawyer is an advocate, the lawyer is expected by the norms of the profession to urge the court to prefer those policies that will lead to the result most favorable to the client, regardless of the lawyer’s personal preferences.

Utah probate law is complex. Not only will the probate court consider the Utah probate statute, it will also take into consideration the policy underlying the statute. The court will also take into consideration precedents. An experienced Ogden Utah probate lawyer is aware of the policies behind the Utah probate statute and the precedents that can be applied to your case. This is something which you may never be able to do on your own no matter how much research you do. An experienced Ogden Utah probate lawyer is a professional and as such is aware of the law.